Author: Andrea Monti

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Apple’s idea’s patenting pitch finding its way

Apple’s (wrong) idea of giving ideas a “patentable” status keeps finding its way into the media’s mind. Whether this is a direct consequence or a side effect of a spin doctor’s devised strategy, doesn’t change the fact the the more and more journalists fell into this trap.

The latest example is a Vanity Fair column that accounts for the Samsung vs Apple patent trial. At a certain point the columnist writes:

Bit by bit, the new model for a Samsung smartphone began to look-and function-just like the iPhone. Icons on the home screen had similarly rounded corners, size, and false depth created by a reflective shine across the image. The icon for the phone function went from being a drawing of a keypad to a virtually identical reproduction of the iPhone’s image of a handset. The bezel with the rounded corners, the glass spreading out across the entire face of the phone, the home button at the bottom-all of it almost the same.

While, from a patent infringement’s perspective, the similarities of the physical appearance between the devices have some merit, the fact that both phones shared similar or even the same functionality has none. You can’t protect a software functionality as such, because only the relevant source code can: this is clear for legal scholars, not so for the outsider of the legal community.

But this lack of knowledge helps planting into the people’s mind the seed of the “give-idea-a-patent tree”. Once grown into politician’s mind (notoriously not so versed in the legal subtleties), this tree will likely offspring a poisoned fruit in the form of some new (case) law that will finally give Apple what it aggressively looks for: power over thought.

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Data Protection and Right of Defense. Stating the Obvious

Yet more evidence that Data Protection is not an absolute right. On the contrary, as the Italian Supreme Court decision n. 7783/14 said 1 a few days ago:

the interest to the protection of personal data must step back when confronted by true defense needs and other legally relevant interests, such as the fair and coherent enforcement of the right of defense in court.

  1. Unofficial Translation ↩
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Apple’s disturbing notion of “intellectual property”

According to MacRumors, Apple commented the favourable trial verdict in the case against Samsung by stating:

We are grateful to the jury and the court for their service,” Apple told Re/code. “Today’s ruling reinforces what courts around the world have already found: that Samsung willfully stole our ideas and copied our products. We are fighting to defend the hard work that goes into beloved products like the iPhone, which our employees devote their lives to designing and delivering for our customers.

This statement is the latest iteration of a disturbing notion of intellectual property that Apple is pushing since the days of the notorious “trashcan trial“: ideas can and must by “owned” by somebody.

Neither patent law nor copyright law say so. On the contrary they clearly state that ideas as such cannot be legally protected. Nevertheless, by planting the “our ideas have been stolen” meme Apple is trying hard to make courts stretch the letter of the law until it can be enforced to ideas as such.

I am astonished by the inertia of the rest of the ICT companies (at least those companies who relies on Open Source components to design its products) in connection with this issue. True, there are more actual and urgent matters to deal with, but on the long term when Apple will finally succeed in having a court stating that ideas as such can be “own”, then it will be too late to complain.

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The Italian Data Protection Authority and the Bad Payers

The Italian Data Protection Authority public hearing about the upcoming credit-scoring database regulation is ending soon and will likely endanger the possibility for a company to protect its right of not being defrauded by unfaithful clients.

This is because the DPA keeps pushing the (wrong) notion that data-protection=privacy=absolute right. This is a logical and legal fallacy because the ? concerned EU directives include privacy among the other fundamental rights to be protected while processing personal data.

This means that data-protection as such has not a higher status than the right of defense or the right to freedom of entrepreneurship (both granted by the Italian Constitution). But the upcoming regulation will likely to ignore this (elementary) fact.

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Statute of limitation and Data Retention Corporate Policies

There is a common opinion that personal data should be deleted almost immediately and, anyway, as soon as they become useless: a sensitive problem in particular under the (now defunct) Data Retention Directive, once the mandatory retention period expired.

This position is not correct since a company has a legitimate motive – and a legal obligation – to preserve whatever information, including personal data, that are necessary to abide the law and to protect both its right of defense and the right to a due process. This means that under the term set forth by the Statute of limitation a company might, at its own will, choose to continue retaining personal data of its customer base.

In Italy, the ordinary Statute of limitation is ten years. So companies can be sued by customers and tax authorities for alleged charges that go way back into the past. This is what happened in a court case tried in front of the Justice of peace of Grosseto (Tuscany) that on January 2014 ruled a quarrel started in 2011 between a telecom company and a client. The ruling said that, under the rule of evidence for civil trials, the telecom company has the duty to provide evidence of having actually delivered its services and that this duty is fulfilled by showing the traffic-data log.

It is clear that by interpreting the Italian Data Protection Act in a way that forces the deletion of the traffic data after a few months, an ISP or a telecom operator wouldn’t be able to defend itself if the trial starts within the Statute of limitation term but after the traffic data have been deleted.

A similar situation might happens in the antitrust field and in case of investigations run by the Italian Internal Revenue Service, so the conclusion is that the Data Protection Legal Framework cannot be interpreted in such a strict manner to endanger the legitimate rights of a company.