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Tech Giants Gear Up For Patent Battle


What makes your cell phone or tablet unique, something different from others? Is it what it does? How it looks and feels? Some combination of those things? Well, this week in San Francisco, lawyers from Apple and Samsung met in court to battle over patent and trademark claims centered around the companies' mobile devices, with each side claiming the other copied something, infringing on its intellectual property. It's a complicated case with lots of competing claims, different legal doctrines at play. But the outcome of the case could have a big impact on the tech industry.

And joining me now to help guide us through the morass of this case is Robin Feldman. She's professor of law at University of California Hastings, author of the book, "Rethinking Patent Law," from Harvard University Press. Welcome back to the program, Professor Feldman.

ROBIN FELDMAN: Thank you. It's nice to be here.

FLATOW: Any way to summarize this? And if I ask - if I'm in the law class and I say give me a brief on this, what would you say?

FELDMAN: I'd say, we're watching Apple and Samsung in this trial, but Samsung is just a stand-in. The larger battle is between Apple and Google. It's being fought in courtrooms across the country and throughout the world - different parties, different patents. But the battle's about domination of the smartphone. And it's a war that was declared by Steve Jobs when he vowed to crush the - Google's Android system.

FLATOW: So it's really between Google and - that's interesting. But they're - they are - are they named in this case? Is Google named?

FELDMAN: They're not - they are not named in this case. They're not named in many of the other cases that are in different courtrooms in the United States and in numerous countries around, because Apple has chosen to go after the makers of the phones that use the Android system. So Apple didn't sue Google. They're suing Samsung, Motorola, HTC.

FLATOW: And they're claiming what?

FELDMAN: They are claiming that all of these companies - and there are different patents in each of these suits. But they are claiming that their system, Apple's system, was copied.

FLATOW: When you say system, does that mean the internal parts of the iPhone, the iPad, things like that?

FELDMAN: There are different levels of claims here. So some of these are regular patents - that is, what the phone does. And so some of these what-the-phone-does patents have to do with things like slide to open, or the bounce feature. If you get to the bottom and you've gone too far, you get a bounce image. And then some of these have to do with design patents. They're different from regular patents. They're shorter. And this is just, what does it look like? You know, what kind of thing is there?

And I think that's the - I think one of the most important questions in this case, particularly for the design patents, is should we be granting such powerful rights so easily? So do design features such as a black background and rounded edges really deserve 14 years of protection, or have we gone way too far with our patent system?

FLATOW: 1-800-989-825(ph) is our number, talking with Robin Feldman about the patent law. So those - so you're saying things as subtle as the aesthetic beauty of the experience, the experience of how you work with the phone.

FELDMAN: Those are exactly the kinds of very small things that are at issue here with the patents that Apple has alleged against Samsung. Of course, then Samsung reached in its bag and threw a bunch of its patents back at Apple. This is a global war being fought throughout technology, and patents are just part of the arsenal that people are throwing at each other.

FLATOW: Mm-hmm. And are people going to be watching this case closely? And will it be adjudicated quickly, or this is something that, like, with the Microsoft battles, could drag on for months and years?

FELDMAN: Well, the - you have to think both about the small battle and then the larger battle. The judge in the Apple-Samsung case is moving things along at a very rapid pace, and the case should not take more than a month. But this is just one piece of the battle, because there are other court cases. I think the entire technology industry is watching this very closely, and consumers should, too. These are battles of the Titans, but consumers stand to lose the most, because they can end up with fewer choices and higher prices.

FLATOW: Give us an idea of what goes on - actually goes on in the courtroom. You get a certain number of hours or time to make your case, and then someone else says - the opposition says something different.

FELDMAN: So Apple gets to give the opening statement. They brought the case, and they are in the process now of putting their witnesses on there, their executives who tell the story of what they claim to be accurate. And then the other side gets to come back and give their rebuttal, and there's sometimes some follow-up.

What can be the most interesting - and I think what the juries can pay a lot of attention to are the lawyers' introductory sections and their summation. That's when they tell the story. And sometimes, the only thing that the juries can hold onto is: Do I understand the story? Do I feel that the lawyers are credible? Do I feel that the witnesses are credible? Does it make sense to me?

FLATOW: Here's a tweet from Daniel Yount, who says: Patents held in the U.S., the companies can make it in another country and be free from any legal battles in these markets. Correct?

FELDMAN: If you - that is correct. The patent system is based on each country, and each country has different patent rules. And when you are in a particular country, those patent rules apply, and that's all. But you really - but I think the implication - hard to use implications in tweets. But the important implication is that this gets played out, you know, in different courtrooms, under different patent systems around the world. You know, most people haven't paid any attention to the trademark claims, and there's not as much money at stake for those. But there are also ways that Apple is claiming Samsung has copied them. So there are two sets of...

FLATOW: Give us some examples of that one.

FELDMAN: Sure. So, in a nutshell, one set of claims are trade dress, how you package your product. Apple is saying they look too much like us. So when consumers go to the market and they buy a Samsung phone, they're going to think they're buying an Apple phone. That's a fairly aggressive claim. You know, you have to wonder, when consumers walk into a store and they pick up a Samsung phone, do they really think they're buying an Apple phone or something that was sponsored by Apple? So that's one set of claims.

The second set of claims is called trademark dilution. And that's simply, in a nutshell, you have diluted the image that people have about our product. So we had an image that was out there. When people saw that image, they thought of us. Now, when they see that image, they think of more than us. Those are the trademark ones. But then, again, the whole idea is: Can you make your competitor change their product, not be able to use the things that you can use and not be able to compete as well against you?

FLATOW: This is SCIENCE FRIDAY, from NPR. I'm Ira Flatow, talking with Robin Feldman, professor of law at University of California, author of "Rethinking Patent Law" from Harvard University Press. Let's see if we can get to a phone call or two. Bob in San Francisco, hi. Welcome.

BOB: Hi, yes. I was actually just calling - you guys did a broadcasting awhile back about patent trolling. And I was curious about how and if this is becoming involved with kind of businesses that are created specifically to buy patents and sell patents in order to create, ultimately, lawsuits regarding these kinds of things. And I can take this question off the air.

FLATOW: OK. Thanks for calling. Any patent trolling here, Robin Feldman?

FELDMAN: Well, you - I think it's the same kind of phenomenon, here. It's a patent system that is completely out of control with patents being used in ways they were not intended. So patents are repackaged, grouped, traded and then launched against competitors or anyone who has a successful product. It's the same problem here in these cases, and it's the same phenomenon that you're seeing with the trolls and the mass aggregators.

FLATOW: And if the real target here is Google and the Android system, is Google helping fight this case, even though they're not named?

FELDMAN: You know, I don't know what the relationships are between the parties. So, so I can't say if there's - Google is not in the courtroom, and I don't believe they're representing or they're offering any testimony. But that's why I think it's very important for consumers to understand what this is all about. These parties are stand-ins. It's a larger battle that's going on, and it's going to be fought phone by phone, technology by technology. But parties are in - the different parties are in the background.

FLATOW: Well, now that Microsoft has its own phones out, its own operating system, are they going to be also a party here, someplace?

FELDMAN: Well, they're definitely a party here, and it is the - the enemy of my enemy is my friend. So the larger groupings in this smartphone war have patent - Apple has allied itself with Microsoft, and those two have allied themselves with a huge mass aggregator called Intellectual Ventures. On the other side, Google has allied itself with a smaller mass aggregator, RPX. And all of these parties are trying to build up big arsenals of patents, trade them, regroup them, throw them at each other. It's not what the patent system was intended to do.

FLATOW: All right. It sounds fascinating. Thank you very much for deciphering the legal code for us.

FELDMAN: Thank you for having me back.

FLATOW: You're welcome. Robin Feldman, professor of law, University of California at Hastings, author of "Rethinking Patent Law" from Harvard University Press.

That's about all the time we have for today. We talked about space this hour. And last week, we featured a couple of clips from Sally Ride's last interview on SCIENCE FRIDAY. And if you'd like to hear that whole interview, go to our website at sciencefriday.com, and you can take a listen - click on it right there on our webpage, and you can listen to that entire Sally Ride piece that we did. Transcript provided by NPR, Copyright NPR.

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