Apple's iPod countersuit against Creative opens legal hornet's nest

Cupertino (CA) - Last Thursday's filing of a second series of intellectual property lawsuits by iPod producer Apple against Creative Labs - the company with the dubious distinction of peddling the world's #2 MP3 player - could perhaps be interpreted as Apple's way of demonstrating it's willing to go the distance in a legal dispute with its distant rival. Quite possibly, even if Apple loses - which, years hence, it feasibly could - it could still emerge the victor, because Creative may not make it that far.

The battle between the two companies began in earnest in August 2005. At that time, Creative Labs won a dispute regarding one of the patents pertaining to its Zen music player, specifically dealing with the way its menuing system categorizes songs. The system presents a subcategorized list of three or more tiers, and it is this feature which the Creative patent, filed in January 2001 and since upheld, seeks to protect. It doesn't seem like much, but in today's patent business, it doesn't have to be.

Creative Labs' Zen Vision:M series portable music players. (Courtesy Creative)

Negotiations between the two companies have been heated ever since, with Creative arguing that Apple owes it royalties for the way it subcategorizes song genres, and Apple countering that if Apple owes Creative for one thing, Creative owes Apple for any number of other things. "Any number" has since grown to seven, which is the number of patents Apple now contends the Zen infringes upon.

On 15 May, the US International Trade Commission for an injunction preventing the further sale of iPod and iPod nano in the US, and then simultaneously sued Apple in US District Court for the Northern District of California, alleging patent violation. Creative refers to the patent under dispute there as "the Zen patent," and touts the IP it protects as though it were at the heart of the Zen device.

What's perhaps more interesting about Apple's countersuits than their own content is the way they were filed. The first round was in US District Court in Wisconsin, and pertains to four Apple patents which that company alleges Creative infringed upon. (Creative Labs is headquartered in Singapore.) Last week's round pertains to three more Apple patents, and was filed in US District Court in Texarkana, Texas, where a Reuters reporter noted a disproportionate number of IP cases are presently being tried.

While one patent attorney told the Associated Press today that the Wisconsin venue may have been chosen to help speed things along, Apple could have easily filed claims on all seven patents, at one location, if convenience or expedience were key factors to Apple's strategy. They apparently are not. Suing Creative not once, but twice, and at separate venues that may be costly to manage simultaneously, could be an effective demonstration that Apple has the time, the resources, the money, and the wherewithal to fight a two-front war. Creative, most likely, does not.