Apple ordered to pay $234 million judgement over WARF patent

“A U.S. jury on Friday ordered Apple Inc. to pay the University of Wisconsin-Madison’s patent licensing arm more than $234 million in damages for incorporating its microchip technology into some of the company’s iPhones and iPads without permission,” Andrew Chung reports for Reuters.

“The amount was less than the $400 million the Wisconsin Alumni Research Foundation (WARF) was claiming in damages after the jury on Tuesday said Apple infringed its patent for improving the performance of computer processors,” Chung reports. “Apple said it would appeal the verdict, but declined to comment further.”

“Jurors deliberated for about 3-1/2 hours before returning the verdict in the closely watched case in federal court in Madison, Wisconsin,” Chung reports. “The jury was considering whether Apple’s A7, A8 and A8X processors, found in the iPhone 5s, 6 and 6 Plus, as well as several versions of the iPad, violated the patent… Last month, WARF launched a second lawsuit against Apple, targeting the company’s newest chips and devices, the iPhone 6S and 6S Plus, and iPad Pro.”

Read more in the full article here.

MacDailyNews Take: Apple did not willfully infringe on this patent, so it’s in everyone’s best interest to figure out how much this patent is really worth and settle up ASAP.

SEE ALSO:
Judge: University cannot get triple damages in patent fight with Apple – October 16, 2015
Apple’s newest courtroom foe is a taxpayer-funded public university – October 16, 2015
Apple faces $400 million in damages in university patent case, sources say – October 14, 2015

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

45 Comments

  1. While stealing patents may be just another day at Samescam HQ, for Apple it’s always a much more “serious” infraction as perceived by Fandroid and Apple Haters. It’s okay if they’re chosen platform was created from dubious copying origins though, always excusable. How gracious, fair minded and nice of them (sic).

    1. Learn how to spell “their” and stop using “(sic)” until you learn what it really denotes, for example:

      “It’s okay if they’re [sic] chosen platform was created from dubious copying origins…”

      Bad grammar and general ignorance is tedious to wade through.

      1. I am the master at spelling “their, there, they’re” and knowing the difference but one slips by on very rare occasion. In fact I’m an excellent speller. I was taking a chance on “sic” used commonly in scripts/screenplays but I was correct in my image:

        “It is used to point out a grammatical error, misspelling, misstatement of fact, or, as above, the unconventional spelling of a name.”

        See it? A misstatement of fact (asserting graciousness, fairness and niceness). I accept your profuse apologies. I am placing the Grammar Police though on high alert to monitor your every utterance. Flogging will harshly commence upon first infraction which shouldn’t take long in you’re case. (Auto-Correct errors will not be allowed as an excuse.)

        Those who hit hard will be hit back hardest.

  2. MDN’s take is correct, imho. A somewhat smaller figure will likely be agreeable for a settlement. Make a huge difference to the University’s research funds and only chump change for Apple.

  3. Apple have to appeal this unless they know they have no chance of getting the finding reversed or penalty reduced.

    If Apple are confirmed after appeal to have benefited from the Madison patent then it will be a good example of how funding of basic research can have real impact in industry.

  4. And this is just for past damages. I don’t believe that WARF is required to license it at all, unless it was submitted under FRAND.

    As a thought experiment, I wonder what would happen if they told them to cease and desist. Back to the drawing board on the A series? This patent expires in 2018.

  5. I found the original WARF patent and it is for a predictive storage database system of look-ahead potential answers in order of steps to potential parallel processing programing. It is essentially a patent on CACHING and deciding what might be necessary responses to multiple sub-routines with simple potential answers as a program is processed. It will continually update the answers in the cached database as the main program processes data and exclude and discard obviously wrong data that is outside the range of potentially correct answers.

    There are literally hundreds of different patents from third-party inventors in this area using different approaches that have been granted by the US Patent Office that have been deemed to NOT infringe the WARF patent, and Apple has a load of them, 36 to be precise, that cite the WARF patent as prior art, including one referenced in a decision by the judge called the ‘647 patent which the judge EXCLUDED from trial, except for the later infringement value portion, after the jury had decided Apple had, or had not infringed the WARF patents.

    But the ‘647 patent was a patent for doing the same thing and SPECIFICALLY used in the Apple A7, A8, and A9 processors—which was applied for by Apple in 2008, using 64bit technology and just recently granted during the trial, which from what I gather makes use of an entirely different and much more complicated algorithm that prioritized out-of-order vector based data which provides far more speed to the processing—which has nothing to do with the WARF patent, that was GRANTED by the patent examiner citing other Apple patent references.

    Apple even appropriately cited the WARF patent in its list of several hundred prior art patents and in computer processor literature in all of its patent applications which it DID in this field in the 36 Patents that Apple holds on SIMILAR techniques having to similar look-ahead predictive vector algorithm caching of parallel processing of programs in modern processors including the ‘647 patent, which are among the 71 processor patents developed and granted to Apple.

    The judge in the case ruled at WARF’s urging to EXCLUDE from the trial all mention of these Apple patents and any cross examination ruling that Apple’s expertise in such areas was irrelevant, focusing instead on the WARF patent claims that were “simple” for the Jury to understand. . . such as the ideas about what WARF claimed their “invention” did, rather than the differences of more modern computers so the jury could understand them. Ideas are NOT patentable, only implementation of ideas are patentable.

    He also stated that because Apple had mentioned the WARF patent in their ‘647 Patent, and the expert witnesses said that was normal procedure in patent applications, that it was NOT evidence of willful infringement, but he had the jury decide whether the in-suit patent was valid or not, based on the jurors’ oh-so-knowledgable technical base of knowledge.

    The interesting thing is the WARF patent itself says on almost every step that this is something every EVEN moderately knowledgeable practitioner of the art knows how to do. . . as they described their steps of their invention. . . as the steps of their “invention” scanned the main program for sub-routines that could be parallel processed, set up sufficient database grids, etc., and then set up criteria for keeping the answers from those sub-routines or excluding the answers as they were preprocessed, or disposing of the results as they waited the main program to catch up to when they were needed. In other words, it was “Obvious” to any regular practitioner who took the time to do it. That alone makes it NOT PATENTABLE and they say it multiple times in their patent application!

    The judge also excluded emails from contemporaneous persons and testimony from persons who actually wrote the the emails who saw the patent at the time of application and said it was merely a compilation of techniques common in the era, and obvious, ruling that at this late date they were merely ‘hearsay” evidence and the writers did not really examine the patent.

    WARF’s Patent also state in the patent that there are two owners of this patent from the beginning. . . WARF and DARPA. . . and two assignees, but they do not represent they are suing on behalf of DARPA. The judge excluded all mention of there being two owners of the patent with one being the public. . . nor could they elicit any testimony about other agencies listed in the patent who funded the research.

    Many of DARPA’s computer patents passed into the public domain years ago. . . by being shared in contracts and necessary knowledge for use for advancement. In the patent events file at the end of the patent, there is only one registered suit, this one against Apple, because the previous 33 were settled out of court!

    I’ve been reading farther. . . It seems the WARF attorneys in the A7, A8, and A8X claims of infringement—because they could not look at plans, software, or deconstructed chips, and could not point to definitive proof of Apple using their exact circuitry or algolrthm in those processors—tried to get the judge to order Apple to disclose publicly under discovery what predictive system in detail Apple planned for their upcoming A9 processor which was not yet released, which would be in the Apple iPhone 6s, 6s plus, and iPad Pro.

    Apple rightly refused under Trade Secret laws, which WARF was trying to improperly delve into. . . as were Trade Secrets the schematics of the A7, A8, and A8X processors because of the security considerations. Hackers would LOVE to see those. . . especially the details of the Secure Enclave portion of those processors. . . which is NOT patented for very good reasons!

    The Magistrate Judge ordered them excluded from discovery. . . but that also crippled Apple’s defense because it could not show what is NOT in the schematics any more that WARF can show their circuit design—as impossible for a 32bit circuit to be in a 64bit processor— is in the schematics! Nor could either party show the proprietary Apple Codes for the same reason: Apple Trade Secrets that must be protected for security reasons. It devolved the case to a “WARF says, Apple says,” case before a probably WARF biased jury in Madison, Wisconsin.

    1. Again a university and their foundations can be and are TROLLS. This was obvious from the start, simply by the “over simplification” of their complaint. The might as well sue Skippy for making peanut butter. This is so asinine and should be counter sued for wasting Apple’s and the courts time. They have an idiot at the helm.

      But of course Apple’s legal team isn’t all that great either… sigh…

      If only this were an option:

      Ineffective assistance of counsel – is a claim raised by a convicted criminal defendant that their attorney’s performance was so ineffective that it deprived them of the constitutional right guaranteed by the Assistance of Counsel Clause of the Sixth Amendment to the United States Constitution. Having the benefit of counsel or assistance of counsel means that the criminal defendant has had a competent attorney representing them. Competence is defined as reasonable professional assistance and is defined in part by prevailing professional norms and standards. In order to prevail on a claim that he received ineffective assistance, a criminal defendant must show two things:

      – Deficient performance by counsel.
      – Resulting prejudice, in that but for the deficient performance, the result of the proceeding would have differed.

      1. The Magistrate Judge in the case essentially eviscerated a pretty good defense by hamstringing Apple’s expert witnesses. . . and Apple had to keep the schematics and proprietary code to the A7, A8, A8X and A9 secret due to serious security issues that would become public knowledge if revealed in discovery (look at what Judge Koh did with them in the Apple v. Samsung trial, ruling that in her opinion such trade secrets were not important and opened them to public view!) This judge did excise Intel’s proprietary listings of the processors that had been using WARF’s in-suit patent when they settled out of court for $110 million, but there is no guarantee the plaintiff’s won’t or that these documents will remained sealed for those blacked out portions. Koh had blacked out portions of the discovery too, until a couple of months after, and them opened everything to public scrutiny. . . including Apple’s proprietary licensing terms to HTC. Although Apple’s attorney’s rightly required that exclusion, it did cripple their defense that WARF’s patent was not being used. But the Judge’s exclusion of any expert testimony and evidence that there are hundreds of non-infringing solutions to the same problem just on WARF’s assertion that they DID infringe, without adjudication of that assertion, crippled Apple’s defense far more and is an appealable ruling. Excluding all of that from the jury’s consideration as a trier of fact usurped from them their role to him, he determined they were incapable of making that very important determination. That was the Jury’s role, not his.

        1. So if I understand you correctly, Apple (rightly) eviscerated their own defense (not the judge), so as to protect their proprietary information.

          Well then, I will patent something and get money from Apple for infringement, since they will choose to eviscerate their defense in order to protect their secrets. Isn’t there any burden on WARF to indicate in their charge “where” Apple was using their IP?

          Good deal if you can get it! Hypothetically speaking, of course…. /s

          1. WARF claimed it was in the current iPhones being sold. The burden of proof was on them, but their plaintiff’s attorney with the help of the judge by demanding Apple provide Trade Secrets they knew could not be revealed successfully switched the burden of proof to Apple having to prove a negative among over 1 BILLION lines of code, or showing it on a proprietary schematic, which the attorneys knew COULD reveal secrets that would open Apple’s encryption routines to hackers and malware writers. That was the ploy all along. . . and should have been never allowed. The judge then went along with the plaintiffs in excluding the experts who would have testified that Apple had no need for WARF’s patent because there were hundreds of other solutions, including Apple’s own that had superseded WARF’s patent in the seventeen years since it was granted with better algorithms and circuits, but the judge eviscerated that approach by inference, by claiming it would “confuse” the jurors. The ONLY patent allowed was the WARF patent, and the only one they were allowed to know about was the WARF patent, so they naturally had to logically conclude that Apple had infringed it. The judge hamstrung Apple’s defense by both direct proof and inferential proof.

        1. You come across as a troll. Why are you even replying to my comment as I have not presented any kind of authority? Plenty of other posts to reply too. I am strictly posting opinion. Move along, as you must be more “correct” than I am.

    2. Why am I not surprised. The more I read about this, the more it sounds like a patent suit held in an east Texas court.

      If what you wrote is true, then many Apple commentators (including MDN) are being way too generous to WARF. It appears none of them have done this kind of basic research needed to properly comment on it. How can any of them now explain how WARF isn’t being a patent troll with this patent?

      There’s an old saying I think is applicable…

      “If it looks like a duck, walks like a duck, and quacks like duck, then…”

      P.S. Maybe you ought to get the Apple reporting biz.

      1. I have been, on FreeRepublic, where I maintain an Apple Ping list for over 700 members. . . FreeRepublic is mostly an aggregator like MDN, but I comment on the articles after I do due diligence research of the facts from primary sources. I’ve been doing it for over ten years. I’ve been quoted on the New York Times. . . and in other forums. I go to the original sources as much as possible and always check the raw data. In this instance I read the judge’s ruling on a host of pre-trial motions on SCRBDB. . . and he seemed to be concerned too much with not “confusing the jury”. I also read the original WARF patent and many of Apple’s 37 patents for similar uses. . . and found Apple had properly listed WARF’s patent as prior art, giving them due credit for their work, although not owing royalties. . . as there were about two hundred similar prior art listings as well, with just as much credit due them.

    3. You put a lot of thought and work into your post, so I don’t want to dismiss it.

      What you’re arguing about is the patent’s validity. It was valid upon issue, and it’s validity was reconfirmed upon trial.

      Having said tat…
      The patent system is broken, too often with minor trivial improvements getting through. All big companies, including Apple, do this. The Patent Office is overwhelmed and they’ve addicted their duties to the courts. They go down a checklist, and “let them go”.

      Often in the body of the patent they use language that “such and such, in Patent #xyz teaches that….”. They also say that “this in and of itself is obvious to “one killed in the art…” (the litmus test of patentability). But somewhere they indicate where it would NOT be obvious to one skilled in the art, and BINGO! You did not indicate where, if at all, this was said.

      I tend to agree with you on the jury remark. This should be a jury of one’s peer’s. Then, it should be a jury of expert witnesses. As I said, the system is broken.

      1. The patent was valid for what it patented . . . a “specific implementation” of an “abstract idea.” The first is patentable, the second is not. Apple’s n0w thirty-seven patents of the same abstract idea of predictive forward looking sub-routine parallel processing with means of selecting or deleting potential results and extrapolating others results based on the on-going main-program progress, along with hundreds of other third-party similar patents for the same abstract idea were and are eminently patentable as specific implementations of the abstract idea without infringing WARF’s patent. I think, this jury, because of the Judge’s exclusion of all that evidence erroneously came to the conclusion that there was only ONE patent on this abstract idea, WARF’s and therefor anything that did that abstract idea must logically be infringing that patent. Without the very important information that there were many ways to implement the same, un-patentable abstract idea, what other logical conclusion could they have come to?

      2. Through out the original WARF patent they quite plainly say “this step is something known to anyone even ordinarily skilled in the art,” at almost every step. . . and it was and is. . . as they went through the steps of scanning the main program for potential sub-routine for parallel processing, setting up the two data-bases, setting criteria for inclusion or exclusion of potential results, sampling the main program for changes to be made in the sub-routine processing and excluding and deleting results that don’t match and refining those that do. ALL OF THEM. . . It was ubiquitous throughout their application and the patent. On that alone, it should have been un-patentable. However, it was a specific implementation of the primary abstract idea

        The jury in this case seems to assume that all implementations of the abstract idea are subsumed into the WARF patent, regardless of whether they use the WARF implementation or the abstract idea. . . but then they’d have to, because they know of no other patents.

    4. Excellent post Swordmaker. There have been a number of engineers that have posted in other sites the cached instructions technology here was widely discussed years before the patent was submitted. All of this points to prior art. There is a lot of fish smell here by the judge as well as the USPTO, and I am not sure why. WARF and Intel settle on the eve of the trial, but Intel likely had to settle given that the WARF inventor disclosed the concept at Intel under NDA. Then Intel turned them down, and promptly used in their Core Duo chip line. Maybe they too thought there was prior art, but weighed the cost of litigation against settlement.

      It is ironic that this trial was in Wisconsin (known for its great cheeses). Like the kids rhyme “…the cheese stands alone…” – And so does Apple when it comes to patent trolls, even those disguised as universities.

      1. I kinda figured that Intel decided that it was going to an educational foundation so said “What the hell!” and paid up in a settlement instead of taking a hit by fighting a University. Apple may have done that in the past but about three years they changed their policy on patents if they knew they were not infringing and decided they would fight the trolls to the extent of the law, regardless of who or what the organization or person claiming infringement was.

  6. It may be that WARF is an attack dog off its leash with little oversight by the University itself. If so it does qualify as a patent troll. Nothing wrong with Universities seeking licenses for its research as long as it is truly original. It seem that may not be true in this case but Apple must decide if it is worth fighting the infringement claim vs settling for a lesser amount.

  7. Apple was found guilty of infringing on a Wisconsin patent. They will pay the judgement.

    If the technology is vital to their plans, they will pay a licensing fee going forward.

    This is how business works.

    Not every patent suit is brought with malice.

    1. Judgment can be spelled either judgment or judgement. Both are acceptable. One would tend to think with that silent “e” in there in the second spelling it should be pronounced “Jew-j-ment” though, . with a long “u” sound.

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