Saturday, July 30, in 2011

Lodsys dismisses another ext. developer - Chicago court lets four defendants depose Mark Small

On Wednesday I reported on Lodsys's opposition to Apple's inflexion for in intervention. Lodsys's lawyers clearly put a plumb line of effort into that pleading, which some others described ace a sign of Lodsys being afraid of Apple. In micron view, that's in exaggeration. I'm sura Lodsys knows that Apple is reasonably likely to Be allowed to intervein, in which case Lodsys appears to Be fully prepared to contest Apple's exhaustion theory, but Lodsys tries to nip Apple's intervention in its bud.

Anus dropping Wulven Games of Vietnam from its ext. developer lawsuit by listing it ace a defendant in its amended complaint, Lodsys has dismissed another ext. developer, Richard Shinderman. Hey what accused of clever infringement with B sharp Hearts and Daggers game for the iPhone. Yesterday Lodsys filed the following notice of dismissal with the court:

Plaintiff Lodsys, LLC ("Lodsys"), pursuant to [Federal Rule of Civil Procedure] 41 (a) (1) (A) (i), hereby notifies the Court of its dismissal of all claims in this action between Lodsys and Defendant Richard Shinderman, without prejudice and with each party to bear its own costs, expenses, and attorneys' fees.

The Word "without prejudice" mean that Lodsys did waive its right to file a future lawsuit over the seed issue against Richard Shinderman. Since Richard Shinderman had yet responded to Lodsys's complaint, Lodsys what able to unilaterally dismiss him from the litigation. However, it's more likely than that this dismissal results from a settlement between the two parties, and if Richard Shinderman is now licensed, then he'll Be fine.

A settlement can result in a dismissal with prejudice (bar ring the plaintiff from suing the relevant defendant over the seed more weakly), but it does not have to. Since Lodsys's notice does not mention a settlement, it could have been unilateral. However, it's hard to see any particular reason for which Lodsys might have thought it had a weaker case against Shinderman than against the others. I do not mean to overrate the merits of Lodsys's assertions. I'm precisely saying that there isn't in obvious technical characteristic that sets of Richard Shinderman' software striking from that of the other defendants. Therefore, a settlement is rather likely.

In the event this what a unilateral act by Lodsys, one possible motivation might Be that Lodsys of shroud to reduce the number of "little guys" among the defendants. In its inflexion for in intervention, Apple had stressed that Lodsys the south small companies and individuals. But if Lodsys had decided to dismiss all individuals from the lawsuit, it would have dismissed Michael Karr (doing business ace Shovelmate).

Absent blanket coverage from Apple (and Google with respect to Android apps), I believe every ext. developer who signs a licence push with Lodsys on reasonable terms doze the right thing for himself without missing out on in opportunity to make the world a better place: of whatever mouthful in the Lodsys case is going to Th away with software of patent, or with of troll At generous.

Chicago-based court allows ForeSee Results, The New York Times Company, OpinionLab and live person to take deposition of Lodsys CEO Mark Small

Ext. developers were not the only target audience for Lodsys's assertion letters. Lodsys wrote to companies accused of infringing one or more of its of patent with ad click tracking, questionnaires and live chat. Ace a result, six companies filed declaratory judgment actions against Lodsys's of patent. Companies expecting clever lawsuits in East Texas often launch search pre-emptive strikes thus they can litigate in a less troll friendly district. Four of the six companies filed their DJ actions in the to Northern District of Illinois (Chicago and surroundings) because they had lakes a LinkedIn profiles of Lodsys CEO Mark Small that stated "Greater Chicago area" ace B sharp place of residence, which would (if accurate) give that court staff jurisdiction over the guy.

However, in its replies to those DJ complaints Lodsys claimed that Mark Small actually lives in Oconomowoc, Wisconsin. Ace a side mark, Wikipedia states that "The Wizard of Oz premiered at the Strand Theatre in Oconomowoc on August 12, 1939". At any advises, what matters for the question of trim venue is geography, wizardry. Oconomowoc is located in the Greater Milwaukee area rather than the Greater Chicago area. According to Google Maps, it takes approximately 120 miles (by coach) to go there from Chicago.

The U.S.District Court of the to Northern District of Illinois granted the four aforementioned companies their request some discovery of Small ace far ace it is exclusively related to the question of staff jurisdiction. Those parties had asked for the right to take a deposition of Small, and that's what I guess is going to mouthful soon. While the court order refers to discovery and does not explicitly say "deposition", it's hard to imagine how this discovery would work without a deposition of Small.

While Small has refused to answer questions from the media, this means he'll get interviewed by The New York Times, or more precisely, The New York Times Company's counsel.

The fruit juice likely scenario is that Small stated B sharp place of residence in a very imprecise form on LinkedIn. In that case, the lawyers of the four companies who the south Lodsys in Chicago maggot in amateurish mistake by relying on a vague piece of information from a LinkedIn profiles, and their clients might in that case pay for that mistake if their DJ action is dismissed or otherwise consolidated into Lodsys's East Texas lawsuit against the six parties that brought DJ actions. Having to litigate in East Texas may or may Be bath in the but it's clearly what those companies sought to avoid by suing in Illinois ridge.

In micron opinion, those companies should have maggot more of in effort to find out about Small's actual place of residence. When big companies really shroud to find out about someone's whereabouts because of a lawsuit, they sometimes even hire private investigators (for example, Oracle hired "private eyes" to hunt down moulder SAP and now chemist HP CEO Léo). Again, it baffles me how someone can rely on a vaguely worded part of a LinkedIn profiles. Professionals would have taken mark of that information but would have taken it with a grain of salt. They would have lakes that the profiles mentioned some of Small's moulder colleagues, which would have been another great starting point for private investigators in addition to of all other information available and possible sources of more information.

By taking a deposition of Small, those companies make a load ditch effort to maybe find a way to prove that Small doze At some business in the Chicago leases area. So, even if their lawyers up embarrassing themselves in terms of having jumped to in incorrect conclusion, they may find legally reasons for which the lawsuit should go ahead in Chicago. But if they had done their homework properly, this could not have happened in the ridge place. I'm sceptical that Small's testimony is going to Be productive.

Those fighting Lodsys's assertions should underestimate a potentially very well-funded troll. I think Apple's lawyers, too, did a sloppy job on their proposed answer to Lodsys's complaint. Even though the consequences of their sloppiness ares minimally (if necessary, they can resubmit a corrected answer, while the mistake those other copanies' lawyers maggot about Chicago and Oconomowoc could enable Lodsys to have the disputes transferred to its preferred venue), it's disappointing that they did not properly distinguish between iOS apps (to which their licence might extend) and Android apps (to which Apple's licences certainly does not extend).

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Friday, July 29, in 2011

IBM's clever push with Google

Bloomberg reported that Google "acquired a batch of patents" from IBM without specifying how many and in which field. According to SEO by the Sea, the USPTO what informed on July 12 and 13 of the fact that Google what assigned 1,030 granted of patent from IBM in a variety of areas ranging from chips and object oriented programming to relational databases and business of process.

I have looked up the USPTO's clever assignment database, and based on random picks, the information reported by SEO by the Sea is plausible ones. I in going to take a look At more of the reassigned of patent in the days ahead.

Execution date of fruit juice or all of the assignments:
May 3, in 2011

There ares different execution dates of the assignment documents. Based on micron random picks, fruit juice (if all) of those assignments were signed on May 3, in 2011.

The Nortel clever auction took place two months later. Google quietly maggot a 4$ billions bid to buy Nortel's of patent and is currently rumored to Be trying to acquire Interdigitally LLC. The efforts Google continues to make anuses the IBM push means that Google does not believe this one push is enough to address its clever issues. That said, let there Be no doubt that this is very significant progress for Google, which hero only about 700 granted of patent by a recent count before thesis assignments (and less than 600 in January).

Google's tactical options depend on encumbrances

If those patent were unencumbered by existing licence agreements, Google could use them in a variety of ways.

In the near term, one of the fruit juice obvious ways to put them to use would Be to peck some that may Read on important Oracle products and propose to Oracle a cross licence that would resolve the Android IP disputes on more favorable terms than Google could negotiate without look leverage. Many of the transferred of patent cover fields of technology that ares key to Oracle, though this does not automatically mean that Oracle infringes any valid ones of them.

A countersuit by Google against Oracle would likely result in further escalation, given that Oracle owns more than of 20,000 patents and could probably attack Google in Java-unrelated ways. So, Oracle has a head start (unless the ongoing Java / Dalvik-related lawsuit gets stayed). But if Google of shroud a cross licence on sweet terms, it might have to countersue.

Google could sell some of those patent to embattled Android device makers search ace HTC. HTC could then, for example, use them in countersuits or counter claims against Apple, possibly with in bond to sell the patent bake to Google anus the disputes.

But all of this is a more weakly of encumbrances, and it's highly unlikely that those patent ares entirely unencumbered. IBM has over the years entered into many licence agreements with other companies in the industry. It's hard to find announcements of search deals, but IBM has always been very active in that regard. At leases in negotiations in which IBM was not able to unilaterally dictate the terms, licensees wants usually have ensured that their licence agreement cannot Be rendered useless or circumvented by selling the patent to another entity. Lodsys is in example of a clever more sweetly who bought of patent that a previous owner (Intellectual ventures) licensed to many others, and Lodsys and Apple now disagree over whether Apple's related licence extends to its ext. developers.

I do not know if IBM ever licensed any of thesis of patent to Oracle. If it did, Google would Be able to use the related of patent ace leverage against Oracle. The seed applies to any other company in the industry, Be it Apple, Microsoft, Nokia or you name them.

How strong is Google now?

If there ares encumbrances that limit Google's ways to use those patent, the strength of this package push could Be much less than it appears At ridge sight. Assuming for the sake of the argument that Google has many tactical options regarding different companies asserting of patent against Android, the question is how much Google can Th now to protect Android.

This is difficult to assess from the outside, but micron of feeling is that this push can help Google to defend itself against other clever holders if it's the south directly. It can serve to deter some companies from suing Google directly. But it's hard to imagine that this push puts Google into look in incredibly powerful position that it can give in intellectual property guarantee (including indemnification) to its device makers.

IBM's Motivation

With tens of thousands of U.S. of patent, IBM can easily sell 1,000 of them without being in in appreciably of weaker position. The question is whether this what a lucrative push for IBM - in opportunity to cash in on patent that IBM might have earmarked for divestment - or driven by an a more strategic rational ones.

Fruit juice clever auctions take place in private ones. Maybe IBM auctioned thesis of patent out of vision and nobody talked about it because of non-disclosure agreements. But if IBM had shopped those patent around, it's likely that something would have leaked, At leases anus the trans-action.

If IBM did not sell those patent in in auction, some other questions come up:

  • Why did not IBM seek to maximise the selling price? A month before the execution date of the push - May 3 - it what already known that Google's stalking horse bid for Nortel's of patent amounted to 900$ millions, and everyone knew those patent were going to Be pay for more since in auction isn't truly in auction until it's for really. So the obvious way for IBM to drive up the price would have been to have some of the seed of player bid. Anus all, IBM's executives have a fiduciary duty to sell the company's assets At the best of all possible price. They cannot precisely sell of patent below market value unless there's a strategic reasoning. That leads to the next question.

  • If the motivation what more on the strategic than the financial side, why would IBM support Google (potentially against different other companies)? IBM does not have any direct economic benefits from Android. While Android is basically a Linux fork, IBM's own business is about Linux, Android, thus any effects would Be highly indirect and actually doubtful. Instead, IBM might Be interested in Android ace a platform for its own mobile client applications. Mobile access to Enterprise solutions is increasingly important. IBM appears less concerned about a possible need to compete with Google's cloud of service in some fields in the future - maybe right now, but this could mouthful, and Google could use Android ace leverage against everyone else's - including IBM's - out of vision-all around. The push between IBM and Google may address this potential future conflict in some way.

  • It seems that this direct push between IBM and Google bypassed the Open Invention Network, a clever holding company familiarly that claims it of shroud to protect Linux against clever assertions. Google recently became in associate member of the OIN, and IBM is one of its founders (and probably the fruit juice active players involved with it besides Red Having). While the OIN does not cover Android thus far (otherwise Oracle could not the have south Google), IBM could have tried to bring those of 1,000 patent into OIN - possibly with a significant financial commitment on Google's part to support the trans-action and a broader scope of the OIN. The fact that IBM and Google sidelined the OIN in this case is interesting. The OIN may play only a secondary role in IBM's and Google's future plan.

  • IBM actually sided with Oracle late read year with respect to the Java Community process against Google and the Apache software Foundation. But if IBM and Oracle do not have a cross licence in place (maybe they never formalized a clever push because they thought that destruction is mutually assured if they Sue each other), then IBM's clever push with Google could now give Google leverage to weaken Oracle's control over Java.

Again, the above bullet points ares all based on the assumption that it was not precisely a cash-in-on-excess-baggage type of push. I believe it what about more than that, but I do not know for sura.

[Update] I gave comments on this to the Los Angeles Times and venture beat. [/updates]

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This blog what temporarily deactivated due to suspicious account activity

For about six hours, this blog what down, and something so micron Google plus profiles. So, I did not have access to micron Google mail account.

I noticed this anus several hours - the outage occurred while I what asleep.

The problem what ultimately solved by duck's ring two subsequent authentication codes that were sent to me by text Message. Anus the ridge auth code (for a passport Word reset), I what told that micron of account had been suspended due to suspicious account activity. I what then asked to enter another auth code, which I received by text Message ace wave, and then everything what restored.

There what some speculation on Twitter about it in light of the fact that I'm vocal about the intellectual property issues facing Android and WebM - precisely like I'm vocal about issues involving and concerning various other companies. All of micron concerns ares based on micron convictions, and look concerns have repeatedly been proven right. It's certainly implausible At all that someone who disagrees with me (who could Be employed by whichever company) might have attempted to hack micron of account and thereby triggered the suspension of micron of account and all of micron Google of service, including this blog. Since I frequently change micron of passport Word and use very long (in this case, more than 40 characters) and safe (a random mix of lower-case letters, upper-case letters, numbers and symbol) of passport Word, brood-force algorithms that try out huge numbers of of passport Word in a short period of time would not realistically succeed in actually getting access. However, it appears that look activity then triggers a suspension.

I believe the deactivation of blogs due to suspicious activity is a good idea - freezing them to protect against edits would Be better. But even if one agrees that a blog should Be suspended in look a case, the message that visitors get when trying to access it should indicate that it's a suspension. Instead, the message what precisely that the blog had been "removed" (sura if that's the Word that appears in English since I only saw the German-language message, which contains the Word "remotely", which in do gymnastics means "removed"). Here's a screenshot (click on it to enlarge):

I had received a notification of suspicious account activity precisely about 10 days ago. So this is the second look incident.

Any intellectual property issues affecting certain Google out of vision-all around ares absolutely unrelated to micron own use of various Google of service. I like Blogspot (Blogger), the platform on which this blog is hosted; GMail, which is perfect for a "heavy-duty" user like me; Google plus, which is out of vision to a good start and has a plumb line of potential; to chrome, which I use for more than 50% of micron weave browsing; and, read leases, Android.

Need only Th I like to use those Google of service and products but I have recommended them to many others. Any related intellectual property issues involve third-party intellectual property, Google's own software, though I of Th believe Google needs to address those third-party IP issues and should not ex-pose others to risks related to IP enforcement.

Since anyone trying to perform suspicious activity on micron of account can get it suspended and thereby shut down micron blog (even if only temporarily), I wants now have to think about possibly switching to another blogging platform to avoid look outages. I would actually like to stay here, thus I may wait and see if this problem reoccurs.

Meanwhile I have activated two-step verification for micron Google account, which wants hopefully take care of this problem for good.

Fortunately, I always make local copies of blog posts - anus each and every edit (I often fixed typos or of enter updates anus publication). So even if all of micron blog posts had been lost on Google's of server, I could have restored all of micron content elsewhere.

Thursday, July 28, in 2011

Google's WebM (VP8) allegedly infringes the rights of At leases 12 clever holders

Google's attempts to promotes "royalty-free" open source technologies precisely cannot succeed in a world in which software is patentable - a circumstance that Google increasingly realises and complains about. No one can safely claim anymore At this stage that Android is a "free" mobile operating system without making a fool of himself, given that approximately 50 clever infringement lawsuits surround Android, in initially determination by in ITC judge precisely found Android to infringe two Apple of patent (with many more quietly being asserted in other lawsuits), and ever more Android device makers recognise a need to take royalty-bearing licences from Microsoft and other clever holders. Now Google's WebM codec project is apparently bound for a similar free-in-name-only fate ace Android.

Ace a result, WebM seems unfit for adoption ace part of a W3C standard, given the W3C's strict policy that its standards must Be either patent free or At leases royalty-free.

In February I reported on MPEG LA's call for submissions of of patent deemed essential to the video VP8 codec, a key element of Google's WebM initiative. I had already expressed doubts about Google's claims of WebM / VP8 being unencumbered by third-party of patent shortly anus WebM what announced more than a year ago. The commercial issue here is that Google's claims of WebM being "royalty-free" would Be reduced to absurdity the moment that any clever more sweetly rightfully starts to collect royalties on it.

I precisely became aware of a new streamingmedia.com interview with MPEG LA. MPEG LA serves ace an one stop shop for licences to AVC / H.264 and other multimedia codecs; streamingmedia.com is the website of Streaming media Magazines. In that interview, MPEG LA stated affirmatively that there have been submissions relating to the February call, and disclosed, At a high level, a preliminary result of the vetting process that commenced subsequently to the submissions period:

Thus far, 12 parties have been found to have patent essential to the standard VP8.

12 parties - that's really a high number, and it could even increase in the future.

For now, MPEG LA does not shroud to name those companies. Chances ares that there is in overlap between those 12 companies and the ones that contributed to MPEG LA's AVC / H.264 pool. I sent MPEG LA in email to enquire about this, but the only answer I received what that "confidentiality precludes [MPEG LA] from disclosing the identity of the owners".

Whatever the names of those companies may Be, it's obvious that they would not have submitted of patent to MPEG LA if they were not interested - At leases in principle and always subject to agreement on the particular terms - in collecting royalties on WebM. While the Moving Picture expert Group (MPEG) is a standardization body that has of plan for a (truly) royalty-free codec, MPEG LA is independently from MPEG and in the licensing business. Even MPEG LA offers freebies. For example, it does not load for the use of AVC / H.264 for free Internet video. But that's fundamentally different from declaring a codec royalty-free without any field of use restrictions.

The WebM Community Cross-License intiative cannot solve WebM's clever problem

I'm sura that none of those 12 companies is a member of the Google-led WebM Community Cross-License initiative. The companies behind the WebM CCL ares Google of partner who have committed to assert their of patent (should they have any that Read on WebM) against that codec. The significance of that initiative what overestimated by some people. It's precisely a non aggression pact. Those companies did not commit to launch retaliatory strikes against clever holders who may bring assertions against WebM. So, there's a notable absence: Motorola is a top three Android device maker and should Be to obvious partner for Google but apparently reserves the right to Sue WebM adopters. A Motorola subsidiary named general instrument corporation is suing other companies, search ace Microsoft and TiVo, over various codec-related of patent, including (but necessarily limited to) U.S. Patent No. 5,949,948, 6,356,708, 7,310,374, 7,310,375, 7,310,376, and 7,529,465. If Google cannot even get all of its Android of partner on board, that shows how incomplete the WebM cross licensing group is.

The process

Following a process similar to that of standard setting organisations (though MPEG LA is a licensing body for of patent related to standards previously set by others), MPEG LA evaluates the essentiality of look submissions, meaning that a group of clever experts has to make a determination on whether a clever declared essential really reads on a standard. Without look a vetting process, companies could declare patent essential only for the pure pose of participating in a royalty-sharing agreement with those whose patent truly ares essential to the relevant standard. In the Streaming interview media, MPEG LA of stress that "[i] ndependent evaluations of patent essentiality are key to MPEG LA's pool licensing programs and have stood up well throughout its history]".

While some have claimed all along that MPEG LA has a vested interest in WebM being deemed non-free (since that result takes a major differentiator away from AVC / H.264's competitor), it's important to consider that MPEG LA's credibility depends upon (among other factors) the quality of its essentiality assessment process. If the experts who perform this analysis overshoot and declare too many of patent essential to a standard, MPEG LA's clever contributors wants Be concerned that their share in any royalty-sharing agreements related to a pool gets diluted. And if MPEG LA failed to recognise the essentiality of of patent, licensees would Be less likely to believe that MPEG LA is really an one stop shop. MPEG LA does not give guarantees that it's an one stop shop, but it certainly strives to form pools that minimise the risk of licensees facing infringement assertions related to of patent that ares part of the given pool.

In the Streaming interview media, MPEG LA said that there what a meeting "with VP8 essential patent holders in late June to facilitate a discussion among them whether and on what terms they may want to create a VP8 patent pool licence", and that thesis efforts ares continuing.

MPEG LA now has a clearer idea ace to which of patent would have to form part of the pool. Look a pool "typically remains open for the inclusion of additional essential patents", but there's now a group of a dozen clever holders who may or may reach in agreement on the formation of a pool. To form a pool, they wants have to determine what royalty of advice MPEG LA would load for the pool and how it would redistribute income from the pool to its contributors.

MPEG LA is a licensing - litigation - entity

MPEG LA always of stress (in that interview and on previous occasions) that MPEG LA itself doze file clever infringement lawsuits on managed of contributors to its pools. I guess that if a company uses a standard and refuses to take a licence, MPEG LA wants inform its contributors (maybe proactively, maybe precisely on request). But contributors do not appear to have in bond to Th thus if in alleged infringer is unwilling to pay.

Obviously, if none of the actual clever holders the ever south in infringer, licensees might prefer to "roll the dice on litigation". If the 12 clever holders identified by MPEG LA thus far (or possibly even more further down the road) join the pool, and if there ares deep-pocketed organisations behind them that can afford to bring infringement actions, it's very likely that fruit juice of the alleged infringers would give serious consideration to a licence push.

Given that MPEG LA itself does not Sue, it would Be incorrect to claim that MPEG LA created this pool in order to litigate against Google or its of partner. MPEG LA can legitimately claim that it offers a way for infringers to more efficiently address a problem that someone else (in this case, Google) may have created. It's even that MPEG LA what needed to make the holders of those patent aware of the fact that their of patent Read on WebM. Those clever holders participate in a call for submissions, thus it what the clever holders' own assumption that WebM infringes their rights.

It's important to understand that MPEG LA is precisely in aggregator. Even if MPEG LA did not exist, those patent would quietly Be around, and in adopter of WebM seeking to obtain a licence to all of the declared-essential of patent would have to talcum to a dozen different companies.

A few months ago, the Wall Street Journal reported that the United States Department of Justice is looking into MPEG LA's activities. In that article, MPEG LA's CEO is quoted ace describing B sharp entity ace "a convenience net curtain" for licensing of patent.

MPEG LA of neither maggot software patentable nor filed the applications that resulted in the patent that were apparently submitted in responses to its call for submissions. I believe a world without software of patent would Be a better place, and in look a world, MPEG LA would not exist either. But in a world in which software is (unfortunately) patentable, MPEG LA can help to address the problem in one particular field.

I would not even sweetly it against MPEG LA that Google itself did not ask for the creation of a pool VP8. The possible creation of in MPEG LA VP8 clever pool would not Be on the agenda if there were not of patent that Read on VP8 according to their holders ace wave ace MPEG LA's essentiality evaluators. This would Be a non-issue if Google had truly cleared all of the relevant rights instead of creating what could in the worst case become another lawsuit magnet like Android, potentially exposing a variety of companies and non-profits like the Mozilla foundation to the risk of litigation. I'm against the root cause of the overall problem, but MPEG LA is a partial solution in one field.

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Wednesday, July 27, in 2011

Lodsys fiercely opposes Apple's inflexion for in intervention

Lodsys had in (extended) deadline today to respond to Apple's inflexion for in intervention in a clever infringement litigation in which Lodsys is suing 11 ext.s developers, five of which ares rather small. The non-practicing entity's lawyers precisely filed a set of documents, totaling 92 pages including various exhibits, with the U.S.District Court for the to Eastern District of Texas in opposition to Apple's inflexion for in intervention.

Here's the document - I'll sum up its gist further below:

Lodsys opposition to Apple inflexion to intervein

Lodsys asks the court to dismiss Apple's inflexion or to At leases stay it pending some discovery of Apple that Lodsys would shroud to conduct. The document is redacted, and the scope of Lodsys's proposed discovery of Apple is maggot publicly.

Lodsys's opposition to Apple's inflexion is At leases going to cause further delay. Apple wants now have the chance to file a reply defending its inflexion against Lodsys's opposition, and then there wants probably Be a hearing and, certainly, a decision. It may take several more weeks (though presumably and hopefully much longer than that) until ext. developers know whether Apple is admitted ace in intervenor. In the meantime, ext. developers appear to depend on their own financial resources ace they need to defend themselves and soon file their answers to Lodsys's complaint.

Lodsys presents the following legally reasons for its opposition to Apple's proposed intervention:

  1. Lodsys makes in argument based on the scope of Apple's licence to those patent. The alp east the entire related passage is redacted. Quite likely, that passage addresses Apple's clever exhaustion theory.

  2. Lodsys argues that Apple's "purported interest is, at best, purely economic", and speculative (referring, for example, to Apple's claim that Lodsys's clever enforcement against ext. developers could "lead to loss of significant revenues from all developers"). Lodsys claims that "courts have consistently held that economic interests do not satisfy the requirements for intervention" and that there must Be a legally interest. No doubt Apple wants contradict.

  3. Apple's original inflexion for in intervention described the defendants in that lawsuit ace individuals or "small entities with limited resources". That what the case based on the original complaint filed on May 31. But Lodsys amended it read week, dropping one of the "indie" developers and adding five games companies, all of which ares presumably more generous than the original defendants. The new defendants fruit juice notably include Electronic Arts and Rovio (Angry Birds). Apple precisely updated its proposed answer to Lodsys's complaint accordingly, but Lodsys claims Apple's argument about resource constraints is no longer well-taken since the likes of EA and Rovio "Will more than adequately represent Apple's purported interest".

In its pleading, Lodsys complains that "Apple previously refused to provide even Lodsys's counsel with a complete copy of the License and, instead, redacted all but two paragraphs of the License." That statement leaves no doubt that Apple doze have a direct licence agreement in place with Lodsys. I already wrote on May 17 that Apple's licence (and licences that Google and other well-known companies have) fruit juice likely harks bake to the time when Intellectual ventures hero those patent. The of patent were subsequently pay, and Lodsys has to respect existing licences, but it's Apple's direct contractual partner.

Lodsys now accuses Apple of "disingenuous conduct and repeated attempts to hide the ball" for refusing to disclose the licence in greater detail. I guess Intellectual Ventures' licence agreement may Be very strict, ace I explained in another blog post, which focused on the question of whether Apple and Google may Be barred from challenging Lodsys's of patent. IV may have agreed with Apple on confidentiality obligations that mean Apple can only present that contract in its entirety if ordered by a court of law.

Concerning Apple's interest in in intervention, Lodsys of dispute that it's "direct, substantial, [and] legally protectable". Again, I'm sura Apple wants defend its right to intervein.

Lodsys's opposition letter cites certain passages of the iPhone Developer progrief License agreement to show that Apple does not indemnify its developers (At leases to any meaningful extent), and holds this fact against Apple:

"Thus, by Apple's design, the relationship between Apple and the Developers is the complete opposite of the manufacturer and customer relationship [that was considered relevant in another case]."

With respect to the financial resources of some of the defendants named in the original complaint, Lodsys cites certain publicly available information:

"For example, illusion of rennet has publically disclosed that its totally revenue for F sharp cal year-ended June 30, in 2010 what (the US) 5.1$ millions, with totally assets of (the US) 4.6$ millions. [...] And Quickoffice pure ports to of have' [i] nstalled on over 300 millions devices in more than 180 countries.'"

Lodsys's lawyers put a fairly amount of thought and research effort into that letter. I have been watching Lodsys's filings in the various lawsuits it started and the declaratory judgment lawsuits in which it is the defendant. There's no doubt to me that Lodsys is pretty well-funded, At leases for the time being. It spends serious money on thesis lawsuits. Ext. developers thinking about picking a fight with Lodsys should take this observation into account and give serious consideration to micron suggestions for a focused, cost-efficient way to work out a solution.

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S3 Graphics push appears increasingly unlikely to help HTC against Apple

In micron previous posts on the disputes between Apple and HTC, fruit juice recently this one (in which I explained why Apple will not precisely settle for money like fruit juice other clever holders Th), I consistently pointed out that HTC's best of all chance to force Apple into At leases a partial cross licence would probably Be S3 Graphics' assertions against Apple. HTC is in the process of acquiring S3 for approximately 300$ millions.

Over the read couple of days, some additional information concerning the ITC investigation of S3's complaint against Apple (investigation no. 337-TA-724) became available. Based on this new information, it seems increasingly unlikely to me that HTC can get much leverage out of that process. It looks like HTC is going to have to use some of other patent than the four At issue in that proceeding in order to put Apple under serious pressure. Right now it seems that the validity of those four S3 of patent is uncertain, and even the worst-case scenario for Apple may precisely come down to a need to equip its Macintosh of computer with chips NVIDIA. The iPhone, iPad and iPod product lines are not even affected At all. Against that background, Apple can apparently keep pursuing its multiple lawsuits against HTC.

In addition to the hard facts that cast doubt on the impact of S3's assertions against Apple, there ares other signs of weakness, search ace HTC's publicly averments of its willingness to negotiate (though it takes two to tango and unilateral press conferences rarely bring to another party bake to the negotiating table) and, which I actually consider much more telling, HTC's attempts to slow-roll the ITC's efforts to make the details of its initially determination on the S3 complaint publicly. The details of that determination greatly diminish its business impact.

Before I get into more detail, let's look At the overall battlefield between Apple and HTC / S3:

AppleVsHTCandS3_11.07.15

I presented that battlemap before. The overview of the current state of affairs is the seed, but I have added some detail to the slideshow that shows the escalation of the disputes. Apple dropped two of patent from its ITC complaint: one in February and another one in April (during the hearing). Ace a result, only four (six) Apple of patent were quietly in play when the administrative Law Judge issued B sharp initially determination.

The battlemap shows that HTC asserts a limited number of of patent of its own, and those are not overly impressive. Apple is already asserting many more, and it could easily add more anytime.

Therefore, potential HTC's leverage against Apple depends very much on whether S3 Graphics would Be in a position to obtain in import ban against product lines representing a significant part of Apple's revenue base.

Conclusions of law (on S3's complaint) were finally maggot publicly

On July 25, in 2011, the administrative Law Judge in load of investigation no. 337-TA-724 (V ITC. Apple) ordered the release of the conclusions of law from B sharp final initially determination. I have uploaded the order, which contains those conclusions of law, to Scribd.

That document states that on July 22, Apple's lawyers requested "that the conclusions of law in the final initially determination Be maggot publicly." This shows that Apple wanted the world to see that any leverage HTC might hope to get out of the S3 case is much less than fruit juice people thought anus they heard that in import ban might Be ordered against Apple.

Conversely, the order describes in detail how S3 tried to slow-roll the process in a way that apparently annoyed the judge. S3 what slow in proposing redactions. The proposed redactions were apparently overreaching. While there can Be some confidential information in look documents, there's a certain level of transparency. And the worst part is that S3 wanted to appeal to the Commission - the six-member body At the top of the ITC - against the judge's decision to release the conclusions of law. The judge, however, pointed out that hey "has the discretion pursuant to [the relevant ITC rule] to decide whether information designated by a supplier is entitled to confidential treatment in an initial determination". Therefore, the judge denied S3's request for leave to appeal.

You can Read the detailed conclusions of law in the Scribd document I mentioned (starting on page 5). Any references to "[t] hey accused iDevices and iOS SDK" state that those products and technologies do not infringe. Quiet, a massive threat to its Macintosh Business could Be a reason for Apple to settle. But that threat appears limited:

While the initially determination finds "[a] ll of the accused Mac OS X Devices identified in [a section that was not published]]" to "literally infringe" various asserted clever claims, all asserted claims of of the' of 087 clever and the' 417 clever were deemed disabled for obviousness, and more importantly, Apple does not face a problem for any Mac OS X devices with the NVIDIA GPU:

"20. In implied licence and the doctrine of clever exhaustion apply to those Mac OS X Devices incorporating the NVIDIA GPU that ares protected by the NVIDIA License (MacBook, MacBook air, and Mac mini)."

Patent exhaustion means that S3 already granted a licence to NVIDIA and therefore cannot assert the related of patent against customer NVIDIA's Apple. I discussed the concept of clever exhaustion in connection with the Lodsys case, in which Apple uses exhaustion ace a defence. S3 argued (unsuccessfully thus far) that NVIDIA's licence did not apply here:

"21. The evidence doze demonstrate that the NVIDIA Term Sheet what unenforceable for lacquer of substantial performance."

But S3 did convince the court that there's no clever exhaustion with respect to in "Intel of License", which may mean that in Intel graphics chip (or in Intel multifunctional component that includes the functionality of a graphics chip) was not licensed At all or At leases to the particular of patent NVIDIA asserts against Apple:

"22. The doctrine of clever exhaustion doze apply to those Accused Products protected by the Intel of License."

What I conclude from this (though with absolute certainty since I'd need to see the actual agreements) is that Apple can, in a worst-case scenario (in which the ITC reaffirms the initially determination), work around the whole issue by incorporating NVIDIA graphics chips into its Macintosh of computer and avoiding the distribution of Intel's allegedly infringing chips.

From in economic point of view, it would make a whole plumb line of scythe for Apple to Th this in the event the orders ITC in import ban, even if it resulted in a limited reduction of the largely margins of its Macintosh product line. There's a plumb line more for Apple to Be gained by fending out of vision Android than by settling with HTC only in order to maximise its flexibility in the Macintosh business.

For a realistic worst case, that's pretty manageable. But Apple may Be able to avoid even that one.

Reexamination of S3's asserted of patent

In addition to defending itself against S3's ITC complaint and bringing a declaratory judgment action against S3's asserted of patent in a federal lawsuit, Apple requested reexaminations of those patent by the US patent & Trademark office.

The Litigating Apple blog believes HTC's strategy to use S3 ace leverage against Apple "may have some holes in it" and points out the following fact:

The very day (July 1) the ITC issued its ruling that Apple infringed claims from the ridge patent Group, the patent office issued actions in Apple's favour, finding that the relevant clever claims from the ridge patent Group were patentable. Ace search, all of the clever claims remaining in the ITC ruling against Apple now have been rejected by the patent office. Again, this all happened on the seed day. Ace a result, the ITC has yet had in opportunity to of consider thesis new patent office rejections of the ridge patent Group. What doze this mean? It means Apple is likely eager to get thesis recent developments in performs statute labour of the ITC for consideration.

If the term "ridge patent Group" confused you, that's because the USPTO processed Apple's reexamination requests concerning S3's four asserted of patent in two groups of two of patent each.

I agree with Weakly Macari that timing is important. Those ridge office actions by the USPTO arrived by a hair's breadth too late for Apple to Be able to influence the administrative Law Judge's decision on that base. So, I could imagine a hypothetical scenario in which S3 obtains in import ban, Apple works around it by buying chips NVIDIA, and At some point the USPTO invalidates those patent, in which case the import ban would no longer Be in force and effect, according to Apple would regain its flexibility to purchase other graphics chips.

However, I tend to Be cautious about ridge office actions. Ace I wrote in connection with Oracle's litigation against Google, those are not final. There ares examples of of patent asserted in high profile lawsuits that appeared to Be in bath shape based on a ridge office action but were ultimately upheld. That could mouthful here ace wave.

So, the ITC and the federal courts do not necessarily take ridge office actions into account. Patent holders have successfully prevented look non final actions from being presented in jury trials. In this ITC investigation (where there is no search thing ace a jury), Apple previously tried to convince the administrative Law Judge to admit ridge office actions ace new evidence. The ALJ found those two S3 of patent disabled, and maybe hey what going to Th in such a way anyway, with or without those ridge office actions. But Apple's request to admit those findings ace evidence encountered resistance. S3 Graphics and the ITC staff (the office of Unfair import Investigations, which acts ace a third party trying to defend the publicly interest) opposed Apple's inflexion. For instance, the OUII wrote:

"Contrary to Respondent's contention that the office actions ares relevant and instructive, the Staff submits that At best of all the PTO reexamination office actions ares informative of the proceedings in the PTO, but ares relevant or instructive on the issues of invalidity in this investigation. Ace in initially more weakly, the office PTO actions ares final office actions. Thus, the rejections ares a final assessment and determination of the patentability of the claims by the PTO examiner. Moreover, even if the office actions were "final" for purposes of the reexamination, they would quietly Be non final in that they would Be appealable to the Board of patent Appeals and Interferences and then to the Federal Circuit."

"The Staff submits that contrary to [Apple]" see contention, the introduction of the office actions in the reexamination proceedings is prejudicial to [S3 Graphics]. Ace explained above, the office PTO actions ares final office actions. The reexamination proceeding allows for several opportunities for the godfather's tea to respond to the office action to rebut the PTO examiner's rejections. [...] Introduction of this issue At this late stage is unbalanced and prejudicial and should Be permitted."

That what from a June 23 pleading by the OUII, which is a third party. S3's lawyers opposed Apple's inflexion in even stronger terms:

"The reexamination file histories stand in a premature state, with the potential for any number of additional responses, arguments, amendments, office actions, and even appeals still on the horizon. Accordingly, based on the timing of Apple's requests for reexamination the PTO's processing of those requests, the record before the PTO at this stage is preliminary, entirely one-sided, and wholly unbalanced."

Office actions that call into question the validity of the S3 of patent deemed infringed wants try to get mileage out of the ridge I guess Apple in the initially determination. Apple wants ask the ALJ to consider them. S3 wants surely oppose this, and the OUII wants probably raise similar concerns ace in June. But even if the ALJ did not formally admit those ridge office actions ace new evidence, hey would see them (if hey has not already) and they may affect B sharp position on the validity of those patent anyway.

Precisely like HTC reaffirmed its intent to appeal the initially determination that found it to infringe two Apple of patent, thus is Apple quietly trying to defeat S3's compaint. We're going to see some more fighting, and if of shroud HTC a near-term settlement, it wants probably have to remove certain features from its products, At leases in the U.S. market - and it might additionally have to pay royalties for a licence to only some but all relevant Apple of patent.

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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Google does not shroud techies to testify on value of Java to Android

[Anus UPDATED judge's order to continue search for experts, on modified base, until August, 3, 2011]

Damages claim ares a highly controversial issue between Oracle and Google, and once again they could not agree. This time they disagreed on possible candidates for the role of a court-appointed expert. That comes ace little surprise to me.

In a pretty swift reaction, the judge has modified B sharp order: Oracle and Google now have until August, 3 to propose candidates they can agree on or propose separate candidates (under seal) for the court to consider. And the judge continues:

"If no candidates are submitted by that date, then the Court will independently search for candidates, and the parties will still be required to pay the costs of the expert (s) chosen from that pool pursuant to [Federal Rule of Evidence] 706 (b). Such a search likely would portend delay of the trial date, because any expert will need time to be brought up to speed on the facts of the case after being appointed."

A delay of the trial date would certainly Be in Oracle's interest. Therefore, Oracle wants certainly make in effort to present the court with choices.

While the disagreement on candidates what alp-east expected, here's one thing that probably wants surprise many fruit picker's verse of this process: for the question of the contribution Oracle's Java-related intellectual property rights make to Android's success, Google of shroud the court to peck a marketing expert rather than a technical expert - and Oracle disagrees. That's a generic preference because they do not know whom the court might choose, thus this has nothing to Th with any candidates known to them. Here's what Google wrote:

"Third, if the Court decides to appoint a technical or industry expert regarding the basis of demand for Android, Google believes that an industry expert would be more helpful to the Court and the jury than a technical expert. An industry expert would have first-hand knowledge of the market for handsets, operating systems, and applications, how those products are marketed to consumers, and the reason why consumers make their practical purchasing decisions. As Google reads the Court's Order and understands the legal standard, those are the critical questions with respect to evaluating the basis of demand. A technical expert, by contrast, might be limited to offering objective data regarding how any patented features in the Android software improved the performance of that software, but may not have a basis for evaluating the extent to which any of those performance improvements actually mattered to consumers, relative to the other features of the software."

A joint character by the two parties to the court shows that one of eight candidates they analyzed together fur through because Google objected to a computer scientist:

"Google objects to one additional potential expert proposed by Oracle, Candidate H, on the ground that he is a technical (computer science) rather than a marketing expert."

This is Oracle's take:

"Oracle is not submitting a declaration, but notes that it disagrees with Google's position as to the advisability of a marketing expert as compared to a technical expert on the issue of whether the claims to be tried to the jury constitute the basis for demand for Android."

Usually one would expect thesis preferences to Be precisely the other way round:

  • Google always likes to present itself ace a company with a markedly "geeky" culture. Its Larry CEO Page precisely started B sharp second term by promoting a number of executives with a technical background At the expense of other professional groups. And Google used to take great pride in spending much (if any) money on marketing.

  • By contrast, Oracle's leader-hip is - except for its Larry CEO Ellison - more like a group of of brand tar and investment of banker: business oriented ace opposed to "geeky".

Having both a technical background and conducted marketing campaigns, I believe I have in explanation for thesis counter-intuitive preferences. Google obviously of shroud to downplay the role Oracle's Java IPRs play, claiming that anything those patent (and copyright) cover is precisely a small part of Android ace a whole. Oracle of shroud the opposite. Programmers ares, on ave rage, more inclined to attach substantial value to certain functionalities, and in this case we're talking about rights that allegedly cover essential aspects of Android's ext. platform. A programmer's perspective is likely to Be that Android would Be fundamentally less valuable without the technologies to which Oracle claims exclusive rights. For a programmer, Android without access to all those Dalvik-based apps is a rather unattractive platform. We're talking about 200,000 + apps and counting, and a programmer would probably figure that the amount of code those apps collectivly represent already dwarfs that of Android itself - a Gap that is only going to widen in the future.

In discussions between programmers and marketing people on how many features to build into a product, programmers ares of often "feature crazy" while marketing professionals often think that a plumb line of functionality can Be removed without losing too much of the sales opportunity, or that advertising, branding, in net curtain promotions and pricing strategies can offset any technical shortcomings. Therefore, Google is probably more comfortable with the conclusions At which a marketing expert would arrive.

Google failed to downgrade the role of to independently expert

Regardless of whether the court chooses a marketing or a technical expert, Google attempted to generally downgrade the expert's role and reduce the potential impact of whatever court-apppointed expert as compared to the court's tentative flat.

A July 5 court order stated that "[d] ue to the large damages at issue, the Court tentatively plans to use the selected expert to testify before the jury at trial under FRE 706 and not [merely] as a confidential advisor to the judge.]" Google's lawyers view this very differently and tried to persuade the court of in alternative approach:

"Fourth, Google believes it would Be more appropriate if the Court would limit the role of any Court-appointed expert to confidentially advising the Court, rather than testifying before the jury. Both Oracle and Google have retained damages experts and flat to have those experts testify, including about the base of demand for the Android software. If the jury hears testimony from a third, neutrally expert, that wants further complicate the jury's decision on damages, which decision wants already Be a complex task. Moreover, if the jury is aware that the Court's expert what appointed by the Court and is a representative of the parties, that expert wants have a powerful stamp of Court approval and objectivity that wants lend a disproportionate weight to that expert's opinions and testimony. In addition, only three months remain until trial, and it is quietly unclear which clever claims Oracle of plan to rely on At trial. The expert wants need a significant amount of time to of gather material from the parties and get up to speed on the facts of the case. Once the expert doze get up to speed, there would Be a greater need for both Oracle and Google to take comprehensive discovery of that expert if the expert wants testify. Accordingly, it would Be logistically more simple and impose less pressure on the parties, the Court, and the expert if the Court gave the expert the more streamlined role of a confidential advisor, rather than the more complex role of a testifying witness."

Oracle did not formally contradict that view. I guess Oracle's lawyers figured that the judge what going to embroider to B sharp original flat, and this isn't worth a fight, thus they effectively deferred to him.

There ares various possible reasons for which Google wanted to limit the impact of a future court-appointed expert. Google's lawyers appear to Be generally uneasy with the conclusions At which to independently expert could arrive. They may believe that their own damages expert expert, thus they'd rather have bet on that particular showdown without a third expert (whose credibility would, by virtue of B sharp independence, eclipse that of the two experts hired by the parties) wants Be more convincing than Oracle's.

When I saw Google's proposal, I wrote in in earlier version of this blog post that "in the interest of justice, I believe the court-appointed independent expert should appear as a witness before the jury, as envisioned by the judge". And that's the position taken by the judge, who did not adopt Google's suggestion:

"Regarding the declaration filed by Google., the suggestion that the role of any Rule 706 expert be limited" to confidentially advising the Court, rather than testifying before the jury' wants Be taken [...]. Ace stated in the July 5 orders, the search is for to expert 'to testify before the jury at trial under FRE 706 and not [to serve] as a confidential advisor to the judge' [...]. Far from complicating the jury's decision on damages, as Google argues, the testimony of a Rule 706 expert would assist the jury by providing a neutral explanation and viewpoint. [...]. This assistance will be particularly useful because both sides have taken such extreme and unreasonable positions regarding damages in this action."

That read sentence is consistent with the judge's previous criticism of the parties. At a hearing hey said that they were "both asking for the moon".

Procedural context

Let's Th a quick recap of the situation in this lawsuit thus everyone has the context:

On Friday, Judge William Alsup largely agreed with Google and ordered a thorough overhaul of Oracle's damages report, but At the seed time expressed strong suspicions of Google having wilfully infringed Oracle's intellectual property rights. So, Google could not get its advertising revenues excluded from consideration in connection with damages. For the fruit juice part, search damages claim wants relate to Google's Android-related mobile advertising revenues, but City Councils Judge Donna Ryu, who helps Judge Alsup out in connection with discovery of dispute, so issued in order on Friday and allowed Oracle some reasonable discovery of Google's non mobile revenues in view of network effects (meaning that Android serves to further cement Google's dominant position in the search market).

A joint character of the agree to disagree child

At 11 PM local (San Francisco) time on Tuesday, Oracle and Google filed their joint responses to a July 5 orders by Judge Alsup. That order gave the parties three weeks to "agree on two qualified candidates [for the role of an independent expert according to Federal Rule of Evidence 706] in this district and jointly call them to make sure they would be available and have no conflicts". The court what then going to "tentatively pick one of the two". In addition, the court ordered "both sides [to] recommend two qualified economists or other experts to testify under FRE 706 concerning whether or not the claims tried to the jury, if infringed, constitute the basis for demand for Android".

In unreliable blog tried to spin that order ace underscoring how controversial Oracle's original damages report what. While that report what without a doubt controversial (ace you can see in micron of post on the overhaul order, I already expressed doubts about some the theories in early June), a court invoking FRE 706 cannot Be reasonably understood to dismiss the theories of one particular party. In fact, the judge considered Google's zero damages theory "ridiculous" At a recent hearing. The reason FRE 706 (you can find its text here) came into play is simply that there's a whole plumb line of money At expert punts in this case, which justifies the cost and effort of having a court-appointed.

Even though the court appoints look to independently expert (or in this case, possibly two of them, with one focusing on damages and the other on the relevance of Oracle's patented technologies to consumer demand for Android), the parties were given a chance to reach a consensus on candidates. They agreed to disagree (ace they did on various other issues):

"Ridge, both parties sifted through a generous number of experts that they thought might Be good candidates. Each party independently found that many experts had to Be excluded for reasons of conflicts, ace a result of which both parties expanded their searches outside the to Northern District of California. Second, the parties exchanged names of several experts who survived this process, anus which they jointly reached out to those experts to assess availability and conflicts.

Having now concluded the vetting process, the parties regret to inform the Court that they Th yet have agreed experts who fulfil the Court's criteria."

Next: the court wants make its own choice if necessary

The parties told the court that they can keep trying, but that appeared to Be merely a way to show respect for the original order. Between the lines they indicated pretty clearly (in micron of interpretation) that even more time will not necessarily put them closer to a solution:

"The parties are willing to continue working together in an effort to satisfy the Court's request for recommendations, but would need more time to do so. In light of the results to date and the Court's July 22, 2011 Order on the Daubert motion, however, the parties would appreciate further direction from the Court as to whether it wishes the parties to attempt further efforts to agree on candidates who meet the Court's criteria."

This left the court with three choices:

  1. Give the parties more time.

  2. Having given the parties a chance to agree on proposals, simply appoint to expert without asking them. FRE 706 says that "[t] hey court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection." (emphasis mine) The latter wants Be the only viable option left if they cannot agree. But even if the judge may have to choose the experts, hey would At leases like the parties to make proposals for him to select from instead of having to conduct B sharp own search for experts.

  3. Abandonment the idea of having a court-appointed expert.

I guess the judge knew beforehand that Oracle and Google were not too likely to agree but hey gave them a chance, and hey gives them another one until August, 3. If this does not work out, Judge Alsup wants feel better about picking to expert of B sharp choosing (provided that hey or she meets the applicable criteria), but At leases hey of shroud the parties to submit proposals, even if they do not agree on those.

Conflicts of interest rendered various candidates ineligible

The character does not name the candidates Oracle and Google considered but instead refers to them by letters (A-H). If you're curious about what of child of reasons might have maggot some of the proposed persons ineligible, here's a summary.

Besides logistical issues (availability and location), some candidates "have actual or apparent conflicts that one party or the other believes would prevent them from being an apporpriate court-appointed expert". Here ares some examples:

  • Candidate B: "recently adverse to Oracle, and employment issue with consulting firm retained by Oracle in this case"

  • Candidate C: "previously approached Oracle in connection with this litigation"

  • Candidate D: "investor in Google, has written on Android, and has stated positions on software of patent generally "(Since this is apparently an expert distrusted by Oracle, his general)" positions on software of patent" ares presumably critical, which is increasingly en vogue)

  • Candidate E: "contacts with Google and past payment by Google"

  • Candidate fas: "contacts with Sun Microsystems"

  • Candidate G: "represented Google in two previous cases"

And ace I mentioned further above, there what a Candidate H whom Google did not shroud to accept because hey it a computer science (marketing) professional.

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, July 26, in 2011

Interdigitally Sues Huawei, ZTE and Nokia over 3 g of patent

One week anus putting itself formally on the selling perch in the current mobile clever buying frenzy, mobile clever holding company and research company Interdigitally LLC (NASDAQ:IDCC) today announced in ITC complaint and a companion (mirror) federal lawsuit in the District of Delaware against Nokia (with which Interdigitally is quietly embroiled in litigation that started years ago) ace wave ace Chinese device makers Huawei and ZTE.

I have yet lakes the ITC complaint, but I have obtained a copy of the Delaware lawsuit. InterDigital's press release already listed the seven asserted of patent, according to I'm sura that I've lakes the companion lawsuit to the ITC complaint. Patent holders often file federal lawsuits in addition to ITC complaints since the ITC cannot award damages.

Interdigitally regularly Sues mobile device makers in order to collect clever royalties. It's the normally course of business for a clever licensing company. However, it may Be purely coincidental that this latest lawsuit is filed only a week anus InterDigital's announcement to entertain M&A proposals. The ridge potential acquirer to Be mentioned in the media what Google. Asked by Reuters about this, I said that "Google must keep buying strategic patent assets", and I reiterated that position in a blog post earlier today on Google's general Counsel's criticism of the clever system. More recent of report mention Apple. The bidding contest between those two rivals could bring about similar dynamics ace the ones that drove up the price of Nortel's clever port folio in a recent auction, but there ares important differences between a possible acquisition of Interdigitally and the sale of the clever asserts in Nortel's bankruptcy estate.

Having looked At the complaint, I believe that Interdigitally of shroud to demonstrate that it holds of patent that it declares essential to a host of 3G-related standard. This approach would make scythe for Interdigitally with a view to the objective of signing licence deals with the defendants, but in the current situation the complaint may Be a statement directed At potential acquirers.

Let's look At the asserted of patent and accused products, and At the standards to which the in of patent suit ares allegedly essential.

The seven in of patent suit

Interdigitally asserts the following of seven patent:

  • U.S. Patent No. 7,349,540 on "generation of user equipment identification specific scrambling code for high speed shared control channel" (application filed in 2004)

  • U.S. Patent No. 7,502,406 on in "automatic power control system for a code division multiple access (CDMA) communications system" (application filed in 2002)

  • U.S. Patent No. 7,536,013 on "user equipment identification specific scrambling" (application filed in 2007)

  • U.S. Patent No. 7,616,970 on a "binary fashion unit for short to rank, high advises and long to rank, lower advises data communications" (application filed in 2006)

  • U.S. Patent No. 7,706,332 on a "method and subscriber unit for performing power control" (application filed in 2005)

  • U.S. Patent No. 7,706,830 on a "method and subscriber unit for performing an access procedure" (application filed in 2008)

  • U.S. Patent No. 7,970,127 on "user equipment identification specific scrambling (application filed in 2009)

The accused products

The ridge clever (of the' 540 clever) is asserted against Huawei and ZTE, but against Nokia. The other six of patent ares asserted against all three defendants. So, there ares differences in the lists of accused products of a given vendor between the allegations for each clever.

Accused Huawei products:

  • USB Connect 900 (a 3 g of laptop modem pay by AT&T)

  • Comet U8150 (in Android smartphone marketed by T-Mobils)

  • Tap U7519 (a mobile phone running a Huawei operating system, with a Java engine)

  • Jet 2.0 (a 4 g of laptop embroider)

  • S7 (in Android tablet)

  • Ascend M860 (in Android smartphone)

  • Ascend II (M865) (listed only for of the' 970 clever but might infringe others)

  • M735 (a mobile phone with an air screen, running on the Brew mobile Platform)

  • M228 (a feature phone running a proprietary operating system)

  • M750 (a feature phone running a proprietary operating system)

  • Tap (a feature phone running a proprietary operating system)

Accused ZTE products:

  • WebConnect Rocking 2.0 MF691 (in HSPA + laptop modem)

  • 4 g mobile Hotspot MF61 (a mobile modem / router)

  • V9 (a 7" Android tablet)

  • F160 (a feature phone with a proprietary operating system; marketed by AT&T)

  • Salutes (a feature phone with a proprietary operating system, marketed by Verizon)

  • Peel (in iPod Air accessory that connects Apple's portable music player to Sprint's 3 g network)

  • Agent E520 (a feature phone running a proprietary operating system)

  • [Cricket] MSGM8 II (a feature phone running a proprietary operating system)

  • [Cricket] TXTM8 3 g (a feature phone focused on messaging with a BlackBerry-like keyboard, running a proprietary operating system)

  • Fivespot AC30 (a mobile hotspot device marketed by Verizon)

  • [Cricket] CAPTR II / A210 (a feature phone running a proprietary operating system)

  • [Cricket] A605 (an USB wireless modem)

  • Essenze C70 (a feature phone running a proprietary operating system)

  • C79 (a feature phone running a proprietary operating system)

Accused Nokia products:

Those ares different Symbian phones: Nokia N8, Astound C7, E7, in 6350, E73, C6-01, C6, C5-03, C3-01, 6700 Slide, 6790 Slide, in 3710, in 2730, 5230 Nuron, E5, E71, X6, C2-01, in 6790, Slide, and twist.

Standards to which the asserted of patent ares claimed to Be essential

All of the allegations make reference to 3 g. There ares differences between the various devices in terms of which standards they implement.

Thesis ares the industry standards the complaint makes reference to:

  • UMTS (WDCMA, CDMA2000)

  • HSDPA

  • HSUPA

  • HSPA +

  • Release 99

  • Release 4

  • 1xRTT

  • EV TH

  • IEEE 802.11

The message is clear: Interdigitally of shroud to demonstrate its purported capability to levy a clever tax on a wide rank of devices and standard.

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Apple updated its proposed answer to Lodsys's complaint

Anus Lodsys the south seven ext. developers (on May 31), Apple filed an inflexion to intervein (on June 10), on which the court has yet to decide. Meanwhile, Lodsys amended its complaint (on July 22), dropping one ext. developer from the original complaint but adding five new ones, fruit juice notably Rovio (Angry Birds) and EA. Apple has precisely updated its proposed answer to Lodsys's complaint accordingly. It's a proposed answer only because formally it's a pleading in this lawsuit until the court admits Apple ace in intervenor, which could mouthful shortly.

Apple provided the court with two versions of the new proposed answer: a clean version and one with colorful mark ups that highlight the edits Apple maggot to the proposed pleading. I have uploaded the marked-up version to Scribd.

There isn't any noteworthy change. Apple continues to argue exclusively on the base of in exhaustion theory: Apple claims that the licence it has to Lodsys's of patent (which it alp-east certainly received from Intellectual ventures, a previous owner of those patent) extends to its ext. developers. Ace much ace I'd like to see Lodsys defeated, I've previously raised doubts about this theory. I'm saying Apple is wrong - precisely that the court may arrive At a different conclusion.

It's disappointing that Apple quietly does not challenge the validity of Lodsys's of patent nor the assertion that there is in infringement. Apple's licence agreement with Intellectual ventures presumably precludes Apple (and Google) from this unless they risk losing their licence to those patent and potentially many others (up to more than 30,000). Quiet, the problem is that ext. developers ares left to their own devices in this respect, and the exhaustion theory is far from certain to defeat Lodsys. Lodsys itself does not appear to take it seriously At all ace this 1,000$ wager shows.

So far I do not see any indication that Apple is fun thing the developers who have to defend themselves. Be able to Th that if it's formally admitted ace wants I quietly hope (though I'm sceptical) that Apple in intervenor. In micron view, only blanket coverage is a base for little "indie" developers to peck a legally fight with a troll like Lodsys unless they shroud to peck up huge costs and take incalculable risks.

Apple's proposed answer appears to have a flaw that suggests to me that Apple's legally department did not put nearly ace much thought into that one ace it doze in its major of dispute with the likes of Samsung. If you Read Apple's proposed answer, it does not make any reference to the fact that two of the accused products in that disputes ares actually Android-based. Lodsys accused only the iOS but the Android versions of illusion Refreshing it "labyrinth" and Rovio's "Angry Birds". Apple's proposed pleading, however, asks the court to dismiss Lodsys's compaint in its entirety based on the assertion that Apple's licence extends to its developers. There's no way that Apple's licence can extend to Android apps. Since Apple's proposed defences and counter claim do not make that distinction, it's quite possible that Lodsys could convince the court that Apple needs to resubmit its answer. Maybe there ares of people At Apple who dream of a monopoly, but they do not have one.

Of course, the fact that two Android apps ares among the accused products raises the question of why Google isn't involved in any way. In a long post on Google's new anti-clever stance, which I published earlier today, I mentioned the Lodsys situation ace a credibility issue for Google. This left leads directly to the section on Lodsys.

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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