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A few hours after pronouncing a ruling on one of Samsung’s numerous lawsuits against Apple, the Mannheim Regional Court held a hearing on one of Apple’s many infringement lawsuits against Samsung.

Today’s hearing relate to a Gebrauchsmuster (“utility model”), which is an intellectual property right that could be vaguely described as a fast-track patent that comes with various limitations. Companies are free to file for patents and utility models on the same invention (or on closely related inventions), and that’s what Apple did with its ever-more-famous slide-to-unlock image invention. Stemming from the same original application, two manifestations of this intellectual property right exist in parallel in the German market: a patent (EP1964022 as well as a German utility model (DE212006000081).

By now I have watched three German court hearings related to the slide-to-unlock invention. In mid-December, the Mannheim court heard Apple’s slide-to-unlock patent lawsuit against Samsung. In its original complaint, Apple asserted both the patent and the utility model, but the court deemed it appropriate to sever the utility model-related claims from the patent case given the complexity and unique characteristics of both sets of issues. The slide-to-unlock patent is also being asserted against Motorola in a Munich-based court. At the Munich hearing, I believe some reference to the utility model was made, but it’s unclear whether it was part of the same case or also at issue in a separate proceeding there – or whether it was only mentioned in connection with validity issues common to both. Unlike in U.S. court proceedings, complaints and similar documents aren’t publicly available over here.

Two fundamental differences between utility models and patents played a key role at today’s hearing:

Since utility models are registered without an examination process comparable to the examination of patent applications, there is no presumption of validity. It’s a prerequisite for an infringement ruling that the court concludes that the claimed invention was novel and non-obvious at the time of registration. In this case, the court believes a potential decision on validity or invalidity is too close to call, at least before today’s oral argument took place. As a result, the court may opt to stay this case pending the resolution (at least at the first instance) of a parallel invalidation proceeding before the Munich-based Federal Patent Court. As courts do in all cases in which a stay is a possibility, Judge Andreas Voss pointed to the benefits of a more efficient use of court resources as well as the avoidance of inconsistent rulings.

The strongest counterargument against a stay is that justice delayed is justice denied. In this case, that argument is particularly strong since Apple registered the asserted utility model in 2006. The maximum term of validity of utility models is 10 years (while patents are valid for up to 20 years). After the resolution of all of the pending issues, the asserted utility model would be on the verge of expiration and, therefore, commercially devalued.

Apple’s counsel said that it wasn’t possible to assert this utility model against Samsung’s products much earlier because they are relatively new. Samsung’s counsel replied that some of them are two to three years old. At least in some cases, I have no doubt that Apple’s couldn’t-sue-sooner claim is correct. The best example is the Galaxy Nexus, with respect to which Apple today filed (with yesterday’s date) supplemental infringement contentions.

I haven’t previously seen the Galaxy Nexus named explicitly as an accused product in any Apple lawsuit. It doesn’t even appear to be targeted by a new design rights lawsuit brought by Apple in D sseldorf this month. The Galaxy Nexus didn’t show up on the list of accused products that Germany’s most-read IT news site obtained from a spokesman for the D sseldorf court. The Galaxy Nexus is an “Android lead device” (for the latest Android version, dubbed Ice Cream Sandwich), which makes it particularly key to Google’s strategy.

On March 16, 2012, the Mannheim Regional Court will pronounce some kind of a decision, which could be a ruling (if the court considers the broader claims of that utility model valid, infringement appears to be beyond reasonable doubt), a stay (pending the aforementioned parallel nullity proceedings), or a decision to appoint an independent expert in order to help the judges assess whether the claimed utility model is obvious or non-obvious over certain prior art combinations. Apple would obviously prefer for the court to reach that ocnclusion without further delay, but as a second-best solution it could live with the appointment of a court expert. It just hopes to avoid a stay.

In connection with the disputed validity of that utility, Samsung emphasizes an obscure Swedish device that previously persuaded a Dutch judge to doubt the validity of Apple’s slide-to-unlock patent. In the utility model case, the Mannheim Regional Court could decide in Apple’s favor without even having to go into technical details on the Neonode device. In order for the widely-unknown device to be eligible as prior art in a utility model case, the standard for availability is higher than for patents. It’s not clear whether Samsung can prove that this device counts as prior art in this context.

Rather than going into further detail on the issues surrounding the slide-to-unlock invention, I’ll just wait for the court order that will come down on March 16.

In closing I’ll tell an anecdote from the beginning of today’s hearing. Samsung’s counsel moved to stay the case until Apple posts a bond covering its potential liability for court fees and Samsung’s legal fees according to the German “loser pays” principle (which in cases like this awards amounts that are typically much less than what a defendant like Samsung actually spends). In my estimate, that amount is on the order of a few hundred thousand euros. That’s not a lot of money for these two companies. Such a bond is formally necessary because the plaintiff in this case, Apple Inc., is domiciled outside of the European Union. Apple’s counsel objected to this untimely motion, and after a recess of about 15 minutes, the court agreed that it would be sufficient for Apple to post the required bond at a later time. If Samsung’s motion had succeeded, it would probably have delayed the case by only a few weeks – over an amount that no reasonable creditor would have to be worried about if Apple, a company that has far greater cash reserves than anyone else in the industry.

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Apple’s launch of a new suite of textbook-related services for the iPad is being widely celebrated, and with good reason. The ability to have beautiful, interactive and easy to use e-books on the tablet makes a huge amount of sense – as startups like Inkling have been arguing for a while – and Apple’s new book-authoring software could open publishing to a much broader market. But as usual, all this great design requires a major tradeoff: namely, that schools and publishers agree to be locked inside Apple’s walled-garden ecosystem. That might be fine for music and movies and games like Angry Birds, but is that really appropriate for educational material?

My GigaOM colleague Darrell Etherington has written about both the launch of the new iBooks2 – which includes thousands of interactive textbooks from some of the publishing industry’s major players, such as Houghton Mifflin Harcourt and McGraw-Hill, for $14.99 or less – and about the new book-authoring software Apple also launched on Thursday, called iBook Author. The latter allows for drag-and-drop creation of books, including embedded Keynote presentations, videos and other interactive features. And Erica Ogg of GigaOM has written about what this evolution of the book means, in terms of how that interactivity can improve textbooks.
Digital textbooks have benefits, but should Apple own them?

There’s no question that digital books have plenty of benefits: Not only can students carry more of them in electronic form, but they can also be distributed more cheaply (one of the reasons why publishers are likely willing to accept a much lower price point) and they can be updated if the information changes – something that’s impossible with printed textbooks. Plus, Apple’s books have 3-D interactive illustrations and the ability to create study notes automatically, and the launch of an expanded iTunes U allows teachers to connect their curriculum directly to those digital textbooks in interesting ways.

But where do these new, fantastically interactive books live? Only on iOS devices like the iPad, of course. Although the new iBooks software Apple launched appears to be based on the open ePub standard for e-books, it has enough proprietary tweaks in it that it likely won’t be compatible in either direction (at least not without a lot of effort). Once you create a book using the publishing software, you can save it as a PDF and send it to someone – but if you want to sell it, the end-user licence Apple makes you sign (or click on) says you can only sell it through the Apple iTunes store. Even the usually-supportive Apple blogger John Gruber of Daring Fireball says this is “Apple at its worst.”

The same thing goes for the textbooks that are going to be supplied by Houghton Mifflin and McGraw-Hill for $14.99 or less per copy: They will only live on iPads, which cost $500 or so each – unless Apple plans to offer some kind of educational bulk discount or special version of the device, the way it did with the original iMacs, but there was no word about that kind of program in Thursday’s announcement.
Do we want to give Apple control over the curriculum?

As one writer with some experience in the educational system pointed out at Cnet, as appealing as it might be, the kind of cost and investment involved in rolling out digital textbooks would be beyond the ability of most schools, even if they were to somehow land a major educational grant for such a purchase. And if a school buys books in bulk, according to a Wired magazine description of the program, they would have to repurchase new versions of all those textbooks for every new school year.

But the biggest criticism of Apple’s attempt to co-opt the educational system doesn’t have anything to do with costs: If its digital textbooks became the standard in schools, it would commit those institutions to a much broader – and theoretically much more dangerous – relationship with a technology provider than we have ever seen. Apple’s iMacs may have made their way into every school, but they didn’t control a key part of the curriculum. Every textbook would effectively have to be approved by Apple, and the software that controlled them would belong to Apple alone.

It’s possible Apple is planning to open up its new iBook textbooks, either by embracing the ePub standard or making it easy to move texts out of its system and into another, so iBooks can live alongside Inkling textbooks or CourseSmart books or Kno books – but if it’s planning to do that, we didn’t hear anything about it on Thursday. All we heard was how Apple wants to do the same thing to the textbook market as it has done to recorded music and mobile gaming: that is, own and control it.

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It was in July 2010, the United States government ruled that the jailbreaking and unlocking of Apple iPhones, as well as the rooting of Android devices was to be deemed a legal act, as long as the process wasn’t being carried out with the intention of circumventing copyright. We ran with an article directly after the ruling was made which outlined the full details of the new DMCA legislation which once and for all set to rest the misconceptions surrounding the legalities of jailbreaking a device.

Obviously, the court’s decision to rule the act of jailbreaking as entirely legal was a major blow for Apple, considering they have invested so much time and money into making their devices and operating systems as secure as possible, and have always been public advocates for making jailbreaking an unlawful act. Apple understandably remained tight lipped on the situation at the time, choosing to make a short statement, which drew attention to the fact that jailbreaking, whilst officially legal, would still void any official Apple warranties:

Apple’s goal has always been to insure that our customers have a great experience with their iPhone and we know that jailbreaking can severely degrade the experience. As we’ve said before, the vast majority of customers do not jailbreak their iPhones as this can violate the warranty and can cause the iPhone to become unstable and not work reliably.

It seems like yesterday when we were mulling all over the court’s decision, and reading the updated DMCA ruling which allowed millions of jailbreak fans to rest easy that they weren’t law breakers. But it seems as if that time is coming around again, with the Electronic Frontier Foundation (EFF) lobbying for users to add their electronic voice to a petition which aims to ask the United States government to declare once again that jailbreaking an iPhone does not violate the DMCA. The EFF are also asking for this initial exemption, which is set to expire, to be extended to cover tablet devices as the Apple’s iPad is not currently covered in the original ruling.

Well known iOS developer, Charlie Miller, is an advocate for this change and has been alerting his Twitter followers to the petition, directing them to the EFF website to add their voice. A recent tweet by Miller makes a public plea for users to head on over to the online petition:

Want to keep jailbreaking your phone legal? Want to make jailbreaking your iPad legal? Help add exceptions to DMCA:

Judging by his follow up tweet, it would appear that a number of his followers believe that the previous ruling is permanent, and that no further action is needed to be taken, but Miller has been quick to point out that this simply isn’t the case. So just why should people care whether or not the exemption was inserted into Digital Millennium Copyright Act expires or not? Well, first of all, the recent download and usage statistics which relate to the new Absinthe jailbreak tool clearly show that jailbreaking is not only still popular, but is a thriving and expanding community. Not only do we need to think about the end users who pay a large premium for the device and should ultimately have the freedom to do whatever they want with it, within the realms of the law, but a growing number of developers actually make their living from the software and tweaks which they sell on Cydia.

To allow this exemption to expire, and cast the world of jailbreaking back into the dark days would not only be a huge regressive step, but would also play a huge part in killing off innovation and development talent which we have seen flourish in the last eighteen months.

To make your voice heard, you can head on over to the Electronic Frontier Foundation website and send your comments to the Copyright Office using the links provided. All comments must be received by February 10th at 5PM Eastern Time.

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Apple on Tuesday updated its professional workflow application, Final Cut Pro X, adding a number of significant features. I spoke with Richard Townhill, Senior Director of Applications Marketing at Apple, to get more details on the release.

Perhaps the biggest new feature in Final Cut Pro X is the addition of Multicam editing. Typical of Apple when adding a new feature, the company didn’t just think about how to add the functionality, they thought about how to do it better than before.

Shooting a scene with multiple cameras is common practice these days and Final Cut Pro’s multicam feature supports mixed formats and mixed frame rates, making it easy to bring in footage from a variety of sources. Final Cut also supports up to 64 camera angles in the new version.

What’s really different in Apple’s implementation of multicam is how the company does its automatic syncing. Of course, you can sync camera angles by using the timecode or the less accurate method of using the time of day, but Apple has a new way of syncing camera angles – audio waveforms.

Townhill explained that with Final Cut Pro X, you can now sync scenes using the audio waveform captured with the camera. This doesn’t have to be the final audio used in the scene, but it can be used for syncing purposes. Of course, manually syncing cameras is still available at any time.

The other major new feature added to Final Cut Pro X is broadcast monitoring. For now, this is being released as a beta. Townhill said that you need a PCIe card in a Mac Pro or a Thunderbolt device. Apple said in most cases broadcast monitoring will work just fine, but they are still refining the feature.

The good news is that with Thunderbolt, you will be able to take advantage of broadcast monitoring while on a shoot. In the past this feature was only available when you got back to the studio and your Mac Pro.

In addition to those major features, Final Cut Pro X also includes Advanced chroma keying with controls for color sampling, edge quality, and light wrap. XML 1.1 support has been added, allowing users to export basic primary color grades, as well as importing and exporting effect parameters and audio keyframes.

Media relinking and the ability to import and edit layered Photoshop graphics has also been added.

There is also good news from Final Cut Pro developers. Intelligent Assistance is releasing a new app today called 7toX that will allow users to import Final Cut Pro 7 projects into Final Cut Pro X. The app uses Final Cut’s XML to achieve the import. The app will be on the Mac App Store and costs $9.99.

Other Final Cut developers like GenArts and Red Giant have developed motion graphics plug-ins that take advantage of the realtime preview capabilities of Final Cut Pro X.

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Apple Inc. (AAPL) failed to get a preliminary ban on sales of Samsung Electronics (005930) Co.’s Galaxy 10.1N and Galaxy Nexus mobile phone from a German court.

The Munich Regional Court rejected the motion today, in a case where Apple invoked a patent granted last year protecting technology related to touch screens for tablets and smartphones.

“Samsung has shown that it is more likely than not that the patent will be revoked because of a technology that was already on the market before the intellectual property had been filed for protection,” Presiding Judge Andreas Mueller said when delivering the ruling.

The decision comes a day after a Dusseldorf appeals court upheld Apple’s request to ban sales of the Galaxy Tab 10.1, the predecessor model. Samsung began selling the Galaxy Tab 10.1N, a revised version, in Germany to get around the ban. A lower Dusseldorf court is scheduled to rule next week on a separate case Apple filed over the Galaxy 10.1N. Samsung lost two patent rulings against its rival in a Mannheim court last month.

The European Commission announced yesterday it will investigate whether Samsung broke a 1998 commitment to license any standard essential patents for phones on “fair, reasonable and non-discriminatory terms.” The action followed litigation filed by Samsung last year in European courts over the patents, the EU said.
Tablets, Smartphones

The legal battle between Cupertino, California-based Apple and its closest competitor in tablet computers is intensifying as an increasing number of consumers use tablets and smartphones to visit websites, play games and download music.

Neither Samsung nor Apple immediately replied to e-mails seeking comment on today’s case.

The patent at issue today protects technology that shows users when they reach the scrolling limit of a page. The decision relied on the likelihood that Samsung could get the patent revoked at the European patent Office, which had granted the intellectual-property protection.

Peter Chrocziel, an Apple lawyer, argued at the hearing that the technology Samsung claimed was known before the iPad maker’s patent was filed didn’t contain the same solution because it didn’t provide the same experience for the user.

Samsung lawyer Henrik Timmann argued the court shouldn’t be allowed to issue a preliminary ban as long as a nine month deadline for contestation for the patent hasn’t been elapsed.

Judge Mueller said he and his two colleagues on the bench don’t follow the jurisprudence of the courts in Dusseldorf and Mannheim, which don’t typically grant emergency requests over recent patents.

“We don’t share the idea that young patents are less valuable than those who have survived for a longer period of time,” said Mueller. “We don’t think that would be in line with European rules of enforcing IP rights.”

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Siri, the iPhone 4S’s deadpan voice-activated assistant, is imperfect. She’s stumped easily. Her command of English is only so so. In the U.K., she’s a man. But is Siri a fraud?

A New York man represented by Robbins Geller is suing Apple for false advertising, alleging that the company’s commercials convey a “misleading and deceptive message” about Siri’s capabilities.

Frank M. Fazio, who bought his 4S in Brooklyn in November, is part of purported class of people who feel suckered. According to the lawsuit filed last week in federal court in California:

[I]n many of Apple’s television advertisements, individuals are shown using Siri to make appointments, find restaurants, and even learn the guitar chords to classic rock songs or how to tie a tie. In the commercials, all of these tasks are done with ease with the assistance of the iPhone 4S’s Siri feature, a represented functionality contrary to the actual operating results and performance of Siri.

Fazio claims Siri is far less responsive in real life. When he asked for directions to a certain place, or to locate a store, “Siri either did not understand what Plaintiff was asking, or, after a very long wait time, responded with the wrong answer.” (Disclosure: We own an iPhone 4S, and Siri has been generally responsive to our requests for directions. Even in Midtown traffic.)

The lawsuit, which asks for unspecified damages, says Siri is “at best, a work-in-progress.”

An Apple spokeswoman declined to comment on pending litigation.

When asked her whether her makers exaggerated her worth, Siri told Law Blog, “We were talking about you, not me.”

She says that a lot.

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For those wondering how authentic the upcoming made-for-TV movie about Steve Jobs will be, maker Five Star Feature Films says it’s going to actual locations, including Jobs’ childhood home, where the first Apple computers were pieced together in the garage.

The film’s production company today said it plans to begin shooting principal photography at the Los Altos, Calif., home next month, with a release of the picture to follow in late fall of this year.

The garage, which belonged to the Jobs family, was Apple’s official headquarters before the company moved to a rented office space in Cupertino, Calif. It was the birthplace of the first Apple computer, as well as the Apple II, which became the company’s first real hit.

The movie, entitled “jOBS,” was announced last month and features actor Ashton Kutcher as Apple co-founder Steve Jobs from 1971 through 2000. That bit of Jobs’ history includes the founding of Apple, as well as his ouster, the forming of NeXT and Pixar, then the return to the company when Apple acquired Jobs’ NeXT.

“A rousing narrative of this business and tech icon, ‘jOBS’ pulls no punches and does not speculate, telling only the candid and captivating account of the life of Steven Paul Jobs,” its makers promised in a press release today.

The first photo from the upcoming project leaked out last week, featuring Kutcher in Jobs’ signature black turtleneck and blue jeans.

The film is not to be confused with a separate feature film, currently in development by Sony Pictures and destined for movie theaters. Earlier this week, Sony said it had signed on “The Social Network” and “The West Wing” writer Aaron Sorkin to write that screenplay. The company had already secured the rights to Walter Isaacson’s best-selling biography “Steve Jobs.”

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