Note to Wall Street Journal Editor regarding Apple v. Samsung: Not all patents are the same

“Under the headline ‘Samsung-Apple Patent Fight: Is It Worth It?,’ Wednesday’s Wall Street Journal takes a long look at three years of smartphone litigation and concludes that the answer is no,” Philip Elmer-DeWitt writes for Fortune.

“The problem with pairing this thesis with that headline is that it conflates two kinds of patents,” P.E.D. explains. “Standards-essential patents (SEPs), that must be used to comply with a technical standard, such as a communications protocol or a widely used plug, like the USB. Owners of these patents, in return for the benefit of being able to collect royalties on every device that adopts the standard, are required to license them under so-called FRAND (fair, reasonable and non-discrimanatory) terms. Non-SEPs, sometimes called ‘innovation’ or ‘differentiation’ patents. These patents have not been adopted by a standards-setting body. They can represent many years of proprietary development work, and they don’t have to be shared with competitors.”

Read more in the full article – recommended – here.

MacDailyNews Take: Or “utility” vs. “design” patents. It’s quite simple, actually: Apple sued in order to protect their design (innovation) patents and the thieves who got sued retaliated by countersuing with the only option they had to impede the process: FRAND abuse. For both of which (infringing on Apple’s design patents and subsequently abusing standard-essential patents; basically obstructing justice) they will eventually pay dearly, we hope.

We expect better of the WSJ.

Apple’s products came first, then Samsung’s:

Samsung Galaxy and Galaxy Tab Trade Dress Infringement

Here’s what Google’s Android looked like before and after Apple’s iPhone:

Google Android before and after Apple iPhone

[Thanks to MacDailyNews Reader “Tom Hogan” for the heads up.]

Related articles:
Japan finds Samsung guilty of FRAND abuse – March 5, 2013
FRAND abuse: Samsung could face $15 billion fine for trying to ban Apple iPhone via standard-essential patents – December 28, 2012
FTC staff said to formally recommend antitrust lawsuit against Google over FRAND abuse – November 1, 2012
Google U.S. antitrust lawsuit said to be urged by FTC investigators over Internet search, FRAND abuse – October 15, 2012
U.S. FTC investigating Google, Motorola Mobility over FRAND abuse – June 30, 2012
EU launches full-blown investigation of Samsung’s suspected abuse of FRAND-pledged patents; Motorola on notice – January 31, 2012
Apple asked standards body to set rules for essential FRAND patents – February 8, 2012
Apple’s iterative approach to FRAND abuse is not for the faint of heart, but there’s no better alternative – February 5, 2012
Motorola Mobility wants 2.25% of Apple’s sales for standards-essential wireless patents license – February 4, 2012
EU launches full-blown investigation of Samsung’s suspected abuse of FRAND-pledged patents; Motorola on notice – January 31, 2012
EU opens antitrust investigation into Samsung over patents – January 31, 2012
European Commission investigates Samsung over possible abuse of FRAND patents against Apple – November 3, 2011
Why is Samsung attempting to ban Apple’s iPhone 4S over FRAND patents? – October 5, 2011


  1. Who bought the Wall Street Journal? Rupert Murdoch. Who owns the largest share of Newscorp (aka Fox news)? Ruport Murdoch. Am I the only one who sees a pattern here?

    1. So what’s your reasoning for the New York Times being just as crappy but owned by a Mexican billionaire? Any pattern there?

      No, the problem is that most media today are fed by press releases, product announcements, and other methods of spoon-feeding journalists. There is very, very little investigative reporting being done, because investigative reporting takes time. There’s no time with the demand for new “right now”, shot out to smartphones via Twitter or other apps, broadcast on 24 hour news channels, and posted on websites before spell check can even react.

      William Randolph Hearst once said that if his newspapers got it right 90% of the time, he would be happy. I don’t think Hearst would be very happy with any news organization these days, except that Fox News makes Murdoch boatloads of money while newspapers bleed out.

  2. aapl stock has had nice little run up
    the naysayers had been quiet for a while

    so it’s time for the B.S to start again
    B.S journalists are tied with their hedge fund pals and they want to play the ‘apple slingshot’.

    Today the leak at the apple store is described as the ‘rot at apple’ without steve Jobs everything is falling apart…

    expect Doug Kass to be the ‘guest expert on apple’ on CNBC soon. He’ll naysay because he’s got a bunch of shorts and then at the bottom he’ll buy….
    regular as clockwork.

    hope apple buybacks will disrupt the cycle for ‘planed shorts’ via ‘fomenting’ (see Jim Cramers video ).

  3. But Apple’s patents are now considered Utility patents because no one can make an iPhone or iPad wannabe without copying Apple so they think that Apple should give them the right to do it without them having to ask for it or pay for it. (You know, like all Android users think. The world owes them an iDevice for free).

    1. “Apple’s patents are now considered Utility patents”

      Not by Apple.

      So, the big question is How many more years before these lawsuits bear some fruit in blunting the blatant IP theft by Google, Samsung and their ilk? And then punish the thieves.

  4. Acually MDN has a slight misunderstanding of patent types.

    Both SEPs and Apple’s patents on “the way things work” are classified by the USPTO as utility patents.

    SEPs are SEPs because they have been accepted by a Standards Board and the owners have signed a FRAND pledge to be included in the standard.

    A design patent on the other hand only covers the unique appearance or decoration of a product.

    So SEPs are utility patents.

    Apple’s patent on the rubberbanding effect (or how it works when you swipe beyond the edge of a page) is also a utility patent.

    Apple’s patent on Rounded Corners (appearance) is a design patent.

    1. The other part of. This is that the boys have played a game with FRAND, which obfuscates the insight for what is Fair & Reasonable: the companies avoid a defined dollar value and swap IP bundles with contrived value claims.

      The way to solve all of this is for a FRAND qualification requirement be that it’s license terms must always be defined in terms of real dollars. Doing this upfront will also solve some of these dragging disputes, too.


    2. Thank you. Good explanation. The conflation of SEP patents with utility patents had me saying “Come on, MDN, you can do better than that. No reason to define things incorrectly and misinform your readers.”
      People get enough bad info about patents as it is. The reality of how bad the patent system functions is even more clear when actually know what’s going on.

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