Samsung v Apple in NL: Happy selling, Samsung!

OK. So here the short form of what happened in the dutch court today. Apple has LOST all claims wrt design and copyright.

Apple has LOST all claims wrt the european patent 2098948. The court thinks that the european patent 1964022 is worthless and will be thrown out in reexamination anyway as prior art has been shown by Samsung. The only thing that remains is the european patent 2059868. And the claims of that patent can be circumvented in trivial ways.

Thus the court has decided that Samsung must fix this part (picture scrolling and showing parts of the next/previous picture) in the next 7 weeks. IF they fix it, so that the patent is not infringed upon, they are FREE TO SELL the Galaxy phones.

Secondly – the whole claims around the Galaxy Tab have been either dropped or have been deemed not relevant by the court. So the Galaxy Tab IS FREE TO SELL.

No matter what alarmists will tell you, net result is:

  • Samsung can continue to sell current Galaxy phones and must provide a trivial change to the picture gallery in the next 7 weeks.
  • Samsung can continue to sell the Galaxy Tab.
  • Apple has LOST all design and copyright related claims.
  • Apple has LOST the infringement claim on one patent and the court deemed a third patent broken anyway.

That’s all folks.

The court has used the Knight-Ridder Newspad as an example and explained that Apple failed to convince the court that the knight-Ridder Newspad was unknown in the important circles. I would say that’s a huge loss.

UPDATE Dutch Webwereld agrees with my interpretation here. They also add that the problem with the one patent is limited to Android 2.3. Android 3.0 does not infringe and hence the Galaxy Tab is free.

For those that need to be convinced in detail, here the verdict and my interpretation:

5.1.
Verbiedt gedaagden om na verloop van 7 weken en één dag na betekening van dit vonnis op enigerlei wijze, direct dan wel indirect, door het vervaardigen, in voorraad hebben, aanbieden, invoeren, in het verkeer brengen, verkopen en/of anderszins verhandelen van smartphones Galaxy S, S II en Ace, inbreuk te maken op het Nederlandse deel van EP 2.059.868;

In 7 weeks plus one day from now Samsung is denied the right to manufacture, stock, offer, import, bring into market, sell or otherwise trade the smartphones Galaxy S, S II and ace IF they infringe on the dutch translation of the claims of EP2059868

If these phone DO NOT infringe on the claims, they can be sold, manufactured etc. without restriction.

And they can also continue to be sold in this “infringing” way for the next seven weeks plus one day.

So anyone that claims they cannot be sold is WRONG.

5.2.
Verbiedt gedaagden sub 2-4 om na verloop van 7 weken en één dag na betekening van het te wijzen vonnis op enigerlei wijze, direct dan wel indirect, door het vervaardigen, in voorraad hebben, aanbieden, invoeren, in het verkeer brengen, verkopen en/of anderszins verhandelen van smartphones Galaxy S, S II en Ace, inbreuk te maken op de buitenlandse
delen van EP 2.059.868;

Same for the non-dutch parts of the patent.

5.3.
Gebiedt gedaagden aan eiseres een onmiddellijk opeisbare dwangsom te betalen van EUR 100.000 voor elke dag of gedeelte daarvan of, zulks ter keuze van eiseres, van EUR 10.000 per inbreukmakend product, waarop het aan gedaagden kan worden toegerekend dat de verboden zoals opgenomen onder 5.1 en 5.2 niet geheel of niet deugdelijk worden nageleefd;

Should Samsung fail to fulfill the requirements set forth in 5.1 and 5.2, Apple will get 100.000 EUR per day or alternatively 10.000 EUR per device that remains in violation of 5.1 and 5.2 until Samsung has fixed it.

5.4.
verklaart dit vonnis tot zover uitvoerbaar bij voorraad;
5.5.
compenseert de kosten van de procedures tussen partijen in die zin dat iedere partij
de eigen kosten draagt,
5.6.
bepaalt de in artikel 1019i Rv bedoelde termijn op zes maanden, te rekenen vanaf
de dag van deze uitspraak;
5.7.
wijst het meer of anders gevorderde af.

Typical closing stuff.

Did Apple “photoshop” a picture to make its point in Samsung case?

DISCLAIMER: This post contains my personal opinion only.

UPDATE: You can now read en english version of the original dutch article here

My good friends over at webwereld have news for you. And it is close to sensational IMHO.

The article is in dutch, which happens to be my native language. So first the TL;DR version:

  • Apple’s german lawyer seems to have altered pictures of Samsungs Galaxy Tab 10.1 in its filing that lead to the injunction taking the Galaxy Tab from the market.
  • Dutch court will not decide before October 13th and Samsung is free to sell the Galaxy Tab in the Netherlands. Apple has agreed to not interfere.

Now that’s quiet something. Let’s delve in a little more detailed.

The Altered Picture Thingy

This is quite an accusation. On page 28 of the complaint that Apple filed in germany you can find a picture of the iPad2 next to a Galaxy Tab. They look almost identical, underpinning Apple’s point that the Galaxy Tab is a simple copy of Apple’s “revolutionary” design.

From the complaint

However – it isn’t. The aspect ratio has been altered. As the article explains, in the filing, both pictures indicate devices with an aspect ration of 1,36. In reality however the Galaxy Tab is 256,7 x 175,3 mm which leads to an aspect ration of 1,46.

So the correct picture is closer to this, as webwereld claims:

The real proportions

Quite a difference. Some people claim this might be based on the fact that Apple’s lawyer might have used pictures from a different, earlier prototype model. Even if that is true, it would make the whole thing worse. How can Apple ask for injunction based on a device that will never be available in the market?

No matter how Apple and its friends will try to spin this one, the injunction is at least fro this part based on flawed information.

Samsung would be well advised to point the german court to this obvious problem.

Also note that the (quite big) Samsung logo that is on the front of the Galaxy Tab has seemingly disappeared. Not even mentioning the fact that the Galaxy Tab does not have Apple’s iconic home button.

I went to Amazon and took product pictures for both products, used gimp to set them in the correct relation and voila, this is how it looks in reality:

And suddenly it isn’t that convincing anymore.

Happy Selling in the Netherlands!

The second point is also quite interesting. As we all know, the injunction covers the european union except the Netherlands. This is due to the fact that there is a separate case going on in the Netherlands and the german injunction cannot override the proceedings of thi separate case.

Now in this case in the Netherlands the court has decided that Samsung is free to offer, distribute and sell the Galaxy Tab in the Netherlands at least until October 13th.

Apple (I guess with grinding teeth) has agreed to let this happen and refrain from any interfering actions like new cases etc.

So there you have it. Despite all the alarmist posts and articles, there is more to find out. I am really astonished that Apple’s lawyer made such a blatant and obvious mistake with the pictures and I would not be surprised if the german court will not be very amused about this.

Google not respecting my privacy? Games and data

So Google announced and introduced the games tab in Google Plus.

We can now all play angry birds and be really unproductive all day 🙂

BUT

Nothing is for free. Google claimed to repsect the privacy of its users – also to differentiate itself from Facebook.

So I was suprised to read this:

Below are a few examples of how games may use the information that they request:

[…]

Ordered list of your people in your circles
Google gives the developer an ordered list of people from your circles. This tells the game developer the people you are most likely to want to engage with in the game. The order is based on your interactions across Google. This information could be used by the game to present you with people to play the game with, including to invite to the game, and to send gifts and messages.

This means that when a friend of mine plays a game and grants the permissions (which he has to or else he cannot play) MY data gets shared with the game publisher – and I am not even asked nor can I opt-out

This is exactly the opposite of respecting my privacy.

Google, this is #fail on a very high level.

I hereby urge Google to:

  • Make the data sharing an opt-in thing
  • Alternatively AT LEAST allow me to opt-out
  • And do make available to me a list of all game publishers that have access to my data without my explicit consent

I am also a bit unhappy that the text says “Below are a few examples […]” – where can I get a complete list of data that gets shared?

Update this page has a link that could shed some light on exactly which data gets shared, but alas, it’s a 404. Please fix this, google. It says:

Within Games
When you play a game, you’re consenting to share information such as your name and profile picture with the game developer. This lets developers design better social games. Learn more about what information developers can access.

But the link goes to http://www.google.com/support/+/bin/answer.py?answer= which seems to be a broken link.

Apple v Samsung in EU – some thoughts, but IANAL

So the text of Apples complaint filed at a german court is available (I won’t link to it as I do not wish to promote the person that posted it) and after reading it, I noticed a few oddities worth checking. Note that the text of the injunction itself is not available ATM.

If you can read german, you should read this post from a german lawyer, it contains some good stuff.

Now AFAICS the main point of Apples complaint centers around the uniqueness of its design, which they registered in the US, europe and a few other places too (and trust me, if they could they would do it for the whole galaxy and all possible parallel universes).

The european registered design, which can be found here, however is surprising to me.

First, an obvious point. The iconic home button of all iPods, iPhones, iPads is missing! How can that be? It is one of the novel things you would definitely want to protect if you are Apple, wouldn’t you think? Fun part is that Samsungs Galaxy Tab 10.1 – you guessed it – does NOT have a home button. That’s odd.

But that is not the real problem IMHO. We need to dig a bit deeper. What are the laws, regulations saying about the quality needed for a design to be protected under these rules?

In this case you have to look at the Council Regulation (EC) nº 6/2002 of 12 December 2001 on Community Designs, which you can get here.

Besides all the legal yadayada you will find at least Article 8, para 1 very significant:

Article 8
Designs dictated by their technical function and designs of interconnections

1. A Community design shall not subsist in features of appearance of a product which are solely dictated by its technical function.
[…]

Now unless I am completely overseeing something very significant, if your plan is to create a device in a tablet form factor, there really isn’t much you can design differently from a rectangular shaped thin case with a display.

Exactly that however is what Apple claims to “own” with this community design.

So IMHO, which is my personal, layman opinion, this community design should have not been granted as it looks impossible to me come up with a substantially different design.

If I would be Samsung, this would be one of the points I would focus on. #justsayin though.

Also worth noting is how the regulation uses the word “informed user” to set the barrier for when a design can be considered infringing. Does Apple really think that an “informed user” will mistake a tablet that does NOT have the Apple symbol and that does NOT have the iconic home button is an iPad? Do they really think we are all THAT stupid? 😉

Idea: Better architecture for computers

SSDs that disguise as hard drives make no sense IMHO. A cool architecture would have temporary storage (RAM) and stable storage (Flash) on the same bus. Imagine what that would mean. No more stupid copying of (read-only) libraries from SSD to RAM, instantiate them directly from where they are. Such a mixed architecture would be a radical memory saver. #justsayin and now go, patent it someone, this post is prior art.

This is not really a new idea, BTW. Quite some of the embedded market works this way. Think Arduinos etc.

Apple stops Samsung from offering Galaxy Tab 10.1 in Europe

German court grants injunction to Apple. German article here. Quite some more, but thy all paraphrase the original article that was sent out by dpa.

Apple, it is time to grow up and face competition the way you should. Not in courts. In the market. The Galaxy Tab 10.1 is a damn fine piece of hardware with a brilliant display, as far as I have seen.

Details are not available to me ATM but I will update soon when I get them. Stay tuned.

The injunction (Einstweilige Verfügung) was granted by the Landgericht in Düsseldorf. This means that the court saw enough arguments in favour of Apple to grant the injunction immediately, without waiting for the outcome of the case itself. This however also means that the main case is not decided. That will take some time, typically. As Samsung seemingly had planned to launch in the next few days, this is a tough blow for them, I guess.

Seems that the official release date would be the 17th of August. You can still order the Galaxy Tab 10.1 at Amazon.de now, BTW.

The news came via dpa, a press agency, they claim to have the news from the court proceedings today. No case number available ATM, no official press release from the court, Apple or Samsung ATM.

Some are sure that this at least partly is about a design patent. So effectively Apple claims that everything that is rectangular, flat, has a display and an earphoneplug violates their design patent which you can find here – this is the original US design patent that supposedly is used in the european case.

Note that a design patent is not a real patent. It is a registered design, that’s it. Has nothing to do with patents, prior art etc. That’s why it has a D at the front.

A rather radical plan to limit/channel patent trolls

DISCLAIMER: This entry representy my personal opinion and is in now way related to my job nor does it reflect the opinion of my employer.

Here’s a rather radical idea to limit/channel patent trolls.

  • Have all software/hardware companies put 1% of their revenue in a global patent pot, managed by WIPO.
  • Have all patent trolls file their claims and distribute the 1% according to the claims.
  • Make laws that ensure that the 1% pot is the only source of patent license money, so all SW/HW companies can safely invest in progress and innovation.
  • Use this pot also for patent encumbered standards. So all standards are capped at max 1% royalty, allowing simple implementation and distribution as Open Source.

Voice your opinion! Vote on the poll!

Go to the following post on googleplus, +1 the YES, NO, or UNDECIDED comments to vote.

DISCLAIMER: This is my personal opinion only. Not related to my job.

Dear Queen Beatrix,

UPDATE 2 Rop Gonggrijp blogs, mentions this petition here. Explains there is no extradition request ATM and urges all to tone down.

UPDATE: Webwereld reports on the petition and this blog entry here (in dutch).


Sign my petition here. Spread the word.

I am a proud citizen of the Netherlands. A country filled with smart, pragmatic people. A country that is proud of its liberalism, its openness and freedom. Some fellow citizens are true heroes. One of them is Rop Gonggrijp. His fight for freedom in both the virtual and real world is filled with amazing legends, myths and clashes with autorities. But as a real proud citizen of your country, he never gave up. He fights for true values. The very values that our kingdom represents.

It is with anger and disbelief that I now read that the current interior minister of your government is willing to give up the freedom of Rop Gonggrijp to please the United States. As you can read here, Uri Rosenthal has no problem to extradite Rop Gonggrijp to the United States should they so desire.

And why? Because he helped Wikileaks to publish the truth. Because he helped the truth to be put in the spotlight of public scrutiny. A truth that is tough to accept, but true to his nature, Rop Gonggrijp defended the freedom to tell the truth.

You, dear Majesty, should be proud of him. His fight for freedom and truth reflect the values that your Majesty asks from her citizens. Therefore I urge you, dear Majesty, to stop this shameful actions from your government. I ask you to step up and declare that Rop Gonggrijp is fighting for the right cause. I ask you to declare that you protect him, as you would protect any other dutch citizen.

This promise from your side is printed in every dutch passport. I will quote the english version, copied straight from my passport:

In the name of Her Majesty the Queen of the Netherlands, Princess of Orange-Nassau, etc., etc., etc, the minister of foreign affairs requests all authorities of friendly powers to allow the bearer of the present passport to pass freely without let or hinderance and to afford the bearer every assistance and protection which may be necessary.

If you feel the same, you can sign my petition here. Spread the word.

Switzerland: 0wned by Microsoft, OK by court?

DISCLAIMER: I am not a lawyer and this is my PERSONAL blog. This article reflects my PERSONAL opinion and does not necessarily represent the position of my employer.

UPDATE: The text of the court decision in swiss-german is here

More background here

So there we have it. The Bundesgericht in Switzerland has decided. And it’s result is stunning, to put it mildly. In layman terms, this is what has been ruled:

  • Open Source cannot offer an alternative to Microsofts offering
  • The authorities cannot be asked to do market research to find alternatives.
  • Hence it is perfectly fine to NOT tender at all and hand over the money to Microsoft.

The appeal that has been filed has not been accepted by the court, so there was no case effectively. The court ruled that FOSS failed to deliver an alternative to Microsoft. How FOSS could have shown an alternative at all as there was (and is) no tender, no rundown of needed capabilities, no description of requirements was not of interest.

Are you surprised? Well – I am. This effectively means that Microsoft’s monopoly in swiss authorities is now here to stay. By not even asking the authorities to do some due diligence wrt market research, it effectively means that the free market has just been removed from the equation.

I will update this story with more details in teh next few hours, please bear with me. I have to translate legal swiss language to english and IANAL …

Here some comments in german, more to come: Blog entry DigitaleNachhaltigkeit

Microsoft: Absolutely NO (GPLv3-or-compat-licensed) Free Software for Windows Phone and Xbox Apps.

DISCLAIMER: I am not a lawyer and this is my PERSONAL blog. This article reflects my PERSONAL opinion and does not necessarily represent the position of my employer.

DISCLAIMER 2: Some articles that link here claim I say that *ALL* Open Source software is banned by Microsoft. That is NOT what I say. Please read on.


[UPDATE: Italian translation of this article by Guglielmo Troiano at “Microsoft: niente Software Libero per Windows Phone e Xbox Apps.” ]


[UPDATE 2: Seems that the terms from Microsoft also exclude their own MS-PL license as pointed out by @webmink in the comments and in this article and also by @fontana on identi.ca – now THAT is cool if correct :-)]


This is rather uncool, IMHO, I stumbled upon this forum entry and was quite astonished. It points to the Microsoft Application Provider Agreement that governs the Windows Marketplace, the App Store where users can get apps and developers publish them.

Now here’s the fun part. In article 5, Microsoft explains the Application Requirements that you need to fulfill to get your app accepted in the marketplace. It’s point E that is of interest here:

e. The Application must not include software, documentation, or other materials that, in whole or in part, are governed by or subject to an Excluded License, or that would otherwise cause the Application to be subject to the terms of an Excluded License.

Note the full scope: in whole or in part. This means that you cannot use Libraries that are under this ominous “Excluded License”. Or use documentation that is licensed under the ominous “Excluded License”. You get the point. If you use whatever stuff that is under this ominous “Excluded License” your app will not be added to the marketplace.

Now what is this ominous “Excluded License”? Scroll back in the document and find:

“Excluded License” means any license requiring, as a condition of use, modification and/or distribution of the software subject to the license, that the software or other software combined and/or distributed with it be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge. Excluded Licenses include, but are not limited to the GPLv3 Licenses. For the purpose of this definition, “GPLv3 Licenses” means the GNU General Public License version 3, the GNU Affero General Public License version 3, the GNU Lesser General Public License version 3, and any equivalents to the foregoing.

So each and all “equivalents” to the GPLv3, LGPLv3, Affero GPLv3 license are excluded. Any license that allows requires redistribution at no charge is excluded.

The consequences of this strange exclusion are not fully clear to me as I am not a lawyer. But one thing is extremely obvious. Microsoft wants to keep its platform clear of Free Software. Period.

This coming from the company that publicly claims to be a friend of Open Source, that wants to make windows the best ever platform for Open Source should make app developers think again if this mobile platform is the platform of choice.

Geez.