SHOW ME THE MONEY Apple’s Lockout Class Action case

Today it his the news that Apple is subject to yet another Lawsuit, this time it’s a Class action over Apple not implementing a feature that they patented, specifically a lock-out while driving.  What are the facts about the filing papers and how much salt should we take them with?

 

The Plaintiff and claim

The Plaintiff Julio Ceja of Costa Mesa in Orange County, California says that he was a victim of a female driver who was, according to him, operating her phone while driving and hit the rear of his vehicle.  The basis being that she had the phone in her hand when she got out of the vehicle.

So according to the claim it seems that only people that own iPhones text and drive and it implies every iPhone owner texts and drives.  Faulty assertion by the Plaintiff party.  California Sales are not solely responsible for the total sales either.  In fact it seriously smacks of “Apple has lots of money and I think that Apple should pay for another entities poor judgement”.

He feels that based on a patent that Apple had filed in 2008 and was awarded in 2014 that Apple had the technology to disable the iPhone of Drivers.  We’ll get back that claim by the plaintiff.

It is a terrible idea to base the application for a patent has the basis for actually having the physical technology or ‘device’ let alone that it was awarded.  If we use the same basis then every patent troll out there must have a physical device when we know that these non-practicing entities merely have someones ‘pipe-dream’ idea and chooses to shoehorn a case against targets to leverage a payment from them.

Apple on the other hand are rather smart,  an engineer has a pipe dream or an idea of something that one day may just be possible and they create and file a patent,  this future proof’s Apple somewhat against being patent trolled by another party and also if they were to implement the feature it would give a licensing revenue from others that wished to implement a similar feature.  IT DOES NOT MEAN THEY HAVE THE TECHNOLOGY TO IMPLEMENT THAT FEATURE.

The plaintiff literally demands “This class action complaint seeks an injunction against Apple, halting the sale of all iPhones in California without a lock-out device that will disable the iPhone while being driven by an engaged motorist, as well as an order requiring that the company update all currently held iPhones to install a lock-out device thereon.”

This is literally an unfair and undue burden being placed on a company and also requires Apple to update devices that are classed as ‘vintage’ or ‘antique’ and no longer supported by Apple such as the iPhone 3GS and iPhone 4!  Does this mean that Apple should be expected to replace these handsets with more capable ones to meet the requirement.

Again this demand is based on the false basis that Apple actually has this technology when it doesn’t necessarily mean that it does exist simply because a patent was filed for and awarded.

Again, they base their whole case on a ‘design patent’ and as we are all aware this does not imply the technology is ripe or prime for use or that obstacles involved in the patent concerning physical implementation is even ripe for use.

Implementing a technology that could be circumvented or that failed to work consistently based on the anticipation of the design patent would be far more of an issue and more importantly it would take away access to all occupants of every form of transit.  At this time the only way to identify that a smartphone is being used by driving would be to use GPS.  I’m sure there are other ways that it may be possible to identify the driver but for all intents and purposes it would also lock out other features that are in the interest of public safety, for example many people use their phones as dash cam’s, as Satellite navigation devices, would they still be able to in the event of needing a snapshot of a reckless driver be able to tap that screen and a photo would be taken of the driver and ergo his/her number plate.

All companies have recognized the issue and in 2008 texting and driving, in fact texting alone was not possible, it did not become possible on the iPhone until September 25th 2009 a whole year after the patent was filed for. Ergo substantiating that this was a pipe-dream feature that Apple filed for with a potential to develop into a working system, it never guaranteed it would ever see the light of day or be possible and in fact many have said time and again that the stumbling block will always be that it would lock out passengers in, trains, planes and automobiles, or for that matter buses and other public transport for using their devices too.

In fact the quoting of Apple’s filing and using that to emphasize that Apple understood the issue of texting and driving was flawed, it simply showed that the company was trying to look into the future again because when they filed the patent their own smartphone was not capable of texting while driving or texting at all and was not capable until the  following year and late into that year.

The plaintiff party has touted national statistics that they have dug up, some of them have been stretched to try and emphasize the point.  Some of the information is reasonably factual while they proceed to extrapolate on figures from before ANY state had texting and driving laws comparing it from smartphone ownership and assumed texting and driving based on a very small survey base used by the Department of Transport over barely more than 1000 persons.  When there was legal requirement to NOT text and drive it is far more likely that the figures would be higher and this percentage of the population assumed by the plaintiff would not necessarily rise by the same rate and certainly would not suffer an exponential increase post texting and driving laws.

https://www.transportation.gov/briefing-room/us-department-transportation-and-consumer-reports-launch-partnership-fight-distracted

In fact in the 26% of accidents that they produced for the document when I searched the source figure actually included accidents that involved people that were selecting a CD from a glove box or one of those sun visor racks, turning the volume control, lighting a cigarette, rubbernecking an accident and putting on makeup.  It even included adjusting the rearview mirror and wing mirrors. Not just texting and driving.

Taking the small base the survey that the study was based on the accuracy of the study can be held in question.  Small survey bases give big errors and big assumptions.  Look at the 2016 Presidential election pollsters and the accuracy there.  Your survey is only as good as the size of the candidate field and the truthfulness of the candidates along with the questions used to gain the data.

To be honest their claim that people start to become accustomed to automatically answering or responding to activity notification from a cell phone or smartphone is fairly accurate, it’s been proven that any animal, and we are animals, can be programmed to react to stimuli. The trouble is that they choose to quote the opinion and treat it as factual and proven while it is clearly in the document an opinion by Dr David Greenfield and every one has them.

Nobody can argue the point that many people will respond to a chirp by their phone but it is up to the individual as to whether they are going to react on it and claiming that every single one of us is compelled to react to a device making a noise, or vibrating is incorrect.

For example I will happily drive for many miles even stopping and going and getting in and out of a vehicle without responding to texts or Facebook or twitter or anything else, I’ve been known to go for a day and a friend has even noticed the lack of response.  I am not alone many more people that the plaintiff wants to acknowledge are doing the same.

The University of Kansas study they conveniently wouldn’t link to, I presume they are expecting discovery requests for that but the Research Matters website for the University has a News briefing and’

The study found that 72% of them or 276 that owned both a vehicle and a cell phone admitted to the act of Texting while driving.  This study though is purely about the act of texting and driving but  texting and driving has taken place in the USA since texting was made possible.  

I watched a 7 year old teach his Grandma how to text on her ‘dumb phone’, which was far more distracting and would regularly witness people so absorbed before smartphones became popular drive down the road for far more than 5 seconds at various speeds oblivious to all around them.  At that time there wasn’t an iPhone.

 

Also making the assumption basing the growth in smartphone ownership as the growth figure for Texting and Driving while many states in the USA since the survey was taken have enacted Texting and Driving laws which also impacts the assumed percentage of 9%, how many people that would be tempted to text and drive in 2011 still text and drive,  making an assumption relating pre-texting-and-driving laws with those after laws were enacted in states.

California has just enacted even stricter texting and driving laws that came into effect on January the 1st 2017.  Not only that we have yet to see any study specifically for the State of California and saying that what happens in other states relates to what the figures for California is flawed.

When it comes to associating the act of texting and driving as being far worse than drinking alcohol and driving that is rather full of assertion,  it’s making the innocuous claim that every iPhone or smartphone owner just casually texts while driving without giving it a second thought and again it is basing the claimed figures on all smartphones as opposed to actual iPhone users texting and driving caused all these accidents.

The plaintiff makes the statement “Given its rank danger, it is downright shocking that smartphone companies like Apple do nothing to help shield the public at large from the dangers associate with the use of the phones.  To be sure, this is not because Apple doesn’t recognize the risks, or because the technology to protect consumers does not exist.  In fact, Apple has known of the dangers associated with the of their phones for nearly a decade.  In 2008, Apple filed a patent seeking to protect its design for a “Lockout mechanism” to disable the ability of its smartphone to perform certain functions, like texting, while someone is driving.

and “In Support of its patent application, Apple recognized the dangers of texting and driving, and the important role they themselves should play in stopping it.  Apple argued, “New Laws are being written to make texting illegal while driving. However, law enforcement offices report that their ability to catch the offenders is limited because the texting device can be used out of sight (e.g. the driver’s lap), thus making texting while driving even more dangerous.  “Texting while driving has become so widespread it is doubtful that law enforcement will have an significant effect on the practice.”  Apple’s patent application was granted in 2014.  Yet despite having had the technology for nearly a decade and being the recipient of a valid patent, Apple refuses to employe the technology, fearful that doing so will cause it to lose the valuable market share to its competitors.”

Again this goes right back to the basis that rather than Apple thinking about potential future technology implementation or protecting themselves against a patent troll by making patent based on an idea an engineer had we see that the plaintiff has tried to associate this will Apple trying to avoid losing market share but, and this is the big but, they never implemented the feature because it was a pipe dream before they had even implemented texting on the iPhone which came late the following year but Apple in real terms lost market share.  Even though it had grown to 41.4% in 2014 that was purely because the iPhone was only available in the USA on the AT&T network and RIM had a growing market share, RIM’s blackberry share of the market grew from 35.1% in 2007 to 44.5% while the iPhone market share dropped from 26.7% to 19.2% in those same years.  Ergo, Apple was not protecting their market share by not implementing the feature if it was even possible to implement.

In fact in real terms Apple’s Market share has shown a decline in the USA.  They really didn’t gain as much of the Blackberry market that they would have with most of that going to Android based devices.  So why were these manufacturers not challenged also.  The answer is simple, They can’t go after Google, after all there is a myriad of manufacturers for Android devices and all merely install a free OS from Google and tailor it.  That would be even more costly and far less profitable than going after Apple who both design the hardware and the operating system.

The Plaintiff continues throughout to solely blame Apple and treat them as the sole contributor to the texting and driving issue simply because they show 40% of the market in the USA.

The trouble with the market share is that they previously in the demands inferred that the ‘lock-out’ was a software mechanism that could be updated on every single iPhone and therefore it is OS Market share that should be used for that comparison.

While the Statement used by the plaintiff is “If texting and driving is a vessel of trouble, Apple is the captain of the ship.  The company enjoys 40% of the smartphone market, far more than the nearest competitor and it’s profits are enormous”, they keep going back to the money, again it remains a “SHOW ME THE MONEY” situation, the plaintiff party just see’s dollar signs. 

In real terms though because they have implied software implementation is the mechanism that would be used in their earlier demands that all existing devices receive an update to make their compliant with their demand for ‘auto-lock-out’ that it means that it’s an OS issue and Apple has 47.7% of the OS market for smartphones while Android, produced by the equally profitable Alphabet/Google have almost as many devices running Android with a 47.6% market share.   Sounds like there are TWO CAPTAINS manning the alleged vessel of trouble.

They continue with the “Show me the Money” theme by focusing on Apple’s profits.  The fact that Apple’s profits are not just from iPhone Sales it is the plaintiff saying, “I feel that Apple wouldn’t miss some of that money, I can have some of that too”.  Not only did they proclaim their daily net profit but also how much money they have on hand.

The plaintiff then describes the accident the plaintiff was involved in, trouble is, this is a one sided story and sadly as we all know, every driver is always the innocent party when it comes to an accident.  I’m not saying that he is lying I am just saying that there is a tendency to point the finger.

They then go on again using prorating and the flawed 26% they pulled from elsewhere to decide that their estimated 500,000 automobile accidents which they then say is a lower than actual number and basing it on the 40% market share that Apple is responsible for 52,000 or more automobile accidents in California.

Then they go on to claim that the Apple and the iPhone is responsible for 312 deaths on the roads of California each year using their same faulty logic.

Conclusion

The case is being brought under the Unlawful and Fraudulent Business Acts and Practices, violation of California Business & Professional Code §17200

The trouble with this is that the claim is based on unfair or untrue advertising.  Sadly this is not a valid claim for that, Apple has never carried out a deceptive practice or advertised deceptively because having filed or been awarded a patent does not mean that they are required to make use of it and they have never advertised a promise that they would use it.  Assuming that they have the technology based on a patent is beyond the scope of the law.  In fact it makes the action meritless.

In fact if we were to base Apple’s patents then we could file class actions that the screen of our smartphone gets a scratch because they didn’t implement sapphire glass, simply because they have a patent for that or that the phone doesn’t protect itself when it is dropped by landing screen up every single time.

Furthermore, an injunction to halt the sale of iPhones in California and the implementation of such a system for phones used in California puts an unfair burden on Apple and is tantamount to blackmail by the plaintiff.

Let’s face it, Julio Ceja is masturbating away in Costa Mesa on the iPhone he is photographed with on Twitter and shouting

“Show Me The Money”

 

 

 

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