Apple stated yesterday that a patent it successfully used against Samsung in its 2011 U.S. Lawsuit is not dead yet despite a recent decision that it's invalid by the US Patent Office. Apple's attorney Michael Jacobs wrote that "A 'final' office action does not signal the end of reexamination at the USPTO, much less the end of consideration of the patentability of the claims under reexamination. Rather, 'finality' is primarily a procedural construct that limits the right to amend claims and introduce evidence as a matter of right in reexamination."
Back in December the cries from the press that Apple's rubber-banding patent was outright invalidated was nonsense even though it was a very successful Samsung tactic in creating that particular image in the mind of the public. Samsung used this very same tactic against LG in a Korean lawsuit by attacking LG's patent as being invalid.
In the Patent Office world, it appears that you're guilty until proven innocent. It almost takes nothing to get a patent rendered invalid. It then forces the owner of the "granted patent" to jump through a number of hoops to reinstate their patent. Considering that it's the Patent Office that originally granted the patent, then the onus should be on the accuser to prove their case first, not the other way around. The process laughs in the face of granting patents if it's that easy to invalidate them.
With that being said, our December report quoted Robert Resis of Banner & Witcoff, a law firm in Chicago who stated that "The Apple patents have not been held to be invalid by a court, and certainly not by an appellate court, so they are still enforceable. Just because there's an action going on in the patent office doesn't render them unenforceable."
That same report also provided a graphic relating to the US Patent and Trademark Office's statistics regarding reexamination where only 11% of cases are outright lost. The majority of the times modifying claims are enough to save the patent.
At the end of the day, Samsung and Google are trying their very best to invalidate crucial patents that Apple owns including another patent known as the pinch-to-zoom patent. These patents are brilliant and necessary for proper use of smartphones and tablet computers.
There's no doubt that the stakes are high and so having Apple's lawyer weighing in this matter yesterday clearly demonstrated that Apple is going to fight this tooth and nail until the very end – and rightfully so. In fact Apple should fight this propaganda war more aggressively in the press.
Every green light that Samsung gives the press to pounce on these rulings is quickly mirrored by the likes of Forbes and others who run negative stories on Apple on a daily basis. Today, one of the headlines from Forbes reads: "Apple Will Lose Friends And Markets With Its Patent Strategy." Really? Don't markets support and reward companies every day for having patents that could secure profits? Yes, of course. Drug companies live or die on the market based on new drugs winning approval by the FDA and holding patents. What a strange point of view from a magazine catering to business people and those following the market. If anyone has a case for defending their patents, it's Apple who revolutionized the modern day smartphone and tablet hands down.They should be able to reap the beneifits of owning intellectual property as anyone else.
Until the day arrives where Apple's last appeal fails, their rubber-banding and pinch-to-zoom patents still stand and aren't invalidated officially by law. Just because the other side yells louder doesn't change the facts. And the more they yell, and more accurately squeal, the more I laugh.
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