In 49 months of thermonuclear holy war, Apple has not proved that it owns any feature other than rubber-banding

“Apple has now been suing Android device makers (initially HTC, a dispute that was settled in 2012; Motorola since 2010 and Samsung since 2011) for 49 months,” Florian Müller writes for FOSS Patents. “Yes, 49 months ago to the day, Apple filed its first Android lawsuit, and Steve Jobs, who called this a “holy war” in an internal email and according to his official biography was prepared to ‘go thermonuclear war,’ said the following: ‘We can sit by and watch competitors steal our patented inventions [or take action] […] [C]ompetitors should create their own original technology, not steal ours.'”

“It’s true that a 50-patent jury trial wouldn’t be manageable, but there could be multiple trials in California and, especially, in multiple venues. Nokia asserted 50 different patents against HTC in seven countries.,” Müller writes. “Apple has not even filed a second ITC complaint against Samsung (while Nokia brought two against HTC, and Apple itself once brought a second one against HTC).”

“If you… want to wage a holy war, you need thermonuclear patents. And if you accuse others of ‘stealing,’ you firstly need to prove that you own what you say they steal,” Müller writes. “After 49 months of holy, supposedly-thermonuclear war and in light of Apple’s counsel claiming that Apple could have taken 50 patents to this trial and proved that Samsung infringes all of them, I can’t see, with the sole exception of ‘rubber-banding,’ a single feature — and I mean something that people would describe as a feature in a few words, not a small aspect of one feature — of which Apple has proven in court that it can prevent Android device makers from delivering it to their customers in a way that provides great functionality and an uncompromised user experience.”

Read more in the full article here.

MacDailyNews Take: Until we see otherwise, and this goes for the company’s entire history, Apple’s lawyers – from those who are assigned to protect Apple’s innovations via copyright, patents and otherwise all the way to trial lawyers in patent infringement cases – aren’t worth a shit. Apple’s myriad legal efforts have wasted millions upon millions of dollars and hours upon hours to accomplish pretty much nothing of substance over the span of years (decades if you go back to Apple v. Microsoft over the Mac).

We continue to hope against hope for some sort of miraculous outcome that approaches justice for Apple.


  1. Wow. I wish had time to revisit his coverage and opinion of the first trial beginnings where the judge forced Apple to pare back their issues. Not his words but the acknowledgment was that death by a thousand paper cuts is real in the case, where the judge put them in the position of trying to prove that death by five paper cuts was possible.

    1. The problem is that all of these patent cases seem to be talking about the detail and not the package.

      It’s like Apple is trying to prove they own the word ‘the’ rather than the book, or the transistor rather than the radio.

      Can someone tell me why Apple cannot argue a case for the iPhone as a whole item?

      When you hold them up side by side, you can’t tell the difference. The competing devices have the same goals, and many of the same components (or components that perform like tasks).

      It’s “how you out it together” that makes the end product.

      I expect apple won’t be able to enforce a “rubber band” patent even if they did win. It’s not the rubber banding, it’s how it was implemented in the device. Right?

      This all just seems like a cluster ….

      1. I’m no patent attorney, but as I understand it, you can’t patent something as broadly as a phone. Even if you could, you’d still need to patent every aspect of the phone to prevent a competitor from taking your phone and changing one thing to show it’s not the same as your package patent.

    1. Yes, and this bizarre rant by Mueller does seem seriously at odds with many of his earlier posts where he has contrasted Apple’s substantial successes against Samsung’s failure to win any.
      Worse, this highly distorted view ignores the damning court evidence of Samsung’s wholesale and obsessive copying of every detail of the original iPhone. It seems that Mueller has completely lost sight of the big picture. Why?

    2. anyone knows if “pinch to zoom(or minimize)” is something Apple has patented?

      Of all the functions i see on every screen based phone, this is invaluable… i still remember Jobs showing this feature and being blown away by that elegant solution that is so natural today.

      No matter… iPhone 6 will hopefully have the bigger screen that those who pretty much went to Android asked for… Many see no need to go to Apple for their phones, with the B.O.G.O. promotions from other OEMs.

      Lawyers win… but so do consumers…

  2. A rare occurrence for a MDN take – something other than just congratulating Apple for anything and everything. That used to be on target but seldom fits in the age of darkness that has descended on the once great company.

  3. This is not necessary failure of Apple’s lawyers, but the system itself.

    Apple could not really start wide-scale lawsuits until late 2010 because patent office took years to issue patent protection on technologies Apple released back in 2007 on the marked.

    When those patents went to courts in 2012, by that time most of judges around the world were (sub)consciously convinced that there is nothing new in the patents, and many of them were already Samsung/Google lovers. It was too late.

    1. It need not be EITHER the judicial system OR Apple’s lawyers, as you say, it is the entire system. Apple must refuse to do any business with Samsung, Google, there will be no resolution via the courts. they should have learned that with Microsoft years ago, and yet there can be resolution eventually. As to the lawyers, FIRE. THEM. ALL.

    2. Very good summary.

      The thing that also rankles with me, is that the cases get whittled down to only a few patents.

      It is like the judges are too lazy to hear the entire case.

    3. Perhaps Apple would have stood a better chance with Quinn, Emanuel, Oily & Slimy as their lawyers… They seem to be impervious to anything in the legal system, including compromising themselves and their clients.

  4. Apple spends a decade and millions to defend itself against flagrant Samsung copying. So, what does this tell you? It means that a little guy who uses the patent system to protect himself has absolutely no chance. I blame people who buy the copied products. The trial should last 15 minutes. Show what a Samsung phone looked liked before iPhone and after. Case closed. The penalty should absolutely be more than the equivalent of 16 days of Samsung’s smart phone business profits.

  5. The Thermonuclear War is that Applen just ends Samsung. 1. They draw their production from Samsung so that they can’t copy anymore. 2. Apple listens to their costumers. 3. Apple expands to territories that haven’t been there…China Mobile.. and so on… Sir Tim is The Best With His Masters! Everybody should understand the thing that you can’t match Tim Cook.

  6. While I usually have great disdain for most lawyers I’m not sure it’s their fault in this case.

    It seems every single Apple rival has been throwing everything and the kitchen sink at this, uncovering any feeble trace of prior art, lobbying, paying off media “analysts” (like Mr Müller himself) and, to make sure, even hiring one of the judges as Samsung did.

    I can’t even fathom the headlines if Apple was caught paying off one judge to be their consultant, with a timing so close to the case. But I guess Samsung’s advertising billions buys a lot of media “goodwill”.

    Everyone knows that Apple created a unique experience for mobile devices – an experience truly at the intersection of technology and the liberal arts – which pushed the state of art of how people saw and operated mobile computers. Google, Samsung and others quickly moved to spend huge amounts of money and time analysing and to copying that experience.

    The sad reality however is that such experiences are hard to describe and protect using the outaded tools provided by patents, trademarks and copyrights.

    Patents don’t really cover the novelty of user experience, they’re a legal description covering specific novel details of implementations.

    As with any kind of legal description, if you close your eyes, ignore the whole picture and have the pooled resources of several multinationals, it’s often possible to find technicalities or holes in them.

    1. Apple should shut down the lawyers, take the money and start lining pockets in DC. Then and only then will they begin to see any “justice” (whatever that means) in protecting their IP. Yes, this is a very cynical view – but at this point, can there possibly be any other way to see it? Just look at Amazon and the US DOJ.

  7. I also think Mr Mueller is intentionally ignoring (new “consulting” gig Mr Mueller?) the huge blow that was dealt to Samsung in the first case.

    It may not have been translated into a $$$ payout yet, but in the eyes of the public it really drove the reality that Samsung is northing more than a high output serial copier.

    It also drove companies like HTC to settlement.

    Will we see another blow on this one? We don’t know and Mr Mueller for sure doesn’t know either seeing his terrible track record (SCO, Google, … ) of predicting the outcome of court cases.

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