An initial determination by the ITC has it that Apple does not owe Nokia any royalties on 5 technologies. It is not a decision which will have Nokia losing much sleep and it has responded by filing another suit with the ITC over a further 7 technologies. There are already other suits in play, two in the US and three in Europe where Nokia alleges that Apple is not paying its dues to be in the handset vendor club.
The first hearing in front of a single judge, E. James Gildea described as an ‘initial determination’ will be reviewed by 6 judges before being ratified and may well change.
This is one apparent reversal across a broad front from Nokia and we have to say that we are on the Finnish company’s side, because as much as we love Apple from a consumer point of view, it has invented precious little and solved virtually none of the problems of cellular in its meager R&D labs.
The judgment, in which Judge Gildea says Apple has no case to answer, is more of a tactical decision in our view, rather than a final one, and the case will now go before the full ITC bank of judges. Often ITC decisions are made purely to retain the status quo while the rest of its judges have the time to reach a decision collectively. The patents in question are not the most key patents for cellular, perhaps those are being tried in a patent court in Wisconsin, and were filed in May relating to technologies for enhancing speech, data transmission, using positioning data in applications and innovations in antenna configurations.
These instead are about Nokia patents for capacitive touchscreens dating back to the 90s, for lens filters and cameras on a chip, voltage oscillators, the way voice calls cut into what the screen is doing and merging antennas and speakers into one piece of technology to save space. Critically the Multi-touch patents of Apple would never be ratified in a European court, so Apple will have little to counterpunch with in Europe if any case there goes against it.
Back in November Apple itself was given a reverse by the ITC when a pre-hearing opinion was issued recommending that Apple’s attack on core device boot processes and issues related to power management, should be dropped. So far its one decision apiece in a long drawn out patents war.
This is a long game being played by Nokia and we maintain our view, that in the end Apple probably owes Nokia and many other patent holders quite a bit more of the iPhone revenue, but that this will not fatally affect the success or otherwise of the iPhone or iPad. None of these cases are really designed to come to court, but to apply further pressure on Apple to reach the kind of settlement that Nokia needs in order to design devices with impunity, incorporating the kinds of design improvements that Apple has brought to handset everywhere ‘ not really patentable technologies outside the US, but considerable nonetheless, such as Multi Touch controls.
The new ITC suit from Nokia is about a further seven patents covering multi-tasking operating systems, data synchronization, positioning, call quality and the use of Bluetooth and there was a suit filed last year in a Delaware court which names 20 further patents. If Nokia doesn’t get Apple on one, it will get it on another.
Only this week the ITC has changed its mind and said that it will review Kodak’s patent infringement complaint against Apple and Research in Motion relating to image previews in handset cameras, having apparently dismissed it in January.
Fighting in Apple’s corner is really one solitary cluster of patents which is worrying every other handset player and is the basis of many of Apple’s attacking suits, for instance the one against HTC, and that is, as we say, multi-touch. This may well be a vital idea for the future of handsets, but it would it never be patentable outside the US, because it is not strictly a technical solution, more a set of ideas. Apple sums it up as ‘a scrolling heuristic for determining that the one or more finger contacts correspond to a one-dimensional vertical screen scrolling command rather than a two-dimensional screen translation command based on an angle of initial movement of a finger contact with respect to the touch screen display’
The truth is that even this patent, awarded a year ago by the US patent office would eventually come under scrutiny because other patents awarded outside the US have not been consulted prior to awarding it, and there is a complex layering of touch patents going back to the 1960s starting with single touch screens and driving on to the development of touch screens for phones, played with in the early 90s and triggered in 2007 with the launches of the LG Prada first and later the Apple iPhone.
There have been phones with touch screens as far back as 1992, from Nokia, but always they relied on single touch to trigger an activity. The idea that the process first looks at the angle at which your finger arrives, whether or not another finger arrives virtually at the same time, and calculates what outcome you want from both of their movements (such as the pinching movement) is all new. But even that is not entirely down to Apple. It’s not a lot to counter balance the entire cellular industry.