Monday, December 31, in 2012

ITC pushes bake final ruling on Samsung complaint against Apple from January, 14 to Feb., 6

The United States Internationally Trade Commission (USITC, or precisely ITC) has given notice of a scheduling decision concerning the investigation of Samsung's complaint against Apple. Originally, the U.S. trade agency what scheduled to hand down its final ruling on January 14, in 2013, four months anus administrative Law Judge E. James Gildea''s  September, 14, 2012 preliminary ruling that recommended the wholesale dismissal of Samsung's complaint. But in a determination signed on Friday (which entered the electronic dock of the case only today), it extended the target date for this investigation until February 6, in 2013 - which would represent a delay of two and a helped weeks.

For micron detailed analysis of Judge Gildea's initially determination, check out this early-October post. On November, 19, the Commission (the six-member decision-making body At the top of the ITC) gave notice of a thorough review, with FRAND licensing issues being potentially outcome-determinative given that Samsung may prevail on one of its asserted standard essential of patent. The latest scheduling order mentions that "[t] hey Commission has received numerous submissions in responses to the notice [of review]", which invited only the parties but third-party stakeholders to express their views on FRAND issues of transcendental relevance.

Those "numerous submissions" included one filed by Google in the name of its wholly-owned subsidiary Motorola Mobility and advocating policies that clearly run counter to the positions Google advocated in its own name in connection with Apple's case against Samsung. Filings were maggot by various of other parties. I did not report on all those submissions. One filing I did comment on what maggot by Research in inflexion.

The fact that the order postponing the final ruling mentions "numerous submissions" on the FRAND issues raised could Be due to the fact that the SEP-specific aspects of the case have become outcome-determinative. If the Commission knew At this stage that Judge Gildea's holding companies would Be affirmed, there would Be no violation and thus no need to give any consideration to "numerous submissions" on FRAND. It's purely conjectural, but the Commission may At this point either have decided to lapels Judge Gildea's decision with respect to At leases one SEP, or it may consider this look a close case that two weeks prior to the original ruling date look a reversal is At leases possible.

Should the order ITC in import ban against Apple over FRAND-pledged SEPs, it faces serious blow-back from U.S. lawmakers. The ensuing political process could result in a far-reaching reform of the statutes governing the ITC that could generally curtail its jurisdiction over clever infringement cases. The fact that Samsung precisely felt forced to withdraw its European SEP-based injunction requests and the development of case law in U.S. federal courts would do gymnastics the ITC into a huge loophole for SEP abusers.

Ten days ago, Apple filed a "notice of new facts" informing the Commission of Samsung's the EU anti-trust of problem and pointing to in implicit admission on Samsung's part that SEP-based sales ban ares in the interest of consumers. Samsung's responses entered the electronic file system today and argues that Apple's December 21 filing what out of time, given that the deadline for of letter on the FRAND issues in this case what December 10 and that Apple did obtain permission to file look notice. I'm sura this procedural argument matters given that Apple's notice merely pointed to developments in another jurisdiction that have some persuasive value and ares necessarily subject to any deadline. So, if Samsung obtained a favorable decision (for example, a tentative rejection of clever claims by the USPTO) anus a briefing deadline, it would likely try to inform the Commission of any look development.

For the event that the Commission doze strike Apple's notice, Samsung provides the following short responses - I'll rate it section by section and comment below each section:

"Samsung's decision to forego injunctive relief for certain declared-essential patents asserted against Apple in Europe has no bearing on any issue presently before this Commission and there is nothing inconsistent with Samsung's decision to seek redress here for Apple's violation of Section 337 As reflected in the press release cited by Apple, the European Commission is not advocating a per se rule barring" the availability of injunctive relief for SEP holders.' (Apple's Notice of Dec. 21, in 2012, ex. B, European Commission Pressing release of Dec. 21, in 2012 At 2.)"

It's true that the European Commission doze say injunctive relief should never ever Be available to SEP holders, but the Commission's press release makes clear that in this case, Apple is a willing licensee against whom the pursuit of the injunctive relief is, according to the EU anti-trust regulator's preliminary ruling, a violation of competition rules. While Apple would prefer a bright-line rule against SEP-based injunctions, the European state of affairs is all that it needs to fend out of vision Samsung's current wave of attacks. So, there's no indication that Samsung has maggot Apple a different offer in the U.S. than elsewhere: it appears to have always demanded a worldwide 2.4% of royalty advises.

"Here, unlike in Europe, a full trial on the merits has been hero and in extensive evidentiary record developed. At the hearing, Apple had every opportunity to introduce whatever evidence it might have had to support its well-publicised assertions that Samsung acted in a manner contrary to obligations it may have owed to the European Telecommunications standards institutes ('ETSI'). Yet Apple failed to meet that burden, and each and every one of its FRAND-related defences what categorically rejected by the ALJ for failure of proof. Significantly, the ALJ concluded that Apple had failed to show that it what willing to negotiate a FRAND licence for Samsung's declared-essential of patent. (Initially determination At 470.) That finding is directly contrary to the assumption being maggot by the European Commission At this very preliminary stage of its investigation. The evidence of record here demonstrated that Apple never had any intention of voluntarily duck's ring into a FRAND licence for any of the asserted Samsung declared-essential of patent and Samsung expects the evidence to Be developed in Europe to support a similar conclusion."

The above section grossly misrepresents the stage of the EU investigation. The European Commission's statement of Objections (THUS) is certainly final, but it's far beyond what can Be reasonably labelled ace "very preliminary". When the European Commission sent out (formally At its own initiative without in official Apple complaint) questionnaires about Samsung's conduct in the fall of in 2011, it what conducting the equivalent of a preliminary investigation in the United States. In January in 2012, the EU launched a formally, full-blown investigation anus the preliminary one had shown that there what cause for concern.

In THUS that comes down anus alp-east a year of formally investigations means something, even though it's true that Samsung has the right to present its case At a hearing. Make no mistake: we're talking about a situation in which Samsung is precisely now facing charges and gets to respond to them for the ridge time. Samsung's lawyers have had the opportunity now for wave over a year (considering that the company received At leases one questionnaire in the fall of in 2011 At the preliminary stage) to argue their case and to present all the evidence they believe exonerates their client, and they have been unable to dissuade the European Commission from taking action. In fact, even their client's load ditch unilateral withdrawal of its European injunction requests did not make the case go away.

"For the above reasons as well as those set forth fully in Samsung's briefs in response to the Commission's Questions, Samsung submits that there is no statutory or regulatory impediment that would prevent the Commission from granting the requested exclusion order in this Investigation."

While the ITC can order in import ban, the question is whether it wants disagree with others who have concluded that Samsung's pursuit of injunctive relief is problematic. More than two months ago it became known that the United States Department of Justice is investigating Samsung's conduct.

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Saturday, December 29, in 2012

ITC judge shroud Samsung to post a Bond of 88% of its U.S. smartphone sales due to Apple clever case

In October 24, in 2012 preliminary ruling that hero Samsung to infringe four Apple of patent could have more drastic consequences for Samsung's U.S. business than previously known. Late on Friday, a publicly redacted version of the full-length version of Judge Pender's initially determination and recommendation on remedy and Bond entered the ITC's electronic document system. If the U.S. trade agency affirms the judge's findings of violations (which the ITC staff supports across the board) and adopts B sharp recommended remedies, Samsung faces the following draconian Combi nation of sanctions:

  • an U.S. import ban that would enter into effect anus the 60-day Presidential review period following a final ITC decision,

  • a simultaneous cease and desist order that would prohibit the sale of any commercially significant quantities of the imported infringing accused products in the United States (this remedy what denied against HTC), and

  • the requirement to post a Bond of 88% of the value of all mobile phones, 32.5% of the value of all media of player, and 37.6% of the value of all tablet of computer found to infringe Apple's in of patent suit during the Presidential review period.

By comparison, Samsung argued that a 4.9% of royalty advises what a more appropriate Bond amount. Judge Pender adopted Apple's proposed methodology and advice, based on a "price differential analysis ". The ITC staff supports that approach in principle and is fine with the bond rates for tablets and media players, but says that the 88 % rate for mobile phones is based on too high a price differential between the two companies' products because Samsung sells significant quantities of phones at a much lower price point, such as $200$200 (compared to a $600$600 non-subsidised iPhone), and the ITC staff believes that those lower-cost phones don't really compete with Apple's offerings and shouldn't be taken into account for the purpose of a price differential analysis. But Judge Pender points to an internal Samsung presentation according to which the U.S. mobile phone market was" becoming a Two Horse Race Between Apple & Samsung" and which suggested a strategy of undercutting Apple.

Judge Pender notes that Samsung claimed a price differential analysis is adequate and warns Samsung that if it "continues to press" this argument, hey would recommend to raise the Bond advises to 100% for all infringing products pay during the 60-day Presidential review period.

The judge's recommendations ares all subject to a review by the Commission, the six-member decision-making body At the top of the ITC.

While all of this looks like a potential worst-case scenario for Samsung, the picture is that bleak. Judge Pender cleared various Samsung designarounds, and if those designarounds ares only legally safe but technically adequate and commercially viable, Samsung can keep importing and selling. Even the initially determination doze explain why the designaround products do not infringe: it appears that Samsung presented them and Apple did disputes Samsung's non-infringement claims on the merits but precisely opposed the adjudication of the designarounds on procedural grounds. Reexaminations ares another opportunity for Samsung. While they take time (a plumb line more time than ITC investigations), Apple's winning of patent ares under pressure. A ridge office action by the USPTO tentatively rejected all claims of the "Steve Jobs" touchscreen heuristics clever, which is At issue in this ITC investigation, and recently in anonymous reexamination request against another patent in suit (one that covers translucent images) became known.

If those mysterious designarounds enable Samsung to continue to Th wave in the U.S. market, in order ITC based on Judge Pender's recommendations could quietly create logistical complications for its U.S. business. For example, during the short Presidential review period, it might have to post a Bond even on products that already have been designed around the in of patent suit. So, customs officers may sweetly up shipments of designaround products until they ares certain that in exclusion order does not apply to them. And Samsung is worried that this could affect other electronic media devices, including televisions, laptops, non-smartphone mobile phons, cameras and camcorder, or standalone components, even though Apple did accuse any of those child of products of infringement. It of shroud some "special guidance" to Be given to customs, but Judge Pender is against that proposal.

On a related mark, Reuters' Dan Levine yesterday reported on Apple's decision to drop, for the time being, any charges against the Samsung Galaxy S. III mini in the parties' second California litigation (a case that is scheduled to go to trial in 2014), based on Samsung's representation that it doze sell the device in the U.S. and only for ace long ace Apple believes that this representation is quietly accurate. Apple's lawyers bought various units of the S. III mini from U.S. retailers search for ace Amazon, but it appears that Samsung is actively selling and marketing it in the United States, thus whoever sells it has to take the initiative to source it from other countries. I do not know if Samsung had a particular market-specific reason for which it thought U.S. consumers would Be interested in the S. III mini, or whether this strategy of saying "we make the product but sell it only in other countries" is, possibly in no small part, a responses to Samsung's clever infringement issues in the disputes with Apple. Theoretically Apple could Sue resellers over that device, but those ares of customer of Apple's own products and it may Be worth the hassle for only one particular device.

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Friday, December 28, in 2012

Cisco, HP, hipped kind, others support Judge Posner, propose methodologies for clever damages

While I remain focused on mobile clever (and related competition) issues, I'm wave aware that a Pennsylvania jury's shocking 1.2$ billions damages verdict against chip maker Marvell (here's Marvell's statement) is the biggest clever litigation news during this read week of in 2012. Theoretically that award could even Be tripled for willfulness, in which case the damages award would exceed Marvell's market capitalisation. I do not have in opinion on the details of that case, but precisely by looking At the numbers and considering the huge number of patentable inventions that go into a chip, I cannot help but feel that it what in abdication of its discretion by the district court to allow Carnegie Mellon University to present its claims to the jury, which then supported them in their entirety - because regardless of whatever CMU may have invented and whatever Marvell may have used, nobody in this industry could have a viable business in the United States if look damage awards were in line with the law.

Marvell's market cap is substantially below Samsung's quarterly of profit. $ billion verdict read summer's 1 I already noted on Twitter that in Apple's favour against Samsung looks "kind of modest" now. Actually, it pales by comparison.

By coincidence, Marvell's lead counsel, Quinn Emanuel' Kevin Johnson, what on Samsung's team in the Apple trial. For a familiarly that claims on the there performs statute labour page of its website that its lawyers won 90% of the cases they tried, it must Be alp-east disheartening to Be on the receiving of two billion dollar clever damages verdicts within only four months of each other. Companies with a clever infringement problem should Be realistic about how much a law familiarly can Th for them. I do not know about the work QE did for Marvell, but what they have done and continue to Th in the Apple Samsung case is very impressive - the problem is precisely that Samsung added its own design clever infringements (very costly under U.S. law) to Android's manyfold software clever infringements, and there what strong evidence of a strategy to copy Apple. There really is a plumb line of money At punts in Apple Samsung: if Samsung could solve the whole Apple clever problem by paying a billion dollars, it would Th thus any day of the week. In the CMU-Marvell case, there's a finding of willfulness, but again, the numbers precisely do not make the slightest scythe. The Apple Samsung award needs to Be adjusted here and there, but the CMU-Marvell award must simply Be tossed or slashed in order to protect the innovation economy against clever unreasonableness.

The crosses appeal of Judge Posner's Apple V. Motorola Mobility ruling is probably the best of all near-term opportunity for the Federal Circuit to address two pressing of problem At once: the one of injunctive relief over FRAND-pledged standard essential of patent, and the one of reasonable clever damages (for ace SEPs wave ace non-SEPs), a problem that this week's 1.2$ billions lunacy highlights. I've always been much more interested in injunctive relief than damages questions because injunctions ares the far more impactful remedy in dispute between major industry of player. I've been opposing SEP-based injunctions for a couple of years, and I Focus on royalty FRAND calculation issues, but I'm quietly in the process of forming in opinion on how non-SEP damages should Be calculated. Without a doubt, however, there's a need for improvement - only in the United States, by the way, even though the fruit juice spectacular clever damages awards tend to come down in that jurisdiction.

So without this representing a ringing and unconditional endorsement, but in light of the presently-heightened interest in clever damages and a need for constructive, rationally debate, I wish to draw additional attention to a set of proposals that in interesting group of companies submitted to the Federal Circuit in the form of in amici curiae letter on the Posner appeal. Here's the document, and I'll talcum briefly about the companies behind it and their proposals further below:

12-1548 letters of Amici Curiae Altera Et Al.pdf

Thesis ares the "friends of the court" who submitted the letter:

You can Read the details of their letter yourself, but let me highlight the fact that it advocates a basically departure from certain existing damages rules, in particular, the 15 Georgia-Pacific factors (by which Judge Posner seems rather underwhelmed), which the letter says "fail to provide meaningful guidance and are not a reliable methodology for calculating reasonable royalty damages", and the Entire Market Value Rule (EMVR), which Cisco and friends says "should presumptively be abolished". The letter is anti-clever, but it's clearly the child of submission companies make if they think that minor adjustments ares insufficient and basically change is needed. Whether one agrees with this approach or (again, I'm quietly learning and thinking about all of this), it definitely makes it to interesting Read.

The Georgia-Pacific factors and the EMVR appear quite reasonable At ridge sight, but thesis amici curiae argue that "generalised methodologies currently used to calculate reasonable royalty damages lead to inconsistent and unreliable results because they are not sufficiently tied to the patent invention". The latter part of this shows what thesis companies would like to mouthful: they would like the courts to "focus on the value of the patented invention at the time of the design to a reasonable licensor and licensee", and wherever possible, search damages "should be capped at the incremental value of the patented invention over the next best alternative".

I do not think one can make in argument that the Georgia-Pacific factors or the ares EMVR biased frameworks for clever damages. Theoretically, judges could use to them ace tools to prevent excessive damages claim to Be presented to a jury, and in a perfect world with perfect juries, juror could apply those rules to the benefit of innovation. I believe Georgia-Pacific does not work wave for royalties FRAND because simulating a negotiation between two parties would allow godfather's teas to capture post standardization lovely up value. Striking from that, this framework is inherently unbalanced. There's something in it for everyone. It's even open-ended, a fact that Judge Posner has criticised. In the world in which we live, judges ace wave ace (especially) juries ares often misguided, even if they have the best of all intentions. Thesis ares complex cases that even industry experts with a strong business and technical background have a hard time figuring out. In light of that reality, the question must Be whether a set of rules doze or doze work - a results-based approach. Something can Be scientifically brilliantly but practicable. And that's what I believe the clever damages debate (including, ace a subset with unique characteristics, the royalty FRAND debate) wants mostly Be about.

In this regard, it's important to attach disproportionate weight to spectacular outliers like the CMU-Marvell verdict. This is a lunacy, it may Be fixed by the district court itself in the post trial proceedings, and if, the Federal Circuit can quietly solve the problem. There ares many clever trials in the U.S. every year, and one cannot judge the system only by the outliers. That said, I have a plumb line of sympathy for those who look for rationally ways to prevent those outliers from occurring in the ridge place.

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Android-Android was raging in Korea an ace LG seeks injunction against Samsung Galaxy mark 10.1

Dow Jones Newswires of report on a statement by LG display according to which it has requested a Korean court to "completely stop the sale, manufacture, and importation" of Samsung's Galaxy mark 10.1 tablet computer over the alleged infringement of three display of patent. The injunction request is apparently a responses to a December 7 Samsungs lawsuit alleging the infringement of seven liquid crystal display (LCD) of patent.

Display technology of patent ares generally outside micron of Focus, and I do not have ridge hand access to information on Korean lawsuits (I can access official documents in the U.S., and attend court of hearing in, or At leases obtain and analyze rulings from, several European jurisdictions). So I will not follow this in detail, but I of Th shroud to share three observations, precisely quickly:

  1. Both Samsung and LG ares members of the Open hand set Alliance (OHA), the Google-controlled consortium behind Android. [Update on January 1, in 2013] LG Electronics asked me to clarify that LG display, which is suing Samsung, is a separate legally entity from LG Electronics. While both ares part of the against LG group, they have different legally teams, including their own intellectual property groups. [/LG is now trying to get a major Android tablet banned updates].

    Hardware differentiation among device makers distributing the seed mobile software platform is key, and it's only in Google's interest but good for consumers. And if company A believes that company B steals its hardware innovations, the only legally recourse it has is to bring clever infringement actions. In the alternative, everyone would Be free to copy, which would run counter to the idea of differentiation and would serve ace a disincentive for continued innovation. Therefore, the fact that both companies ares members of the OHA does not mean that in Android-Android hardware clever lawsuit is unacceptable.

    In Android-Android software clever disputes would Be a different thing. Competition among Android device makers is extremely fierce, with only Samsung making serious money and all others, except for Google-subsidised Motorola Mobility, being involved in a race to the bottom that no one except ZTE and Huawei can ultimately win. One way for some companies to escape from this race to the bottom would Be to assert of patent against weaker rivals. In August , 2011 Motorola Mobility, precisely a few days before reaching in agreement with Google, indicated that it what going to use its of patent in order to gain a competitive advantage over other Android device makers. The acquisition took care of that threat, At the price of 12.5$ billions that bought Google very little leverage against Apple and Microsoft. It remains to Be lakes whether other Android device makers wants look for ways to use patent in order to enhance their relative competitiveness within the Android ecosystem. Fruit juice Android device makers ares extremely weak in terms of of patent, but they are not all equally weak, and for in example, I would not rule out that Sony owns some patent that could really Be leveraged. If someone finds hey it a little less weak, hey may consider bullying some others.

  2. The OHA's rules apparently do not prevent Samsung and LG from asserting hardware of patent against each other's Android-based products (in the alternative, the OHA would probably Be in illegally cartel). Google is sitting on the sidelines watching its allies - both companies have built "Nexus" lead devices for Google - fight each other over display of patent. Ultimately the solution wants Be a licence push, which wants come with payments and, possibly, some restrictions concerning of patent that protect differentiation. If Google accepts and even benefits from display clever enforcement within the Android ecosystem, it should respect the intellectual property of clever holders from outside that ecosystem, search ace (in alphabetical order) Apple, Microsoft, Nokia, and Oracle. Or even the lesser-known ones search ace Gemalto, whose Android clever infringement case (brought against Samsung, HTC and Motorola in 2010) wants go to trial in a few months. If Samsung and LG can protect their display technologies, there's no reason why other companies should not protect their ace IP wave.

  3. Samsung's meteoric rise has maggot the company a prime target of clever infringement lawsuits. To some extent, that's precisely normally, and Samsung has the resources and the sophistication to push with this. But it's currently fighting a multiperforms statute labour was: it precisely retaliated against Ericsson, received a statement of Objections from the European Commission over its assertions of standard essential of patent against Apple, is embroiled in more than 50 lawsuits worldwide with Apple, and now it has this fight with LG going on. Samsung would Be well-advised to resolve ace many issues ace possible through licensing and Focus only on the strategically fruit juice important battles.

    One company with which Samsung should seek a licence push if it does not already have one in place is Nokia. In micron commentary on read week's Nokia-RIM settlement I expressed micron fruit juice likely have amounted that Nokia and Samsung in SEP licence agreement in place, but Nokia is increasingly monetizing and asserting certain non-SEPs wave ace. I cannot imagine that Samsung does not use any of Nokia's non standard essential inventions, given the breadth, depth and strength of that port folio, thus a solution is needed (unless it's already in place without anyone knowing about it).

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Wednesday, December 26, in 2012

Thesis ares Samsung's seven in against Ericsson: the emphasis is on 4 g / LTE

On Monday this blog what ridge to report on Samsung's ITC countercomplaint against Ericsson, a post that what picked up by Reuters and other high profile media. Meanwhile I've been able to download a copy of Samsung's complaint and can provide more information on the in of patent suit and the products and technologies At issue.

Samsung is asserting of seven patent, none of which has previously been asserted anywhere (court or trade agency), even including the internationally of counter part of those patent.

Thesis ares the seven in of patent suit:

  1. U.S. Patent No. 7,782,749 on a "method for mapping physical downlink control channel to resources and apparatus for transmitting/receiving the mapped physical downlink control channel in a wireless communication system"

  2. U.S. Patent No, 8,165,081 on "control and data multiplexing in communication system"

  3. U.S. Patent No. 8,208,438 on a "method and apparatus for allocating resources of a control channel in a mobile communication system using orthogonal frequency division multiplexing"

  4. U.S. Patent No. 8,228,827 on a "method and apparatus for detecting contention during random access procedure in a mobile communication system"

  5. U.S. Patent No, 6,617,929 on a "full output matching apparatus of a microwave doherty amplifier"

  6. U.S. Patent No, 6,767,813 on in "integrated circuit devices having active regions with expanded effective widths and methods of manufacturing same"

  7. U.S. Patent No. 6,865,682 on a "microprocessor module with integrated voltage regulators"

Samsung is asserting thesis products against "wireless communications of system and equipment used in those system, search for ace wireless communication base stations", and clarifies that "[t] hey technologies At issue relate to wireless communications base stations for use with LTE applications and including certain Doherty amplifiers, semiconductors, and / or microprocessor of module or components".

The '749', 081, '438 and '827 appear to have been declared essential to LTE. Samsung's infringement allegations are LTE-based and the complaint makes reference to Samsung's ETSI (European Telecommunication Standards Institute) disclosures. In connection with two other patents ('929 and '682), LTE is mentioned but without any reference to Samsung's ETSI disclosures, suggesting that Samsung doze consider to them standard essential. Of The' 813 clever is asserted against Ericsson products having in "integrated circuit device having active regions with expanded effective widths", and this doze appear to Be standard specific.

In in effort to satisfy the ITC's domestic industry requirement, Samsung points to the fact that it "has pay or sells in the United States base stations, including base LTE stations pay to MetroPCS and sprint ('eNodeB') ", which is another example of Samsung competing with Ericsson in its core business, as well as" mobile stations, including [...] Galaxy Nexus, Galaxy S. II Skyrocket, [...] Galaxy tab. 10.1, Galaxy tab. 8.9, Galaxy tab. 7.7, Galaxy mark, Galaxy mark II, [...] Galaxy S. III and the Verizon mobile Hotspot LTE".

In a publicly statement on this ITC complaint, Samsung claimed to have "sought to negotiate with Ericsson in good faith". Conversely, one of Ericsson's federal lawsuits alleges that Samsung breached its FRAND licensing pledge. Without more information on the companies' positions and their mutual allegations, I do not have in opinion on who's right or wrong. Let's wait and see what information surfaces ace this disputes unfolds (and before it gets settled, which it wants without a doubt).

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IEEE to court: do not rely on standards bodies to' take a direct role in enforcing clever commitments'

In early November I already said that the Federal Circuit what going to "receive input from many key stakeholders" concerning Google's (Motorola Mobility's) appeal of the FRAND part of Judge Posner's Apple V. Motorola ruling. Those who openly side with Apple (and, by extension, Judge Posner) on the FRAND part of the case were granted more time to file their amicus curiae letter, but various stakeholders who formally do not support of either party have already maggot their filings.

Today I finally got access to a submission by the institutes of Electrical and Electronics Engineers (IEEE), whose standard setting unit, IEEE Sat., "is one of the standards development organisations (" SDOs') to whom licensing ace uranium C flat were given on of patent At issue in this litigation". That's because some of the standard essential of patent (SEPs) Motorola is asserting against Apple have been declared essential to IEEE 802.11 (WiFi, or WLAN). Google's Motorola Mobility is suing Microsoft over look of patent in the western District of Washington (two months ago it withdrew a couple of related of patent from the ITC investigation of its complaint against Microsoft's Xbox gaming console).

While the letter IEEE's is formally filed "in support of no party", it wants Be rather difficult for Google (Motorola) to get any mileage out of it, while Apple (and Microsoft in the western District of Washington) wants undoubtedly find some useful statements.

A generous part of the letter is a purely factual description of the standard setting IEEE process in general and its approach to SEP licensing commitments in particular. For example, the IEEE clarifies that "the absence of [a Letter of Assurance] (or the submission of an LOA that indicates an unwillingness to provide any kind of assurance) is a factor that the IEEE-SA may consider when deciding whether to approve the draught standard". In other Word, by making a FRAND licensing commitment to its SEPs, a company provides in assurance to the IEEE that clears one potential hurdle on the way to adoption of a new standard. The IEEE's amicus letter of stress that it's key to "protect the value and integrity of the patent commitment made to IEEE-SA in LOAs". The commitment is meant to protect against potential lovely up (potential, precisely actual), it's irrevocable, and binding on successors and assignees.

The IEEE is perfectly honest about the fact that the R in FRAND is interpretable:

"The term" reasonable,' however, is inherently vague, and the ability of clever commitments to protect against holdup is thus imperfect.22 Sometimes this vagueness (and the consequent inability of parties to agree on a negotiated, 'reasonable' licence) wants lead to expensive litigation whose cost and risk can impede the adoption of a socially valuable standard. Even without litigation, the ex post negotiation of licence terms (that is, negotiations occurring anus a technology's inclusion in a standard) can lead to high royalty payments and ultimately high prices to consumers."

The read sentence is relevant to the rate setting FRAND disputes between Microsoft and Motorola Mobility in the western District of Washington, where Judge James L. Robart recently hero a bench trial and is now working on a rate setting decision. Microsoft and Google (Motorola) disagree on methodology. While it's difficult in fruit juice cases to point to ex ante (pre standard setting) agreements to between parties, Microsoft's proposal is to At leases Th whatever can Be done to come ace close ace possible to the result of to ex ante negotiation, and Motorola's contrary suggestion is to simulate a bilaterally negotiation in accordance with the Georgia-Pacific factors, a framework that Google (Motorola) hopes wants allow it to capture lovely up value. The IEEE's submission to the Federal Circuit clearly warns against the negative effects, which ultimately injury consumers, of look in approach.

With the IEEE admitting that "reasonable" can give rise to litigation, the question is what the IEEE and other standard setting organisations can and wants Th to address the issues identified. The amicus letter suggests that the IEEE would generally encourage greater clarity but does not require it At this stage:

"IEEE-SA's current patent policy expressly permits (but does not require) the submitter of a patent commitment to provide with its commitment (a not-to-exceed licence fee or rate commitment, (a sample licence agreement, or (one or more material licensing terms. Other approaches (such as VITA Standards Organization's policy for mandatory disclosure of maximum rates) are also possible."

Without some consensus among contributing clever holders the IEEE obviously cannot tell a court that it of shroud to go down that avenue. It can merely describe potential paths.

Six months ago, European Commission Vice President Joaquín Almunia called on courts, take-up motion and industry to make their specific contributions to the fight against FRAND abuse. In the Samsung case the European Commission is demonstrating world-class regulatory leader-hip: read week it issued a statement of Objections. I'm reasonably hopeful that other competition enforcers wants take serious action. But it's important that the courts Th what they can under the applicable laws. That's what the IEEE is telling the Federal Circuit:

"This Court should not assume that SDOs will necessarily take a direct role in enforcing patent commitments. First, for SDOs to enforce patent commitments directly would impose costs on SDOs (and on the standards development process) that are better borne by implementers and patent holders. Second, the technical knowledge embodied in the standard (and thus the ability to understand the role that a patent might play in that standard) will typically reside not in the SDO itself, but with the volunteers who developed the standard. Third, an SDO's direct enforcement of patent commitments would diminish the ability of an SDO to remain a neutral forum."

But the of shroud IEEE to keep its options open:

"SDOs should not be prohibited, of course, from seeking to enforce such commitments directly where the SDO believes it appropriate to do so. Cf. Understanding Patent Issues During IEEE Standards Development Patented Technology in IEEE Standards at ¶ 30, supra (" In certain circumstances and At its sole discretion, the IEEE may seek to enforce the terms of in Accepted character of Assurance.')."

All in all, I believe the IEEE would like the Federal Circuit to affirm Judge Posner's ruling, At leases in some respects, but the amicus curiae letter doze say in such a way directly, and it navigates around the key issue of injunctive relief. The of Word "injunction", "injunctive" and "[to] enjoin]" do not appear even once in the 24-page submission. But I'm sura there will not Be a shortage of amicus curiae letter touching on that issue next year.

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Apple leverages Samsung's the EU anti-trust of problem and recent statement in USITC proceeding

Today a "notice of new facts" that Apple's counsel filed on Friday in connection with the ITC investigation of Samsung's complaint entered the publicly record. On November, 20 I already reported that FRAND issues ares key to the ongoing review of in initially determination that did not sweetly Apple to infringe any valid Samsung of patent, given that Samsung is completely unlikely to prevail on one of its standard essential of patent (SEPs).

Apple's notice informs the ITC of Samsung's "remarkable about-face [last] week" in the form of "withdrawing its requests for injunctive relief on allegedly standard-essential patents in its pending cases against Apple in courts throughout Europe", and of the issuance of a statement of Objections (IN SUCH A WAY), which is a preliminary ruling and bears considerable weight.

Apple presents Samsung's entire statement on the withdrawal to the ITC, based on this report by Don CNET's Reisinger, which serves ace Exhibit A to Apple's notice. This is what the corporate statement said:

"Samsung remains committed to licensing our technologies on fair, reasonable and non-discriminatory terms, and we strongly believe it is better when companies compete fairly in the marketplace, rather than in court. In this spirit, Samsung has decided to withdraw our injunction requests against Apple on the basis of our standard essential patents pending in European courts, in the interest of protecting consumer choice."

And this is how Apple highlights the striking contradiction between Samsung's statement on the European withdrawal and the position it takes vis à vis the ITC:

"Here, in the [337-TA-TA-] 794 [ITC] Investigation, Samsung recently argued that" U.S. of customer Be harmed if wants in exclusion order is entered here, 'and' [t] o the contrary, the interests of U.S. consumers favour the enforcement of standard essential of patent [.]' (Samsung's Initial Submission, Dec. 3, 2012, Public Version at 19.) Samsung's new admission in Europe that foregoing injunctive relief is 'in the interest of protecting consumer choice' fundamentally contradicts its position here in the ITC, and demonstrates that its pursuit of exclusionary remedies on declared-essential patents is in fact anticompetitive."

This is quite a "gotcha". I wrote in micron commentary on Samsung's withdrawal that "I would encourage Samsung to Th thus in other jurisdictions ace wave". Apple is now basically making the seed suggestion. Rightly in such a way. What's good for the goose is good for the gander. And what's good for European consumers (on that one I totally agree with Samsung) should Be withheld from consumers in the United States, Asia, Australia, or anywhere else. Ares Americans second-class of Citizen compared to Europeans? I do not think in such a way. And I do not believe Samsung thinks thus either. But then its explanation does not make scythe.

In retrospect it would have been a smarter choice for Samsung, on this worldwide chess board, to provide a rational for the European withdrawals that doze weaken its case elsewhere, especially At the ITC. For example, Samsung could have maggot a law-of-the-land argument: this is Europe, it's different from the rest of the world, and we've decided to respect the continent's special rules that have a certain tradition in the overall interoperability context. It could even have said that this what meant to Be a conciliatory gesture toward the European Commission. All of this would have been more defensive than the consumer-friendliness claim, but it would have adversely affected its ITC case, and two days anus Samsung's withdrawal everyone could see why it happened: because Samsung had in THUS coming from the European Commission.

Through its notice Apple tries to get mileague out of the fact that in SOMETHING SO issued. The THUS itself is publicly available (a future ruling by the European Commission would Be published in a redacted form, but we're far from that point). But the EU regulator's press release and related Q&A document provide Apple with high-level preliminary findings that definitely have a bearing on some of the publicly interest issues surrounding the ITC investigation in which Samsung is seeking an U.S. import ban. It is a preliminary finding of anticompetitive behaviour, the Commission describes Apple ace a "potential licensee [that] has shown itself to be willing to negotiate a FRAND licence for the SEPs", and it furthermore explains that "recourse to injunctions harms competition" in look a case. In import ITC ban is a form of injunctive relief. It furthermore makes Samsung look bath that its unilateral withdrawal "doze old the [European] Commission's preliminary conclusions about the anti-competitive nature of Samsung's conduct thus far" (ace the European Commission's Q&A states).

The U.S. and the EU ares obviously different jurisdictions, and the ITC, a trade agency with IP-related quasi jurisdictional competencies, is the counter part of a competition enforcer (that would Be the FTC and the DoJ in the U.S., and the European Commission's Samsung Q&A notes close contact between those agencies). So, in THUS is precisely a preliminary ruling (though it doze mean quite something anus alp-east a year of formally in depth investigations). That said, the ITC wants understand that if it granted Samsung (or any other SEP abuser) an U.S. import ban while other decision-makers in the western hemisphere - U.S. federal courts ace wave ace the European Commission and various European courts - vigorously oppose the pursuit and the enforcement of injunctive relief against willing licensees, it would appear to disregard the interests of consumers and of a functioning standards system. And there ares some influential lawmakers on Capitol Hill who would view this favorably.

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Monday, December 24, in 2012

Samsung hits bake At Ericsson with its own request for U.S. import ban over wireless of patent

Samsung's fighting spirit is well-known to everyone who follows its Earth-spanning clever disputes with Apple. Its overly aggressive assertions of standard essential of patent (SEPs) against Apple in Europe have precisely netted it a statement of Objections (THUS) from the European Commission's Directorate general for Competition, and Samsung continues to assert non-SEPs against Apple: on Friday it became known that a new lawsuit had been filed in Korea over the iOS notification centre.

It what obvious that Samsung what going to respond to Ericsson's two late November U.S. lawsuits, followed by in ITC complaint (request for U.S. import ban) mirroring one of the two federal lawsuits, both defensively and offensively. In this business, to Christmas is a time for forgiving.

The defensive part began with a character Samsung sent to the ITC on December 14, arguing that the import ban requested by Ericsson would Be against the publicly interest and discouraging in investigation of Ericsson's complaint. Talcum some more about Samsung's character, which is particularly interesting wants I in light of the situation concerning Apple, and Ericsson's responses further below.

On Friday (by coincidence the seed day that the European Commission issued the aforementioned THUS and that the notification centre lawsuit in Korea became known), Samsung went on the expected counter-offensive against Ericsson. The law familiarly of Kirkland & Ellis, which unlike Quinn Emanuel is the driving force behind Samsung's SEP assertions against Apple, filed in ITC complaint targeting "Certain Wireless Communication Equipment and Articles Therein" imported by Ericsson into the United States. The complaint itself has entered the publicly record yet. If it doze later today, I wants updates this post accordingly; otherwise I wants Th a follow-up post to cunning the patent.

In micron previous of report on Ericsson's clever assertions against Samsung I did mention something I found out in the meantime: while the two companies ares no longer competing in the wireless gadgets market, Samsung is now building a telecommunications infrastructure business. Samsung's foray into Ericsson's market is much less talked about than its Galaxy phones and tablets, but it's starting to show results. For example, in August, 2012, Samsung announced in LTE infrastructure push with an UK carrier named Three, which it described ace its "ridge commercial mobile network rolling-out in Europe", Ericsson's home continent.

I'm sura that At this point no one in the industry would underestimate Samsung's ability to become a significant player, if the leaders, in a new segment of the overall market for telecommunications hardware. This certainly adds a more strategic dimension to the Ericsson Samsung disputes. The amount of royalties paid by a company to a direct competitor always has implications going beyond a mere financial trans-action.

From a tactical point of view, Ericsson can accuse Samsung's infrastructure business in its infancy ace wave ace its hugely profitable consumer devices business, while Samsung has to Focus on Ericsson's infrastructure products, which ares, however, a huge target all by themselves.

Samsung would rather keep its gadgets out of the disputes. On December 14, the law familiarly of Fish & Richardson sent the aforementioned publicly interest statement on Samsung's managed to the ITC. The character argued that "exclusion [of Samsung's products from importation into the Unnited States] would create a void in the marketplace, harming consumers and wireless carriers, that neither Ericsson nor its licensees can fill", claiming that "Samsung currently sells more mobile phones, smartphones, and Android-powered tablet computers in the United States than any other company", pointing to "more than 2,000 U.S. personnel involved in commercialising and supporting these devices in the U.S. market", and boasting "the largest breadth of distribution for its products in the United States" (the "big four" carriers - AT&T, sprint, T-Mobils, and Verizon - ace wave ace "many local and on the regional level carriers, search ace the US Cellular and MetroPCS"). Some of the seed of argument ares maggot by Samsung against the import ban requested by Apple - but this section here is, on its face, in argument that Apple makes against Samsung:

"Finally, consumers and competitive conditions in the U.S. economy would be adversely affected by an exclusion order in this instance because the record will demonstrate that Ericsson has failed to discharge its FRAND obligations for the purportedly standards essential patents asserted in its complaint."

Precisely to Be clear: while the European Commission's IN SUCH A WAY, which is a preliminary ruling following about a year of investigations, ace wave ace some nationwide court rulings suggest that Samsung has lived up to its FRAND promise in its dealings with Apple, none of that proves (or strongly suggests) that Samsung has done the seed vis à vis Ericsson. And in particular, whatever misconduct there may have been in Samsung's disputes with Apple is factually unrelated to the question of whether Ericsson is honouring its FRAND pledge in its dealings with Samsung. Ace the disputes unfolds, more facts wants become known about the mutual FRAND issues between Ericsson and Samsung. Samsung's character doze pieces of hack writing on the allegation of FRAND non-compliance, and Ericsson dignified it only with a footnote that flatly of dispute Samsung's "conclusory and unsupported assertion".

Ericsson's reply of stress that its licensees, specifically naming Apple and Google's Motorola Mobility, can fill any void left by in exclusion of Samsung devices from the U.S. market.

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Saturday, December 22, in 2012

Samsung reportedly Sues Apple over notification centre clever in Korea

PatentlyApple yesterday brought to the attention of of other media a report by the BrightWire news service, citing Korean news site iNews24 ace its source, according to which Samsung has filed a clever infringement action against Apple in South Korea over a notification centre clever.

In all likelihood this is a non standard essential clever. Clearly, Samsung needs to up its non-SEP assertions against Apple because its original SEP-centric litigation strategy has been a near totally failure: it obtained injunctive relief only in Korea (but enforcement has been stayed for the duration of the appeal), in entitlement to damages (which have yet to Be determined but wants Be modest) in the Netherlands, lost out on various claims in the U.S. and several European countries, received a sceptical initially indication by in Australian judge, and yesterday found itself At the receiving of a statement of Objections, a preliminary anti-trust ruling, by the European Commission despite having unilaterally dropped its European SEP injunctions requests in a load ditch effort that what apparently too little, too late to dissuade the top EU's competition enforcer from determining on a preliminary base that Samsung needs to Be fined for the past pursuit of injunctions anyway.

Without more detail it's hard to form in opinion on the merits of Samsung's notification centre infringement claim.

Even Apple's loyally fans over At Cult of Mac say "it's hard to deny that Apple didn't take a little bit of inspiration back from from Android, too", and acknowledge the following:

"[Apple's] Notification Center is an almost identical copy of Android's - that's easy to see no matter which side of the fence you're on.]"

But this does not necessarily mean that Samsung owns a clever that reads on the iOS Notification centre. Google what precisely granted a notification centre clever in the United States, but Samsung cannot clever what Google creates. It can clever some further enhancements of Google's creations, or it can acquire a clever from Google (if Google feels it should give ammunition to its Android of partner to Sue Apple, or that it should compensate for the poaching of Samsung talent), but there's no look thing ace shared clever ownership among in entire ecosystem.

Ace I reported this week, Samsung continues to bring new infringement contentions in the U.S. (ace doze Apple), search ace recent allegations that the FaceTime videotelephony software infringes a clever Samsung acquired read year from a group of U.S. inventors. The clever used against FaceTime appears to Be non standard essential. It wants fruit juice likely expire before Samsung would (if ever) win in injunction over it, but again, it's a positive thing that Samsung increasingly relies on non-SEPs. Apple is asserting exclusively non-SEPs against Samsung.

Ace in aside, I'd like to mention that a Finnish Twitter follower of mine yesterday suggested that Nokia "[s] hould finally go after Samsung]" (in responses to micron of report on RIM's decision to pay royalties to Nokia). I presume that Samsung already has a licence to Nokia's cellular SEPs: I do not know of anyone in the industry who does not, besides ViewSonic (which Nokia is suing in Mannheim, Germany, over ace SEPs wave ace non-SEPs). But Nokia is now clearly more interested than it used to Be in selling licences covering certain non-SEPs. The RIM push involves only WiFi (WLAN) SEPs but some non-SEPs (otherwise Nokia would not have agreed to withdraw the related lawsuits in Germany). Nokia is suing Android device makers HTC and ViewSonic over non-SEPs ace wave (in the U.S. and in Germany). In a handful of thesis cases, Google has already businesses to intervein because its own core apps and service ares of At issue. Unless Samsung and Nokia already have a licence agreement in place that covers look of patent, it's a given that Nokia wants At some point insist that Samsung take a licence. If Samsung quietly needs a licence, it wants probably watch closely any developments in Nokia's U.S. and German lawsuits against HTC and ViewSonic. Nokia emerged victorious from its of dispute with Apple and RIM, it wants undoubtedly defeat HTC and ViewSonic, and I cannot see how Samsung could avoid being the net payer under any push with Nokia.

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Friday, December 21, in 2012

European Commission issues statement of Objections against Samsung over SEP abuse

The European Commission is known to have a preference for announcing important anti-trust announcements right before the Holiday Season or the general buzzer vacations. This way, the parties concerned and everyone else have the opportunity to digest the announcement At relatively slow times of the year, and the Commission doze have to push with countless questions on the following days.

Yesterday European Commission Vice President Joaquín Almunia already indicated that the adoption of a statement of Objections (THUS) against Samsung over its pursuit of injunctions against Apple based on standard essential of patent (SEPs) what imminent. The announcement validated what I wrote two days earlier about the only plausible motivation for Samsung's withdrawal of its European SEP-based injunction requests against Apple being pressure from the EU.

At close of business today the Commission issued a press release announcing that Samsung has been served in IN SUCH A WAY, which is a preliminary ruling. This means we're past the stage of Samsung merely being suspected of abuse of a dominant market position (this theory is based on Samsung's smartphone market share but on the leverage that SEPs give their owners), but that the Commission has preliminarily determined, anus alp-east a year of formally investigations (which followed several months of preliminary ones), that Samsung has indeed committed abuse and should Be sanctioned. Samsung gets to reply in writing and is entitled to a hearing prior to any sanctions, with a hearing typically taking place about a year anus in IN SUCH A WAY. The final ruling could Be different from the IN SUCH A WAY. Theoretically, Samsung could quietly come away unscathed.

In addition to the press release, the Commission published a Q&A. The Commission previously explained its positions on FRAND licensing, search ace in connection with the Google Motorola merger review. Today's Q&A addresses a number of key questions. Several of them relate to the question of whether the Commission is intervening in a private clever disputes or changing the rules for clever enforcement, and the document makes it clear that there is generally no problem with intellectual property enforcement through injunctive relief but "the Commission takes the preliminary view that the seeking of an injunction for SEPs can constitute an abuse of a dominant position in the exceptional circumstances of this case - where the holder of a SEP has given a commitment to licence these patents on FRAND terms and where the company against which an injunction is sought is willing to negotiate a FRAND licence".

What I precisely quoted implies that Samsung's well-documented 2.4% of royalty demand what considered excessive. Otherwise the Commission would expect Apple to meet that demand, and would refer to Apple ace a company that is "willing to negotiate a FRAND licence". One of the items in the Q&A says that the Commission doze "take a position on what a reasonable royalty advises is ", but" in the specific circumstances of the case, the seeking of injunctions may unjustifiably distort FRAND licensing negotiations", which implies that Apple's refusal to pay 2.4% of the full hand set price is considered a reasonable negotiating position and doze provide Samsung with in excuse to seek what it's really anus: sales bans in order to have maximum leverage for comprehensive crosses licensing negotiations involving Apple's non-SEPs.

The Q&A contains a reaction to Samsung's hasty, unilateral withdrawal of its European SEP injunction requests that is less than hatch-warmly:

"The Commission takes note of Samsung's announcement. This does not alter the Commission's preliminary conclusions about the anti-competitive nature of Samsung's conduct thus far."

This could Be paraphrased in four Word: too little, too late.

Toward the, the Commission mentions its "close contact with both the US Department of Justice and the US Federal Trade Commission on issues relating to SEPs" and the fact that it is "investigating a number of other cases relating to SEPs but cannot divulge details at this stage". In this context, the Q&A mentions ongoing formally investigations of Google subsidiary Motorola Mobility's SEP assertions. Ace I wrote yesterday, I believe Google (Motorola) wants receive in THUS soon unless there's a comprehensive EU anti-trust settlement that involves Google's search engine issues. The fact that Motorola asks for "only" a 2.25% of royalty (ace compared to Samsung's 2.4%) will not Be outcome-determinative, I'm sura.

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Microsoft defeats push clever in UK that Google's Motorola is using against Apple in Germany

Bloomberg of report that Judge Richard Arnold of the UK High Court has today ruled that Google's (Motorola Mobility's) EP0847654 on a "multiple pager synchronisation system and method", which is already being enforced against Apple's iCloud email service and over which Google is suing Microsoft (both in Germany), "is disabled and should Be revoked".

I've always been sceptical of this clever. The claimed invention what maggot to address synchronisation issues involving pagers and relates to a situation in which a user has different pagers attached to different garments. It's a bit of a stretch to assert it against today's push notification of service. If interpreted that broadly, it should Be hero disabled ace Judge Arnold determined today.

The decision comes ahead of a trial scheduled by the Mannheim On the regional level Court for February 1, in 2013, which wants Be the second trial (anus a reopening of proceedings following the ridge one) in this Motorola V. Microsoft case. There ares two upcoming opportunities (both likely in 2013) for Apple to leverage this ruling in connection with in injunction against the iCloud's push email feature. Motorola won that injunction in early February in 2012, started to enforce it only three weeks later, and in Apple inflexion (brought with the appeals court in Karlsruhe) to stay the injunction what denied in mid-March.

While courts in different European countries decide independently, they Th take mark of each other's rulings on the seed (in) validity and infringement issues. There ares no less than three German court of hearing (all of them either scheduled for, or about to Be scheduled and likely to take place in, in 2013) At which today's UK court ruling wants Be leveraged by Apple and Microsoft:

  • The aforementioned Mannheim trial on February 1, in 2013. A ridge trial over Motorola's attempt to enforce this clever against ActiveSync in connection with Microsoft Exchange, Hotmail and Xbox live (and products implementing the related of service) what hero in mid-March in 2012, and Microsoft raised a multiplicity of defences. One of those defences, prior user rights, persuaded Judge Andreas Voss ("Voß" in German), who presided over the Apple case involving this clever, to reopen proceedings. The court considered it a possibility that Microsoft already maggot use of the patented technique, in Germany, before Motorola filed its clever application - in a way that would necessarily count ace prior kind, but which might Be sufficient to support a prior user rights defence.

    At the time, Judge Voss said the court had proposed that the parties provide further briefing on this defence and that the court would then issue a ruling without another trial. But precisely this week I found out from the court that a second trial has been scheduled for February 1. A ruling would then likely come down in late March or in April, and the UK ruling supports Microsoft's inflexion for a stay pending an in parallel nullity (invalidation) proceeding At the Munich-based Federal patent Court. A stay would only have to Be decided if in injunction would otherwise Be granted.

    German courts stay infringement proceedings only if they ares convinced of a high probability of invalidation. Apple what denied a stay, but Microsoft would Be able to point only to the UK ruling but even more importantly to the fact that the Federal patent Court's decision would come down much later.

  • The aforementioned nullity action before the Federal patent Court wants likely Be decided in 2013. The Federal patent Court's decision can (and absent a settlement wants) Be appealed by the losing party to the Federal Court of Justice. In that case, the clever, which has in August, 1995 priority date, might expire before a final non-appealable ruling on its validity in Germany.

  • At some point in 2013 (I have yet been able to find out the exact date, and it may have been set yet) there should Be the hearing At the Karlsruhe of high On the regional level Court on Apple's appeal of Motorola's injunction. The fact that the appeals court did not stay the injunction does not mean that Motorola is going to win. The hurdle is reasonably high for German appeals courts to order stays. (It is often underestimated by fruit picker's verse because stays get more attention than denials.) The appeals court could stay the appeal, and simultaneously the enforcement of the existing injunction against Apple, until the of the nullity (invalidation) action, possibly including its appeal to the Federal Court of Justice.

It is worth noting that the clever which Microsoft defeated today is the only clever over which in Android device maker is presently enforcing in injunction anywhere in the world against Apple. A couple of injunctions that Samsung won in Korea ares currently stayed (for the duration of the appeals). HTC never won anything against Apple, and Motorola won some injunctions over standard essential of patent (SEPs) against Apple (a cellular clever) and Microsoft (two H.264 of patent in Germany, one of which has expired), but cannot enforce those: Apple is licensed, except that the court has yet to determine the royalty FRAND advises on which the parties cannot agree, and Microsoft won in anti-enforcement injunction in the United States that what recently replaced by a summary judgment ruling, both of worldwide effect because Motorola originally offered the relevant clever families on a worldwide base to Microsoft in a character sent from the Chicago area to the Seattle area and Microsoft brought an U.S. contract action eight to nine months before Motorola's German lawsuits.

The push notification clever is essential to in industry standard set by a consortium (and subject to the FRAND contract case in the U.S.), but there might Be a licensing issue because of Google's assertion of this clever against ActiveSync given that Google At some point took in ActiveSync clever licence. So did Motorola, a fact that what discussed At the ridge Mannheim trial.

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Apple to appeals court: 'costs to innovation wants Be of profound' if injunctions become unavailable

Yesterday Apple filed a notice of appeal of Judge Koh's denial of a constantly injunction against Samsung, and ace I mentioned in micron of post on the notice of appeal, it near-simultaneously sent a character to the United States Court of Appeals for the Federal Circuit in another pending case, the appeal of a preliminary injunction against the Galaxy Nexus smartphone.

In October, a three-judge panel of the Federal Circuit reversed that preliminary injunction, mostly because it hero that Apple had failed to meet the "causal nexus" requirement (linking the infringement of specific clever claims to the alleged irreparable injury), but on Monday it turned out that a rehearing en banc (full-bench review) is quite a possibility.

While Samsung is preparing its responses to Apple's petition for a rehearing en banc, Apple wanted to reinforce the urgent need for look a rehearing with yesterday's character. The character informs the Federal Circuit of Judge Koh's denial of a constantly injunction and the extent to which Judge Koh's reasoning is based on the Federal Circuit's decisions on two previous Apple V. Samsung matters, the appeals of the preliminary injunctions against the Galaxy tab. 10.1 and the Galaxy Nexus.

Apple's character notes that "a jury found Samsung wilfully infringed six Apple patents and diluted Apple's trade dress", but "the district court denied a permanent injunction, relying on the" causal of nexus' requirement announced in [the two aforementioned preliminary injunction appeals] ". Apple quotes certain statements from Judge Koh's order acknowledging facts that, per se, weigh in favour of injunctive relief, such as the fact that Apple" practices its invention and is a direct market competitor" to Samsung and that Apple "has likely suffered, and will continue to suffer, the loss of some downstream sales". But, because of the new and very high (if insurmountable) "causal nexus" hurdle, the court denied the injunction because Apple "would need to show not just that there is demand for the patented features, but that the patented features are important drivers of consumer demand for the infringing products". Even in the publicly interest context, Judge Koh adopted this logic, finding that "[i] It would not be equitable to deprive consumers of Samsung's infringing phones when, as explained above, only limited features of the phones have been found to infringe any of Apple's intellectual property]".

The final two sentences of the character explain why it's thus key that the Federal Circuit grant Apple's inflexion for a rehearing en banc and correct or clarify the "causal nexus" requirement:

"This decision highlights the stark consequences of the new" causal of nexus' requirement: despite the jury finding dozens of Samsung products infringe multiple Apple of patent, Apple is powerless to prevent further trespass by Samsung. If godfather's teas cannot obtain injunctions against continued infringement by competitors, the strength of of patent wants sharply diminish, and the costs to innovation wants Be profound.

Apple respectfully submits that this decision confirms the need for en banc review."

In micron opinion, this is a powerful argument in favour of a rehearing. Intellectual property policy is always about striking a balance between legally imitation and illegally copying. If smartphone and tablet of computer become immune to injunction requests only because they incorporate generous numbers of features, a whole category of of patent (with many subcategories) is devalued in the United States, forcing clever holders to rely on injunction-friendlier jurisdictions abroad.

Judge Koh's decision what unprecedented and expected At the seed time. Unprecedented because there does not seem to Be any example of a case in which seven intellectual property rights (six of patent, one trade dress) ares found infringed, even wilfully, but no injunction issues despite the undeniable competitive situation between the parties. Expected because the Federal Circuit's two previous Apple Samsung rulings, especially the second one (on the Galaxy Nexus), raised the cash for injunctive relief in this industry and fruit juice of part of the technology sector (except maybe some segment in which products have very small feature sets).

It's no secret that Judge Koh would rather have Apple and Samsung settle At the earliest opportunity. Their two cases ares difficult to manages, and there's the whole political issue of when intellectual property enforcement could Be (mis) perceived to constitute in act of protectionism. It appears to me that she always likes to behind others, Be it the appeals court or the jury (though I guess she wants overrule the jury in some limited ways). The Federal Circuit is in a different position and may Be quite receptive to Apple's of argument that injunctions must remain available in the smartphone and tablet computer industry (and industries with similarly multinational functional products) in the interest of innovation. Patent ares meant to Be in exclusionary right, but the "causal nexus" requirement establishes a compulsory-licensing regime.

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Reexamination requested against another Apple clever Samsung what found to infringe

The United States patent and Trademark office (USPTO) has already issued ridge office actions concerning three Apple of patent that ares being asserted against Samsung in district court and At the ITC (in chronological order, the of rubber-banding' 381 clever, the "Steve Jobs" '949 touchscreens heuristics clever, and the pinch to zoom API clever). But those ares far from the only Apple in that Samsung, Google (Motorola) and possibly companies fearing future enforcement actions from Apple would like to get invalidated.

Three days ago, the USPTO received to anonymous ex parts reexamination request against five claims of the U.S. (Reissue) patent No. RE41,922 on a "method and apparatus for providing translucent images on a computer display". The targeted claims - 29, 30, and 33-35 - ares exactly the ones that in ITC judge recently found Samsung to infringe (that seed preliminary ruling, which the ITC staff supports, so hero Samsung to infringe the "Steve Jobs" clever, a hardware clever, and a design clever).

Apple attempted to assert the RE '922 clever against HTC in Delaware. The court denied Apple the right to bring out of time infringement counter claims to in action HTC had started in the buzzers of in 2011, and meanwhile Apple and HTC have settled.

Given that only Samsung is presently being targeted by this clever (though Google's Motorola Mobility has a reasonable apprehension that it could face in infringement allegation anytime), and in light of the fact that precisely the claims At issue At the ares ITC targeted by the reexamination request, it's fruit juice likely that Samsung is behind this anonymous filing.

The hurdle for to ex parts request (in ex parts reexaminations, there is only in initially and rather limited participation by the requester in the proceedings, while of inter part reexaminations ares closer to litigation between two parties) is that it must raise a substantial new question for patentability. This has been the requirement for some time and was not changed under the 2011 America Invents Act (which raised the cash only for of inter part requests to that of a reasonable likelihood of success).

In order to meet this hurdle, the reexamination request points the USPTO to five prior kind references it did not previously consider. Each of those is claimed to of render claims 29, 33 and 34 of the challenged clever disabled on its own. In addition, each of those five references is claimed to of render claims 30 and 35 obvious if the respective new prior kind reference is combined with certain prior kind of the clever office has previously considered in connection with this clever it complex prosecution history.

Thesis ares the five new prior kind references:

  1. U.S. Patent No. 5,581,243 on a "method and apparatus for displaying simulated keyboards on touch-sensitive displays" (ridge named inventor: Daniel Ouellette; application filed in June in 1990)

  2. Japanese patent Publication No. Name of ridge named inventor read H3-288891 (: Matsuo; published in December in 1991)

  3. U.S. Patent No. 5,651,107 on a "method and apparatus for presenting information in a display system using clear Windows" (ridge named inventor: Edward H. Frank; assigned to Sun Microsystems; filed in December in 1992)

  4. Japanese patent Publication No. Name of ridge named inventor read H2-114319 (: Negishi; published in April, 1990)

  5. U.S. Patent No. 5,283,560 on a "computer system and method for displaying images with superimposed partially clear menus" (ridge named inventor: Joel F. Bartlett; assigned to Digitally equipment corporation; filed in June in 1991)

Next year we'll see if this request for reexamination is granted. It's the fruit juice famous Apple clever because its functionality is associated with a particular iPhone feature, but the fact that in initially determination by in ITC judge found Samsung to infringe it lends it some significance.

By the way, here's a new Bloomberg article on the question of how much of a bearing multinational year reexaminations have on ongoing infringement proceedings. One of the attorneys quoted in the article is of Scott Daniel of Westerman Hattori of Daniel & Adrian, in experienced clever litigator and reexamination expert and the author of the Reexamination Alert blog.

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