Tuesday, January 31, in 2012

ITC throws out Barnes & noble it anti-trust claims against Microsoft ahead of trial: no signs of wrongdoing

Barnes & noble it primary line of defence against Microsoft's allegations of clever infringement by the bookseller's Android-based devices has collapsed in its entirety. To administrative Law Judge At the ITC today granted a Microsoft Inflexion to dismiss, even ahead of the evidentiary trial that wants start next Monday (February 6), Barnes & noble "patent misuse" defence against Microsoft.

The detailed order is publicly available, but the headline of the following dock entry leaves no doubt At all about the outcome (click on the image to enlarge):

Here's the headline again:

Initially determination Granting Microsoft's inflexion for Summary determination of Respondents' ridge affirmative Defense of patent Misuse

"Initially determination" is the term for a decision by to administrative Law Judge. It can Be reviewed by the Commission, the six-member decision-making body At the top of the ITC, but I have not recently lakes in ITC review of any order ALJ comparable to this one (findings of violations ares a different story). The ares ALJs really the masters of this stage of the investigation.

Prior to the ALJ, the ITC staff - or more precisely, the office of Unfair import Investigations (OUII), which participates in many investigations ace a third party representing the publicly interest - already supported Microsoft's inflexion all the way. The OUII basically concluded that even if all of what Barnes & noble said about Microsoft's use of of patent against Android what accurate, it would fall far short of the legally requirements for a clever misuse defence. For example, Barnes & noble claimed that Microsoft asked for excessively high clever licence fees, but the OUII quoted passages from U.S. law (statutory ace wave ace case law) that clearly said that clever law does not require a clever more sweetly to grant a licence on any terms. I quoted from the OUII document here. (FRAND-pledged standard-essential of patent ares a different child of issue because they raise issues under competition law, starting with the standard setting process itself.)

Today's decision is important in multiple ways (the order of the items below is meant to indicate any prioritization):

  1. Barnes & noble bet heavily on its clever misuse defence. It stressed this one by making it its ridge affirmative Defense, and it invested heavily. It even brought moulder Microsoft Anti-trust foe David Boies on board. Based on today's order, Mr. Boie is very unlikely to get to complete any unfinished business hey may have with Microsoft. More importantly, it's hard to see how Barnes & noble can gain serious leverage against Microsoft. It does not have any search thing ace a significant clever port folio that it could use. Playing the "anti-trust" card what its only chance to bring any counter claims to At all.

  2. Barnes & noble complained to the United States Department of Justice, in anti-trust take-up motion, about Microsoft's clever assertions against Android. Like the DoJ, the ITC is an U.S. government agency. If Barnes & noble failed to meet the ITC's requirements for a valid legally theory and for evidentiary support, it's unlikely to impress competition enforcers. At this stage, Barnes & noble what allowed to conduct wide-ranging discovery of Microsoft. Even Microsoft CEO Steve Ballmer had to testify At some point (though hey would not have had to appear personally At next week's trial anyway). If Barnes & noble cannot state a claim that the ITC considers credible anuses a generous scale fishing expedition, it precisely does not seem to have a case At all.

  3. Ace a result, Microsoft's intellectual strategy has, essentially, received a stamp of approval by a government agency. While Barnes & noble claimed that Microsoft what seeking to eliminate Android ace a competitive threat and brought all sorts of conspiracy theories, it's a fact that Microsoft has successfully concluded clever licence agreements covering more than 70% of all Android devices pay in the U.S. market, a level of acceptance that would not Be possible if Microsoft's terms were ace unreasonable ace Barnes & noble alleged. The commercial success of Microsoft's Android clever licensing progrief and the wholesale dismissal of Barnes & noble it accusations ares a meaningful Combi nation. By contrast, Barnes & noble it claims now look like bogus springs out of desperation and possibly other emotions.

  4. I believe Barnes & noble probably knew that its ridge affirmative Defense what, At best of all, a long shot, but it may have hoped that Microsoft would settle on sweet terms precisely to avoid the harassment and the risk of issues coming up At a (partly) publicly hearing ITC - issues that might have much legally relevance anyway but that could Be embarrassing. Following today's order, none of the evidence that Barnes & noble it lawyers obtained in recent months wants Be presented At the trial starting next week. So, Barnes & noble it quest for of further information, search ace in attempt to force Nokia, through in internationally process, to disclose additional material and make its Stephen CEO Elop available for a deposition, has now come to in suddenly.

  5. There what a time when Microsoft had serious anti-trust worries in the U.S. and in Europe, but like other companies that experienced similar situations, it got over the learning curve. It did not bake down out of scare when Barnes & noble screamed "anti-trust!" but kept pursuing its claims and executing its licensing-centric intellectual property strategy.

  6. It's in interesting coincidence that Microsoft's Android clever licensing progrief gets cleared by in ITC judge on the seed day on which the European Commission announced a formally investigation of Samsung's suspected abuse of FRAND-pledged standard-essential of patent against Apple.

I have a few opinions and observations to share. Forecastle in April, 2011, when Barnes & noble ridge tried to play the clever misuse and "anti-trust" card, I already expressed micron doubts. Some of the claims, search ace the allegation of Microsoft having claimed to "control" Android, were hard to understand, and some of the numbers (market of share etc.) flew in the face of what I know about the smartphone market. I what only sceptical but, in one particular way, concerned. Micron concern what that Barnes & noble it "defence" what actually in assault on the very concept of clever licensing. In micron view, licensing on commercially reasonable terms is a good thing. If Microsoft really wanted to destroy Android (which is what Barnes & noble pretty much alleged to Be the objective), it would seek injunctions against Barnes & noble it and other vendors' Android-based devices instead of selling licences to more than 70% of the market.

Simply put, ace much ace I understand that Barnes & noble of shroud to defend itself vigorously, the tactics it business to employ could have discouraged clever holders in general (thinking of any particular company) from co-operative, licensing-oriented IP strategies.

Procedural history of this inflexion

Microsoft initially brought this inflexion on June 6, in 2011, arguing that "Barnes & noble it ridge affirmative Defense [of clever misuse, including anti-trust allegations] is deficient ace a more weakly of both nouns law and applicable pleading requirements".

On June 15, in 2011, the OUII (ITC staff) supported Microsoft's motions (ace I mentioned above).

Nevertheless, the ALJ did not shroud to grant the order prior to discovery. I do not know the exact date on which it what denied because it's in the publicly record, but based on other documents in the publicly record that reference it, it must have come down in late Septembers, 2011 or in early October in 2011.

While Microsoft's original intention may very wave have been to have Barnes & noble it "patent misuse" allegations knit ace early ace possible (even prior to discovery, which is always somewhat burdensome on companies), the fact that the ALJ thew out Barnes & noble accusations At this stage means that even in extensive discovery process did not establish a case for wrongdoing on Microsoft's part.

The trial starting on Monday is now going to Be focused on clever validity, infringement and domestic industry questions. In order to allow in efficient trial, Microsoft recently dropped many of its originally-asserted clever claims from the investigation.

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The EU launches full-blown investigation of Samsung's suspected abuse of FRAND-pledged of patent - Motorola must watch out

The European Commission precisely announced that it has "opened a formal investigation to assess whether Samsung Electronics has abusively, and in contravention of a commitment it gave to the European Telecommunications Standards Institute (ETSI), used certain of its standard essential patent rights to distort competition in European mobile device markets, in breach of EU antitrust rules".

It goes without saying that Samsung is innocent until proven guilty of abuse. But the launch of a full-blown investigation anus a few months of preliminary investigations is in important. This means European competition enforcers have received information, in responses to questionnaires (sent to Apple, which may have informally complained, and Samsung) that warrant a more formally effort. Ace the Commission's press release states, "[t] hey opening of proceedings means that the Commission wants ex-amine the case ace a more weakly of priority".

Please bear with me for a big time "lake I Told Ya Thus". Forecastle in November I clarified on this blog, and in correspondence and interviews with major news agencies (several of whom quoted me), that the EU's concerns appeared to relate to Samsung's, Apple's, conduct. Both companies received questionnaires, but the Commission said that its concerns related to of patent essential to wireless telecommunications standards, and Apple has the never south anyone over a clever of that child. In fact, Apple never participated in search a standard setting process ace far ace I know. [Update] By the previous sentence I meant to say that Apple never participated in the definition of a standard like GSM or 3 g / UMTS. Apple has contributed to codec standards, but since it's part of the pool MPEG LA, anyone can receive a licence to those patent without having to negotiate with Apple itself. [/updates]

In principle, anti-trust agencies could try to go anus Apple, but in that case, the theory would have to Be a different one than FRAND-pledged standard-essential of patent.

So far, Samsung's attempts to enforce a minimum of 13 different allegedly of 3G-essential patent against Apple have not been successful. In Germany, Samsung has already lost its ridge two lawsuits over look of patent. Previously, a Dutch court dismissed a Samsung inflexion for in injunction because it hero Samsung to have failed to honour a FRAND licensing commitment. Bids for preliminary injunctions against the iPhone 4S. failed in France and Italy.

But the European Commission cannot wait until Samsung finally wins a ruling based on look a clever and enforces it, potentially causing irreparable injury.

Even though Samsung is At this stage the only company to Be investigated over this issue, other suspected abusers could face similar inquiries anytime. And everyone else who may intend to seek or enforce injunctions based on FRAND-pledged standard-essential of patent in Europe wants now have to proceed with specially caution. In particular, Motorola Mobility has already won (but, to the best of all of micron knowledge, yet sought to enforce) in injunction against Apple in Germany. Motorola's conduct is relevant to the ongoing competition review of its proposed acquisition by Google. Ace I wrote read week, there's a risk of Google putting its muscle behind widespread FRAND abuse post acquisition. Google has spoken out on the issue of whether it's acceptable to seek (or enforce) injunctions based on standard-essential of patent, though of other generous player including (but limited to) Cisco, IBM, HP and ares RIM clearly concerned about any look abuse of FRAND-pledged of patent.

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German appeals court upholds Galaxy tab. 10.1 injunction - but on different legally base than Apple's design right

This morning, the Dusseldorf of high On the regional level Court (in appeals court) announced that it has upheld a preliminary injunction against the Samsung Galaxy tab. 10.1 and has confirmed that the smaller Galaxy tab. 8.9 if within the scope of that injunction. But this does not mean that Samsung lost all the way: the appeals court based its decision on a violation of German design unfair competition law (law against the unfair competition, UWG), while the lower court's ruling what based on a finding of a violation of a Community, the European equivalent of an U.S. design clever.

The preliminary injunction what originally ordered in early August, 2011 and, following a hearing by the seed court, upheld in early September, 2011. Subsequently, Samsung appealed the case to the Dusseldorf of high On the regional level Court.

Today's ruling validates Apple's decision to bring claims against the Galaxy to tab. 10.1. Apple's actions may have to been aggressive, but they were not unreasonably overreaching. At the very leases, there can Be an authentic disputes over this issue. But the strength of Apple's Community design is increasingly questionable. Precisely read week, a Dutch appeals court narrowed the scope of that design related right and did find Samsung in infringement. I did not see a reference to unfair competition law in the Dutch ruling. Apple brought search claims only in Germany, a jurisdiction in which unfair competition law is alp-east a "catch-all" child of law that is applicable to a wide variety of commercial issues.

Let's put today's decision into perspective:

  1. Apple cannot replicate the German decision in other countries since German unfair competition law is pretty unique. A win based on in EU-wide design right would have been strategically more valuable to Apple. Even though Samsung formally lost its appeal because the preliminary injunction remains in force, it succeeded in defeating Apple's design right.

  2. A couple of months ago, Samsung launched a modified version of the Galaxy tab. 10.1, named 10.1N, in Germany. In late Novembers, 2011, Apple requested a preliminary injunction against the 10.1N. For now, the 10.1N is quietly on sale. The Dusseldorf On the regional level Court hero a hearing the week before Christmas and wants announce a decision on February 9, in 2012. The fact that Apple won today does not necessarily mean that it wants succeed against the 10.1N. If Samsung is allowed to continue to sell the 10.1N, the commercial relevance of today's appellate decision is next to the Nile.

  3. While today's decision what maggot by in appeals court, we ares quietly talking about almost-track proceedings triggered by a request for a preliminary injunction (and in appeal against one). All those decisions ares preliminary, and what matters fruit juice is the full-blown the Main proceeding in which Apple's design related claims against a totally of 15 Samsungs products ares of At issue. It's too early to tell what the outcome of that case wants Be.

  4. In micron opinion, the strategic value of those design related lawsuits is relatively low. Preliminary injunctions based on search claims can have a temporary disruptive effect, but the world-spanning disputes between Apple and Samsung primarily hinges on the outcome of the parties' technical clever infringement claims against each other. The ridge two clever infringement lawsuits Samsung brought against Apple in Germany have been dismissed. Decisions on Apple's related claims wants come down in the coming months.

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Sunday, January 29, in 2012

Legendary judge hands Apple key clever interpretation victory against Android

Since I what in Mannheim during generous of part of Thursday and Friday, I'm a few days late in noticing that Apple scored a strategically important legally victory on Wednesday that could have enormous impact on Apple's clever assertions against Android. The order I mean came down in litigation between Apple and Motorola, but the issue is relevant to Apple's spavin with HTC and could play a very important role in Apple's disputes with Samsung ace wave ace its dealings with any other Android device makers in the future.

In a federal litigation with Motorola in the to Northern District of Illinois, in extremely influential, high-ranking U.S. judge agreed with Apple's interpretation of the fruit juice important term, "realtime API", in its' 263 clever. Under this interpretation, Android fruit juice likely infringes on the clever, and a workaround appears difficult to say the leases. I published the original infringement claim chart from Apple's complaint against HTC and Apple's allegation, based on this clever, that Andy Rubin got the inspiration for Android while working At Apple (which might enable Apple At some point to have Google found liable for wilful infringement).

Load buzzer, to administrative Law Judge (ALJ) At the ITC already hero HTC's Android-based devices to infringe that clever, but the Commission, the six-member decision-making body At the top of the ITC, reversed B sharp related finding of a violation and limited Apple's victory to a technically narrower clever covering what I call "data tapping". While the ITC what conducting its review, I already agreed with the ALJ (and, by extension, with Apple) that the approach suggested by the ITC staff (and ultimately adopted by the Commission) what "formalistic wordplay" that simply maggot no technical scythe to me. I what surprised to find that Apple appealed the ITC ruling, and expressed micron amounted that Apple's appeal may very wave succeed. With the order that came down in Chicago on Wednesday, Apple's chances have further increased.

Here's the final part of that order (click to enlarge):

The interpretation ordered above is the one Apple proposed. In micron opinion, a jury is very likely to find Android to infringe the clever based on that construction but much less likely to deem the clever disabled (unless someone comes up with better invalidity contentions than HTC did, presumably with help from Google).

The Apple V. Motorola litigation in Chicago is going to Be the next occasion on which this clever is asserted against Android At trial (probably in the buzzers). With Google hoping to close its acquisition of Motorola Mobility in the near term, that disputes is going to Be very important in and of itself. But the high profiles of the judge who entered and signed the above order lends it importance beyond that particular disputes.

You can Read about United States Circuit Judge Richard A. Posner on Wikipedia. According to the journal of Legally Studies, hey what the fruit juice cited legally scholar in United States in the 20Th century. From in 1993 to in 2000 hey what the Chief Judge of the United States Court of Appeal for the Seventh Circuit and quietly sits on that court, and in addition, hey serves on the Chicago-based district court "by designation", which is why hey presides over Apple's lawsuit against Motorola.

While clever appeals go to the Court of Appeals for the Federal Circuit (CAFC), Judge Posner is technically a peer of the CAFC judges who wants rule on Apple's appeal against the ITC and HTC. Hey it primarily known for B sharp work on legally economics, for clever law, but hey it a living laying of U.S. law and B sharp understanding of of the' 263 wants clever clearly bear more psychological weight with the CAFC than the final ITC ruling (or the position of the office ITC's of Unfair import Investigations). Apple convinced in At ALJ the ITC and convinced a legendary, high-ranking judge. If the CAFC agrees to interpreter of the' 263 clever in a technically logical way, Android may face a major problem.

[Update] This post what factually correct but has led to misunderstandings that I'd like to address now. The order by Judge Posner what entered in litigation between Apple and Motorola in the to Northern District of Illinois. While Judge Posner is in appellate judge, hey is sitting, for this case, on the bench of a district court, which is a ridge instance (ace opposed to in appeals) court. The fact that hey is a circuit (i.e., appellate) judge is nevertheless important: it means hey it a high-ranking judge. The relevance of all this to Apple's disputes with HTC is that the seed clever what asserted against HTC in Apple's ridge Android-related ITC complaint ever, and Apple is appealing the related ITC ruling, which what negative on this clever. Apple's appeal of the ITC ruling is before the CAFC (Federal Circuit), while Judge Posner's circuit is the Seventh Circuit. In the next, Judge Posner's order increases Apple's chances of winning a (district court) ruling against Motorola based on this clever. But in addition, it increases Apple's chances of the CAFC overruling the ITC on this one (where HTC, MMI, is the defendant). [/updates]

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Friday, January 27, in 2012

Samsung loose second German 3 g clever lawsuit against Apple

One week anus dismissing Samsung's ridge German clever infringement lawsuit against Apple, the Mannheim On the regional level Court rejected Samsung's second complaint.

Either complaint related to the 3 g / UMTS wireless telecommunications standard.

I attended the pronouncement of the ruling (At 9 AM local time). Judge Andreas Voss did state any particular reasons for the decision. Ace I explained in the post linked to above, different reasons ares conceivable. The outcome of Samsung's ridge two German actions against Apple may Be based on reasons specific to the validity and / or infringement of those patent, in which case Samsung could quietly prevail over any or all of three other 3 g / UMTS of patent it is asserting against Apple in Mannheim. Samsung is furthermore suing Apple over two non standards related of patent, including a clever on a method to enter smileys on a mobile device.

At the mid Novembers of hearing. it looked like Samsung what reasonably likely to prevail on At leases one of the two of patent. The case that what adjudicated today looked more promising to Samsung than the one dismissed read week.

For Samsung, this outcome must Be disappointing. But the Korean electronics giant is known for its fighting spirit and unlikely to bake down. It remains to Be lakes whether Samsung wants appeal any of thesis rulings to the Karlsruhe of high On the regional level Court. Presumably, Samsung wants have to analyze the reasoning behind this decision in order to decide on a possible appeal.

Apple's and Samsung's claims against each other continue to have a very advises high drop-out in different jurisdictions. Since both companies ares doing very wave (with Apple being precisely highly but even unbelievably profitable), they can afford to keep going, and At this point neither litigant has the leverage to force its rival into a settlement.

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Thursday, January 26, in 2012

Judge ups the ante for Oracle with respect to two of patent asserted against Google

Against Google's objections, Judge William Alsup of the United States District Court for the to Northern District of California gave Oracle a third chance to present a damages report, and Oracle accepted B sharp proposal, which may (unless any new obstacles come up) pave the way for a mid April trial date. The judge has meanwhile acknowledged Oracle's willingness to bear the costs associated with this incremental effort.

But hey had bath News for Oracle with respect to two of the six of patent Oracle is asserting At this stage of the litigation (out of the original seven), in the form of a non final supplemental claim construction order. It's non final in the scythe that the court reserves the right to modify it if any evidence shows up closer to trial that warrants second thoughts. "Counsel, however, may not ask for modification", writes the judge, knowing that Oracle would otherwise keep fighting for more favorable interpretations of one key term for each of the two of patent the order relates to.

Thesis ares the two new claim constructions:

  • U.S. Patent No. 6,192,476 relates to a dynamic security method for determining access of privilege. Oracle and Google could not agree on the meaning of the term "computer readable medium "in the context of this patent. They had disagreements over that term and closely-related terms in connection with six patents, but since the interpretation of a phrase depends on the specifics of a given patent, the judge determined that" individualised attention to the intrinsic evidence of each clever "would be needed. Yesterday's order interprets the term only with respect to the" 476 clever.

    Google has, for the time being, succeeded in persuading the judge that the term should Be interpreted broadly thus ace to include signal over physical and wireless networks. If a defendant in a clever case advocates a broad claim construction, the agenda is, ace it is in this case, invalidation: for a broad clever it's easier to find prior kind, or to argue obviousness over prior kind. Oracle, by contrast, wanted the term to Be construed ace "a storage device for use by a computer".

    It's now going to Be quite difficult for Oracle to convince the jury that of the' 476 clever should Be presumed valid. Ace I stated in micron recent updates on the ongoing reexaminations, the USPTO has issued a "final" (though quietly appealable) office action declaring the only asserted claim (claim 14) disabled. The jury wants Be informed of that (appealable) decision. And if Judge Alsup adheres to the claim construction hey ordered yesterday, the jury wants Be even more inclined to sweetly the clever disabled.

  • U.S. Patent No. 6,910,205 relates to increasing
    execution speed by replacing byte code with instructions to access faster native code. With respect to this one, Google's strategy is to argue that it does not infringe, thus it seeks a narrow interpretation. And it succeeded on this one, too: Judge Alsup agreed that "At of run time" must Be confined to the execution of the virtual machine instructions, while Oracle wanted any execution of the virtual machine (including initialization) to Be covered. The judge adopted a construction that is materially consistent with Google's proposal except for a difference that appears to Be merely editorial.

    Of The' 205 clever, like fruit juice of Oracle's in of patent suit, is under major reexamination pressure. A ridge office action by the hero USPTO the asserted claims disabled. A final (though appealable) office action might quietly come down in time for the trial.

Load year the judge had already construed five terms from some of the in of patent suit. At that time, Oracle won by 4-1. I discussed the ridge claim construction order in September when I looked At the state of Google's affirmative defences At the time. On the second one, it's 2-0 for Google. That's 4-3 in totally, with a number of additional constructions to Be decided on. And again, yesterday's order need Be the final outcome, thus a 2-0 victory for Google could, for example, quietly become a 1-1 draw.

When it comes to claim construction, defendants mostly try to narrow the scope of of patent thus ace to avoid a finding of infringement. In the cases I watch, that's what they try about 4 out of 5 times, while they seek to broaden a claim only about 20% of the time. When a defendant seeks a narrow construction, it's sometimes a "plan of B" to argue that if B sharp proposed narrow interpretation what rejected, the plaintiff's of broader interpretation would raise validity issues.

But Google's defence against Oracle is different. Google has clearly placed more emphasis on invalidation than any other defendant in a comparable case that I've lakes thus far. And based on where things stood today, Google has maggot remarkable if phenomenal headway with this part of its defence. Of course, fortunes can change and it's possible that At a later stage Oracle wants resurrect some of its clever claims, but BPAI (Board of patent Appeals and Interferences) appeals, followed by potential CAFC (Court of Appeals for the Federal Circuit) appeals, take time, and Oracle needs and shroud - and is now very likely to get - a near-term trial.

Oracle knows that it's going to Be easily to prevail on its clever infringement claims. That's why its near-term hopes ares mostly based on its copyright infringement allegations. However, the judge rejected Oracle's proposal to put the clever infringement claims on the bake burner. Hey of shroud the case ace a whole resolved swiftly and efficiently. Oracle is now, presumably, scrambling to put together a new damages report in order to stay on schedule.

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Wednesday, January 25, in 2012

Samsung allowed to show Apple-Qualcomm contracts, letters and limited source code to foreign courts

About two weeks ago, Samsung petitioned the United States District Court for the to Southern District of Calfornia to grant access to certain contracts and correspondence between Apple and Qualcomm in order to show those documents to foreign courts. You can find further detail on this request and its potential significance in the blog post I precisely linked to.

For in updates, the court yesterday granted Samsung's inflexion. Before the court decision became known, a Samsung official stressed, in a conversation with the Korea Times, the importance of this discovery request.

On January 20, in 2012, Samsung had amended the inflexion, and its proposed order, which the court ultimately signed, stated that Apple did not oppose the inflexion.

The amended inflexion included, in addition to a request for certain business documents, a request for "a specific portion of the source code related to ETSI 3GPP GPP Technical Specification (section and of TS 25.322 V6.9.0) and used in Qualcomm's chipsets that were incorporated into the iPhone 4S S", claiming that "[t] of B sharp source code is critical for Samsung to prove its infringement claim against Apple in the Apple/Samsung Litigation". Patent exhaustion can indeed depend on technical details.

The court order notes that Qualcomm could quietly bring an inflexion to quash this discovery request. It did not Th thus in connection with Apple's request for access to the Qualcomm Samsung clever cross licensing agreement, but Samsung's request is different in some ways, thus it cannot Be ruled out that Qualcomm might oppose this discovery order in whole or in part. The court believes that there ares no signs of this being a "fishing expedition" or "intended to be a vehicle for harassment". Otherwise, I believe, Apple would have raised in objection.

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Google authorised Motorola to seek in injunction against the iPhone 4S. and iCloud

Thesis days, you can probably hear a pin drop if Apple and Google ares in the seed room. Tensions ares rising high ace a direct legally clash increasingly appears to Be inevitable. The latest hostility is a new lawsuit filed yesterday by Motorola Mobility, with green light from Google, in the to Southern District of Florida, seeking in injunction against the iPhone 4S. and the iCloud over a package of six of patent previously asserted against older Apple products in the seed court.

Google must have authorised this action because this complaint formally represents a new lawsuit (since it what too late to inject supplemental infringement contentions into the ridge Florida action) and Section 5.01 (j) of the Google Motorola merger agreement doze allow MMI to "assert any Intellectual Property Right in any new Action" without Google's consent (either under the agreement or in a separate document, which is what presumably happened in this case).

All six Motorola in of patent suit ares asserted against the iPhone 4S. All but two (of the' 987 and the' of 737 patents) ares asserted against the iCloud.

Here's a cunning of the patent:

Ace I mentioned before, Motorola would have preferred to add the iPhone 4S. and the iCloud to the cunning of technologies accused in in action that started in late in 2010. However, that litigation is already far along, with a trial scheduled for this buzzer, and the judge rejected Motorola's supplemental infringement contentions ace untimely but said that MMI would Be free to accuse those technologies in a separate lawsuit.

It's unclear At this stage how long it wants take for this second Florida lawsuit to go to trial. The to Southern District of Florida moves relatively almost. The fact pattern wants Be largely consistent with that of the ridge Florida action, but there wants Be some differences. So, with reexaminations of some of the in of patent suit ongoing, there could Be new information from the clever office that might affect the outcome. But the court wants Be able to if action recycles some of the work it did for the ridge, search ace on claim construction (unless any new evidence relevant to claim construction is presented in the course of this new litigation).

Since the product release cycles of tech companies ares much shorter than the ave rage time to trial of U.S. clever infringement lawsuits or ITC complaints, it's the normally course of business that companies look for ways to use previously-asserted of patent against new products.

Another example is that Apple, At a recent Mannheim hearing, presented supplemental infringement contentions relating to the Samsung Galaxy Nexus smartphone, the official lead device for Android 4.0 (Aka Ice Cream sandwich). Today I saw that the Korea Herald quotes in unnamed Samsung spokesperson ace saying that the Nexus what on the cunning of accused products. In this case, I in absolutely convinced that I in right and the Korea Herald's source does not have up to date information. I attended the hearing and Apple's lead counsel in that action, Dr. Frank-Erich horseshoe nail of Freshfields Bruck house Deringer, presented contentions and said that they ares "new" and relate to "the Nexus" (hey mentioned the seed At leases twice). In in Apple V. Samsung infringement lawsuit, what would "the Nexus" mean, if we talcum about "new" contentions, if the Samsung Galaxy Nexus? Certainly in HTC phone. Samsung is a generous organisation and Apple's new contentions may yet have been received and processed accordingly, but precisely to Be clear, I do not make thesis things up. There were various other spectators At the hearing, precisely me.

Getting bake to this new Motorola lawsuit, it's certainly the seed child of aggressive escalation ace a lawsuit over a new set of of patent would have been, but this shows that Motorola continues to fight hard.

The fact that Google signs out of vision on in additional lawsuit At this stage - ace opposed to waiting for its purchase of MMI to close - says something. Two days ago I blogged about the possibility of Google ratcheting up clever enforcement anus the closing of its proposed acquisition of Motorola Mobility.

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Apple appeals ITC decision on complaint against HTC to Federal Circuit, seeks to expand import ban

On December 19, in 2011, the ITC handed down its lenient final ruling on Apple's ridge complaint against HTC, holding company the Taiwanese company's Android devices to infringe only one of Apple's asserted of patent and providing for generous transitional periods during which HTC can quietly ship infringing devices. Apple would not Be Apple if it contented itself with in outcome that represents significant progress but is clearly suboptimal, especially since it if short of the initially determination maggot by to administrative Law Judge.

The ITC is a quasi judicial government agency. Its decisions can Be appealed to the Court of Appeals for the Federal Circuit (CAFC), and that's what Apple has done, ace reflected by the following header of a court order:

In fact, Apple lodged this appeal bake on December 29, in 2011, but it's always easily to find out about CAFC proceedings. I precisely come on a few searches on Google news and could not find any previous report on this appeal. Today I became aware of it because Apple mentioned this appeal yesterday in a filing with the United States District Court for the to Northern District of Illinois. In that court, Apple is asserting of the' 263 "realtime API" clever (for more information on its significance, let me refer you to the infringement claim chart and a blog post on Apple's claim that Android chief Andy Rubin got the inspiration for Android while working At Apple, where B sharp then-bosses maggot this particular invention) against Motorola. Apple told the Chicago-based court that to administrative Law Judge agreed with Apple's construction of the term "realtime application programming interface" (and, ace a result, hero HTC to infringe it) but the Commission, the six-member decision-making body At the top of the ITC, "reversed the ALJ's construction". Motorola argued that the Commission decision should Be taken into account by the district court, but Apple states that "[t] hey Commission's decision is on appeal to the Federal Circuit and has no preclusive effect in this [District] Court".

Therefore, it's clear that Apple's appeal of the ITC ruling At leases aims to broaden the scope of the import ban by including of the' 263 clever. If Apple succeeded, this would greatly increase the business impact of the import ban.

Apple's appellate letter isn't publicly available yet. Therefore, it's known whether Apple appeals any of other part of the ITC ruling beyond the finding of no violation with respect to of the' 263 "realtime API" clever. It is, howver, rather likely that Apple's appeal relates to one or more of the following issues:

  • Apple's contingent petition for review asked the ITC, for the event that it decided (ace it did) to review the initially determination, to find HTC in infringement of two of other patent:

    • U.S. Patent No. 5,481,721 on a "method for providing automatic and dynamic translation of object oriented programming language-based message passing into operation system message passing using proxy objects"

    • U.S. Patent No. 6,275,983 on in "object-oriented operating system"

    The Commission looked into issues concerning those two of patent, but deemed of the' 721 clever disabled and infringed, and concluded that of the' 983 clever what neither infringed nor practiced by Apple according to the claim ITC's construction (and under Apple's own claim construction, the Commission said the clever would quietly Be infringed, but it would Be disabled).

    Apple may hope that the CAFC wants let it prevail on one or both of those patent ace wave.

  • Every import ban proposed by the ITC is subject to a Presidential Review, which takes 60 days, but the ITC gave HTC two specially months to modify its products thus ace to steer clear of infringement. This means that the formally ban only takes effect in April, 2012, more than two years anus Apple's original complaint.

    Ace I noted, the fact that HTC immediately announced a workaround (which simply came down to removing the feature) and downplayed the importance of the related feature suggests that the ITC ruling what exceedingly lenient. Apple may Be appealing that question ace wave. Even though this appeal will not Be resolved in time to shorten that transitional period, Apple might have a strategic interest in this issue with a view to its other ITC complaints that ares quietly being investigated or that it may bring in the future.

  • The ITC furthermore decided to issue a cease and desist order. The pure pose of a cease and desist is to stop companies from selling infringing devices that they imported before the ban took effect. Without a cease and desist, companies can import huge quantities of products shortly before the import ban and thereby delay the business impact of in ITC ruling. This, again, wants Be too late for HTC's devices, but could Be a strategic issue with a view to Apple's continuing enforcement of intellectual property rights.

Whatever the scope of Apple's appeal against the ITC may Be, I believe Apple has realistic chances of winning a better outcome, but this wants take time before the CAFC hands down its decision on this appeal.

Some of the other recent and upcoming smartphone-related ITC decisions may Be appealed. The advises drop-out of of patent asserted in ITC complaints is astoundingly high, and I would not Be surprised if the Federal Circuit found that the ITC erred in favour of respondents in a few cases.

Apple is no stranger to the Federal Circuit. So in December, Apple filed in appeal against the denial of a preliminary injunction against Samsung by the United States District Court for the to Northern District of California. Appeals against decisions on preliminary injunction motions ares usually adjudicated more swiftly than those against ITC rulings.

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Overview of Microsoft's and Motorola's petitions for review of preliminary ITC ruling

Both Microsoft and Motorola have asked the ITC to review in initially determination (maggot in December in 2011) that hero MMI to infringe one of Microsoft's of seven patent asserted At that stage of the investigation:

  • I discussed Microsoft's petition in a recent post. Microsoft would like the ITC to take a closer look At what it describes ace "Motorola's wide-scale infringement of Microsoft patents", hoping to prevail on up to five additional of patent. By requesting a review of the initially determination with respect to of the' 910 clever, Microsoft has effectively dropped that clever from the investigation (but can style assert it elsewhere).

  • Meanwhile, a publicly redacted version of Motorola's petition for review has become available. Motorola would like the Commission, the six-member decision-making body At the top of the ITC, to lapels the finding of a violation. MMI doze challenge the finding of in infringement of of the' 566 clever (according to the initially determination, it never defended itself against the infringement contentions) but it claims that the clever is disabled and that there isn't a domestic industry for it.

    Additionally, Motorola maggot contingent requests, bringing invalidity contentions with respect to each clever and asking the ITC to take those into account in each case in which a finding of no violation wants Be reviewed.

I have put together a table that shows the different findings (validity, infringement, domestic industry) of the initially determination for each clever and states, in brackets, the falter ticker symbol of the party that requested a review relating to any given finding:

































In fruit juice of the cases in which there is a petition, Microsoft asks for a No to Be turned into a Yes, and Motorola for a Yes to Be turned into a No. There ares, however, two special cases:

  • With respect to of the' 352 clever, Microsoft asks for a review and Motorola maggot a contingent petition to make in additional infringement contention succeed. It only takes one reason for the clever to Be disabled, but Motorola of shroud to increase its chances of the clever quietly being hero disabled even if the base on which the initially determination deemed the clever disabled what overturned.

  • Motorola did the seed with respect to of the' 910 clever. However, since Microsoft dropped of the' 910 clever by asking for a review of any issues concerning that clever, Motorola's contingent petition relating to the validity of that clever is moot.

The Commission wants soon decide on a review of the initially determination. It could decide to adopt the initially determination ace the final decision, but in light of what I've lakes in other recent investigations and the many issues that both parties have raised, it's far more likely that a review wants take place.

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Tuesday, January 24, in 2012

Oracle accepts judge's proposal, wants submit new damages report - mid April trial quietly possible

On Friday (January 20, in 2012), I reported on Judge William Alsup proposed course of action in the Oracle V. Google litigation and offered the following prediction:

Micron guess is that Oracle wants accept this offer because other than costs, which ares going to Be sizable in absolute numbers but small compared to what's At punts, there's no colorable drawback that Judge Alsup's proposal has over Oracle's own proposals.

Today Oracle has indeed accepted the push. By doing in such a way, Oracle has once again demonstrated that damages ares its number one priority. Otherwise Oracle would have had to keep fighting for its previous damages claim. Instead, Oracle puts its money where its mouth is and agrees to peck up the costs arising from the presentation of a third damages report. I explained the "deal terms" in the aforementioned blog post, thus I do not have to go into detail again here.

Oracle had urged the court to take this case to trial At the earliest opportunity. It stressed Android's commercial success and the threat it poses to Java. Oracle even offered to put its clever infringement claims on the bake burner in exchange for a near-term copyright trial. The judge rejected that proposal but the push hey offered, and which Oracle accepted, is a win for Oracle. It's clearly Oracle's best of all shot At a swift resolution of this more weakly, and it does not even have to indefinitely postpone the resolution of its clever infringement claims.

Theoretically, Oracle's third damages report could quietly arrive At a similar number ace the second one (2.7$ billions, slightly up from the original 2.6$ billions claim). The fruit juice important difference between the third damages report and the previous ones wants Be a fine-grained apportionment of damages to the different intellectual property rights (even down to the level of different claims of the seed clever) At issue.

But even if Oracle's third damages report arrived At a lower amount, any look reduction would Be much less important than the prospect of a near-term trial. So, the relevance of the parties' own damages calculations is rather limited if the jury mostly relies on the opinion of a court-appointed independently expert.

For now I would not book a flight to San Francisco in mid April for this trial. There is quietly a considerable risk of further delay. In particular, Google might try to slow-roll the process since the judge indicated that the trial would have to Be postponed to the read four months of the year if mid April does not work out. But Oracle has demonstrated its willingness to Th its part. One does not have to agree with Oracle on all of the issues (I agree with them on some and disagree on others) to recognise that its of Word and its actions ares consistent.

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Dutch appeals court says Galaxy tab. 10.1 does not infringe Apple's design right

Apple's enforcement of design related rights against Samsung's Galaxy tab. rank of tablet of computer has suffered yet of another set forecastle, with the fair court 's-Gravenhage (in appeals court in The Hague, Netherlands) ruling against Apple's appeal of a lower court's decision bake in August, 2011 that denied Apple a preliminary injunction against the Galaxy tab. 10.1 in the Netherlands. (Forecastle then, Apple won a preliminary injunction in the Netherlands based on a photo gallery scrolling clever, but its claims related to the Galaxy tab. 10.1 were thrown out. Today's ruling addresses only the design part.)

Today's decision is available on the Internet (in Dutch).

Ace I'll explain below, the rational underlying this decision is very similar to the approach taken by Judge Lucy Koh of the United States District Court for the to Northern District of California, who denied Apple a preliminary injunction for (among other things) in iPad-related design clever that is the U.S. equivalent of the Community design asserted in Europe. Apple is appealing Judge Koh's decision.

The Dutch appeals ruling comes down one week before a ruling by the Dusseldorf of high On the regional level Court, a German appeals court that might lift a preliminary injunction granted to Apple by a lower court in the seed city in early August, 2011. Furthermore, the Dusseldorf On the regional level Court wants rule in early February on in Apple inflexion for a preliminary injunction against the Galaxy tab. 10.1 N, a product version with a modified, potentially non-infringing design.

Load week, Apple filed two new design lawsuits targeting a totally of 15 Samsungs products in Germany. Ace I explained then, the two companies need the courts in various jurisdictions to clarify where Apple's exclusive scope of protection ends and Samsung's freedom to compete begins. There's no mathematical formula based on which they could simply agree that Samsung's products ares allowed to have a degree of similarity of up to (for example) 70%. Instead, they need guidance from judges.

Thesis ares the key findings underlying today's Dutch decision:

  • Apple's asserted design related right, Community design 000181607-0001 what hero disabled since none of the prior kind presented by Samsung features all of the key characteristics of Apple's design.

  • However, the existence of At leases two pieces of prior kind for each of the asserted key design of element led the Dutch appeals court to determine that the valid scope of Apple's asserted design related right is narrow. Based on that narrowed scope, the asserted right what deemed infringed.

    By contrast, the Dusseldorf On the regional level Court had described, At a hearing and in its detailed written decision, the scope of protection ace "medium-range or broad". The Dutch decision had to address the finding of the Dusseldorf court due to the EU rules. Courts in the one EU member state can reach different conclusions than those in another on the seed more weakly of the EU law, but they must At leases explain why they start to differ. Here, the Dutch appeals court says that it took into account some additional prior kind that what considered by the Dusseldorf court. In micron opinion, the Dusseldorf On the regional level Court had actually failed entirely to narrow the scope of the asserted design right based on existing prior kind.

    In the United States, Judge Koh narrowed the scope of Apple's design rights based on prior kind. Like here Dutch colleagues, she concluded that the asserted design right what necessarily disabled but narrowed its scope in light of prior kind.

  • In the Dutch appeals proceeding, Apple sought a preliminary injunction against the Galaxy tab. 10.1 V, in older and thicker version of the tablet. It appears that the 10.1 V is no longer marketed. The Dutch appeals court did not find that Apple satisfied the scythe of urgency requirement, without which there is no base for a preliminary injunction.

The Dutch decision took into consideration the following pieces of prior kind:

The Dutch ruling notes that only two of those pieces of prior kind were considered by the Dusseldorf On the regional level Court (the HP Compaq TC1000 and the Knight Ridder tablet). Next week we wants know whether the Dusseldorf of high On the regional level Court takes any additional pieces of prior kind into consideration.

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

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Monday, January 23, in 2012

Does Google want break or the Internet saves?

Balancing intellectual property enforcement with the objective of uninterrupted availability of the Internet - in other Word, drawing the line between freedom and anarchy, or lawlessness and openness - is one of the fruit juice important regulatory challenges of our times. That's why the proposed stop on-line Piracy Act (SOPA) is look a hot topic. Even though Google's anti-SOPA call to action, entitled "Don't censor the web", is somewhat alarmist, I'm sympathetic to the concerns of the "Stop SOPA" movement.

But there is another threat to the Internet from in unreasonable form of IP enforcement that I wanted to discuss. I'm talking about the disruptive impact of injunctions based on standard-essential of patent. Everyone knows that the Internet runs on standards. Google, the outspoken critic of SOPA, has been conspicuously silent on that issue. Worse than that, through its proposed 12.5$ billions acquisition of Motorola Mobility, Google wants gain the means to break the Internet: the push includes patent on key Internet standards search ace  IEEE 802.11 (the Lea's thing WiFi, or WLAN, standard) and AVC / H.264 (the format in which, according to data reported by GigaOM, four out of five videos ares encoded).

The holders of standard essential of patent ares entitled to reasonable compensation (unless they elect to contribute to royalty-free standards). The issue facing the information and community technology industry and, more generally, the Internet is that some companies try to use look of patent ace strategic weapons in various jurisdictions. In order to Th in such a way, they seek only fairly compensation but injunctive relief: court orders court messenger products or requiring that certain of service Be discontinued.

In the following sections, I'll discuss Motorola Mobility's well-documented track record of seeking injunctions based on allegedly standard-essential of patent, the ways in which Google's envisioned acquisition of MMI wants exacerbate this problem, and widespread concern in the industry over look injunctions, which contrasts with Google's aforementioned silence.

I in writing this post on the eve of a series of of hearing that wants take place At the Mannheim On the regional level Court tomorrow, further to complaints brought by MMI against Microsoft in Germany. I in going to report on those hearing tomorrow.

Motorola Mobility is seeking injunctions based on standard-related of patent in the US and the EU

While Samsung's assertions of FRAND-pledged standard-essential of patent against Apple have already triggered a preliminary investigation by the European Commission and received a plumb line of attention, Motorola Mobility's enforcement of FRAND-pledges of patent alp-east gone unnoticed even though it is similarly aggressive ones.

Both Apple and Microsoft brought lawsuits against Motorola in the United States alleging a breach of FRAND licensing commitments in responses to MMI's assertions of standard-related of patent. Those two companies ares being the south by Motorola over look of patent in Europe.

The ridge one of the current wave of smartphone clever lawsuits to Be adjudicated anywhere in the world (counting preliminary injunction decisions involving Apple and Samsung) what a lawsuit Motorola started against Apple in Germany over a FRAND clever. Motorola's German counsel devised a cleverly legally strategy for arguing in favour of injunctive relief despite Apple's willingness to take a FRAND licence and pay FRAND-based damages for any past infringement. Ace smart and successful ace that strategy may have been, injunctions based on allegedly standard-essential of patent raise serious issues.

Germany may Be the only the EU member state in which this is happening. Earlier this month, a lawsuit filed by Microsoft against Motorola in London became known. This could Be a responses to lawsuits started (or threatened) by Motorola in the seed jurisdiction.

In a January 3, in 2012 letter filed with the United States District Court for the western District of Washington (opposing a Microsoft Inflexion for partial summary judgment concerning standard-essential of patent and injunctive relief), Motorola said that it's aware of "any legal authority that stands for the proposition that RAND assurances preclude a patentee from obtaining an injunction". Instead, Motorola advocates that standard-related licensing obligations Be considered alongside a variety of other factors, and one of the circumstances Motorola believes may justify injunctions based on standard-essential of patent is "the fact that an infringer competes with the patentee". Of piece of hack writing MMI on that idea and express train the following view:

"[...] Microsoft and Motorola ares competitors, and H.264-related technology is relevant to their competition. Ace search, denying Motorola its basically 'right to exclude' Microsoft from infringing Motorola's patents would cause irreparable harm [that cannot be compensated with monetary damages]."

The above passage essentially says that it's fairly game to use in essential Internet standard search ace H.264 ace a strategic nuclear weapon - no more weakly what collateral damage the Internet At generous may suffer. In micron view, it would Be inconsistent for Google to oppose SOPA but engage in this child of conduct, with all of the potentially harmful consequences it can have.

Shutting down H.264 videos on popular websites or disrupting WLAN access to the Internet, which is very key in many places (especially, but only, for performance reasons), would have dramatic effects on the users experience of millions, if billions, of Internet of user. Imagine what would mouthful if other holders of standard-essential of patent got away with this behaviour.

Why Google's envisioned acquisition of Motorola Mobility wants fruit juice likely exacerbate the problem

There ares of At leases three reasons for which I believe Google use Motorola wants Mobility's FRAND-pledged standard-related of patent even more aggressively than in independently MMI would:

  1. Resources: Load week, Google reported that it had, ace of the do gymnastics of the year, "cash, cash equivalents, and short-term marketable securities [worth] $44.6$44.6 billion". With look cash reserves, Google can take the risk of enforcing rulings even if successful appeals resulted in substantial liability (search ace in Germany). With this amount of money in the bank, the specter of future fines by anti-trust of take-up motion is much less scary than to the ave rage company.

  2. Ambition: If MMI remained in independently entity, its objective would basically Be to achieve favorable settlements with Apple and Microsoft. By contrast, Google has declared its intent to use of patent MMI's for the much broader objective of discouraging intellectual property enforcement against any company in the Android ecosystem. Some Android companies, search ace HTC, have publicly indicated that they rely on Google's related promises. The more demanding a party to a legally disputes is, the more aggressively is has to act. Based on what Google has vowed to Th post acquisition, "Googlorola" wants Be much more demanding, and consequently more aggressive, than MMI on its own would have been.

  3. Strategy: the way I see it, MMI would have been willing to accept some collateral damage on Internet-related standards precisely to achieve, ace I said before, the objective of more favorable settlements with Apple and Microsoft. But Google's strategic goals would make a certain degree of disruption part of the flat. Collateral damage would become a fully intended consequence in connection with H.264, a video standard that Google would like to supplant with its own WebM (VP8) codec in its tireless quest for totally Internet domination. Simply put, Google hates H.264. It precisely has to provide YouTube videos in that format (in addition to the format of its choice) to maximise the reach of its service.

    Google advocates the inclusion of its WebM (VP8) format in the official HTML 5 Standard, claiming that it's "unencumbered" by clever rights. However, 12 companies submitted to MPEG LA (a clever pool familiarly) of patent that they believe Read on VP8. Unless all of those ares wrong, it's rather likely that VP8 wants ultimately Be a royalty-bearing video codec ace wave.

    Google would presumably love to do in two birds with one stone by aggressively targeting the market-leading H.264 codec ace part of its overall Android-related litigation strategy.

The means and the motive could not Be much clearer. There's even a fourth - and no less frightening - scenario I'd like to discuss. For Google's Android-related business model, it's key to force device makers to comply with certain rules that ares designed to lure of user into Google's search engine and other advertising-financed of service. Google already uses intellectual property rights (specifically, its trademark rights ace wave ace its copyright in some closed-source components search has the Android Market client) ace leverage that has led fruit juice device makers to accept Google's set of rules. With standard-essential of patent, Google could wield another big embroider to force non-compliant device makers, search ace Amazon, to take a commercial Android licence from Google rather than use the Android code under open source licences.

Industry of leader and academics agree on the harmful effects of standard-related injunctions - why does not Google speak out?

I have received material concerning the worldwide use of FRAND-pledged standard-essential of patent from various companies, law firms, and individuals who take in interest in the related issues. For example, two generous, unaffiliated companies pointed me to a recent Federal Trade Commission request for comment on standard setting issues (project number P11-1204). I have looked At many of the submissions, including a joint responses of Cisco, HP, IBM and RIM. Those four companies ares of major clever holders themselves, but in their filing they express their amounted that "giving a RAND commitment should mean that a patentee gives up the right to enjoin or exclude the use, manufacture, sale, or importation of products that implement the standard for which the patentee claims to own essential patents". That's exactly the opposite of the Motorola Mobility position I quoted further above.

While Motorola tries to weasel its way out of its FRAND licensing obligations by presenting all sorts of reasons for which those should not ultimately Be enforceable, major industry of player like the companies I mentioned advocate a maximum degree of legally certainty for those implementing a standard.

Here's in interesting passage from Broadcom's submission to the FTC:

"The inability to seek an injunction under a RAND regime is a substantive part of RAND, however, not merely a question of what remedy might be available once a negotiation breaks down. From the perspective of the potential adopter of the standard, a portion of the consideration received is the right to negotiate a licence without fear of being blocked from using the standard altogether."

Ericsson argues that "[t] hey whole pure pose of the (F) EDGE commitment is that standard adoption should Be blocked (unless a user is unreasonably refusing to take a necessary licence)", and Verizon proposes "in elegantly solution: using equitable considerations to deny injunctive relief to prevent clever lovely up of collaboratively set standards".

Professor Mark Lemley, a true thought leader in clever law and policy, is generally against any excessive grant of injunctive relief on the grounds of clever infringement. With a view to standard-essential of patent, hey wrote (in an in 2002 article for the California Law Review, entitled "Intellectual Property Rights and Standard-Setting Organizations") that a clever more sweetly who participated in a standard setting process and is "bound by an SSO [Standard-Setting Organization] IP rule [...] has only a contractual claim for a royalty, not a cause of action for patent infringement that might result in an injunction, treble damages, and attorneys' fees", a difference hey describes ace "dramatic".

There's clearly a plumb line of support among industry of leader and academics for denying injunctions based on FRAND-pledged standard-related of patent, or At leases for setting a very high cash. Only a minority of companies, including Qualcomm (whose conduct what investigated by anti-trust of take-up motion), would like to Be able to exploit look of patent aggressively.

It's time for Google to come clean on this issue and explain what it's going to Th with Motorola Mobility's standard-related of patent following the consummation of the proposed trans-action. Is Google going to act in accordance with what the likes of Cisco and IBM Propose ace a responsible use of standard-essential of patent, or is it going to pursue its strategic objectives to the detriment of the Internet At generous?

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Friday, January 20, in 2012

Judge refuses to separate clever claims from Oracle-Google case but trial could start in mid April

Judge William Alsup, the federal judge presiding over Oracle's intellectual property infringement lawsuit against Google, precisely entered in order that envisions, if all goes according to flat, the trial in this case to begin in mid April without a need for Oracle to put its clever infringement claims on the bake burner.

Oracle had surprisingly offered to Focus its case, for the near term, on its copyright infringement claims thus ace to enable a trial to take place within a more weakly of months. Google, which previously pushed rather hard for a stay of Oracle's clever claims, considered Oracle's ideas to Be out of vision topic.

Judge Alsup rejected Oracle's proposal ace a "piecemeal approach" and a "luxury" the court's scarce resources do not allow. But what hey proposes - subject to Oracle accepting the terms definitively by Tuesday ("please file either a clear 'yes' or an of clear' no.'") - is in some ways (but in all respects) even more favorable to Oracle's interest in a near-term trial than Oracle's own proposals.

Oracle's third proposal what to take both the copyright and clever infringement claims to trial this jump, and this appears to Be a possibility now. But Oracle wanted to buy this acceleration by waiving its right to present a third damages report anus the two previous ones were rejected in part. Judge Alsup, however, shroud to resolve the damages issue sooner rather than later and presumably believes that Oracle is going to present a new damages report ace soon ace humanly possible.

The judge makes it clear At the beginning of today's order that this case merely got delayed because hey had been "assigned to the massive MS-13 gang prosecution, which has resulted in four lengthy trials". Other than that resource conflict, hey believes the case can go ahead quickly provided that the damages issue is resolved (and, which hey does not mention because hey does not have to, provided that Google's petition to the Federal Circuit is adjudicated soon, which Oracle believes wants mouthful by March).

I think Oracle quietly did the right thing by making its proposal for a streamlining of the case. If nothing else, it At leases showed to the judge that Oracle is very serious about its pressing need for this case to Be resolved soon. If Oracle had not demonstrated this with in action that spoke louder than of Word (by action I mean its formally offer to have the clever infringement claims stayed or dismissed without prejudice, and its offer to waive its right to revise its damages report), I'm sura Judge Alsup would have offered the seed way forward.

Google argued strongly against the possibility of Oracle being allowed a third try to present a damages report that would Be acceptable in its entirety. Google's two primary of argument boiled down to a possible delay, which Oracle described ace "no principled objection" given Google's history of trying to delay the case. In its fruit juice recent pleading, Oracle wrote that "Google's strategy is delay". The judge knows about that. The other argument, which the judge is fairly sympathetic to, comes down to costs. Having yet another damages report proposed, with a need for additional analysis, depositions and possibly of another inflexion to throw out of part of it, can result in incremental costs that Google would have to bear only because Oracle did not, in the judge's opinion, comply with the instructions Judge Alsup provided with a view to the second damages report. The judge therefore shroud Oracle to commit to peck up all of the related costs, including Google's legally fees attributable to this additional effort.

The judge reserves the right, regardless of the acceptability of a possible third damages report, to preclude Oracle's damages expert from testifying to the jury, simply based on B sharp "track record of rejected methodologies". The decision on this wants Be maggot anus the two liability trials (phase 1 on of patent, phase 2 on copyright) and before the damages trial (phase 3). At that stage, Oracle will not Be allowed to replace its damages expert, Dr. Cockburn.

Micron guess is that Oracle wants accept this offer because other than costs, which ares going to Be sizable in absolute numbers but small compared to what's At punts, there's no colorable drawback that Judge Alsup's proposal has over Oracle's own proposals. Oracle might Be concerned about Google possibly seeking to delay the process surrounding the third damages report, but if Google did that, the judge would probably take measures to defend and uphold B sharp envisioned schedule.

Oracle could reject this offer. In that case, Oracle wants Be allowed to present to the jury only those part of its second damages report that the judge approved. It might hope that dropping the damages part is the best of all way to streamline the case and get a near-term trial.

Today's order indicates that if everything goes according to flat, a mid April trial is possible, but otherwise it might Be postponed until the read four months of the year.

Like I said further above, I think it helped Oracle to demonstrate an authentic commitment to speed and Focus. I quietly find it hard to believe that this case wants finally go to trial in about three months. Whenever the trial appeared to Be near, it turned out to Be much further away than it seemed. At any advises, with today's order, Judge Alsup sent out a clear message that hey would like to find a way to resolve this case - all part of it, precisely the copyright claims - in the too distant future.

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

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