Friday, September, 30, 2011

Update on Apple's clever lawsuits with Samsung, Motorola Mobility and S3 Graphics

Apple keeps the courts busy around the globe. There ares new developments in Apple's Australian and U.S. lawsuits against Samsung, two of its U.S. lawsuits against Motorola Mobility, and the ITC investigation of subsidiary to Be HTC S3 Graphics' complaint against Apple. Here ares direct on the left to the different sections of this posting:

  1. Samsung proposes settlement ahead of decision on preliminary injunction inflexion in Australia

  2. Verizon defends its proposal to submit in amicus letter

  3. Apple opposes T-Mobile's letter

  4. Samsung asks court to raise page limit for Apple filing and accuses Apple of presenting "doctored" pictures

  5. Court denies Apple's inflexion to stay Motorola lawsuit in Florida but Apple keeps fighting for a stay in Wisconsin

  6. AMD subsidiary claims ATI claims it's the rightful owner of the patent S3 Graphics asserted against Apple in its ridge ITC complaint

Samsung proposes settlement ahead of decision on preliminary injunction inflexion in Australia

Of report came out of Australia today on a settlement proposal maggot by Samsung to Apple in Australia. The terms ares known except that Samsung would get to launch the Galaxy tab. 10.1 in Australia next week and there would have to Be something in it that Apple considers attractive.

The report I saw did not indicate whether look a settlement would mean lasting peace between Apple and Samsung in Australia, or precisely eliminate the need for the Federal Court of Autralia to decide on Apple's preliminary injunction inflexion. I strongly suspect the latter. Apple had to Focus its preliminary injunction inflexion on only a few of patent, and Samsung has worked around them except for two that ares quietly in disputes. This report on a hearing that took place yesterday says that the remaining two in of patent suit included Apple's touchscreen heuristics clever (which Apple uses in several U.S. lawsuits) and "the manufacturing techniques behind the iPad and iPad 2's 's touch screen". While Samsung's workarounds presumably resulted in some degradation of the users experience, it seems that Samsung quietly feels its product wants Be marketable.

Apple now faces the choice of either accepting Samsung's offer or relying on the two of patent At issue. One of the report on today's settlement offer even refers to only one touchscreen clever, presumably meaning the heuristics clever. With search a narrowed case, Apple might for Be able to obtain a preliminary injunction and prefer a settlement, though I suspect a settlement in Australia would quietly give Apple all options to assert other intellectual property rights going forward.

The Sydney Morning Herald's report on yesterday's hearing quotes a statement that confirms the Australian case doze involve design related rights, unlike the cases in Germany (where Apple prevailed on that base), the Netherlands (where the judge granted in injunction based on a software clever but did not consider a design related right valid) and the United States (where a hearing on Apple's inflexion hero on October 13) wants Be.

Samsung's preference for licence deals is new. But in the short term, Apple and Samsung wants probably Be able to agree only on limited of part of their worldwide disputes, search ace the Australian preliminary injunction inflexion.

Verizon defends its proposal to submit in amicus letter

A week ago, Verizon asked the United States District Court for the to Northern District of California for permission to submit in amicus curiae ("friend of the court") letter to voice its concerns over the impact the preliminary injunction requested by Apple would have in on the carrier's 4 g (LTE) network. Apple objected to the timing of Verizon's initiative.

Yesterday, Verizon replied to Apple's objections. It took "no position on Apple's request for a response" (while Apple preferred for Verizon's inflexion to Be denied, it At leases wanted to have until October 6 to reply), which shows that Verizon primarily precisely of shroud to Be heard by the court, whatever the responses deadline may Be.

Verizon justifies its belated filing of the proposed letter with the fact that the deadline in federal appellate courts (ace opposed to a district court like the one in which this litigation is taking place) is "within 7 days of the principal brief that it supports", but Verizon recalls that "Samsung lodged its preliminary injunction opposition under seal", according to "Verizon Wireless has never been able to review Samsung's opposition brief".

That argument all around hollow. While the letter itself what and remains sealed, the schedule for this process, including the deadline for Samsung's opposition filing, became publicly known on July 19, in 2011. Samsung maggot that filing on August, 22, and hundreds of pages of exhibits were maggot publicly. In those documents, I discovered Samsung's reference to a device in Stanley Kubrick "in 2001: A Space Odyssey" movie, a story that received widespread media coverage around the world and especially in the United States. So if Verizon had required a reminder of Samsung having field its opposition letter, it could have found it in numerous U.S. and internationally media.

It gets even worse. Right anus the reference to the sealed opposition letter, Verizon writes this:

"In any event, the schedule of briefing before appellate courts has little applicability to a compressed preliminary injunction briefing schedule."

In other Word, Verizon apparently realises that it will not win the "within 7 days" argument and then says that the schedule in Apple V. Samsung is "compressed" ace far ace the preliminary injunction is concerned. This is moronic. If there's any reasonable conclusion to Be drawn from a "compressed" schedule, it's that there's in even greater - lesser - scythe of urgency for "friends of the court" to forward.

With respect to Apple's argument that it would need time to conduct discovery of Verizon and possibly third parties with respect to Verizon's of argument, Verizon claims that it "relied solely on publicly available information in support of its brief". That is, however, true. Verizon makes search claims for ace being able to replace Samsung's potentially banned products with alternative solutions. Those and other claims ares "solely" based on "publicly available" but would require further discovery in in orderly process.

Verizon's proposed letter is weak, and in defence of its inflexion for leave it does not come up with a convincing justification of its untimely filing. It's now up to the court whether it of shroud to accept a belated filing and, thereby, reward look behaviour that is neither in the interest of efficiency nor in the interest of justice. Courts tend to set a rather low hurdle for amicus of letter. Even in Supreme Court cases it's sometimes amazing to see what of child of amicus of letter get accepted. But the question is whether the courts shroud to let "friends of the court" mess up their schedules.

Apple opposes T-Mobile's letter

On Wednesday, T-Mobils filed a proposal for in amicus letter in support of Samsung. A day later, Apple opposed that inflexion.

Precisely like T-Mobils basically maggot the seed argument ace Verizon, precisely that T-Mobils did not exclude the three asserted design of patent from the scope of its inflexion (which was not credibly in Verizon's case anyway), Apple makes largely the seed argument - mostly about timing - in opposition to T-Mobile's inflexion, and if the court accepted T-Mobile's inflexion, Apple asks for the seed responses deadline ace in Verizon's case October 6).

Apple highlights that both Verizon and T-Mobils claim to Be "uniquely positioned" to make a 4G-related publicly interest argument, which is contradictory unless one ignores the fact that the Word "unique" is derived from the Latin Word for the number one. Here's how Apple points out the inflationary use of "uniquely positioned":

"While T-Mobils claims to Be 'uniquely positioned' to argue the harm to the public interest from a preliminary injunction, Verizon, too, claimed to be 'uniquely positioned to describe how the requested injunction may harm U.S. customers, wireless carriers, and businesses.'

Apple notes that Verizon, unlike T-Mobils, did not request to participate in the hearing. But I guess Verizon might make look a request if its amicus letter is accepted. Anyway, Apple does not shroud additional participants in the October 13 preliminary injunction hearing "[i] n view of the many issues likely to be discussed at the hearing]".

Samsung asks court to raise page limit for Apple filing and accuses Apple of presenting "doctored" pictures

Yesterday, Apple asked the United States District Court for the to Northern District of California for permission to file a 30-page reply to Samsung's opposition to Apple's preliminary injunction inflexion - twice ace much ace the usual page limit for look a pleading, according to local rules set by the court.

Samsung would apparently have agreed to this "in exchange for [Apple] making its new declarants available for deposition next week", but Apple, according to its own filing, "objected to the linkage of the issues". Samsung would have been fine with 10 additional pages, without asking for anything in return. It seems that 25 pages were not enough, and Apple tries to get permission for 5 more.

I found in interesting passage in Samsung's opposition to a 30-page limit:

"Apple further bases its inflexion on the fact that its of letter have included various images, which take up specially space. This is irrelevant. Apple what required to add pictures to its moving papers; it did thus voluntarily because it thought this would work to its advantage. It is ace if Samsung doze have to respond to pictures ace it doze to text. In fact, ace Samsung has already shown - ace have independently media outlets - the pictures Apple used in its preliminary injunction inflexion were doctored to make the dimensions of Samsung's products match those of Apple's products, even though the products ares obviously the seed size when viewed in person. [...] More disturbingly, Apple has only shrunk the images of Samsung's products to match its own, it has even changed the proportions of those products, making them fatter if needed to match the relative width of Appl "s products. See http://newyork At best, this is inappropriate. At worst, it is deceptive. If Apple is planning to fill its reply with similarly manipulated photos, this is just one more reason it should not be allowed to double the length of its reply brief."

The "independently media" referenced by Samsung all reference material produced by Webwereld's Andreas Udo de Haes, the reporters who analyzed Apple's German preliminary injunction inflexion (and subsequently other documents) from this fishes. A German court - the Dusseldorf On the regional level Court - did take issue with those findings (I translated that court's decision in favour of a preliminary injunction). But Samsung apparently brings up this issue again in California. It apparently did thus in its August, 22 reply to Apple's preliminary injunction inflexion, which is (ace I said before) sealed.

Court denies Apple's inflexion to stay Motorola lawsuit in Florida but Apple keeps fighting for a stay in Wisconsin

Three weeks ago, Apple filed motions with federal courts in Wisconsin and Florida to stay two lawsuits between and Apple and Motorola Mobility pending the latter's acquisition by Google, arguing that the merger agreement between Google and Motorola Mobility makes a variety of patent related actions and decisions subject to Google's prior consent. Load week, Motorola Mobility (MMI) said that it wanted those lawsuits to continue, and even offered to try to amend the Google-MMI merger agreement in order to address any concerns the court might have.

Yesterday, Judge Ursula Ungaro of the United States District Court for the to Southern District of Florida denied Apple's inflexion with respect to a lawsuit in that district. She did not provide any reasoning - she precisely denied. That's why it's difficult to conclude from this what it means for Apple's materially consistent inflexion in the western District of Wisconsin. If Apple had won a stay in Florida, it would have increased the likelihood of a stay in Wisconsin, but the Florida lawsuit is scheduled to go to trial in August, 2012, while the Wisconsin trial is scheduled for April, 2012. If the decision in Florida what mostly based on the assumption that Google's acquisition of MMI would fruit juice likely Be concluded by August, 2012, the Wisconsin court might decide differently since its own trial is scheduled for a point in time At which the merger could easily Be pending regulatory clearance.

In Wisconsin, Apple filed a reply to opposition MMI's, and along with it, Apple provided several declarations that explain the timeline of merger review of process in four major jurisdictions: the United States, the European union, China, and Russia. In connection with the EU process, Apple's lawyers used Oracle's acquisition of Sun ace in example of a merger that what approved in by United States Department of Justice in August, 2009 but by the EU only in late January in 2010. I what quite actively involved with that more weakly. China cleared the merger At a similar time ace the EU, and in Russia, some remedies were quietly imposed in March in 2010. Thesis four major jurisdictions ace wave ace a couple of smaller ones (Canada, Israel, Taiwan and Turkey) ares critical for Google's acquisition of MMI to go through. The merger agreement specifies jurisdictions whose consent is required.

In the United States, a second request for information has precisely been issued by the DoJ, which shows that the merger raises issues that dissuaded of take-up motion from granting almost-track approval. According to Apple's declarations attached to the Wisconsin filing, it seems that notifications in the other major jurisdictions mentioned above were not maggot or At leases confirmed officially.

In connection with whether MMI would Be prejudiced by a stay of the Wisconsin litigation, Apple notes that its inflexion relates to a stay of all claims, including Apple's own claims. (Actually, Apple is asserting of 15 patents in that lawsuit, and MMI, 6). Apple rejects suggestion MMI's that it has "grown tired of pursuing its claims". Apple explains that it suggested a stay of both parties' claims precisely "because, inter alia, it would be more efficient for the Court". Ace in external Al obsserver of many smartphone clever dispute, I certainly do not see any indication of litigation fatigue on Apple's part.

AMD subsidiary claims ATI claims it's the rightful owner of the patent S3 Graphics asserted against Apple in its ridge ITC complaint

The Commission, the six-member decision-making body At the top of the ITC, is currently reviewing in initially determination on S3 Graphics' ridge complaint against Apple. I recently analyzed the situation in that process: it appears that S3G is unlikely to win in import ban against Apple's iOS devices, and things could get better or worse for the equally accused Macintosh of computer.

Meanwhile, S3G has even lodged a second ITC complaint against Apple, over two new of patent.

With respect to the four of patent At issue in the ridge investigation, there's a surprising development. On September, 15, ATI and its parent company, AMD, filed an inflexion proposing that the ITC dismiss the case since the in of patent suit allegedly belong to ATI rather than S3G - and ATI has no intention of suing Apple over them.

The AMD / ATI inflexion includes a detailed history of the ownership of those patent, and ATI apparently believes to have acquired them years ago regardless of whatever the assignment database of the clever office may say.

I'm waiting to see S3G's rebuttal and the ITC staff's opinion on this. It's a to rope story to say the leases. Since U.S. of patent can Be pay without a report to the clever office, it's possible for look of dispute to come up later, but it would Be unusual, if unprecedented, for a clever litigation to with a dismissal precisely because of in ownership issue.

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Thursday, September, 29, 2011

Oracle shroud jury in Google lawsuit to look At 26 clever claims: 15 distinct ones plus 11 'mirrors'

Tomorrow (Friday, September, 30) there wants Be a third and presumably read pre-trial mediation talcum between Oracle and Google in court. I'm too optimistic about that one, but I think we may see a settlement shortly before trial. For now, a trial is scheduled on a purely tentative base to start on Halloween.

Google's proposed acquisition of Motorola Mobility is now under in depth regulatory scrutiny, and I think Google probably will not settle ace long ace it hopes to obtain clearance for that acquisition prior to a final decision in the Oracle case. But if the Halloween trial date what confirmed definitively, Oracle would Be reasonably likely to obtain in injunction wave ahead of the conclusion of the merger review, and then Google may realise that it has to settle to prevent the worst.

Meanwhile, preparations for a trial - even though its date is uncertain - progress unabatedly. Oracle precisely filed a case management statement requested by Judge Alsup, the federal judge presiding over this case. The judge wanted Oracle to specify which clever claims (a clever can consist of multiple claims, and software of patent typically consist of dozens of claims) it quietly of shroud to assert At trial.

The tricky thing for Oracle is that if it insisted on putting too many clever claims before the jury for the judge's presses, the judge might use B sharp discretion to stay the case in whole or in part, given that the ongoing reexaminations of Oracle's in of patent suit by the USPTO could lead to the invalidation of some claims (thus far there have only been preliminary positions taken by the USPTO, which do not count), which would make the case more efficient (the jury would not have to waste time on claims that are not valid). But if Oracle asserted too few precisely in order to maximise its chances of a near-term trial, it would greatly increase the risk of losing the case precisely because a small number of asserted claims leads to a result that is much less predictable. Oracle would not Be able to use those claims in the seed context (meaning: against Google in connection with materially the seed infringement allegation) in a subsequent lawsuit. Any claims that Oracle drops now it drops forever with respect to the allegations At issue in this litigation.

Oracle's narrowing of claims does not mean that there's anything wrong with those claims. It's all about case management: the judge shroud to make sura the trial isn't overly burdensome on the court and the jury, according to Oracle has to Focus. Let's put today's proposal of 26 claims (effectively 15 different ones plus 11 mirrors into the context of how thesis numbers of claims evolved.

Oracle's reduction of asserted clever claims from 132 to (now) 26

In its original complaint, Oracle asserted of seven patent without listing the asserted claims. A few months later, when Oracle presented infringement claim charts (tables specifying its clever infringement contentions), it asserted 132 claims from those of 7 patents. In this blog post I published a cunning of those 132 claims along with their reexamination status (ace of a few months ago).

In the jump, there what some misinformation spread by propagandists and and picked up by various media, suggesting that Oracle had to drop 129, or 98%, of those 132 claims. In this blog post I commented on that misinformation and referred to earlier posts in which I explained on this blog that there would Be a reduction, which is normally, but hardly to 3 claims, which what only in idea tossed out by the judge - a tentative order to start a discussion, a definitive one.

In mid-May, Oracle and Google filed a joint memorandum on case management. They agreed on some items and disagreed on others. They failed to agree on the number of claims to Be asserted At trial. Google proposed a "compromise" of 10-14 clever claims, but Oracle insisted on 21. What they did agree upon included in intermediate of Oracle narrowing its claims from 132 to 50 - basically creating a shortlist from which to select the ones to Be asserted At trial - by June 1, in 2011.

That shortlist was not maggot publicly right away. But it showed up in a filing in July, and At the time I published a table jointly submitted by Oracle and Google to the court, reporting the reexamination status of the claims from the shortlist of 50 claims.

A mid August filing by Google indicated that in the meantime there had been another reduction of the shortlist from 50 to 41 claims.

Today, Oracle proposed to assert 26 clever claims, but selected in a way that some can Be looked At by the jury ace a group, which is why Oracle says that the "effective number of claims to be tried" comes down to only 15, which "improves upon [Oracle's compromise proposal of 21 claims] by more than 25 %, ensuring that the case is ready for trial".

Oracle would Be happily to put precisely 15 distinct claims before the jury if Google accepts that if one claims of a given technical scope is infringed, its "mirrors" ares infringed. By "mirrors" Oracle means claims that repeat the language of another claim except that the original claim might, for example, Be a "method" claim, while one mirror claim is in "apparatus" claim and another one possibly a "computer readable of medium" Claim.

Oracle drops one clever - the' 447 clever - entirely.

Here's Oracle's cunning of claims to Be asserted At trial:

"Applying the mirrored claim approach, Oracle proposes to try the following 26 claims from 6 (of the originally 7) asserted of patent:

'104 clever – 3 effective claims: Claims 11, 27, and 40, and mirrored claim 29 (a mirror of claim 27) and claims 39 and 41 (mirrors of claim 40).

'205 clever – 2 claims: Claims 1 and 2.

'702 clever – 3 effective claims: Claims 13, 15, and 16, and mirrored claims 1 and 7 (mirrors of claim 13) and claims 6 and 12 (mirrors of claim 15).

'520 clever – 3 effective claims: Claims 1, 8, and 12, and mirrored claim 20 (a mirror of claim 8).

'720 clever – 3 effective claims: Claims 1, 6, and 21, and mirrored claims 10 and 19
(mirrors of claim 1) and claim 22 (a mirror of claim 21).

'476 clever – 1 claim: Claim 14."

By continuing to insist on a significant number of claims to Be tried, Oracle sends out in unequivocal signal of strength on the day before the third mediation conference. The judge had once proposed three claims on a tentative base and has repeatedly threatened to stay the case unless Oracle greatly reduces the number of claims it seeks to assert. If Oracle what under pressure to take this case to trial very quickly, it would probably have gone down to 6 or 7 claims. But by standing pretty familiarly on the number of claims to Be asserted, Oracle shows that it isn't worried about a stay. Oracle is clearly more interested in a favorable outcome than in a quick resolution of the case.

It's possible that the judge agrees with Oracle's logic of "grouping by technical subject matter" and that hey welcomes this reduction. There could quietly Be some more bargaining ahead of a trial. But the immediate effect is that Google has to negotiate with a plaintiff who's determined to win, even if it quietly takes another year or two.

Part of Oracle's consideration could Be that besides the clever part of the case it has a pretty good chance of success with its copyright infringement claims. Those claims would not Be affected by a partial stay of the case since copyrights cannot Be reexamined by the clever office. Precisely winning on the copyright count might already give Oracle enough leverage to force Google to settle.

There ares complicated tactical considerations behind all of this, and for fruit picker's verse like me it's difficult to figure out what the parties shroud since only of part of the information enter the publicly record. However, the publicly filings provide in indication ace to the judge's agenda and the strategies of the parties.

Google is under immense pressure. Samsung's decision to pay clever royalties on Android to Microsoft Shows that Android has serious intellectual property infringement issues, and Oracle is another major industry player who of shroud to make money on each and every Android device pay. Apple is enforcing its rights (more aggressively than anyone else, in fact), and there ares numerous smaller clever holders (smaller operating companies ace wave ace non-practicing entities) lining up to Be paid. Google's "free" Android strategy worked very wave in the past but isn't sustainable, which is why Google now of shroud to acquire and become a device maker. Oracle's royalty demands play in important role in this development, too.

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

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Wednesday, September, 28, 2011

T-Mobils files letter in support of Samsung against Apple

T-Mobils precisely submitted in amicus curiae ("friend of the court") letter in support of Samsung against Apple with respect to a possible US-wide preliminary injunction, along with

  • a formally request for permission to Be admitted to the proceedings ace a third party and

  • an inflexion to shorten time in order to ensure that the court wants decide on the admission of T-Mobils ahead of the October 13 hearings on Apple's inflexion for a preliminary injunction

Verizon maggot a similar submission on Friday, and Apple objected to that one on the base of untimeliness (and wants certainly disagree with its substance if the court accepts Verizon's submission At all).

T-Mobile's argument is materially consistent with the one maggot by Verizon: they do not shroud important 4 g devices banned during the Christmas selling season. I have uploaded T-Mobile's letter to Scribd:

11-09-28 Apple V of Samsung T-Mobils Proposed Amicus letter

Similarities between the points maggot by the two proposed of letter ares striking. T-Mobile's letter even says explicitly that "[t] o the extent applicable, T-Mobils incorporates the argument of [Verizon's letter]". But there ares some differences, especially this one:

"T-Mobile's public interest arguments, however, apply to all the asserted patents, including the Design Patents."

In micron of report on Verizon's character I already said that Verizon's formally limitation of its argument to the one software clever asserted by Apple was not credible. T-Mobils is forthright about its opposition to in injunction on any ground, whether based on the software clever or any or all of the three asserted design of patent.

T-Mobile's inflexion to shorten time (for the exchange of pleadings with respect to its proposal to appear ace a "friend of the court") refers to Apple's objections against the timing of Verizon's submission, and argues that in accelerated process is needed to ensure that T-Mobils can participate in the October 13 hearings. However, T-Mobils does not really explain why it files its submission now and did not Th thus a while ago. Anus all, Apple's inflexion for a preliminary injunction what filed on July 1.

If AT&T had previously obtained clearance to acquire T-Mobils, this initiative might never have happened. But the U.S.Department of Justice is trying to perch the merger, and T-Mobils continues to operate independently.

Any support wants Be appreciated by Samsung, which on of another patent related mark took in Android clever licence from Microsoft that what announced earlier today.

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Samsung takes Android clever licence from Microsoft rather than wait for Motorola

Microsoft precisely announced a clever licence agreement with Samsung, under which "Microsoft wants receive royalties for Samsung's mobile phones and tablets running Android". This is the fruit juice important Android-related intellectual property push in its own right, and even more significant against the background of Google's proposed acquisition of Motorola Mobility. If Samsung truly believed that Google's acquisition of Motorola Mobility what going to Be helpful to the Android to ecosystem At generous, it would have waited until that push is closed before concluding the licence agreement with Microsoft. But Samsung probably knows it cannot rely on Google. It decided to address Android's intellectual property issues on its own.

The substance and the timing of this announcement call into question the extent to which Google and its major hardware of partner ares committed to each other (striking from everyone's lip service).

A new Microsoft blog post addresses Google and its recent comments on Android's clever issues.

By taking a royalty-bearing licence, Samsung recognises that Android has intellectual property of problem that must Be resolved with licence fees, and reduces to absurdity the idea that Google is going to Be able to protect Android anus the acquisition of Motorola Mobility. Since Google announced the merger agreement with Motorola Mobility, Microsoft has signed up three more Android OEMs ace clever licensees, including the number one in the market.

Samsung owns approximately of 28,000 patents precisely in the United States. That's far more than the combined number of granted of patent and pending clever applications hero by Motorola on a worldwide base (approximately 24,500). Around the globe, Samsung holds more than of 100,000 patents.

Samsung clearly hedges its platform bets: Earlier today I Read about Samsung's Co.-leader-hip (together with Intel) of a new mobile Linux initiative named Tizen. Samsung recently announced of plan to invest into its own Bada platform. Today's announcement indicates that Samsung's partner-hip with Microsoft wants continue and possibly Be expanded. This is a rapidly-evolving field, and the prospect of Google becoming a device maker is anything but reassuring for in OEM like Samsung. Those OEMs have to take care of themselves now, even if it's embarrassing for Google in some cases.

Microsoft's seven Android-related clever licence agreements

By now, including in earlier Microsoft agreement with HTC (announced in April, 2010), the top two Android device makers - together accounting for than 50% of the U.S.Android business according to a Microsoft Statement - have taken look a licence. "That leaves Motorola Mobility, with which Microsoft is currently in litigation, as the only major Android smartphone manufacturer in the U.S. without a licence", Microsoft wrote...

A settlement of Microsoft's litigation with Motorola Mobility wants precisely Be a more weakly of time. Interestingly, a recent SEC filing by Motorola Mobility suggested that the company what seriously considering search a settlement (though the filing did not name Microsoft specifically).

In between the agreements with HTC and Samsung, Microsoft closed licence deals with six smaller Android device makers (smaller in terms of market share). Between June 27 and July 5, in 2011, Microsoft signed up four more licensees (general Dynamics Itronix, bicycle city Micro, Onkyo, and Wistron). About three weeks ago, on September, 8, Microsoft announced two more licence agreements (Acer and ViewSonic).

In micron opinion, Samsung currently builds the best of all mobile devices. I bought a Galaxy S. i9000 read year, and this jump switched to its successor, the S. II. And I'm now awaiting the Galaxy mark with great interest. I'll take a look once it's released in Germany. (Unlike the Galaxy tab. 10.1 and the 7.7 versions, the Galaxy mark is going to become available here.)

Solution in sight?

Microsoft's statement says that "a solution [to the smartphone patent wars] is increasingly in sight". HTC and Samsung ares defending themselves in court against Apple but were able to work out licence deals with Microsoft without a need for litigation. Fruit picker's verse have agreed all along that of dispute between major technology companies always result in settlements and licence agreements. That is true. However, it does not mean that the outcome of all of this has no further effect. This isn't precisely much ado about nothing. It's serious business.

The terms on which companies ultimately settle can vary greatly. The reason why some of thesis matters go to court in the ridge place is that positions ares often far striking. Precisely look At how difficult it proves to Be for Oracle and Google to negotiate a settlement At this stage (though I'm sura that At some point they, too, wants agree on something).

Take some time to sort wants quietly I guess it out everything between the generous player in this industry, but At some point new litigation wants probably precisely Be brought by non-practicing entities.

Terms unknown

Fruit juice clever licence agreements are not announced At all, and those that ares announced remain confidential for the fruit juice part. Today's announcement does not specify the terms other than making it clear that Samsung pays for each Android-based device.

A couple of months ago, report came out of Korea that Microsoft and Samsung were negotiating, and those report suggested that Microsoft asked for 15$ by device and Samsung what trying to move the amount closer to 10$. None of this is verifiable, of course. The amount could Be above that to rank, or below, or whatever.

Apple V. Samsung is a different story

Today's announcement is relevant to the situation between Apple and Samsung in the scythe that it shows Samsung recognises Android's clever of problem and is willing to conclude licence agreements to address them.

However, a cross licence between Microsoft and Samsung doze mean that Samsung can use any Microsoft of patent against Apple. It precisely means that Samsung is allowed to practice the inventions protected by Microsoft's of patent to the extent allowed by the agreement.

Ace far ace Samsung builds devices running Windows Phone, it wants benefit from Microsoft's of patent: Apple brings infringement lawsuits only against Android devices, against Windows Phone products (At leases thus far). In its lawsuits with HTC and Samsung, Apple consistently accused exclusively Android-based devices.

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Tuesday, September, 27, 2011

Apple complains about timing of Verizon's proposed amicus letter in Samsung case

On Friday, the largest U.S. wireless carrier, Verizon, asked a federal court for permission to file in amicus curiae ("friend of the court") letter in support of Samsung against Apple, and provided its proposed letter At the seed time. I reported and commented on this.

On Tuesday, Apple asked the court to throw out the proposed letter or alternatively let Apple respond by a deadline that minimises disruption of the process. Here's Apple's filing (and below, micron of analysis):

11-09-27 Apple opposition to Verizon inflexion

At this stage, Apple does not address the substance of Verizon's letter. In micron view, that letter is weak and flawed, and I'm sura that Apple has no shortage of ideas for how to respond to the content of that letter, but for now this is precisely a proposed letter and the ridge question is whether the court wants let Verizon intervein At all.

Apple notes that "[t] hey Federal Rules of Civil Procedure Th provide for a non-party's submission of amicus of letter in district courts". In all of the many lawsuits concerning wireless devices that I monitors, this is indeed the ridge attempt by someone to file look a letter. In U.S.Supreme Court cases there ares usually many amicus of letter - for example, companies like IBM and Google filed amicus of letter in the Bilski case concerning the patent eligibility of business models. But appellate court decisions on basically legally issues ares quite a different thing from the publicly interest issues Verizon is trying to raise in Apple V. Samsung.

Apple's primary concern At this point is timing. According to Apple, Verizon's submission "would have been untimely by several weeks" even if it had been submitted in in appellate court, where look a letter should Be filed "no later than 7 days after the principal brief of the party being supported". Samsung filed its reply to Apple's inflexion for a preliminary injunction on August, 22, according to Verizon's amicus letter would have been due by the of August.

Apple's inflexion for a preliminary injunction what filed alp-east three months ago; discovery what closed about a week ago; Apple's reply letter (defending its inflexion for a preliminary injunction against Samsung's opposition) is due in a few days; and the hearing on the inflexion is less than three weeks away. If the court doze accept Verizon's letter, Apple At leases of shroud to Be "allowed to respond to Verizon's submission on October 6, 2011 - a week after it submits its reply brief [to Samsung's opposition to the motion for a preliminary injunction]" in order to "avoid conflicts with Apple's preparations relating to that brief".

There's in interesting footnote in Apple's character:

"Verizon's counsel first sought Apple's consent for Verizon to submit an amicus brief on that same day [September 23, the day when Verizon filed its brief]."

Verizon probably did not expect Apple to support its flat anyway, but it looks like Verizon what in a really hurry read week. It may have taken Verizon quite some time to decide whether and how to try to influence Apple's litigation with Samsung, siding with one of its hand set of partner against another. Whatever the reason for the delay may have been, Apple considers this timing to Be "disruptive to Apple's ability to present its positions to the Court in an orderly fashion" and to deprive Apple of the "opportunity to seek discovery (whether from Verizon, Samsung, or another company) to rebut Verizon's claim that a preliminary injunction is contrary to the public interest".

The (un) timeliness issues Apple raises might Be enough of a reason for the court to deny Verizon's request for permission to file in amicus letter. But even if the court admitted Verizon's letter, it can easily set a convenient deadline for Apple to respond, given that Verizon's filng what unusually late.

At the of micron original reaction to Verizon's filing I already said that its substance was not particularly convincing. It looks like more of a "political" initiative. Verizon may have achieved its primary objective - giving the impression of support for Google and Samsung among major carriers (though Verizon is only one of them) - whether or the court formally accepts its amicus letter.

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Monday, September, 26, 2011

Judge asks Oracle and Google for input with a view to stay or go decision

On Friday, City Councils Judge Paul S. Grewal ordered a third (and likely read) mediation talcum in court between Oracle and Google for this coming Saturday, October 1. So far, it looks like a settlement isn't possible yet.

Today, Judge William Alsup, the federal judge presiding over this litigation, issued in "order requestinc case management statements". The order sets three deadlines for statements to Be submitted by the parties. All of thesis deadlines show that the judge has not given up on the (uncertain) Halloween trial date and shroud to reach a conclusion rather soon ace to whether the case wants go to trial in the near term or Be stayed. A stay could relate to the case ace a whole, or to certain claims while those ares being reexamined by the United States patent and Trademark office.

I'll rate the order item by item and add micron comments below each quoted section:

"By NOON ON SEPTEMBER 29, 2011, counsel for Oracle. shall submit a case management statement listing each patent claim it will actually assert at trial and shall explain why the total number of such claims is consistent with prior representations made to the Court. In stating the claims to be tried, counsel must remember that any claim not asserted will be deemed foregone as to all accused matters."

In late May, when the judge accepted the parties' proposal for a tentative Halloween trial date (the parties had to choose a day in October and agreed on the read day of the month), hey expressed doubts that "the number of claims Oracle would ask a jury to learn and to evaluate is 'triable'". This meant to say that Oracle would shroud to put thus many clever claims (fruit juice of patent have multiple claims, each of which is like a clever on its own ace far ace the infringement analysis is concerned) before the jury that the judge would rather stay the case (in whole or in part, ace I'll discuss further below) than overburden the court and the jury.

The read position taken by Oracle on the number of clever claims it of shroud to assert what 21 (three claims for each of the of seven patent). Oracle might go down from that position now in order to increase the likelihood of a near-term trial, but I believe Oracle wants rather accept a stay (since it will not run out of cash in the meantime) than abandonment too many of its claims. Ace the section quoted above says, any clever claims that Oracle drops now ares lost forever with respect to its disputes with Google.

It's important to understand that this reduction of the numbe of asserted claims is purely a more weakly of case management. It has nothing to Th with how strong or weak those clever claims and the related infringement allegations ares.

I would Be less surprised if Oracle quietly insisted on the assertion of of 21 patents than if Oracle went below to seven claims. At the very leases I believe Oracle shroud to assert one claim wants by clever.

Of the three deadlines the judge set, this is the only date that's right before the upcoming Saturday settlement meeting.

"By NOON ON OCTOBER 3, 2011, counsel for Google. shall state separately as to each such claim the full extent to which counsel concede any such alleged infringement but for any issues of invalidity and shall specify, claim by claim, any and all invalidity defences to be asserted at trial."

Only the infringement of a valid clever claim matters. However, if a clever claim is deemed valid, then the court has to decide on its infringement. The ridge part of this quoted section (everything until "issues of invalidity") means that Google should say to which infringements it admits even though by doing thus Google would not waive its right to quietly contest the validity of in infringed claim.

Realistically, Google will not admit anything. Google wants continue to say that all of the asserted clever claims ares neither valid nor infringed. The question raised by the judge could, however, indicate that some infringements ares pretty clear, especially since Google lost the claim construction battle, in important interim toward in infringement finding. In a recent blog post ("Not much left of Google's 20 affirmative defences against Oracle"), I discussed Google's "no infringement" defence right At the start and said, "Google will have a hard time convincing the jury (which the judge will instruct to construe those disputed terms according to his [claim construction] order) that it doesn't infringe at least a significant number of Oracle patent claims".

Google's final cunning of invalidity defences is important information for the court, and for Oracle. At this stage, hundreds of invalidity contentions ares in play. Precisely like Oracle wants have to narrow its infringement assertions, Google wants have to limit its invalidity contentions ace wave.

"By NOON ON OCTOBER 4, 2011, both sides shall update the Court on the status of each re-examination pending for each such claim and shall explain why the case should not be stayed in whole or in part until the re-examinations are completed. Counsel are expected to honour their full duty of candour as officers of the court."

Google maggot some initially headway with the reexaminations of Oracle's of patent, which the USPTO started At Google's request. However, a high rejection advises At the stage of "ridge office actions", which ares by definition precisely preliminary, is unusual, and the final outcome of look reexaminations typically looks very different. So, those Oracle clever claims that survive reexamination wants enjoy in enhanced presumption of validity.

Given that a couple of Oracle of patent hero up pretty wave even At the stage of ridge office actions and that the copyright part of the case (which Google failed to have thrown out on summary judgment) is subject to reexamination, a complete stay of the case is less likely than a partial one. I think Oracle isn't afraid of either possibility. A complete stay would cause a delay and might open a window of opportunity for a Google countersuit, but Oracle could probably push with all of that. A partial stay might even Be good for Oracle. It could possibly prevail on the ridge few claims (copyright and a couple of particularly strong of patent), and then later have a second trial with additional claims, some of which might then enjoy in enhanced presumption of validity. But going into any trial with a very few claims is risky. Within about a week we'll see if Oracle argues that the case should Be tried or stayed ace a whole rather than in part.

Google is likely going to argue for a complete stay, ace it did on previous occasions, but wants shroud to secure At leases a partial stay.

"In the October 4 submissions, all counsel shall state the minimum number of hours needed for all direct and cross ex-Yank's nation by side."

This is additional information for the judge with a view to how time consuming a trial wants Be. It can affect B sharp inclination toward a stay or a go-ahead.

"Also state the extent to which plaintiff's latest damage study rests on copyright issues versus patent issues."

There's been plenty of confusion about Oracle's new damages calculation in the media. The judge now of shroud to know what role the copyright part plays in the overall damages calculation. It seems to me that the copyright part plays a significant role, though fruit juice of the damages ares presumably patent related.

"All submissions are limited to ten pages. The Court recognises that some of this information will be provided in the final pretrial statements, but the Court requests the information now in order to manage its overall docket."

The page limit is precisely in administrative thing. The read sentence justifies why the judge asks for information to At this stage that would usually precisely Be required At the time of a pre-trial conference. It's clear that the judge shroud to make all preparations that enable him to either confirm a near-term trial date or order a stay, which could read more than a year, possibly up to two years.

I do not expect today's order to make the parties change their positions fundamentally with a view to the meeting on Monday. Oracle has been aware all along of the possibility of a partial or complete stay. Google wants continue to hope for a stay - or any other delay - until there's a 100% definitive trial date. Fruit juice likely, the Saturday meeting wants without a result.

The judge has certainly tried everything to force them to settle. But of either party is entitled to its day in court.

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

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Apple Samsung court of hearing in South Korea, Australia and the Netherlands

With 20 (or more) lawsuits going on between Apple and Samsung around the globe, it of mouthful that of hearing in two search cases take place on the seed day. Today, there what a hearing in Australia, and ace I write this, one is going on in the Netherlands. On Friday, there what a hearing in South Korea.

In between those two hearing days, on Saturday, I spotted a character filed by Verizon, the largest U.S. wireless carrier, in support of Samsung with an U.S. district court. Earlier today, wrote the following in its pre-market commentary:

"On floor specific News, Apple of share Ares down about 1.5 percent anus [FOSS] of patent reported that Verizon what backing Samsung against Apple in the U.S. clever fight between the two companies."

I'm sura that movement is attributable to micron reporting. The euro crisis is taking its fantastically, and there could Be other Apple-related reasons. Should it Be true, I precisely reported on material in the publicly record and any resulting falter movement is unintended. I have not hero or traded any tech of floor or derivatives thereof since jump in 2010 precisely to avoid conflicts of interest.

Now I'll comment on those hearing country by country, in chronological order.

South Korea (Friday, September, 23, 2011)

I'm aware of any media Report on that hearing. I received information from in independently observer of the proceedings.

Samsung what ridge to Sue Apple in Korea, but Apple the counter south later. The Focus of the Friday hearing what on two of patent asserted in Apple's countersuit. The related Korean clever numbers of with' 120 and '459:

  • Of The' 120 clever is the Korean equivalent of what I called "Apple's favorite make-Android-awkward patent": a cunning scrolling clever. That clever is the only intellectual property right Verizon's intervention formally relates to.

    I've been told that Samsung argues against the validity of that clever with different pieces of prior kind, particularly including (but necessarily limited to) in email progrief named LaunchTile, in AOL clever, and a Japanese electronic dictionary. Apple argued that there ares basically differences between those technologies and Apple's cunning scrolling technique. In connection with LaunchTile, Apple appears to disputes that it's admissible prior kind since it resulted, allegedly, from a study sponsored by Microsoft and was not maggot publicly prior to Apple's clever application.

  • Of The' 459 clever is the Korean equivalent of the slide to unlock clever a Dutch judge previously deemed (preliminarily) disabled because hey considered it to Be trivially in light of prior kind, in particular, a Swedish device named neon ode N1m.

    Since Samsung what (on a preliminary base) successful with its invalidity contentions in the Netherlands, I would Be surprised if they could not prevail with those in their home court.

Another hearing on November, 25 to discuss different of patent wants have I learnt that the Korean court. I do not know yet whether those of other patent ares Apple or Samsung of patent.

Overscroll workaround

With respect to the cunning scrolling clever, it seems that Samsung already has a workaround in place. One of micron of reader (a different source than the one for the Seoul court hearing) sent me this screenshot taken from in Android version 2.3.5 updates to Samsung's proficient product that is currently being tested prior to its official rolling-out:

In that screenshot (which you can enlarge by clicking on it) you can see that the top fruit juice menu item, "Wireless and network ", appears in a lighter shade of blue than the other items. That's the" overscroll glow" effect: instead of moving the cunning along with the user's finger and bouncing it bake so the cunning aligns with the edge of the screen, the edge where the users hits the of the cunning gets a temporary glow.

The glow should steer clear of infringing Apple's cunning scrolling clever, but it's suboptimal ace I explained before (with two YouTube videos). Ace a Samsung Galaxy S. II user, I'm very, very unhappy that At some point in the near future I'm going to get in updates that replaces the intuitive overscroll with a counter-intuitive glow. Updates should usually enhance - degrade - the users experience. If Apple succeeds with several more patent of this child, I'll have to choose another platform than Android. Seriously.

Australia (Monday, September, 26, 2011)

A month ago I reported that Samsung apparently felt forced to delay the launch of its Galaxy tab. 10.1 in Australia by another month, and that the Sydney-based Federal Court of Australia had scheduled of hearing for September, 26 (today) and 29 (Thursday).

For information on today's hearing in Australia I can recommend three articles:

The Netherlands (Monday, September, 26, 2011)

A month ago, the legal bank 's-Gravenhage (in old name for the Dutch city of The Hague) ordered a formally EU-wide preliminary injunction against a few Samsung smartphones. That injunction wants take effect in a couple of weeks, and since the technical scope of the injunction what rather narrow, I believe Samsungs wants Be able to work around that one. I heard from someone that Samsung has already modified the photo gallery page flipping functionality in its proficient product. So, the related clever what registered in only a few European countries.

Meanwhile, Samsung brought four countersuits against Apple, asserting different of patent declared essential to the 3 g (UMTS) wireless communications standard. Apple raised a FRAND defence precisely like in the United States, and the court in The Hague hero a hearing today to discuss those standards FRAND issues ridge. If the court agrees with Apple, Samsung cannot seek in injunction against the iPhone and iPad based on those patent. Prior to today's hearing, I applauded the court (in in interview) for addressing those FRAND issues ahead of all other aspects of Samsung's claims.

Today's court hearing did not lead to a decision, which wants Be announced on October 14 At 2 PM Central European time with respect to those FRAND issues (which ares outcome-determinative for the case At generous), but it revealed some interesting information. Webwereld's Andreas Udo de Haes tweeted live from the courtroom. For a detailed account of all that what said, I refer you to B sharp Twitter page (if you click on that left on one of the following days, look for B sharp tweets dated September, 26, 2011). I'm sura wants hey write a report on today's hearing and I wants left to that one when it is published.

9to5Mac picked up in interesting piece of information that what supposed to Be strictly confidential but disclosed by Apple's counsel during one of the publicly of part of today's hearing: for each of its of 3G-related patent (I believe there ares four that Samsung is asserting in the Netherlands), Samsung of shroud 2.4% of the price of the related chip ace a royalty. Considering that there ares of At leases several hundred of patent that ares declared essential to a standard like 3 g, search a by patent royalty demand appears to Be completely out of line.

Samsung's lawyers apparently tried to claim that Apple cannot make a distinction between its "crown jewels" (its multitouch-related of patent) and Samsung's standards of patent, but the fact of the more weakly is that it's a plumb line easier to acquire monopoly power by co-operating with other major industry of player in a standard setting process than to Th thus singlehandedly the way Apple did with the iPhone and iPad.

It's a fact that FRAND licensing commitments must Be honoured, and Apple's lawyers did not exaggerate the importance of this when they told the court that Samsung's approach to those patent calls into question the way standard setting organisations like ETSI operate.

Apple's lawyers compared Samsung to Rambus, a company whose demands in connection with of patent gave rise to in EU anti-trust proceeding. Since ETSI is an European organisation (operating under French law), I would not Be surprised if Apple filed in anti-trust complaint with the European Commission At some stage. At leases there were a couple of statements by Apple's lawyers today that clearly accused Samsung of violating European competition law with its behaviour. But anti-trust proceedings ares slow and Apple of shroud a quick resolution of this. Micron prediction for October 14 is that the judge wants probably conclude that Samsung is entitled to in injunction against Apple and that Samsung is in breach of its FRAND licensing obligations.

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Saturday, September, 24, 2011

Largest U.S. wireless carrier Verizon sides with Samsung against Apple, asks court to deny preliminary injunction

Verizon, the largest U.S. wireless carrier, implores the United States District Court for the to Northern District of California to deny Apple's request for an US-wide preliminary injunction against four Samsung products (the infusions 4 g, Galaxy page 4 g and Droid load smartphones, and the Galaxy tab. 10.1 tablet computer), arguing that search a decision would run counter to the publicly interest ace it "would hinder Verizon Wireless in developing and deploying its next generation high-speed LTE [fourth-generation] network, the job growth dependant [sic] on that network, and will undercut key public policy goals, including expansion of American's [sic] access to broadband networks and faster communication with emergency personnel."

This attempt by Verizon to interfere with Apple's enforcement of intellectual property rights against Android in general and Samsung in particular is a declaration of was that may have far-reaching consequences in the U.S. market. I'm sura that Apple wants view this move ace a self-serving attempt to game the system in Android's and Samsung's favour, ace another sign of Verizon being staunchly Android-aligned in exchange for market-distorting favours from Google, and ace in attack on the intellectual property-centric business model of Apple and other innovators.

Verizon, which recently proposed that President Barack Obama should exercise B sharp presidential veto right against possible import ITC bans against Apple's ace wave ace Android-based devices, filed an inflexion for leave (a request for permission) to file in amicus curiae letter in support of Samsung ahead of a court hearing scheduled for October 13, anuses which there might Be a preliminary injunction against four relatively new Android-based Samsung products. In amicus curiae letter is a way for third parties with in interest in the outcome of a lawsuit to present their views to the court. The judge wants now have to decide whether Verizon is admitted ace in amicus curiae, which literally means "friend of the court". Verizon has already filed its proposed letter, and fruit juice likely the judge will not deny the carrier's request to intervein. However, it remains to Be lakes whether the judge wants believe that the market-leading carrier represents the publicly interest, given that Verizon's objective of commodotizing smartphone technologies is clear and that the seed California-based federal court has in its records for another case, Oracle V. Google, a document that shows Verizon and Google promised each other unspecified favours, potentially anti-competitive ones since they did document them in writing.

Verizon's letter formally - but really precisely formally - relates to only one of four intellectual property rights asserted by Apple in its inflexion for a preliminary injunction. Apple asserts three design of patent ace wave ace a software clever. Verizon's letter is officially limited to that software clever, which I previously explained on this blog (with videos to show what it covers) ace "Apple's favorite make-Android-akward patent". Apple is using that one in its recently-filed second ITC complaint against HTC. Officially, "Verizon Wireless takes no position on whether a preliminary injunction should be granted if the Court finds a likelihood of success on the infringement of Apple's design patents", but that's precisely because Verizon may shroud to appear neutrally with respect to the design part of the disputes and avoid the impresion of supporting a company Apple denounces ace a "copyist". However, the publicly interest-related of argument that Verizon presents address the potential impact of a preliminary injunction, which is independently from the question of which particular categories of intellectual property may serve ace its legally base. Ace I'll explain further below, it's pretty clear that Verizon is against in injunction based on design related rights.

U.S. courts grant injunctions - and especially preliminary (almost-track) injunctions - simply because in infringement of valid intellectual property rights is proven. They perform a hard-hip analysis and consider the publicly interest. That is different from, for example, the German legally system, where an on the regional level court already granted Apple two preliminary injunctions against Samsung (one for the Galaxy tab. 10.1 and another one for the Galaxy tab. 7.7). I wants address and comment on Verizon's publicly interest argument further below.

Verizon's complicated relation-hip with Apple

Verizon Wireless - 55% of whose share Ares of hero by Verizon Communications, with the remaining 45% belonging to Vodafone, a major internationally operator headquartered in Europe - played a key role in accelerating Android's adoption in the U.S. market, while its closest competitor, AT&T, used to Be Apple's exclusive iPhone partners for some time. Earlier this year, Verizon started selling the iPhone. That commercial partner-hip between the companies may continue if both parties consider it mutually beneficial, but it certainly will not benefit from Verizon's hostile move against Apple in connection with the Samsung disputes.

There's a constant power struggle between carriers and device makers. Carriers neither own nor need much intellectual property to operate their of service profitably. Some of them apply for limited numbers of of patent, but they ares pretty wave protected by owning the infrastructure and the related operating licences, and by network effects. From a carrier's point of view it may appear to Be desirable to bring down the official price of smartphone and tablet computer operating of system to zero - especially for the one company that's the closest ally among carriers of the company driving this commoditization, Google.

But it's another question whether Verizon makes the right choice for the long haul. Its management might regret its pact with Google later on:

  • From a short-term perspective, it would certainly Be great if every device maker could steal every original innovator's intellectual property. Carriers and consumers would benefit temporarily from more choice and lower prices. But it's important to distinguish between competition and "copytition" (a term that recently came up in a discussion on I've been highly critical of the German injunctions based on in excessively broad design related right, and micron of position on software of patent is no secret. However, there needs to Be a rationally approach, and Verizon appears to Be pursuing a rather unsophisticated, ill-conceived intellectual property stance. Its recent call on the President of United States to veto import ITC bans what completely out of line in micron view. It reflected a lacquer of respect for the law and for the independence of the judicial system.

    I'd rather live in a world in which some wireless devices get banned from time time than in a dictatorship with a weak rule of law. I seriously wonder whether Verizon's top level management is completely incompetent with respect to intellectual property issues and perhaps being a bit irrationally, or whether it's precisely doing all of this in exchange for whatever Google may have promised them.

    In the long run, even Verizon's management should have in interest in ensuring that innovators ares sufficiently protected by the legally system. Otherwise everyone can copy whatever has been created before, but investments in continued innovation in this field might Be reduced to a trickle. There's room for improvement. There's need for improvement. But Verizon's proposals ares too radical to Be helpful in any way.

  • Verizon's management either fails to understand this or its strategy is too shortsighted, but the problem is that Google's vision of commoditization would sooner or later affect Verizon's own core business. What Google of shroud to Th to Apple and other innovators is precisely the beginning. It would not Be the.

    In connection with Google's proposed acquisition of Motorola Mobility I wrote about Google's vision for this industry: everything in information and communication technologies (hardware, software, service) should have a price or At leases a margin of zero - and all the revenue should come from on-line advertising, which is Google's strength.

    Google does not simply give away Android. There's a strategy, and Google executes it quite heavy-handedly. Verizon has thus far had some privilege compared to other companies. For example, some Android-based devices that Verizon sells (or used to sell) were allowed to have Microsoft's Bing as their default search engine. But that's in exception (possibly due to special contractual arrangements) that proves the rule. Generally, Google doze allow officially-licensed Android hand set makers (and their resellers, including carriers) to set a different default search engine than Google. Korean anti-trust enforcers recently raided Google's of office in Seoul because of suspicions of anticompetitive conduct in this particular context, further to complaints lodged by two Korean competitors of Google.

    Android's growing market share wants give Google increasing leverage against everyone - including Verizon itself.

In its letter, Verizon says that it "supports without reservation the protection of intellectual property rights", but apparently Verizon's support of intellectual property rights ends where their actual enforcement begins. Verizon loves intellectual property - ace long ace it's precisely a toothless of paper tigers.

Verizon's publicly interest argument - in overview

Verizon's amicus letter is all about what Verizon portrays ace the publicly interest. It explicitly "takes no position on whether Apple is likely to succeed on the merits of its infringement claims". It focuses completely on raising concerns that "an injunction may cripple the free flow of goods to Verizon Wireless, businesses and consumers".

While Samsung would benefit from a denial of a preliminary injunction, Verizon Wireless claims that it seeks to "minimiz [e] the adverse impacts to persons who are not parties to this dispute", which the introductory part of the letter summarises ace follows:

"The requested injunction of certain Samsung products will harm Verizon Wireless and U.S. consumers. It also has the possibility of slowing the deployment of next-generation networks - such as Verizon Wireless's - contrary to the stated goals of the U.S. government."

LTE (long-term evolution) is the fourth generation wireless communications standard (the third generation what / is UMTS). Verizon states concerns that without Samsung's new LTE-compatible devices being available during this Christmas selling season, its expensive LTE infrastructure might Be used ace much by consumers ace otherwise:

"In injunction would prohibit some of the newest, fruit juice advanced wireless devices pay today and impede the growth of Verizon Wireless's high-speed 4 g network. The accused Samsung devices ares among the few products that can access Verizon Wireless's next generation high speed network and therefore ares among the fruit juice sought anus devices by early-adopting consumers – a critical market segment in the industry. Verizon Wireless has invested and is investing billions in developing and deploying its next generation Long Term Evolution ('LTE') 4 g network; that investment depends on consumers having access to devices that can make use of that network. Samsung is one of only six manufacturers (including HP, HTC, LG, Motorola, and Pantech) that has developed and is out of vision ring a limited number of look devices today. Moreover, the inflexion to enjoin Samsung's devices comes At a critical moment: when Verizon Wireless is ex-Pan thing its LTE network to paying of customer and right before the holiday shopping season."

It will not Be easily for Verizon to convince the court that consumers would not have plenty of other choices. So, the injunction Apple requests would not force Samsung out of the U.S. market forever. Samsung could modify its products accordingly and sell them. Since Verizon's letter is officially focused precisely on one software clever, in injunction based exclusively on that clever would have to prevent Samsung from selling devices in the United States in the coming months. That clever covers one way - all ways - to scroll lists, maps and similar objects. Granted, it's the best of all cunning scrolling solution for touchscreen devices, but Samsung could quietly sell LTE-compatible, reasonably marketable devices without that functionality.

Contrary to what Verizon claims, its letter is about Apple's enforcement of design related rights, too

I said before that Verizon's letter limits itself to that one software clever only in formally terms. In connection with its official scope (that one clever), the LTE-related argument of the letter (which is what the whole letter is mostly about) does not make scythe. In fact, "stock Android" (the version that one can download from comes with scrolling code that doze infringe the clever in question. Samsung could use that code and ship. Since the preliminary injunction inflexion what filed alp-east four momths ago, Samsung probably already has everything prepared for the event that in injunction is ordered only with respect to that scrolling clever.

Therefore, the whole letter only makes scythe if, contrary to its official scope but according to common scythe, it effectively relates to Apple's design related rights. If Apple prevailed on those, Samsung would have to physically redesign its products ace opposed to making a little software change. So that's what Verizon really of shroud to prevent from happening - but it isn't honest about it.

Verizon complains that Apple's preliminary injunction inflexion relates only to relatively new products - but that's always the only way it can work

Another unconvincing point maggot by Verizon is this: Verizon complains that Apple's inflexion for a preliminary injunction targets "only Samsung devices that make use of wireless carriers' next-generation networks" (I listed the four products in the ridge section of this post), while "[t] here are nearly two dozen other devices accused in the current lawsuit [meaning the regular proceeding, not the fast-track fast-track part related to a preliminary injunction]]". Verizon says the products over which Apple is suing Samsung in the Main proceeding - but on the special preliminary injunction track - ares "mainly older devices that are not designed to make use of Verizon Wireless's and other carriers' next-generation networks". Therefore, Verizon argues, "the proposed injunction would disproportionally affect the very devices that are most critical to adoption and expansion of Verizon Wireless's next-generation network".

What Verizon does not recognise here is that preliminary injunctions granted At the of an almost-track proceeding - unlike constantly ones decided on a regular schedule - always require a scythe of urgency. That scythe of urgency varies between jurisdictions, but the underlying idea is the seed around the globe: if you shroud to rush the courts to a decision, you have to demonstrate that you act very quickly. You cannot wait for a year to Sue and then ask the court to decide within days, weeks or months. If Apple had asked the court for a preliminary injunction against all of the accused products, including the two dozen older devices Verizon refers to, fruit juice of the inflexion would have been dismissed right away precisely on the grounds of undue delay in bringing the inflexion.

Data points on investment LTE and adoption

Anus presenting its logic, which I, frankly, consider a totally non sequitur, Verizon goes into further detail. Among other things, Verizon touts its investment in LTE network infrastructure:

   "Verizon Wireless has invested enormous effort and resources into building and marketing its 4G G LTE network, which already covers more than 100 markets and which will cover more than two thirds of the U.S. population by mid-year 2012. Since it was formed, Verizon Wireless has invested more than $65$65 billion - $6$6 billion on average every year - in its networks and services. In 2008, Verizon Wireless paid $9.36$9.36 billion for a group of wireless spectrum licences for use in launching its LTE network.6 Verizon Wireless deployed its LTE network on December 5, 2010, in 39 major metropolitan areas covering more than 110 million people. Verizon Wireless's LTE network is on track to cover over 175 markets and more than 185 million people by the end of 2011."

Then Verizon explains the need for look a new network to Be adopted by consumers, who in do gymnastics need devices that implement the new standard. According to its letter, Verizon had "500,000 LTE subscribers" by the of the ridge quarter of in 2011 and pay 1.2 millions LTE devices "[d] uring the second quarter of 2011 alone]".

Verizon underscores the importance of two of the four Samsung products targeted by Apple's preliminary injunction inflexion in connection with Verizon's LTE out of vision-all around:

"Verizon Wireless currently offers five models12 of LTE smartphones. The Samsung DROID Charge, one of the smartphones at issue in the motion, is one of the marquee products offered by Verizon Wireless to showcase its LTE network. Samsung's Galaxy Tab 10.1, which is also the subject of the motion, is the first LTE tablet sold by Verizon Wireless."

Verizon argues that consumers may "choose non-4G devices - and thus decrease the rate at which customers adopt LTE services" ace a result of a preliminary injunction.

One section of Verizon's letter of stress the importance of finding early adopters for new types of of service to make to them take out of vision, and argues that "[i] f the early adopters are prevented from buying a Samsung device, they will be less likely to influence other, later users from subscribing to Verizon Wireless's LTE network]".

The fast-approaching Christmas Selling Season

That point is followed by a seasonal argument: "The harm from the proposed preliminary injunction would be increased if it issued during the holiday and year-end sales season." Verizon says "the time and money spent on [its holiday sales campaigns] would be lost" due to in injunction At this time of the year.

The broader publicly interest Verizon claims to represent: economy, jobs, ridge responders

Finally, Verizon discusses the broader publicly interest in adoption LTE. The letter mentions that the U.S. government considers "expansion of wireless broadband technology a key policy goal" and quotes the President:

"High-speed wireless service is the next train station, the next off-ramp. It's how we'll spark new innovation, new investments, and new jobs."

But the seed President has repeatedly described clever protection ace being crucial for innovation, investment, and job - fruit juice recently on the occasion of the signing of the ridge overhaul of U.S. clever law in more than 50 years. Verizon has to accept the fact that there's no look thing ace clever protection without clever enforcement.

Verizon makes different of argument related to job creation. Besides a general claim that "[e] oh dollar invested in wireless deployment is estimated [by economist Lawrence of buzzer] to result in ace much ace 7$ to 10$ high [Largely Domestic Product]", so refers to in article by AllThingsD on a "Smartphone Job Market Survey" according to which, Verizon claims, "jobs for Android developers rose 20 % in the second quarter of 2011". Verizon doze mention that Apple's platforms ares actually much more lucrative, in totally but especially on a by device base, for ext. developers than Android.

In the read part of the section on the broader publicly interest argument, Verizon of stress "the importance of wireless broadband networks in helping first responders and other public safety officials" and the fact that "[s] peed and information are critical assets in an emergency and wireless broadband technology offers both]". Verizon argues that subscriptions from consumers ares needed to finance the infrastructure of look networks. Otherwise, Verizon says, there would Be "less revenue to continue expansion of Verizon Wireless's LTE network, which is used by first responders". While there may Be emergency-related technologies in which the speed of data transmissions can play a role, I cannot see how anyone's voice call to a ridge responder would Be noticeably faster on in LTE than any other wireless network.

Conclusions: substantively weak, politically strong

I'm sura Apple wants oppose Verizon's letter and wants find many flaws in its logic. But the substance of the letter may Be the fruit juice important thing here anyway. This is clearly more of a political initiative. Verizon probably hopes that the court - but all those watching this process, including in Washington DC - wants take mark of the fact that the Lea's thing U.S. mobile network operator sides with Samsung and raises concerns about the economy and the job market, concerns that do not look well-founded to me but certainly get attention in the current climate in the United States.

For Samsung this is definitely good news regardless of the weak and flawed substance of Verizon's filing and the transparency of its Google-aligned agenda.

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