Prediction three: Whether Apple Peel 520 infringes on the patent right of Apple Inc.
Under the Doctrine of Exhaustion, the patent is exhausted after the first sale of the patented product made by patentee or under authorization of patentee. A person having lawfully acquired the patented product may use, sell, or offer for sale the same product, without interfering the patentee’s right. Mr. Wang Zhiyong, a lawyer with Kangxin Partners, P.C., explained, once a specific iPod Touch is sold, no matter how it would be physically altered or fixed with other collateral products, it would not be considered as infringing upon the iPod Touch patents. To find for infringement, the subject matter of the “Apple Peel” and iPod Touch combination must comprise all the limitations in the iPhone patent claims. Only in this way, the iPhone patent can be said read on the combination, hence the patent infringement. Wha t could be most likely involving the Apple Peel 520 is the design patent, according to Yuan Zhenfu. “However, the Apple Peel 520 itself is very different from iPod Touch or iPhone. What may be somewhat similar is the combination when an iPod Touch is inserted into the Apple Peel 520, and the similarity comes more from the iPod Touch itself than the Peel. Although Apple Inc. owns the design patent of iPhone, Apple Peel 520 would not face the danger of infringing the design patent. However, if the communication module directly imitates or copies that of iPhone, it might be within the patent protection scope of Apple Inc.” Both comments above share the same view that the infringement issues hinge upon a thorough element-by-element comparison. Currently, there is not specific technical subject matter of the Apple Peel 520 available, and many issues are just speculations. Everything will settle when a real controversy is brought to trial.
Prediction four: Whether the Apple Peel 520 would infringe the copyright of Apple Inc.
On July 26, 2010, the U.S. Copyright Office under the Library of Congress announced a new exception to the Digital Millennium Copyright Act for mobile phone unlocking, smartphone jail breaking, and using video clips in transformational work and noncommercial work: The users have the right to crack smart phones such as iPhone to change carrier or install third party software. Then, would the jail breaking of iPod Touch have the same luck? Yuan Zhenfu explained, the Regulation for Computer Software Protection in China bans deliberately evading or destroying the technical measures used by the copyright owner for protecting the software copyright it holds, but it is noteworthy that if the aim of evading or destroying the technical measures is not obstructing the copyright owner from protecting its copyright, the obstructing and destroying is permitted according specific situations. Therefore, if Apple Peel 520 evades or even destroys the technical measure just by installing the software which could exchange data or realize communication function, then, there should be no legal obstacles for the unlocking. However, if the software installed in Apple Peel 520 belongs to Apple Inc. or the mobile phone software system of a third party, the software itself constitutes infringement. In addition, when Apple Peel 520 installing software, if it is needed to modify the software inside iPod, according to Article 8 of Regulation for Computer Software Protection, as the software copyright owner, Apple Inc. enjoys the modification right, namely, the right to amend, delete, and change command, program statement order of the software. Tang Xiyou contemplated that developing related peripherals by cracking software not through the nature of usage directly doesn’t constitute a clear violation of the Copyright Law and the Regulation for Computer Software Protection; moreover, it could help promote scientific and technological progress, which is at least not in the scope of prohibition.
Prediction five: Whether Apple Peel 520 constitutes unfair competition
Yuan Zhenfu considers that the Apple Peel 520 is very easy to be involved in the dispute of unfair competition because Apple Peel 520 updates the iPod to an iPhone which could affect iPhone’s market share. Strictly speaking, the competitive product of the Apple Peel 520 is iPhone. The Apple Peel 520 ties up the iPod from Apple Inc., and competes with iPone produced by Apple Inc., which would arouse the suspicion of unfair competition, especially if Yosion Technology takes changing iPod into iPhone as a promotional slogan. However, the Anti-Unfair Competition Law doesn’t provide clear provisions for such behavior, only the “good faith principle” in Article 2 of it could be suitable for use. We should use the legal weapon of unfair competition cautiously especially when people do not directly use other’s intellectual property or take other actions to directly damage the interests of the competitor, in order to leave reasonable space for business competition. Nevertheless, Wang Zhiyong observed that the Apple Peel might be suspected as an illegal operation. The manufacture, s a l e, and incorporating in to the communication network of a mobile phone should be permitted only by a related department in China. If a company or an individual operates products through state trading, they should get permission to be operated.