Legal bullshit

Steve Lohr has an article in The New York Times about Apple v Samsung:

Patent trials are part bombast, part boredom. Lurid accusations of corporate skulduggery and deceit quickly give way to a mind-numbing slog through the technical details and vague language of patent claims. A jury will be asked to sort through all that to settle a dispute between Apple and Samsung Electronics in a federal court in San Jose, California.
The jury trial is the latest phase in a global campaign of smartphone patent litigation that began more than two years ago. The legal clashes mainly pit Apple against rival smartphone makers whose handsets are powered by Google’s Android software, notably Samsung, HTC, and Motorola Mobility, which Google bought last year. Dozens of lawsuits and countersuits have been filed in courtrooms around the world.
Yet the escalating patent battle is more than just legal maneuvering. Patents can be powerful tools for determining the rules of engagement for major companies in a fast-growing industry like smartphones. Patents are declarations of invention that are often easily obtained from government patent examiners, but their real value— their validity and strength— is determined in court.
A few significant rulings in favor of one side or the other, industry and patent experts say, could shape the competitive landscape in smartphones and a sister industry, tablet computers. Court decisions, they say, can provide the basis for negotiating the terms and cost of licensing and cross-licensing of patents— or for keeping certain patented features exclusive to one company.
“Once you determine who is the genuine innovator, and in what technologies on the product, you reset the playing field,” said Kevin G. Rivette, a Silicon Valley patent consultant and former vice president for intellectual property strategy for IBM.
But to bring a real shift in the marketplace, Rivette added, one side must have “strong patents, not incremental ones.”
That issue is much debated, and litigated, in the smartphone arena.
Apple scored some points in June. Judge Lucy H. Koh, who will also preside over the jury trial that begins this week, issued a preliminary injunction against Samsung, ordering it to stop selling its Galaxy Nexus smartphone in the United States.
Judge Koh found that Samsung had infringed on an Apple patent for a “universal interface,” which broadly describes crucial ingredients found in Siri, Apple’s question-answering application (though the patent itself was filed by Apple before it acquired Siri in 2010).
But the power of smartphone patents in general suffered a blow in another federal court in June. Richard A. Posner, a prominent federal appeals court judge in Chicago, dismissed a case involving Apple and Google’s Motorola Mobility subsidiary. In his “pox on both of your houses” ruling, Judge Posner ridiculed Apple’s broad claims for its user-experience patents and Motorola’s claim that Apple should pay it a rich royalty on its basic communications patents. Both companies are appealing that ruling.
Fierce patent battles in new industries have been the rule for more than a century, from the steam engine to semiconductors. The lessons of history are decidedly mixed.
Sometimes, patent warriors can hold off rivals for years, as the Wright brothers did in the airplane business, though the cost in time, money and innovative energy diverted was daunting even then. In 1912, Wilbur Wright wrote: “When we think what we might have accomplished if we had been able to devote this time to experiments, we are very sad.”
In smartphones, some analysts say, the sheer number of patents and the speed of innovation in product development undermine the power of patents. Because a smartphone combines many communications and computing technologies, as many as 250,000 patents may touch the device, according to estimates by RPX, a patent licensing company.
“You necessarily litigate individual patents, but there are thousands of patents behind the ones in court,” said Mark A. Lemley, a patent expert at Stanford Law School. “That complexity and the speed of innovation may well make it easier to invent around the patent system in smartphones.”
Indeed, for its new Galaxy models (photo, right), Samsung developed an alternative to one of the Apple-patented features cited in this week’s trial.
One of Apple’s many patents on user-experience programming covers its “rubberbanding” or “bounce” feature— when a user pulls a finger from the top of the touch screen to the bottom, the digital page bounces. On the new Samsung phone, the same finger stroke brings a blue glow at the bottom of the screen, not a bounce.
“There is no single killer patent in this lawsuit,” said Florian Mueller, a patent analyst and blogger. “Apple cannot deal a knockout blow to Samsung.”
Trial briefs filed last week lay out the narrative and some of the details that Apple and Samsung plan to present in court.
Apple asserts that Samsung made “a deliberate decision to copy” the iPhone (photo, left) and iPad, in both product design and software that creates the user experience. The unredacted version of Apple’s filing quotes internal Samsung documents saying that its smartphone design “looked like it copied the iPhone too much” and that “innovation is needed.” Another analysis done for Samsung concluded that the icons on its phone were “too iPhone-like” and were “strongly associated with the iPhone UI,” or user interface.
In its brief, Samsung contends Apple is using patents to try to “stifle legitimate competition and limit consumer choice to maintain its historically exorbitant profits.”
Samsung cites internal Apple documents and deposition testimony to conclude that Apple borrowed its ideas from others, especially Sony. Apple, according to Samsung, was clearly innovative in refining the ideas of others, but it was not the original inventor.
Samsung, quoting its own documents, said it had touch-screen phones in development before the iPhone was introduced in January of 2007, pointing to the Samsung F700 model. (The F700 had a touch screen, but also a pullout keyboard underneath.)
According to Samsung, the corporate documents Apple quotes in its brief come from “benchmarking” sessions conducted by Samsung, a standard industry practice.
“Apple,” the Samsung brief observed, citing deposition testimony, “also assembled an ‘Android war room,’ where its employees can study Android products.”

Rico says never bet against Apple...