July 9-10, 2013
San Francisco, CA

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The only thing taking longer than the whole Kim Dotcom/MegaUpload legal boondoggle is the Apple/Samsung court battle being waged across half the globe.

But it’s starting to get close.

Today a New Zealand court granted Dotcom’s legal team access to all the evidence seized by police in that illegal raid way back in early 2012 that followed an also-illegal government surveillance campaign. Last year, the FBI had wanted to give Dotcom access to only one document out of 22 million seized emails, arguing rather cheekily that Dotcom did not need to see all the evidence against him before he faces trial in U.S. courts.

In addition to digital evidence, police had seized $17 million worth of Dotcom’s personal assets, including millions of dollars worth of luxury cars — including a Mercedes SUV with a custom “MAFIA” license plate — and art.

It’s no wonder Dotcom has pulled a Che Guevara on Barack Obama.

Based on today’s ruling, any computer hard drives — apparently there were 135 — and other evidence, including emails and other files, must be returned to Dotcom. Irrelevant materials must be returned immediately, and materials that the prosecution thinks are relevant to the case can be cloned or copied before being returned. There’s no word, however, on whether Dotcom’s cars and art fit the category of “evidence.”

An extradition hearing that could deport Dotcom to the U.S. is scheduled for August.

It’s unlikely that it will proceed as planned, as other cases could disrupt the timetable, but even if it does and Dotcom is actually extradited, it might be a good thing for the flamboyant technologist, who led the Time100 poll for top leaders, artists, and innovators in the world before ending up third.

That would just increase his visibility, and add power to his message.

Image credits: Elliot Kember/Flickr; Kim Dotcom

July 9-10, 2013
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The USPTO may just have made a billion-dollar decision. Or at least several hundred million.

Ever scrolled to the bottom of a long page on your iPhone, then watched the page lift up from the bottom of the screen and then bounce back? Apple patented that rubber-banding effect, and it was reportedly one of Steve Jobs’ favorite things about the iPhone, since it adds verisimilitude, making what is virtual act as if it is real.

That specific iPhone behavior was one of the issues in Apple’s billion-dollar courtroom victory over Samsung, seven months ago. Now, that patent is on shaky ground, and so is Apple’s legal win — or at least part of the proceeds of that win.

According to a recent Samsung court filing, Apple patent 7,469,381 patent has been invalidated by the U.S. Patent and Trademark Office in a statement called a “Final Office Action:”

This Final Office Action by the USPTO is relevant because it finally rejects multiple claims of the ‘381 patent …

This final rejection includes claim 19, which is the only claim of the ‘381 patent at issue in this action. The jury found at trial that 21 accused Samsung products infringed claim 19 of the ‘381 patent.

Claim 19, along with 18, comprise the bounce-back portion of this patent — the ability of the iPhone to show a surface “beneath” a document when the end of the document is reached and then bounce the document back over it.

Apple’s original billion-dollar victory, of course, was reduced by Justice Koh a month ago to $450 million. And a new trial is expected to determine the final value of the judgement. With Samsung arguing that one of Apple’s key patents has now been ruled invalid, the amount could go down yet again. Both companies are, of course, posturing, with Apple claiming in late 2012 that the billion dollar settlement was $700 too little. Originally, Apple had requested $2.5 billion in compensation.

According to Samsung, the USPTO rejected the patent on March 29 of this year. Apple is likely to appeal the ruling.

The never-ending trial of the smartphone giants continues …

Image credit: Devindra Hardawar/VentureBeat

July 9-10, 2013
San Francisco, CA

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Another day, another attack on Apple in China.

Today, Apple is being sued by state-owned movie maker Shanghai Animation Film Studio, which is accusing Apple of selling 110 movies that it owns via the App Store without its approval, the South China Morning Post reports.

This follows days of attacks on Apple from various sources that are all connected to the government.

First, China Central Television aired an Apple “exposé,” claiming that the company’s warranty policies were discriminating against Chinese consumers. That was accompanied by a clumsily-coordinated astroturf social media campaign via Sina Weibo, the Chinese Twitter/Facebook hybrid. Then the People’s Daily, the government’s main propaganda outlet, attacked Apple for those same warranty policies. And just two days ago, Apple appeared in court to answer a lawsuit claiming that Siri infringes a Chinese company’s patents.

A sample of the movies that were allegedly pirated:

On the face of it, the new copyright lawsuit is a little challenging to process.

Apple does not generally seek out content for iTunes or the App Store and load that content onto the store itself. Instead, authorized representatives of companies, or individuals, upload their own content or apps for sale via iTunes. However, there have been cases in China where pirates have uploaded stolen content to iTunes and the intellectual property owners have successfully sued Apple for damages.

Apple provides steps on its website for reporting precisely that problem; however, short of conducting an exhaustive provenance search for each and every piece of content it sells, it’s hard to see how Apple can know whether content is being pirated or not … and how, given the legal documentation and forms surrounding the upload process, it can be held responsible for pirates’ actions.

However, a similar case involving China Encyclopedia Publishing in September resulted in Apple being required to pay 520,000 yuan in compensation. That’s only about $85,000, but it does set a precedent in China that Apple will be held responsible even if pirates upload stolen content to sell via iTunes or the App Store.

I’ve asked Apple for comment and will update this post if Apple responds.

Interestingly, the South China Morning Post story references a quote from a Shanghai Animation Film Studio representative, who references the “controversies” that “surround” Apple in China right now:

“We want to keep tight-lipped on this case because, as we see it, it’s just a litigation in which we want to get compensation [for our product],” said an official from the Shanghai studio. “It’s a sensitive period now since Apple is a big multinational company and it is surrounded by controversies on its practices in China.”

It’s as if there’s blood in the water and the sharks are smelling it.

One other quote in the story has me scratching my head and wondering what’s really behind this either highly-coincidental or else coordinated set of attacks.

“The cases are not good signs,” the South China Morning Post quotes an “iPhone owner” named Dong Jun as saying. And apparently he added these words: “They convinced me of quitting Apple products later now that my phone has quality problems.”

All I can say is that I personally would tend to identify a source a little more specifically than “iPhone owner,” particularly in a nation of more than a billion people. And that this is a mighty convenient quote, given the extensive and seemingly government-initiated set of attacks on Apple.

July 9-10, 2013
San Francisco, CA

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On precisely the same that day that Google unveiled its open source pledge, donating ten patents for free open source use, Microsoft unveiled its new Patent Tracker, a tool to reveal every single patent that the company owns, has acquired, or owned historically.

Do you believe in coincidences?

The genesis of Microsoft’s patent tracker is the company’s desire to improve the patent system without completely destroying it, a Microsoft lawyer that I spoke to today told me. Three problems the company sees in the current system are knowing who actually owns or controls a patent, litigation abuse by non-practicing entities (lawyerese for patent trolls who don’t actually make anything with the patents they control), and poor patent quality.

The new tracker is designed to fix the first problem, while making patent abuse more difficult. And it’s built around Microsoft’s goal of working within the patent system, while seeking to improve it. As Microsoft’s general counsel Brad Smith said, roughly translated: “Fix what’s broken, not break what’s working.”

The two initiatives show a different approach to patents, at least on the surface, from the two software giants.

Google’s initiative today showcases a kind of patents-are-a-necessary-evil mentality. Google doesn’t want to be left defenseless in a patent nuclear war, so it has loaded up on patents by acquiring Motorola, by buying them from IBM, and by joining a consortium to purchase them from a bankrupt Kodak. But it also wants to be seen as a friend of open systems and open software — after all, Android is built on an open-source foundation — so donating patents to open source is kind of motherhood and apple pie.

But it’s also a pretty easy step: ten patents on fairly obscure data analysis technologies are not going to make many in the patent industry think that Christmas has arrived early.

Microsoft’s initiative showcases a new openness, stripping away the cloak of corporate secrecy, while embracing the existing patent system. The company has gone so far as to provide a downloadable data file of all Microsoft patents: all 40,786 of them as of March 25. The list is massive and extensive, from ZL201020107444.8, a kidney disease detection method which it acquired from Zhongshan Baoyuan Biotechnology Engineering Co., Ltd., to 314229, a media player technology that Microsoft developed internally.

That’s unprecedented, and it would be a major benefit to business and technology executives if all companies did that … or if the U.S. Patent and Trademark Organization made patent information that easily — and transparently — available. While the USPTO makes all patents searchable, it’s not always clear who owns or controls a patent. And that’s a scenario that lends itself to patent trolls, who thrive on the gamesmanship that opacity allows.

It’s a move that Microsoft invites other companies to follow, the company lawyer I spoke to made clear.

The question is: Will companies follow Microsoft’s model or Google’s? Will they start offering patents for free open-source use, or focus on offering greater transparency around the patents they do own? And of course, there are multiple other alternatives, such as eliminating the patent system entirely, revamping it, or determining simple standard licensing terms.

As in many other scenarios, I’m sure that where companies stand will be greatly determined by what they currently own, and how powerful they feel they are currently within the existing situation.

Image credit: John Koetsier

July 9-10, 2013
San Francisco, CA

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Apple and China just can’t seem to get along lately.

Today Apple appeared in court for the first time in the year-long dispute with Shanghai’s Zhizhen Network Technology Co., which says Apple’s Siri personal assistant technology infringes its patented voice recognition software.

Last year Apple added Mandarin and Cantonese support for Siri and was promptly sued by Zhizhen, which produces an app called Xiao i Robot for both iOS and Android. Xiao i Robot uses speech recognition to deliver news, weather, and other updates to users.

“The company will ask Apple to stop manufacturing and selling products using its patent rights, once Apple’s infringement is confirmed,” the company’s lawyer told the AFP. Unsurprisingly, he added that the company doesn’t “exclude the possibility of demanding compensation in the future.”

This is, clearly, a very typical patent shakedown.

But Zhizhen is not a patent troll. It is a real company producing real products, which the company says it has been working on since the early 2000s and patented in 2004. Here’s a comparison, in Chinese, of its iOS app with Siri:

Apple has already settled in previous Chinese trademark cases, most notably with ProView over its ownership of “iPad.” Apple ended up paying that bankrupt company $60 million to make the case go away.

After a clumsy astroturfing campaign against Apple orchestrated by China Central Television last week and a series of attacks by the state’s main propaganda organ, the People’s Daily, this week, Apple looks to be in for a tough time in China.

The case is scheduled to go to trial in July.

Instant non-starter, right?

Don’t be so quick to pre-judge. The lawyer handling the case, Tom Melsheimer, previously won a $41 million judgement from a contact lens manufacturer for the very same plaintif who is bringing this suit, and he sounds confident.

“I wouldn’t have filed the case if we didn’t feel very confident in our position,” Melsheimer told me this morning as he was stepping off an airplane in Dallas. “This was a case that I liked, our firm liked, and I think we have a reasonable chance of winning.”

Melsheimer won’t say how much he hopes to charge Facebook for the patent, only that that he and Rembrandt Social Media LP, which owns the patents in question, are aiming “for a reasonable royalty.” Of course, even at a penny – or a fraction of a cent – per “like,” the billions and billions of likes that now permeate the web could quickly add up to a very big number with a lot of zeroes behind it.

One of the patents is a “method and apparatus” of created a web page diary with “multimedia references to contents of websites.” The other is a “system and method” of creative universal addresses for digital data.

Both were originally filed by a now-deceased Dutch programmer over a decade ago, ”Jos” van der Meer, who attempted to build Surfbook.com (now defunct). Apparently, Surfbook was intended to be a sort of social diary, not terribly dissimilar to Facebook — or any other social networking site.

Put them together and there’s no doubt that the two patents do describe, at least in some general way, processes of adding digital content from sites around the web to a personal profile page. The question, however, is whether that general description means that Facebook’s specific implementation of its wall, status updates, and timeline criminally infringe on the patents.

The patents are now held by that infamous type of company, a non-practicing entity, otherwise known as patent troll. Rembrandt Social Media LP, which is the specific company in this case, has previously claimed ownership of critical technologies in the digital TV and cable modems, in both cases buying patents and then ignoring agreements which were made to license those patents cheaply and easily.

“Rembrandt is a company that seeks out inventors with compelling story to tell about technology that has become core technology in a significant industry,” Melsheimer told me when I asked if the company was a typical patent troll. “It’s not an outfit that scoops up patents at a garage sale or something like that.”

The attorney firm handling the lawsuit for Rembrandt, Fish & Richardson, was founded in 1878 and has been named the “top patent litigation firm in the country” for each of the past nine years.

In other words, while this seems like a typical frivolous patent troll lawsuit, it’s probably a little more serious than the Paul Ceglia I-own-half-of-Facebook nonsense.

photo credit: iluvcocacola via photopin cc

July 9-10, 2013
San Francisco, CA

Tickets On Sale Now

Anyone who thought a sudden wave of peace, love, and joy was going to erupt in the mobile marketplace just in time for Christmas — keep dreaming.

Unlike HTC, Samsung is not planning to pay Apple any patent royalties on its Android smartphone sales, according to the Korean company’s head of mobile. Rather, the fight will continue.

Just this past weekend Apple and HTC buried the hatchet, ceasing all lawsuits and cross-licensing each other’s patents. That settlement is believed to be worth between $6 to $8 per Android phone for Apple, and speculation was — yes, my speculation, too — that Samsung might be next.

But today, Samsung has closed that door, according to the AFP. Executive J.K. Shin, who leads the Korean company’s mobile division, was asked if Samsung would seek a similar arrangement.

“We have no such intention,” he replied.

Whether this is simply negotiation or the dug-in heels of a bitter competition between the two mobile giants is impossible to say right now. Samsung, of course, may be liable for up to $1.5 billion in a legal settlement that is still entangled with challenges and reviews — and potential increases. Both companies have had some legal wins and losses, and the two companies have more than 50 ongoing or filed lawsuits around the globe.

Meanwhile, Samsung is killing it in the marketplace, shipping 57 million smartphones last quarter and expecting as much or more this coming quarter, according to Shin.

All of which means that although Apple may be getting $160 million to $200 million a year in royalties from HTC, the company’s accountants should not yet start anticipating another $1.5 billion from Samsung.

And, that we can expect to see more Apple-Samsung courtroom battles.

photo credit: Dunechaser via photopin cc

We now offer more #transparency in processing copyright reports by withholding Tweets, not removing. Learn more: support.twitter.com/articles/15795.

—
Jeremy K. (@jer) November 03, 2012

In essence, Twitter will now tell users when content has been removed from the site, and give them at least a suggestion of a reason why. This is in addition to Twitter’s already-existing policies of posting takedowns at Chilling Effects and per-country censorship of locally offensive content.

In the site’s documentation, Twitter describes the new process this way:

In an effort to be as transparent as possible regarding the removal or restriction of access to user-posted content, we clearly mark withheld Tweets and media to indicate to viewers when content has been withheld …

Here’s an actual, live example of a withheld tweet:

This Tweet from @torrentfreak has been withheld in response to a report from the copyright holder. Learn more: support.twitter.com/articles/15795#

—
TorrentFreak (@torrentfreak) November 05, 2012

This is a good move by Twitter. Not only does it add clarity and transparency to what the social network is doing, it avoids the black-hole problem: content that has just disappeared, causing havoc for links, retweets, replies, and more.

Typical offending tweets are ones that link to copyrighted or trademarked material — for example this tweet that linked to a download site for Call of Duty: Black Ops 2. In the past, Twitter just deleted the tweets (as this one was), resulting in essentially a 404 web server error: page does not exist.

Source: Twitter

But … it used to exist …

A withheld tweet notification is far more web-friendly, and far more informative.

One thing that could be improved: the link to learn more goes to Twitter’s Copyright and DMCA policy, which is generic information that is not specifically applicable to the tweet. What would be even better would be a direct link to the notice on Chilling Effects from the copyright holder, which would then provide a fairly full and complete explanation of why the tweet was removed.

Perhaps Twitter, which has been doing a reasonably commendable jump walking the tightrope between users’ freedom and copyright holder’s rights, will add that feature next.

photo credit: !borghetti via photopin cc

July 9-10, 2013
San Francisco, CA

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Remember Apple CEO Tim Cook saying that Samsung’s copying went far deeper than his company had imagined? Or the slide deck in which a Samsung product manager reviewed all the ways in which the Galaxy S1 needed to improve based on how iPhone worked?

Turns out that’s not the full story.

Yesterday more court documents from the billion-dollar Apple-Samsung court case appeared. Groklaw grabbed the filings and published significant chunks of them, giving us a fuller view into all the evidence presented. And it’s not as one-sided as the final court judgment and much of the evidence that we’ve seen so far has made it seem.

One example: An internal Samsung document in which Samsung’s mobile division manager compared the difference between Samsung’s user experience and the iPhone as the difference between “heaven and earth.”

Apple, naturally, exerpted that part of the document and presented it to the jury as evidence of copying. No foul, there, of course — any company is going to present their best possible face to the judge and jury.

But when you read the entire thousand-word document, the statement comes off as an acknowledgement that Samsung had a significant amount of work to do to meet the competitive challenge of iPhone … not as a call to copy from Apple.

It’s as if Apple’s passion and prowess at simplification and marketing translated directly into the courtroom, working on the judge and the jury much as it does on consumers, and focused attention precisely where Apple wanted it focused. In fact, according to Groklaw, it’s not simply simplification — it’s distortion.

Samsung’s lawyers’ job was, of course, to reframe the story, illuminate the entire context, and convince the jury that while iPhone was top of mind for Samsung as a threat, it was not the single design inspiration for the Galaxy S3. And that the company followed its own path in created a next-generation smartphone, with a larger screen and different features than iPhone.

They failed.

Many people, however, are hoping that Samsung will get a second chance in an appeal. If so, you can bet that the company’s lawyers will have analyzed the reasons for the initial loss and will be better prepared for a second trial.

photo credit: the|G|™ via photopin cc

July 9-10, 2013
San Francisco, CA

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They said they were going to do it. Now they’ve done it.

Samsung lawyers have added the iPhone 5 to the company’s patent infringement lawsuit against Apple, two weeks after threatening to do so. That lawsuit, one of many ongoing between the two mobile giants, concerns eight patents on data transfer, media syncing, touch screen technology, and more that Samsung says Apple violates.

Source: Apple

iPhone 5

The pre-emptive announcement had seemed suspiciously timed to interrupt the news cycle ramping up to the iPhone 5 launch, which broke records by pre-selling two million units in the first day.

Adding the iPhone 5 to the infringement lawsuit was completely expected — the iPhone 5, after all, shares much with the iPhone 4 in terms of operating system and user interface — but hugely significant. Initial estimates peg potential iPhone 5 sales at 50 million for the U.S. alone in just the first three months of its release.

That’s a lot of units, a lot of dollars, and a lot of infringement — if the courts agree.

In other news from yet another related Samsung v. Apple case, the temporary Galaxy Tab 10.1 ban has been lifted. According to FOSS Patents, that’s simply due to the fact that in the landmark billion-dollar Apple win in August, the jury did not find any infringement in the Tab.

That was, of course, the famous D899 “rounded corners” patent.

The courtroom soap opera continues …

photo credit: NASA Goddard Photo and Video via photopin cc

July 9-10, 2013
San Francisco, CA

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Apple is cracking down on app store copycats and being more proactive about rejecting apps that may violate other companies’ trademarks, according to one developer who saw a colleague’s rejection notice.

9to5Mac first noticed that Benjamin Mayo, a university student who built the Bingo Machine app for iOS, received a note from another developer whose app was rejected. The rejection notice, pictured below, states that this particular submitted app’s icon was too similar to the “chart-topping lists/to-do app Clear” and suggests that “it would be appropriate” for the developer to modify the icon.

Source: Benjamin Mayo

Apple app store rejection letter

Apple’s app store review guidelines specifically say that “use of protected third party material — trademarks, copyrights, trade secrets, otherwise proprietary content — requires a documented rights check which must be provided upon request.”

Developers might legitimately ask, of course, how with 650,000 apps in the app store any design might not look similar to at least one other app’s icon, but Apple is probably mostly concerned with the “chart-topping” apps, which developers have more incentive to copy.

Any developers who find any evidence of trademark infringement on their own can report the problem at Apple’s website:

But if Apple is indeed getting more proactive about cutting out copycat apps, developers may not have to. At least, if your app is on the top 10 list.

Image credit: Star Wars

Apple and Samsung issue their closing statements today in a weeks-long trial that could change the way Silicon Valley looks at the idea of “copying” technology.

“If they start deliberating on the verdict today, we’d be lucky,” U.S. Judge Lucy Koh said during the trial.

The drama is almost over. Both Apple and Samsung have put in long nights, mountains of objections, paperwork, and bickering that has proved to be entertaining, if not drawn-out. Apple seeks monetary damages from three of Samsung’s branches and claims that one of these branches coerced the others to also infringe on Apple’s patents. The iPhone and iPad creator says that Samsung blatantly copied its smartphone and tablet technologies, though Samsung argues that Apple actually infringed on Samsung’s intellectual property.

We’re here at the courthouse listening to the closing arguments and perhaps, more importantly, listening for more awesome quotes from Judge Koh. Last week she called for the chief executives of the two companies to talk, try to reach a settlement, and make “peace.” Last night, however, it became apparent that neither settlement nor peace was possible.

But the case has the opportunity to make us look at “copying” through a new lens. It could clarify what is IP and what is just generic technology that’s part of the smartphone “norm.” It could also change the way we look at competition and when “being competitive” meets “stealing.”

Check back with VentureBeat to find out more about the closing statements today. For now, we’ll listen to the jury instructions, which even Koh is worried about staying awake through:

“We’re going to periodically stand up just to make sure we’re still alive.”

Angry Apple image via Shutterstock

Yahoo, which is suing social network Facebook over patents, requested more time from the courts before being forced to reply to Facebook’s claims in the lawsuit. The reason? The two companies are attempting to settle.

“The parties are currently engaged in settlement negotiations to resolve this dispute. The parties believe that a further extension will facilitate settlement,” said Yahoo counsel Kevin Smith in an amendment to the filing. “Yahoo and Facebook are in agreement that additional time is warranted for the parties to prepare their submissions, will not adversely affect the case schedule, and will facilitate a settlement.”

The extension was filed yesterday.

The two companies have been wrapped up in the lawsuit since March, when Yahoo claimed Facebook was infringing on 10 of the company’s patents. These patents pertained to displaying content, messaging users, controlling spam, among other things. Facebook, in return, filed a counterclaim saying that it was Yahoo who was infringing on 10 Facebook patents. Indeed, Facebook even named off each offending product:

“Yahoo! infringes the Facebook patents-in-suit through, by way of example and not limitation, the Yahoo! Home Page, Yahoo!’s Content Optimization and Relevance Engine (“C.O.R.E.”), the Yahoo! Flickr photo sharing service, and advertisements displayed throughout Yahoo! including on My Yahoo!, Yahoo! Finance, Yahoo! Sports, Yahoo! News, Yahoo! Games, Yahoo! Movies, Yahoo! Shopping, Yahoo! Travel, Yahoo! Autos, and Flickr.”

The two companies may be closer to settlement now that former Yahoo chief executive Scott Thompson is out of the picture. He was said to be a driving force behind the lawsuit but was ousted after a scandal involving a faked computer science degree. Yahoo will have to respond to Facebook’s counterclaims on July 5, extended from June 20. It will have to reply to Facebook’s motion to dismiss the case on July 26.

via Bloomberg; Yahoo image via Yodel Anecdotal/Flickr