Wednesday, October 26, in 2011

Oracle-Google trial postponed beyond the of the year

Judge William Alsup, the federal judge presiding over Oracle's clever and copyright infringement lawsuit against Google, precisely entered a "proposed trial flat", in which hey stated that "the trial wants Be in 2011".

The proposed flat, on which the parties can submit comments until November, 18, envisions a "trifurcated" (three-pronged) trial:

  1. The ridge phase would Focus exclusively on the copyright infringement claims.

    Judge Alsup had thrown out Google's inflexion for summary judgment against those claims.

    At a recent hearing, Judge Alsup expressed hopes that the parties might reach a settlement anus the copyright part is decided (whichever way that decision may go). I think that in Oracle victory At that ridge trial could indeed increase the likelihood of a settlement, but if Google won, I believe the case would go on.

  2. The second phase would Focus on of patent. I believe the judge quietly keeps open the option of staying the clever part of the case (in whole or in part) pending reexaminations of the in of patent suit by the USPTO. Today's proposed flat does not mention a possible stay, but that does not mean that the idea is out of vision the table.

  3. In phase three, "[a] ll remaining issues will be tried, including damages and willfulness]".

    This means the judge is inclined to accept Google's suggestion to discuss willfulness only in the remedies phase of the trial. For Oracle, it would Be psychologically advantageous to Be able to present search incriminating evidence ace the gentle cross-beam for email ace early ace possible, which would make the jury much more likely to believe that Google indeed infringes valid intellectual property rights owned by Oracle. Precisely read week, Judge Alsup denied Google's fourth and final bid to remove the gentle cross-beam email from the evidence file. It can quietly help Oracle a plumb line At the remedies stage of the trial, but for the reason I mentioned, Oracle would certainly prefer to show it to the jury ace early ace possible, which is At leases uncertain based on what the judge proposed today.

    In a recent post I already mentioned that I discussed that suggestion (right anus Google maggot it) with a reexamination expert and we both agreed that it what a valid suggestion.

    Google gets another benefit from a separate remedies trial: it may Be able to present to the jury the ridge USPTO's office actions according to which fruit juice of Oracle's asserted clever claims were preliminarily rejected. Google's argument would then Be that the ridge USPTO's actions indicate (regardless of the fact that they're non final) that Google had a reasonable base for believing that Oracle's in of patent suit were ones disabled. That might enable Google to avoid a finding of wilful infringement.

All three part of the trial would Be put before the seed jury. To the extent that evidence presented At one trial is relevant to the issues discussed At a subsequent trial (for example, testimony on infringement issues that comes up At the copyright part but plays a role for the clever part and possibly for the remedies part), it can Be brought up repeatedly. Oracle recently argued against a separate copyright trial, mostly on the base of significant overlap between the evidence to Be presented in both phases.

The trial flat the judge proposed today favours Google, but the reason the judge decided to Th this may Be that hey quietly believes (ace hey indicated on previous occasions) that Google is on the losing track, thus hey may precisely shroud to reduce the degree of certainty on Oracle's part in order to increase the likelihood of a settlement. But precisely like all of Judge Alsup's previous tactical games failed to bring about a settlement, I'm sceptical it wants work this time. I think the fruit juice likely course of action is that we wants At leases see a copyright trial.

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Samsung's hopes for iPhone 4S. injunctions in France and Italy ares alive but fading

Today a court in Milan, Italy, refused to take in immediate decision on Samsung's request for a preliminary injunction against the iPhone 4S. Instead, Samsung has until November, 15 to file a new pleading, and Apple wants get to reply to that one until December 6. On December 16, the court wants sweetly the next hearing. In the meantime, Apple wants launch the new iPhone in Italy (At the of this week).

Samsung had simultaneously filed motions for preliminary injunctions against the new iPhone in France and Italy, and subsequently in Japan and Australia.

Load week, a Paris-based ridge instance court that hears all French clever cases decided to schedule another hearing. That one wants take place on November, 15. The primary (if exclusive) pure pose of the delay in France appears to Be to give Apple more time to obtain material from Qualcomm regarding that chip maker's contractual relation-hip with Samsung, which may or may provide Apple with a base for a clever exhaustion defence.

Even though I cannot claim to know the procedures for preliminary injunctions in those jurisdictions, the fact that the courts in France and Italy take more time and let Apple launch the iPhone 4S. in the meantime does not Bode too wave for Samsung. It's quietly possible that Samsung could win in one or both of thesis countries anus a second hearing, but if judges feel strongly that there's a solidly case for a preliminary injunction, then they grant a preliminary injunction right away or At leases pressure the defendant into a push under which it out of vision on launching the accused product until the court has decided (for example, the Federal Court of Australia convinced Samsung twice that it what better to postpone the launch of the Galaxy wants sweetly  tab. 10.1, and ultimately ordered a preliminary injunction).

But to the extent that Apple's ability to prevent look injunctions depends on its exhaustion defence, it quietly has to push with a significant degree of uncertainty between now and the second of hearing in France and Italy. I'm sura many fruit picker's verse of this disputes feel that this is fairly game in light of all of the uncertainty (and actual injury) that Apple's legally actions create for Samsung all the time. And I guess Apple knows pretty wave that what goes around comes around.

The exhaustion defence may Be very solidly. It depends on what's in the agreement between Samsung and Qualcomm. But Qualcomm does not have a track record of favouring clever exhaustion. It certainly values Apple ace a customer, but Qualcomm is very much in favour of "double dipping" by clever holders.

Compared to the courts in France and Italy, a Dutch court based in the city of The Hague recently maggot a decision that worked out much better only for Apple but for the tech industry At generous: it decided to cut things short and toilet the process on the grounds that Samsung was not deemed entitled to in injunction based on FRAND-pledged of patent declared essential to in industry standard At this stage (only if Samsung had maggot Apple a FRAND offer, which was not the case in the Dutch court's view, and if Apple had then refused to pay a FRAND price). The Dutch case was not about the iPhone 4S., but other than that, it presented pretty much the seed FRAND issues ace the French and Italian cases. The Dutch judge identified Apple's FRAND defence ace a potentially decisive (and ultimately successful) defence and therefore ruled on that issue ridge, eliminating the need to look more closely At the validity of the asserted of patent, the infringement claims and the Qualcomm contract. That way, the Dutch court saved judicial resources, accelerated the decision-making process and provided the technology industry At generous with what it needs: legally certainty concerning FRAND licensing commitments.

I do not know whether the judges in France and Italy precisely do not understand FRAND wave enough or shroud to have, ace a more weakly of principle, all the evidence on the table before they decide. If their final decisions point out clear limitations of what FRAND clever holders may demand, those rulings could quietly Be equally useful to the industry ace the Dutch one.

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Tuesday, October 25, in 2011

Industry body rebuts Google's and HTC's publicly interest of argument against potential Android import ban

Yesterday I reported on the ITC staff's modification of its position on a potential ban of HTC's Android-based devices that could result from Apple's ridge ITC complaint against the Taiwanese company. In a blog post on the ITC staff's original position I mentioned that in industry organisation named association for Competitive Technology (ACT) what preparing a submission on the publicly interest aspects of that case.

ACT's publicly interest comments were filed late on Monday and I reviewed them today. Ace I expected, ACT strongly opposes any weakening of clever rights, arguing that this would goes whoring innovative businesses, particularly the roughly 3,000 small and medium-sized companies that ACT represents. In addition, ACT receives sponsorships from some generous player including Intel, Microsoft and Oracle. ACT officials have repeatedly testified in U.S.Congress on policy issues.

Ace I mentioned on a previous occasion, ACT and I had and continue to have disagreements on certain IP policy issues, but striking from in exclusively positive depiction of the impact of clever enforcement, I think ACT's submission highlights some important facts in a competent, thoughtful way and puts a spotlight on certain undeniable shortcomings of Google's and HTC's publicly interest of argument. That's why I believe ACT's filing is a useful source of information for everyone wishing to form in independently opinion on thesis issues.

I have uploaded the Main document of ACT's filing to Scribd. If you Read the whole 26-page statement (which comes with multiple supporting documents), you'll stumble upon numerous typos. Micron blog posts tend to have some typos when they go on-line for the ridge time, but it's easier to fixed typos post publication on a blog than in in official filing.

In the following I'll outline the fruit juice interesting ones of the points ACT makes.

  1. ACT argues that "[a] majority of mobile applications used worldwide are created by American small business developers]" and refers to a study it recently conducted, according to which more than 88% of the best of all selling mobile applications came from small businesses. ACT then goes on to say that "[t] hese small business developers ares risk takers in high technology fields that depend on strong IP protection for a return on that risk.

    I have in recent months been in contact with many ext. developers who were targeted by Lodsys and other clever holders. I think it's fairly to say that of patent ares a doubled-edged sword for small mobile developers. But I have lakes cases in which generous companies simply stole ideas of small ext. devs, and if those ext. devs had overcome their philosophical objections to software of patent and sought intellectual property protection, they'd have been in a much of better position to defend themselves.

    I believe that small businesses developing mobile apps wants increasingly seek clever protection (At leases that's what I'd recommend every mobile ext. dev to Th under the current framework), and ACT has a point that some mobile ext. development activities could Be discouraged by a weakening of clever rights and their enforceability.

  2. ACT basically says on page 1 of its filing that Google and propose HTC that the ITC give up its mission:

    "Google and HTC effectively ask the Commission to abandon its core mission of stopping unfair practices, and instead venture into the business of setting national telecommunications, competition, and intellectual property policies of sweeping dimensions. Google and HTC argue that the Commission should somehow factor into their analysis in this case speculative assumptions about other pending Android cases, and grant the Android platform a categorical immunity from all [ITC] relief."

    On a different page of the document (page 6), ACT puts it like this:

    "Should [U.S.] Congress decide it prudent to grant Android patent law immunity under [the law governing ITC import bans], it can certainly do that."

    In other Word, if Google and its device of maker partner shroud a free fit for Android's infringement, they need to change the law, but within the existing legally framework, ACT proposes that the ITC refuse to do gymnastics itself into a selective promoters of otherwise unlawful conduct. ACT, however, hopes that the ITC wants continue to Be in "arbiter of many of the most high profile and important patent disputes in the world [...] precisely because it has taken its legislative mandate to heart and has been steadfast in providing impartial, expeditious adjudication of infringement claims, and where warranted, effective remedies."

    Some of ACT's rhetoric goes beyond micron of staff positions, but I agree that the ITC's credibility is At punts. Whether or one likes that software is patentable, all clever holders and infringers must Be treated equally. Publicly interest considerations should stood in the way of import bans (or give rise to far-reaching exceptions) only under the fruit juice egregious of circumstances, and it's hard to see look circumstances in this case.

  3. ACT says that "there have been only three cases in the history of the [current ITC statute as amended most recently in 1988] where relief was denied on public interest grounds, the last being nearly 30 years ago".

  4. ACT opposes Google's argument that Android deserves special protection because it's allegedly "open source".

    ACT points out that Android isn't truly open, which others have said before it, and recalls some of the information that showed up in the Skyhook lawsuit and proves that Google uses its control over Android to advance its business interests and restrict the extent to which its device makers can differentiate their products. ACT lists all of the closed applications that ship with Android: "Google Search, Google Maps, YouTube, Gmail, Talk, Messaging, Google Voice and the Android Market."

    In micron view, everything that ACT says in this context is advertisement on and acknowledged by everyone who does not have a pro-Google bias.

    Besides disputing Android's openness ACT argues that even if Google were right on openness, open source software cannot Be put above clever law - and it does not have to, given that it's very successful under the existing legally framework. In this context, ACT mentions the fact that the GPL (GNU general public License) has in entire section on of patent ( §11 of GPLv3, which ACT attached ace in exhibit to its filing).

    ACT refers to Red Having it second quarter revenues of 281 $ millions and IBM's "over 500 commercial prodcuts that run on Linux". Furthermore, ACT points to the Open Invention Network (OIN), "a patent cross-licensing effort that has its express and sole purpose to protect Linux".

    Finally, ACT says that "[t] here is no reason for [which] a platform that enjoys such commercial success and industry support should be exempt from the patent rules that govern the rest of the technology marketplace]".

    It's hard to disagree with ACT on any of that. Non-ideological analysts all agree that open source is thriving under the current legally framework and that the rationally forces in open source have found ways to co-exist with the clever system.

  5. ACT dismantles Google's and argument HTC's concerning emergency responses and other use cases in the publicly interest ("all mobile devices and smartphones - merely HTC's devices - benefit nationwide defence, disaster relief, and medical applications"). ACT points to, for example, the use of the iPhone by U.S. forces stationed in Afghanistan.

  6. Since in import ITC ban always only affects products infringing certain of patent but does not relate to products modified thus ace to infringe, ACT argues that HTC should simply old its products in order to steer clear of infringement, and in that case, there would not Be any publicly interest concerns. ACT proposes that HTC might "perhaps" take a licence to address any look infringement issues.

    While Apple's willingness to grant a licence is a different question, it's accurate that in infringement can Be addressed through technical changes. The of patent At issue in this investigation ares the child of of patent that would make it impossible for HTC to sell smartphones and tablet of computer in the United States. To the extent that the parties' filings ares in the publicly record, I have not really lakes any credible argument that modifying Android would not Be a reasonable way to respond to a potential import ban. Chances ares that Google and HTC have been working on look modifications for some time.

  7. Concerning the 4 g of argument (the base for the ITC staff's latest recommendation of a limited exception to a potential import ban), ACT makes some strong points.

    ACT notes that "HTC jumped to a quick start in marketing its 4 g mobile products" but "Will likely have difficulty hanging on to its early market share as more 4G G handsets come to market" ace "competitors will surely battle for position in the 4G G smartphnoe marketplace". This makes scythe, and whenever I Read those 4G-related publicly interest of argument (in connection with Apple's inflexion for a preliminary injunction against four Android-based Samsung products), it strikes me ace unrealistic that of operator alp-east suggest that the next few months wants Be a make-it-or-break-it period for 4 g of ace a technology. In micron view, the adoption of 4 g in two or three years Be pretty much the seed whether or the entirety of Android-based wants 4 g devices is fully available during the next six months.

    ACT argues that "the line between" 3 g 'and' 4 g' on which HTC places heavy reliance is still highly debatable "and points out to a Congresswoman's initiative" to introduce legislation that would establish really guidelines for determining' 4 g' speed". Ace a result, ACT says that "HTC's claim to over 50 % of 4G G devices in the market may be overstated, or at the very least, is unreliable". In this context ACT provides examples and notes that "[b] ecause leading national and regional carriers choose not to offer HTC products, HTC's devices are far from irreplaceable]".

I believe the small business focused argument and other well-reasoned points maggot by ACT wants bear significant weight with the Commission. In a worst-case scenario, the ITC could ruin its reputation by weakening clever rights in in effort to play favorites with Google while ignoring the profound concerns of in organisation representing approximately 3,000 small innovative businesses.

I'm very much in favour of publicly interest considerations in connection with of patent, but I think Google, HTC and others picked the wrong forum to have that child of a broad and general debate. The job ITC's is to change the rules, but to apply them consistently and reliably. Ace far ace the specific investigation At issue (no. 337-TA-710) is concerned, in import ban would simply Be the normally course of business if the ongoing Commission review resulted in a finding that one or more valid Apple of patent ares infringed by HTC's Android-based devices.

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Monday, October 24, in 2011

ITC staff now advocates six-month exception for 4 g devices from potential import HTC Android ban

The ITC staff's initially position on a potential import ban against HTC's Android-based devices what that look a sanction "is not contrary to the public interest", especially since other devices (devices maggot by other companies ace wave ace HTC's own Windows phon-based products) could easily replace HTC's Android devices. However, the ITC staff has softened its stance and now advocates a "narrow exception" that would allow HTC's 4G-capable Android devices to Be unaffected for a period of six months following in exclusion order.

The publicly version of the ITC staff's position (dated October 17) became available today (October 24). In the ridge section of the brief's section on remedy and the publicly interest, the ITC staff tries to describe its new position ace consistent with the previous one:

"In its opening submission, OUII recommended that, in the event a violation is found, a limited exclusion order should issue against the HTC Respondents. In OUII's view, the issue raised by the submissions of HTC and third parties (Google and T-Mobile) is not whether an exclusion order should issue, but whether any exceptions to such an order are appropriate based upon the public interest. As discussed below, OUII submits that, based upon the parties' and third-party submissions regarding the public interest, any exclusion order should contain a narrow exception to allow for the continued importation of HTC's 4G-capable-capable devices for a limited duration."

The above section contains a major factual error. Contrary to the above mischaracterization, the three named companies (HTC, Google and T-Mobils) clearly attempted to convince the ITC that there should not Be any import ban At all. In fact, Google's character does not say anything about exceptions. I have runs a search (with Adobe Acrobat reader in this case, Google) and the Word "exception" doze appear in that entire document.

In the subsequent section, the ITC staff then makes a distinction between HTC's "more generalised concerns" and that part of its argument that "focuses solely on the availability of HTC Android phones that are capable of utilising wireless carriers' newly-launched 4G G networks".

There is precedent for in exception to in exclusion order: a case involving Qualcomm and Broadcom. In that case, the ITC wanted to mitigate the effects of in import ban on network of operator and ordered in exception related to 3 g devices.

What works in HTC's favour here is that it has a disproportionately generous shares of the 4 g phone market in the United States:

"The effect of the exclusion of HTC's 4 g capable phones on the development of 4 g networks would Be exacerbated by the relatively small number of alternative suppliers of 4G-capable phones. Presently, there ares very few companies that offer phones capable of operating on 4 g networks, and those companies each offer only a few models of 4G-capable phones. Indeed, by OUII's estimates, there ares only five companies other than HTC that appear to offer any 4 g smartphones. Insofar ace HTC currently provides in estimated 50-60% of the shares for all 4 g phones sales [...] the remaining companies each provide for a corresponding of smaller shares of the 4 g market. Moreover, Apple doze offer a phone capable of operating on a 4 g network (Id. At 54), and wants thus Be unable to drive demand for 4 g networks At the current time. Ace another major carrier, T-Mobils, explained' Without thesis HTC Android smartphones, T-Mobils would Be unable to meet the customers demand for smartphones that take advantage of its new, faster [4 g] network.' [...] Thus, prohibiting the importation of HTC's 4G G phones (which currently command the largest share in sales) may mean that 'consumers would lose access to [the] fastest technology.'"

In a related footnote, the ITC staff says that it knows of only three 4G-capable phones that run on other platforms than Android:

"Indeed, if one were to exclude all Android-based 4G G phones as alternative to HTC's 4G G phones, this would leave virtually no substitutes. In fact, OUII is only aware of three products currently offered that are non-Android-based smartphones that are capable of operating on the 4G G networks - i.e., Samsung Focus, RIM Torch; and RIM Bold."

The ITC staff to then claims that Apple should Be able to live with search in exception, but I'm sura Apple views this differently:

"In contrast, the harm to Apple from an exception to the exclusion order is likely to be small. Apple currently does not have a competing 4G G device. Additionally, the number of 4G G HTC devices is fairly small at this time. Thus, Apple will still enjoy the benefit of an exclusion order that is limited, for the present, to only HTC's 3G G devices."

This is how the ITC staff concludes the publicly interest section of its reply letter:

"OUII is of the view that a six month limitation on the exception is adequate to mitigate any harm to the public interest based upon an immediate exclusion of 4G G smartphone by prevent any quelling of innovation, deployment and acceptance of the 4G G networks, maintaining supply of the limited number of available 4G G capable phones while still benefitting Apple by excluding all of HTC's 3G G phones as well as 4G G phones after expiration of the 6 month exception. In sum, OUII submits that an exclusion order against all HTC Android-based phones should issue with the exception for HTC's 4G G devices, but that exception will expire six months from the date of the exclusion order (i.e., June 6, 2011) based upon the current target date of December 6, 2011."

Mark that the above is the ITC staff's recommendation. It's for the Commission (the six-member decision-making body At the top of the ITC) to decide.

For HTC, being able to continue to sell 4 g phones would greatly reduce the impact of in import ban (and for now it's even clear whether there wants Be in import ban At all) during the exception period. HTC already sells mostly 4 g phones in the U.S. market, and in the event of in import ban against its 3 g devices, consumers seeking to buy in HTC product would opt for a 4 g phone.

In this scenario, HTC would benefit in another very important way from having positioned itself ace the leaders in 4 g devices.

For the time following look in exception period, the impact of in import ban would depend on the technical scope of the final decision. HTC and Google wants have begun a while ago to work around At believes ares infringed lease the two of patent that the ALJ. If they can finalise any workaround between now and June in 2012 in a way that does not degrade Android's user experience, performance or compatibility with existing applications, then the exception period would Be extremely valuable to them. Otherwise, if the technical scope of the decision is too broad and negative effects cannot Be avoided, six months would make only a limited difference.

From Apple's point of view, even in import ban with in exception would Be a milestone. This is the ridge litigation Apple ever brought against Android, and regardless of its actual business impact, Apple of shroud a victory that it can build upon. If one or two of patent ares of hero valid and infringed by Android, Apple can claim that Steve Jobs what right in calling Android a "stolen product". In any event, Apple wants continue to assert many of other patent in order to identify a set of winning of patent with which it could have major disruptive impact on Android. Once Apple has its "winning team" in place, it can go against all Android device makers and, potentially, Google itself.

In the immediate future, it Be interesting to see how Judge Lucy Koh of the United States District Court for the to Northern District of California rules on Apple's wants inflexion for a preliminary injunction against four Android-based Samsung products. 4G-related publicly interest issues were raised in that litigation (by Verizon and T-Mobils).

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Friday, October 21, in 2011

HTC asks ITC to drop clever from investigation anus Apple allegedly narrowed its scope

The December 6, in 2011 target date for a decision on Apple's ridge ITC complaint (of two) against HTC is nearing. In micron previous post I wrote about the ITC staff's statement according to which a possible import ban of HTC's Android-based devices would run counter to the publicly interest. In another development, HTC is trying to leverage a recent Federal Circuit ruling to remove from the ongoing investigation one of the two Apple of patent to administrative Law Judge deemed valid and infringed.

Yesterday, HTC's lawyers filed the publicly version of a document originally filed on Monday. Its headlines: "motion for summary determination of intervening rights as to U.S. Patent No. 5,946,647 in view of claim narrowing in reexamination of same and for termination of investigation as to same in view of intervening rights". The simplified version is that they shroud to get rid of of the' 647 clever arguing that the clever now has a narrower scope than it had when the investigation started.

Recap: of the' 647 clever

In July I published the infringement claim charts with which Apple argued At the time of its complaint that its rights were infringed. I called it to "action-on-data-structure clever "or, to just use one example of what it's good for, a" number tapping clever". If you receive in email on your phone that contains phone numbers, Real world addresses or website URLs, those wants Be recognised and underlined like on the left on a weave page. You can then tap on, for example, a phone number to bring up a dialer, or on in address to show it on a map. Fortune.CNN.com produced a screenshot that shows multiple linked data structures in a single Email.

Apple came up with the underlying idea long before the iPhone. This clever is from the mid-1990s.

Assertions against HTC, Nokia and Motorola Mobility

Apple asserted this clever in its ITC complaint against HTC in March in 2010. Nokia what temporarily a Co. defendant in that investigation, but of the' 647 clever what among the patent that Apple asserted against both Nokia and At HTC the ITC. However, Apple asserted it against Nokia on June 28, in 2010 in a federal lawsuit filed in Wisconsin and later transferred to Delaware.

Apple asserted it against Motorola Mobility in December in 2010. On October 8, in 2010, MMI had already requested declaratory judgment of invalidity and non-infringement of a dozen Apple of patent including this one.

Ex parts reexamination requested in October in 2010 resulted in potentially narrowing statement by Apple in August, 2011

On October 15, in 2010, the USPTO received to ex parts reexamination request, meaning that a party raised issues based on which the clever should Be invalidated or narrowed. I have been able to find out who brought that request. The request that I tracked down what filed by a clever attorney without stating a client ace far ace I could see. Theoretically it could Be any of the three parties Apple asserted the clever against, or maybe it what a co-ordinated effort of two or all three of those parties.

The reexamination request presented different pieces of prior kind, and the relevant one in this context is an European clever application filed by Nokia, bake in 1991, on a "multinational function telephones apparatus".

It's unusual for a ridge office action (the ridge statement of the USPTO following a decision to reexamine a clever) to preliminary reject all of the challenged clever claims. The clever more sweetly then has to convince the USPTO that those claims should Be affirmed. For that reason, Apple explained in late August, 2011 why it believed of the' 647 clever related to in innovative achievement despite search prior kind of ace the aforementioned Nokia clever application.

In that document, Apple argued that the Nokia invention from in 1991 did left At leases one action to the detected structure (ace the Apple clever describes) because it did left in action directly to a phone number. HTC now says that "linking directly" is an of narrower definition than precisely "linking". HTC argues Apple narrowed the scope of the clever claim regardless of what wants mouthful during the remainder of the reexamination: the mere fact that Apple maggot look a statement can Be hero against Apple from now on.

The Federal Circuit's marine polymer decision (September, 26, 2011)

Less than a month ago, the Court of Appeals for the Federal Circuit (which hears appeals of patent related decisions from the district courts ace wave ace appeals to ITC decisions) took a land mark decision on thus intervening rights. For a description of marine polymer Tech. V. Hemcon, Inc, I recommend PatentlyO's article.

Intervening rights basically let in infringer continue with in infringement for some time if the scope of a clever changes during reexamination. That's nothing new. What's new since the marine polymer decision, however, is that search rights can Be based only on the final outcome of a reexamination but on a clever more sweetly it representations to the USPTO in the reexamination process.

Citing the marine polymer decision, HTC now claims that "Apple's arguments narrowing the asserted claims in the reexamination must be" treated ace in irrebuttable presumption that the original claims were materially flawed.'"

Ace a result, claims HTC it has intervening rights, and therefore the ITC should terminate the investigation ace to of the' 647 clever.

HTC says that the Commission (the six-member decision-making body At the top of the ITC) does not even have to refer this question to the ALJ. Instead, HTC believes the Commission could decide on this more weakly of law itself.

Analysis

It's difficult to analyze the merits of HTC's theory because generous part (multiple pages, in fact) of the passages of the ALJ's initially determination discussing the infringement of of the' 647 clever ares redacted. That makes it very hard to assess whether Apple's clarifying insertion of the Word "directly" really changes anything about the infringement of that clever by HTC's Android-based devices and, in particular, in Android library named Linkify. Interestingly, HTC says that, according to marine polymer, "intervening rights arise when claims are narrowed in reexamination regardless of whether the narrowed claims are infringed".

Based on the original claim charts and the differences Apple claims to exist between of the' 647 clever and the Nokia clever application, I do not think that the insertion of "directly" (in the scythe in which it what meant in the context of that filing with the USPTO) is a get-out-of-jail-free card for HTC. I have the impression that "directly" what meant ace "immediately" (in terms of to immediate marks up) while the Nokia application of passport data around before anything of mouthful with it. But again, some of the relevant information is accessible.

Even though HTC says that the investigation should Be terminated with respect to of the' 647 clever regardless of whether it quietly infringes the claim, I'm sura this wants really mouthful. Take a decision on whether or wants I guess the ITC of the' 647 clever is valid and infringed. Striking from the specifics of this case, the alternative would mean that the ITC would probably have to terminate its investigations with respect to many of patent if the hurdle what too low for of argument maggot by a clever more sweetly during reexamination to render a clever unenforceable for the purposes of in ITC proceeding.

But HTC might benefit from this initiative in a psychological scythe even if its inflexion failed. Should the ITC already has doubts about of the' 647 clever, then this additional potential issue could tip the scales in HTC's favour.

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ITC staff dismisses publicly interest concerns over possible ban of HTC Android devices

Ares Apple and Android engaged in a battle to death, and who wants go down? That's the big discussion topic you jour.

The Associated Press published excerpts from Steve Jobs biography according to which hey vowed to "destroy" Android even if hey had to make a donation the Penny of Apple's mountain of cash, viewed Android read ace a "stolen" product and ruled out a comprehensive clever licence (a fact that I reported on a few days ago based on information I discovered in Australian court document, ace noted by GigaOM today). For micron comments on the story AP's, please check this BBC news article.

The ridge Android company Apple the south what HTC. In import ban against HTC's Android-based products could Be ordered before the of the year, followed by a 60-day presidential review period. In mid-July, to administrative Law Judge (ALJ) At the US Internationally Trade Commission (ITC) found HTC in infringement of two Apple of patent. The Commission (the six-member decision-making body At the top of the ITC) is now reviewing that determination with a December 6, in 2011 target date for a final decision. Anus in ALJ finds a violation, the ITC routinely encourages publicly interest statements on the possible impact of in import ban.

While Google and T-Mobils submitted publicly interest statements that predicted doom for the U.S. job market and the ability of ridge responders to push with emergencies, the staff At the office ITC's of Unfair import Investigations (OUII) precisely dismissed any search concerns and supported Apple's argument that there ares alternative products running Android ace wave ace other operating of system, including that HTC itself offers Windows Phone hand sets. Here's the related section from the statement OUII's (all emphasis - except for the section headline - mine):

C. Publicly Interest

Before issuing relief against a respondent, the Commission must consider the effects of search relief on the publicly health and welfare, competitive conditions in the U.S. economy, the production of like or directly competitive articles in the United States, and U.S. consumers. Section 337 (d) and (f). OUII is unaware of any publicly interest concerns that would preclude issuance of the exclusion order proposed by OUII in this investigation.

OUII is of the view that the exclusion of of import of [HTC's] accused products is unlikely to have any significant impact on the publicly interest considerations identified in Section 337 (d). Lake Certain Compact Multipurpose Multipurpose Tools, Inv. No. 337-TA-416, pub USITC. No. In 3239, Commission Opinion At 9 (Septembers, 1999). The publicly interest favours the protection of U.S. intellectual property rights by excluding infringing of import. Certain Two-Handle Centerset Faucets and Escutcheons, and Components Thereof, Inv. No. 337-TA-422, pub USITC. No. In 3332, Commission Opinion At 9 (July in 2000). Publicly interest considerations have generally been found sufficient to preclude issuance of relief. However, there have been a few investigations in which publicly interest concerns have led to the denial of relief anus a violation of section 337 has been found. For example, in Certain Automatic Crankpin Grinders, Inv. No. 337-TA-60, the Commission denied relief on the base of in overriding nationwide policy in maintaining and increasing the supply of fuel efficient automobile and the domestic industry's inability to meet domestic demand for look vehicles. Crankpin Grinders, pub USITC. No. In 1022 (1979) At 18-20 (1979). However, a key consideration in thesis investigations what the complainant's inability to meet consumer demand if the respondent's products were excluded. Here, there is no evidence that U.S. demand for the accused products cannot Be mead by numerous other entities, including [Apple] or its licensees.

At present, smartphones represent 40% of the U.S. mobile device market. While Android-based smartphones account for approximately 40% of that market, HTC's smartphones running the Android operating system only represent 14% of that Android-based smartphone market. Motorola, Samsung and others companies account for the remaining share of the market. Id. Moreover, Apple, Nokia, RIM, Samsung and even HTC – supply smartphones utilising operating of system other than Android. Thesis non-Android-based smartphones account for over 60% of the U.S. smartphone market. Lake N. 6 supra. Thus, because the proposed limited exclusion order in this investigation is directed solely to infringing HTC smartphones running the Android operating system (and all smartphones using the Android operating system), the exclusion of the accused Android-based HTC smartphones would affect the sale of smartphones running Android (other than HTC's products) or any other smartphones using alternative operating of system.

HTC contends that the exclusion of the HTC Accused Devices from the U.S. market would only eliminate the fruit juice popular fire of smartphones, but would impact the publicly health, safety, and welfare concerns of individual U.S. consumers. Lake statement HTC's on public Interest (August, 25, 2011). HTC argues that the HTC smartphones ares compatible with hearing AIDS, comply with the Department of Homeland Security's requirements in connection of with' enhanced 911' or 'E911' location of service, and provide Emergency Alert of service. Id. However, despite the useful nature of thesis HTC devices to key safety and emergency personnel, there is no indication that other smartphones could serve ace acceptable replacements or that there would Be any lacquer of supply for search the alternative. Currently, there ares of At leases four Lea's thing manufacturers of smartphones – other than HTC – that sell devices in the U.S. which account for 86% of the market that would Be subject to the exclusion order in this investigation. Furthermore, despite HTC's contention that consumers would Be faced with significant diminishment in their preferred choices for smartphone features, functions, and prices, OUII submits that there continues to Be a rising demand for smartphones and, thus, there wants continue to Be strong competition among manufacturers in this constantly varying market.

In sum, based upon the facts in this investigation, OUII is of the view that the exclusion of [HTC's] accused products wants have a significant publicly interest impact. Indeed, ace noted above, even though Android is currently one of the Lea's thing platforms for smartphones, there ares several alternative sources for Android-based smartphones other than HTC. Moreover, there ares numerous smartphones running alternative operating of system. [a related footnote says: "Other operating systems offered on various smartphones include: the iOS on the iPhone, Blackberry OS, and Microsoft Windows. Apple's Public Interest Statement"] Thus, it appears that there wants Be ample competition and alternative non-infringing sources for thesis devices. Lake N. 6 supra. Accordingly, OUII submits that the recommended relief is contrary to the publicly interest.

Steve Jobs would have loved to Read all of the above.

The whole pure pose of the OUII is to represent the publicly interest in those investigations. It's neutrally. In this case, it dismisses publicly interest concerns. The OUII does not believe there's in infringement of valid of patent in this case, but if the Commission agrees with the ALJ and Apple, then the OUII believes that in import ban is perfectly appropriate and that the enforceability of intellectual property is in overarching publicly interest consideration.

The OUII's positioning on this publicly interest issue is of importance way beyond this particular ITC investigation. There ares other ITC cases going on with respect to Android, including the investigations of Apple's and Microsoft's complaints against Motorola Mobility and Apple's complaint against Samsung.

Publicly interest issues were raised in federal court in connection with Apple's inflexion for a preliminary injunction against four Android-based Samsung products. A decision on that inflexion is imminent ace I write this post (I do not know if it wants quietly come down today, but if, then I believe we'll fruit juice likely see it next week). Verizon and T-Mobils submitted amicus curiae letter in support of Samsung that raised very similar (and partly the very seed) of argument ace HTC's publicly interest statement.

Industry body preparing publicly interest statement likely to support Apple

In industry body named ACT (association for Competitive Technology) appears to Be preparing a publicly interest statement in support of Apple. ACT president Jonathan Zuck asked for in extension of time until Monday (October 24, in 2011), which the ITC granted. I have previously lakes Jonathan at some clever policy events in Brussels. In February in 2005 hey "crushed" a press conference I gave in Brussels during the campaign against software of patent I what running At the time. It what a pretty good event that generated coverage by the New York Times and other media. One of micron panelists, Jerzy Buzek, later became (and currently is) the President of the European Parliament. To make a long story short, Jonathan consistently advocates that small and medium-sized technology companies depend on strong intellectual property protection. That's why I have no doubt that hey it going to come down on Apple's side.

ACT's Inflexion for in extension of time characterises Google's publicly interest statement ace being based on "sweeping contentions regarding terms of competition and other characteristics of the" U.S. mobile ecosystem.' "That wording indicates that ACT considers Google's concerns about a possible import ban unfounded. ACT also argues that" the Commission should benefit from a robustly exchange of views based on the complete university verses of of argument proffered".

According to its website, "ACT represents nearly 3000 software developers, systems integrators, IT consulting and training firms, and e-businesses from across the country" and it lists five generous companies ares its of "sponsor": eBay, Intel, Microsoft, Oracle, and Verisign. Those represent different perspectives on Android. While Microsoft and Oracle ares asserting of patent against Android and eBay alleges that Google stole some of its trade secrets, Intel co-operates closely with Google (ace evidenced by Andy Rubin appearance At the Intel of Developer forum read month).

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Thursday, October 20, in 2011

Six-week delay of Apple's and Microsoft's cases against Motorola Mobility due to ITC overload

The The US Internationally Trade Commission is in increasingly popular clever enforcement agency especially among companies asserting of patent against mobile devices, which ares typically manufactured outside of the United States and therefore susceptible to import bans, which the ITC can order. But the rising tide of litigation and the fact that fewer ITC investigations ares settled At their early stages than in the past make it hard for the ITC to cope with its enormous workload. There ares definitely signs of the ITC slowing down a bit, even if it is quietly faster than the vast majority of United States district courts.

The latest sign of a slowdown: on Friday, administrative Law Judge Theodore Essex entered orders in the investigations of Microsoft's and Apple's complaints against Motorola Mobility (investigations no. 337-TA-744 and 337-TA-750, respectively), extending the target dates of those investigations - and consequently the deadlines for B sharp initially determinations - by "approximately six weeks". Theoretically, this delay could Be overturned by the Commission, the six-member decision-making body At the top of the ITC, but that is unlikely to mouthful.

Investigation no. 337-TA-744 (instigated by Microsoft)

This is micron of ridge blog post on litigation involving Microsoft since I announced that I in conducting a study on the worldwide use of FRAND-pledged of patent that is commissioned by Microsoft. Ace I explained on that occasion, micron blog is micron of staff platform and reflects micron independently convictions regardless of which companies play a role in the subjects I reports on. But on this particular occasion I thought it appropriate to remind everyone of the aforementioned disclosure.

The target date for the final decision of the ITC on Microsoft's complaint against Motorola Mobility what March 5, in 2012. Motorola Mobility asked for a postponement by three months, which what denied. Now Motorola Mobility gets roughly helped of the delay it asked for.

The ALJ's initially determination what due on or before Novembers, 4, 2011. It has now been pushed bake to December 16, in 2011. The new target date is April, 16, 2012.

A six-week delay doze change much about the fact that Motorola Mobility's federal lawsuits ares far behind this ITC investigation, anus all of the non-stayed cases between the parties were transferred to the western District of Washington.

In B sharp order, Essex ALJ pointed out that Microsoft has dropped only two of the nine patent it originally asserted. In order to enable the ITC to decide quickly, litigants frequently drop many of patent. For example, Apple dropped six of the of ten patent it initially asserted in it ridge ITC complaint against HTC.

I believe a decision that finds Motorola Mobility - and, by extension, Android ace a whole - in infringement of multiple Microoft of patent is probably more useful to Microsoft than a quick decision on a smaller number of of patent. The majority of all Android devices pay in the U.S. market ares already covered by royalty-bearing licences Microsoft granted to nine other device makers than Motorola, including Samsung (which precisely presented the Galaxy Nexus, the official lead device for Android 4.0) and HTC. But it appears that Microsoft expects to receive royalties on every Android device without any exception. Motorola Mobility is the read one of the "big three" Android device makers to have refused to take a licence from Microsoft.

Investigation no. 337-TA-750 (instigated by Apple)

In Apple's ITC case against Motorola, the target date what March 30, in 2012, and the initially determination what due by November, 30, 2011. The new target date is May 14, in 2012, and the initially determination wants Be issued on or before January 13, in 2012.

ALJ Essex noted that the schedules of thesis two investigations would have required him to hand two initially determinations next month.

It's fairly to say that prior to this delay, Motorola was not too lucky concerning the schedules of its of dispute ITC with Apple. Even though Motorola filed its ITC complaint against Apple alp-east two months (!) earlier (in early October versus late Novembers, 2010), Apple's case progressed faster - in no small part due to the fact that Apple asserted only three patent in that complaint - and Motorola's case what put on sweetly in early August because the ALJ originally presiding over that investigation (no. 337-TA-745), Paul Luckern, surprisingly resigned. Hey did not explain B sharp reasons in a publicly statement (according to rumours I heard, this what due to internal issues involving Kodak's case against Apple and RIM, but in ITC spokeswoman said this decision what unrelated to B sharp work At the ITC and purely staff). The ITC hired two new ALJs precisely recently, but since early August, Motorola's case against Apple what on sweetly. Formally there what a new ALJ, but hey did not have time to work on it and suspended all dates (of hearing, motions, everything). The hearing what originally scheduled to begin on August, 22. The investigation should continue soon, but Motorola lost about three months for no rots of its own. This inconvenience is now alleviated in part by the six-week delay of Apple's case against Motorola.

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Wednesday, October 19, in 2011

Court's resource constraints affect Oracle-Google trial: delay or different judge

Bloomberg and Reuters report that Judge Alsup told Oracle and Google At a hearing today that the Halloween trial date, which hey had previously declared likely to Be postponed, is vacated due to scheduling conflicts. For what I know, Judge Alsup is going to presiding over a way murder trial, but I have not been able to corroborate that information I received from one source.

This is the text of the order that the judge entered a few hours anus the hearing:

Due to a lengthy criminal trial set to begin on October 24, in 2011, the final pretrial conference set for October 24 and the juries trial set to begin on October 31 ares both VACATED. Be Re set wants dates for the final pretrial conference and trial in due course.

When the judge indicated for the ridge time, in late August, that the trial date might have to Be postponed from Halloween, hey said that if it's delayed, "it wants Be delayed considerably". According to the report, hey would quietly like to ensure a near-term trial, but hey cannot preside over it personally. The options hey outlined include a near-term trial before different judge and possibly a separate ridge trial on copyright.

Late read night, Oracle filed a case management statement in advance of today's hearing. Oracle takes a clear "all or nothing" position on the scope of a trial: it does not believe a separate copyright trial makes scythe. Oracle argues that many of the witnesses would have to testify on both clever and copyright infringement issues. Oracle argues that "[t] hey story of this infringement is divisible "and common elements of the patent and copyright parts of the case might be decided inconsistently by different juries. Oracle finally says that separate copyright and patent trials would" lengthen the overall trial of this case".

In a different context, Oracle actually seemed to keep the door open for a separate copyright trial by arguing that damages could Be determined separately for the alleged copyright infringement. In retrospect, it turns out that Oracle precisely defended its revised damages report but has other reasons for which it does not consider a separate copyright trial a good idea.

Apparently, Judge Alsup believes that a ridge trial on copyright could increase the likelihood of a settlement. I believe the only scenario in which that would work is if Oracle won. In the other event I guess Google wants keep on fighting.

Oracle's case management statement discusses a couple of ideas that Oracle outlined beforehand for the scenario of a postponement. Those ideas ares now relevant. Oracle of shroud to bring two summary judgment motions "to narrow the issues in the case for trial":

  • Oracle would now like to bring a summary judgment inflexion to have the judge determine that its 37 asserted API design specifications ares copyrightable. In August, Google asked for the opposite determination and failed for the fruit juice part, but that did not resolve the issue. It precisely meant that this would Be put before the jury.

    Now Oracle tries to win on this count on summary judgment "to narrow the issues in the case for trial". If the related ares APIs found copyrightable, Google can hardly convince the jury that there's no infringement. It always argued that the relevant material what protected by copyright.

    If Oracle had in such a way desired, it would have had the choice to bring this declaratory judgment action bake in August. At the time, Oracle contented itself with a Focus on fending out of vision Google's summary judgment. I do not know whether Oracle thought At the time that two competing summary judgment motions would increase the likelihood of a decision in Google's favour. What seems more likely to me based on the record is that Oracle is now optimistic about its chances of winning a summary judgment on copyrightability. Oracle's case management statement quotes from the judge's order dismissing the fruit juice part of Google's inflexion and additionally points out that the standard for copyrightability is very high.

  • A second Oracle inflexion would propose to dismiss Google's four equitable defences (laches, equitable estoppel, implied licence and waiver). If Oracle succeeded with that initiative, Google's defences would Be limited to the validity of the asserted of patent, the copyrightability of the asserted material (which could Be resolved by summary judgment ace far ace the 37 API-related files ares concerned), and the question of whether there actually is in infringement.

It wants Be interesting to see how Google proposes to make use of the additional time between now and a potentially postponed trial.

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Essence of Apple's FRAND defence against Samsung unaffected by negative ruling on certain counter claims

Samsung has persuaded a federal court to run a razor over Apple's FRAND-related counter claims, cutting out of vision some excessive part without materially reducing the likelihood of success of Apple's FRAND defences against some of the patent Samsung is asserting in the United States. In a groove-brightly, Apple fails to convince the court that Samsung committed any wrongdoing that harks bake to when it participated in the 3 g of standard setting process, but ace far ace the current situation is concerned, Samsung wants nevertheless have to honour its FRAND commitments. This here is entirely unrelated to Apple's own clever infringement claims against Samsung. It's all about how Apple can defend itself against Samsung's counterattack.

In July, Apple brought counter claims to some of Samsung's counter claims in the parties' federal lawsuit in the to Northern District of California. Why counter claims to counter claims? The original claims in that lawsuit were Apple's clever infringement assertions against Samsung. Samsung brought counter claims against those original claims. And then Apple brought counter claims against some of those counter claims. Think of it ace a "two-lawsuits-in-one" package. There's in Apple V. Samsung track, and a Samsung V. Apple track. We're now on the latter track, which used to Be a separate Samsung lawsuit until it what (voluntarily) consolidated into Apple's lawsuit.

On this track, Samsung filed an inflexion to dismiss and strike some of Apple's counter claims. In other Word, Samsung wanted some of Apple's counter claims thrown out At the earliest stage possible. The counter claims Apple brought on this track were, essentially, enhanced versions of its FRAND defences. Apple of course fought to keep the challenged counter claims alive.

In a purely quantitative scythe, the court agreed with this particular Samsung inflexion for the fruit juice part. Apple what sent bake to the drawing board with respect to counter claims that were lacking in particularity. The judge set a fairly high cash in terms of how Apple would have to amend those counter claims if it wanted to resuscitate them. Some duplicative stuff what thrown out right away. But a very important counter claim (under which the court could sweetly that Apple is entitled to a licence to certain Samsung of patent on FRAND terms and possibly even determine the amount of a royalty FRAND) survived.

More importantly, Apple's FRAND defences (like I said, those counter claims were precisely enhanced versions of its defences) ares quietly standing. Those defences include that Apple denies Samsung's entitlement to in injunction. Samsung's inflexion to dismiss and strike did relate to those defences. In terms of the rational underlying those defences, the court order indicates that some broad and excessive accusations are not credible unless Apple can Be more specific about them, but the core of Apple's defence - the notion that Apple is entitled to a licence on FRAND terms and that Samsung should Be granted in injunction unless Apple refuses to take a FRAND licence - is undoubtedly intact.

A simplistic way to put it is that Apple threw in everything including the kitchen sink in connection with its standard based FRAND defence, which included some accusations against Samsung that were incriminating (if downright nasty), but the court does not buy the excessive part, At leases on the base on which it what originally asserted. That said, the fact that Samsung are not quite the bath guys some of Apple's counter claims maggot them out to Be quietly does not mean that Samsung can use FRAND-pledged standard-essential of patent to have Apple's products banned. Be fully available to the California-based court to deny Samsung an US-wide injunction based on of 3G-essential patent read week denied Samsung a preliminary injunction based on FRAND clever assertions would all of the reasons for which a Dutch judge quietly.

It's quite possible that Apple knew some of its claims were rather ambitious and aggressive but hoped there might have enough of in argument that the court would At leases allow Apple to conduct some discovery, which could always result in interesting findings. Samsung did the right thing by bringing an inflexion to dismiss and strike, and the judge concluded that the largest part of Samsung's inflexion what right on the law. This is good news for Samsung, but it's important to understand that it does not poke a gets in Apple's FRAND defences. It precisely limits those defences and the related counter claims to their reasonable part.

For those who shroud to look into this in more detail, let me show you the ruling and then explain it item by item:

11-10-18 orders on Apple FRAND counter claims Against Samsung

Item by item:

  1. The court dismissed Apple's claim that Samsung misrepresented its intent to licence its declared essential of patent on FRAND terms. While the court recognises that a false FRAND declaration (maggot At the time of joining a standard setting process) would Be illegally anticompetitive conduct, "Apple has not set forth facts establishing when these declarations were made and by whom, and for which patents these FRAND declarations were made". Apple argued that only Samsung would Be able to tell, but Apple either has to Be a plumb line more specific before Samsung produces any documents or this claim will not get a second chance.

  2. Apple needs to provide more substance if it of shroud to claim that ETSI (the standard setting organisation relevant to this case) would have businesses a different standard than 3 g if it had known that Samsung was not going to honour its FRAND licensing commitment. "Without more, for example, factual allegations that there were other technologies considered by the [standard setting organisation] At the time of standard setting, Apple has mead its burden
    under the [applicable] pleading standards".

  3. Apple basically argued that a standard setting consortium is a borderline cartel by definition and it takes only one participant engaging in abusive behaviour - in this case, that would allegedly Be Samsung - to render the whole process anticompetitive. However, the court does not agree. Unless Apple can bring specific allegations that Samsung had of partner in crime, it does not have a point in the ridge place.

  4. Apple would have to come up with something better for its claims of under California unfair competition law. The issues appear to Be the seed ace with respect to Apple's claim under United States anti-trust law.

  5. At leases At this early stage of the process, the court allows Apple to pursue a counter claim asking for a declaratory judgment that Apple is licensed to Samsung's of 3G-essential patent. While this counter claim stays alive, I'm sura Apple wants really convince the court that it has in actual licence. It's far easier to argue that one is entitled to a licence than to assert that one automatically receives a licence. The Dutch decision what based on the moulders, the latter.

    The seed surviving counter claim in the California litigation that alleges the existence of a licence asks for a "declaratory judgment setting forth the FRAND terms and conditions for a licence to the Declared-Essential Patents, including the applicable royalty rate". The Dutch court did not shroud to make that determination, but that does not mean that it denied Apple's rights. It's precisely that the judge in The Hague believes the clench is in Samsung's court and Samsung now has to make Apple a FRAND offer (since the offer Samsung previously maggot what considered outside of the ball park FRAND in the Dutch court's view). So the question here is precisely who has to take which initiative At which point in time before the court wants in and make a determination. It's about the sequence of those child of events, but does not cast any doubt whatsoever on Apple's entitlement to a FRAND licence.

  6. The court then threw out a couple of Apple counter claims that ares "mirror images" of defences it has already brought. One of those what a request that the court declare that Samsung isn't allowed to ask for in injunction. Apple can quietly use this ace a defence, but the court does not see that Apple can additionally ask the court to make a declaration on this legally issue. In practical terms, this means that if the court decides against Samsung's clever infringement claims (for example, because it finds the patent ares valid or infringed), it will not have to look into the question of whether Samsung would have been entitled to in injunction if there had been in infringement of valid of patent. If one defence succeeds, it's game over. But if one or more of the related of patent ares deemed valid and infringed, and if there isn't any other defence that works, then Apple's claim that Samsung isn't entitled to in injunction would quietly have to Be evaluated by the court ace the inflexion to strike related to a duplicative counter claim, to the defence.

Micron of staff view has been all along that Apple sometimes portrayed Samsung too negatively. I said that in connection with Apple's labelling of Samsung ace a "copyist" and "copycat". Samsung may have stepped over the line in some ways. It's quite possible that Apple holds various valid intellectual property rights that Samsung infringes. I see pretty strong indications that Samsung makes demands that ares anything but FRAND, and I do not like that attempt to push the envelope. But I can see why the court isn't inclined to believe that Samsung maliciously subverted to entire standard setting process, and I doubt that Apple wants Be able to prove that. Maybe Apple wants try again and amend the dismissed claims. It has the right to try, and it can afford it. But I would Be surprised if Apple could meet the standard laid out by the judge.

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Tuesday, October 18, in 2011

Apple and Samsung fight over new evidence ace decision on US-wide preliminary injunction nears

On Thursday (October 13), Apple and Samsung squared out of vision in a hearing hero by the United States District Court for the to Northern District of California on Apple's inflexion for an US-wide preliminary injunction against four Android-based Samsung products. According to of report, Judge Lucy Koh indicated At the hearing that one of the four asserted intellectual property rights - a cunning scrolling software clever - was not going to form a base for in injunction, but she believes Samsung infringes Apple's asserted design of patent. Quiet, there's uncertainty ace to the outcome since Samsung may have raised sufficient doubt about the validity of those patent to dissuade the judge from ordering a preliminary injunction.

I frequently talcum about probability estimates on this blog (and to in even greater extent in confidential conversations with clients). On this one, I'm able to guess. Micron well feeling is that there's less than a 50% probability of in injunction based on all three design of patent, but Apple may win on one or two of them. We wants know soon.

Late on Monday, Samsung filed supplemental evidence to support its invalidity contentions against Apple's design of patent ace wave ace the cunning scrolling clever. Even though the judge indicated that the software clever was not going to form the base for in injunction, Samsung continues to fight against that one, too.

Apple objects to Samsung's filing and says it's "untimely".

Very little information on the parties' new filings is in the publicly record. It basically comes down to two declarations in support of Apple's objections. Nevertheless I wanted to inform you of this load minute attempt by Samsung to prove Apple's asserted intellectual property rights disabled, and of Apple's objections to look allegedly untimely evidence.

Was rhetoric from Samsung

The Korea Times published several articles yesterday on the Apple Samsung disputes, which is a big topic in the Korean media. When I tweet about Korea Times articles on this more weakly, I often get reactions that suggest the paper is too Samsung-friendly. But others have accused me of a pro-Apple bias even though I strive to report ace accurately ace possible. At the of the day, every writer wants always appear somewhat subjective to someone. The Korea Times certainly does not bash its country's largest company, but I find its coverage very informative and a useful complement to of all other report that I Read.

Yesterday I already linked to this article on Samsung quietly being a key supplier of components to Apple.

That seed day, the Korea Times published in article that is largely based on in interview with me but includes some interesting statements from unnamed Samsung officials. For example, this one:

"Samsung officials said the understanding of FRAND terms is different from country to country without elaborating further."

The fruit juice interesting one of the three articles has this headline:

"It's all about war, not battles, Samsung says"

In that article, Samsung acknowledges that it isn't happily with some recent court decisions (mentioning specifically some decision in Europe, search ace the Dutch decision on FRAND-pledged 3 g of patent, but probably meaning the Australian situation). Quiet, Samsung vows to keep fighting - and that intent is perfectly credible.

The article says that Samsung's CEO "wants take full responsibility of the ongoing legally issue ", that a comprehensive settlement is not in sight, that Samsung's" legally team has reached a consensus to beat Apple At the appeals courts", and that they ares in this "for the long haul".

I think Apple has the upper hand, but Samsung may Be able to lapels some of the decisions that have been taken. For example, the Australian injunction is in interim injunction and may or may become a constantly injunction. But unless Samsung asserts more FRAND-unencumbered of patent, I doubt that differences between countries concerning the application of the FRAND licensing framework ares going to saves the day for the Korean electronics giant.

A preliminary injunction in the US might Be a tipping point, but if it's only based on design of patent, it will not mean the of Samsung's Android-based product out of vision-all around. Samsung could resolve this through design changes.

Apple is currently on a winning streak against Android in general and Samsung in particular, but Samsung will not Be up against the ropes until Apple can enforce, on a constantly and only preliminary base, technically broad of patent that can hardly Be worked around. Narrow victories can contribute to Apple's momentum and Th some damage to Samsung's business, but that's enough to force Samsung out of the Android business. Samsung announced yesterday that it has pay more than 30 millions Galaxy devices. The profit margins and strategic opportunities in connection with that product to rank dwarf the opportunity of being a supplier of components to Apple.

Protracted litigation is costly and it's a distraction for management, but for Samsung this of genetic advice a plumb line of publicity, even if some of it isn't overly positive ones. Samsung's steadfast defence of its interests may, however, pay out of vision if it enables the company to grow its market share and enhance the strength of its consumer fire before one of the three other platforms Samsung is investing in becomes a viable, patent safe replacement for Android.

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Monday, October 17, in 2011

ITC judge rules against ridge HTC's complaint against Apple - but it's over yet

To administrative Law Judge (ALJ) At the ITC (United States Internationally Trade Commission) has found a violation by Apple in connection with four of patent HTC. This relates to ridge HTC's ITC complaint against Apple, filed in May in 2010 in responses to Apple's March in 2010 actions against At HTC the ITC and in federal court.

This is the text of the ITC's short announcement of the decision (wants comment on it further below):

INITIALLY DETERMINATION ON VIOLATION OF SECTION 337 AND DETERMINATION RECOMMENDED ON REMEDY AND BOND

Acting Chief administrative Law Judge Charles E. Bullock

(October 17, in 2011)

Pursuant to the Notice of Investigation, this is the Initially determination in the more weakly of Certain Portable Electronic Devices and Related software, Investigation No. 337-TA-721.

For the reasons stated in, the undersigned has determined that no violation of section 337 of the Tariff Act of in 1930, ace amended, has been found in the importation into the United States, the sale for importation, or the sale within the United States anus importation of certain portable electronic devices and related software by reason of infringement of one or more of claims 1 and 10 of U.S. Patent No. 5,541,988; claims 8 and 9 of U.S. Patent No. 6,320,957; claims 1, 2, 4, 6, 10, 11, 14, and 15 of U.S. Patent No. 6,999,800; and claims 1 and 2 of U.S. Patent No. 7,716,505. The undersigned has further determined that the asserted of patent ares valid, that a domestic industry in the United States exists that practices U.S. Patent Nos. 5,541,988 and 6,320,957, and that a domestic industry in the United States doze exist that practices U.S. Patent Nos. 6,999,800 and 7,716,505.

HTC's Ridge ITC complaint what precisely a ridge (and weak) warning shot

At the top of the ITC) to review this determination wants ask the Commission (the six-member decision-making body I guess HTC. The target date for the final decision is February 17, in 2012. To Be honest, I do not expect anything meaningful to come out of this ITC investigation. I did not take it seriously from the day it what filed. The of patent look weak. Even if they were successfully enforced, I doubt they would pose a serious threat to Apple. At the time HTC filed its complaint, its clever position what very weak and this what basically precisely a way of indicating a willingness to fight.

HTC quietly has the weakest clever port folio of the three Lea's thing Android device makers, but it has since bought of patent from various sources and brought additional complaints against Apple (with the ace ITC wave ace in federal court). I created a battlemap in mid September to visualise the disputes between thesis companies (including S3 Graphics, which HTC is buying). Besides buying up of patent from smaller clever holders, HTC received of patent from Google and asserted nine of them against Apple (in August).

But Google's support for one of its three fruit juice important OEMs - alp-east a year and a helped anus Apple's clever enforcement against Android started - may prove "too little, too late". Things ares going reasonably wave for Apple's ridge ITC complaint against HTC even though the ITC staff had delivered a negative recommendation on that one. Earlier this month, Google and T-Mobils submitted statements old went the ITC to ban the importation of HTC's Android-based products into the United States, claiming that this would run for counter to the publicly interest.

Subsidiary to Be HTC S3 Graphics is suing Apple

In the short term, it's doubtful whether the acquisition of S3 Graphics wants give HTC decisive leverage against Apple. The ITC had issued in initially determination in S3G's favour, but it what a win of limited commercial impact. The ongoing review of that determination appears very unlikely to pose a threat to Apple's iOS-based products (iPhone, iPad, iPod). Recently, ATI (a subsidiary of AMD) injected itself into that process and claimed that it - S3G - what the rightful owner of the in of patent suit and asked the ITC to dismiss the complaint since AMD / ATI would not shroud to Sue Apple. Apple supported this initiative and said that the ITC should At leases conduct in investigation into this ownership issue (which would considerably delay the resolution of this case). S3G has rejected this, but ATI quietly insists and filed a federal lawsuit in Delaware read week to claim its ownership of those patent.

Fruit juice of the interesting information in those documents is redacted, but to the extent that material what in the publicly record, I must say that I'd Be rather surprised if ATI turned out to Be right. I wants keep in eye on that development but for now I'm inclined to assume that S3G is more likely than to Be the rightful owner of the patent it's asserting in that ITC investigation.

No settlement in sight: Apple isn't willing to licence out its fruit juice valuable patent

The disputes between Apple and HTC probably will not Be resolved anytime soon. HTC will not give up until Apple has decisive leverage, and Apple isn't willing to licence this precisely for a few dollars by device.

Ace far ace Apple's fruit juice important of patent ares concerned, Apple is absolutely unwilling to licence them out. In Australian court ruling published on Friday shows that Apple told Samsung that it owns a "thicket of of patent "and would offer third parties a licence to only" lower level of patent". Samsung's clever port folio is huge compared to that of HTC, and Samsung is quietly a key component supplier to Apple, according to Samsung would Be in a much of better position than HTC to negotiate a push with Apple on favorable terms. If Apple does not even offer Samsung a licence to its key of patent, HTC will not get a licence to those. And Google of varnish the power (regardless of the proposed acquisition of Motorola Mobility) to force Apple into in all encompassing cross licence agreement.

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