June 14, 2006 4:44 AM PDT

ITC to investigate Apple, says Creative

The U.S. International Trade Commission plans to launch an investigation into Apple Computer's popular iPod digital music player for possible patent infringement, Creative Technology said Wednesday.

The ITC is an independent federal agency that reviews patent disputes for possible infringement and unfair trade practices. The commission's decision to review the matter follows two lawsuits filed last month by Singapore-based Creative and its U.S. subsidiary, Creative Labs.

Creative, maker of the rival Zen portable digital media player, alleges that Apple's iPod infringed on its user interface patent for its Zen and Nomad digital media players.

Creative alleges that Apple's iPod, iPod Nano and iPod Mini infringe on Creative's patents and is seeking a permanent cease-and-desist order.

The commission will refer the matter to an administrative law judge, who will make an initial determination about whether a violation occurred. The ITC will then review that decision. Typically, the agency issues a ruling 12 to 15 months after an investigation is instituted.

Apple was not immediately available for comment.

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29 comments

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This should be interesting
It'll be interesting to see if Creative can win this case.
<a class="jive-link-external" href="http://www.techknowcafe.com/content/view/519/42/" target="_newWindow">http://www.techknowcafe.com/content/view/519/42/</a>
Posted by (156 comments )
Reply Link Flag
imagine if...
imagine if Creative wins the case and Apple is ordered to stop selling iPods or pay royalty for each iPod sold in future. Either of these scenarios will tilt the market.

There are so many awsome 'alternatives' out there. Check out Creative Zen Vision: M or Toshiba Gigabeat, both of which by the way have won Cnet Editor's Choice award. It's just that people are not as aware of these products as they are aware of iPod. So, if Creative wins the case, they will get ample opportunity to become the market leader.
Posted by ggupta7 (137 comments )
Link Flag
over it
I own a Creative MP3 player and have vehemently defended myself against the "omg, why do you have THAT instead of an iPod?" people, but I am so over this...
Posted by darrius3365 (98 comments )
Reply Link Flag
HA
considering the Ipod was first and the navigations hasn't changed since the first ipod (i own a mini and 1g ipod) i don't think this has anything to it.

This also seems like sour grapes. We can't beat them in the market, let's try a different business strategy. If i were faced with extinction i would try it too.
Posted by ITrogue (23 comments )
Reply Link Flag
SoundBlasters
Creative makes SoundBlaster cards, they should've stuck to that
instead of licensing the emulator to everybody, who just
circumvented it in most modern PCs now.

That's the root of their problem. Like Adlib, Pro Audio, and a few
other sound companies for PCs, they've had their chance. Geez,
they could do what HP did and license the iPod APIs for use in
their own players . . . no, that'd make sense.

Also, Creative is based in oppressive Singapore (where the cain
you for crimes and put a camera in very house to enforce you to
take care of your parents), so this doesn't surprise me that
they're sour market losers.

And for you people standing up for Creative's players . . . why
did you board the Titanic after is struck the iceberg?

Programmer #A-5 of www.totallyparanoia.com
Posted by fakespam (239 comments )
Link Flag
re: HA
"considering the Ipod was first"

Absolutely, flatly false. The iPod was not the first mp3 player to market.
Posted by NickEP (11 comments )
Link Flag
First?
Many of us were enyoying our Creative portable hard disk MP3 players *YEARS* before Apple even started thinking about the iPod.

Not only was the iPod not first, it wasn't even *CLOSE* to first.
Posted by KTLA_knew (385 comments )
Link Flag
Incoming
I reckon you're about to receive a roasting from every Apple whacko out there just for writing this article, however it should provide some amusing moments watching them froth at the mouth as they defend golden balls (Jobs) with inane conspiracy theories that have kept a decent but overpriced computer and OS in mediocracy for the last few decades.
Posted by ajbright (447 comments )
Reply Link Flag
Thanks For The Feedback
And a happy day to you sir.
Posted by Mystigo (183 comments )
Link Flag
comparing the interface...
I found the User Guides of Creative Nomad Jukebox which was released in early 2000 and 1st Generation iPod which was released in Oct 2001 almost one and a half year after Creative.

This is Creative's manual:

<a class="jive-link-external" href="http://media-server.amazon.com/exec/drm/digital/moleproxy.cgi?name=Q3JlYXRpdmUgTGFicyBDcmVhdGl2ZSBMYWJzIE5vbWFkIEp1a2Vib3ggQmx1ZSBNYW51YWw=&#38;file=TUFOVUFMMDAwMDIxMDY3LnBkZg==" target="_newWindow">http://media-server.amazon.com/exec/drm/digital/moleproxy.cgi?name=Q3JlYXRpdmUgTGFicyBDcmVhdGl2ZSBMYWJzIE5vbWFkIEp1a2Vib3ggQmx1ZSBNYW51YWw=&#38;file=TUFOVUFMMDAwMDIxMDY3LnBkZg==</a>

Read page 23 of 53 of this PDF file


This is Apple's manual:

<a class="jive-link-external" href="http://media-server.amazon.com/exec/drm/digital/moleproxy.cgi?name=QXBwbGUgNSBHQiBpUG9kIE1QMyBQbGF5ZXJIYXJkIERyaXZlIGZvciBNYWNpbnRvc2ggTWFudWFs&#38;file=TUFOVUFMMDAwMDE2MDE0LnBkZg==" target="_newWindow">http://media-server.amazon.com/exec/drm/digital/moleproxy.cgi?name=QXBwbGUgNSBHQiBpUG9kIE1QMyBQbGF5ZXJIYXJkIERyaXZlIGZvciBNYWNpbnRvc2ggTWFudWFs&#38;file=TUFOVUFMMDAwMDE2MDE0LnBkZg==</a>

Read page 7 of 44

See the similarity?? It's amazing how brilliantly Apple has copied the interface and made billions out of it. Shame on them!
Posted by ggupta7 (137 comments )
Reply Link Flag
It's Not the Filing Date, It's the Documented Date of the Work ...
that determines whether a patent can be awarded. Having actually authored, been awarded, and successfully defended patents, I know a little bit about how the process actually works. You don't file for a patent the day you think up an idea, first you have to write down precisely what it is that you _might_ be able to patent at a (sometimes _much_) later date. You can't patent an idea, you can only patent "any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof", according to U.S. patent law. The law further stipulates that "A complete description of the actual machine or other subject matter for which a patent is sought is required." However, that description can be done well before the patent is applied for, and a common means of proving this is to send documentation of the description to yourself in double-sealed envelopes via U.S. Certified Mail, witnessed by an impartial third party (a government official or notary public, for instance). Now, here's the really interesting part - you are free to modify and expand the description over time, not only up to the time of the initial filing of the patent, but often years afterward, as long as it's before the patent is either awarded or denied to the applicant. It's entirely possible that someone at Apple, and even more likely, the guy whom Apple reportedly contracted with and later hired to work on the iPod, has this kind of documentation of what is essentially prior art (which itself may, or may not, be described in a patent - it can be a matter of public knowledge, which is usually quite easy to prove, especially if there was any publication of the description of the prior art in any medium - books and periodicals, video, film, audio recorded interviews, etc.).

I had worked at a previous company with the guy who later did the original software for the first Creative 6 GB hard disk player, and I saw the first prototype around the early Fall of 1999. It was a really rough prototype, and although the plastic case was essentially complete, the software was really pretty awful. To compare even the finished version to that of the first iPod is a joke and a half. It would be amazing that it could be patented at all, except that the way the U.S. Patent and Trademark Office works (intentionally or not) is that the examiners are lawyers first, and if you're lucky, they've taken some math and science courses (there are a few who also actually have science or engineering degrees, but they are rare). They usually know little, if anything, about the technology they're examining, and I suppose someone could make the argument that it makes them objective, but in reality it just makes them stupid (or worse, given what we've seen awarded recently). Unless prior art jumps out at them during their research that would invalidate the claims in the patent, they not only will award the patent (after an average review of about four years, as of today), but they are, by law, required to assist the applicant in making the patent as defensible as possible! This sounds like a conflict of interest, but the system's primary goal is to foster innovation and development of new technologies, and patent protection is the key means of doing so. Now, you're free to also employ your own patent attorney(s) to aid in the preparation of the patent application (and you'd be a fool not to, if you can afford it - but we're talking $50,000 for starters, so individuals usually can't foot that kind of bill). Oh, and guess where private patent law firm attorneys come from - they're all former USPTO patent examiners who have been through the complete four-year lifecycle of at least a few patent applications and awards. They start to make up for the lost time and money (E may equal mc^2, but Time definitely equals at least Money :) ) when they were lowly government employees, as they are on-the-clock at a big-bucks law firm, at that point.

Anyway, getting a patent awarded is a piece of cake compared to defending it. My edumacated guess is that Apple and its lawyers are going to whittle down the claims on the Creative patent one-by-one (they are, by law, listed from the most specific, to the most general, and any decent patent will claim the Sun, the Moon, and the Stars - but get reduced to some smaller scope - and often down to nothing, if the opposing lawyers are any good). Since there is no real difference between a menu listing music files or any other kinds of files, that will be their first line of attack (they're all just lists of characters, and that can't be patented, based on decades of prior art). It will be a cinch to show that this kind of organization of data has been going on pretty much ever since the first data structure beyond an array was used back in the 1940s. Plus, the organization of file metadata into genres, artists, albums, etc., is completely irrelevant, as it can be mathematically shown that there are are many more ways to organize the data as there is the amount of data, many of which are different, but equivalent (this is a very common mistake made by those who are programmers, and not computer scientists).

In any case, this may come down to a war of attrition, where the one with the larger throw weight in terms of money for the best lawyers will win, and I think most of us can correctly guess which side that will be. I would look for Creative to, at best, walk away with a cross-licensing agreement that will allow both companies to continue at their respective market share increases/decreases. At worst case, Creative will dry up and blow away before a trial gets anywhere near a decision, having exhausted its relatively meager finances (compared with Apple's) on very expensive lawyers' fees. That's not a very good return on its investors' money, in either case, and the PR bump, if any, will bare be noticed in the brilliant glare of Apple's iPod marketing campaign. If success in technology were solely about technically superior products and services, and Boolean logic, the giants of the industry might be different. However, it takes a lot more than just shrimp to make gumbo, as they say in New Orleans. It will be interesting, if not educational, to see how this case turns out, but mostly for us - companies never seem to learn.

All the Best,
Joe Blow
Posted by Joe Blow (175 comments )
Reply Link Flag
Indeed, how dare Steve Jobs change his mind..!
The argument comes down to the interpretation of "possible association" and the right to pursue a better mousetrap after having seen a good mousetrap.

It looks very bad for creative, but, perhaps not as bad as it could be with Creative and its shareholders.
Your point and claim is to show Apple and Steve Jobs as evil-doers, backstabbers, and thieves.

All you have done is show us Creative stockholders that we are backing a corporate entity that had an enormous lead and could not keep it!!
They did NOT show Apple something so compelling that:
1) Apple just could not do without.
2) Could defeat ANY competitor johnny-come-lately, who made even, and ONLY, modest improvements to Zen or anything else Creative had.

Essentially creative wants the courts to do what they could not, and, exercising 20/20 hindsight, label a possible partnership deal and the warnings and statements of Jobs as indications of 'evil' intent AFTER THE IPOD HAS BECOME A RIP-SNORTING SUCCESS!!!!!
Oh gee, no judge, even a bribed one, could see this,...all this paper you have referenced, merely tells me to go get my lawyer and hammer the heck out of corporate Creative for poor judgement, DUI,Jay Walking, lack of vision, and attempting to leap to its death while holding on to my money!!!

Nuff said!!
Posted by ferrox (3 comments )
Reply Link Flag
Please.
If Creative in another reality had some merit to this patent.

Apple can simply argue that they were going way beyond the
original interface created by Creative. They can also argue that
Creative is holding back innovation which stems from the so
called "Zen Patent".

Much like the "look and feel" case against Microsoft decades
ago. Which Microsoft won and because of it we have the
dominant operating system known as Windows today which was
based on Apple's Mac OS whoever denies this is just an idiot.

Any whoo.. case in point, they can argue the same case against
Creative. The only thing is, this is Patent that was granted. How
their going to put a spin on this, will just have to wait and see.
But no doubt Apple should be the one to prevail. If there is God
Apple should win. Cause the simply worked hard on the Ipod
and of course the marketing blitz you see in every bus stop and
subway station. Thats alot of work for a company that was
barely alive six years ago to stop them now would be to stifle
innovation. Its just wrong!!

But honestly whoever granted this patent to Creative is definitely
going to be sopenad and drilled on the stands. Because in the
end this court case could simply be a person's bias towards
another company. Who knows??? Right??
Posted by ServedUp (413 comments )
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