Tag: Apple

University of Washington School of Law

New Damages Trial for Apple and Samsung, Questions Still Left Unanswered

Picture1By Alex Hagel

Apple and Samsung are back! A new chapter in the Apple v. Samsung saga is set to begin in May.

A federal judge in California has scheduled a third trial since Apple’s initial suit in 2011. The suit alleges Samsung illegally copied several Apple design patents when designing its own phone. The new trial for the two tech giants follows the Supreme Court’s decision last year, which resulted in a (narrow) victory for Samsung.

This round of Apple v. Samsung involves three Apple design patents related to the front cover of its iPhones. Patent D618,577 covers “a black rectangular front face with rounded corners;” patent D593,087 covers “a rectangular front face with rounded corners and a raised rim;” and patent D604,305 covers “a grid of 16 colorful icons on a black screen.” WJLTA previously wrote about the peculiarities of design patents, and its distinction from the far more common utility patents.

Apple received a $1 billion verdict in 2012 after a jury found Samsung illegally used Apple’s design patents, and awarded Apple the entirety of Samsung’s profits from the sale of the infringing phones. Subsequent appeals affirmed the district court’s decision to award the full value of the phones, but that value was later recalculated to about $399 million.

On appeal to the Supreme Court, Samsung argued Apple was only entitled to the value of the relevant “article of manufacture,” rather than the value of the entire phone. During oral arguments, the parties struggled to articulate how and when an “article of manufacture” should be distinct from the entire product. The United States, as amicus, argued four factors should be considered:

  • the scope of the design claimed in the plaintiff’s patent, including the drawing and written description;
  • the relative prominence of the design within the product as a whole;
  • whether the design is conceptually distinct from the product as a whole; and
  • the physical relationship between the patented design and the rest of the product.

The unanimous opinion refused to adopt a specific test for determining what constitutes an article of manufacture, instead ruling “the term ‘article of manufacture’ is broad enough to encompass both a product sold to a consumer [i.e. an iPhone] as well as a component of that product [i.e. the front casing of an iPhone].”

Which brings us back to the new trial. In her order granting a new trial, the district court judge directed the parties to argue using the above factors articulated by the United States. Samsung will likely argue the front casing is an article of manufacture and thus distinct from the iPhone as a product, because (1) the design claimed in the plaintiff’s patent is limited to the front casing, rather than the entire phone, (2) the prominence of the front design is overshadowed by the capabilities of the iPhone as a “smartphone” (3) the product [a smartphone] is conceptually distinct from the patented “black rectangular front face with rounded corners” and (4) the front cover is separable from the rest of the phone.

This new trial will not likely be the end of the story. If the court accepts Samsung’s argument that the front casing is a distinct “article of manufacture,” any damages the court awards will likely only produce more litigation because there is no clear standard on how to value that “article of manufacture.”

Although valuing an article of manufacture was discussed during oral arguments at the Supreme Court, the justices did not decide the issue, and the district court judge has not offered guidance. The likely candidate, embraced by the government and Samsung at oral arguments, requires companies to use consumer surveys and data to deduce “to what extent people who bought the product did so because of the particular article of manufacture.” In the alternative, the court might adopt a test looking at the relative cost of developing a part and awarding damages in proportion. The court was hesitant to embrace this approach because of the potential for a “eureka!” moment, where an important component of the product is produced in a flash of genius, rather than through extensive research and development. This approach would necessarily value that important component much lower because of the low cost of production.

With this open question hanging over the court, this well-known saga is unlikely to end anytime soon.

University of Washington School of Law

Regulatory Landscape Remains Unclear for Mobile Health App Developers

8585047526_37a5bed3ff_bBy Mariko Kageyama

The digital health field has been growing exponentially and is now expanding rapidly into emerging markets. As a result, mobile health apps, or “mHealth apps,” have exploded in popularity. If you search for “health” on online app stores such as Apple’s App Store or Google Play, you will have no problem finding countless apps with various health-related purposes. One survey reports that nearly 260,000 mHealth apps were available worldwide by 2016.

However, what mHealth app developers and consumers may not realize is that these new technologies are becoming the target of increasingly tight regulations by both federal and state laws in the United States.

At the federal level, mobile health apps may be scrutinized under the following federal agency laws:

  • Health Insurance Portability and Accountability Act (HIPAA) and HITECH Act – These acts regulate data privacy and security of health information. They are enforced by the U.S. Department of Health & Human Services’ Office for Civil Rights (OCR) and Office of the National Coordinator for Health Information Technology (ONC);
  • Food, Drug, and Cosmetic Act (FDCA) – This act allows the Food and Drug Administration (FDA) to regulate the safety and effectiveness of “medical devices;” and
  • Federal Trade Commission Act (FTC Act) – This act both creates the FTC and allows it to enforce and penalize deceptive or unfair business practices including false or misleading claims about apps’ performance.

Among these major agency players, the FDA has struggled the most with trying to adapt its existing regulatory framework to include and regulate mHealth apps.

For instance, the FDA can regulate “medical devices,” but what qualifies as a “medical device” under FDA law? According to its 2015 Guidanace, the FDA does not want to regulate every single smartphone app that tangentially relates to fitness or wellness. Instead, the FDA only wants to keep an eye on a small subset of apps called “mobile medical apps” that may pose moderate to high risks to a patient’s safety if the apps fail to work as intended. “Mobile medical apps” can either be those connected to existing medical devices already regulated by FDA, or those that “transform” mobile platforms into an FDA-regulated device.

The FDA explains that a mobile app “transforms” into a medical device when it uses attachments, display screens, or sensors, or when it uses a mobile platform’s built-in features such as light, vibrations, and camera to create functionalities similar to those of currently regulated devices. But the exact actions that constitute a “transformation” are not yet known and remain open to significant agency discretion.

Therefore, if you were to create a new mHealth app that “transforms” a mobile device, you may need to seek FDA approval for a specific medical device classification based on the level of safety risks it poses. The classes are ranked I, II, or III and any class of device can be subject to what is known as Premarket Notification 510(k).

In anticipation of ambiguities in this field, multiple federal agencies collaborated in 2016 to create the Mobile Health Apps Interactive Tool. What is unique about this user-friendly educational website is that it is clearly intended for IT developers, not healthcare professionals or general consumers.

State laws have also come into play. Earlier in 2017, the New York Attorney General settled with three mHealth app developers for state law violations over their misleading marketing and privacy practices. Those mHealth apps are: My Baby’s Beat–Prenatal Listener; Heart Rate Monitor & Pulse Tracker; and Cardiio-Heart Rate Monitor + 7 Minute Workout. As illustrated in the settlement documents, these apps do not look any more sophisticated than other similar apps, but the New York AG maintained that these cardiac rate monitors probably fall under FDA Class II medical devices. Such a classification means that these are higher risk devices than Class I and thus subject to greater regulatory controls. Although the investigation did not go further, these state cases show that mHealth app developers and manufacturers can be exposing themselves to large amounts of liability at the state level as well as the federal level.

Despite this heightened oversight, the current FDA Guidance is clearly nothing more than a temporary fix when much more is needed to address these issues in such a rapidly growing and changing field. Because Congress has a less-than-great track record of quickly enacting laws, the FDA and other relevant agencies should act swiftly to reevaluate these regulations in order to ensure consumer health and safety while simultaneously fostering innovation in this massively beneficial field.

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University of Washington School of Law

$5.3 Million Settlement over “Find Friends” iOS Feature

Picture1By Kiran Jassal

Eight companies (Foodspotting, Foursquare, Gowalla, Instagram, Kik, Path, Twitter, and Yelp) have agreed to a proposed settlement of $5.3 million in a case surrounding the “Find Friends” feature in iOS apps. As the name suggests, “Find Friends” allows consumers to quickly discover if any of their contacts are also using an app. Interestingly, both Apple and LinkedIn are among the companies named in the lawsuit; however, they are continuing to fight the case while the aforementioned entities have decided to settle. Read More

University of Washington School of Law

Design Patents Taking Center Stage in IP Litigation

Center Stage.pngBy Toban Platt

In Apple v. Samsung, the Federal Circuit court of appeals showed how valuable a design patent can be by affirming the trial court’s award for over $500 million dollars to Apple based largely on its design patents. This decision put design patents in the spotlight of intellectual property protection. The case first started in 2012 and revolved around design patents on particulars of Apple phones, including D618,577 (black rectangle with rounded corners), D593,087 (bezel on surrounding rim), and D604,305 (colorful grid of 16 icons). Apple was able to show that several Samsung phones were substantially similar to the iPhone, which included the design patents at issue. The court found this entitled Apple to collect all of the profits Samsung had made from its infringing phones.

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University of Washington School of Law

Apple Faces Further Intellectual Property Hurdles in Beijing

Apple DownBy Kiran Jassal

This month, a Chinese company known as Shenzhen Baili Marketing Services Co. won a regulator’s patent ruling in Beijing against Apple for its rounded-edge smartphone design, stirring fears that Apple’s iPhone 6 would be shut out of the market in China. This ruling comes one short month after Apple lost its fight to keep the “iPhone” trademark exclusive to its products following a Beijing court ruling that a little-known accessories maker could use the trademark for a range of its wallets. And among the many interesting dimensions to this recent patent dispute, Apple’s woes are even more complicated by its struggle to keep confidential designs under wraps as they work their way through Apple’s supply chain.

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