Apple and Samsung Agree To Settlement Talks

tlhIngan writes "It looks like the Apple v. Samsung war might be over soon. Both parties have agreed to meet to attempt to reach a settlement. While they are not required to settle (Google and Oracle recently went through the same process), it could be a positive signal that Apple might be willing to license the patents under Tim Cook, versus fight it out in court under the late Steve Jobs."

Headline somewhat misleading (surprise)

[Registered Coward v2]

The court ordered them to talk and try to reach an agreement; something a judge can do. However, that does not mean they have to settle. Since it is both CEOs and senior council at the talks, you'd think they could reach an agreement. Cook seems like a rational person, and I assume the head of Samsung is as well. My guess is some sort of cross licensing deal with maybe an agreement to keep talking to avoid food fights in the future. This is a classic case of both sides needing the other and to try to find a way to put away the gun they've pointed at each others head without losing face.

You are right, you don't understand.

[Brannon]

Nobody forced anybody to license anything under FRAND conditions. The patent holders voluntarily committed them to FRAND licensing in order to get them included within a standard. That's how standards work. By the way, FRAND doesn't mean "free" as you seem to believe, some of those companies make a lot of money off of their FRAND patents. It means that you can't charge Apple more than you charge Toshiba--which is exactly what Motorola was trying to do.

Also, design patents != standard patents. Nobody is claiming that rounded corners is some kind of technical invention, that isn't the purpose of design patents--they are *by definition* aesthetic. They exist so that a competitor can't make a look-alike replica of your product and then sell it to confused customers--which is exactly what Samsung was trying to do.

All that said, I think Apple overstates their case sometimes by assuming every feature on another phone which is similar to an iPhone was copied from the iPhone. Sometimes there is a simpler explanation, like two people trying to solve the same problem came up with a similar answer, or the feature actually existed in an earlier product.

Apple already tried this...

[Anonymous Coward]

Apple offered [wsj.com] settlement deals to both Samsung *and* Motorala before enteringlitigation. Yes, even with Steve Jobs at the helm.

Perhaps you ought to check your facts before speaking ill of the dead.

Re:Hm...

[AdrianKemp]

OR

It could be a sign that the judge effectively ordered them to do it. If they'd said they weren't available/willing to sit down the judge would have deemed them uncooperative.

Re:Apple willing to license?

[Anonymous Coward]

"Rounded corners" on the other hand is not something that is patented, or patentable, and referring to it seems to indicate that you are a bit clueless. You can get a design patent for a design which consists of many, many design elements, and only someone copying that combination of design elements would be infringing. I can get a design patent for a phone that has A, B, C, D and E, and you would then be free to create a phone that has A, C, D and E, but not B.

Bullshit. Design patents do not rely on a specific enumeration of elements, but on drawings, and the similarity to these drawings need not be absolute. For instance, the iPad design patent (D504889 [google.com]) being asserted against Samsung shows a square edge between the front face and all sides. And yet, making a tablet contaning all elements of that design except the square edge (replacing it, say, with a small radius) would not keep you safe -- in fact the iPad itself has a small radius here. The test for infringement regards the overall effect of the design (excluding functional elements), viz. whether "in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same" (Gorham v. White).

See Amini Inovation Corp. v Anthony California, Inc., where an element-by-element comparison of the type you endorse was rejected:

[T]he trial mistakenly analyzed each element separately instead of analyzing the design as a whole from the perspective of an ordinary observer. The trial court is correct to factor out the functional aspects of various design elements, but that discounting of functional elements must not convert the overall infringement text to an element-by-element comparison.

Picking one element and changing it doesn't mean you don't infringe; the only way to avoid infringing is to make sure the whole design is sufficiently dissimilar to avoid infringement, and whether one element is enough depends on the prominence of that element and of whatever you replace it with.

Of course, this is part of why design patents are an evil blight -- it's too hard to avoid infringement, and too hard to clarify what elements are functional vs. ornamental, when a major principle of good industrial design is simplicity, and the reduction to functionality -- the better the design, the blurrier the line of infringement becomes!

Re:Sanity returning to Apple?

[Karlt1]

You mean Apple under Cook may consider allowing Flash on their devices? The most recent complaints I've heard about the iPads from coworkers is that their shiny new toy doesn't seem to be able to show all of the webpages they look at.

Where have you been? Adobe is abandoning Flash for Android and every other mobile platform.

http://blogs.adobe.com/conversations/2011/11/flash-focus.html [adobe.com]