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Op-Ed

Beyond the Rhetoric: Apple’s Unreasonable Patent Claim

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Harry Alford

By Harry C. Alford
NNPA Columnist

 
In December, the U.S. Court of Appeals for the Federal Circuit heard arguments in the long- running patent war between Apple Inc. and Samsung Electronics Co. Ltd. over claims that the South Korean tech firm infringed upon Apple’s design patents. While that case has been broadly discussed, there is another case with the same parties that has garnered less attention but could have severe consequences. This time, Apple is claiming loss of market share and injury to its “reputation for innovation” – all because of Samsung’s alleged infringements.

For consumers, and particularly minorities, this case raises important questions of business competition, innovation, and social justice. That’s why the National Black Chamber of Commerce (NBCC) recently filed a brief in support of Samsung’s position. Patents serve a very useful purpose for protecting companies that innovate and invest in new technologies and products. But care should be taken to prevent a company from using its self-proclaimed “reputation for innovation” to “leverage” its patents for competitive gain far beyond what the intrinsic value of the patent warrants.

The dispute at hand concerns three utility patents held by Apple: 1) recognizing certain patterns in data such as phone numbers and email addresses and linking them to actions such as touch to dial; 2) “slide-to-unlock” to prevent accidental activation; and 3) automatically correcting spelling errors on the touchscreen. The courts awarded Apple $119 million plus supplemental damages for any future violations, and Apple sought a permanent injunction to bar Samsung entirely from using features of Samsung’s products found to infringe.

Injunction claims, as Apple is asserting, have traditionally been applied where reputational harm was caused by consumer confusion over a product. Apple claims that it will suffer irreparable harm if its patented features are included in the “products of a less prestigious competitor” – a reason in itself for skepticism of the accusing brand’s intentions. NBCC thinks it is fair to state that consumers rarely, if ever, confuse Samsung and Apple devices, and would certainly not mistake them based on the three features in question.

That leads us to the court stating that in order to “satisfy the irreparable harm factor in a patent infringement suit,” a patentee must establish a strong causal nexus between the irreparable harm and alleged infringement. The lower court rightfully rejected Apple’s argument that the mere potential for harm to its “reputation as an innovator” does not justify injunction against Samsung.

The causal nexus requirement should not be relaxed or much less abandoned simply because the patentee wishes to enjoin alleged infringing features rather than the entire products. In Apple’s case, there is no sufficient proof that the company’s reputation is being harmed because of Samsung’s alleged infringement on the particular patents in question. If the features are as minor as to not even drive demand for the products at issue, then there is absolutely no reason to suggest that these isolated features are so powerful as to harm Apple’s very reputation as an institution.

If Apple gets its way, industry leaders claiming the need to protect their own reputations would be able to force less-established competitors out of the market. This is particularly impactful to small and minority-owned businesses that already have lesser influence in the marketplace. The harm, if any, that high profile companies like Apple are suffering is from their competitors’ legitimate, non-infringing competition or outside sources all together.

Apple’s patents are meant to serve as only a small part of its own complex, multi-feature devices. When Samsung and other developers build products to compete, their devices will inevitably have many similarities. It is reasonably expected that new ideas are built upon existing frameworks. The addition of a few alleged infringements on a feature will not drive consumer’s assumptions about the innovativeness of the companies whose products they buy, and are therefore unlikely to lead to catastrophically harmful effects on a patentee’s reputation. But these types of injunction claims can cause damage to companies, especially smaller ones without a global reputation and capital to support lengthy legal disputes.

Many of the Black-owned businesses NBCC represents own patents, and many compete for business against others that own patents. Blacks today own only 5.5 percent of all American businesses and an even smaller – 4 percent – of high-tech businesses.

Black-owned businesses therefore rely on open competition in the technology sector, including the ability to at least compete on a level playing field with their more-established, better funded, patent-wielding rivals, in order to overcome these historic disparities.

The National Black Chamber of Commerce is concerned that industry leaders like Apple will misuse their patents, and their claims of needing to protect their reputations for “innovation,” to prohibit legitimate competition from less-established minority owned businesses. That’s bad not only for minority inclusion and our communities, but American business competitiveness overall.

 
Harry C. Alford is the co-founder, President/CEO of the National Black Chamber of Commerce. Website: www.nationalbcc.org Email: halford@nationalbcc.org.

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Commentary

California Respects the Power of Your Vote

As California Secretary of State, I do not take the progress we have made over the years lightly. My staff and I hold sacred the obligation to ensure that our elections are safe, free, fair, and accessible to all. Therefore, before certifying the results for this year’s election on Dec. 13, we have taken a number of steps to ensure that every vote is counted. We have also made sure that our ballot counting process is credible and free from interference.  

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Shirley N. Weber, Ph.D., California Secretary of State. Courtesy of California Secretary of State Office.
Shirley N. Weber, Ph.D., California Secretary of State. Courtesy of California Secretary of State Office.

By Shirley N. Weber, Ph.D.,
California Secretary of State

Californians can confidently claim this: California has made more significant reforms to our election laws and expanded voting rights than any other state.

The relevance of this accomplishment deepens as we prepare to celebrate the 60th anniversary of the Voting Rights Act next year. This landmark legislation began to undo our country’s long history of voter suppression, intimidation, and disenfranchisement that far too many Americans experienced at the polls for decades.

My own parents, who were sharecroppers, were denied their right to vote in the Jim Crow era South. Before moving to Los Angeles from Hope, Arkansas, my parents, David and Mildred Nash, could not vote. My father was an adult with six children before he registered to vote and was only able to exercise that constitutional right for the first time here in California.

As California Secretary of State, I do not take the progress we have made over the years lightly. My staff and I hold sacred the obligation to ensure that our elections are safe, free, fair, and accessible to all.

Therefore, before certifying the results for this year’s election on Dec. 13, we have taken a number of steps to ensure that every vote is counted. We have also made sure that our ballot counting process is credible and free from interference.

To meet that deadline without a hitch, California requires elections officials in all 58 counties to turn in their official results by a certain date. This year, that date was Dec. 6.

By law, every eligible voter in our state receives a vote-by-mail ballot. This ensures all registered voters can exercise their right to vote.

Whether you placed your ballot in a designated drop-off box, voted by mail, or cast your ballot at a polling center, votes are safe and secure. And we allow voters to sign up to receive text message, email, or voice call notifications about the status of their own ballots by using the Where’s My Ballot? tool. To learn more or to sign up, paste this URL in your web browser: https://california.ballottrax.net/voter/

The ballots of Californians who voted by mail are also protected. The United States Postal Service partners with the State to make sure ballots are delivered on time. All mailed-in ballots are sent by First Class mail with a postage paid envelope provided to every eligible registered voter.

Election Security is our No. 1 priority. That’s why my office designed and implemented a program to back up that commitment.  For more information, visit this URL: https://www.sos.ca.gov/elections/election-cybersecurity

Additionally, California takes preventive actions to make sure our voting technology keeps our elections safe and protects everyone’s votes.

For example, county voting systems are not connected to the internet, which protects them from cyberthreats. The State also performs regular and rigorous testing to make sure the voting systems are working optimally, and only authorized personnel are granted access.

Staff members are also given phishing and cybersecurity training.

VoteCal, the state’s centralized voter registration system, is also key. The system is regularly updated, and it is used as a resource for counties to verify voter signatures.

California also provides security at all counting locations and makes sure ballot drop-off boxes are secured and monitored.

And all election processes are open to observation during specified hours.

In my role as Secretary of State of California, there is nothing more important to me than defending our democracy.

I am committed to safeguarding voting rights, and to leading our state in upholding the highest democratic standards by implementing policies and practices that Californians and all Americans can trust and look to for instruction and hope.

You can contact the California Office of the Secretary of State at 1-800-345-Vote or elections@sos.ca.gov with inquiries or to report suspected incidents or irregularities. Additional information can be found at www.sos.ca.gov and the office’s social media platforms: 

Instagram: @californiasos_
Facebook: Facebook.com/CaliforniaSOS
X: @CASOSVote

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Activism

COMMENTARY: PEN Oakland Entices: When the News is Bad, Try Poetry

Strongman politics is not for the weak. Here in the U.S., Donald Trump is testing how strongman politics could work in the world’s model democracy.

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iStockphoto.
iStockphoto.

By Emil Guillermo

As the world falls apart, you need more poetry in your life.

I was convinced on Tuesday when a weak and unpopular president of South Korea — a free nation U.S. ally — tried to save himself by declaring martial law.

Was it a stunt? Maybe. But indicative of the South Korean president’s weakness, almost immediately, the parliament there voted down his declaration.

The takeaway: in politics, nothing quite works like it used to.

Strongman politics is not for the weak. Here in the U.S., Donald Trump is testing how strongman politics could work in the world’s model democracy.

Right now, we need more than a prayer.

NEWS ANTIDOTE? LITERATURE

As we prepare for another Trump administration, my advice: Take a deep breath, and read more poetry, essays and novels.

From “Poetry, Essays and Novels,” the acronym PEN is derived.

Which ones to read?

Register (tickets are limited) to join Tennessee Reed and myself as we host PEN OAKLAND’s award ceremony this Saturday on Zoom, in association with the Oakland Public Library.

Find out about what’s worth a read from local artists and writers like Cheryl Fabio, Jack Foley, Maw Shein Win, and Lucille Lang Day.

Hear from award winning writers like Henry Threadgill, Brent Hayes Edwards and Airea D. Matthews.

PEN Oakland is the local branch of the national PEN. Co-founded by the renowned Oakland writer, playwright, poet and novelist Ishmael Reed, Oakland PEN is special because it is a leader in fighting to include multicultural voices.

Reed is still writing. So is his wife Carla Blank, whose title essay in the new book, “A  Jew in  Ramallah, And Other Essays, (Baraka Books), provides an artist’s perspective on the conflict in Gaza.

Of all Reed’s work, it’s his poetry that I’ve found the most musical and inspiring.

It’s made me start writing and enjoying poetry more intentionally. This year, I was named poet laureate of my small San Joaquin rural town.

Now as a member of Oakland PEN, I can say, yes, I have written poetry and essays, but not a novel. One man shows I’ve written, so I have my own sub-group. My acronym: Oakland PEOMS.

Reed’s most recent book of poetry, “Why the Black Hole Sings the Blues, Poems 2007-2020” is one of my favorites. One poem especially captures the emerging xenophobia of the day. I offer you the first stanza of “The Banishment.”

We don’t want you here
Your crops grow better than ours
We don’t want you here
You’re not one of our kind
We’ll drive you out
As thou you were never here
Your names, family, and history
We’ll make them all disappear.

There’s more. But that stanza captures the anxiety many of us feel from the threat of mass deportations. The poem was written more than four years ago during the first Trump administration.

We’ve lived through all this before. And survived.

The news sometimes lulls us into acquiescence, but poetry strikes at the heart and forces us to see and feel more clearly.

About the Author

Emil Guillermo is a journalist and commentator. Join him at www.patreon.com/emilamok

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Bay Area

In the City Attorney Race, Ryan Richardson Is Better for Oakland

It’s been two years since negotiations broke down between the City of Oakland and a developer who wants to build a coal terminal here, and the issue has reappeared, quietly, in the upcoming race for Oakland City attorney. Two candidates are running for the position of Oakland City Attorney in November: current Assistant Chief City Attorney Ryan Richardson and retired judge Brenda Harbin-Forte.

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Members of Oaklanders Defending Democracy political action committee with Oakland Mayor Sheng Thao, center. Courtesy photo.
Members of Oaklanders Defending Democracy political action committee with Oakland Mayor Sheng Thao, center. Courtesy photo.

By Margaret Rossoff

Special to The Post

OPINION

It’s been two years since negotiations broke down between the City of Oakland and a developer who wants to build a coal terminal here, and the issue has reappeared, quietly, in the upcoming race for Oakland City attorney.

Two candidates are running for the position of Oakland City Attorney in November: current Assistant Chief City Attorney Ryan Richardson and retired judge Brenda Harbin-Forte.

Richardson has worked in the Office of the City Attorney since 2014 and is likely to continue current City Attorney Barbara Parker’s policies managing the department. He has committed not to accept campaign contributions from developers who want to store and handle coal at a proposed marine terminal in Oakland.

Retired Judge Harbin-Forte launched and has played a leading role in the campaign to recall Mayor Sheng Thao, which is also on the November ballot.  She has stepped back from the recall campaign to focus on her candidacy. The East Bay Times noted, “Harbin-Forte’s decision to lead the recall campaign against a potential future client is … troubling — and is likely to undermine her ability, if she were to win, to work effectively.”

Harbin-Forte has refused to rule out accepting campaign support from coal terminal interests or their agents. Coal terminal lobbyist Greg McConnell’s Independent Expenditure Committee “SOS Oakland” is backing her campaign.

In the 2022 mayor’s race, parties hoping to build a coal terminal made $600,000 in contributions to another of McConnell’s Independent Expenditure Committees.

In a recent interview, Harbin-Forte said she is open to “listening to both sides” and will be “fair.” However, the City Attorney’s job is not to judge fairly between the City and its legal opponents – it is to represent the City against its opponents.

She thought that the 2022 settlement negotiations ended because the City “rejected a ‘no coal’ settlement.” This is lobbyist McConnell’s narrative, in contrast to the report by City Attorney Barbara Parker. Parker has explained that the City continued to negotiate in good faith for a settlement with no “loopholes” that could have allowed coal to ship through Oakland – until would-be coal developer Phil Tagami broke off negotiations.

One of Harbin-Forte’s main priorities, listed on her website, is “reducing reliance on outside law firms,” and instead use the lawyers working in the City Attorney’s office.

However, sometimes this office doesn’t have the extensive expertise available that outside firms can provide in major litigation. In the ongoing, high stakes coal litigation, the City has benefited from collaborating with experienced, specialized attorneys who could take on the nationally prominent firms representing the City’s opponents.

The City will continue to need this expertise as it pursues an appeal of the judge’s decision that restored the developer’s lease and defends against a billion-dollar lawsuit brought by the hedge fund operator who holds the sublease on the property.

Harbin-Forte’s unwillingness to refuse campaign contributions from coal terminal interests, her opposition to using outside resources when needed, as well as her uncritical repetition of coal lobbyist McConnell’s claim that the City sabotaged the settlement talks of 2022 all raise serious concerns about how well she would represent the best interests of Oakland and Oaklanders if she is elected City Attorney.

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