Since 2006, Apple has reportedly been sued by patent trolls 135 times and in that same timeframe has launched a small number of focused lawsuits against competitors who have copied the iPhone. In Fairview Research's 2011 top 50 US Patent Assignees' list, Apple came in thirty-ninth place with 676 patents while Samsung clocked in at the number two position with 4,894 patent filings. Yet despite Apple's ranking and right to sue those who are allegedly copying their high profile iPhone, a recent article by The New York Times titled "The Patent, Used as a Sword," definitely takes a calculated swing at Apple by allowing a clearly biased expert to taint one of Apple's key patents in the public's eye. Yet with that said, the New York Times article covers a lot of very interesting ground including a wrenching case where an up and coming company with Siri related technology died by the hand of their very sophisticated competitor, Nuance, even though they actually won their case in court. Today's report focuses on a few of the segments found in the NY Times article that directly relate to Apple.
The following segments in our report are from the New York Times report titled "The Patent, Used as a Sword."
The New York Times reported that unnamed former Apple "employees say senior executives made a deliberate decision over the last decade, after Apple was a victim of patent attacks, to use patents as leverage against competitors to the iPhone, the company's biggest source of profits."
Furthermore, the report stated that "The evolution of Apple into one of the industry's patent warriors gained momentum, like many things within the company, with a terse order from its chief executive, Steven P. Jobs."
A Patent Warrior's Education
"It was 2006, and Apple was preparing to unveil the first iPhone. Life inside company headquarters, former executives said, had become a frenzy of programming sessions and meetings between engineers and executives. And, increasingly, patent lawyers.
Just months earlier, Apple reluctantly agreed to pay $100 million to Creative Technology, a Singapore-based company. Five years before, Creative applied for a broad software patent for a "portable music playback device" that bore minor similarities to the iPod, an Apple product that had gone on sale the same year. Once the patent was granted to Creative, it became a license to sue.
Apple settled three months after Creative went to court. "Creative is very fortunate to have been granted this early patent," Mr. Jobs said in a statement announcing the settlement in 2006.
Privately, Mr. Jobs gathered his senior managers. While Apple had long been adept at filing patents, when it came to the new iPhone, "we're going to patent it all," he declared, according to a former executive who, like other former employees, requested anonymity because of confidentiality agreements.
"His attitude was that if someone at Apple can dream it up, then we should apply for a patent, because even if we never build it, it's a defensive tool," said Nancy R. Heinen, Apple's general counsel until 2006.
In March 2010, Apple sued HTC, a Taiwanese smartphone manufacturer that had partnered with Google. Apple did not talk to HTC before suing. Negotiations were not part of the strategy, according to a former executive. "Google was the enemy, the real target," the executive said.
It was one of seven major smartphone and patent-related lawsuits Apple has initiated since 2006. The suits have focused on two large companies, HTC and Samsung, both Google partners, which together account for 39 percent of American smartphone sales.
"If we can't protect our intellectual property, then we won't spend millions creating products like the iPhone," a former Apple executive said, noting that some of Apple's patents, like the "slide to unlock" feature on the iPhone, took years to perfect. The concept "might seem obvious now, but that's only after we spent millions figuring it out," the executive said. "Other companies shouldn't be able to steal that without compensating us. That's why the patent system exists."
Patent War Fatigue
The New York Times reported that "There are some indications that the big companies themselves are growing weary of this warfare.
In its response to The Times, Apple addressed "standards-essential" patents, which companies are obligated to license to competitors at reasonable rates, and wrote that it was "deeply concerned by the rampant abuse of standards-essential patents by some of our competitors."
"Standards-essential patents are technologies which these companies have volunteered to license to anyone for a reasonable fee," the statement said, "but instead of negotiating with Apple, they've chosen to sue us." Samsung, Motorola, Nokia and HTC have sued Apple, claiming it violated standards-essential patents.
"Apple has always stood for innovation," the company wrote in a statement in response to questions from The New York Times. "To protect our inventions, we have patented many of the new technologies in these groundbreaking and category-defining products. In the rare cases when we take legal action over a patent dispute, it's only as a last resort.
"We think companies should dream up their own products rather than willfully copying ours, and in August a jury in California reached the same conclusion," the statement said.
At a technology conference this year, Apple's chief executive, Timothy D. Cook, said patent battles had not slowed innovation at the company, but acknowledged that some aspects of the battles had "kind of gotten crazy." Cook went on to state that "There's some of this that is maddening. It's a waste; it's a time suck."
Patent Expert Proves to have a Distinct Anti-Apple Slant
The following segment of the NY Times article is the one that I found to be nothing more than carefully crafted propaganda by one of their experts.
"The application by Apple that eventually became patent 8,086,604 first crossed desks at the Patent and Trademark Office on a winter day in 2004.
In the next two years, a small cast of officials spent about 23 hours — the time generally allotted for reviewing a new application — examining the three dozen pages before recommending rejection. The application, for a voice and text-based search engine, was "an obvious variation" on existing ideas, a patent examiner named Raheem Hoffler wrote. Over the next five years, Apple modified and resubmitted the application eight times — and each time it was rejected by the patent office.
On its tenth attempt, Apple got patent 8,086,604 approved. Today, though the patent was not among those Vlingo and Nuance fought over, it is known as the Siri patent because it is widely viewed as one of the linchpins of Apple's strategy to protect its smartphone technologies. In February, the company deployed this new patent in a continuing lawsuit against Samsung.
Apple's December 2004 patent application took until December 2011 to get approved. That's seven years. Why so long? According to the report, "The patent office has a reputation for being overworked, understaffed and plagued by employee turnover …"
The report stated that "After patent 8,086,604 was first rejected in 2007, Apple's lawyers made small adjustments to the application, changing the word "documents" to "items of information" and inserting the phrase "heuristic modules" to refer to bits of software code. A few years later, the inclusion of the word "predetermined" further narrowed Apple's approach."
This kind of tweaking to a patent application is commonly known as a "continuation patent." This is something that Patently Apple reminds our readers of each week; that such tweaks are really about tweaking the patent-claims of an original patent in order to get a patent approved.
Yet, The New York Times decided to put a negative twist to this commonly known legal process standard that is used by everyone in the tech industry by reporting that "These changes had little substantial impact, said experts who reviewed the application for The Times. But the patent office slowly began to come around to Apple's point of view." Wow, is that a subjective evaluation slanted to poison a standard IP process in the eyes of the public and make it like Apple was bending the will of the US Patent Office? – yes, without a doubt in my view.
But it gets better. The report went on to include this line of thinking, or should I say propaganda: "Though submitting an application repeatedly can incur large legal fees, it is often effective. About 70 percent of patent applications are eventually approved after an applicant has altered claims, tinkered with language or worn down the patent examiners." Considering that the New York Times had set this last line up earlier by stating that "On its 10th attempt, Apple got patent 8,086,604 approved," it's pretty clear that the Times is slanting Apple's patent win as one that was based on wearing down the patent examiners. Perhaps it was the Times that had their article slanted by "experts" with an axe to grind against Apple.
Why did the "expert" in the New York Times report decide to use this example and wear down the reader to think this was a patent win by Apple due to their wearing down the patent examiners rather than it being legitimate? Here's the real agenda of the patent experts:
"However, patent 8,086,604 has proved very important. In February, Apple sued Samsung in a California court, arguing that 17 of Samsung's smartphones and tablets violated 8,086,604. In June, a judge banned sales of Samsung's Galaxy Nexus phone, validating 8,086,604 and ruling that the phone infringed on Apple's patent because it featured a "Google quick search box" that allowed users to enter one search term, either typed or spoken, that returned results simultaneously from the Internet, contacts stored on the phone and recently visited Web sites." So the careful approach that this expert took to taint Apple's patent is because it's a key patent aganst Samsung. Was it designed to poison a future jury pool? Only time will tell.
And here's another winning line in this report: "Apple could get a chokehold on the smartphone industry," said Tim O'Reilly, a publisher of computer guides and a software patent critic. "A patent is a government-sanctioned monopoly, and we should be very cautious about handing those out." Even though the patent system has always worked this way to protect an inventor's idea, now it's a government-sanctioned monopoly because O'Reilly thinks that Apple may get a chokehold on the smartphone industry. That's a little overdramatic wouldn't you agree?
But to be fair, The New York Times did present the views of law professor at the University of Illinois Jay Kesan: "Intellectual property is property, just like a house, and its owners deserve protection. We have rules in place, and they're getting better.
"And if someone gets a bad patent, so what?" he said. "You can request a re-examination. You can go to court to invalidate the patent. Even rules that need improvements are better than no rules at all."
At the End of the Day
At the end of the day are patents not an instrument to protect inventions backed by years of research and development? Yes of course. So when a company uses them in court to protect their invention it's their right to do so, plain and simple. Yet if you don't like what you're hearing, then it's not just a matter of a company trying to stop patent infringement, it's about a company that uses a "Patent, Used as Sword" with a very negative connotation to it.
A patent isn't something that you hang on a wall like a diploma, even though competitors would like the public to think it is. To them an invention is a gold star on a paper that gets you a pat on the back, but that's it. God forbid if a company happens to think that they have the right to stop a copycat from infringing on their years of research with a silly piece of paper. Don't' you know, it will stop innovation, cry these fools. In the real world, patents are protectable. You know, like the ones that Apple has relating to their revolutionary iPhone.
At the end of the day, The New York Times report is a great read, even though I strongly disagree with one of their main experts. The story behind Siri's technology and how Nuance crushed their competitor to remain the key source of software behind Siri is a real heartbreaker. This is a time where a much larger company pounced on a smaller company and by doing so aggressively, left a great company with legitimate technology without the necessary funds to operate. Nuance knew this and bought this technology on the cheap from them. Hollywood should make a movie about this story much like they did with Flash of Genius where an inventor by the name of Mr. Robert Kearns took on the Auto Industry over intermittent wipers.
Though as tough and real as that case was with the company with important Siri technology, trying to weave that into the fabric of the story against Apple just doesn't fly. Apple is a leading technology company and Samsung is no startup. That's who Apple focused on in court and won. There are no tears to shed over a company like Samsung who wilfully infringed on the number one consumer product around, the iPhone – no matter how big the source of this spin is.
Source: New York Times
Side Note: Patently Apple covered granted patent 8,086,604 titled "Universal interface for retrieval of information in a computer system" back in 2011. Who knew then that this was going to end up being a cornerstone killer patent?