Patent office gives Apple upper-hand in Smartflash lawsuit by invalidating two patents

A trio of panel judges with the U.S. Patent and Trademark Office found that the patents shouldn't have been issued at all, because the concept of storing and paying for data is abstract one and not a specific invention, Bloomberg noted. A similar decision was made about a third Smartflash patent in March.

Smartflash could still bring the matter to the Patent Trial and Appeal Board, or after that the U.S. Court of Appeals for the Federal Circuit. The latter, though, is already examining the validity of the patents and whether Apple violated them, since that company earlier appealed the trial verdict. For its arguments, Smartflash is said to be banking on a ruling in an unconnected case, which found that not all software is inherently abstract.

Both parties will nevertheless be heading back to trial to recalculate damages, since the original trial's judge provided improper instructions to the jury.

Apple is accused of violating Smartflash patents by way of services like the iTunes Store and the App Store. In fighting the case, Apple has argued that Smartflash is exploiting the U.S. patent system without having any products or even a domestic presence.