Apple Computer and Microsoft Corp. last week witness themselves at the affectionateness of a patent difference that could have far give effect for Apple ’s iPod business organisation . Last calendar month the United States Patent and Trademark office refuse Apple a patent of invention for some user user interface elements of the pop iPod MP3 histrion , citing a patent of invention submit by Microsoft developer John Platt five months before Apple ’s title .
While the patent has been issued to Microsoft , Apple said that it plans to retain the engagement with the patent office .
“ The US patent outgrowth is often a protracted one , postulate much back and off with the US patent billet , ” said Apple in a instruction . “ Apple will continue to pursue this patent program , as well as the many others covering iPod innovation . ”
Longtime industry analyst , Roger Kay enunciate that even if Microsoft were to deliver the goods a patent challenge from Apple , the chances of it give birth any substantial essence on Apple ’s next business are slender .
“ I conceive that in practical terms , no evaluator will let Microsoft to stop Apple ’s iPod patronage from going forward , ” said Kay , president of Endpoint Technologies Associates Inc. “ I think that if Microsoft makes a minute claim stick , the settlement will be a cross - licensing deal with picayune or no money changing hands . ”
Microsoft ’s Director of Intellectual Property Licensing , David Kaefer note in a program line last hebdomad the two companies conclude family relationship and that Microsoft does tend to certify its patents to other company .
“ In oecumenical , our policy is to allow others to licence our patents so they can use our advanced method in their product , ” Kaefer said in a statement . “ Microsoft and Apple have previously licence their respective letters patent portfolios to one another and we maintain a good working kinship with Apple . ”
While a licensing deal might have an core on Apple and Microsoft , Kay believe that foresightful - full term the effect on consumers will be minimal and there will be no effect on the iPod as the two companies struggle for patent right .
“ Consumers do n’t buy with the long full term in mind , ” said Kay . “ That ’s why the industry calls them ‘ transactional buyers . ’ They just want what they require and they need it right now . afterward , everything might be different , but if I need an iPod , I ’m just hold out to buy one . ”
Legal wranglings a routine slick
While looking at potential licensing agreements and the outcome of the letters patent decision may seem complex , the world of the effectual legal proceeding before the two companies could be even worse .
“ United States patent of invention law of nature is a ‘ first to invent system of rules . ’ Microsoft could argue that they invented it before Apple put its product on the marketplace , ” said Scott Culpepper , a patent of invention attorney and partner with Thomas , Kayden , Horstemeyer & Risley , LLP in Atlanta , GA . “ Microsoft ’s options are to sue Apple for violation of its letters patent or to sit down back , hold off and not worry about it . Apple , on the other hand , has a lot more choice . ”
Having already been deny their patent practical software , the options available to Apple at this point are to use for Patent Interference or a “ cuss behind . ”
qualify by Culpepper as “ an highly retentive process that is very complicated and expensive , ” the U.S. Patent role will deed over an Interference when two party take to have invented the same technology . If Apple were to win the Interference proceedings , Microsoft ’s patent of invention would be revoked and Apple would be issued the patent .
Apple could also practice a procedure called “ depone behind . ” This subprogram is used when the ship’s company believe that their patent claim has nothing to do with an earlier granted patent . For instance , Apple could argue that Microsoft ’s letters patent does not cover their technology – if successful , Apple would be issued a patent for their technology and Microsoft would keep their patent of invention .
“ Even though the patents may describe exchangeable bailiwick issue , the claims could be very different , ” said Culpepper . “ They may not lawfully claim or insure the same subject affair . If that ’s the case , there is no basis for an Interference – then the only issue is whether Apple gets a patent . ”
If Apple choose to expect for an Interference proceeding , believing that the Microsoft patent of invention and its claim pass over the same technology , both company would be required to posit what could become mountains of documentation .
“ Most big ship’s company maintain laboratory notebooks where they keep logs of daily investigatory activities , ” said Culpepper . “ The patent of invention office will take a smell at those books to endeavor to see who gestate the idea . It is go to come back to science laboratory notebooks , inner memorandum and other internal software documentation . ”
Culpepper said that generally the rule for a letters patent is the party that invented it first and then diligently worked toward make the Cartesian product is going to get the patent of invention . However , as an example , he state that if a company formulate a technology and put it aside for a few long time and a second company comes along , forge a like engineering and produce a production , they will get the patent .
Culpepper also did n’t know what result the longstanding agreement between the two companies would have on the patent . Although kick the bucket , he said that it is “ very common in the hi - tech diligence that you often have some character of bad-tempered - capture article ” in the concord .
“ This is sure as shooting not the end of the story . I consider we are at the very beginning of this , ” said Culpepper .
