The December 6th court date between Apple and Samsung is closing in quickly, and both parties are fighting hard to set the tone and the agenda. Samsung was able to get access to parts of the Apple-HTC deal, and now Apple wants to bring another discussion to the forefront.
Samsung claimed to have developed a workaround to "Apple's '915 patent (U.S. Patent No. 7,844,915 on 'application programming interfaces for scrolling operations')," which is simply the patent that protects pinch-to-zoom functionality on iOS devices. Apple claims that Samsung's solution still infringes on the patent and that the modified code is mere window-dressing.
The discussion gets pretty specific here. After all, courts are trying to determine exactly what types of motions and functionality are included. If two fingers are used in a zooming function, is that automatically an infringement?
The fact is, software companies can easily enough develop workarounds to still allow for the same basic functionality. The question is how elegant the solution would be. Foss Patents suggested several different possibilities, such as using several fingers for zoom or having to press a physical button before using two fingers for a zoom effect. These solutions, as Foss suggests, are clunky and impractical for devices that should seek to streamline functionality and make processes intuitive.
This leaves us with what Samsung has attempted. Samsung attempted to create a system that allowed users "to scroll web pages using one finger and zoom in and out of web pages using two fingers."
Recently, a professor from Toronto named Karan Singh went to Samsung's law firm to look at the workaround code. His report was not positive for the South Korean tech company. He noted that "Samsung failed to provide a full code tree or folder as it would typically be kept in Samsung's ordinary course of business," but he still saw enough of the code to assert that "the modified code [he] reviewed demonstrates continuing infringement of the '915 patent."
The court document filed by Apple featuring Singh's findings has been heavily redacted in order to keep information about Samsung's source code out of the eyes of the public. Still, the parts of the report available are clear enough in their assertion that Samsung infringed patents.
While Samsung is attempting to strike three of Apple's declarations, Apple has claimed that "Dr. Singh exposed the fiction in [Samsung expert] Mr. Gray's declaration that dressing up infringing code in different clothing renders it non-infringing."
While Samsung and Apple are fighting tooth and nail on whether or not to include the report in this court battle, two observations will need to be dealt with in courts sooner or later.
- Samsung's "modified code flow is very similar to that for the Galaxy Tab 10.1, which the jury found to infringe".
- "When Dr. Singh used a Samsung device with the modified code, he 'observed the exact same infringing behavior as in the old code.'"
Bottom line: Samsung says it can get around the patent by changing the source code enough to be substantially different from Apple's code. Apple, on the other hand, says Samsung's efforts are simply a matter of trying to hide their infringements.
We'll have to see if this discussion is brought up in December's court battle or if it will become a battle for another day.
Source: Foss Patents