6 ms·

>According to Judge Koh, “Apple has articulated a plausible theory of irreparable harm” in its argument against Samsung and the Galaxy Nexus, because of “long-t

>According to Judge Koh, “Apple has articulated a plausible theory of irreparable harm” in its argument against Samsung and the Galaxy Nexus, because of “long-term loss of market share” along with “losses of downstream sales.” This is not what "irreparable harm" used to mean. Apple's lawyers are celebrating tonight. EDIT: If I plan to kill a cat, and you file a lawsuit to stop me, the judge may issue an injunction for me not to kill the cat until the lawsuit is complete. Humanity does not know how to unkill a cat, so if I did so while the lawsuit was pending, I would make the lawsuit moot and evade justice. That is "irreparable harm", at least if it's your cat. On the other hand, if my actions are causing you mere monetary harm, we know exactly how to repair that: take money from me and give it to you. Injunctions should not be issued in such cases, because the plaintiff can always be made whole later on by simply receiving an appropriate amount of money. Apple has managed to have a bogus patent issued - the patent, as far as I can tell, covers any sort of "search-as-you-type" system. Any sort. The Firefox awesome bar, Android search (every Android device that exists), Google Instant, any webpage with javascript autocomplete... you're all violating Apple's patent. And if Apple can find judges as friendly as Ms. Koh, all of these products can be taken off the market indefinitely. And now they're grabbing up that stick and going to town with it.

taligent 14y ago
Of course it is. Apple can't get back lost sales and revenue as a result of patent infringement by their direct competitor.
- ars 14y ago
  Of course it isn't. It's easy to repair: Apple gets paid a fine. This is almost a classic example of repairable harm. The harm to Samsung is actually much worse (they are blocked, as opposed to just having to compete), yet the bond is supposed to make them whole.
- jellicle 14y ago
  You don't know anything about the law, but you felt you had to chime in, huh? >Apple can't get back lost sales and revenue Unless Samsung was, you know, required to write them a check. For damages. If they lost. Which is how such cases usually proceed.
  - taligent 14y ago
    Sure. If you naively assume that lost sales/revenue is just for the iPhone device itself. But every lost sale of an iPhone is also one less person within the ecosystem. An ecosystem that plays off each of its elements to drive revenue e.g. iPhone user buys movies which they can only watch if they buy an AppleTV etc. It's borderline impossible to quantify all of the indirect revenue Apple would lose not just now but in the future.
    - electrichead 14y ago
      Following from that logic, what about the harm that Apple is doing to the Android ecosystem by preventing the sale of these phones when they are supposed to be sold? If Apple can't prove what it claims, then what of the phones that are not sold in the meantime? Is that equivalent to the value of the bond? Where does that money go? Disclaimer: I am in no way a lawyer, but I think my familiarity with law is about the same as the familiarity of the judge with technology.
      - taligent 14y ago
        Samsung derived the bond amount which did seem awfully low at $96 million.
        ryanhuff 14y ago
        How many Galaxy Nexus devices do ou think Samsung is likely to sell? It's older hardware.
    - smokinn 14y ago
      How is it borderline impossible? There's a technique pretty much every company that knows what's it doing applies to figure out exactly what you mentioned and it's called downstream impact analysis. I'm absolutely 100% certain if you're an executive at Apple and you ask your finance department what the downstream impact is of an iPhone sale the finance department will come back with numbers for the profit variance when the customer wasn't already a customer, when they already were and a bunch of other scenarios.
- flatline3 14y ago
  I think it's unfortunate that taligent has been downvoted into the negatives, because he (or she) is correct. How much is market leadership worth? How big of a check would Apple have to write RIM to restore their market advantage? How big of a check would Apple have to write Nokia to put them back where they were in the marketplace 4 years ago? I'd argue that there is no check large enough to restore a lost market advantage. If Apple won their current market position through innovation, and Samsung is eroding it by taking advantage of that innovation counter to patent law, there's no reasonable amount Samsung could pay to set things to right.
  - jvm 14y ago
    > I'd argue that there is no check large enough to restore a lost market advantage. I think you're considering the status or intangible satisfaction of being the market leader. That is not what Apple's shareholders are interested in. They are interested in money. If Apple had the choice between getting a check for all the money they would ever earn for all their products and liquidating the company, vs. remaining in business, they would close their doors, cash the check and pop the champagne. And that check would be worth much more than a "lost market advantage." Now they're probably not going to get such a check. But if not that's because the court will deem they don't deserve it. But the real reason they want this is that it will clearly do much more harm to Samsung than it will diminish their case against Samsung, better yet, they still get to bloody Samsung's nose even if the court eventually rules against them!
    - flatline3 14y ago
      Apple hasn't innovated into market leadership for status or intangible satisfaction. They've done it because that's what you have to do to keep those "big checks" rolling in. If Samsung gobbles up market share, a big check won't bring that back, and a check big enough to account for it would probably bankrupt Samsung (assuming you could ever calculate what that numer would be). Let's pretend that Samsung drove Apple out of business by rapidly copying Apple's R&D and competing directly on price. Just how big of a check would be required to set things to right? We can use an analogy instead of hypotheticals. Imagine I've stockpiled grain for the winter. Winter has arrived, and suddenly, so does the army. They commandeer my grain and promise to write a check for its market value. The next spring, I get the check in the mail. Unfortunately for me, my family already starved.
mythz 14y ago
It is irreparable harm considering they can't get back the monopoly/leading market-share effect at this very young stage of the tablet market. i.e. Sales and profits now is a lot more important than Sales and Money later.
- dguaraglia 14y ago
  Yeah, but AFAIK this economic model (and the Constitution) was supposed to work by trying to break monopolies, not encouraging them.
  - Tloewald 14y ago
    You do realize that a patent is a deliberately created, temporary monopoly.
    - dguaraglia 14y ago
      Yes, and that's why I think (most) software patents are a crock of shit, same as most design patents. The very idea that someone can get a patent something like 'a tablet with a metal casing and rounded corners' is revolting. But then, the whole patent system has been fucked up for umpteen years because of the way lawyers lay out the legalese on most patents. Something as specific as a new protocol to transfer data (say, SPDY) can be massaged into being a vague generic definition ("a binary transmission method designed to make HTTP-like data structures and operations possible in a more efficient manner") that could cover a lot of ground, giving the owner of the patent the power to halt innovation (ZeroMQ could very well fall under the umbrella defined of such 'patent') while giving exactly 0 benefit to anyone. I'm just waiting for someone cheeky enough to come up with a vague wording for describing a 'wooden and/or plastic object designed with the purpose of holding items and or facilitating common household tasks' (i.e. a piece of furniture) and sue IKEA.
      - JoeCortopassi 14y ago
        Where would Google be without the PageRank patent to give them a monopoly on search? Don't think many people have an issue with that.
JabavuAdams 14y ago
> Apple has managed to have a bogus patent issued - the patent, as far as I can tell, covers any sort of "search-as-you-type" system Is this from reading the claims, or from reading the introduction (whatever that's called)?
- jmduke 14y ago
  The patent in question: http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=8086604.PN.&OS=PN/8086604&RS=PN/8086604 http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sec... I'm bad at legalese, but it seems to pertain to search-as-you-type amongst multiple libraries (songs, texts, emails, etc.)
  - dguaraglia 14y ago
    So, basically what Launchy, Spotlight, Android's 'search' toolbar, even Google's homepage, have been doing for a decade now. Nice.
- Tloewald 14y ago
  If you are correct, then Apple obtained this patent before any of these things you mentioned existed. I'd mention On Location as prior art though -- On Location was truly awesome.
chacham15 14y ago
Your exact claim has been taken into account, just the opposite direction: "Apple was ordered to post a bond of $95 million to enact the injunction, which would be used to pay Samsung damages if the decision is later reversed."
- jvm 14y ago
  Oh wow, interesting! Although of course if this really has such a definable cash value, why can't that just be part of the award if Samsung loses?
  - saurik 14y ago
    Damages are not symmetric: the damage to Samsung of a prophylactic injunction might be comfortably converted to a dollar value, while those to Apple might still be "irreparable".

taligent 14y ago

Of course it is. Apple can't get back lost sales and revenue as a result of patent infringement by their direct competitor.

ars 14y ago
Of course it isn't. It's easy to repair: Apple gets paid a fine. This is almost a classic example of repairable harm. The harm to Samsung is actually much worse (they are blocked, as opposed to just having to compete), yet the bond is supposed to make them whole.
jellicle 14y ago
You don't know anything about the law, but you felt you had to chime in, huh? >Apple can't get back lost sales and revenue Unless Samsung was, you know, required to write them a check. For damages. If they lost. Which is how such cases usually proceed.
- taligent 14y ago
  Sure. If you naively assume that lost sales/revenue is just for the iPhone device itself. But every lost sale of an iPhone is also one less person within the ecosystem. An ecosystem that plays off each of its elements to drive revenue e.g. iPhone user buys movies which they can only watch if they buy an AppleTV etc. It's borderline impossible to quantify all of the indirect revenue Apple would lose not just now but in the future.
  - electrichead 14y ago
    Following from that logic, what about the harm that Apple is doing to the Android ecosystem by preventing the sale of these phones when they are supposed to be sold? If Apple can't prove what it claims, then what of the phones that are not sold in the meantime? Is that equivalent to the value of the bond? Where does that money go? Disclaimer: I am in no way a lawyer, but I think my familiarity with law is about the same as the familiarity of the judge with technology.
    - taligent 14y ago
      Samsung derived the bond amount which did seem awfully low at $96 million.
      - ryanhuff 14y ago
        How many Galaxy Nexus devices do ou think Samsung is likely to sell? It's older hardware.
  - smokinn 14y ago
    How is it borderline impossible? There's a technique pretty much every company that knows what's it doing applies to figure out exactly what you mentioned and it's called downstream impact analysis. I'm absolutely 100% certain if you're an executive at Apple and you ask your finance department what the downstream impact is of an iPhone sale the finance department will come back with numbers for the profit variance when the customer wasn't already a customer, when they already were and a bunch of other scenarios.
flatline3 14y ago
I think it's unfortunate that taligent has been downvoted into the negatives, because he (or she) is correct. How much is market leadership worth? How big of a check would Apple have to write RIM to restore their market advantage? How big of a check would Apple have to write Nokia to put them back where they were in the marketplace 4 years ago? I'd argue that there is no check large enough to restore a lost market advantage. If Apple won their current market position through innovation, and Samsung is eroding it by taking advantage of that innovation counter to patent law, there's no reasonable amount Samsung could pay to set things to right.
- jvm 14y ago
  > I'd argue that there is no check large enough to restore a lost market advantage. I think you're considering the status or intangible satisfaction of being the market leader. That is not what Apple's shareholders are interested in. They are interested in money. If Apple had the choice between getting a check for all the money they would ever earn for all their products and liquidating the company, vs. remaining in business, they would close their doors, cash the check and pop the champagne. And that check would be worth much more than a "lost market advantage." Now they're probably not going to get such a check. But if not that's because the court will deem they don't deserve it. But the real reason they want this is that it will clearly do much more harm to Samsung than it will diminish their case against Samsung, better yet, they still get to bloody Samsung's nose even if the court eventually rules against them!
  - flatline3 14y ago
    Apple hasn't innovated into market leadership for status or intangible satisfaction. They've done it because that's what you have to do to keep those "big checks" rolling in. If Samsung gobbles up market share, a big check won't bring that back, and a check big enough to account for it would probably bankrupt Samsung (assuming you could ever calculate what that numer would be). Let's pretend that Samsung drove Apple out of business by rapidly copying Apple's R&D and competing directly on price. Just how big of a check would be required to set things to right? We can use an analogy instead of hypotheticals. Imagine I've stockpiled grain for the winter. Winter has arrived, and suddenly, so does the army. They commandeer my grain and promise to write a check for its market value. The next spring, I get the check in the mail. Unfortunately for me, my family already starved.

mythz 14y ago

It is irreparable harm considering they can't get back the monopoly/leading market-share effect at this very young stage of the tablet market. i.e. Sales and profits now is a lot more important than Sales and Money later.

dguaraglia 14y ago
Yeah, but AFAIK this economic model (and the Constitution) was supposed to work by trying to break monopolies, not encouraging them.
- Tloewald 14y ago
  You do realize that a patent is a deliberately created, temporary monopoly.
  - dguaraglia 14y ago
    Yes, and that's why I think (most) software patents are a crock of shit, same as most design patents. The very idea that someone can get a patent something like 'a tablet with a metal casing and rounded corners' is revolting. But then, the whole patent system has been fucked up for umpteen years because of the way lawyers lay out the legalese on most patents. Something as specific as a new protocol to transfer data (say, SPDY) can be massaged into being a vague generic definition ("a binary transmission method designed to make HTTP-like data structures and operations possible in a more efficient manner") that could cover a lot of ground, giving the owner of the patent the power to halt innovation (ZeroMQ could very well fall under the umbrella defined of such 'patent') while giving exactly 0 benefit to anyone. I'm just waiting for someone cheeky enough to come up with a vague wording for describing a 'wooden and/or plastic object designed with the purpose of holding items and or facilitating common household tasks' (i.e. a piece of furniture) and sue IKEA.
    - JoeCortopassi 14y ago
      Where would Google be without the PageRank patent to give them a monopoly on search? Don't think many people have an issue with that.

JabavuAdams 14y ago

> Apple has managed to have a bogus patent issued - the patent, as far as I can tell, covers any sort of "search-as-you-type" system Is this from reading the claims, or from reading the introduction (whatever that's called)?

jmduke 14y ago
The patent in question: http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=8086604.PN.&OS=PN/8086604&RS=PN/8086604 http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sec... I'm bad at legalese, but it seems to pertain to search-as-you-type amongst multiple libraries (songs, texts, emails, etc.)
- dguaraglia 14y ago
  So, basically what Launchy, Spotlight, Android's 'search' toolbar, even Google's homepage, have been doing for a decade now. Nice.
Tloewald 14y ago
If you are correct, then Apple obtained this patent before any of these things you mentioned existed. I'd mention On Location as prior art though -- On Location was truly awesome.

chacham15 14y ago

Your exact claim has been taken into account, just the opposite direction: "Apple was ordered to post a bond of $95 million to enact the injunction, which would be used to pay Samsung damages if the decision is later reversed."

jvm 14y ago
Oh wow, interesting! Although of course if this really has such a definable cash value, why can't that just be part of the award if Samsung loses?
- saurik 14y ago
  Damages are not symmetric: the damage to Samsung of a prophylactic injunction might be comfortably converted to a dollar value, while those to Apple might still be "irreparable".