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Smartphone patent landscape

2 Comments / Patents, Technology / / / , , , , , ,

Dr Mark Summerfield has an interesting post demonstrating some work he and his colleagues have been doing modelling the ownership of patents in the smartphone space.

In their mobile technology landscape, or themescape, they seek to demonstrate pictorially:

  • Samsung appears to own key hardware patents;
  • Microsoft seems to own most software patents;
  • but Apple seems to have highly strategic patents.

The themescape also seeks to demonstrate that Google was a long way behind, but may be catching up if it gets to acquire Motorola’s patents.

Dr Summerfield does express some frustration:

It is therefore ironic – and some might say more than a little unfair – that Apple should be in a position to frustrate Samsung’s attempts to compete against its iPhone and iPad products, while the FRAND obligations associated with Samsung’s much larger patent portfolio leave it in a strategically weakened position.

In this context, it is hardly surprising that Samsung is in the Federal Court of Australia arguing that it should not be barred from obtaining an injunction against the iPhone 4S on the basis of the FRAND status of the patents which it is asserting against Apple.

But one might equally wonder why Samsung should be allowed to get injunctions on the basis of its so-called FRAND patents (assuming the fair and reasonable royalty is forthcoming) when it apparently volunteered its patents for inclusion into various standards in return for FRAND obligations? This FRAND-type issue has been around since at least the 1980s and led to this basic position.

Foss Patents also has a relatively recent round up of where many of the litigations between the various smartphone manufacturers currently sit.

Smartphone patent landscape Read More »

Google’s keywords advertising

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News just in:

Google’s placement of advertisements, generated through its AdWords program, on search results pages is not misleading or deceptive conduct contrary to s 52 TPA / s 18 ACL (I’m afraid you have to scroll down).  However, the advertiser’s use of another trader’s name in the headline for an advertisement which had nothing to do with that trade was.

So for example, the Trading Post used the AdWords program to generate an ad:

Kloster Ford

www.tradingpost.com.au New/Used Fords – Search 90,000 + auto ads online. Great finds daily!

The advertisements at the URL did not have anything to do with Kloster Ford or vehicles Kloster Ford was offering for sale.

The Trading Post therefore had engaged in misleading or deceptive conduct; Google did not.

Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd [2011] FCA 1086

 

 

357 paragraphs to read now (or a bit later)

Lid dip @wenhu

SMH report

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Convergence review

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It’s never too late to discover a government inquiry (at least before the legislation comes through)!

Back in December, the Minister for Broadband, Communications and the Digital Economy announced a Convergence Review.

Media Release, draft Terms of Reference and “home page“.

Given its departmental provenance and some of the discussion in the Background Paper, it might be thought the Review is mainly targeted at the Telco Act, the Radiocommunications Act and the Communications/Media regulator.  There are some interesting straws in the wind for IP however:

First, the first draft term of reference:

In light of convergence, the Committee is to review the current policy framework for the production and delivery of media content and communications services. The Committee is to:
  1. develop advice for Government on the appropriate policy framework for a converged environment;
  2. advise on ways of achieving it, including implementation options and timeframes where appropriate; and
  3. advise on the potential impact of reform options on industry, consumers and the community.

(my emphasis).

In the Background Paper, there are also some interesting IP-related aspects:

So, at pp. 14-15:

Another trend affecting business models is the trend towards the ‘granular’ nature of media consumption; for example consumers can now download songs, not albums; watch specific TV shows on demand and not the linear programming of a channel, and read a single news article through an online search engine, rather than purchase and read the day’s newspaper edition. In the online world the consumer is in the driving seat of their own media and entertainment consumption patterns with more choice and control than ever before. In addition to the rise of competing online platforms and fragmentation of the consumer market, another challenge to established business models is that digital revenues are not yet matching analog ones. In 2008, NBC Universal CEO Jeff Zucker famously stated that media companies should not ‘trade analog dollars for digital pennies’24. By 2009, he quipped that this may have increased to ’digital dimes’25. While online revenues are growing and the gap is reportedly closing26, ensuring ongoing investment while balancing the difference between analog dollars and digital cents presents challenges to established media companies.

On p. 16 under the heading ‘Policy settings that encourage Australian, local, and children’s content’, the discussion about Australian content quotas imposed on tv and radio, ends:

The rise of these alternative audiovisual services and the growing fragmentation of the media market raises questions as to appropriate policy settings to ensure the ongoing production and distribution of Australian media content which reflects and contributes to the development of national and cultural identity.

(Their emphasis)

And, of course, the paranoid among you out there in cyberspace, will no doubt recall the rather cavalier treatment (e.g. here and here) meted out to iiNet before it won the (first round of) the Roadshow case.

Now, you could have fun (and spend lots longer than a year) on this: e.g. Prof Gans lambasts the authors (and, I guess, indirectly the other copyright owners who have similar ideas), but (for balance) also the App Store and, of course, until the Floods came, we were all twisted up with Gerry Harvey wondering if putting a GST on online purchases (overseas) will change the fact that you can often buy things online from overseas for prices 30-40% less than in stores here. Assuming of course you can “buy”: compare the tv shows or movies or books in the iTunes store or on Kindle or audible from Australia to what you can get with a US address, maybe. Somehow, I have avoided mentioning Google so far. Wonder how many examples the Review will come up with which lead to peeling back regulation?

Now, the time for commenting on the draft Terms of Reference closed on 28 January, so the scope of the review may become clearer. Then, there will be an independent committee to conduct the review, with their report scheduled for 1st quarter 2012.

One to watch!

Lid dip: Mary Wyburn

Convergence review Read More »

Talk on keywords, adwords and trade marks

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For anyone who may find some value in them, I have posted the slides from my IPSANZ talk ‘Of Keywords, Adwords and Trade Mark Infringers at Slideshare.

Talk on keywords, adwords and trade marks Read More »

Who owns the news?

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For those who didn’t make it to last week’s IPRIA / CMCL /MBS Cite seminar, the organisers have helpfully posted the videos and some of the slides.

Of course, from a purely legalistic point of view, the copyright owner owns at least his/her/its “expression” of the news and, as the various attempts to set up pay-walls and the like expose, website owners can “block” Google/Bing’s spiders and linking if they really, really want to (see Danny Sullivan via here).

Over at Techcrunch, John Biggs speculates that paywalls and the era of micro-payments are coming. Meanwhile, the Guardian appears to be making a bid to become the blogosphere’s source of reported news (lid dip, @lods1211) which might be thought of as an application of Jeff Jarvis’ What Would Google Do?

Now, I’m all in favour of News Corp trying to put the lid on linking to its websites and the Guardian taking a different strategy. Afterall, that might be thought the essence of competition. More generally, however, do we really want to develop some additional legal protection that makes linking (when it is not technologically blocked) some sort of infringement?

Wouldn’t that mean “Bye bye world wide web” (as we know and use it)?

Who owns the news? Read More »

Google’s sale of ‘trademarked’ keywords does not infringe in EU

Leave a Comment / Trade marks / / / , , , ,

The European Court of Justice has ruled that the sale of ‘trademarked’ terms by Google as keyword triggers of advertising:

From IPKat reports. According to the IPKat, the rulings themselves:

1. Article 5(1)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks and Article 9(1)(a) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark must be interpreted as meaning that the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has, without the consent of the proprietor, selected in connection with an internet referencing service, goods or services identical with those for which that mark is registered, in the case where that advertisement does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.
2. An internet referencing service provider which stores, as a keyword, a sign identical with a trade mark and organises the display of advertisements on the basis of that keyword does not use that sign within the meaning of Article 5(1) and (2) of Directive 89/104 or of Article 9(1) of Regulation No 40/94.
3. Article 14 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as meaning that the rule laid down therein applies to an internet referencing service provider in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored. If it has not played such a role, that service provider cannot be held liable for the data which it has stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it failed to act expeditiously to remove or to disable access to the data concerned.

IPKat threatens more detailed consideration in a later post.

Prof. Goldman provides a thoughtful analysis from a US perspective here.

Google’s sale of ‘trademarked’ keywords does not infringe in EU Read More »

Selected microblog posts (w/e 11/09/09)

Leave a Comment / Copyright, Patents, Trade, Trade marks / / / , , , , , , , , , , , , , , , , , , , , ,

Selected microblog posts from the past week:

  • RT @VogeleLaw: Found: Mary Beth Peter’s testimony (via @cathygellis – thanks!) http://bit.ly/Cijau #gbs_hearing [US Copyright Register opposes Google Book Settlement]
  • Google Book in the EU? http://ff.im/-7OYfA
  • RT @MegLG: A Billion Dollar Test of the DMCA Safe Harbors in Viacom v YouTube http://ow.ly/om66 via Cyberlaw Cases
  • RT @michaelgeist: Microsoft wins stay of injunction on Word. Case arises from patent claim by Toronto’s i4i.http://bit.ly/oDmLU
  • IP Think Tank Blog looks at i4i v Microsofthttp://ff.im/-7zfKp
  • AAR on UWA v Gray – Universities and their employees: who owns developed IP? http://ff.im/-7RmgI
  • Hannahland: Ph D candidate on UWA v Gray http://ff.im/-7WcoR

Selected microblog posts (w/e 11/09/09) Read More »

Selected microblog posts for week ending 21/8/09

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Selected microblog posts for week ending 21/8/09 Read More »

AP charges for quotes

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Another round in AP’s war on the internet:

Associated Press would like to charge you for any extracts you take from its website.

Starting price is US$12.50 for 5 – 25 words.

For example.

Apparently, it’s the (iCopy)right thing to do!

I guess that means “they” think that now you can pay for the “service” easily it won’t be fair use (USA only) or fair dealing.

Lid dip: priorsmart

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Google and facilitating or authorising

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DesignTechnica operates bulletin boards. The plaintiff alleged that some postings on the bulletin boards defamed it. In addition to suing DesignTechnica, the plaintiff sued Google for libel by reproducing snippets of the (allegedly) defamatory material in search results.

Eady J, sitting in the Queen’s Bench Division,  dismissed the plaintiff’s claims against Google on the grounds that Google did not publish the material.

The case obviously turns on the requirements for an action in defamation. Of potential interest in an intellectual property context, however, is that his Lordship noted that the generation of the snippets was automatic, not volitional. Thus, his Lordship analagised Google’s position to the position of someone who merely ‘facilitated’ infringing intellectual property conduct rather than ‘authorised’ it.

In the course of his judgment, his Lordship explained:

54.  The next question is whether the legal position is, or should be, any different once the Third Defendant has been informed of the defamatory content of a “snippet” thrown up by the search engine. In the circumstances before Morland J, in Godfrey v Demon Internet, the acquisition of knowledge was clearly regarded as critical. That is largely because the law recognises that a person can become liable for the publication of a libel by acquiescence; that is to say, by permitting publication to continue when he or she has the power to prevent it. As I have said, someone hosting a website will generally be able to remove material that is legally objectionable. If this is not done, then there may be liability on the basis of authorisation or acquiescence.

55.  A search engine, however, is a different kind of Internet intermediary. It is not possible to draw a complete analogy with a website host. One cannot merely press a button to ensure that the offending words will never reappear on a Google search snippet: there is no control over the search terms typed in by future users. If the words are thrown up in response to a future search, it would by no means follow that the Third Defendant has authorised or acquiesced in that process.

In addition, Eady J noted that Google had promptly blocked access to specific URLs, but could not reasonably be expected to block all search results which could include the (allegedly) infringing snippets.

Metropolitan International Schools Ltd v DesignTechnica [2009] EWHC 1765 (QB).

Lid dip: Prof Goldman

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