“Apple vs. Samsung initially ended with a billion-dollar verdict in favor of Apple, but there have been plenty of wrinkles since. This week brought about another, as Nokia filed an amicus brief on behalf of Apple, Inc. in the US Court of Appeals for the Federal Circuit. In the brief filed Monday, Nokia asked the court to permit permanent injunctions on the sale of Samsung phones that were found to infringe Apple’s patents.” In the meantime, the latest comScore figures for the US show that Windows Phone’s market share actually declined during the launch of Windows Phone 8. It’s pretty clear that, combined with the disappointing quarterly results for Nokia, the company is setting itself up for the future. In this future, Nokia’s patent portfolio is worth more than their actual phone business, and as such, Nokia can’t do anything but support Apple in this case, else the value of their portfolio goes down.
This isn’t about Samsung, or Apple. Its about the precedent that the ruling against Apple would have.
When Judge Koh denied Apple its injunction, it had wide ranging implication for every player in the industry. To be honest, I’m surprised that Nokia has been the only one to recognize the severity of the situation. The bar has been set impossibly high to get an injunction.
If Apple can’t get an injunction after a Jury has found Samsung to be infringing to the tune of a billion dollars, then who the hell can get an injunction?
That’s why Nokia is doing this. It isn’t some nefarious Nokia-Apple alliance, but a peculiar alignment of interests.
I’m fairly confident that Judge Koh’s ruling won’t stand on this. Its too draconian a restriction. Apple clearly deserves the injunctive relief.
Now, a word on marketshare. To me, the numbers speak well for an OS who’s principal OEM is supply strapped. Nokia can’t make the things fast enough because they need to be deliberate with supply. Its a balancing act.
You can see this in countries like Poland, Russia, Italy, and other European companies where Windows Phone is sometimes in the double digits regionally there. It is undeniable that there, Windows Phone has great momentum and is catching on.
Sure Nokia is having issues in the US (though not really, given that they’re more or less treading water in a rapidly expanding market — and sequentially they were able to keep up pace with Android device sales in the US for January, which is no small feat. 360k vs 400k) but that can be worked through, especially since they’ve fleshed out their portfolio. T-Mobile getting the Lumia 510 will boost sales immensely, along with VZW getting a 920 variant and ATT getting another flagship.
Look, Nokia now has a Windows Phone 8 device for $180 dollars unsubsidized. That’s low-end Android territory with an undeniably better user experience at the same price point. Nokia is getting very aggressive on the low end now, and surprisingly its with Windows Phone 8.
600 million.
It really isn’t. None of the so-called infringements were core aspects of a phone, and none were dealbreakers or makers. I.e., you don’t ban an entire car from the market just because the shape of the steering wheel bears a passing resemblance to that of another car.
Quite clearly, the Jury awarded Apple around a billion dollars. The Judge disagreed, but that will be handled in a separate case.
At the time when the Judge made her ruling, the billion dollar figure still stood. Its important to point out, that even in light of this, apparently there was not enough to find for an exclusion order, which is worrying.
I don’t really think anything you said above has any legal bearing on why Apple should get an infringement, and in fact, isn’t even the argument that the Judge used.
A disagreement with the Judge’s core reasoning is why Nokia filed its amicus brief.
Only if you think the current patent system is worth protecting.
I do. Without getting into too much of a philosophical argument, I think that many companies have innovations and R&D investments worth protecting.
ouch. for the sake of my little company i want the software and design patents utterly gone. We know that any larger player with a legal department will bury us with just legal threats even if totally unfounded. It’s another small business nightmare that destoys innovation and effectively allows a few huge companies to dominate through collusion. More money is now spent on legal departments than r&d in these huge companies. I see no progress here, just another lawyer multuplying industry.
And the MS shills are out again even though the article has absolutely nothing to do with windows, just nokia’s already existing patent portfolio. If you can’t innovate (that means market, not just technology!), then litigate!
Edited 2013-03-07 13:13 UTC
I think you place too much importance on your small business. You’re relatively small fish to fry in the grand scheme of things, so really, you need to worry mostly about NPEs or patent trolling.
That aspect of the system needs great reform, but it is completely separate from the merits of the patent system at large.
Besides, your post reads more to me like you’d like to escape the reality of potential liability for anything. You’re starting a business, you’re going to need a lawyers. Regardless.
Small start ups usually are not targeted, and products of the start up mentality like Facebook are only just now amassing a patent arsenal.
Yeah, fuck his small business… Apple are on the bread line.
No need for philosophical arguments at all. Innovation tends to happen at a quicker rate without protections. Sure, we could protect companies, but it tends to be at the expense of society.
It’s a myth that patent protection fosters innovation, much like the myth that ever increasing tax cuts for the rich creates jobs. They sound all right in theory, but they never pan out in reality.
The public good served by patents isn’t isn’t about rewarding innovation, it’s supposed to be about rewarding *publication* of innovation. In other words, making the details of innovations available to the public is the goal, a temporary government-imposed monopoly is the incentive.
Markets reward innovation, government has no need nor justification for doing so. There are powerful interests behind the misrepresentation of the purpose of patents (“rewarding innovation”), so it’s worth pushing back and remembering the true purpose when comparing the benefit to the public against the cost to the public.
Some economists think that the cost of patents is higher than the benefits. Cost and benefit to the public, that is. Many companies see great benefit in suppressing competition.
Back to the topic, I see that the usual players are busy misrepresenting this case. The judge has not ruled out injunctions, she’s ruled that it’s not time for them *yet*. The jury didn’t follow instructions, so that needs to be sorted out before injunctions or penalties can be assigned.
That’s not what she said at all. Did you just make this up? She didn’t mention any of what you just said. You’re being intentionally misleading.
The Judge’s ruling is unusual and controversial. I think it has more to do with having an appearance of impartiality than an actual correct application of the law.
There’s almost no doubt that Apple will appeal and win this one.
Do you think that the rate of innovation is low in the mobile space? Watch other industries. There’s the initial boom, rapid innovation, a small period of litigation, then relative peace. No industry has really blown itself up over patents historically.
I’m just wondering what would lead you to conclude that patents are stymieing innovation. Sure, its easy to call patents innovation killers (just like its easy to say that tax cuts for the rich are good) but its harder to prove.
And I’m a bleeding heart liberal so I think we agree on the rest of your post
.
There was a well written article a while back about the stymieing affect of patents on England’s train industry.
And yes, I do think that innovation is low in the mobile space where patents are involved. None of Apple’s patents are really innovative.
Quality, not quantity.
None of Apple’s patents are really innovative.
Did you examined them all or it is just yet another unbased statement?
What a load a crap.
I’ve seen far too many big companies spend millions on kitchen sink patents that cover world + dog just to use it later on to bully small companies into submissions by using the sheer size of their legal department.
You simply have no idea how broken the system is, and how hard it is to navigate a small company in today’s patent system minefield.
– Gilboa
You’ve seen big non patent trolls extorting small businesses? Where? Do you have examples? I don’t really think this happens as much in practice as people let on.
It is a myth that small business is being strangled by patents. Just because you say it, doesn’t make it true.
Let just say I’m talking from personal experience. (Both ends, BTW).
You’re either very naive, very young, or living on another planet.
– Gilboa
Edited 2013-03-08 09:28 UTC
“This isn’t about Samsung, or Apple. Its about the precedent that the ruling against Apple would have.”
Seems more likely it’s simply about removing some competition in the hope of more sales but then I’m quite cynical.
I don’t think that’s Nokia’s play at all. Maybe it’s Apple’s, in fact, it’s likely Apple’s strategy. They’re out for more blood than Nokia is.
Nokia’s hand in this is that they need to protect their future ability to use injunctive relief as a negotiating chip. The bar being set so impossibly high threatens that and hurts their IP licensing schemes.
You may very well be right but isn’t Apple’s IP in this case mostly guff rather than actual invention? (rounded corners, bounce back…)
Some of it may be, but that’d be for the courts and the applicable Government agencies to adjudicate. The good news is, that in a lot of instances, it has found patents by a variety of entities to be invalid or too broad. That’s a good thing, its the system working as intended.
Apparently more and more WP phones have been sold, but the marketshare has gone down slightly percentage wise in the US.
So WP is on the climb in absolute numbers, but down a little big percentage wise.
I think it’s still early days for WP8 and its marketshare will increase as it’s getting more known, accepted and supported.
As far as Poland is concerned I’ve seen 4 WP devices in the wild to date, and I’m a bit crazy about getting to know what people have. About 2 times less than HTC. Samsung is dominating. IOS devices are also not hard to come by but nowhere near Samsung.
The Nokia wp ad posters have been all over the place for about 8 months, and they very good exposure in operators shop windows (much much better than Apple for example).
In case of Russia or other Soviet block countries it is absolutely not surprising to me. Smartphone market share is substantially lower there than in developed world. Many people are still migrating from dumb phones, where Nokia was considered a top brand for years.
Majority of them don’t even know what a joke of a manufacturer Nokia has become since then, but are being misled by aggressive advertising of the latest and greatest, better than Android or iPhone, platform.
But lol @ 3.1% global share and falling.
Yes, Italy with 14% and the United Kingdom with 6%, or Finland with 17% sure are Soviet satellites. /s
Windows Phone has an overall 7% share and growing in Europe. Its doubled its share YoY in a lot of regions (including the US).
I think in light of this, along with more lower priced Lumias (a lot of the Eastern Europe WP sales are attributed to low cost Lumia handsets) you’ll see Europe continue to make gains, and China start to pick up.
I’d caution you against being on the wrong side of history with your pessimism.
Well, Finland looks a no-brainer. Would be strange for Nokia to lose foot even in its native market. Substantially higher than global percent in Italy hints at possible pushes of contract bundles or otherwise depends on local market specifics.
We should not forget how the market is structured. There’s always a portion of people, who do not care about platforms, fragmentation, openness or application store policies but rather features of a particular phone they liked. This group is very gullible and easy to convert to any platform given enough advertising and promotion.
Until the figure of WP global market penetration is out of statistical insignificance of a couple of percents, I can’t find myself relying on it. My pessimism is OK, since I’m not trying to predict the future, but follow what everybody else is using now.
Good thing I’m only choosing a phone but not which shares to buy.
The US distorts this quite a bit given the sheer size of the market. Nokia knows they have a US problem. They do. However just because a US problem distorts global market share statistics, does not imply that they’re not doing well in other parts of the world.
This Windows Phone isn’t selling meme died with WP8. Definitively.
They have a long way to go, but small to modest sales does not mean nobody is buying them.
@Nelson:
“This Windows Phone isn’t selling meme died with WP8. Definitively.
They have a long way to go, but small to modest sales does not mean nobody is buying them.”
I STRONGLY recommend that you re-think what you’re saying. The best analyst focused on the mobile market these days is probably Tomi Ahonen. He has been right time after time when other analysts looking at the smartphone market have been way off:
http://communities-dominate.blogs.com/brands/2013/02/so-whose-your-…
His analysis of the 2012 Q4 and full year numbers give some additional detail:
http://communities-dominate.blogs.com/brands/2013/02/so-whose-your-…
I hate to say it, but you are just whistling in the dark if you think Microsoft is going to ever be a serious player in mobile with WP8. Their Skype problem makes them DOA as far as all carriers are concerned.
Edited 2013-03-07 19:27 UTC
I do not subscribe to the mental backflips Tomi does to arrive at his conclusions.
He’s laughed at by everyone except Nokia haters and apparently OSAlert. He’s not insightful, influential, or even right. He’s been so blinded by ideology that it’s almost sad.
I read his blog years ago before the Windows Phone transition and he generally had something smart to say once in a while, between him plugging his stupid book everywhere and his annoying self worship.
http://dominiescommunicate.wordpress.com/2013/02/22/the-tomi-ahonen…
Holds the definitive list of fact checking on Tomi Ahonen. He’s a fraud who routinely manipulates numbers. Fortunately for him, his interests line up nicely with those of people who are still burned that Nokia killed off MeeGo (like some on OSAlert) or people who irrationally hate Microsoft (again, like some on OSAlert). Snake oil salesman, in my opinion.
Well he was featured as the the number one Top 10 Power Influencers in Mobile in Forbes magazine.
Of course the reason you are attacking him is all because he is saying things you don’t want to hear, which is that Microsoft’s mobile efforts are doing really poor.
Was. He no longer holds that position.
http://dominiescommunicate.wordpress.com/2012/10/27/tomi-ahonen-and…
In fact, he’s not even Top 10 anymore. People are recognizing him for the joke that he’s become. Its tragic. In an ironic twist though, the most influential person is the guy that runs MyNokiaBlog.
Instead of attacking me, read the links I’ve posted. Specifically the first one, which shows his various inaccuracies. He’s grossly misleading.
Edited 2013-03-07 22:46 UTC
Oh please, neither you nor the person who created that blog (is it you?) would have spent time attacking his claims if he was not influental.
You liked what he wrote until he started writing bad stuff about Microsoft’s mobile efforts, then suddenly he is a hack.
I’m sorry but your objectivity regarding Microsoft has no credibility at all as far as I’m concerned.
No it’s not me, and that’s pretty stupid logic. He’s not influential overall in mobile anymore BECAUSE he’s been consistently proven wrong by multiple sources (including the great Peter Bright from ArsTechnica)and no one looks to him as an authoritative source any longer.
It is great that people started fact checking him. However, my suspicion is that you like what he writes a little too much to take a look at him objectively.
I am absolutely fascinated with Nokia’s predicament and ways for them to get out of it — and I do keep up with his posts. I just am highly skeptical of the figures he cites, especially since once you track them down, they end up being from a dubious “Tomi consulting”, or figures he just fucking made up.
He lied about Lumia return rates (and many on OSAlert regurgitated this FUD), lied on the effect of Skype, and on Mr. Elop’s comments, lied about his supposed “Elop effect” and many other whoppers.
He’s particularly an effective little troll when it comes to people who want to believe that Nokia is doomed, Microsoft is doomed, etc.
Look, I don’t deny Microsoft has trouble in mobile. I in fact go on rather lengthy diatribes bout why I think they are in the predicament they are in. That’s fine. I welcome that.
What Tomi does is separate all together. He purposely smears Nokia to get views. He doesn’t so much hit Microsoft — but he has a particularly nasty bone to pick with Nokia, specifically Stephen Elop.
I again, implore you to think objectively and consider the link I’ve provided. If after taking a look, you can spot some glaring mistake in the analysis provided, then say so.
To dismiss it completely because he must have it our for Tomi, or that I’m him (Despite the fact that I’m not Finnish, but hey), is wrong in my opinion.
I liked what he wrote about a year before the Nokia-Microsoft deal. He started to really go off of the tracks in the months leading up to the Microsoft deal. Basically he was already irrational far into 2010, likely once he saw the page views he amassed.
I can likely be critical of Microsoft in ways you can’t even begin to understand because unlike you, I actually walk the walk and try out the products I talk about.
I am well aware of Microsoft’s deficiencies in mobile. I don’t think WP8 was enough, I think it’s actually quite terrible. I think they have a mess on their hands with their dev platform but they’re making great strides. I think they have a problem keeping OEMs in line, and a problem sealing the deal in the sales channel.
I think it is more than likely Microsoft which is holding Nokia back. It is Microsoft which isn’t firing on all pistons. Nokia is. They’re pouring their all into this endeavor.
I can criticize Microsoft too, in fact, I enjoy doing so. But no, never mind all that, I’m apparently just a fan boy.
It’s not draconian since in essence Apple has no case at all – i.e. prior art. I’m not quite sure why the judge didn’t bust the case altogether.
Because the Judge doesn’t share your primitive view on the law, and there is a proper legal procedure that Samsung did not follow.
They were over a month late with paper work in an instance. That’s damn near negligent on behalf of Samsung’s legal team.
Too many people put their faith in people that think exactly like you, and it was hilarious watching the reactions people had when the ruling came in. It reminded me of when conservatives in my country were so delusional, so blinded by pure ideology that they didn’t see the tea leaves.
Nokia has a very strong patent portfolio, as strong as IBM’s in their respective business. It’s to be expected that they don’t want a dangerous precent set with this case because it would seriously devalue the worth of their own patents.
There’s a current system based on a certain set of rules; you either follow them or you change them.
I don’t agree with the patent system at large; get rid of it. I wouldn’t want to see a current Galaxy device being banned because of patents and Apple shouldn’t be paying companies licensing fees for stuff they invented in the 90s.
However, I also consider ridiculous and outrageous the blatant ripoff from Samsung on many Apple related stuff (software, hardware, retail, there are countless examples).
Edited 2013-03-07 12:43 UTC
I know it’s a complicated matter altogether, but do you really think majority of those patents are still relevant?
Smartphone today is nothing like it was when Symbian was considered top notch. Now, Android software stack is developed by Google and protected by it. Only things vendor really has to care about are hardware and design.
In hardware Samsung is very strong, developing and manufacturing everything largely by itself. Even Apple profits from Samsung’s work in this field.
When it comes to design, any sensible person who is not braindead can:
a) tell the difference between Apple, Samsung or other devices; b) understand that minor similarities in packaging are unavoidable due to standard form-factors; c) agree that design is not how you choose between mobile platform, which are totally incompatible with one another.
Go read Communities Dominate Brands blog for the whole history, but given that Nokia became a sock-puppet of Microsoft, and the only thing Microsoft and Apple agree on is that Google (Android, etc) must be destroyed, Ballmer reaching out through his sock-puppet isn’t surprising.
How else are they going to continue to shove out those Lumias (where each generation can’t be upgraded to the next WPOS) when there is Android?
Indeed. The usual play is that Microsoft goes after “Intellectual Property Deals”, suchs as those on the wonderful and ‘cutting edge’ (cough, cough) exFAT technology; whereas Apples weapon of choice is the sales ban, based on breached “rounded corner patents”.
Nelson:
Injunctions are really only suppose to be used when the grievance is so bad that money can not make the victim whole. The problem is that most of what Apple was infringed on were not things that would prevent the competition from existing. Its not like Samsung was using some new screen technology that Apple hadn’t licensed to anyone else. Apple cross licensed with HTC and with Microsoft. Therefore injunctive relief is not a valid relief. Its only a question of money.
Wrong. Read up on patent case law in the US.
Irreparable harm is caused to Apple because patents have a finite lifespan, and every second that Samsung is allowed to continue to infringe is time Apple will never get back.
This comes with the caveat that its at the Judge’s discretion, and this has usually worked well. Judge’s have been very fair about balancing monetary damages vs injunctive relief.
The issue at hand is that after Samsung has been found by the Jury to infringe something like a dozen patents, many of them willfully, and across a span of many devices, the Judge is still reluctant to grant an exclusion order.
This is radical and unprecedented, ESPECIALLY for a non preliminary request, and why Nokia filed its amicus brief.
The reason I gave WAS based on case law. Its the exact reason the judge gave, based on case law. Look it up.
Also: Any other actions against any other manufacturer mean jack shit in this case. Your not even allowed to bring it up in the court case.
Nelson, try the Googles. A *very* quick look shows this from Wikipedia:
“Nevertheless, the irreparable injury rule was reaffirmed by the U.S. Supreme Court in eBay v. MercExchange, 547 U.S. 388 (2006), a case in which the Court announced a test for injunctive relief that required, among other things, that the plaintiff prove “that it has suffered an irreparable injury”.”
Edited 2013-03-07 22:33 UTC
Apple has proven irreparable harm. Apple has had a dozen of its patents infringed across a shitload of Samsung products. Willfully so, in fact.
If this doesn’t pass the litmus test for an injunction, nothing does. The Judge is clearly making a ruling that is inconsistent with how the test has been applied in the past.
You might have an argument if Apple hadn’t cross licensed with Microsoft and HTC, Goes to prove that they WILL take money in exchange for IP.
Edited 2013-03-08 02:04 UTC
Nelson:
The largest example of an industry where innovation was halted by patents and IP was, surprise surprise, the phone industry. Bell was found to be a monopoly, having illegally domineered the entire industry, and was broken up. That allowed other phone companies like Sprint and MCI to exist.
That case wasn’t really about patents.
Oh really. And just how do you think at&t became the huge corporation that got broken up? at&t had a long history of abuses all starting with the patent on the telephone.
Yes really. ATT had a statutory monopoly.
Sure, maybe they had patents, so did everyone else, but it is far from the principle reason why they were broken up, which is what you’re claiming.
Do tell, O wise and powerful Nelson.