Blackberry Gemini 8520

Blackberry Gemini 8520,In news that has already spread across the Internet like a wildfire, Eastman Kodak Company has sued Apple, Inc., alleging that Apple infringes numerous Kodak patents associated with the iPhone, iPod Touch and various Mac computers. News reports also indicate that Kodak has sued Research in Motion (RIM), maker of the Blackberry. As yet I have not seen a copy of the complaint filed by Kodak against RIM, but courtesy of the Docket Report, the two complaints filed by Kodak against Apple in the United States Federal District Court for the Western District of New York appeared in my inbox this morning. As should be apparent to everyone, the Docket Report is a new advertiser on IPWatchdog.com, so you can take this with a grain of salt if you like, but the truth is the Docket Report is exceptionally detailed and shows up every morning with dozens of patent complaints and district court Orders. If you are trying to keep up with what is going on in the world of patent litigation it is an absolute must, and the best part is you can try it for free for a full month.

Returning to the matter at hand here, there is one thing that must be said immediately about Kodak suing Apple and RIM. Typically when large corporations sue other large corporations there is not all that much interest in taking the matter all the way through litigation to a court ordered disposition. Most times large companies sue each other for posturing purposes and to facilitate getting a better deal at the bargaining table. While there is some evidence to suggest that could be the case, with the presence of Kodak in any patent litigation one must stand up and take notice. Kodak was the defendant in the 15-year patent battle with Polaroid over instant camera technology. Kodak ultimately paid $925 million to Polaroid in 1991, and both Kodak and Polaroid spent several hundreds of millions of dollars in attorneys fees. So make no mistake, Kodak is no stranger to high stakes patent litigation. So pundits and observers can sit back and be thankful for a true heavyweight match of epic proportions could well be on the horizon and could well run for many years to come.

As I looked through the two complaints filed, and wondered exactly why Kodak would file two separate complaints rather than a single complaint, I immediately noticed a stark difference between this lawsuit and those that are started by so-called patent trolls. I am on record as saying I detest the complaining about patent trolls who are seeking to enforce rights they own fairly and squarely, but in many instances true patent trolls file complaints that seem woefully inadequate to me. Patent litigation by ambush shouldn’t be the rule, and it should be stopped. This is particularly true given how easy it is to actually put together a complaint that provides information to the defendant about the claim being brought. These complaints are exceptionally short, and as is typical they are even double spaced in terms of line spacing, but they clearly put Apple on notice with respect to the theories and the claims that are believed to be infringed.

In the first complaint Kodak alleges that Apple is liable for direct infringement, inducing others to infringe and contributory infringement of U.S. Patent No. 6,292,218 and U.S. Patent No. 5,493,335. More specifically, the complaint explains that it is believed that by contracting for the distribution of infringing mobile devices for sale by retail sales outlets, by marketing the infringing mobile devices, by creating and distributing user manuals for the infringing mobile devices, and by supplying warranty coverage Apple infringes Claims 15, 23, 25, 26 and 27 of the ‘218 patent. The complaint further alleges that the importation into the United States of products such as the iPhone 3GS mobile device infringe Claim 1 of the ‘335. This complaint, unlike the second complaint, does not specifically allege Apple was put on notice, but explains that Apple will be put on notice at least no later than when they receive service of the complaint. It is alleged that Apple is believed to have actual knowledge of infringement even before the complaint was filed.

In the second complaint Kodak alleges again that Apple is liable for direct infringement, inducing others to infringe and contributory infringement, this time with respect to U.S. Patent No. 5,226,161, U.S. Patent No. 5,421,012, and U.S. Patent No. 5,303,379. More specifically, The complaint alleges that Apple has infringed and continues to infringe the ‘161 patent, by using, selling and/or offering to sell, within the United States, and/or by importing into the United States, products, including, but not limited to, the Mac mini, iMac, Mac Pro, Xserve Nehalem, MacBook, iMac, iPhone 3GS, and iPod Touch, which embody and/or practice Claim 1 of the ‘161 patent. The complaint further alleges that Apple has infringed and continues to infringe the ‘012 patent, by using, selling and/or offering to sell, within the United States, and/or by importing into the United States, products, including, but not limited to, the Mac mini, iMac, Mac Pro, Xserve Nehalem, MacBook, iMac, iPhone 3GS, and iPod Touch, which embody and/or practice Claim 1 of the ‘012 patent. Finally, the complaint asserts that Apple has infringed and continues to infringe the ‘379 patent, by using, selling and/or offering to sell, within the United States, and/or by importing into the United States, products, including, but not limited to, the Mac mini, iMac, Mac Pro, Xserve Nehalem, MacBook, iMac, iPhone 3GS, and iPod Touch, which embody and/or practice Claim 1 of the ‘379 patent.

With respect to the second complaint, Kodak alleges that Apple was put on notice of the infringement of the ‘161 patent, the ‘012 patent and the ‘379 patent through a series of communications and meetings between Kodak and Apple beginning at least as early as November, 2007. The second complaint suggests that it is believed that Apple knew of the infringement earlier than November 2007. Perhaps this is why the complaints were separated, I am not sure. There must be a reason why they were separated because it seems all but certain the cases will be consolidated for trial. In any event, the fact that Kodak and Apple have been talking about these patents for over 2 years suggests that these litigations have more to do with posturing than anything else. Still, as pointed out above, making the assumption that Kodak is not willing to go to the mattresses if necessary would seem to be fool-hardy, at least if you ask me.

Insofar as the relief sought by Kodak, it is pretty standard. They do not announce a dollar figure, although if there is infringement found you can bet the dollar figure would be attention grabbing. Kodak does ask for both preliminary and permanent injunctive relief, compensatory damages, enhanced damages because they believe the infringement was willful and, of course, they want their costs and fees, including attorneys fees, which can be recovered in extraordinary cases where there is egregious infringement or litigation misconduct. Recovering attorneys fees in patent litigation is not easy, but possible, and if Kodak is going to the mattresses attorneys fees could quickly blow through 7 figures and into the 8 figure range, and that is just getting started!

Look for much more interesting news to break, and expect either a quick settlement, which I suspect is unlikely, or the mother of all preliminary injunction hearings, which as a commentator I am hoping for!