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Apple vs Samsung

By The Economist
From The Economist
Published: September 10, 2012

Apple’s victory in its epic legal spat with Samsung has raised eyebrows among techies and lawyers alike.

Sep 1st 2012 | from the print edition

NOT LONG after a jury in the Californian city of San Jose concluded on August 24th that Samsung should pay Apple just over $1 billion in damages for infringing six of the American firm’s software and design patents, stills from a year-old sitcom episode, in which a character demonstrates an absurd triangular tablet computer, began recirculating on the internet. The images were being used to poke fun at the jury’s ruling that the South Korean firm had copied the shape of Apple’s wildly popular iPhone, which (like most) is rectangular with curved corners.

The titanic tussle between the two giants, which has led to one of the biggest penalties for patent violations in legal history, is far from over. On August 28th Apple said it wanted Lucy Koh, the judge presiding over the case, to ban the sale in America of eight of Samsung’s smartphones. Samsung, which is trying to persuade the judge to overturn the jury’s overall verdict, said it would “take all necessary measures” to keep its products on sale. Judge Koh has scheduled a hearing for September 20th to review an existing ban on sales in America of a version of Samsung’s Galaxy Tab tablet computer. Another hearing is set for December to consider imposing a ban on the phones targeted by Apple.

Even if these devices are blocked, the impact on Samsung’s bottom line should be modest because a ban will affect older devices, not the firm’s snazzy new Galaxy phones. But the case still has big implications for the tech industry, which is facing a tsunami of patent-related lawsuits. It shows how patents covering the look and feel of devices are increasingly being “weaponised” by their holders. It highlights the propensity of juries to award huge damages in intellectual-property disputes. And it will give added ammunition to those who feel that the current system of granting and policing tech patents in America needs to be overhauled.

The legal battle between Samsung and Apple is also intriguing because the archenemies work closely together. Samsung is one of the biggest suppliers of components such as memory chips for Apple’s gadgets. But its phones and tablets, which so far have used Google’s Android operating system, compete head-on with Apple’s iPhones and iPad tablets. The tension between the two firms has grown as competition in the smartphone arena has intensified (see article). Gartner, a research firm, says that more than half of the smartphones shipped worldwide in the second quarter run on Android. Apple’s late boss, Steve Jobs, promised “thermonuclear war” against what he saw as Android’s systematic copying of Apple features.

Samsung has been leading the charge of the Androids. To counter it, Apple has launched a bombardment of lawsuits against its rival around the world, claiming that Samsung’s devices breach various patents it holds. On the day that the jury in San Jose delivered its ruling, a court in South Korea hearing a similar case said both firms were guilty of patent violations against the other and banned some of their devices from sale in the country. But since America is the world’s largest market for consumer electronics, the Californian ruling will have a far greater impact.

The jury in San Jose concluded that Samsung had violated several of Apple’s utility patents covering things such as bounce-back scrolling, which makes such things as on-screen icons and web pages rebound if swiped too far, and tap-to-zoom functionality, which makes it easy to zero in on, say, an image or a map. It also said the South Korean company had copied the overall look of the iPhone, including the rounded corners of icons, thus breaching several of Apple’s design patents. To add insult to injury, the jurors tossed out the South Korean firm’s claims that Apple had ripped off some of its own innovations.

Samsung and other firms are likely to tweak the design of their devices to avoid further legal bombshells in America. Some patent lawyers say this is as it should be. “In many ways, the system is working well from an economic viewpoint,” says Wil Rao of McAndrews, Held & Malloy, a law firm. But other experts worry that design patents in particular are often drawn too broadly and granted too easily.

Whopping penalties imposed on patent infringers are also a cause for concern. Some experts blame these on the increased use of juries in patent cases. According to a study published last year by PWC, a consultancy, juries decided an average of 14% of such cases in America in the 1980s; since 2000 that figure has risen to 56%. The problem, says Brian Love, a law professor at Santa Clara University, is that jurors tend to have a gut reaction against patent violators and therefore often award damages that are vastly higher than the economic harm that has been done. Experienced judges tend to see things in a more nuanced light.

A well-known federal judge, Richard Posner, an outspoken critic of America’s patent system, has even suggested that the country’s Patent and Trademark Office be given the job of hearing patent disputes—and sufficient resources to handle a wider remit. Apple knows Judge Posner all too well. Earlier this year, he dismissed a lawsuit it brought against Motorola Mobility, mocking some of the claims Apple had made about the harm it had suffered. Samsung’s lawyers, trying to get the August ruling reversed, will be hoping Judge Koh looks closely at her colleague’s findings when battle resumes in San Jose.

from the print edition | Business

©The Economist Newspaper Limited 2012

三星敗訴的蝴蝶效應

2012-09-05 天下雜誌 505期 作者：經濟學人

蘋果告三星勝訴，創下專利侵權案有史以來最高罰金紀錄。兩大科技巨人的角力勢將持續，對未來影響深遠。

美國加州聖荷西市就蘋果與三星侵權案，宣判三星侵犯蘋果六項軟體與設計專利，應支付蘋果十億美元賠償金，創下專利侵權案有史以來最高罰金紀錄。但這場兩大科技巨人之間的角力，還有得打。

蘋果於八月二十八日，已經向法官提出申請，要求下禁制令禁止三星八款智慧型手機在美國銷售。三星則試圖扳回一城，堅稱會「採取所有必要措施」，以持續在美國銷售產品。

即便蘋果遂其所願，讓三星涉及侵權的手機無法在美銷售，也僅會影響到較舊的機種，對三星的衝擊應該不大。但這案子對近年來專利訴訟不斷的科技產業來說，卻有深遠的影響。

蘋果猛攻Android領頭羊

這案子顯示，外觀與使用者感受的相關專利，逐漸成為用來打擊對手的武器。此外，也可看出陪審團傾向於在智慧財產權爭端中，加重對贏者的獎勵。當然，這也會讓那些覺得美國現行的科技專利權授予、以及保護制度需要改革的人士，有了更多抨擊的理由。

全球出貨的智慧型手機，有超過半數是使用Android系統，而三星則是其中的領導品牌。為了與Android系統陣營抗衡，蘋果集中訴訟火力，攻擊這個最主要的敵人，控告三星侵犯其多項專利。

在聖荷西法院宣判的當天，韓國法院則判決兩造均有侵犯對方專利，並禁止部份機型在該國銷售。然而，因美國是全球最大的消費電子市場，加州法院的判決，有著更深遠的影響力。

但有些專家對如此巨額的專利案罰金感到憂心，他們認為，這和美國廣泛使用陪審團來判決專利案有關。根據普華國際財務顧問（ＰＷＣ）去年的研究，在八○年代，僅有一四％的這類案件使用陪審團，但到二○○○年以後，這比例便提高到五六％。

專家認為，這是因為陪審團員常會以情感反應，作為判決的基礎，因此判給的罰金，遠比侵權造成的經濟損失為高；有經驗的法官，就會以更縝密的眼光來進行判斷。

資深聯邦法院法官波斯納（Richard Posner），年初就駁回了蘋果控告摩托羅拉行動的控告，並對蘋果聲稱侵權造成的經濟損失，恥笑了蘋果一番。

如果三星想在下次開庭時推翻八月的判決，肯定會希望審理法官多研究一下波斯納先前的判決。（林昭儀譯）