Thursday, August 25, 2011

CHICKEN ONLY: Germany Upholds Samsung Tab 10.1 Sales Ban Until a Full Ruling on September 9

The company Apple would arguably have felt right at home in the East Berlin of the former DDR, i.e. East Germany, where during the Cold War days we once visited the rotating restaurant in the TV tower at Alexander Platz (then in East Berlin) -- see the image above -- and where we were presented with a food menu containing dozens of food selections, yet, no matter what we ordered to eat, the waitress said they did not have it.

In the end, the waitress admitted that they only had chicken, and that is what we would have to eat, if we wanted to eat anything. Apple seems to feel the same way about their iPhone and iPad -- NOT permitting the consumer A CHOICE appears to be their political philosophy. CHICKEN ONLY.

We have no use for such companies, which contradict our views of Western democracy, entrepreneurship and capitalism.

David Meyer in Communication Breakdown at ZDNet UK reports that Germany upholds Samsung Android tablet ban for now, writing:
"A Duesseldorf court has upheld a temporary injunction barring Samsung from selling its Galaxy Tab 10.1 tablet in Germany.

On Thursday, a judge said the ban should remain in place for now, ahead of a full ruling on the matter on 9 September....

Separately on Wednesday, a Dutch court issued a temporary ban on the sale of Galaxy smartphones, in another case initiated by Apple. That judge, however, only issued the injunction of the basis of a single technical patent being violated, and did not consider Samsung to have violated Apple's 'Community' design with its Android tablet."
The fact that we have two completely differing interpretations of a European Community "design" does not bide well for European Law. David Meyer writes:
"The European Commission is keeping an eye on the situation, digital agenda commissioner Neelie Kroes said on Thursday. "We're following [the] Dutch and German cases closely," Kroes said in a Twitter post."
We certainly hope so. And we hope that the European Commission is aware of what was written at, as posted at the Washington Post with Bloomberg:
"In any case, we’re the ones with the most to lose. Apple and Samsung will both survive this fight, albeit with a few bumps and bruises. But end-users are getting screwed out of fun new toys, and that’s what hurts the most. "
All of these battles are carried out on the backs of the USERS, not the backs of companies, who write off the expenses from their taxes. Only when intellectual property law is viewed from the standpoint of CONSUMERS, does one get sane rules and regulations.

The present IP laws concentrate on the rights of monopolists, and that is exactly the wrong way to view intellectual property law, which is merely a special and limited right granted to authors and inventors, not a blanket permission to extort society at large.

It is quite amazing to us as a legal matter, for example, that a European-wide preliminary injunction against Samsung was initially and erroneously issued at the drop of the hat in Germany in a small local court that apparently has delusions of grandeur. Indeed, this "Kunststück" was performed after hearing only one side of the issue -- a barbarically antiquated legal procedure which we thought had been "banned" in modern jurisprudence.

And yet, the REVIEW of this quick legal shot from the hip by that same court now is lasting a month. Something is deeply wrong here in the discrepancy between those times. This suggests that preliminary injunctions are knee-jerk reactions in Germany, made without proper examination and review.

We think that preliminary injunctions, except in the most extreme cases of necessity, should be forbidden. Certainly they should not be permitted to keep competitors from introducing their products. If damage is done due to an intellectual property legal wrong, then it must be compensated by the payment of court-imposed royalties, but injunctions are totally at odds with a functioning social economy. They are TOTALLY unnecessary from any objective view.

This injunction business is not the way to do business in a Western competitively-oriented capitalist  country. When judges decide what products can come onto the market or not, the end is near. No wonder the EU is in so much financial trouble. You have to let the market work, and not hinder normal and natural progress in product development, where a certain amount of imitation is always present as a NORMAL and healthy sign of the state-of-the-art!

As the judge wrote in the Netherlands in the Apple-Samsung confrontation, a company practicing "minimalist art" in its products can not make too many demands on its competitors who also choose to follow minimalist design strategies. There just is not that much "design" there. Most of it is hype and marketing. That's capitalism.

The Patent-Friendly District Court in Düsseldorf is Germany's Counterpart to East Texas as the Venue of Choice for Suits by Patent Holders

Parmy Olson in her article at Forbes discusses Why Apple Went To Dusseldorf to file its design infringement injunction complaint against Samsung. Olson provides figures on the success of patent infringement cases in the District Court of Düsseldorf which are nearly double the global average.

The possibility for rights holders to engage in this kind of venue shopping in intellectual property cases breeds disrespect for law and order by suggesting to the citizenry that the courts are anything other than impartial.

In our view, appropriate disciplinary action against such courts and judges, if warranted by an independent investigation, should be taken by the highest court authorities, both in Germany as well as in America.

In East Texas courts, patent-holders, according to Olson, have an 80% success ratio, and the number of patent litigation filings has risen there by over 1000% in recent years.

In Germany, according to Parmy Olson, who cites to, ca. 60% of all German patent litigation takes place in Düsseldorf, even though there are a total of 12 district courts in the entire country.

This concentration of patent litigation takes place in Düsseldorf because the court has streamlined its procedures for patent cases, resulting in very quick decisions -- of great advantage to patent-holders, and because the court decides in favor of patent holders 63% of the time, whereas the global average is only 35%.

It is almost as if a commercial shop or store had put up a sign reading "we are open for business".

In London, writes Olson, by contrast, patent holders win only 14% of the time.

This substantially diverging situation in the courts very much contradicts our view of what the law should be like. It also points to one of the greatest flaws in any patent system: such a system is almost totally subjective, leaving the judicial interpretation of any given intellectual property right to chance and serendipity in the eye of the beholder.

Dutch Court Allows Apple to Win the Battle But Lose the War: An Empty Court Victory in the Netherlands May Point to A Company Now Possibly in Inept Management Hands

In some ways, the Apple design and patent war against Samsung in the courts may be the best thing that happened to patent and design law, showing what folly it is to protect software or design by patents, design registrations or other totally unnecessary monopoly-like protections.

In our technological world, everything builds on everything else, and denying that, or trying to monopolize or hinder what is nothing more than state-of-the-art development progress, makes Apple look like bush-leaguers.

Kate O'Flaherty at the Inquirer in an article titled
Android update will save Samsung from Apple's claws
subtitles that same article:
"Apple's 'win' was actually a major loss",
citing to Thom Holwerda of OS News
who headlines that:
Apple Scores Meaningless Dutch Court Victory Against Samsung
and writes:
"Apple just scored a meaningless victory. The Dutch court order is here. The pictures speak thousands of words. Apple filed for an injunction in The Netherlands against two companies Samsung has legally seated here which take care of the distribution of Samsung's devices in Europe (due to the port of Rotterdam). Apple entered into battle with three patents and a community design, and all but one patent has been thrown out by the judge....
The only infringement claim upheld by the judge concerns patent 2.058.868, which covers scrolling through a collection of photos in full screen, and more specifically, how the photo bounces back after too short a swipe (or whatever - I have a life, I'm not reading the entire damn thing). The Gallery application on Samsung's Android 2.x devices infringes on this patent, and as such, the injunction against the Galaxy S, SII and Ace was granted. The Galaxy Tab 10.1 was exempt, since it runs Android 3.0, which does not infringe on the patent, the judge said.
Samsung has already stated this ruling is pretty much meaningless, since the company is going to replace the Gallery application on all Galaxy smartphones right away. The injunction won't go into effect until mid-October, so they've got more than enough time to change the software. "The injunction has been granted due to the method of scrolling in the Gallery. If that's replaced, there is no more reason to uphold the injunction," states Bas Berghuis van Woortman, Samsung's lawyer. In fact, the judge states in his court order that he has taken the ease with which Samsung can circumvent this patent into account in his ruling.
So, this is pretty much a meaningless victory for Apple, which is great news for not just European consumers, but also for competition in general. Apple's preference for competing against Android in the courtroom and for purposefully hurting consumers has been halted today, and that makes me very happy. On top of that, this ruling provides Samsung with ample ammunition for Thursday's hearing in Germany." [emphasis added by LawPundit]
The Dutch judge cites the Knight Ridder Tablet Newspaper of 1994 as relevant prior art for the iPad. We referred to that prior art in our previous posting at LawPundit.

Also cited as prior art to the iPad is the HP Compaq TC1100:

Image of the TC1100 linked from Wikimedia Commons

Here is the LG Prada cited as prior art to the iPhone by the Dutch judge:

Image linked from Engadget

This Nokia 7710 GUI was cited by the judge as prior art to the iPhone for the four columns of icons:
Image linked from

We disagree strongly with the Dutch court decision on the issue of protecting certain kinds of swiping and/or scrolling, as if some institution could limit human motion to the benefit of ANY commercial enterprise.

People should be able to swipe and scroll the way they want, without granting any monopoly to Apple or anyone else -- and so the court should have ruled.

The basic rule can only be: HUMAN motion of any kind is not patentable, in any form. The fact that it is human motion makes it prior art, and the use to which it is put is irrelevant! Why can judges not see this elemental truth?

In any case, given this decision by the Dutch court, which on the whole is a total loss for Apple, one has to wonder whether Steve Jobs, given his health situation, did not step down as CEO to escape the wrath of consumers over this consumer-negative Apple folly, which he may not have initiated.

Formally, these lawsuits are probably not costing Apple that much money, and Apple has nearly $80 billion in cash available for whatever they want to do, but the loss in image is massive.

Essentially, by these suits, Apple is conceding that the competition has the better products, and in the long run, that is Apple's end. All that they will have left down the road will be their patents, because the manufacturing has long ago been outsourced.

When will America learn?

Steve Jobs Leaves CEO Position at Apple to Become Chairman of the Board: Apple Has Reached its Zenith and Will Now Probably Peak Out

We have written earlier that we sensed something to be wrong at Apple.

The Reuters headline reads:

Steve Jobs quits as Apple CEO, Cook takes over.

Steve Jobs is a legend in the tech industry. We have never liked Apple's monopolistic proprietary approach to its products, which ultimately gave the PC world to the more open DOS by default, but there is no denying that Jobs was a visionary in understanding what the mass of consumers want and in marketing the resulting products to them at greatly inflated prices.

The new CEO has been at the the helm already for more or less the last year and a half because of Jobs' health problems and we do not like at all what we have seen from Apple in that period of time.

We think Apple reached its zenith under Jobs' leadership and will now peak out as it is in the process of alienating a large share of the consumer world by its injunction complaints against Samsung Galaxy products. In the long run, that business strategy is doomed to defeat. You may win a battle here or there, but the loss of the war is pre-programmed. People like myself will never buy Apple products.

After all, companies like Samsung "manufacture" Apple products.

Apple does not manufacture or assemble its own products, and that is typical of America's problems in the high tech sector. When the ideas become stale, the companies are finished, because the actual product-making is done outside of US borders. Those companies ultimately develop, design and manufacture their own products.

Look what happened to the American automobile industry, or cameras, or shoes.

Rich? Where Do We Draw the Line of Wealth? Is the Grass Always Greener at the Other Guys Larger Mansion?

The interesting thing here is that the wealth line is subjective, as reported by Bruce Watson of in How Rich Is Rich? Where America Draws the Wealth Line.

Wealth for most people, if you ask them, appears to average out at about twice their own earnings.

Even millionaires place the wealth line at about twice what they themselves have.

Is the grass always always greener at the other guys larger mansion?

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