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Sunday, 13 December 2009

Letter from AmeriKat I - Nokia/Apple lawsuit and USPTO


Always a fan of David Attenborough, the AmeriKat has been fascinated to watch the series ‘Life’ on BBC iPlayer. Like any good Kat she was eager to watch that of the most giant of fishbowls, the episode entitled “Deep Sea Creatures”. The AmeriKat, a lover of generally most creatures, became suddenly disturbed by the sheer amount of sound effects apparently blasting throughout the oceans and seas of this planet. These sounds included sting rays crunching their way through newly armored crabs to starfish pushing out their stomachs to digest a newly deceased seal pup. With a few choice ‘crunches’ and ‘slurps’ once majestic and benign creatures, to the AmeriKat, transformed in a matter of seconds into barbaric and ruthless animals. This reminded the AmeriKat of the joke made by comedian Mitch Hedberg, that those who consider the ocean calm and tranquil are mistaken. “If fish could scream” he said, “the ocean would be louder than anything on Earth.”

Apple hits back at Nokia

If lawsuit filings could scream, however, Apple’s defence and countersuit would undoubtedly be screaming much louder than Nokia’s original complaint. Last Friday Apple filed their aggressive response and counterclaim to Nokia’s earlier suit against Apple for their alleged infringement of at least 10 of Nokia’s patents and repeated failure to pay for F/RAND patent licence fees. Apple’s Friday filing alleges that Nokia is itself infringing 13 of Apple’s patents. Apple’s countersuit also denies Nokia’s claims of infringement alleging that the licences that Nokia demands are “unfair, unreasonable and discriminatory” and “non-essential” to the iPhone.

Last month, when Nokia brought proceedings against Apple, commentators stated that the suit peculiarly coincided with the report that Nokia’s global share in the smartphone fell 35%, while its competitors reported substantial gains. Echoing these commentators, Apple’s countersuit also alleges that Nokia’s suit is not only without standing but, unable to compete with Apple’s technology Nokia was in a habit of acquiring Apple’s intellectual property. In particular, paragraph 8 of Apple’s reply states that:

"Nokia chose to copy the iPhone, especially its enormously popular and patented design and user interface. As Anssi Vanjoki, Nokia’s Executive Vice President and General Manager of Multimedia, stated at Nokia’s GoPlay event in 2007 when asked about the similarities of Nokia’s new offerings to the already released iPhone: ‘If there is something good in the world, we copy with pride.’"

Apple went on to claim that Nokia had violated the F/RAND licensing commitments by “demanding unjustifiable royalties and reciprocal licenses to Apple’s patents covering Apple’s pioneering technology – patents unrelated to any industry standard.” Apple denied all of Nokia’s complaints, as to be expected, and defended the claim on the usual grounds of non-infringement, invalidity, unenforceability and patent misuse.

It was the counterclaim, however, that was of most interest to the AmeriKat. Apple’s arguments broke down into the following, that:

1. Nokia has departed from F/RAND requirements and demanded unfair, unreasonable, and discriminatory licensing terms from Apple including insistence of both exorbitant royalties and “grantbacks” of licences.

2. Nokia has abused standard-setting processes that are crucial to bringing pro-competitive benefits to innovators, telecommunications equipment and network suppliers and end consumers alike.

3. Nokia has abused the monopoly positions that the standards conferred on its claimed standards-essential technologies and breached its contractual commitments by demanding exorbitant royalties and other unreasonable licensing terms.

4. Nokia has copied and infringed Apple’s innovative technologies including 13 of Apple’s patents including those for Apple’s scroll, document rotation and touch-screen technologies.

Bruce Sewell, Apple’s general counsel declared that “Other companies must compete with us by inventing their own technologies, not just be stealing ours.” Nokia issued a statement stating that “We are aware that Apple has provided its response to Nokia Delaware Suit, which was due December 14th. We will study the details of the claim and respond in due course.”

The AmeriKat predicts that Apple’s strong rebuttal and counterclaim will send some fur flying at Nokia. For an interesting piece regarding Nokia’s business structure see this article from the New York Times.

Green patents to get the USPTO green light

Always the science nerd, the AmeriKat was reading Scientific American this week when she came across this article about the USPTO’s new pilot program to fast track approval for so-called green technologies. A new pilot program announced last Monday by the USPTO may mean that patent approvals could be granted within a year rather than the standard 40 month timeline. This fast track system is meant to enable those green inventors to access investment and funding quickly to ensure speedier market deployment of energy saving and other green inventions.

David Kappos, USPTO Director, declared:

“Every day an important green tech innovation is hindered from coming to market is another day we harm our planet and another day lost in creating green businesses and green jobs. Applications in this pilot program will see a significant savings in pendency, which will help bring green innovations to market more quickly.”

Despite Carl Horton, Chief IP Counsel of GE, haling the new initiative as “an excellent incentive to fuel further innovation of clean technology and a terrific mechanism to speed the dissemination of these patented technologies throughout the world”, the USPTO according to the Scientific American article, is not hiring any additional patent examiners for this pilot scheme. Given that USPTO’s patent examiners are already stretched for time and resources, the AmeriKat is anxious that such a pilot scheme with such restrictive review deadlines will only fuel the fire of criticism that the USPTO is currently experiencing regarding the mis-granting of patents and the subsequent generation of frivolous patent suits.

According to the USPTO’s press release, the first 3,000 applications related to green technologies in which a proper petition is filed will receive an ‘accelerated status’ and be examined accordingly. Better get your green patent applications in early then, the AmeriKat warns!

For more information see the USTPO’s Pilot Program for Green Technologies information resource here.

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