Posted by Greg Mills

The legal conclusions made in various tech writers blogs regarding a patent troll suit over playlists on iPod are faulty. While it is true a judgment went against Apple in the East Texas Federal Court, the likelihood of Apple actually paying 8 million dollars isn’t slam dunk, by any means.

Apple contends that not only did they not violate the 2 patents cited, both patents are invalid anyway. While three other companies who were also sued settled out of court, Apple hung in there and went to trial.

While 8 million dollars isn’t chump change to most of us, Apple can afford to appeal on numerous grounds or to file an appeal, or settle for a lot less than the full judgement. If Apple appeals and gets the patents thrown out, the other three defendants could likely bail out of the settlement agreement already made. That makes the plaintiff eager to settle out of court with Apple rather than risk everything on taking the case to appeal.

The delay alone of Apple filing a Federal appeal is likely to wear the plaintiff down. Suing Apple sounds like a great idea since they have so much cash. I expect they might also have more lawyers than engineers. Apple’s lawyers tend to play hard ball and create an expensive trial or appeal.

Jumping to the conclusion that a judgement from a trial court is the end of it, is not the way attorneys or seasoned litigants with Billions of dollars in the bank might see it. While there is a legal basic presumption that patents and copyrights issued by the US Patent Office are valid, the truth is that a lot of sloppy patents are issued. Patents are valid until they expire or until they are found invalid by a Federal Court. Some judges aren’t really experts on patent matters, but hear those cases anyway. A lot of Federal Court judgements are overturned on appeal, especailly regarding patent fights.

I hold some US patents myself and I found that one of my patents in particular, was issued by the PTO just a few months before an almost identical US patent was mistakenly issued to a Canadian company. The second patent to be filed was clearly invalid. To clear things up they bought rights to my patent out of court. I didn’t even have to sue them.

If Apple just pays when ever they are sued, it will cause a lot more suits to be filed. Even a perfectly valid suit against Apple is hard to press. Apple is Tefflon coated and puts up a heck of a fight when cornered. If I were the plaintiffs in this case, i wouldn't count my $8 million just yet.