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Google’s Andy Rubin May Be Called As Witness In New Apple Samsung Patent Case

2008_Google_Developer_Day_in_Japan_-_Andy_Rubin

The long running smart phone wars in the consumer marketplace have been paralleled by an equally protracted series of legal skirmishes in the courts. This is particularly the case between giant phone manufacturers Apple and Samsung, over each other’s patent rights.

Over a year ago Apple won a $1 billion dollar judgment in a jury trial against Samsung for patent infringement,  which was reaffirmed a few months ago in a second trial, also by a jury, though this time with a slightly smaller financial penalty being imposed.

And that is even before the case goes for its first round of appeals.

Now a second trial is about to commence next month between Apple and Samsung, again over a series of patents that are in dispute between them, and again to be tried by a jury before the same judge, Lucy Koh.

Apple is claiming, once more, that Samsung and the Android operating system which Samsung deploys in most of its smart phones and tablets, again infringes its patent rights with a number of additional and more recent patents at stake in this new trial, installed in a host of additional, newer, products made by Samsung.

The kinds of patents Apple is asserting are all proprietary “non-standards-essential” patents which, it claims,  differentiate its products from those of its competitors. For its part most of the patents Samsung counter-asserts against Apple in other disputes tend to be what are called  “standards-essential” patents, known as “SEPs”.

Standards essential patents are those technology ideas manufacturers contribute to a public standard which everyone in the industry will collectively then use, and thus ensure interoperability without which much of the telecoms business could not function.

In doing so such a manufacturer willingly gives up the completely proprietary nature of an invention in the hope of gaining smaller, but surer, revenues from the wider audience that will adopt them once they become an industry standard. Sometimes, too, an invention may not be an important one, or even necessary for everyone to use at all until it becomes accepted as part of a standard and thus gains “quasi monopolistic” status because of the interoperability issue.

One of the rules of the SEP process is that once such a patent is adopted as part of an industry wide standard the patent holder concerned is then obligated to provide licences to anyone who wants one, and to do so on what are known as FRAND terms – i.e. fair, reasonable and non-discriminatory.

When trouble comes later it can do so for two reasons; first a FRAND licensing rate for a particular patent may be demanded by its holder unilaterally, and quite arbitrarily, at a very high price, far beyond its true worth, sometimes aiming at a particular competitor with a much higher rate than that charged to other players in the game. And second, when SEPs to which a manufacturer has committed to offer FRAND terms, are used to play hold-up games with other manufacturers in order to obtain preferred access to their non-standards essential patents.

In the Apple Samsung litigation Samsung has frequently tried, to date unsuccessfully, to do both; i.e. a) to charge too much for its SEPs and b) to use its SEPs as a bargaining tool to obtain am automatic cross-license to many of Apple’s non-SEP patents.

Since the latter are completely proprietary and not committed to any industry standards process they are legitimate ways for companies to differentiate their products in the marketplace successfully.

Andy Rubin , the co-founder of  Android Inc. and Danger, comes into the picture here as he used to lead the Android programme at Google, before going off on his new robotics adventure for them, and may therefore be called by Apple as a witness in its new litigation with Samsung. Many of the infringements it is claiming indeed relate to software issues rather than hardware ones.

Whilst Samsung is the phone maker, it is using Google’s Android operating system. Thus far Apple has not sued Google directly yet, preferring to strategically pursue its claims against the phone maker directly.

Only when the evidence has been placed before the court and all the witnesses examined will we see the strength or weakness both of Apple’s claims and of Samsung’s counter-claims, each against the other.

In the new case Apple is also asking for judgments against unspecified future products as well, if such products should be no more than “colorably” different from existing ones cited in the suit, and therefore effectively representing the same infringements. Part of the problem with litigation in the mobile segment of the telecom industry is that the legal process frequently takes several years to resolve, yet the life cycle of potentially initially infringing products can be as little as a year. With frequent product releases therefore, an infringer could escape punishment, even if proven, entirely unless such a concept is adopted by the courts.Indeed the only thing we can be sure of is that the litigation trend in the industry still has a long way to go. Important patent principles are at stake, as are huge amounts of money, so recent attempts at settlement of the first Apple Samsung case in the US, in particular, understandably have not gone very far.

 

About Andy Rubin

Andy Rubin, who is 52, graduated with a degree in computer science from Utica College, New York.

His first job was with Carl Zeiss the German optical company as a robotics engineer – which likely explains his coming full circle recently to head up the new Google charge into robotics.

From 1989 to 1992 he worked at Apple as a manufacturing engineer and later at General Magic, an Apple spin-off developing operating system and interfaces for possible future hand-held mobile devices.

After a stint at Artemis, in 1999 he co-founded Danger which created the T-Mobile Sidekick, an early phone with some digital assistant capabilities. This led him to eventually found Android Inc. in 2003, which was acquired by Google in 2005 where he has been in charge until 2013 of their entire Android programme.

In December 2013, under his new responsibilities for robotics Google acquired the robotics company Boston Dynamics for an undisclosed amount.

 

 

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