The Federal Government Awakens Apple’s Litigation Giant

Peter Roff Contributor
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The standoff between Apple and the federal government over the unlocking of an iPhone that once was in possession of one of the San Bernardino shooters is illustrative. It encapsulates nicely the conflict that exists between the government’s responsibility to keep us safe and an individual’s right to privacy. This dispute may go down in history as the federal government, perhaps unknowingly, attempted to strong-arm one of the most artful and aggressive legal armies our courts have ever beheld.

As this particular battle shaped up, parties on both sides of the argument dug in. Some criticized Apple while others attacked the FBI’s perceived invasion of privacy. Both defended their position like they were preparing to repel an assault on Omaha Beach.

It’s not exactly clear who is right. The rules of engagement are constitutionally fuzzy when the government has a search warrant granting access to something that can only be unlocked by a third party – in this case, Apple. The FBI also asked Apple to disable the encrypted iPhone system that wipes all data following ten incorrect attempts to enter a passcode. Hypothetically such a workaround could be used on every other iPhone with the same software. For many people this did not pass the smell test and seemed like an over-reach.

As long as the resolution does not involve a workaround that gives the government the ability to get into similar iPhones without the consent of the owner and without a warrant, privacy concerns should be satisfied and Apple should comply – and be given full credit for standing tough on behalf of the privacy rights of those who use its products.

Apple displayed its clout, in the courtroom and in the court of public opinion time and again in this case as in others like the recent case in New York City involving a phone belonging to a man who pled guilty to being part of a meth conspiracy. They’re often on the right side but not always. During the so called “smartphone wars” with Samsung, their biggest Android competitor, they haven’t been as pure.

One example is last week’s decision by a Federal Circuit court to overturn $120 million infringement award to Apple arising from a claim Samsung had infringed on its “quick links” patent. This is not good news for Apple but a review of the 2012 case makes it clear the company is not afraid to pull strings within the courts. It worked for them for four years as the case wound its way through the lower courts.

It is perhaps even more impressive that two other patents in the same suit, slide-to-unlock and autocorrect were invalidated by the U.S. Patent and Trade Office. The fact that Apple was able to wage a war with patents deemed obvious and, therefore, invalid is amazing. The fact that they won previously is even more impressive.

In the other two primary cases between competitors, Apple has thus far been successful. That ruling may be reviewed by the Supreme Court (a decision on that is expected next week). In that case, two of the six patents Apple claimed Samsung had infringed have either been deemed invalid or are far along into the process of PTO reexamination and are expected to be deemed invalid. Apple has triumphed to date by successfully keeping the invalidity of the patents, and thus its claims, inadmissible in court. It has also accelerated many standard proceedings by filing as early as it can so that the court rulings and potential awards can be doled out before the PTO has time to deem them invalid. Earlier this year Apple was even successful in winning an injunction over Samsung for a patent which expired in February 2016. Other patents within that claim have never been used in Apple products, but they successfully convinced the court they had suffered “irreparable harm” and successfully won the injunction.

A decision to review the case by Supreme Court next week would suggest that Apple’s slight-of-hand litigation tactics are no longer effective, at least in providing a windfall of awards for weak intellectual property. The merits of these claims, or lack thereof, make it clear that this company knows its way around courts. Regardless of how it ends Apple’s unrelenting dedication to its “holy war” on Android certainly suggests that the FBI may have met its match, and a resolution is unlikely to be reached until every appeal is exhausted and loophole is explored.

Peter Roff is a former political analyst for United Press International who now provides commentary on public policy issues for One America News.