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Burst.com is fighting back against Apple Computer (Nasdaq: AAPL), which filed a lawsuit earlier this year claiming that Burst's media delivery patents are invalid.
On Monday, Burst filed a countersuit in Federal District Court in San Francisco stating that Apple's iTunes Music Store, iTunes software, the iPod devices and Apple's QuickTime Streaming products infringe on four of its patents.
Burst is requesting that Apple pay royalties on its infringing products and services, and it seeks an injunction against further violations.
This is not the first patent infringement suit Burst has filed -- it challenged Microsoft (Nasdaq: MSFT) a few years ago. Ultimately, the software giant chose to license Burst's patents, settling the suit for US$60 million.
When Apple introduced its iPod and iTunes products in 2002, Burst said, it may have been hoping that Burst's patents would be invalidated during the course of the litigation with Microsoft.
Burst noted that it had asked Apple to license its technology before it began legal proceedings against the company.
Who's Right?
The case is reminiscent, to a limited extent, of NTP's suit against BlackBerry for intellectual property infringement. The one clear exception is that Burst is not a so-called "patent troll" -- a company that holds patents but doesn't develop products.
Rather, Burst has a long history of producing and using its patented technology, which strengthens its case.
It is difficult to say which side has the stronger arguments at this point, according to Paul Lesko, head of SimmonsCooper's Intellectual Property Litigation Group in East Alton, Ill. "It might be that Apple was hoping Burst's patents would be tested with the Microsoft suit, but since the case was settled that obviously didn't happen," he told MacNewsWorld.
On the other hand, Apple clearly believed that it had a strong case when it asked for the patents to be invalidated, Lesko added.
Burst is seeking an injunction, but Lesko does not believe it's likely one would be granted at this stage.
Growing Trend
The Burst versus Apple fight is illustrative of the rapidly growing number of patent infringement suits filed. Some of this activity is merely a reflection of how quickly technology is changing and the growing number of patents being issued, says Howard J. Susser, a partner with Burns & Levinson.
"More than anything, this suit and suits like it are an indication of just how prevalent technology has become in our every day lives," he told MacNewsWorld.
Patent lawsuits are becoming a greater concern to established tech and pharmaceutical companies, though, because of the expense of fighting them and the possible risk of injunction.
Patent litigation has become extremely expensive and common today, according to Peter Vogel, co-chair of the Internet and Computer Technology practice group in the Dallas office of Gardere Wynne Sewell. The average cost to defend a patent infringement case is about $1 million, he told MacNewsWorld.
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