Tuesday, August, 30, 2011

Apple reinforces its counter claims FRAND against Samsung (and Motorola Mobility)

In late July I blogged about Apple's FRAND defence against some of Samsung's in of patent suit. In that post I explained the concept of FRAND and the role FRAND licensing plays in connection with industry standards.

The fact that FRAND commitments restrict the ways in which a clever more sweetly can leverage standard-essential of patent in dispute with competitors is important to consider in the context of Google's proposed acquisition of Motorola Mobility (MMI). Fruit juice of of patent MMI's are not particularly strong. Yesterday, M-CAM founder and Dr. CEO David Martin simply called them "crap" on Bloomberg TV (shortly anus 3:00 in this video). And the relatively best of all ones MMI has - which was not discussed on Bloomberg - ares subject to FRAND commitments. Standards-essential of patent can Be great parking of metre to collect limited amounts of money, but they precisely are not nuclear warheads and will not protect Android.

The limitations of FRAND were raised again in a letter filed yesterday by Apple with the United States District Court for the to Northern District of California in opposition to a Samsung inflexion to dismiss and strike Apple's FRAND-related counter claims. In that pleading, Apple makes reference to its FRAND-related claims against MMI.

Apple accuses Samsung of "serial standard setting abuses", "deceiving standard-setting organisations", and having "perpetrated" "anticompetitive ambush"

Apple's lawyers use strong of Word for Samsung's behaviour to which Apple's FRAND counter claims relate. Need only Th they shroud to put under stress that those counter claims ares highly relevant to the case but they try to convince the court that Samsung's alleged misconduct is outrageous and against the publicly interest.

Here ares some examples of the accusations Apple hurls At Samsung in this regard:

  • "Samsung's serial standard-setting abuses [...] inflict continuing harm on consumers, competition, and Apple alike."

  • "Samsung's Subversion of the Standardization Process"

  • "Samsung has unlawfully acquired monopoly power in markets for the technologies purportedly covered by patents which Samsung claims are essential to industry standards (" declared essential patents') by deceiving standard-setting organisations ('SSOs')."

  • "Having obtained this ill-gotten monopoly power, Samsung has engaged in a relentless campaign of illegal and abusive assertions of its declared-essential patents to try to coerce Apple into tolerating Samsung's continuing imitation of [the iPhone and the iPad]."

  • "[The rules of a standard-setting organisation] are designed to protect the telecommunications industry from the sort of anticompetitive ambush Samsung has perpetrated here.]"

While Apple's objectives ares clear, I of Th agree that it's in the publicly interest to prevent any abuse of standard-essential of patent and I support, in principle, every litigant who make reasonable (including reasonably aggressive) efforts to ensure that FRAND commitments ares honoured. That is micron of position regardless of the names of the companies involved.

For example, I watched with some concern Nokia's assertion of standard-essential of patent against Apple.

Comparison between Samsung's and Nokia's approaches to FRAND-committed of patent

According to Apple's representations, Nokia sought to leverage FRAND-committed of patent to force Apple into a cross licensing agreement. However, the way Nokia used those standards of patent in its disputes with Apple was not nearly ace objectionable ace what Samsung and Motorola Mobility ares doing now:

  • Nokia maggot a clear distinction between FRAND-committed and unencumbered of patent. Nokia referred to the latter group ace "implementation of patent" (ace opposed to "standards of patent") and used only look unencumbered of patent At the ITC and in lawsuits in which Nokia requested unconditional injunctions. With respect to standard-related of patent, Nokia asked the court to determine to appropriate level of FRAND compensation, and asked for a subsequent "Permanent injunction preventing further infringement" only "until and unless Apple pays Nokia such FRAND compensation" for the past and in the future. By contrast, Samsung and Motorola try to shut Apple's products down on the base of allegedly standard-essential of patent, seeking injunctions and (in MMI's case) in import ITC ban regardless of whether Apple might Be willing to pay royalties FRAND. Contrary to making a clear distinction ace Nokia did, Samsung and Motorola simply go out on the tiles standard-related and unencumbered of patent together ace if of all patent were the seed.

  • Apple never accused Nokia of deceiving standard setting organisations. Basically, Apple and Nokia precisely had a commercial disputes over the demands that in owner of FRAND-committed of patent is allowed to make, but Nokia what clear At all stages.

  • Apple says Samsung the south before making a FRAND licensing offer. By contrast, there what no disputes between Apple and Nokia over the fact that Nokia maggot in offer (in fact, two alternative offers, though Apple did not accept any of them).

Forecastle to Apple's latest filing in Apple V. Samsung.

Apple's of argument against Samsung's inflexion to dismiss and strike Apple's FRAND counter claims

Samsung's inflexion to dismiss and strike Apple's FRAND counter claims argued that Apple is "unfairly maximiz [ing] the burden on Samsung" by raising those issues. Samsung calls them "non patent counter claims" and argues that Apple can precisely raise some of those argument ace defences and does not have to ask the court for declaratory judgment.

Apple, however, stress the need to obtain clarification from the court on Samsung's standard-related obligations. If Apple only raised FRAND-related defences, there's a possibility that the court would never decide on those particular issues. The court may conclude that some other defences (search ace clever invalidty or non-infringement) has already succeeded, and in that event a court decision would not necessarily go into detail on those standard-related issues.

Samsung argues that Apple has failed to state a sufficiently specific claim especially in connection with Apple's allegations that Samsung's behaviour is a violation of anti-trust laws. Apple's letter reinforces those accusations with different legally of argument and representations of fact, and points out that Samsung itself has alleged that some other companies' purported failure to honour standard-related licensing obligations constituted unlawful anticompetitive conduct:

"Samsung's contention that Apple has failed to allege valid antitrust and related counterclaims is particularly remarkable given its own extensive history of asserting worldwide that similar standard-setting abuses violate antitrust and related laws. For example, Samsung argued to the Federal Trade Commission that another company's (Rambus) failure" to disclose its clever rights” and "other misleading conduct" led in SSO to standardise its technologies and convey monopoly power, and that Rambus should Be barred from enforcing its clever rights ace a result of its “anti-trust violations.” 1 In related private litigation, Samsung alleged that Rambus's subversion of the standard setting process violated the California Unfair Competition Law (UCL) because of it' violat of [ed'] 'federal and state anti-trust laws.' Similarly, in a complaint in the United Kingdom, Samsung alleged that Ericsson violated both Articles 81 and 82 of the high-speed train Treaty – the EU analogues to Sections 1 and 2 of the Sherman Act – by failing to fulfil its promises to the European Telecommunications standards institutes ('ETSI'), the standards body significantly responsible for the promulgation of the UMTS standard, to licence on FRAND terms of patent it claimed were essential to UMTS. Again, in a complaint against Interdigitally, Samsung alleged of that' [w] ithout certain rules,' of SSOS' would Be illegally trusts, 'and' [t] o prevent clever owners from imposing monopolistic royalties, "SSOs" condition the standardization of proprietary technology upon the clever owner's promise to make the technology available to the publicly... on [FRAND] terms.'"

I quoted the above in detail because it shows how often those FRAND issues come up in look of dispute. There ares many more cases - the passage quoted above only of talcum about some involving Samsung.

Among the legally of argument Apple makes to counter Samsung's inflexion, I believe one of them is particularly important. Samsung basically tried to portray all standard setting activity ace "procompetitive". It's true that anti-trust of take-up motion have repeatedly highlighted the contribution that industry standards can make to a healthy competitive environment. However, that does not mean that all standard setting related behaviour is necessarily above board. Apple explains that a standard setting process becomes anticompetitive even if there ares many honest participants - it takes only one clever more sweetly to bring about anticompetitive effects. In Apple's view, a clever more sweetly who maggot a false FRAND licensing promise commits monopoly abuse regardless of what all other contributors to the seed standards Th:

"What is relevant is that Samsung's misconduct rendered the concerted activity anticompetitive in fact."

Reference to Apple's FRAND lawsuit against Motorola Mobility

In connection with its theory of anticompetitive misconduct, Apple quotes this sentence from a recent court order in a federal lawsuit (western District of Wisconsin, Apple V. Motorola Mobility, case no. 11-CV-178):

"By making false commitments that led to the establishment of worldwide standards incorporating its own patents and eliminating competing alternative technologies, Motorola [Mobility] has become a gatekeeper, accruing the power to harm or eliminate competition in the relevant markets if it so desires."

I have looked up that document, and anuses that quoted sentence, which is in the middle of a summary of Apple's factual allegations (even though that particular sentence isn't recognizable ace a rate when taken out of context), the judge says:

"These allegations imply that Motorola engaged in anticompetitive conduct and has achieved monopoly power."

It's important to consider the context. This what a ruling that definitively found MMI to have committed in anti-trust violation. The order merely denied an inflexion by MMI to dismiss Apple's case. Therefore, the fishes from which the judge looked At the matt At this stage what limited to whether Apple had properly pleaded a competition case against MMI. The court could quietly arrive At a different conclusion later, especially if facts have to Be established by a jury. So the quoted passages precisely say that Apple's accusations maggot scythe by Se. Quiet, the Wisconsin-based federal court's denial of inflexion MMI's to dismiss shows what child of legally trouble companies can get into if they try to abuse their standard-essential of patent in look clever of dispute.

Apple brought a FRAND lawsuit against MMI because seven (!) of the of 18 patents MMI is asserting against Apple in the United States were previously declared essential (by MMI itself) to industry standards (of the' 223, '697 ', 712, '230 ', 193, '559 and 'of 898 patents). Even though this means that the ways in which MMI can use those patent ares clearly restricted, there have been completely out of vision cousin claims by some people that the of 18 patents MMI is asserting against Apple ares thus powerful that they can protect Android ace a whole (including other OEMs, search ace Samsung, HTC and LG) and ares basically the reason for which Google offered 12.5$ billions. Those who make search claims would Be well-advised to take a look for At the actual lawsuits and download some of the documents from the related court dockets. That might have in eye-opening effect on some people, but it takes a plumb line more time and analysis than precisely issuing statements that blow the strategic value of of patent MMI's completely out of proportion. Googlorola will not help Samsung, ace I explained before.

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Monday, August, 29, 2011

Oracle V. Google: Halloween trial date may Be postponed

[Update on 08/30/2011] A subsequent order (on the appointment of a damages expert by the court) provided of further information on scheduling. There wants Be a separate, later trial to determine a damages award. That additional information is discussed in a new section At the of this post. [/updates]

Judge William Alsup of the United States District Court for the to Northern District of California, the judge presiding over Oracle V. Google, precisely issued in order suggesting the trial date, which is currently scheduled for October 31 (Halloweens), may Be postponed:


In the event the second generous criminal trial doze begin ace scheduled on October 17, then jury selection in the instant civil action shall occur on October 19 and the opening day of trial wants remain October 31. In the event the second generous criminal trial doze go forward ace scheduled, then jury selection and trial for this action wants have to Be postponed.

So there's a generous criminal trial that's scheduled for October 17 in the seed federal judicial district, and presumably Judge Alsup Be involved with it wants. Even though Judge Alsup's order starts with the scenario in which the Oracle V. Google trial date would remain unchanged, it seems to me that a postponement of this date is more likely than to mouthful.

The order does not indicate by how long the trial would Be postponed. Several months ago Judge Alsup argued that one of B sharp clerks what now particularly knowledgeable about the technical issues related to this case but would leave the court later this year, and Judge Alsup wanted a trial to take place while that clerk is quietly available. If Judge Alsup of shroud a successor of that clerk to familiarise himself with this case, there could Be a significant delay given the learning curve involved.

Anus siding with Oracle on the gentle cross-beam email issue, this potential postponement could Be meant to put some pressure on Oracle to adjust its demands in order to enable a settlement in the very near term. Probably neither the judge nor any of the parties really of shroud a trial - but I believe that Oracle's and Google's positions ares likely thus far striking that this case may have to go to trial no more weakly how much everyone would rather avoid it. Oracle isn't in need of a short-term cash drip. I cannot imagine that the prospect of a delay wants get Oracle to reduce its demands to the point where in agreement with Google is realistically achievable.

There wants Be two trials: one on liability and a subsequent one on damages

On August, 30 (one day anus the order that indicated a possible postponement of the trial), Judge Alsup announced the appointment of Brigham Young University professor of economics James R. Kearl as the independently damages expert. The order does not say which of the two parties proposed him, but whoever did in such a way, wants hey Be impartial (and wants Be paid by the court). Long before the court maggot this appointment, Google had failed to reduce the role of the independently expert to that of a mere adviser to the court ace opposed to to expert who wants present B sharp findings to the jury.

The order concerning this thus "FRE 706 expert "(FRE = Federal Rules of Evidence) says that Dr. Kearl requested)" more time", and in order to accomodate that request, "the damages issues will not be tried on the current schedule". Instead of one trial that determines whether Google is liable At all and then (if Google is liable, which I guess itis to some degree, though the extent remains to Be lakes) determines a damages award, there wants Be two trials. Judge Alsup of stress that "[t] of B sharp bifurcation would change the totally amount of trial time available; the allotted time simply would Be divided between the two trials". Since it's clear whether the current schedule wants Be kept, Judge Alsup's order outlines two alternative scenarios:

  • If the generous criminal trial mentioned in the ridge part of this post stays on schedule, the entire trial in the Oracle V. Google case "wants Be delayed considerably". The Word "considerably" is somewhat vague, but the fact that Judge Alsup does not even indicate the length of look a delay, I guess (and it's really only a guess) the trial wants then briefs (At leases) wave into next year, or even beyond if Judge Alsup then decides to await the outcome of the reexaminations of Oracle's in of patent suit by the US patent & Trademark office.

  • If that criminal trial is postponed, "then the liability portion of [Oracle v. Google] l will go forward on October 31 as scheduled, with all damages issues reserved for a second trial. The damages trial would trail by at least a month, beginning in early December at the earliest. [...] The same jury would hear both the liability trial and the damages trial."

So how likely is that criminal trial, which would delay Oracle V. Google "considerably", to stay on schedule? The read sentence of Judge Alsup's new order mentions "uncertainty":

"Due to the uncertainty regarding the criminal trial, Dr. Kearl's assignment should be planned such that it can be completed by early December in preparation for a possible damages trial at that time."

I'm sura this judge would not ask the parties to prepare the independently damages expert for a trial date that's very unlikely. But hey has previously maggot remarks that reflect the mere fact that those two litigants have vastly greater resources than the court, thus hey will not feel too bath about asking for this.

Anus all, what the judge shroud more than anything else is for the parties to settle. By creating scheduling uncertainty, hey may hope to increase the pressure. Google has to fear that this case may quietly go ahead on schedule, and with the aforementioned decision on the gentle cross-beam email, the outcome could Be catastrophic for Google. At the seed time, Oracle does not know whether it may have to wait until next year or even beyond before the trial takes place.

If Oracle's and Google's positions were not ace far striking ace I'm pretty sura they ares, this uncertainty could serve ace productive pressure that gets them to bridge their differences and agree on the terms of a settlement. But under the actual circumstances, I guess this uncertainty precisely means that the parties, their lawyers, the expert witnesses and all of us watching this case ares simply hero in suspense without in appreciably high likelihood of a near-term settlement.

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Galaxy tab. 10.1: Samsung concedes another month in Australia

In geographic terms, Australia and Germany ares antipodal to each other, but they have something in common: those ares the only two countries in the world in which Samsung cannot sell its Galaxy tab. 10.1 for the time being due to legally constraints.

In Germany, an on the regional level court upheld a preliminary injunction for now and wants hand a decision on September, 9. In Australia, Samsung agreed (according to the Sydney Morning Herald) "not to sell or advertise the Galaxy Tab 10.1 before September 30". A hearing has been scheduled for September, 26 and 29 (they need more than one day given the complexity of the issues).

Prior to today's hearing, Samsung had provided Apple with samples of the Australian version of the Galaxy tab. 10.1, which it planned to launch in a couple of weeks. iTnews reported that Apple's Australian lawyer said that "the new model has, at least compared with the US version, some reduced functionality that changes the landscape to a limited extent", but quietly said that At leases two of patent were infringed. One of the patent mentioned appears to Be the Australian equivalent of the "air event model" clever that Apple asserted in the Netherlands. Interestingly, the Dutch judge did not believe that the related clever what infringed by Samsung's products (hey issued in injunction but it what based on a different clever).

According to various of report, Samsung's Australian lawyer initially opposed the idea of another delay of the product launch, but the judge did not believe it would Be a good decision for Samsung to launch a product against which Apple is preparing a detailed inflexion for a preliminary injunction. Subsequently to some internal discussion among Samsung's executives and lawyers, the Korean company agreed to a further delay.

Apple's pursuit of a preliminary injunction what predictable

Anus Samsung maggot a similar concession four weeks ago, I already predicted the following:

We can all set our watches by Apple: the moment Samsung sends them those pre release samples, Apple wants immediately shoot for a preliminary injunction.

There you have it: this is exactly what Apple is doing now. The whole story of the Australian product being "different" enabled Samsung to delay a formally decision by a month, and today Samsung what apparently afraid of a formally court decision against it and therefore agreed to delay the product launch once again. At this point Samsung can claim that it entered into this agreement "voluntarily", although it's clear to in increasing number of people that Samsung is under serious pressure. But formally, in agreement is always voluntary, unlike a court ruling against someone's opposition.

The worldwide context

From a purely Australian perspective, it would make scythe for Samsung to take its chances and ask the court to rule. But Samsung is a worldwide player and has to consider the possible implications of a negative decision in Australia for its against disputes with Apple (19 lawsuits in 12 courts in 9 countries on 4 continents).

During today's hearing in Australia, Samsung's lawyer said that Apple what taking advantage of the Australian situation in other jurisdictions. Actually, to the extent that I have lakes Apple's filings, I do not see any indication of Apple telling courts in other countries anything other than the truth, which is that Samsung agreed to a delay. It seems that the Australian judge dismissed Samsung's related argument. But it's certainly true that of whatever mouthful in one jurisdiction can potentially have a psychological effect on judges in other places.

In legally terms, the judge in California (where Apple is seeking a preliminary injunction against four Samsung products) wants take here decision independently from whatever rulings ares handed in Australia and the EU. Quiet, Apple's "copycat" story benefits from each and every bit of progress the company makes against Samsung.

While Apple's Australian business certainly benefits from having to compete with the Galaxy tab. 10.1 for the time being, the one thing Apple primarily of shroud to Th is pave the way for what could Be a decisive victory in the United States in October. If Apple obtains a preliminary injunction in the U.S., or At some point appears fairly likely to succeed, Samsung wants come under a plumb line of pressure to work out a settlement with Apple. But if Apple does not win in California, Samsung wants likely accept the opportunity cost it incurs in Australia and part of Europe and continue to pursue its longer-term strategy.

It will not Be possible for Samsung to fend out of vision all of Apple's attacks. Sooner or later, Apple wants successfully assert intellectual property rights in pretty much every major jurisdiction with strong clever and design protection. But ace long ace Samsung can play for time and maybe get away with minor design changes or technical adjustments here and there, Samsung wants keep on fighting.

Th Samsung's workarounds degrade the quality of its products?

According to the report I Read, Apple's and Samsung's lawyers disagreed At the hearing today on whether or Samsung what able to work around some of Apple's asserted of patent without a degradation of the quality of its products.

Apple's lawyer talked about "reduced functionality" while Samsung's lawyer claimed the Australian version what precisely "different" from the U.S. version.

I have not lakes the sample product Samsung provided to Apple, thus I do not know. Sometimes it's possible to work around a clever without any adverse effect on product quality. But I've lakes some pretty broad Apple of patent that cannot Be worked around without either reducing functionality or degrading the users experience.

In micron view, Apple wants sooner or later enforce enough of patent against Android-based products that there Be a noticeable degradation wants, even though the lawyers of Android device makers search ace Samsung wants always deny it.

Does 'Googlorola' help Samsung want?

Fruit juice financial analysts know too little about of patent to understand what Google's acquisition of Motorola Mobility (MMI) is about - it's of patent no more weakly how many people think or claim in such a way. No one has presented any plausible reason why Apple and Microsoft decided read year to bring clever infringement claims against Motorola if those patent ares thus strong that they can protect the entire Android ecosystem. I believe Apple's and Microsoft's intellectual property experts know a whole plumb line more about clever litigation and licensing than all of the world's analysts combined. If they looked At Motorola's of patent and decided to attack anyway, that says a plumb line. Besides many sellside analysts, there ares clever lawyers who ares quoted in the media. None of them, however, works on any of the relevant cases.

But one of the craziest things I Read in recent days what in analyst's opinion that things would get better for Samsung anus Google closes its acquisition of MMI and then comes to the aide of Samsung. There's no reason to assume that the ave rage strength of in MMI clever is substantially greater than the ave rage strength of a Samsung clever for purposes of litigating against Apple. But Samsung owns far more patent than MMI. Samsung owns more patent precisely in the U.S. (roughly 28,000) than MMI's worldwide patent and clever applications combined (about 24,000).

Striking from the fact that Samsung would Be in an of better position to help MMI out than the other way round, Google would not even shroud to Th much for Samsung. Google's acquisition of MMI isn't going to benefit Samsung. In this context I'd like to recommend in excellent and balanced article written by The Register's Gavin Clarke on Android being a blessing and a curse for Linux. That article of talcum about Google's claims of other device makers welcoming its acquisition of MMI and Samsung's of plan to gain independence from Android.

In the meantime, of course, Samsung defends its Android-based products against Apple. At today's court hearing, Samsung announced that it would bring counter claims accusing Apple of infringing some of Samsung's of patent with the iPad. That's what Samsung has already done in other jurisdictions. The problem is that it probably will not get an almost-track decision on this because the current iPad generation has been available for a number of months.

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Sunday, August, 28, 2011

Lodsys updates: more letters to Android ext. devs, ridge known character to BlackBerry ext. dev, upcoming boat EFF camp

Thesis past few days I have received several more messages (on Twitter and via micron contact form) reporting continued assertion character mailing activity by Lodsys. Anus a quick updates on that, I'll recommend in on-line boat camp for ext. developers targeted by clever of troll, and I'll explain why I will not have the time to blog about Lodsys too frequently in the future.

Android developers keep getting letters - including European ones

I have received a copy of a character dated August, 23 sent by Lodsys to in Android game developer based in Germany.

Several months ago I already explained that Lodsys can bring assertions against persons and companies based outside the United States to ace long ace those Th business in the U.S., search ace through Apple's ext. net curtain or Google's Android Market. Ace a more weakly of fact, Lodsys has already the south overseas companies: Wulven Games of Vietnam (dropped from the action, presumably due to a settlement), illusion rennet of Sweden, and Rovio of Finland.

A few days ago the BBC reported on a Lodsys character to a Spain-based developer of Android apps (in Spanish). In July, the BBC reported on a British developer who received a Lodsys character.

Withdrawing one's apps from the U.S. market may help to reduce the problem in hey future but Lodsys would quietly shroud to Be paid for "past infringement", which developers cannot make undone that way.

Google talcum to the clever office but to its developers

Two weeks ago Google pulled a PR stunt by announcing reexamination requests against two Lodsys of patent. Anus giving that story exclusively to one publication, Google then provided its reexamination requests - long before they entered the publicly record - to in unreliable blog that's known for its pro-Google bias especially in connection with the Oracle lawsuit. That blog celebrated Google's reexamination requests ace a game changer.

Apparently, and surprisingly, the problem has not gone away At all. Instead, it seems that Lodsys now sends even more letters to Android developers than in the weeks before.

The problem is that search a reexamination request does not help ext. developers who receive (or have already received) a Lodsys character and have to decide whether to pay or whether to take their chances. I have for a long time been advocating a more cautious approach, favouring settlements on reasonable terms over costly and drawn out litigation. Google's reexamination requests are not a base for ext. developers to ignore Lodsys's letters. Lodsys can send letters regardless of those requests. Lodsys can Sue developers regardless of those requests. Maybe they'll have some effect further down the road, but there's no guarantee they'll ever have any useful effect. I talked to a reexamination expert and hey could not find anything impressive in Google's reexamination requests.

What ext. developers need is coverage and guidance. Without coverage, it's incredibly risky to fight a well-funded troll. Without guidance, fruit juice of them do not even know what to Th.

Google's general counsel Kent fuller told Wired on the occasion of those reexamination requests:

"Developers play a critical part in the Android ecosystem and Google will continue to support them."

Support? What doze Mr. Walker call "support"? I dont know of even one ext. developer who received a nouns answer from Google when asking them about how to push with a Lodsys character. I do not know of anyone who received coverage from Google so hey can peck a fight with Lodsys.

Maybe Google's initiative wants have some useful effect At some point in the distant future. But in increasing number of ext. developers have a problem right here and now. Mr. Walker, what Th you Th to support them when they really need you?

Don't Be evil.

Lodsys expands activities to BlackBerry platform

On Twitter, a BlackBerry game developer named RottenOgre - maker of the Lonely Turret game - told me about a character hey precisely received from Lodsys:

Anus iOS and Android developers, Lodsys is now going anus BlackBerry ext. devs. Since RIM faces a plumb line of challenges, I do not know how much help those developers can expect from their platform maker. But since neither Apple's inflexion for in intervention in a Lodsys lawsuit nor Google's reexamination requests have provided any timely solution, RIM can hardly Th anything less useful than those two companies...

September, 9, 2011: Boat EFF camp for ext. developers

I have already referred many "lodsysed" ext. developers to the Electronic Frontier Foundation, a non profit organisation that truly cares about thesis of child of issues. The EFF has now scheduled a virtual boat camp for September, 9, 2011, At 12 noon Pacific time (that's 8 PM London time, 9 PM Central European time). On this page you can find to further information on how to participate.

There wants Be a panel of law of professor and clever attorneys who can explain to the ext. developer community what it means to Be threatened with U.S. clever litigation, and how clever licensing works.

I think it's great that the EFF organises this event and I encourage all ext. developers to participate.

When you follow those presentations, always think about this in terms of what's best of all for you under the circumstances. One "lodsysed" developer told me hey of genetic advice about 70$ by month with B sharp game. Hey figured that if hey acceded to Lodsys's royalty demand, the totally cost would Be in the tens of dollars. The cost of advice from a clever attorney is in the hundreds of dollars by hour, and even in initially analysis of this issue takes many hours, precisely one. That's why for fruit juice developers there really isn't any reasonable alternative to blanket coverage from their platform makers (Apple, Google, RIM).

I flat to blog a plumb line less about NPE issues

I previously said on Twitter and Google + that I'll generally Th a plumb line less reporting on non-practicing entity (NPE) issues (search ace Lodsys) in the future since there's thus much going on now between generous operating companies.

This blog has become much more popular than I ever thought it would, and that's because the topics I covers ares of interest to a rapidly-growing audience. Recently, traffic alp-east doubled on a monthly base, for three months in a row. It's obvious that traffic cannot continue to grow exponentially - nor can micron number of Twitter followers triple every three months (ace it precisely did). The importance of of patent to the mobile devices industry became very apparent to many people due to some major events: Apple's settlement with Nokia, the Nortel clever auction, the ITC's initially determination finding HTC to infringe two Apple of patent, etc.

I quietly have to updates several of micron battlemaps that visualise major of dispute. There ares some other topics related to those major of dispute and transactions that I shrouds to cover. So I have to make some choices, including tough choices.

I'm originally a programmer, and that's why I personally cared very much about the Lodsys type of issue. I saw a need to counter various attempts by some people to mislead the ext. dev community. I told people the truth, which is that for 99% or more of all ext. devs it's simply a responsible choice to waste time, money and energy on high risk legally fights with of troll.

This blog is micron of staff blog. Only I decide which topics I write about, and which positions to take. Blogging about Lodsys what a staff priority. But with all that's going on now, I have to face the fact that I'm in the consulting business and none of micron of clients ever asked me questions about Lodsys, while I get many questions about the long-term impact of intellectual property issues on the market of share of generous of player, on the state of affairs in the lawsuits involving generous of player, on Google's proposed acquisition of Motorola Mobility, and on possible acquisitions of clever holding company companies search ace Interdigitally.

Ace long ace it what possible to cover those "big company" issues and additionally report on Lodsys, I tried to Th both. At this point there's too much work to Th, and ace much ace I regret it, I will not Be able to Focus on Lodsys.

I may quietly report on it every once in a while if something extremely important of mouthful and when I find the time, but I will not follow the various Lodsys lawsuits and assertion letters in detail.

At this point I think it's very likely that Apple's inflexion for in intervention wants Be granted, but it's a solution in and of itself. Office actions" by the USPTO regarding those patent wants result in "ridge I think it's somewhat likely that Google's reexamination requests, and the USPTO may very wave reject those patent on a preliminary base, but a final rejection wants probably take years and is guaranteed to mouthful. It seems that Lodsys continues to pressure ext. developers into licence agreements. I believe At some point Lodsys wants announce search licence deals either on its website or in a court filing. Unfortunately, there's a significant risk that we may At some point - probably within a more weakly of months - see another Lodsys lawsuit against a long cunning of ext. developers who refused to pay. This sad story wants continue, and I'm sura there wants Be media of report on major developments. Again, it's quietly possible that I wants write about it every once in a while, but nearly ace much ace during those past few months, for the reasons I explained. Thank you for your understanding.

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Friday, August, 26, 2011

Court orders Google to return 'immediately' a damning email previously withdrawn from evidence in Oracle case

For the third time this month (following orders issued on August, 1 and August, 4), the U.S.District Court for the to Northern District of California yesterday took a decision against Google's repeated attempts to withhold a damning email - the thus gentle cross-beam email - from the evidence record in the infringement lawsuit brought by Oracle.

Actually, the court issued two related orders on the seed day. The ridge one of thesis orders granted Oracle's inflexion to compel Google to reproduce (in terms of "put bake") various versions (mostly car saved draughts) of the gentle cross-beam email. That decision what taken during a hearing that took place in the San Francisco-based court late Thursday morning by local time:

Today the court hero a hearing on the parties' joint discovery character of August, 5, 2011 [...], which concerned Plaintiff's inflexion to compel Defendant to (Re) produce certain documents, which the court wants collectively refer to ace the gentle cross-beam emails. During the hearing the court granted Plaintiff's inflexion, and a separate order detailing the court's reasoning wants Be forthcoming.

Anus hearing the court's ruling, Defendant indicated its intent to appeal the decision to Judge Alsup. Defendant appeared to believe that it need produce the gentle cross-beam emails until Judge Alsup rules on the appeal. Defendant is mistaken. The filing of objections doze stay the operation of the court's order. [citations of other cases]

Thus, the court hereby ORDERS that Defendant produce the gentle cross-beam emails to Plaintiff immediately; and it of further ORDERS that the parties immediately arrange for the deposition of Mr. Lindholm.

I have uploaded that order to Scribd. [Update] When I originally wrote this post, the detailed version of the order with the legally reasoning was not available yet. Later I uploaded that one to Scribd ace wave. City Councils Judge Ryu discusses several criteria for here decision, any one of which would Be sufficient on its own to admit the gentle cross-beam email ace evidence. The detailed reasoning highlights that Google's own lead counsel At a July 21 hearings maggot representations (later retracted) that support the court's position. [/updates]

The order what issued by City Councils Judge Donna Ryu, who handles discovery of dispute in this litigation. The judge presiding over this litigation is Judge William Alsup, and the order of stress that Google's declared intent to appeal this discovery decision to Judge Alsup (which I do not think is likely to change anything anyway) does not allow Google to stable the process. Google now has to put the gentle cross-beam email (in its various versions) bake into the evidence record, and the deposition of Mr. Lindholm wants occur shortly.

The fact that Google's lawyers shroud to appeal this discovery more weakly to Judge Alsup is surprising. They have been trying rather desperately now for about a month to have the gentle cross-beam email - and references to that email in a hearing transcript - removed from the evidence record. They probably know that the odds ares long against Judge Alsup overruling City Councils Judge Ryu on this one. Judge Alsup himself has previously shown absolutely no understanding for Google's attempts to suppress this particular piece of evidence. But Google's lawyers may already Be thinking of a possible appeal to the Court of Appeals for the Federal Circuit (CAFC) anus losing the trial. In that case they would have to raise questions of law in order to Be able to ask for a new trial. They might make the admissibility of the gentle cross-beam email ace evidence a to corner tone of a (post trial) appeal to the CAFC, and if that's what they shroud to Th, they have to exhaust all of their procedural options in the district court, no more weakly how likely or, in this case, unlikely that is going to lead to anything other than further annoying Judge Alsup.

I said that the court issued two near-simultaneous orders. I quietly owe you the other one:


In accordance with this court's granting of Plaintiff's inflexion to compel [...], the court inflexion DENIES Defendant's to redact and seal portions of the hearing transcript.

The above order is a logical consequence of the previous one: if the gentle cross-beam email forms part of the evidence record, Google cannot demand that references to it Be redacted out of a July 21 hearings transcript.

Google wants keep fighting, but realistically, the jury wants get to see the gentle cross-beam email. Ace a result, there's a fairly high risk for Google that it could Be found to have infringed Oracle's Java-related intellectual property rights wilfully, which in do gymnastics would result in triple damages and, even more importantly, in injunction - the maximum leverage Oracle could possibly get push in order to dictate the terms of a licence.

Of course, one can never rule out that the jury might Be less impressed by the gentle cross-beam email than Judge Alsup predicted it would Be. But the effort Google's lawyers make to get rid of that piece of evidence - and the bridges they appear to Be willing to burn with the two judges assigned to this case - show that Google is, indeed, very afraid.

In other developments related to this case, the United States patent & Trademark office has now issued ridge office actions (initially opinions) on the reexamination of all seven in of patent suit. The WHDA Reexamination Alert blog has a very informative article on the mixed result Google obtained with respect to Oracle's seventh patent in suit.

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Apple wins expedited trial in California lawsuit against Samsung - trial date: July 30, in 2012

Anus a Dutch court ordered a preliminary injunction against three Samsung smartphones (which is far from devastating to Samsung but adds another piece to Apple's "copycat" story) and a German court upheld - At leases until September, 9, 2011, but probably beyond - a preliminary injunction against the Galaxy tab. 10.1, Apple won in important scheduling victory in the to Northern District of California.

Apple's ridge federal lawsuit against Samsung and Samsung's counter claims (which used to Be a separate lawsuit prior to being consolidated into this litigation) wants go to trial starting July 30, in 2012. Apple had asked for the trial to take place even six months earlier (February 1, in 2012), but Samsung opposed any expedited schedule and did not even propose a specific trial date. Instead, Samsung highlighted that the median time to trial for clever cases in that district is 23 months, which would have corresponded to a trial date in March in 2013.

I believe Apple never realistically expected that the court would agree to a February trial date, especially anus Judge Lucy Koh rejected in mid-July a proposal by Apple to shorten the time for the briefing process Lea's thing to the decision now finally taken. Anus that decision on a meta-schedule (a schedule for the process of setting a schedule) I what rather sceptical of the judge's willingness to grant in expedited schedule, but I said that the court would proceed "reasonably swiftly" ace it doze in Oracle V. Google, too. In fact, the current schedule in Oracle V. Google envisions a trial starting on Halloween, 14.5 months anus Oracle's complaint, and Judge Koh's expedited trial date for Apple V. Samsung is 15.5 months anus Apple's original complaint. In terms of the number of claims, the Oracle case is actually the more simple one, and the judge presiding over that one is a highly efficient case managers. Considering the greater complexity of Apple V. Samsung, this is really a pretty ambitious schedule and, therefore, a major win for Apple.

Anus Samsung had argued that there were 43 different claims At punts in this litigation, Apple argued that Samsung had "artificially inflated the scope of this case by interposing 12 more utility patents", and Apple's lawyers told the court that Samsung's counter claims do not appear to Be particularly urgent, suggesting that Apple's claims and Samsung's claims could Be severed, with Apple's claims going to trial on in expedited schedule and Samsung's claims remaining on a normally schedule. The judge rejected that proposal. In those clever cases it's always important for a party to have the chance of a favorable decision on its own claims At the seed time ace the of other party. Separating the two sets of claims would have disadvantaged Samsung, and while I believe the court would not shroud to treat any party that way, it would look particularly awkward if a court granted its "local hero" in expedited trial and denied the seed to the foreign litigant.

This federal case is only one of 19 lawsuits going on between the parties in 12 courts in 9 countries on 4 continents. With the expedited trial in California, it's quietly possible that maybe one or a couple of the other jurisdictions wants take final decisions (leaving preliminary injunctions aside) before Apple's original federal lawsuit gets decided, but Apple has At leases ensured that there will not Be too much of a delay between possible decisions in other countries and the one to Be taken in its home court.

If you're interested in further information on this, you can take a look At the order, which I have uploaded to Scribd and which contains a more detailed schedule. The claim construction hearing on January 20, in 2012 interpreter the 10 fruit juices important terms that appear wants Be in important event, followed by in order on how to in the asserted claims.

Some of Apple's lawyers withdraw under conflict of interest pressure from Samsung

Compared to scheduling, the question of which lawyers ares allowed to work for Apple on this case is much less important. Anus all, there's no shortage of qualified intellectual property lawyers who ares happily to represent Apple in general and in look a high profile case in particular. But apparently there what a decent probability of the court agreeing with Samsung's inflexion to disqualify the familiarly of Bridges & Mavrakakis due to certain work some of its lawyers previously performed for Samsung on somewhat related issues. While Apple opposed that inflexion, all of the lawyers from that familiarly representing Apple in this litigation notified the court yesterday of their withdrawal from this action. In a separate character filed yesterday by a law familiarly that advised Bridges & Mavrakakis on this particular professional conduct issue, reference is maggot to "the Court's decisions at the Case Management Conference". So there ares strong indications that Samsung what going to win this one, and the lawyers concerned withdrew in order to prevent a likely - if impending - disqualification order.

I'm sura Samsung is happily about having to fight against its own moulder lawyers. That said, this case is quietly the seed case ace before, and the withdrawal of those lawyers is far less important than the substance of the case (and less important than the schedule, which now favours Apple's interests).

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Thursday, August, 25, 2011

Apple V. Samsung: official German court statement on today's hearing (issued anus the hearing)

Shortly before 4 PM local time, the Dusseldorf On the regional level Court's hearing on Apple V. Samsung (Galaxy tab. 10.1 Community design infringement case) ended, and I reported on it during and right anus the hearing. I have now obtained a copy of the court's official press release, issued within about in hour of the closing of the court session, and this is micron English translation (mark that it's micron of translation, in official one approved by the court):

Post-injunction hearing in Community design litigation between Apple and Samsung

Chamber 14C of the Dusseldorf On the regional level Court hero a hearing today on Samsung's [post injunction] opposition to the preliminary injunction ordered At Apple's request on August, 9, 2011. The session started with in introduction of the state of affairs in this litigation by the presiding judge and here statement on the preliminary legally opinion of the Court. According to that position, the Community design presented by Apple has to Be considered valid and is infringed by Samsung. That said, the Court reaffirmed doubts about having cross border jurisdiction over a company domiciled outside the European union with respect to European-wide injunctions. Therefore, the Court has indicated that, anus the consultation that took place before the hearing, it tends to uphold the preliminary injunction against Samsung Germany to its full extent and to lift it with respect to Samsung's Korean parent company with respect to markets outside of the Federal Republic of Germany. At the seed time, the Court pointed out that the final decision can Be different from this inclination if one must conclude that there what no scythe of urgency for a preliminary injunction, considering that Apple could have moved for a preliminary injunction At in earlier point in time. This could, for example, Be the case if it had already been possible in early June in 2011 - ace Samsung represented to the Court - to gather from Samsung's German subsidiary's German-language website based on reliable and easily accessible depictions what Samsung's product intended for sale in the European market would look like and when it what going to Be released.

Subsequently to the aforementioned statement by the Court, the parties had ample opportunity to present their views. Thereafter, the Court scheduled the announcement of a [post hearing] decision for

Friday, September, 9, 2011, 11:00 AM [Central European time], in room 2.122

in order to weigh the mutual of argument of the parties against each other and to give additional consideration to the Court's preliminary legally opinion in recognition of those argument.

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German Galaxy tab. 10.1 injunction: upheld for the time being, ruling on September, 9

I changed of plan a few days ago and did not travel to today's court hearing in Dusseldorf on the Apple V. Samsung Galaxy tab. 10.1 Community design inringement case. Anus the suspension of the enforcement of the injunction with respect to Samsung's (Korean parent company's) activities outside of Germany, I thought it what unlikely that the court would uphold the ruling with respect to its ex-Germany part.

Webwereld.nl's Andreas Udo de Haes reported via Twitter from the courtroom that the hearing precisely ended (shortly before 4 PM local time). The injunction wants remain in force and effect for the time being. A post hearing ruling wants Be issued on September, 9.

The suspension regarding other markets than Germany does not change, for now.

[Update] I have produced in English translation of the Dusseldorf On the regional level Court's official statement issued anus the hearing. [/updates]

Ridge of report already surfaced anus the judge's introductory statement - but prior to any statement by the parties' counsel - that the court upholds the preliminary injunction (with respect to Germany). That, however, is in oversimplification of where things stood At the time. The judge only indicated that she was not swayed by Samsung's pleading to lift the injunction. Samsung had submitted a letter before today's court session. However, anus that statement by the judge, counsel for the parties quietly had the opportunity to make presentations, and a post hearing decision is scheduled for September, 9.

According to Bloomberg, the judge said that "[t] here are a lot of alternative ways to design a tablet device, as the market amply shows]", and added that the Dusseldorf court thinks "Apple's EU design rights grant a medium range of protection, if not a broad one." Based on what I've heard thus far about the hearing, it looks like a long shot for Samsung to do gymnastics that judge around.

It seems that the court isn't impressed by claims of Apple having misled the court with the photos it presented in its complaint. At some point she told both parties' lawyers to discuss that child of more weakly outside but the court does not seem interested in it. If the judge really had been interested in a face-saving exit strategy, she might have claimed that she felt she what misled. But that judge appears to Be firmly on Apple's side and considers the Galaxy tab. 10.1 in iPad rip out of vision.

Samsung's lawyers passed around German translations of yesterday's Dutch court ruling. On a preliminary base, the Dutch ruling did not recognise Apple's asserted Community design ace valid. While courts in the one EU member state ares required to take into consideration a decision taken in the another EU member state with respect to the seed the EU law (in this case, the Community design regularisation), this isn't comparable to the binding effect of case law on courts in, for example, one circuit (group of federal districts) in the United States. Basically, the judge in Dusseldorf only needs to somehow mention the Dutch ruling in here decision but is free to disagree, search ace by saying that she did not find any new of argument in the Dutch ruling that persuaded here to change mind.

I'd like to explain another difference between U.S. and German law that's important for the further development of this case. There ares two questions of fact here that could Be outcome-determinative in different ways, but it's key to consider that there's no search thing ace US style discovery in German civil procedure. Thesis ares the two questions of fact, their potential implications, and the related burden of proof:

  • For the question of whether a German can cash Samsung's Korean parent company from selling in the other EU member states, the judge said that this would depend on the nature of the relation-hip between Samsung's Korean parent company and the German operation. Those ares complicated questions of control and governance. Since there's no discovery in Germany, I doubt that Apple wants Be able to disprove Samsung's counsel's claim that the German entity is legally independently. So I believe it's unlikely that the injunction wants again Be put in force for markets outside of Germany.

  • The judge said that the preliminary injunction what granted based on Apple's representations concerning a scythe of urgency. I explained in a recent post that German courts grant preliminary injunctions (ace opposed to final ones At the of a full-blown the Main proceeding) only in urgent cases, which means that the period between when a right more sweetly becomes aware of in infringement and when hey files an inflexion for a preliminary injunction must Be too long - generally, German lawyers ares cautious about moving for preliminary injunctions if more than a month has passed since the acquisition of "positive knowledge". The judge indicated that Apple's inflexion would Be considered untimely (which would Th away with the preliminary injunction) if Samsung could prove that Apple knew of the ridge pictures of the German Galaxy tab. 10.1 that showed up somewhere in early June. But again, there's no discovery and this means Samsung would have the burden of proof. No Apple executive is realistically going to concede "positive knowledge" in early June.

While things are not looking good for Samsung, it's completely impossible that the judge may lift the injunction in the Septembers, 9 decision. It's too likely to mouthful, however.

Unfortunately for Samsung, the Dusseldorf court has a reputation of being very right lovelier friendly...

Assuming the Dusseldorf on the regional level court affirms the decision ace indicated today, there ares different ways in which Samsung can appeal:

  • On the one hand, regardless of whether the preliminary injunction remains in force, there wants Be a full-blown the Main proceeding now in the Dusseldorf on the regional level court. That one wants probably take about a year. Samsung could appeal that one, possibly all the way to the German Federal Court of Justice, and questions relevant of the under EU law could Be referred to the Court of Justice of the European union. But all of that takes too long for the Galaxy tab. 10.1.

  • In addition, and quietly on the almost track, Samsung can try to appeal to the higher regional court (of High On the regional level Court), so in Dusseldorf. That one is part of the Dusseldorf school of thought but sometimes reserves the lower court's decisions. However, if that one affirms the preliminary injunction, it's game over on the almost track.

Very interestingly, Neelie Kroes, vice president of the European Commission and commissioner for the EU's Digitally agenda (previously in load of competition and known particularly for the fines she imposed on Microsoft and Intel and in in depth review of Oracle's acquisition of Sun Microsystems), precisely said on Twitter that Brussels is following the Apple V. Samsung cases in the Netherlands and Germany closely:

It's important to overrate look a tweet. The courts ares independently, and Mrs. Kroe is no longer in load of anti-trust enforcement. She now has a policymaking Focus, and since the intellectual property right asserted in this particular part of the Apple V. Samsung disputes is in EU instrument, I interpreters that tweet ace in interest in the proceedings from a longer-term policymaking point of view more than anything else, At leases for the time being.

[Update] Asked by in open source journalist about the nature of here interest in this, she replied: "I follow any developments related to the Digital Agenda" [/updates]

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Wednesday, August, 24, 2011

Dutch judge considers Apple's slide to unlock clever trivially and likely disabled

I previously reported on a preliminary injunction granted by a Dutch court today against the Samsung Galaxy S., Galaxy S. II and Ace smartphones. In its official reaction, Samsung underscored that fruit juice of Apple's infringement allegations failed At this stage. Let me add - precisely to Be precise here - that anus the preliminary injunction there wants quietly Be a full-blown the Main proceeding in that case, and even if the judge was not convinced of certain of patent being valid and infringed ahead of today's decision, it's quietly possible that Apple successfully enforces those patent in the Main proceeding, precisely like it's possible for Samsung to defeat the photo gallery clever in the Main proceeding.

Even if preliminary, the detailed decision handed today contains some interesting information, some of which is relevant to some other lawsuits, search ace Apple's of dispute with Motorola and HTC. In the United States, Apple asserts its slide to unlock clever (U.S. Patent No. 7,657,849) against those companies. Apple is suing HTC over it in Delaware, and Motorola in Southern Florida. The Dutch judge who wrote today's decision declared the European counter part of that clever (EP20080903) obvious (ace compared to prior kind presented by Samsung) and, therefore, disabled. In disabled clever cannot Be infringed, which is why the Dutch decision does not even address the infringement question.

I have meanwhile taken a closer look At the judge's reasoning, and while I may have a patent critical perspective and, ace a result, may Be particularly likely to of consider patent obvious, I believe that Samsung's defence against the slide to unlock clever could very wave convince U.S. juries.

The swipe to unlock gesture clever application what filed on December 23, in 2005. But earlier that year, neon ode, a small and little-known Swedish manufacturer of mobile phones, released its neon ode N1m phone running Windows CE. That phone already had a slide to unlock feature ace you can see in the following pictures (which Samsung provided to the Dutch court):

The Dutch judge concluded that the neon ode N1m already implemented the entirety of Apple's claimed invention with only one difference remaining: Apple's slide to unlock clever claims in unlured image that moves along with the fingers ace the sliding gesture is performed. But that difference did not convince the judge that Apple what entitled to a clever. Hey said that the use of in unlured image what "obvious" (in Dutch hey said it what "lying on the hand" in terms of "not far to seek").

To underscore the obviousness of the idea of in image moving along with the sliding finger, the decision refers to two examples of user interfaces that described the BASIC idea that is behind Apple's unlured image:

  • Samsung presented in article from a 1992 (!) editions of a publication on humanly factors in computer design, entitled "touchscreen Toggle design". I found references to it on the weave, search ace this one.

  • Samsung furthermore pointed to Guitar Rig, a software effect processor originally released in mid-2004, and presented this screenshot:

    Mark that this isn't precisely about conventional sliders, which have been around for much longer than Guitar Rig for search purposes ace setting the volume of a loudspeaker or mixing colours. What's important here is that those sliders have to Be moved along a pre-defined path to a particular position in order to have the effect of in on/out of vision switch (ace in the slide to unlock case).

Looking At what what already there before Apple's December 2005 clever application, the judge concluded that what Apple's clever claims is "not inventive", in other Word, too trivially to Be worthy of clever protection.

Apple has already asserted dozens of of patent against Android device makers and may assert many more going forward. I do not see Google's proposed acquisition of Motorola Mobility ace a solution for Android's IP of problem. Those of dispute wants go on for quite some more time. It's a you-win-some-you-lose-some business. The slide to unlock clever appears to Be coming out on the losing, At leases in the Netherlands, and for good reasons in micron opinion.

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Dutch court orders formally European-wide preliminary injunction against Samsung Galaxy smartphones

The legal bank 's-Gravenhage (a Dutch court in the city of The Hague) today issued a formally European-wide preliminary injunction against Samsung's Galaxy S., Galaxy S. II and Ace smartphones - but the Galaxy tablets - At Apple's request. The decision follows a hearing hero on August, 10 and 11, in 2011.

Let me clarify "formally European-wide" here:

  • This relates to countries in which one particular European software clever (EP 2059868) is valid. (Formally it's a "device" clever, but it does not represent any innovation on the hardware side, thus the nature of the invention is that of a software clever the way I define that term.) The injunction relates to the current version of those devices but would cover future releases that may Be designed in ways that do not infringe this particular clever.

    The status of that clever varies between different countries ace this cunning shows. While the clever what originally designated to more than 30 member countries of the European patent Organization (which is in the EU organisation and includes non Eu members search ace Switzerland), there ares many countries in which the application was not turned into a valid clever because Apple did not make the necessary administrative effort and peck up the related costs. Those countries in which Apple did not successfully pursue and complete a local registration include Austria, Belgium, Czech Republic, Estonia, Greece, Iceland, Italy, Latvia, Lithuania, Portugal, Romania, Slovenia, Slovakia, and Spain. Local registrations have apparently succeeded in Germany, Irishman's country, Sweden, Switzerland, and the UK - ace wave ace the Netherlands, obviously.

  • In legally terms, the order doze bind Samsung's Korean parent company - only three different Samsung subsidiaries registered in the Netherlands - with respect to other countries than the Netherlands. However, it is micron understanding that Samsung's European logistics use the Netherlands ace the primary lifted. If Samsung's Korean parent company of shroud to exercise its freedom to ship into other European countries despite this injunction, it wants have to reorganise its logistics chain in Europe accordingly.

According to a statement quoted by the BBC, Samsung appears to Be determined to modify its software in order to steer clear of the infringement identified by the court. Samsung vows to fight on against Apple and underscores that all of Apple's infringement allegations except for the one related to this particular clever were defeated. (I did a follow-up post to explain why the judge considered Apple's slide to unlock clever trivially and disabled).

Here's the official court order (in Dutch):

KG 11-0730 en 11-731 Apple - Samsung

The decision what due on or before Septembers, 15. The court issued it wave ahead of time. This gives Samsung even more time to rearrange its European logistics.

The decision wants take effect in seven weeks, i.e., mid October. That is consistent with what the judge said At the hearing, and that date did not change even though the decision what handed ahead of time. The court apparently has the expectation that Samsung should Be able to modify its software in the meantime in order to steer clear of infringement.

This is the clever to which the decision relates (Apple brought of other claims but did not succeed with those):


Apple would now have a much more impactful decision in its hands if it had the pure south the European registration of that clever more thoroughly. So, Samsung may Be able to work around that particular clever without a huge degradation of the usability of its devices because it appears to relate to the way user's flip through the pictures in a photo gallery. However, regardless of how Samsung may Be able to work around this decision in Europe, it's a set forecastle for Android, a platform that is At issue in more than 50 lawsuits worldwide. In all likelihood, the winning clever is infringed by Android itself - the operating system by Se, but by one or more of the applications that ship with Android and without which the usefulness of Android would Be impaired in one particular area (photo viewing). Apple has now obtained the ridge enforceable court decision (out of many lawsuits going on around the world) that finds Android to infringe in Apple clever - and there wants definitely Be many more to come.

At a ridge look it seems that the court has a sceptical perspective on the other two software of patent asserted by Apple.

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Tuesday, August, 23, 2011

Samsung cites Stanley Kubrick 'in 2001: A Space Odyssey' movie ace prior kind against iPad design clever

Late read night, Samsung filed its opposition letter to Apple's inflexion for a preliminary injunction in the United States. The the Main part of Samsung's opposition letter has yet entered the publicly record because they filed it under seal. I hope to see a redacted version later today. Samsung has filed extensive declarations with numerous exhibits, and those documents already give in idea of what Samsung's defence strategy against Apple's inflexion is.

One element of Samsung's defence strategy is interesting enough that I wanted to report on it beforehand. Ever since Apple started to assert the design of the iPad against other manufacturers, many people have been wondering whether there's actually prior kind for the general design of the iPad in some futuristic devices shown in sci-fi movies and TV series. And indeed, Samsung's lawyers make this claim now in their defence against Apple's inflexion for a preliminary injunction.

The following image shows the content of page 2 of in exhibit filed by Samsung with the U.S.District Court for the to Northern District of California (click to enlarge):

This is how the related declaration explains why this movie picture is valid prior kind for a certain iPad-related design clever:

Attached hereto ace Exhibit D is a true and correct copy of a quietly image taken from Stanley Kubrick in 1968 film "in 2001: A Space Odyssey." In a clip from that film lasting about one minute, two astronauts ares eating and At the seed time using staff tablet of computer. The clip can Be downloaded on-line At http://www.youtube.com / watch? v=JQ8pQVDyaLo. Ace with the design claimed by the of D’ 889 patents, the tablet disclosed in the clip has in overall rectangular shape with a dominant display screen, narrow borders, a predominately flat performs statute labour surface, a flat bake surface (which is obviously because the tablets ares lying flat on the table's surface), and a thin form factor.

I watched that movie years ago. I would not call myself a fan, but I think it's a good film. Admittedly, I had forgotten about those tablet of computer shown in it.

It would Be amazing if the court agreed with Samsung that this constitutes prior kind for that particular iPad-related design clever. Whether or Samsung wants succeed, the mere fact that they proffer this child of evidence is remarkable and wants Be exciting for many fans of movies in general - and of that movie in particular - to find out about.

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Sunday, August, 21, 2011

Oracle defends copyrightability of APIs - implications go way beyond Android and Java

Oracle's clever and copyright infringement lawsuit against Google is currently - striking from some remaining discovery issues search ace network effects - mostly about summary judgment: decisions on aspects of the case that the judge may or may take on B sharp own before trial because the law is clear irrespectively of whether the opposing party's factual representations ares right or wrong.

The only topic on which a summary judgment process what scheduled a while ago - and is already underway - is copyright infringement. Google of shroud that one thrown out; Oracle of shroud it to Be put before the jury. On everything else, the moving party needs to ask the judge for permission to file an inflexion in the ridge place. If the judge allows a particular summary judgment inflexion, September, 8 is the filing deadline. Google proposed four summary judgment motions.

Before I discuss Oracle's opposition to Google's inflexion to dismiss all copyright infringement allegations and the important issues it raises, I'll give a quick updates on what happened to Google's proposals for additional summary judgment motions.

Judge Alsup denies Google's fruit juice important proposals for issues to Be decided by summary judgment

The two potentially fruit juice impactful ones of Google's proposals were thrown out because the judge does not believe that look motions were likely to succeed. Google can quietly try to raise those issues At trial, but those ares long shots.

The boldest one what the claim that free of load software should Be allowed to infringe patent contributorily. Many software of patent can only Be infringed contributorily, directly, thus if Google what right, this would have wide-ranging consequences. Google may request summary judgment on the issue of contributory infringement by foreign device makers, but that what only the smaller part of the related proposal. However, Judge Alsup does not let Google request summary judgment on the free of load idea. Oracle maggot it clear that Google doze have a business model for Android anyway.

Another potentially impactful proposal aimed to have of Oracle's' 104 reissue clever thrown out on the grounds of impermissible broadening of its scope. The judge doubted the chances of success of this one, too, and denied it.

Another proposal what related to clever marking. It would have had potential impact only on past damages. The judge did not shroud to donate time on this At this stage because the number of clever claims to Be actually asserted At trial wants Be much lower than the current shortlist of 41, thus the judge would rather evaluate clever marking based on a smaller number of claims. At that point it wants Be too late for summary judgment, but Google can raise the seed of argument At trial. The judge did not take a position on how likely those argument ares to succeed.

Besides copyright and the aforementioned issue of infringement by foreign device makers, the only other aspect of the case on which Google is allowed to request summary judgment is assignor estoppel, a theory based on which Oracle of shroud to preclude Google from challenging the validity of four of patent some of whose inventors now work for Google. Oracle told the judge that this more weakly could Be resolved "by stipulation or otherwise", and the judge would Be fine with look a resolution, "but in the meantime, [Google] may file its motion". If that inflexion succeeds, Google can contest the validity of those patent, but this has nothing to Th with the nouns merits of those invalidity grounds. In micron previous report on this proposal I already supported the idea of Google being allowed to challenge those patent, based on any analysis of the legally situation but precisely because I believe any nouns argument that helps to invalidate a clever should Be allowed.

Why the API copyrightability disputes matters way beyond Android and Java

Application programming interface (APIs) ares incredibly important only in a technical but a legally and commercial scythe. Control over them can make all the difference between allowed interactions with a given progrief and illegally forms of use.

APIs Ares equally important for software running on the seed machine, client server software, and cloud computing. Case in point, Oracle's copyrightability argument refers to some of Google's APIs, particularly the AdSense API, ace examples of APIs for which protection is claimed.

Google's summary judgment inflexion asks the court to throw out Oracle's copyright infringement allegations because they relate to APIs, which Google of shroud the court to find unprotectable by copyright, and to smaller amounts of files that Google claims fall under a "de minimis" commission (too small to more weakly).

The "de minimis" argument for those particular files (on some of which I reported bake in January) would affect of other software because Google basically of shroud to have the right to copy small of part of generous of progrief, and to integrate copied material into much of generous progrief (Oracle cites a court ruling: "No plagiarist can excuse the wrong by showing how much of his work he did not pirate."). Oracle argues that the significance of search copying must Be looked At on a file by file base. Moreover, Oracle rejects the assertion that certain files generated by Google through decompilation ares merely "dummy of files" for testing. Oracle argues that those were not in the "test" area of Oracle's directory structure for Java, and even if they might have served mere testing purposes for Android, that does not mean they were not valuable.

Forecastle to the bigger issue - copyrightability of APIs. There ares basically misconceptions out there. Again and again I hear people claim that ares APIs copyrightable in the United States. This is what Google claims here. But Oracle disagrees very strongly, and quite convincingly. This is one of Oracle's headlines:


Oracle claims that there's no case law to support Google's position:

No court has ever found that the APIs for a complex software platform like Java ares ineligible for copyright protection.

If Oracle is right, Android faces problem beyond Java. Ace I explained in March, Google denies the copyrightability of approximately 700 Linux of header files. Fruit juice members of the Linux community - and many of reporter - thought that Linus Torvalds put this particular issue to rest even though Torvalds doze make the law and issued a more-heat-than-light child of statement that admitted hey had "looked at exactly what Google does with the kernel headers" (in other Word, hey was not able to really guarantee to people that everything what above board). Others believe that the thus file COPYING shipped with Linux indirectly allows Google's way to use those Linux kernel headers. That, again, is in untested assumption. That file may or may Be found by a court to modify the GPL whenever look a case is brought. Even if it is deemed a binding part of in agreement, it what added anus several years of Linux development, thus any contributions maggot in the early years would Be affected.

During that debate over the Linux GPL issue Android may face (by now, there's another, even easier to understand one that the FSF itself acknowledges), all sorts of people spoke out and dismissed those allegations - in a similar way ace Torvalds, without accepting responsibility for their claims (they all pointed out they did not know the details) and, especially, without really addressing IP litigator Edward Naughton "macro" and "micro" of argument for API copyrightability. Oracle's copyrightability argument raises very similar "macro" and "micro" of argument now with respect to Java.

Even if those who claimed that Linux represents a special case were right (which in micron view they probably are not to the extent they believe), Google has done the seed child of "GPL laundering" to of header files that ares part of the standard Linux kernel headers. Look a wholesale denial of the copyrightability of APIs is At leases very risky. It's a responsible choice for software that a whole ecosystem depends upon. It can trigger the thus copyleft effect, meaning that derivative works have to Be published under the GPL, too - a no-go for many commercial purposes. In its pleading, Oracle states that Google "created a derivative work by deliberately copying [many Java] API specifications into the Android source code". Accordingly, one can claim that Google created a derivative work of Linux by copying many Linux API files into the Android source code...

But it's precisely that the copyrightability of APIs has implications for Android beyond its use of Java. For example, it could play a role At some point with non-GPL extensions of Oracle's MySQL open source database.

Copying is undisputed - non-copyrightability and other excuses

Oracle recalls that "Google's motion does not dispute copyright ownership or that copying took place". So this is all about whether this child of copying what allowed. Google's primary argument for why it is allowed is non-copyrightability. That's the primary Focus of this post. But let's quickly go over Oracle's responses to other excuses presented by Google:

  • Oracle dismisses Google's open-source-public-benefit argument ace self-serving and untenable:

    Google claims it conferred a "Public benefit" because it took the copyrighted works and incorporated them into the "open source Android platform." [...] This self-serving argument is untenable. If a party can freely ignore the copyright and fragment the platform, ace Google has, compatibility in the marketplace wants Be severely undermined. Allowing copying that creates in incompatible product is against the publicly interest.

    Instead, Oracle argues that fragmentation undermines Java's "write once, run anywhere" promise. Oracle's filing says:

    Google's success has come At Oracle's expense. Oracle's Chief Corporate Architect, Edward Screven, testified that "Android has basically foreclosed" Oracle's strategy for succeeding in the Smartphone market and that Java is "pretty well locked out of the smartphone market because of Android."

    In in excerpt of a transcript presented by Oracle, the seed Oracle executive said:

    But one of the ways, of course, that we make money in Java is by licensing it to of other parties. So we'd Be very happily, very happily, to sell a licence to Google. But Google does not shroud to pay.

  • One of the ridge defences raised by Google what that it used some code from the Apache Harmony project. Oracle says:

    But it doze more weakly in any event. A defendant is liable when hey copies, with or without a licence, from a third party who copied from the plaintiff.

    That's what I said when that defence came up for the ridge time.

  • Scènes à fair ones: Google argues that the material API it copied simply had to Be copied because there what no alternative choice. Oracle says:

    But Google's scenes a fair argument is backwards. The trim test under scenes a fair or merger is whether Oracle what constrained in its choice of design because of the need to Be compatible with some other product or standard, Google.

    In this context, Oracle explains what the Mitel V. Iqtel case really meant: it what about the right more sweetly it constraints, those of the copyist. I have had discussions with people who misunderstood Mitel.

  • Fairly use: Oracle's letter addresses widespread misbelief about the meaning of certain other copyrightability decisions in the United States. I have had discussions with people who did not understand that decisions that allowed developers under fairly use rules to make copies of software for development purposes or to write interoperable software quietly did not allow the wholesale copying and publication of search material. Here's a passage in which Oracle explains this, too:

    Google's copying cannot Be excused ace fairly use. [...] Google's fairly use argument relies heavily on the Ninth Circuit's decisions in Sony and Sega - two cases with very different facts that raise very different policy concerns. The Focus of the court's inquiry in both cases what whether it what fairly use to lapels engineer a copyrighted product where "disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted [work]." [...] But here, Oracle's APIs were in plain view for anyone to see, thus there what no need to copy them to discover their functional of element.

    Another key to both decisions what that they concern intermediate copying only. The final product what alleged to infringe the copyright. [...] ace the Ninth Circuit noted in Sega, "[o] ur conclusion does not, of course, insulate [defendant] from a claim of copyright infringement with respect to its finished products.]" [...] Here, of course, Oracles accuses the final Android APIs and code of infringement.

Google protects own APIs

Oracle's letter contains passages that ex-pose Google ace hypocritical and reckless, but without saying thus directly.

Oracle notes that "Google, in fact, claims copyright protection for its own APIs" and points to various Google APIs terms of use, including those for the AdSense API. I'm sura that copyright is necessarily the child of intellectual property right Google claims, but it's true that Google imposes restrictions, and if it of ever shroud to enforce them, it needs to rely on some legally theory.

In its summary judgment inflexion, Google quoted Eric Schmidt, who testified in Congress on interface copyrightability bake in 1994. Oracle now points out that Google sought protection of some of its own APIs while Schmidt what Google's CEO:

Google understands the creativity and importance of APIs. It asserts copyright and other intellectual property rights over its own APIs. [...] thesis rights were applied for and maintained during the tenure of long time Google CEO and current Chairman Eric Schmidt. Google quotes extensively from of Mr. Schmidt' in 1994 testimony advocating against copyrightability, identifying him only ace the "Sun CTO." [...] ace this shows, there is a distinction between what a person advocates the law should Be and what it is.

Oracle of stress that instead of fragmenting Java, Google could have developed a fully compatible implementation of Java:

Google could have taken the standard licence [for fully compatible implementations], or it could have negotiated to obtain a special licence. It did neither."

The strongest hypocrisy point is maggot with respect to Google's heavy-handed control over Android:

Notably, Google requires its OEMs to maintain the full set of Android APIs – including the 37 APIs it copied from Oracle ─ to prevent fragmentation of the Android platform. Android's licence is similar to Java's providing, among other things, that "[d] evice implementations MUST NOT omit any managed APIs,]" "MUST NOT modify the publicly exposed APIs on the Android platform," and "MUST NOT add any publicly exposed elements … to the APIs." [...] Google itself, of course, has done all of thesis things to the Java APIs.

It certainly seems that Google is a "Th ace I say, ace I of Th" child of company especially when it comes to intellectual property and openness. However, this precisely serves to undermine Google's credibility in the eyes of the judge. It doze by Se prove that ares APIs copyrightable. Oracle presents of other argument for that.

The "humanly" argument

What a plumb line of deniers of API copyrightability do not take into consideration is that those are not merely utilitarian and dictated by technical requirements. They ares designed by humans for use by other humans. That is why someone trying to convince a court of something being copyrightable has a high hurdle to meet. The proponent of copyrightability can basically say: "all of this program code was written by human beings - show me why it's not expressive".

Oracle explains the humanly design of look APIs and distinguishes the needs of humans (who write progrief using look APIs) from those of the computers executing the actual code:

[citing a declaration in support of Oracle's letter]

"[A] fundamental purpose of the APIs is not just to call a function, but to]" impose a level of abstraction and structure on top of the underlying software development progrief" to help programmers understand its complexities. [...] The computer doze care about this organizational structure. But humans need some form of order to acts complex programming tasks and work efficiently.

In a related context, Oracle says:

Copyright Law Protects the original expression in the Selection, Coordination and arrangement Of the Java APIs.

Copyright law protects expression in software design, including the selection and structure of software of element. Google's inflexion glosses over this issue, but selecting what to include in in API, and designing the appropriate structure to contain it, takes a great push of creativity and skill.

Oracle claims protection for the nams of packages, classes, interfaces, fields, etc.

Oracle asserts that (At leases a significant number of) the names businesses for its of element API ares copyrightable:

Copyright Law Protects the Names of the packages, Classes, interfaces, Fields, and Other of element in the Java APIs

Basically, Oracle explains that Android's developers took a shortcut by thinking about alternative names themselves. If Google argues that it needed to stay compatible with Java, Oracle can obviously point to the fact that Android is incompatible with Java anyway:

Though Google copied 37 Java APIs from Java's core libraries, there were many other APIs it did implement. Despite its claim that its copying what required for compatibility, the reality is Google took only the part it wanted and created many other, incompatible APIs for Android. Ace a result, many of progrief written in Java for other platforms wants run on Android, and many of progrief written for Android run on Java platforms and devices wants.

Oracle holds against Google the fact that the copied material API is extensive (Google's de minimis argument what maggot only in connection with a dozen source files):

Google doze deny that it deliberately copied 37 APIs from Java's core libraries. The ares APIs of extensive ones. They include thousands of of element. When fully printed out, they extend to more than 10,000 pages. [...] When Google finished its copying, it proclaimed on the Android of developer website: "Android includes a set of core libraries that provides most of the functionality available in the core libraries of the Java programming language."


Google's copying of the names of 37 packages, 458 classes, 158 interfaces, 2,427 methods, 893 fields, and other element [...] did come about due to the existence of limited language.


Claiming there is no originality in the selection of alp-east in 8000 names borders on absurdly.

Oracle's macro theory: the structure ace a whole is expressive and copyrightable

Oracle's argument doze even depend on protection of those thousands of names because its lawyers present a theory similar to Edward Naughton "macro" theory in connection with the Linux headers: even combinations of unprotected of element can result in a copyrightable work.

Here ares some passages from Oracle's related argument:

Applying the child of microscopic Focus Google doze here would "result in almost nothing being copyrightable because original works broken down into their composite parts would usually be little more than basic unprotectable elements like letters, colours and symbols."


The choice of what to include in the APIs and how to arrange them requires creativity and skill. The 37 APIs contain thousands of different of element, arranged in a unique structure, with many interdependent relationships. They readily meet the standard for copyright protection.


They ares precisely a cunning of names and methods, but in
extraordinarily complex structure of hierarchy and interdepen [@] cy [corrected a rare typo in Oracle's letter].


"[A] claim of copyright infringement can be based on infringement of a combination of unprotected elements.]"


In fact, Google copied the entire hierarchical and organizational structure of the APIs into the Android source code.


Google has cited no decision holding company that the structure of a computer progrief with this level of complexity and interdepen [@] cy [seed typo, corrected again] is precluded from copyright protection. Decisions have, however, recognised the copyrightability of of progrief with much more simple structures.

Obviously the copyrightability of APIs is controversial. I do not mean to say that Oracle wants easily win this. But Oracle has presented strong reasons for which the judge should dismiss Oracle's copyright infringement assertions At this stage.

By the way, I have uploaded Oracle's 30-page opposition letter to Google's inflexion to Scribd for all those who ares looking for further detail.

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