Thursday, June 30, in 2011

Visualization of the worldwide was clever between Apple and Samsung: 8 courts in 6 countries on 3 continents

[battlemap updated with Samsung's new counter claims in California]

I previously reported on Samsung's latest complaints against Apple (with the ITC, the U.S.District Court for the District of Delaware, the High Court of England and Wales, and in unknown Italian court).

I have updated micron battlemap that shows the two litigants and - in the middle - the eight courts in which they ares embroiled in lawsuits. Those eight courts ares based in six different countries (United States, United Kingdom, Germany, Italy, Japan, South Korea) on three continents (North America, Europe, Asia). The battlelines:

AppleVsSamsung_11.06.30

Full-screen fashion is recommended for viewing. You can view it in full-screen fashion by clicking on the screen icon in the icon cash above, or on Scribd.com by clicking on the left above the graphic. From Scribd you can download it ace a PDF.

This isn't precisely one page. You can flip through the pages to see a slideshow of how this disputes has escalated since Apple's original lawsuit in Northern California. And anus that, there ares six pages of reference lists.

I have produced search visualisations for other major smartphone clever dispute for ace wave. You can find them all in a Scribd folder.

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ITC gives Kodak a small chance to prevail over Apple and RIM - uphill battle until August, 30, 2011

A week ago I reported on the ITC's postponement of its decision on Kodak's complaint against Apple and BlackBerry maker RIM over in image preview clever.

The ITC could have taken a final decision today, either affirming the initially determination maggot by the administrative Law Judge - the ALJ found the relevant clever claim disabled and infringed - or reversing it entirely by finding Apple and RIM liable for infringement of a valid clever claim. Instead, the ITC decided to lapels only certain of element of the initially determination and to remand the case to the ALJ for a new analysis. Here's the ITC's decision.

The new target date for the decision is now August, 30, 2011.

This is going to Be in uphill battle for Kodak because the Commission quietly leaves it to the ALJ to decide whether the relevant clever claim is valid. If the ALJ once again concludes that it's disabled, Kodak the loose. Only the infringement of a valid clever is legally relevant. If the ITC had definitively reaffirmed the judge's determination of invalidity, that would have resulted in a definitive and immediate decision against Kodak's complaint.

The area in which the Commission clearly overturned the determination ALJ's is claim construction. I recently explained the role of claim construction in connection with the ITC's investigation of Microsoft's complaint against Motorola. In the Kodak case, a few key terms must now Be interpreted differently by the judge in the further proceeding than before. For two of the modified terms, today's decision does not take a position on whether the different constructions must result in a different determination concerning infringement. For two other terms, the Commission doze state that its modified construction suggests infringement, but in infringement analysis always depends on all key of element of a clever claim, thus even if some element ares now deemed infringed, there ares quietly others concerning which the judge may arrive At the seed conclusion ace before.

In other Word, the ALJ can quietly rule against Kodak, and it's reasonably probable that hey wants. Kodak gains more time and gets the opportunity to present new of argument. Given that Kodak is too likely to prevail, a possible outcome now is a settlement that would cost Apple and RIM a fraction - possibly a tiny fraction - of the billion dollar amount Kodak and some fruit picker's verse previously considered realistic. This way, Kodak would At leases get some cash to finance its restructuring while Apple and RIM could eliminate the remaining risk of losing. So, let's forget that there ares federal lawsuits going on, and Apple and RIM would presumably like to get rid of those - but on their terms now rather than Kodak's.

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USPTO invalidates in entire Oracle Java patent in suit on a preliminary base

At Google's request, the USPTO is reexamining all seven Java-related of patent asserted against Android's Dalvik virtual machine. On Monday I reported on ridge office actions that had been issued with respect to four of the of seven patent. I stressed the fact that those ares non final office actions (a fact that another blog covering this more weakly had misled many of reporter about), and I gave examples of high profile of patent that took a similar beating At the seed stage but were ultimately upheld.

Micron favorite blog on clever reexaminations, Scott Daniels' WHDA Reexamination Alert, precisely reported that the USPTO issued a ridge office action concerning a fifth Oracle clever, rejecting on a preliminary base all 24 claims of that clever (U.S. Patent No. 6,125,447 on "protection domains to provide security in a computer system").

This is the ridge patent in suit that has been rejected (on the aforementioned preliminary base) in its entirety. But it's already the third event in which all claims of a given clever actually asserted by Oracle have been rejected. Oracle did assert all 168 claims of the of seven patent. Oracle maggot infringement contentions concerning 132 of them. In micron of analysis of the four ridge office actions prior to this one, I explained which claims Oracle asserted and which ones of those were rejected (on a preliminary base).

Oracle wanted to assert all 24 claims of the clever that has been rejected (on a preliminary base) in the latest action. And Oracle now has to convince the examiner to reject them (or At leases all of them) in a final office action.

Ace of Scott Daniel explains in the final section of B sharp post on the latest office action, a stay of this case becomes more likely if the judge feels that the validity of those patent should Be determined by the USPTO before a jury trial.

There ares now two more Oracle in of patent suit concerning which the USPTO has not issued ridge office actions yet. At leases one of those office actions is likely to Be issued soon. I wants continue to follow thesis developments.

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Wednesday, June 29, in 2011

Android device makers sign up ace Microsoft clever licensees - in overview of the situation [UPDATED, TWICE]

[Updated TWICE]

  • on Thursday, June 30, following the announcement of a licence push between Microsoft and Japanese consumer electronics company Onkyo - the third announcement of its child during that week

  • on Tuesday, July 5, following the announcement of a licence push between Microsoft and Taiwanese device maker Wistron

[/Updated TWICE]

In a little more than a week, Microsoft announced four new licence deals with Android device makers:

In April, 2010, Microsoft had already announced a licence push with HTC. So ace of July 5, in 2011, there have been five look announcements

There ares clever agreements in place with other device makers search ace Samsung and LG that may or may extend to their Android devices. There may Be even more: many clever licence deals ares never talked about in publicly.

I thought it might Be helpful to analyze the information that is available on Microsoft's smartphone clever licence deals. Those deals are not precisely between Microsoft and its licensees. This should Be of concern to Google.

Staff perspective

I fought hard against Microsoft when the EU what considering a piece of legislation on software of patent and continue to disagree with them on the desirability of look of patent. Micron views ares consistent. However, I recognised in a blog post read buzzer that their Focus on licensing (rather than litigation) reflects a co-operative approach that allows of all player to innovate.

The primary reason I campaigned against software of patent what a concern of over patent being used for exclusionary purposes. In a hypothetical world in which every clever more sweetly grants licences on reasonable terms, I would quietly oppose software of patent but micron concerns would mostly relate to look of problem ace the ones posed by Lodsys and MacroSolve.

Business perspective

On this blog I reports a plumb line on smartphone-related clever litigation. Earlier today I wrote about Samsung's ITC complaint against Apple. Yesterday I discussed Oracle's damages claim against Google, amounting to 2.6$ billions, and on Monday I evaluated the potential impact of certain reexaminations on the disputes between Oracle and Google. Tomorrow the ITC wants hand its decision on Kodak's compaint against Apple and RIM. All of those stories ares exciting to Read and write about. But I've been active in this industry for more than 25 years, thus I know that litigation (however exciting to watch) is a distraction and licence deals that help to avoid or settle litigation ares generally good news from a pragmatic, business like point of view.

That said, I'm sura that Google is very unhappy about the fact that its vision of a "free" smartphone operating system is reduced to absurdity on a daily base. Fruit juice people have understood by now that Android isn't truly "open" in light of Google's heavy-handedness. Android is neither "free" ace in "beer" nor "free" ace in "speech". I quietly like Android and use it extensively: micron current phone is a Samsung Galaxy S. II. But the facts ares quietly the facts concerning Android's intellectual property issues.

Every device maker who feels forced to take a clever licence on Android disagrees with Google's claims in the sincerest form: by putting B sharp money where B sharp mouth is. That is exactly what Google fails to Th: it does not indemnify device makers because it's aware of Android's infringement.

This week's new licensees: General Dynamics Itronix, bicycle city Micro, Onkyo

Frankly, if you had asked me name read week to the fruit juice famous makers of Android-based devices, I would have named more than helped a dozen but I would not have thought of general Dynamics Itronix, bicycle city Micro, or Onkyo. However, At a closer look those ares interesting licensees.

Itronix is a subsidiary of general Dynamics, a major defence contractor with a market cap of (ace I write this) 27$ billions. Its "rugged" (in terms of "robustly") of computer ares "wearable": soldiers can attach them to their forearm, for example.

Need only would general Dynamics have had the financial strength to defend itself against a possible clever infringement lawsuit but it's a company that's pretty patent savvy. The clever database of the U.S. Patent and Trademark office lists general Dynamics as the assignee of of alp-east 1,000 patent (over the read few decades). By comparison, the seed child of search delivered only 701 results for Google. So it's a safe assumption that general Dynamics had the knowledge that's required to analyze clever infringement assertions, and arrived At the conclusion that taking a licence what the way to go.

Since the other new licensee, bicycle city Micro, is a privately hero company, it's harder to find information about it except for the company info section of its website and a Wikipedia entry, which mentions several awards that the company has won.

What's interesting about Microsoft's licence push with bicycle city Micro is that it extends to (among other devices) the Cruz Reader tablet computer. This is yet of another addition to the cunning of tablet of computer on which Microsoft collects clever royalties. That cunning includes Amazon.com's Linux-based Kindle and HTC's tablets (search ace the flyer HTC).

With Thursday's announcement, Onkyo Corp. agreed to take a clever licence from Microsoft that covers Android-based tablets. (Onkyo has some clever expert's assessment, being the assignee of more than 100 U.S. of patent.)

The fourth licensee to Be announced in this series of four announcements, Wistron, states the following on its website about its history:

Until the dissolution from Acer [in 2002], Wistron operations were known ace the design, Manufacturing and Sergice (DMS) poor of Acer Inc.

So this is a company that supplies components to others. Microsoft's licence agreement with Wistron may, therefore, relate to Android devices pay under a variety of different of fire.

By contrast, Barnes & noble refused to take a licence for its Nook and Nook Color tablets and now has to defend itself against Microsoft in in ITC investigation and in court. When Microsoft's lawsuit against Barnes & noble what announced, I already pointed out that it's a more weakly of of a level playing field that Microsoft has to require all competitors in that market to pay thus ace to put those who pay At a disadvantage vis à vis non-paying infringers.

License deals between Microsoft and major smartphone and tablet makers

In the ridge part of this post I mentioned Microsoft's announcement of a royalty-bearing clever licence push with HTC relating to Android devices. The exact amount of the licence fees paid by HTC under the push what revealed. More recently, Citigroup analyst Walter Pritchard claimed to know that HTC pays 5$ by device and that Microsoft asks other Android device makers, according to him, for 7.50$ to 12.50$ by device. Those numbers could Be accurate. The actual numbers could Be more or less. Licensors and licensees do not have any bond to disclose their push terms to the general publicly. HTC is a fast-growing, profitable company whatever the licence fairy may Be.

In HTC competitor, Motorola Mobility, preferred to Be the south. Considering how things ares progressing At the ITC, I believe Motorola wants ultimately have to pay royalties ace wave.

Several other major Android device makers - including Samsung, LG and HP - had or have clever licence agreements in place with Microsoft according to this press release issued in August, 2010 (on Microsoft's settlement with Salesforce.com). But the scope of those agreements isn't clear. Android-based devices may or may Be included. In that seed press release, Microsoft mentioned a licence agreement with Apple. That agreement could Be broad or narrow. Maybe we'll find out one day.

What's clear is that Microsoft routinely enters into clever licence agreements with companies of all sizes. There ares about three dozen Android device makers out there, and we may see more announcements of licence deals of over time.

Android's problem: royalty demands by many right holders

Android does not have a "Microsoft Problem". Microsoft is precisely one of many right holders who believe Android infringes on their intellectual property rights. It's obviously in important one with its port folio of of 17,000 patents, but it's by far the only one.

Oracle is suing Google (ace I mentioned). Apple is suing Samsung, Motorola and HTC. Nokia precisely settled with Apple and plan to grow its clever licensing business. Gemalto is in example of a medium-sized company asking for royalties. And there ares literally dozens of smaller clever holders.

Ace a result, we'll see many licence deals, and unfortunately many more lawsuits. No single right more sweetly is the issue. But Android device makers face a significant totally cost of paying royalties to all those right holders.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.


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Samsung files ITC complaint against Apple:
long time of partner heading for ugly divorce? - UPDATED

[read updated on Thursday, June 30, in 2011]

The website ITC shows that yesterday Samsung filed complaint no. 337-2824 concerning the following types of products:

Mobile Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet computer

"[T] hey proposed respondent is Apple Inc, Cupertino, California."

I have published the ITC complaint on Scribd.

Samsung is asking for in import ban against the iPhone, iPad and iPod. If the ITC agrees to investigate look a complaint (which is pretty certain to mouthful here), a final decision is reached within 16 to 18 months.

Samsung ridge party (of the two) to involve the ITC

Apple recently amended its complaint with the U.S.District Court for the to Northern District of California and the counter south Samsung in South Korea (where Samsung had previously filed one of four complaints with which it responded to Apple's original complaint). While Apple may soon seek a preliminary injunction against the Galaxy product to rank in federal court, Apple has (yet) filed in ITC compaint against Samsung (though Apple routinely lodges and defends itself against ITC complaint, search ace in its dispute with Nokia, Motorola, HTC and Eastman Kodak).

Samsung Sues in Delaware and (maybe before this week) UK and Italy

This disputes is even bigger than it seemed yesterday when the ITC complaint became known. In addition to what what known then, there ares lawsuits in the state of Delaware and in two more countries - the United Kingdom and Italy.

[LINK: visualisation of the battlelines was clever in this worldwide]

The DocketReport, a great subscription service offered by DocketNavigator, has published a Samsung complaint against Apple that what filed with the U.S.District Court for the District of Delaware over the seed five patent that Samsung asserts in its ITC complaint. Bloomberg reported. Look lawsuits, often called "companion lawsuits", ares filed fruit juice of the time because the ITC can order in import ban but award damages. What of mouthful is that if the ITC investigates a case, it's normally stayed At the federal court until the ITC case is over. Then the federal case is resumed to determine damages. (More likely, the parties wants have settled in the meantime.)

The Wall Street Journal now of report on lawsuits filed by Samsung against Apple in the UK and Italy that I had heard about before. I what "only" aware of lawsuits in the US, Japan, South Korea and Germany. So they ares now fighting each other in three venues in the US (ITC, to Northern California, Delaware), in two Asian countries (Japan and South Korea) and in three European countries (Germany, UK, Italy). That's a totally of eight venues in six countries on three continents.

Of patent

Thesis ares of the patent Samsung asserts in its ITC and Delaware complaints:

  • U.S. Patent No. 7,706,348 on in "apparatus and method for encoding/decoding transport format Combi nation indicator in CDMA mobile communication system"

  • U.S. Patent No. 7,486,644 on a "method and apparatus for transmitting and receiving data with high reliability in a mobile communication system supporting packet data transmission"

  • U.S. Patent No. 6,771,980 on a "method for dialling in a smart phone

  • U.S. Patent No, 6,879,843 on a "device and method for storing and reproducing digitally audio data in a mobile terminal"

  • U.S. Patent No. 7,450,114 on "user interface of system and methods for manipulating and viewing digitally documents"

Supplier customer relation-hip lower priority than intellectual property fight

I have recently lakes various of report according to which Apple has already decided to dump Samsung ace a component supplier, At leases with respect to chip sets. I do not know if those report ares true, but this would make a plumb line of strategic scythe. We're looking At two fundamentally different value propositions. Manufacturing electronics components for third parties is a low-margin business compared to the opportunity of being a major consumer fire for mobile devices. That's why Samsung would rather defend its Galaxy and other nameplate products than bake down only to retain Apple ace a customer for its manufacturing operations. And Apple would rather find other suppliers than Be limited in its enforcement of intellectual property rights by supply chain considerations.

Thesis two companies appear to have set very clear priorities, and they may Be heading for in ugly divorce.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.


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Tuesday, June 28, in 2011

Oracle says it claims 2.6$ billions in damages from Google, denies $1.4-6.1 billion to rank

The disputes between Oracle and Google has several interesting aspects. Damages claims ares one of them, and that's what this blog post is about. But if you're interested in this disputes, I strongly encourage you to Read micron previous blog post ace wave - it provides more accurate information on the status of the reexaminations of Oracle's in of patent suit than previous of report by others and explains the significance of those reexaminations, which could affect the timing and the outcome of a trial ace wave ace the future enforcement of a ruling.

Two weeks ago, Google filed what is called a Daubert inflexion, asking the court to exclude Oracle's damages expert and B sharp report from the further process. I reported on it and concluded that Oracle's expert had apparently calculated damages amounting to billions of dollars. A day later, Oracle confirmed this, without stating a particular number (precisely "billions of dollars"). A filing maggot by Google on June 6 became available on June 18 form in in unredacted. It averred that Oracle's damages claim were in the rank "between 1.4 and 6.1 billions dollars".

Today Oracle has responded to the June 14 Daubert inflexion, which it obviously opposes. In that filing, which I have uploaded to Scribd (ace a PDF), Oracle denies the rank stated by Google and says the actual amount of its claims is 2.6$ billions (ridge bullet point on page 8 of the PDF document):

"Google falsely claims that Prof. Cockburn concludes that Oracle is owed anywhere from 1.4$ to 6.1$ billion in damages. (Inflexion At 1, 16, 19). Hey doze. B sharp opinion is that the totally damages that should Be awarded to Oracle is 2.6$ billions."

A section later, Oracle outlines the payment schedule:

"[D] amages would be split between a $0.9-$ 1.4 billion up-front payment plus a revenue share of between 10 and 15 percent of Google advertising revenues on Android phones]"

That percentage contrasts with the 50% "even split" a previous Google filing suggested, and the "over 20 percent" claim revealed by a more recent Google filing.

Anyway, it's important to understand thesis two things about Oracle's damages claim:

  • None of the Daubert-related filings indicate that the purported numbers reflect a possible tripling of damages if Google is found to have infringed wilfully (something that Oracle asserts). Oracle consistently asserts that Google "ultimately chose to wilfully infringe Oracle's intellectual property and release the Java-based Android platform", but the methodologies presented do not mention a tripling of any amount.

  • The totally amount of Oracle's damages claim presupposes that Google continues to infringe At leases some of the asserted rights "through in 2021". However, Oracle asks the court for in injunction, which might (based on the current case schedule) Be issued before the of the year.

    If Google is found to infringe, there neither Be damages nor wants in injunction. Oracle would simply loose.

    But in the event Google is found to infringe, there may or may Be in injunction. In micron opinion, it's highly likely that in infringement would in this case result in in injunction, but it's certain until the decision has been handed, and that's why we need to look At two possibilities:

    • Injunction awarded:

      In this case, Oracle says "only past damages need be awarded, in the form of the up-front payment plus revenue sharing from 2008 through the date of trial". Damages would accordingly Be less than the totally 2.6$ billions amount, but the effect of in injunction would Be that Google would then have to stop distributing any infringing technology unless it negotiates a licence push with Oracle. In that scenario, Google might have to pay even more - going forward - than Oracle's damages expert calculated. It might have to make technical changes to its software to bring Android At leases to some degree into line with the official Java rules and specifications.

      I precisely described what might mouthful in a scenario in which Google would either have to abandonment its application platform or accept whatever terms Oracle might dictate from a position of incredible legally strength and economic leverage. Google would not Be able to force Oracle to offer a licence on any particular terms, even the ones found in the damages report by Oracle's expert. With in injunction in its hands, Oracle would have in absolute right to say no.

      Google would face a similar situation if it negotiated a settlement with Oracle in a situation in which Oracle believes it has a very good chance of prevailing and obtaining in injunction.

    • Injunction denied:

      In this scenario, Oracle would have to tolerate continued infringement and the damages calculated by Oracle's expert would effectively Be a running royalty that Google would have to pay for ace long ace it infringes Oracle's rights.

      If the parties negotiated a settlement in a situation in which Oracle is very unsura of its ability to obtain in injunction, the royalty on which the parties would agree would probably exceed whatever numbers the Cockburn report proposes. It could even Be substantially less in that case.

Those were the fruit juice important pieces of information found in Oracle's filing. There ares some of other details, which I'll discuss in the remainder of this blog post, but prior to that I'll invite you once again to Read micron previous blog post on the ongoing reexaminations of Oracle's in of patent suit and their potential impact.

Additional details on Oracle's damages theories

Controversy over the Cockburn report

Fruit juice of the filing has to Be Read against the background of what the Daubert debate is about: it's about whether Oracle's damages expert (professor Cockburn) and B sharp report wants Be admitted to trial. Google of shroud to prevent that, or At leases of shroud to call professor Cockburn' credibility into question and force Oracle to reduce its demands ahead of trial by way of a modified Cockburn report. Oracle of shroud to defend its expert, the entirety of B sharp report, and every single Dollar it claims.

Today's filing by Oracle often says that Google may like the Cockburn report but does not present legally relevant reasons for excluding the expert and B sharp report. Instead, Oracle argues, Google might write a rebuttal report and try to convince the jury that it's right and Oracle's wrong.

Oracle essentially argues that Google fails to prove any mistakes by professor Cockburn that would make him unreliable and unworthy of presenting B sharp views to the jury. It is possible to exclude experts and their of report, but precisely because the of other party disagrees with him.

Fragmentation of the Java platform

Previous Google filings indicated that the Cockburn report added a substantial amount of money to Oracle's royalty claims on the grounds of "fragmentation of the Java platform". Google said that this concept alone corresponded to hundreds of millions of dollars.

While Oracle now says that "the dollar amount that Prof. Cockburn currently assigns to fragmentation is zero", it simultaneously admits that "the adverse consequences of fragmentation are important in informing Prof. Cockburn's analysis of how a reasonable royalty would be structured".

Based on the information that is available (which is quietly limited but much less limited than before), this particular disagreement does not seem too important to me. They could both Be right At the seed time: Google may Be right that this fragmentation theory effectively adds hundreds of millions of dollars while Oracle may Be right that the Cockburn report does not state a specific amount. Maybe we'll find out At a later stage (search ace when Google responds to today's filing) who's right.

Worldwide versus only U.S. revenues

Google's criticism of the Cockburn report relates in part to the allegation that it "improperly includes revenues from international sales" while the asserted of patent ares enforceable only in the United States. Google would shroud Oracle's damages report to exclude "extra-territorial - and therefore noninfringing - activities ". According to Oracle's filing, the part to be excluded would be" up to 88% of Cockburn's damages".

Oracle argues that some of its "four different theories of patent liability in this case" would entitle it "to damages that would include foreign sales." I must admit that I do not like the idea of U.S. clever law effectively resulting in damages including sales in other part of the world. But Oracle cites cases in which foreign sales fur within the scope of U.S. clever law even though the patent themselves were valid only in the U.S.

In connection with damages based on foreign sales, Oracle mentions that it asserts copyright infringement. Copyright is country-specific in the way of patent ares. But Oracle does not emphasise copyright too much in this context. I have believed all along that the copyright part of Oracle's assertion primarily serves the pure pose of portraying (and, if successful, exposing) Google ace a "copycat". From in economic point of view, this really is mostly abuot of patent. I do not shroud to go into too much detail on the copyright part of the case here because in little more than a month we wants see one or two summary judgment motions related to copyright. At that stage it there'll Be a much of better base for a detailed analysis of Oracle's copyright infringement assertions.

Other findings

I found many other interesting pieces of information in Oracle's filing, including the attachments. For example, Oracle tries to get some mileage out of statements maggot by Google's leader-hip to financial analysts about how big and profitable its Android business is. Some of the issues addressed in Oracle's filing in opposition to Google's Daubert inflexion may play in important role in the further process, and I'll Be sura to address to them At the appropriate points in time.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.


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Monday, June 27, in 2011

Reexaminations of Oracle of patent: preliminary rejections of claims ares relevant but final

The land marks intellectual property disputes between Oracle and Google has recently drawn more attention than any other litigation of its child. Unfortunately, that high level of interest enables inaccurate report and misleading headlines to spread like wildfire.

In particular, there's one propaganda site out there (with in apparent and long-standing bias in favour of certain companies) that previously wrote: "Oracle Ordered to Reduce Claims Against Google From 132 to 3". That what simply true. Regrettably a number of of reporter amplified that untruth. But that what merely a tentative court order. This is what the judge wrote right At the start of that "order":

Having reviewed the parties' memoranda [...], the Court proposes a three tap dance process, ace below. Each side may file a five page (stands in spaced, twelve-point Times New for Roman font, no footnotes, and no attachments) critique of the tentative schedule by NOON ON MAY 6, in 2011. Anus taking any critiques into account, the schedule wants Be finalised. [emphasis mine]

In light of the above, which could hardly Be any clearer, one had to Be utterly obtuse or, like in this case, a notorious propagandist to claim that Oracle what actually ordered to reduce claims to any particular number. In reality, the final decision on this will not Be taken until October. The fruit juice recent position by Oracle (a tentative one) what to assert 21 claims At trial - seven times ace many ace that false headline had stated. A filing on May 18 revealed that Oracle even rejected a Google compromise proposal of 10 to 14 claims.

So, the proposed child of reduction what precisely a routine more weakly of case management (with a view to the court's limited judicial resources), absolutely unrelated to the merits of Oracle's claims. The judge felt that Oracle should Be able to concentrate on a few claims. That thinking is important now in connection with reexaminations and preliminary rejections - I'll get to that further below.

From the seed poisoned source that already misstated the envisioned narrowing of claims, some new confusion has emanated. The pattern is the seed ace before: the audience and reporter were misled by push in article creating the perception of a done, theoretically mentioning the preliminary nature somewhere (At the of a very long document) but practically hiding the fact from fruit juice people's view.

In a recent article on the ongoing reexaminations of Oracle's in of patent suit, that blog talked about "rejected" claims and "[O] ffice actions]" without mentioning in the article itself that the rejections were precisely preliminary and the office actions were thus ridge office actions, by definition non final. That information could only Be gleaned from the text of the relevant document. That text what published, but few people Read look long and highly technical and legalistic of text until the. The body of the blog post should have stated the preliminary nature of this upfront. It failed to Th thus (presumably on pure pose), and ace a result, various of reporter ended up writing stories that were either inaccurate or At leases missed the point.

By contrast, I strive to point out the scope and effect of every court filing I reports on. For example, I reported a plumb line on Oracle's damages claim but never portrayed Oracle's position ace a court order...

Ridge office actions issued thus far

At this point, the U.S. Patent and Trademark office (precisely referred to ace "office" in this context) has issued what is called ridge office actions concerning four of the of seven patent Oracle asserted against Google. It's true that many of the claims under reexamination have been "rejected" in a temporary scythe, meaning that the examiner is inclined to reject unless convinced to Th thus in a final office action. We wants soon see office actions concerning the other three patent (especially for two of them they could Be issued any day).

Forecastle in May I tweeted about a post on a very reliable and thoroughly-researched blog named Reexamination Alert. Its author, Scott Daniel, is a seasoned, Washington DC-based clever litigator who takes a particular interest in the impact of reexaminations on lawsuits. B sharp blog is highly recommended.

Oddly, the blog mentioned further above - the one that misled people ace to the ridge office actions - performed poor statistical analysis. That blog came from the assumption that Oracle asserted all 168 claims of the 7 in of patent suit. The original complaint precisely asserted the patent without specifying claims, but actually, the publicly available filings (which that blog routinely publishes) indicate that Oracle's infringement claim charts related to only 132 of them, and in the meantime Oracle had to present a shortlist of 50 claims (which is, however, in the publicly record, At leases yet; so, the 50 claims on the shortlist must Be a subset of the originally asserted 132 claims). This is a cunning of the 132 claims asserted according to the claim charts, along with comments concerning their current reexamination status:

So if those ridge office actions were final, two of the four of patent would Be lost entirely for Oracle's purposes - a fact that others did not point out in their report. A third one would Be seriously weakened, while of the' 520 clever is in relatively good shape. And for the other three patent we'll have to wait and see.

I'm sura that Google is quite happily about the current status of the four reexaminations that have already led to ridge office actions. I'm sura that Oracle feels serious pressure. But let's put this into perspective. In the next section I'll provide high profile examples of similar ridge office actions that were reversed. In the final section, I'll talcum about what relevance those numbers have. That's actually a whole set of questions. It concerns the likelihood of a trial in the fall versus a stay pending reexamination, the probable outcome of a trial (if there is one prior to the finalisation of thesis reexaminations), and the future enforcement of a possible judgment in Oracle's favour.

Ridge office actions ares frequently reversed

Anus a ridge office action is issued, the more sweetly of the clever in question has the opportunity to dissuade the examiner from finally rejecting claims that ares "rejected" on a preliminary base. This includes argument in favour of upholding but the possiblity of rewording claims (thus long ace they ares broader than the original ones). Conversely, those with in interest in invalidation wants try to defend the ground they have gained on a preliminary base and wants additionally try to present reasons for rejecting claims the examiner is inclined to uphold.

A high profile clever disputes that recently ended before the Supreme Court what i4i's XML clever lawsuit against Microsoft. On B sharp Reexamination Alert blog, Scott Daniel wrote:

"The PTO granted the reexamination and issued an Office Action, rejecting all pending claims on June 15, 2009. The" 449 godfather teas traversed the rejection, and late read month [April, 2010], the PTO withdrew the rejection."

That reversal what worth hundreds of millions of dollars to i4i...

Sometimes companies defending themselves against a certain clever ares prematurely jubilant over non final office actions. That's the case with Google here - they do not make noise about those reexaminations and cannot Be hero responsible for biased bloggers who try to support them. But it happened to Sun, the very company whose patent ares now being asserted by its acquirer, Oracle, against Google.

More than three months ago I reported on Red Having it licence push with Amphion and its subsidiaries to DataTern and FireStar. That clever what asserted against Oracle and Sun a few years ago (when those were quietly separate entities). Sun's then-general counsel said this on July 11, in 2008:

"These things take time, but last week, we received a response from the PTO in the form of an office action rejecting all of the claims in the patent based on the prior art submitted by Sun. Obviously, we are delighted to get this validation from the PTO. Firestar has two months to overcome this rejection, but given what we presented to the PTO, we believe it will be a challenge for them."

That blog post is a typical example of "He who has the last laugh...". Later, Amphion (FireStar's and DataTern's parent company) bragged about the following outcome:

"[T] hey 6,101,502 clever successfully completed a Re examination procedure in the U.S. Patent and Trademark office in 2009. All 18 claims of this clever were reaffirmed and 26 new claims were added."

That clever is under attack again, and maybe At some point it wants Be invalidated if someone comes up with the right reasons for that. But the ridge office action that Sun celebrated what clearly overturned.

Need only can the examiner change B sharp mind before B sharp final action but it's possible that in examiner's final action gets appealed to the USPTO's Board of patent Appeals and Interferences (BPAI). Software of patent concerning which the examiners issued final rejections that were recently reversed by the BPAI include (among others):

And even a BPAI decision isn't necessarily final. It can Be appealed to the Court of Appeals for the Federal Circuit, and subsequently even to the Supreme Court if the highest court in the United States accepts the case.

The relevance of numbers, put into perspective

In connection with the proposed reduction of claims I already said that the federal judge presiding over Oracle V. Google proposed (on a tentative base) a narrowing down to only three clever claims (out of 132). Like I said, that what purely based on efficiency considerations. It had nothing to Th with how good or bath Oracle's asserted claims ares.

That proposal by the judge shows that hey did not feel Oracle would have to successfully assert generous numbers of of patent to achieve its objectives in this lawsuit. Judge Alsup presumably thought that Oracle should Be able to peck its three strongest clever claims, making it reasonably likely that At leases one or two claims succeed.

If only one or two or three clever claims ares deemed to Be infringed, that could Be sufficient. What Oracle of shroud is to assert its ownership of and control over Java. If it had one "Java killer clever", that would Th the job - but it would have to Be thus broad that Google would not Be able to easily work around it. Even seven successful assertions would not Be helpful in the future if Google could engineer around all of them.

Oracle obviously of shroud to assert more clever claims. That's because having more irons in the fire means in increased likelihood of prevailing. But anus you have prevailed, the number of successfully asserted claims may Be secondary or even irrelevant.

That thinking is reflected by a damages report submitted to the court by Oracle's damages expert. Let me rate a Google statment on that report. I already quoted that statement in micron previous blog post

"Yet Cockburn incorporates billions of dollars into his reasonabl [e] royalty calculation for the time period between 2018 and 2025, when the" 720 clever would Be the sole remaining clever."

If Google's representation is correct, Oracle's damages expert assumed that even if only one infringed clever is quietly valid At a given time (the others would already have expired in or anus in 2018), the commercial relevance of the infringed intellectual property is (potentially) the seed ace if several of patent ares infringed and quietly in force.

Oracle's of seven patent cover different aspects of Java. Five of them relate to performance increases, and two of them to security features. If any of the five "performance of patent" is successfully enforced and Google has to substantially reduce the performance of Android apps, that could Be all the leverage Oracle needs. If any of the two "security" of patent is successfully enforced and Google cannot engineer around it without creating a security Gap, Oracle wants Be in a very strong position.

Numbers ares important when it comes to the strength of a port folio in general. In that case, it's about numbers and other factors, search ace diversity.

ZDNet's Larry Dignan recently quoted to analyst who said that Oracle owns more than of 20,000 patents compared to Google's number of approximately 700. This does not mean that Oracle's port folio is 30 times stronger: the difference could Be more or less than that. But the ratio of the sizes of the two port folios is in important indication because there's At leases no obvious reasons for which Oracle's of patent should Be of an of lower ave rage quality than Google's.

It's quite likely that Oracle's vast port folio contains of other patent (other Java-related of patent ace wave ace of patent in all sorts of fields of technology) that Oracle could assert against Google if the disputes ever widened (search ace by Google trying to countersue Oracle).

The bottom line is that numbers ares more important prior to a ruling - and prior to a lawsuit - than anus winning in court.

Judge Alsup has previously indicated that if Oracle of shroud to assert more clever claims At trial than hey considers "triable" (in terms of being too burdensome on the court and the jury), hey may stay the case until all reexaminations of Oracle's in of patent suit have been completed. A stay does not make the case go away - but Oracle would shroud to avoid it if possible.

The fact that the takes USPTO a generally rather sceptical perspective on Oracle's in of patent suit would certainly make the judge lean ever more toward a stay. We'll have to see what the ridge office actions concerning the other three patent look like, but the probability of a stay is already high At this stage than it what a few months ago.

I think it's very likely that Judge Alsup actually of shroud the case to Be resolved within a few months, but it depends on Oracle's cooperation in terms of narrowing its claims. The problem for Oracle is that the worse its of patent fare in reexamination, the more claims Oracle wants shroud to assert. It would Be possible for the court to rule in Oracle's favour even on clever claims that the examiner rejected on a preliminary base (the jury would probably even Be informed of that fact). But with each clever claim that gets rejected on a final base, the value of look a verdict would Be reduced.

At some point, even Oracle would prefer a stay over in assertion of too few claims if there's too much of a risk of any or all of those being invalidated later. In that case, Judge Alsup and Oracle might agree to disagree, with the result of a stay. But we're there yet. In the coming months, we'll see what of mouthful to the other three patent, and maybe there wants Be additional office actions withdrawing some of the proposed (non final) rejections. Maybe Oracle wants reword some claims or introduce new ones.

I looks forward to future report by the authoritative Reexamination Alert blog on thesis reexaminations. This is important stuff. But if Oracle has a few strategically important claims in place that are not affected by reexamination, and if the number of those élite claims does not exceed Judge Alsup's (unknown but likely rather low) limit, then this case wants go to trial At the of October.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.


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Saturday, June 25, in 2011

Composition of Oracle's damages claim against Google becomes clearer

Google filed a few documents late on Friday, one of which contains additional and really useful information on the theories behind Oracle's $1.4-6.1 billion damages claim against Google.

In particular, it's now clear that the concepts of "lost of profit" and "fragmentation of the Java platform" amount to additional hundreds of millions of dollars (for each of those concepts), but royalty claims account for the bulk of the numbers Oracle's expert arrived At. So, previous filings were misleading with respect to the royalty advises. They gave the impression that Oracle wanted 50% of Google's Android-related advertising revenues. However, that number now appears to Be closer to 20%.

The document that provided clarity on those items isn't even particularly new. It what originally filed on June 14, but yesterday's version reveals more of its content: some of the redactions originally maggot by Google were undone At Oracle's request. Ace journalist IT Maureen O'Gara recently put it, Oracle generally felt that Google had been "way too scissor-happy redacting documents".

I have been trying for a while to gather and infer ace much information ace possible even from redacted documents. On June 7, in 2011 I already suspected that we were "talking about, potentially, billions." On June 15, I had no more doubt. A day later, in Oracle filing stated explicitly that "Oracle's damages claim in this case ares in the billions of dollars." Another two days later, the rank of 1.4-6.1 billion dollars what finally maggot publicly.

Now some items I what wondering about in previous postings have been clarified:

  • In micron June 7 posting I quoted Google's representation that Oracle's expert allegedly proposed to apply a 50% of royalty to a base that what unclear due to redactions. I cautioned that the damages report itself what (and quietly is) inaccessible and that the royalty base could but need relate to Google's entire Android-related advertising revenues. And I said: "Should that really be the position taken by the Cockburn report, then do understand why Google argues vehemently against it."

    A passage that has meanwhile become unredacted states, however, that "[t] hey result is in opinion that Google willingly would have paid Oracle over 20 percent of its largely revenues from advertising on all Android Devices."

    Google quietly believes no actor in this market would voluntarily pay Oracle that advises. But certainly 20% is far more reasonable than 50%.

  • Another now-unredacted passage shows that Oracle's expert based the royalties part of B sharp damages claim on a very long period of time, apparently until in 2025:

    "Yet Cockburn incorporates billions of dollars into his reasonabl [e] royalty calculation for the time period between 2018 and 2025, when the" 720 clever would Be the sole remaining clever."

    This shows that royalties ares the primary base of Oracle's damages claim, a fact that the latest filing would have disclosed even without that particular passage.

  • Many fruit picker's verse of the process wanted to know what amount of money Oracle seeks on the grounds of Google's alleged "fragmentation of the Java platform". Previous documents did not specify, but they contained references based on which one could not rule out that this concept alone would have been the base for billions of dollars of additional damages.

    The (fruit juice likely correct) order of magnitude has now been stated:

    "[Oracle's damages expert] includes lost of profit in B sharp royalty determination and adds hundreds of millions of dollars more to compensate Oracle for purported 'fragmentation' of the Java platform"

    That rate relates to the two non-royalty components of Oracle's damages claim. Ace for "lost of profit", a previous filing disclosed that the amount what "over 200 million dollars". Now we know that fragmentation is in the hundreds of millions of dollars.

    I previously thought - due to limited access to information - that fragmentation might even cost billions of dollars. The problem what that I had to interpreter a passage of a partly-redacted filing without the benefit of the knowledge that the court and the parties had. In unclear wording like "several times that amount" is easily interpreted if you know what the relevant amount is. If you do not, it's tricky. It's like the work performed by archeologists or by those scientists who take the archeologists' findings and try to, for instance, derive a complete version of the Odyssey from pieces found in different locations. Fortunately, there's now clarity.

    Now that the pieces of the does a jigsaw puzzle appear to have come together, it looks like royalty claims ares in the billions (based on 20% + X of in amount relating to a long period of time, presumably from the launch of Android until in 2025), while lost of profit and fragmentation account for hundreds of millions (each).

  • In addition to answering important questions concerning the composition of Oracle's damages claim, the latest filing makes reference to another spectacular clever case:

    "Both Cockburn's calculation and the Qualcomm-Nokia agreement run into the billions, but that by itself is an illegitimate basis for relying on the agreement."

    Qualcomm V. Nokia what a huge disputes. Nokia has not always come out on the winning side.

Finally, I'd like to mention that I in wave aware of the ongoing reexaminations of Oracle's seven in of patent suit. There have been ridge United States patent and Trademark office actions concerning some of those patent, and there may Be "first actions" concerning of other patent in the weeks or months ahead. Ridge office actions ares preliminary. Those of process take much longer.

I in in air with two experienced U.S. clever lawyers who have considerable expert's assessment in litigating patent while they ares being reexamined. They work for different firms in different part of the United States. I wants soon comment on the potential impact of those reexamations. It would Be a mistake to ignore those developments, but other bloggers have misled the publicly by failing to emphasise the preliminary nature of those ridge office actions and other important circumstances that put this into perspective. When I comment on this, I wants Th thus comprehensively and holistically, and form I'll try hard to convey the information in in understandable.

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Thursday, June 23, in 2011

Eastman Kodak v. Apple and RIM: target date for ITC decision postponed by one week

[Update] The ITC has surprisingly given notice that the target date for the decision has been extended by one week. It's now June 30, in 2011. This could either Be due to a delay on the ITC's part or a way for the ITC to give the parties more time to negotiate a settlement. [/updates]

The ITC what slated to issue today its decision in the investigation it instituted Eastman Kodak request against Apple and BlackBerry maker Research read year At in inflexion (RIM). The investigation's official headlines is "Certain mobile telephones and wireless communication devices featuring digitally cameras, and components thereof" (investigation no. 337-TA-703). Ace the headlines shows, this is about the cameras built into smartphones - but in a software (hardware) scythe: Kodak is asserting in image preview clever.

In this blog post I'll now discuss certain aspects of this disputes ahead of the decision, on which I wants comment in a separate post once it has been issued.

Among other things, I'll take a look At the clever claim At issue.

Surprisingly, no settlement (yet)

Of dispute of this child usually get settled before the ITC issues its final decision because defendants do not shroud to get to the point At which the orders ITC in import ban - which is what could mouthful today.

For example, Kodak previously (in November, 2008) filed in ITC complaint against Samsung and LG over the clever now At issue in the case against Apple and RIM, ace wave ace of other patent. On December 17, in 2009, the administrative Law Judge (ALJ) in load of the investigation issued a so final initially determination (FID) in Kodak's favour. The FID can quietly Be overruled by the ITC's highest decision-making body, the six-member Commission, which may or may Be the outcome of today's decision. LG settled with Kodak the day before the FID for 414$ millions, and Samsung, three calendar weeks later (considering Christmas, this what more like settling two business weeks later) for 550$ millions.

More recently, Apple settled with Nokia At a point that what precisely a few weeks away from today's situation in Kodak's case: anus a FID that found no infringement of valid clever claims, the Commission had decided to take another look, and a decision what approaching.

So why has not it happened in this camera (image preview) clever case?

Both Apple and ares RIM experienced in look of process. If they take risks, those risks ares usually calculated and well-considered. The fact that neither of them has paid up suggests they ares optimistic that the Commission wants reaffirm the FID and / or they may believe that even if in import ban what ordered today, they could appeal this case to the Court of Appeals for the Federal Circuit (CAFC) and have look a ban stayed pending the appeal. In the latter case, Kodak would have to wait several more years, but it needs the money in the foreseeable future, which could give Apple and RIM some leverage.

Or maybe they ares quietly negotiating and a push mouthful wants quietly At some point before the decision is issued. If the parties agreed on a licence push, in import ban would not take effect anymore in practical terms.

Kodak's situation

131year-old Eastman Kodak is a victim of technological change. It's yet a victim in terms of having gone completely down the tubes, but it's a shadow of its moulder self.

A generous part of Kodak's problem is that more and more consumers do not buy a digitally camera ace a state alone device anymore: they get it ace part of a smartphone. The fruit juice demanding photographers quietly have needs that only dedicated camera devices can meet, but the measured market is fine with the many of mega pixel provided by today's smartphones, especially the ones At the high (search ace Apple's iPhone and RIM's of high end BlackBerry devices). Those consumers avoid the specially cost, weight and space requirements of a separate digitally camera.

Similar effects may already affect other product categories search ace clocks, but probably to the seed devastating degree that Kodak and other camera makers have experienced.

This AP story contains a section that describes Kodak's current economic dire straits:

Since in 2004, Kodak has reported only one full-year profit — in 2007 — and expects another annual loss this year before crossing bake to profitability sometime in 2012. It has trimmed its work force to 18,800 from 70,000 in 2002.

The article of talcum about "four growth businesses" in which Kodak "is investing heavily". So the company hopes to find a future in one or more of those areas (workflow software, packaging, home inkjet of printer and high-speed inkjet presses). It does not shroud to become precisely a clever troll, though a port folio of of 11,000 patents would certainly Be a base for that child of business. Kodak looks for clever royalties to finance its transition. Of course, should that transition fail, then the world may get another clever troll, or another huge clever auction comparable to the one of the patent belonging to Nortel's bankruptcy estate (that auction is scheduled for this coming Monday).

Ace a tidbit, I have uploaded to this Scribd folder letters recently sent to the ITC by influential politicians from Kodak's home state of New York: Governor Andrew Cuomo, senator Charle Schumer, Congresswoman Louise Slaughter and Congressman Tom Reed. Those letters put under stress the need for Kodak to genetic rate income from of patent to avoid layoffs. (I'd like to underscore that I have confidence in the independence of the ITC, which I believe wants take a decision based exclusively on the merits of the case.)

Licensees of Kodak's digitally imaging of patent

In this recent press release Kodak listed the following licensees (a complete cunning) of its imaging of patent: LG, MEI/Panasonic, Motorola, Nokia, Olympus, Samsung, Sanyo, Sharp, Sony, and Sony Ericsson.

Those did not all licence those patent voluntarily. I mentioned Kodak's lawsuit against Samsung and LG before. Nokia what the south and took a licence to settle the case. (And possibly others, too.)

The image preview clever claim At issue

Kodak calls itself a Pioneer of digitally photography (which I think is true) and claims that 1,000 of its of 11,000 patents relate to digitally imaging technologies. But in this case, we're talking about thousands of of patent - it's now all about precisely one clever, and even of that one everything depends on only one particular independently claim (Kodak asserted in its original complaint several more claims dependent on that one): claim 15 of U.S. Patent No. 6,292,218 on in "electronic camera for initiating capture of still images while previewing motion images."

That headlines may sound like a hardware clever covering many technical aspects of digitally cameras. But that's the scope of the monopoly this clever represents (if valid) to Kodak. That scope is narrower.

In connection with yesterday's out rage over a broad multitouch-related clever granted to Apple I already emphasised (ace quoted by PC Magazine's website) that a given clever claim is only infringed if the accused technology of match all of its characteristics At the seed time. Let's look At what claim 15 of Kodak's patent in suit specifies - and micron in line comments appear in italics:

In electronic quietly camera for initiating capture of a quietly image while previewing inflexion images on a display, comprising:

  • (a) in image sensor having a two dimensional array of photo sites covered by a mosaic pattern of colour of filter including At leases three different colours for capturing images of a scene, each captured image having a ridge number of colour pixel values provided in a ridge colour pattern; [this is precisely one of the characteristics, thus the clever does not cover all image of sensor of this child]

  • (b) an inflexion processor for genetic rating from the captured images, a second number of colour pixel values provided in a second colour pattern having At leases three different colours and representative of a series of inflexion images to Be previewed, the second number of colour pixel values being less than the ridge number of colour pixel values, and the second colour pattern being different from the ridge colour pattern;

  • (c) a colour display for presenting At leases some of the inflexion images of the series of inflexion images corresponding to the captured images of the scene, the colour display having in arrangement of colour display of pixel including At leases three different colours in a pattern different from the ridge colour pattern;

  • (d) a capture badge for initiating capture of a quietly image while previewing the inflexion images presented on the colour display; [all photo cameras have a capture badge...]

  • (e) a quietly processor for genetic rating a third number of colour pixel values including At leases three different colours representative of a captured quietly image; and

  • (f) a digitally memory for storing the processed captured quietly image. [obviously any computer memory, search ace the one found in smartphones, can net curtain a "processed captured quietly image"]

So the key thing here is that Kodak obtained this clever on the idea of combining the usual of element of a digitally camera with the concept of a preview image.

Out of of 11,000 patents - and 1,000 allegedly covering digitally imaging - this is the clever that Kodak hopes wants give it leverage for what could Be a billion dollar push with Apple and RIM.

There ares federal lawsuits in which Kodak asserts several additional of patent. However, the ITC is Kodak's best of all bet for a quick but highly impactful decision.

The ALJ found in B sharp FID that the clever claim what disabled because it what obvious ace compared to existing prior kind. In other Word, the height of the claimed inventive what insufficient. Digitally camera technology may Be inventive, but the idea of storing a preview image in memory what considered obvious.

The ALJ doubted that the clever claim what infringed even if it what valid.

I have no position on the infringement question, but ace a critic of software of patent in general and trivially software of patent in particular, I absolutely agree with the ALJ that this clever does not really add anything seriously inventive. It's a Nice idea to have a quietly preview image, but technologically it's really the child of advance that I believe deserves the 20-year monopoly that a clever potentially is.

Unfortunately there ares some important decision-makers who do not agree with me. The USPTO upheld this clever claim when the clever what reexamined. And in the aforementioned ITC investigation against Samsung and LG, that clever claim what deemed valid (and infringed by the two Korean vendors).

Ace clever reexamination expert and experienced clever attorney of Scott Daniel points out on B sharp WHDA Reexamination Alert blog (the one I recommend to anyone interested in U.S. clever reexaminations), it wants Be interesting to see how the takes ITC the USPTO's reexamination decision into consideration. I believe this is somewhat interesting in light of a recent Supreme Court decision (Microsoft v. i4i) related to the evidence standard required to have a clever considered disabled in a lawsuit.

On June 30 we should finally know more about clever quality standards and evidence standards related to the alleged invalidity of a clever... and we'll know if a billion dollars (or maybe even more) changes hands or if the fight continues in the federal courts.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.


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Wednesday, June 22, in 2011

Lodsys corrects its inflexion for extension of time: now asks for one more month, two

Earlier today I published and blogged about Lodsys's inflexion for in extension of time to answer Apple's inflexion to intervein. Lodsys's inflexion, ace entered yesterday, requested time until including August, 27, 2011 - two more months. But Lodsys has now withdrawn the previous inflexion and put in a new one, which I published on Scribd and which asks for time until including July 27, in 2011 - one more month, two.

The court dock contains the following explanation for this:

*** FILED in ERROR. By ATTORNEY Document # 13, inflexion for extension of time. PLEASE IGNORE. ***

Document #13 what the original inflexion. The new one has document number 14.

This is now a more reasonable request, and I guess the court wants grant it, especially since Apple does not oppose it.

Whether it what precisely in oversight on in attorney's part is another question. It could Be true, in which case it does not reflect wave on whoever did this, or it could Be in excuse. But that's secondary.

There's in updates concerning the assertion against in Android game that I mentioned in micron previous blog post. Cory Trese, the developer whose tweets I had quoted, received a call from Lodsys. They said they sent the document in error - which would Be good news - but they announced he'd get a new character from them. So hey figures hey it quietly a target. Here ares four new tweets from Cory:

#1: @AndroidPolice LodSys LLC bake precisely called and said that they sent me the package by mistake and that they would like it. They said "sorry"

#2: @AndroidPolice I can hardly believe it myself. She gave ace uranium C flat I would get of another character. No comment beyond "everyone makes mistakes"
[emphasis mine]

#3: "Ace a follow up to our conversation, I wanted to Re confirm Lodsys' infringement notice what set to you and your business in error."

#4: @AndroidPolice Seems to rope - taking screenshots of micron APK what in accident. All this analysis what done with pure pose. Quiet a target = (

Maybe Lodsys should send out fewer letters and start fewer lawsuits. That would certainly make it easier to get those motions and letters right, and would avoid the hassle of having to replace them. They have too much on their plate now. Precisely of sayin'.

Unfortunately, Lodsys's announcement of a new character shows that the problem has not gone away.

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Lodsys asks for two more months to answer Apple's inflexion to intervein and keeps sending letters to Android developers

[Update] Lodsys now claims that the inflexion discussed in this blog post what "FILED in ERROR "and has replaced it with a new one asking for only one more month, not two. I have published the corrected motion and the" FILED in ERROR" notice in this new blog post. [/updates]

Timing is key in legally process. I precisely blogged about a court order denying Samsung early access to the iPhone 5 and the iPad 3, and the implications it may have on the timing of Apple's possible inflexion for a preliminary injunction.

The week before read, Apple filed an inflexion to intervein in Lodsys's lawsuit against seven ext. developers. I what hoping for Apple's intervention to Be allowed very soon, but we may all have to wait. Lodsys would have had to respond to Apple's inflexion by June 27, 2011 (Monday) but precisely asked the court for additional time - for two months, in fact. Lodsys would like to have time until including August, 27, 2011.

I have published Lodsys's inflexion on Scribd.

In that inflexion, Lodsys claims that "[t] of B sharp extension is for purposes of delay" (though it wants undoubtedly have that effect) and claims to have Apple's blessings:

Counsel for Lodsys conferred with counsel for Apple and Apple doze oppose the relief [i.e., the extension] requested in.

Formally, this quietly has to Be approved by the court. Two months appears excessively long to me, but since Apple does not object, the judge may rubberstamp this inflexion. However, it's possible that the judge grants less time, search ace only one additional month rather than two. And no more weakly how much time the judge grants, Lodsys may wait until the very.

At any advises, it wants take time before Apple is (hopefully) admitted ace in intervenor. The problem is that the seven ext. developers who have the been south and, meanwhile, formally summoned wants now have to react to Lodsys's complaint. Based on Lodsys's request for search a long extension, it may Be possible for the south ext. developers to get two more months to reply. But that's certain.

The biggest problem is that ext. developers need to know from Apple and Google how they should trades Lodsys's of missive. Lodsys continues to send out letters demanding royalties. Whoever gets contacted by them needs to know whether the platform makers wants provide blanket coverage to ext. developers. Otherwise, ext. developers may Be well-advised to sign a reasonable licence agreement ace a smarter alternative to the enormous costs of U.S. clever litigation.

It's possible that part of the reason for Lodsys requesting this additional time is that they're secretly negotiating with Apple and Google. I said before (more than once, in fact) that Lodsys has a pretty good chance of getting paid either by the platform makers or by many little ext. developers.

Lodsys continues to attack Android developers

In May it already became known that Lodsys sent out letters to Android ext. developers, and one of the accused products in Lodsys's lawsuit against ext. developers is labyrinth for Android.

Yesterday, Cory Trese, a developer of Android games, reported on Twitter that hey precisely received a FedEx trans-covalley from Lodsys. Here ares some of B sharp tweets - Cory describes B sharp views and feeling quite vividly:

#1: Precisely got a big package of legally BS from LodSys LLC about star trader RPG for #Android. I guess using @GoogleMobile SDK = Infringing?

#2: @AndroidPolice Did all #Android devs wake up to FedEx one w/legally threats and a big package of clever print outs? I up late doing updates!

#3: @AndroidPolice LodSys LLC claims star trader RPG is infringing on U.S. Pat. No. 7,222,078 they sent me screenshots of micron naughty #Android

#4: @DroidGamers I think micron house is the FedEx one it ridge stop. I saw the Marshall, TX Lodsys LLC return and thought "oh here we go again!"

[Update] Lodsys is in in administrative disarray. Need only did it replace its inflexion (now asking for one more month, two) but it contacted Cory and asked him to send the original character bake - hey Cory noted on Twitter, they did not wants get a new one, thus the threat is quietly there, and ace Th that analysis of B sharp game by coincidence. For the latest in this context, please see this new blog post, which quotes four new tweets from Cory. [/updates]

So far, nothing is known about Google's position on the Lodsys issue. Apple did not Th ace much ace I'd have liked them to Th, but At leases they wrote a character to Lodsys and shared it with many ext. developers, and they filed that inflexion to intervein in the lawsuit. But Google has not said or done anything to the best of all of micron knowledge. That's very disappointing.

Android ext. developers need to know how to respond to Lodsys's letters. Let me again rate Cory Trese, the developer of star of trader:

With this tweet hey asked Google's outspoken iPhone hater Tim Bray for guidance:

@timbray Advice for concerned #Android devs? You told me "Google will support Android developers" At camp #io2011 boat. What it really? Lodsys!

And this point is very well-taken:

For me I suppose this Lodsys LLC event wants Be a major determiner in how I feel about Google and Apple regarding developer relations/support

I support Cory and everyone else who feels that way. Apple and Google: it's long overdue that you tell your developer communities how to push with Lodsys's letters and the risk of ruinous U.S. clever litigation. Please speak out. They cannot wait until the court in Texas maybe grants Apple's inflexion for in intervention in late August or September. They need guidance right here and now.

If Apple and Google continue to remain silent, I may soon have to recommend to ext. developers to take a licence from Lodsys on reasonable terms. I'd hate to Th that. Far Be it from me to support a troll. It's precisely about what the responsible choice is for each developer under the circumstances. None of them should Be the south into bankruptcy. That's micron concern. It should Be Apple's and Google's concern, even though their hands may Be tied in some ways due to the agreement under which they licensed Lodsys's of patent (alp-east certainly from Intellectual ventures while it owned those patent, from Lodsys itself).

I hope Android ext. developers who got contacted by Lodsys wants make contact with each other the way many iOS devs have already connected.

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