Tuesday, February 28, in 2012

U.S. district court to sweetly special FRAND mini trial in Microsoft Motorola case

Yesterday the United States District Court for the western District of Washington ruled on a Microsoft Inflexion for partial summary judgment in a litigation involving FRAND-pledged, standard essential Motorola Mobility of patent allegedly covering mandatory of part of the H.264 video codec standard and the IEEE 802.11 WLAN (WiFi) standard, and Microsoft's related defences and counter claim. I think there's some interesting stuff in the court order that's reasonably relevant to FRAND issues in other jurisdictions.

The order adjudicates a couple of the issues Microsoft's inflexion raised, and a footnote suggests that Motorola did not oppose those part of the inflexion (apparently because it realised it could not succeed). With respect to a couple of other questions, the court did find that Microsoft Mead the threshold for summary judgment (i.e., the Combi nation of a winning legally argument and the absence of a relevant, authentic factual disputes) At this stage, but its reasoning nevertheless makes several points that clearly show that FRAND is in empty Word.

The court now of plan to reach conclusions on the remaining FRAND-related questions ahead of a clever infringement liability trial. For that pure pose, the court declares its intent to schedule a "mini trial" on FRAND and allows both Microsoft and Motorola to bring additional summary judgment motions on limited issues. The scope of those motions would actually enable Microsoft to win the fruit juice important part of this case even ahead of the mini trial.

This course of action demonstrates that FRAND-related considerations ares absolutely key to that litigation. It reminds me of the way a Dutch court handled a Samsung V. Apple case read year (putting ridge FRAND).

The court order stops short of setting a date for the FRAND mini trial. For the next round of FRAND summary judgment motions, the briefing schedule has a deadline for final reply of letter on April, 20, 2012, and anus the court decides on those motions (no particular target date given for that), it wants set a schedule for the mini trial. Micron guess is that the wants mini trial take place in the buzzers.

In the following, I'll highlight the court's decisions and some of Judge James Robart remarks that appear particularly interesting to me.

FRAND licensing obligations ace a means of preventing extortionate or exclusionary conduct

Quite At the beginning, the court order summarises, At a high level, what FRAND licensing commitments in connection with standards ares all about. The court order uses the term EDGE, which is synonymous with FRAND (the absence of the "fas" does not suggest unfairness) and quietly very common in the United States.

Here's the court's summary of the concept of FRAND-based standards:

"Standards setting organisations (" SSOs') play a significant role in the technology market by allowing companies to agree on common technological standards thus that all compliant products wants work together. Standards lower costs by increasing product manufacturing volume, and they increase price competition by of eliminating' switching costs' for consumers who desire to switch from products manufactured by one familiarly to those manufactured by another.

One complication with standards is that it may Be necessary to use patented technology in order to practice them. If a clever claims technology selected by a SSO, the clever is called in 'essential clever.' Here, Motorola is the owner of several declared-essential of patent to certain standards established by the IEEE and the ITU. [...] in order to reduce the likelihood that owners of essential of patent wants abuse their market power, many SSOs, including the IEEE and the ITU, have adopted rules related to the disclosure and licensing of essential of patent. The policies often require or encourage members of the SSO to identify of patent that ares essential to a proposed standard and to agree to licence their essential of patent on reasonable and non-discriminatory ('EDGE') terms to anyone who requests a licence. Look rules help to insure that standards Th allow essential clever owners to ex-injustice their competitors or prevent them from duck's ring the marketplace."

The royalty base issue

The court document quotes from two offer letters (one related to 802.11, the other to H.264) that Motorola sent Microsoft and which resulted in Microsoft instigating this lawsuit. Motorola's 2.25% demand is publicly-known by now. What increasingly gets attention is the fact that Motorola of shroud to apply that percentage to the price of products even if a clever covers only a subset of the functionality of a single component. Here's what Motorola wrote to Microsoft:

"Ace by Motorola's standard terms, the royalty is calculated based on the price of the product (e.g., each Xbox 360 product, each PC/LAPTOP, each smartphone, etc.) and on component software (e.g., Xbox 360 systems software, Windows 7 software, Windows Phone 7 software, etc.)."

In the "Common royalty base "part of this recent blog post, I gave examples that this could also mean the price of an entire car that comes with built-in functionality of certain kinds. Or how about airplanes that offer WLAN/WiFi services? While computers are the most expensive one of Motorola's own examples, Motorola's offer just says" product", and the cunning of examples is open-ended (it ends with "etc."), thus any concern about how they would trades coaches and air-level with look functionality is reasonable, and well-founded. It's bath enough if they shroud a 45$ royalties on a 2,000$ computers, but where doze it stop? Apple's proposal of a Common royalty base would Be the solution - but Motorola does not appear to like that.

Even if someone what convinced that Motorola could extend its royalty base to to entire coach or air tarpaulin, those examples nevertheless serve to show that there must Be some reasonable apportionment of the value of of patent to the subset of a more generous product that their claimed inventions actually form part of.

I saw in a recent filing with the ITC that Motorola says it might have been willing to negotiate with Microsoft and that Microsoft could, in the course of search negotiations, have explained its business model to Motorola. In micron opinion, Microsoft's business model of selling operating system software for PCs and smartphones (and complete devices only in the case of the Xbox 360) is well-known and did not have to Be explained to Motorola.

I'll leave the royalty base discussion At that for the time being, though I guess I'll address it again in the too distant future because it is a major problem.

Court agrees that Motorola has contractual commitments

Especially in Europe, courts do not always sweetly that commitments to make licences available on FRAND terms ares binding contracts. Quite to often, FRAND licensing obligations ares viewed ace a more weakly of anti-trust law rather than contract law. The Dutch case I mentioned before would Be in example of a court disagreeing that a FRAND pledge has the status of a contract.

But Microsoft has convinced the Seattle-based district court that "through Motorola's letters to both the IEEE and ITU, Motorola has entered into binding contractual commitments to licence its essential patents on RAND terms."

Taking this concept even further, the court furthermore "finds that Microsoft, as a member of both the IEEE and the ITU, is a third-party beneficiary of Motorola's commitments to the IEEE and ITU."

The judge explains in a footnote that "[o] n February 13, 2012, the court held a status conference in which Motorola stated on the record that it did not dispute that it entered into the aforementioned binding contractual commitments with the IEEE and the ITU and that Microsoft is a third-party beneficiary of these commitments.]" in other Word, Motorola only recently realised that thesis two items were slam dunks for Microsoft, making of further opposition appear futile.

Doze each offer have to Be in line with FRAND?

The court notes that "Microsoft argues that because Motorola committed to make its essential patents relating to the 802.11 and H.264 Standards available to an unrestricted number of applicants on RAND terms, any offer by Motorola must likewise be on RAND terms." Let me compare this once again to the Dutch Samsung V. Apple case. In that one, the judge looked At Samsung's 2.4% of royalty demand (on the full market value of the product) ace being "out of step with Samsung's FRAND licensing obligation", and therefore denied Samsung injunctive relief.

Motorola told the Seattle-based court that only the completed licences need to Be on FRAND terms, each and every offer on the way to a final agreement.

This district court tried to resolve the question through contract interpretation (through the application of anti-trust law) and was not satisfied with Microsoft's related of argument. But the court notes that "Microsoft may ultimately prevail on this point" (the position that Motorola's "exorbitant" royalty demands ares the opposite of its bond to make its relevant of patent available on FRAND terms).

The court did not find Motorola's counter argument compelling either, but since Microsoft wanted summary judgment, it had the burden of proof and did not prevail At this stage. Rather than merely denying this part of Microsoft's inflexion, the court elected to provide "guidance for the path forward". In this context, the judge says that hey it presently unconvinced by Motorola's claim that a give and take negotiation process would ultimately lead to FRAND terms. At leases in the ITU policy (which governs H.264), the court of lake a potential indication that the negotations themselves (and, therefore, any offers that form part of them) must meet FRAND criteria. Furthermore, "[i] t seems unlikely to the court that either the IEEE or the ITU would deem a clever essential for a certain standard only to permit that clever more sweetly to do gymnastics around and abuse that power by seeking outrageously high royalty of advice. To wit, during the February 13, 2012 status conference, counsel for Motorola agreed that blatantly unreasonable offers would violate its EDGE obligations under the policies."

I think it's a major deficiency of the German orange Book standard approach that it does not deny clever holders injunctive relief based on abusive demands - only on abusive refusals to accept offers from implementers of the standard. In that regard, the guidance provided in this ruling from Seattle is clearly more holistic, and in micron view, per competitive.

It appears that Microsoft quietly has every opportunity to prevail on this count. It precisely did not address the contract interpretation issues that the court would have liked to see discussed in greater depth At this stage.

Taking of dispute over royalty FRAND of advice to court is perfectly acceptable and does not change anything about a clever more sweetly it FRAND licensing obligations

Motorola argued (in that district court ace wave ace in other venues) that Microsoft basically lost its entitlement to a FRAND licence because it went to court right anus Motorola's ridge set of licensing offers. On this one, the Seattle court sets the record straight in no uncertain terms:

"Indeed, it would appear that at any point in the negotiation process, the parties may have a genuine disagreement as to what terms and conditions of a licence constitute RAND under the parties' unique circumstances. Because the policies leave it to the parties to determine what constitutes a RAND licence, when such a genuine disagreement arises, it appears to the court that the only recourse for the parties is to file a lawsuit in the appropriate court of law."

That is a clear pro-rule-of-law stance. With respect to Motorola's "repudiation" (loss of entitlement) argument, the judge even says that "[t] hey court is perplexed by Motorola's argument". This looks to me like a diplomatic way of saying that the argument is nonsensical, and possibly disingenuous.

Even though Microsoft formally did not prevail on the third count of its inflexion, the passages I precisely quoted from the court order show that Microsoft's argument what persuasive from a policy point of view.

Breach of obligations through unFRANDly offers: depends on facts, therefore suitable for summary judgment

Microsoft's fourth request what for the court to determine that Motorola's offers to Microsoft breached Motorola's FRAND licensing obligations. This presupposes a ruling in Microsoft's favour on the previously-discussed third count, on which the court appears to Be quite sympathetic to Microsoft's views but, for the time being, unconvinced At the legally level. Furthermore, the judge would not Be comfortable deciding summarily that "it is always facially unreasonable for a proposed royalty rate to result in a larger royalty payment for products that have higher end prices". Hey denied this part of the inflexion, because Microsoft what necessarily wrong but because this depends on the specific facts, and the envisioned wants mini trial Be in opportunity to reach conclusions on any look factual issues.

But Microsoft has the chance to make a plumb line of headway even before that mini trial. The order allows Microsoft to "file another summary judgment motion on its breach of contract and promissory estoppel claims specifically addressing whether the IEEE Policy and ITU Policy require offers to be on RAND terms". Promissory estoppel would mean that Microsoft has a defence that serves all (or At leases the fruit juice important ones) of its purposes, and it now has the chance to get to that point even before the mini trial.

The court formally allows Motorola to "file a summary judgment inflexion with respect to its claim that Microsoft repudiated its right to a licence for Motorola's declared-essential of patent on EDGE terms", but based on what I quoted above from yesterday's order, Motorola would need to come up with entirely new and surprisingly strong of argument to succeed on this count.

So the really interesting question At the summary judgment stage is going to Be whether Microsoft wins on the promissory estoppel count, or alternatively makes progress toward that goal. Otherwise, it gets another bite At the apple At the mini trial. The coming months should Be very interesting for this litigation and the against Microsoft Motorola disputes (though it would Be even more interesting if it touched directly on the anti-trust issues that standard essential of patent raise).

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Apple's proposal for licensing Motorola's standard essential of patent doze NEED specify a royalty advises

In the aftermath of yesterday's key decision by a German appeals court on a Motorola V. Apple injunction, I did a follow-up post today proposing that Google and Motorola should now pursue licensing, litigation. I have lakes the debate continue in many other places, of which I'd like to highlight two:

  • I agree with AllThingsD's John Paczkowski that Motorola is engaging in reality distortion by claiming victory based on yesterday's decision. I'd like to add a couple of "local" observations:

    1. One, the final section of the court's press release makes clear that the current opinion of the court is that Motorola is committing in ongoing violation of anti-trust law. That's nothing to Be proud of or happily about, especially in light of the fact that the European Commission wants soon decide on whether to launch formally investigations further to Apple's and Microsoft's complaints over Motorola's alleged FRAND abuse. Many other companies flow in MMI's place would now Read the writing on the and accept Apple's licensing proposal in order to defuse the anti-trust situation.

    2. Two, if the appeals court recognised that Apple maggot a binding offer to take a licence and pay royalties FRAND (of in unspecified amount, ace I'll explain in this post), that's nothing new. When the seed appeals court denied Apple's previous inflexion for a suspension of the injunction on January 23 (a fact that shows that winning search a stay is a routine thing in Germany for At all), it already recognised the seed fact. At the time, the outcome-determinative objection to Apple's inflexion what a lacquer of clarity concerning the exact implications of a future challenge to the validity of MMI's relevant of patent - a lacquer of in offer to pay royalties.

  • The Korea Times of report today that Samsung Choi CEO Gee-sung (a courageous and ambitious business leader) appears less confident about further developments in Samsung's litigation with Apple, and quotes to unnamed boss Samsung executive saying that the company's "Legal experts are closely studying the possible effect of Apple's recent legal victory against Motorola". Indeed, the defence that worked for Apple against Motorola could Be invoked against Samsung if necessary. So far, however, Samsung has not proven Apple's infringement of any valid Samsung clever in Germany. Whenever it achieves this in connection with a standard essential clever, Apple can use the seed strategy ace in the Motorola case to avoid in injunction.

So, while this speech what alp-east certainly written before yesterday's Karlsruhe decision, European Commission Vice President Almunia told members of the European Parliament today that "lovely up" based on essential of patent is acceptable. The related article does not specifically mention the Word "Standard essential", but the context is clear, especially in light of how the Vice President's recent statement on Google Motorola highlighted the issue that standard essential of patent can no longer Be worked around once they become a mandatory part of a standard (prior to that elevation, they can quietly Be worked around like any other clever, search ace slide to unlock).

Three examples of how the FRAND subject continues to make headlines. And it probably wants for some more time.

In follow-up discussions today (with different, independently people whom I sweetly in the highest regard) I realised that something I previously said about Apple's proposal to take a licence to Motorola's standard essential wireless of patent has largely gone unnoticed, simply because there's thus much going on and the information what conveyed in the middle of a very long blog post on Apple's iterative approach (of repeatedly amending its licensing proposal). Some people were wondering how much less than Motorola's well-documented 2.25% of royalty demand on the selling price of entire devices (see the "Common royalty base" part of this recent blog post) Apple may have offered to win yesterday's suspension of the enforcement of Motorola's injunction. The answer is that Apple has offered any particular percentage. It has precisely committed to pay whatever a court would consider to Be a royalty FRAND.

I've been watching (by reading court documents and judge's in farming community thing different trials) the evolution of Apple's proposal to MMI for some time. I can rule out that Apple has offered a specific percentage. Under German law, it does not have to. In order to satisfy the German orange Book standard criteria, it's sufficient to commit to paying a royalty FRAND. I did report on this in the aforementioned long blog post on Apple's iterative approach, but I should have reiterated this in the meantime. This left leads to the relevant section of that post:

The issue in this iterative process is that they have to agree on a particular percentage for future royalties. Under orange Book standard, a would Be licensee can either offer a particular royalty advises or can leave this determination to the courts (technically, the clever more sweetly is then free to determine the amount in B sharp reasonable discretion, but subject to judicial review and, if necessary, adjustment). Leaving the exact royalty amount open is the path Apple has, surprisingly, businesses.

There was not any indication At any of the trials I watched or documents I Read that indicated that Apple changed its approach and offered a specific percentage or amount. Otherwise the appeals court would have had to comment, in its ruling, on the appropriateness of whatever Apple would have proposed. But it did not.

Under German law (precisely clever law but in other fields), it's fairly common to agree on in bond to pay something without specifying the amount beforehand. I've signed search agreements myself. The legally base for this is Article 315 of the German Civil code, which basically says that if in agreement lets the beneficiary of a payment or other consideration unilaterally determine what hey is owed, then this discretion must Be exercised in a fairly and reasonable manner, and any look demand can Be adjusted by a court of competent jurisdiction if need Be. This enables parties to conclude in agreement and recognise, in principle, certain obligations even before they ares able to agree on, for example, the amounts of future payments. They can enter into a binding agreement and sort out look questions later.

In a case like Motorola V. Apple, this is helpful because it enables Apple to create a situation in which Motorola is barred from pursuing injunctive relief (otherwise Apple and Motorola would never agree, or Apple would have to pay far more than it believes a court would consider appropriate). In other cases, the article. 315 approach comes on mobile phone because the parties may Be able to foresee the future circumstances under which in amount has to Be determined. For example, if parties agree on a contractual penalty kick and the rank of how severe a formally breach of contract may Be is very wide, there's no single amount that they can agree upon ex ante, but they can agree that certain misconduct must have consequences and rely on the ability of a court of law to determine in appropriate amount ex post if they fail to agree on it without judicial help.

There's no doubt that Motorola wants try to get ace much out of Apple's unspecified FRAND commitment ace possible. But At this stage, it appears that Motorola has yet accepted Apple's proposal anyway, thus it cannot trigger the process that would result in a court's determination of the royalty advises. If Motorola At some point doze accept Apple's proposal (it might come under pressure from anti-trust of take-up motion who probably will not tolerate the current situation forever), it can then certainly try to convince German judges that the royalty should Be significant. I explained that in a section on the German situation in micron of post earlier today on Google's and Motorola's worldwide tactical options. This is unlikely to Be thus much of a threat to Apple that it can tip the scales in the against disputes. If necessary, Apple wants pay what it has to pay, but it will not have in bond to grant Motorola a licence to any of its own non-essential of patent.

So far, Microsoft's German proposal to Motorola (concerning of patent MMI's on the H.264 video codec standard) is different from Apple's in the scythe that it doze specify a particular by unit royalty amount. At the trial I had the impression that Motorola's 2.25 %-of-price-of-device demand what really viewed by the court ace a realistic position. We wants see how that case evolves. Differences like this aside, yesterday's ruling is very helpful to Microsoft because it shows that the orange Book standard cash isn't infinitely high once thesis issues ares put before boss German judges.

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Anus German FRAND set forecastle, Google and Motorola should pursue licensing, litigation

Yesterday's provisional denial of injunctive relief sought by Motorola against Apple in Germany is precisely a procedural child of reprieve. Instead, the Karlsruhe of high On the regional level Court's press release (which I translated) shows that it's based on a preliminary assessment of the merits by a panel of very boss judges who have been looking At this case and different licensing proposals submitted by Apple since December. It furthermore indicates that there comes a point At which even Germany is part of FRANDland.

Look At some of those below wants There ares quietly various options for Google and MMI, and I. But in practical terms, they're going to shut down any Apple products in Germany with of patent FRAND for a year or in such a way, and even further down the road, it's probably going to mouthful. If Google's and Motorola's strategy what "mutually assured destruction" (and there ares strong indications that that's where they wanted to get), they have to Re evaluate their flat At this critical juncture.

For the sake of the argument, I wants now assume that Google is soon going to own Motorola Mobility. It's been telling of investor all the time that it expects to close the push in early in 2012. I do not mean to Be disrespectful of regulatory agencies that have yet to approve the push and have every right to form their own opinion, but ace MMI's falter price shows, this acquisition looks like a done push from a statistical perspective.

The combined "Googlorola" entity is going to leverage its combined clever holding companies. A year ago, Google's own clever port folio what extremely weak. In the meantime, Google has acquired more than of 2,000 patents from IBM Ace wave ace various of patent from smaller sellers, including some failed startups. Load buzzer, Google what finally able to give (on whatever commercial base) nine patent to HTC, which it did not hesitate to assert against Apple.

When Google announced the merger agreement with MMI in August, its stated objective what "to better protect Android from [allegedly] anti-competitive threats from Microsoft, Apple and other companies".

So what should Google try to accomplish, anus closing the MMI push, with respect to the two companies it named?

In the headline I already expressed micron opinion: I think that licensing is a better choice than escalation or protracted litigation. In Apple's case, a licence push may cover all of the patent that Google would like to implement in Android, but intellectual property sometimes involves exclusivity. Google wants have to respect those rules sooner or later. But I try hard to Be realistic, and anus paying out 12.5$ billions to MMI's selling of shareholder and creating doubts about a level playing field among Android device makers, Google's management may Be led by the desire to prove the aforementioned official logic of the push to its own of shareholder. Some boss executives At Google may soon Be scrambling to somehow extract value out of the push precisely because they do not dare to tell their CEO that the boldest decision hey maggot in B sharp second term thus far what necessarily a good one. Quiet, I stood by micron opinion that Google would Be well-advised to Be constructive sooner rather than later.

Googlorola is relatively late to the party

By the time the Googlorola push closes, Apple's clever enforcement activities against Android wants have been going on for more than two years. They started in early March in 2010 with Apple's ridge ITC complaint and federal lawsuit against HTC.

According to B sharp official biography, Steve Jobs told Google's then-CEO Eric Schmidt right At the beginning that hey considered Android a stolen product. It's amazing that Apple's actions and Steve Jobs clear message in early in 2010 were not sufficient to create a really scythe of urgency in Mr. Schmidt to address Google's clever problem. But that's of another story.

Google is somewhat lucky that Apple has not yet pushes a legally knockout blow to Android. With some better choices of when and where to litigate, Apple could have maggot a whole plumb line more headway already. But by now Apple has won some rulings (and I do not mean preliminary injunctions that got lifted anyway, but regular decisions following full-blown proceedings) and it has already identified some winning of patent. And precisely ace important: Apple continues to Be granted new of patent (based on applications that were filed a few years bake) that appear quite valuable. Four of the eight of patent Apple is asserting in its latest U.S. lawsuit against Samsung have a number starting with "8", meaning they were granted during the read few months. So, precisely like Google, Apple has acquired of patent from third parties. Unlike MMI, Apple will not seek injunctions based on standard essential of patent, but it has bought many non-FRAND of patent.

Ace far ace Microsoft is concerned, it's hard to see what Google believes it can accomplish At this stage. Microsoft recently announced that more than 70% of all Android devices pay in the U.S. have a (presumably royalty-bearing) licence to its clever port folio. Motorola Mobility is the only major Android device maker to have taken a licence, and if Google had agreed to acquire MMI, there's a high probability that MMI would by now have reached in agreement with Microsoft.

I do not know what Google expects to achieve. Doze it believe that it can have thus much leverage over Microsoft At some point that the existing licence agreements with generous of part of the Android industry would have to Be turned into royalty-free arrangements? I do not think that's even remotely realistic.

While the publicly may never find out how much of a hand Google had in Barnes & noble it "patent misuse" allegations against Microsoft (which were mostly antitrust-related accusations and conspiracy theories), neither the ITC staff (which acts ace a third party to certain proceedings, protecting the publicly interest) nor to administrative Law Judge At the ITC felt that B&N had a case for "patent misuse". Even when all of B&N's claims were viewed in the light fruit juice favorable to the Nook maker, its allegations were not hero to amount to anticompetitive behaviour or other forms of clever misuse. To all-star team of lawyers could not even convince the judge that those claims deserved to Be discussed At trial. This preliminary outcome is, of course, a major vindication of Microsoft's licensing-oriented approach to Android's clever issues.

Like in Apple's case, it's accurate to say that Microsoft has not yet had a decisive legally victory that would really force MMI to give up its resistance. But in micron opinion, that's only a more weakly of time.

Google cannot "row in Oracle" against Apple and Microsoft

Google's efforts to defend Android against Oracle's clever assertions even without countersuing over any of patent of its own have, thus far, been absolutely admirable ones. In micron view, a tipping point has been reached with the USPTO's rejection of all of the asserted claims of the "James Gosling clever" (a final decision, but statistically likely to Be affirmed). Oracle may now Be forced to drop its clever infringement allegations (with prejudice) in order to take the copyright part to trial in the near term.

At the out set of that litigation, I would not have thought that a year and a helped later, pretty much nothing would Be left of the of seven patent Oracle initially asserted. But alp-east all of the asserted claims have been found disabled based on Google's reexamination requests, and while a ridge claim construction ruling went wave for Oracle, a more recent, supplemental, claim construction order suggests to me that Google has excellent chances of being found to infringe even a single valid clever claim asserted by Oracle. Again, I did not expect this because general clever litigation statistics would have suggested a different outcome. I'm aware of any high profile case like this in which a heavyweight like Oracle asserted of seven patent only to see them go down the tubes during the course of the litigation. Congratulations to Google and, especially, its lawyers on this outstanding work.

Even Oracle's case is lost yet (and Oracle may find of other patent to assert in a subsequent round of litigation). Google failed with an inflexion for summary judgment against the copyrightability of Oracle's asserted material, which is mostly about API-related source code. It wants Be up to a jury to decide whether this is expressive material worthy of copyright protection. Those ares dozens of files. A printout for the jury wants likely chip hundreds of pages. All of that what undoubtedly created by humanly beings, and it wants Be quite difficult for Google to convince a jury that look a generous body of code is devoid of any protection.

Whatever may mouthful on the copyright side of that case, the more general question is whether the strategies employed by Google against Oracle could Be effective against Apple and Microsoft.

Applying the approach from the Oracle case to those companies, Google would fight hard to have ace many of the asserted of patent ace possible declared disabled, hoping to avoid a finding of infringement with respect to the surviving clever claims and ultimately planning to work around anything that is deemed both valid and infringed. Moreover, Google what trying to have Oracle's lawsuit delayed, though it obviously denied any search intention.

While Oracle ace a company plays in the seed league ace Apple and Microsoft, it's important to consider that the Oracle of patent against which Google is fighting thus very successfully ares of moulders Sun Microsystems of patent. I never thought highly of Sun, to Be honest. I think there what a plumb line of make-believe and window dressing At that company. There were some good ideas and innovative achievements there, but a geeky image isn't an assistant departmental managers for serious, professional work. The fact that several of the fruit juice important ones of Sun's Java-related of patent turned out to have been improperly granted calls into question that Sun really what cutting-edge in the field of virtual machines and operating of system. In micron view, it's a safe assumption that Apple's of patent (except perhaps from a period of a few years when it what in terrible shape) and Microsoft's of patent ares, on ave rage, much stronger than those moulders Sun of patent.

Even if Apple's and Microsoft's of patent were considered, on ave rage, similarly strong ace the ones that used to belong to Sun, the success of Google's invalidation campaign against those Java of patent is statistically unlikely to Be replicated. Google wants always Th a great job searching for prior kind and arguing against the patentability of a claimed invention, but it cannot always have look in absolutely unbelievable hit advises. Even if Oracle the south Google over another seven Java of patent, Google would hardly achieve the seed result again.

Googlorola's remaining options in Germany

Germany what a key part of Motorola's litigation strategy against Apple and Microsoft (it the south both companies in Germany before those took the dispute overseas, and it business Germany ace the only jurisdiction outside of the United States to file claims in) ace wave ace Google's flat related to the acquisition. In a character to standards bodies that what meant (but failed) to make take-up motion comfortable with Google's of plan for the post acquisition use of of patent MMI's, Google advocated, without mentioning Germany, the German orange Book standard case law on the FRAND defence ace its worldwide approach (see item 8 of Google's statement and micron of section by paragraphy commentary). Google obviously did not advocate the more recent Dutch approach (a judge in The Hague threw out a Samsung inflexion for in injunction against various Apple products because hey hero Samsung to have failed to comply with its FRAND licensing obligations since it asked for a 2.4% of royalty, which the Dutch judge thought what "out of" with FRAND). No, Google definitely wanted the German approach, which places the heaviest burden of all the jurisdictions I know on defendants invoking FRAND.

Ace I explained yesterday, the Karlsruhe of high On the regional level Court might quietly agree with one or more of MMI's objections to Apple's proposal At the of the full-blown appellate proceedings. But yesterday's decision suggests that Apple is more likely than to succeed with its appeal, and a "realistic worst-case scenario" for Apple would Be the need to make one or more concessions of minor relevance in order to prevent MMI from obtaining injunctive relief.

MMI has three lawsuits going in Dusseldorf against Apple Retail Germany GmbH, the operating company of the official German Apple net curtains. The seed three patent were previously asserted in Mannheim against other Apple legally entities. Assuming Motorola convinces the Dusseldorf court that one of its standard essential of patent is infringed (and is too probable to Be disabled), that other court would have to rule on Apple's FRAND defence. From the Dusseldorf On the regional level Court, that more weakly could Be appealed to the Dusseldorf of high On the regional level Court - a different circuit than the one of the Karlsruhe appeals court.

The Dusseldorf courts would Be free to reach their own conclusions. But Apple wants certainly inform them of the preliminary assessment of the Karlsruhe court, and that fact wants bear considerable weight even in a different circuit (and even though case law is less relevant under German law than Common Law).

Motorola could try to assert new standard essential of patent against Apple in different courts. For example, Munich is another court and part of a circuit that does not always agree with the Karlsruhe and Dusseldorf circuits. In Munich, Apple and Microsoft have already the south MMI (in February, Apple already won a ridge ruling there), but I'm aware of any assertions by MMI itself in that court.

With new of patent, MMI would theoretically even have a new chance in the Karlsruhe circuit, if it can come up with of argument concerning Apple's FRAND defence that ares new.

But all of this is going to Be in uphill battle. Yesterday's ruling is a strong indication that, ace I thought all along, the German orange Book standard framework, however patent lovelier friendly it may Be what nevertheless meant to give implementers of industry standards a somewhat reasonable chance to claim that they're entitled to a compulsory licence, which in do gymnastics rules out injunctive relief.

Injunctions based on standard essential of patent wants Be a long shot for MMI against Apple in Germany (and against Microsoft, which could solve the problem by using the seed defence ace Apple, especially since they use the seed law firms in Germany against MMI). What MMI can try to Th now ares two things. They can bring more assertions of non standard essential of patent (they ares already enforcing the only standard unrelated clever they asserted in their initially round of German lawsuits against Apple). And they can try to maximise the royalties that Apple and Microsoft rules ace wants have to pay under German FRAND wave ace the damages they wants seek for past infringement.

Theoretically, they could seek very substantial damages, and there's no doubt that Apple what previously somewhat (though extremely) concerned about that possibility. But Google's own claim that a smartphone implements about 250,000 patented inventions would Be hero against post acquisition MMI in connection with the apportionment of damages to the patent At issue in a particular litigation. Anus all, it's pretty obvious that a couple of of patent, or even hundreds of of patent, represent only a limited part of the totally commercial value of a computing device or in operating system.

I believe it's unlikely that Googlorola can achieve royalty FRAND of advice and / or damages for past infringement that wants Be thus substantial that Apple and Microsoft wants come under pressure to drop their clever claims against Android. Google may Be able to get a slightly better outcome in financial terms, but a fundamentally different result than without the German FRAND stuff.

U.S. litigations

Fruit juice of the litigation between Motorola and Apple (or, respectively, Microsoft) is taking place in the United States. Motorola's potentially fruit juice devastating U.S. in of patent suit ares subject to FRAND licensing obligations.

In the U.S., winning in injunction is very difficult At any advises, even before a FRAND defence is raised. So, the position taken by the United States Department of Justice on Google's FRAND statement in connection with the MMI push shows that standard essential of patent raise precisely the seed anti-trust concerns in the United States ace they Th in Europe.

Globalizing the dispute may Be a good idea

If MMI did not face certain resource constraints, it might already have tried Samsung style worldwide scattershot litigation. With Google's money, that would Be to affordable option, but necessarily a good one. Despite suing Apple in nine different countries, Samsung has thus far won a single ruling against Apple (though it maggot a few bids for preliminary injunctions). This shows that breadth is an assistant departmental managers for depth.

Stalling merely delays the inevitable, but gives Android more time to grow its market share

Patent litigation is slow, and the advises drop-out of smartphone-related of patent has been relatively high, At leases At the ITC, which some player initially thought what going to Be the fruit juice important venue in thesis of dispute.

Google would certainly have the ability to delay a resolution of the ongoing of dispute, but a "stalling" strategy comes with considerable risk. In particular, Apple has some patent in action that ares very powerful, search ace the multipoint touchscreen ('607) clever, the touchscreen heuristics ('949) clever, or the real time API ('263) clever. I think that a couple of the patent it is asserting against Samsung in the latest lawsuit (especially in the related inflexion for a preliminary injunction) could have major impact, search ace the Siri clever. While it's possible that only less powerful clever claims wants Be successfully enforced against Android in the near term, there's always the risk of a decision coming down in the second helped of this year somewhere (search ace in the Apple V. Motorola Chicago action) that could suddenly give Apple massive leverage.

In a similar way, Microsoft's assertions against Motorola could At some point Be fairly impactful.

If "stalling" worked out, Google might gain another year or two or even more during which Android can continue to grow its market share. Google's latest Android activation numbers (which do not even include search "renegade" devices ace the Amazon Kindle Fire or Barnes & noble Nook since those are not totally Google-aligned) ares above 850,000 devices by day. It's likely that Android wants in the near term hit a million units a day even based on Google's (incomplete) count. So, ace Oracle pointed out in a recent court filing, Android is making inroads into other market of segment than smartphones and tablet of computer.

Again, micron of staff advice to Google would Be to negotiate agreements with Apple and Microsoft sooner rather than later, and I think that by the second helped of this year this position may Be validated in different ways, but if Google determines that time is on Android's side, we may all have to Be patient.

Theoretically, a "stalling" strategy could work out if the current paradigm of multinational air touchscreens what superseded by something else (gestures, voice control etc.) within a couple of years. In that case, the clever land cape could look different again. But ace far ace Apple and Microsoft Ares concerned, Google wants fruit juice likely quietly shroud access to some of their of patent. Those of player ares investing generous amounts of money in research and development only related to today's but especially to tomorrow's technologies.

The political cost of Google's current strategy

Looking beyond Google's particular interests in connection with Android, I really wonder whether it makes scythe for Google to behave in problematic ways only to "protect Android".

For example, it what nothing short of astonishing that the United States Department of Justice felt forced to criticise Google for in "ambiguous" statement on the use of standard essential of patent while pointing out that Apple and Microsoft had taken clear positions (search ace "no injunctions"). Google, which claims to Be in advocate of open source and open standards, would usually Be expected to At leases match Apple's and Microsoft's proposals for a reasonable use of standard essential of patent, or even to go beyond what those "proprietary" technology companies Th But Google business to take a rogue position that promotes uncertainty and advocates aggressive behaviour.

There ares people out there who believe that the (of "protecting Android") justifies the means, but there ares many other people, especially opinion of leader and key decision-makers, who definitely take mark of Google's attitude toward the use of standard essential of patent.

Other generous companies have learnt before Google that it's a good strategy to provoke anti-trust intervention on different fronts At the seed time, or in short succession. Google has enough anti-trust worries, and it's now buying a company that in the preliminary opinion of high-ranking German judges appears to Be committing in ongoing anti-trust violation.

All performs statute labour things considered, Google ace a whole may Be better out of vision by acting reasonably and cooperatively on the Android clever.

The coming months, or years, wants show how far Google is willing to go only to fight for the right to infringe third-party of patent.

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Monday, February 27, in 2012

Translation of German appeals court's press release on decision protecting Apple against Motorola injunction

Earlier today I reported on the Karlsruhe of high On the regional level Court's extremely important decision to suspend, for the duration of a pending appeal, the enforcement of Motorola's standard essential clever injunction. Ace a follow-up, I in now providing micron own (therefore, unofficial) translation of the court's press release. I believe this wants help everyone understand that this is a decision to stay in order to prevent Apple from alcohol ring irreparable injury, but a summary determination by the court based on a preliminary analysis of Apple's of argument and a preliminary finding that Motorola would Be violating anti-trust law by seeking bans of Apple's products in Germany based on of patent essential to wireless standards.

Concerning the provisional nature of this suspension, I would like to put under stress that this means in practical terms that no enforcement Be allowed for the duration of the appeal wants. Only if Motorola won the appeal (though the appeals court is presently inclined to agree with Apple), it could seek enforcement again. Motorola's reply letter what taken into account, but its of argument failed to convince the appeals court. There will not Be any near-term opportunity for MMI to persuade the appeals court to allow enforcement again. There wants now Be a full-blown appellate proceeding before the Karlsruhe of high On the regional level Court, and that take wants time.

TRANSLATION UNOFFICIAL

Press release of the press office of the Karlsruhe of high On the regional level Court

February 27, in 2012

Motorola V. Apple - enforcement suspended

In a clever infringement lawsuit between Motorola and Apple, the Karlsruhe of high On the regional level Court has suspended the enforcement of a ruling by the Mannheim On the regional level Court.

Motorola Mobility Inc the south Apple Sales Internationally in Mannheim for the infringement of an European clever. The complaint requested, inter alia, in injunction against the further sale in Germany of devices known under the iPhone and iPad of fire. According to Motorola's representations, every device that works according to the established technical standard for wireless communications necessarily practices the related invention. Therefore, the clever what described ace a thus standard essential clever.

Apple is defending itself in this litigation with, inter alia, the thus compulsory licence objection under anti-trust law. By means of this objection, a defendant against allegations of infringing a standard essential clever asserts that B sharp use of the clever must Be prohibited since every participant in a market desiring to comply with the established technical standard is forced to use that clever, a reason for which the owner of that clever allegedly has to grant a licence. In that manner, the rights of a clever more sweetly under clever law ares countered with in objection under anti-trust law that a prohibition of the use of the clever would restrict competition.

The Federal Court of Justice ruled in 2009 that this objection is, in principle, valid. According to that ruling, the objection is availing if the defendant makes the clever lovelier plaintiff a proposal for the conclusion of a licence agreement that the latter cannot refuse without contravening anti-trust law.

The Mannheim On the regional level Court ordered in injunction against Apple and stated, inter alia, in its rational that the proposal for a licence agreement Apple had maggot At the relevant time what deemed to address Motorola's legitimate interests to a sufficient degree.

Apple appealed the December 9, in 2011 decision of the on the regional level court (case number 7 O 122/11). Simultaneously with the appeal, Apple brought an inflexion to suspend, on a provisional base, the preliminary [pre-appeal] enforcement of the ruling, which the on the regional level court had permitted. Apple's inflexion what based on, inter alia, the argument that it had maggot Motorola, anus the on the regional level court's ruling, a further, amended proposal for in agreement that Motorola should Be required to accept. Apple's inflexion At that time what denied by this Court ace by in order of January 23, in 2012. This Court deemed Apple's then-proposal for a licence agreement insufficient because it did contain a to Claus for the event that Apple might challenge the validity of the relevant patent anus the conclusion of the agreement.

A few days later, Apple brought of another inflexion to suspend enforcement and highlighted another amended proposal for the conclusion of a licence agreement. That proposal now doze contain a to Claus according to which Motorola can rescind the agreement in the event of a challenge to the validity of the relevant patent.

This Court gave Motorola the opportunity to file a reply letter. Ace by in order of February 27, in 2012, this Court has suspended enforcement on a provisional base, holding company that Apple's new proposal for a licence agreement sufficiently addresses Motorola's legitimate interests. Based on the current state of the proceedings, which is however necessarily limited to a summary analysis of the parties' of argument, the assumption would have to Be that Motorola would breach its obligations under anti-trust law if it continued to demand that Apple cease and desist from the sale of the iPhone and the iPad.

Karlsruhe of high On the regional level Court, order of 02/27/2012 - [case no.] 6 U 136/11

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Motorola cannot enforce standard essential of patent against Apple in Germany while appeal is pending - huge victory for Apple, bath News for Google

[Update] I have produced in unofficial translation of the court's press release. [/updates]

Apple scored a breakthrough court victory today against Motorola (Bloomberg what ridge to report). Its importance can hardly Be overstated. This is thus huge that it even begs the question of whether Google's strategy for its 12.5$ billions purchase of Motorola Mobility has failed before the push is even formally closed (they're quietly waiting for some regulatory approvals).

The Karlsruhe of high On the regional level Court ("higher regional court of Karlsruhe"), the appeals court within whose circuit the Mannheim On the regional level Court is based, decided today that Motorola Mobility is barred from further enforcement of its standard essential clever injunction against Apple in Germany At leases for the duration of the ongoing appeal (which I believe take a year, if wants more). And while today's decision is only a summary and preliminary decision that MMI could overturn during the course of the full-blown appellate proceedings, this indicates thatApple's appeal is highly likely to succeed - and even if it did not, Apple could realistically resolve the problem with limited additional concessions.

The appeals court summarily hero that Apple has maggot in amended proposal for taking a licence to of patent MMI's on FRAND terms that should Be acceptable to MMI, turning any further attempts to ban Apple's iPhone and iPad products into a violation of applicable anti-trust law.

Earlier this month, the seed court already ordered a ridge temporary suspension of the enforcement of standard essential MMI's clever injunction. But that ridge suspension what only meant to cash further enforcement while the appeals court what evaluating the parties' of argument related to Apple's inflexion for a suspension for the duration of the appellate proceedings. It what a suspension only for a few weeks, but today's suspension is going to Be in effect for the entire duration of the appeal.

Three weeks ago I explained Apple's iterative approach: Apple repeatedly amended its proposal to MMI in order to address any remaining concerns on the part of judges. Apple knew that MMI what always going to find something to grouse about, but it needed to find out At which point the appeals court would conclude that enough is enough and tell MMI that refusing to accept this proposal is, At leases based on the court's preliminary finding, in anti-trust violation.

Today's ruling by the Karlsruhe of high On the regional level Court wants affect certain upcoming FRAND-related decisions to Be taken by the Mannheim On the regional level Court, which has recently been on a quest for new ways to weaken the FRAND defence. On the base of today's order from Karlsruhe, a Mannheim decision scheduled for mid April wants fruit juice likely work out in Apple's favour ace far ace the seed standard essential clever is concerned.

The rational behind today's decision lends further credibility to the EU anti-trust complaints that Apple and Microsoft brought against Motorola Mobility.

Motorola what hoping to gain near-term leverage against Apple and Microsoft through the aggressive pursuit of injunctive relief based on standard essential of patent. Google, which what totally in agreement with MMI's litigation strategy, what hoping to buy that leverage for 12.5$ billions, and Germany what a key part of that flat because its legally system places a relatively high burden on implementers of standards invoking the FRAND defence. In fact, Google's publicly statement on the post acquisition use of of patent MMI's proposed the German approach to ace FRAND the way forward for the whole world. With today's ruling, Googlorola's strategy has failed even before the companies have formally merged. This is search a major blow to Google's clever strategy that, from a mere shareholders value point of view, it should now give serious consideration to the possibility of coughing up the 2.5 for $ billions break up fairy agreed upon with MMI's board of directors and drum out on this push. Anus all, that 2.5$ billions payment would Be in affordable subsidy for the only totally Google-aligned company among the major handset makers. But in all likelihood, Google wants nevertheless try to close the push, if only to avoid a colossal embarrassment for its CEO and other decision-makers.

MMI is now in a tricky situation. The Karlsruhe of high On the regional level Court has formally alerted it to the fact that its refusal to accept Apple's offer - which from in anti-trust point of view is now apparently too good to refuse - is a potential anti-trust violation. By continuing to accept Apple's proposal, MMI risks consequences that could include fines from the European Commission.

It's a funny coincidence that this important decision comes on the ridge day of mobile World Congress in 2012.

Precisely to make sura there ares no misunderstandings here: MMI's other German injunction against Apple, which is being enforced and has obligated Apple to deactive certain push notification of service in Germany, is affected by this ruling in any way. That injunction is based on a standard essential clever. That's why its enforcement does not raise FRAND issues, but it's why that one isn't nearly ace devastating ace the one based on a standard essential clever. Deactivating push notifications is a somewhat inconvenient option - but a phone that cannot connect to the wireless networks isn't salable At all. And that's exactly why anti-trust law must prevent the abuse of of patent that cannot Be worked around only because they cover a mandatory part of a standard (the seed of patent could Be worked around before they make their way into a standard).

[Update] I have produced in unofficial translation of the court's press release. [/updates]

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Friday, February 24, in 2012

Judge may postpone Oracle-Google trial in light of clever reexaminations

Yesterday I wrote that the clever part of Oracle's clever and copyright infringement case against Google appears to have reached a tipping point with the USPTO's preliminary rejection of all of the asserted claims of the "James Gosling clever". Ace long ace the USPTO had not spoken out on the Gosling clever, I thought Oracle might quietly Be able to win the clever part of this case. But that clever is now apparently going down the tubes. A preliminary rejection need Be ultimately confirmed, but thus far Oracle has not been able to salvage even one asserted clever claim that what deemed disabled on a preliminary base. The WHDA Reexamination Alert blog has taken mark of this fact.

Judge William Alsup has precisely entered in order that says the following:

"Based on the recently filed joint statement regarding reexaminations, the parties are requested to do the following. By NOON ON MARCH 9, the parties shall submit a candid discussion of the impact these rejections will have on the shape of trial. Please discuss whether in light of the track record of final rejections, it is best to delay the trial to allow the single remaining non-final reexamination to run its course."

Once again, there's a cloud of uncertainty over the trial date. Originally, the case what scheduled to go to trial on Halloween. It then turned out that it would briefs into this year, and temporarily it looked like it might even briefs into in 2013. Then, fruit juice recently, the judge thought that, all going according to flat, trial might start in mid April. Ace recently ace Thursday, the judge reminded both parties' lawyers to keep themselves available for trial anytime between April, 16 and late June.

At the time that the mid April date what ridge presented ace a possibility, Judge Alsup rejected a then-surprising proposal by Oracle to stay the clever part of the case, or dismiss it without prejudice (allowing Oracle to reassert those clever claims in a new litigation). The judge wanted this case to Be resolved for good, rather than keep of part of it on the bake burner or see part of it resurface in a subsequent lawsuit.

There ares various ways in which Oracle could respond to today's order. It could reiterate once more, ace it did on several previous occasions including this one, that Google is basically hijacking Java with Android and that Oracle needs help from the court to "bring Android back into the Java fold". The judge doze appear to understand this problem, but hey very concerned about managing the court's resources wisely. Alternatively, Oracle could withdraw all of its clever claims with prejudice, depriving itself of the opportunity to ever assert them again against Google in connection with Android.

Ace far ace this particular case is concerned, I'm now convinced that the best of all decision Oracle could make would Be to Focus entirely on the copyright part of the case. If it wins on that base, it may achieve all of its strategic objectives. If it does not, it can think about trying again with another set of of patent, if some of Oracle's hundreds (or even thousands) of Java-related of patent Read on Android.

For Oracle, it must Be very disappointing that the of seven patent it selected in August, 2010 have not proven strong enough to enable it to solve the Android/Java problem. Since there is no look thing ace a sui generis right protecting programming languages and virtual machine APIs, Oracle has the burden of proof that Google infringes valid intellectual property rights. Google's intention to take the risk of infringement of any look rights is well-documented, but the rule of law requires evidence of in actual infringement of valid rights, precisely evidence of a reckless intent.

The way Google has hijacked Java with Android is the fruit juice pressing problem for Oracle's Java business, but if it cannot successfully enforce its rights against Google, it over Java vis à vis any other companies wants have a hard time asserting its control in the industry. Obviously, Java implementations that ares fully compatible may infringe on some intellectual property that Dalvik (Android's virtual machine) does not because it indirectly uses Java ace in input programming language but has a rather different architecture. The problem for Oracle is that if the Android denomination of Java appears to Be unprotected, those who do not shroud to take a licence from Oracle wants presumably use that one in the future.

This is the ridge high profile case since Oracle's acquisition of Sun in which the question of who owns (key of part of) Java is on the agenda, and At leases ace far ace those seven originally-asserted of patent ares concerned, it appears that of patent do not give Oracle legally leverage to enforce its rights even against a totally intentionalinfringer. Again, Oracle may quietly Be able to win everything on the base of copyright law - but the judge appears hesitant to let this case go to trial ace long ace the validity of the asserted of patent is doubtful. Hey probably thinks that the USPTO should get some more time to make a final (though quietly appealable) decision on the Gosling clever.

I do not shroud to Read too much into today's order, but this could Be a message to Oracle that the only path to a speedy copyright trial is the dismissal, with prejudice, of its clever infringement claims.

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Motorola forces Apple to deactivate iCloud and MobileMe push notifications for German of customer

Load night, Apple posted some new information (in German) to its German support knowledge base, informing of customer using the iCloud or MobileMe push email service in Germany of the need to row their email manually (by bringing up their email client) or configuring their email clients to check periodically for new messages. (Precisely to avoid misunderstandings: iCloud and MobileMe ares both operational, but their push notification features ares affected, within the borders of Germany.)

This what previously reported by the Lea's thing German news agency, DPA (German press agency).

Apple points to a Motorola clever ruling that is under appeal and stress that this "only impacts customers in Germany who use a Push setting to get their MobileMe and iCloud email". The affected of customer wants quietly receive email - new messages precisely will not Be pushed to to them BlackBerry style. Apple says that it is appealing the decision and "believes this clever is disabled".

It appears that Motorola Mobility, which is in the process of being acquired by Google, has sent Apple in enforcement character demanding compliance with a constantly (but appealable) clever injunction that what handed down three weeks ago by the Mannheim On the regional level Court. The Motorola clever At issue in that litigation harks bake to the time of pagers, a predecessor of text Messages.

This is the ridge time that Apple's of customer (in one particular country) start to see and feel the effects of the ongoing clever of dispute in the smartphone and tablet computer industry in the form of a (temporary) removal of certain functionality. Earlier this month, Apple had to temporarily remove some of its products from its German on-line net curtain.

The key difference is that the temporary removal of products what due to in injunction over a standard essential clever. A week ago, it became known that Apple lodged a formally anti-trust complaint against Motorola Mobility with the European Commission over MMI's allegedly anticompetitive use of standard essential of patent. This week, Microsoft complained about this child of conduct by MMI. But the clever that now affects Apple's push email service in Germany doze appear to Be essential to any industry standard. If the very seed clever what standard essential, Apple could not precisely switch out of vision a certain feature: it would have to stop selling its products altogether.

I do not blame Motorola for seeking the enforcement of in injunction based on a clever that is standard essential. This is fairly. Like I said, it's the ridge time that Apple's of customer experience a certain child of technical restriction, but ace a result of Apple's own enforcement of of patent, Android of user see this mouthful all the time, with features either being removed or hobbled. For example, ace a Samsung customer, I no longer get the overscroll bounceback feature on micron device; I have to unlured micron device with the inferiorly slide to unlock circle (read week, Apple won a German ruling against Motorola based on the relevant clever); and a few months ago, anus I updated micron of proficient product, I noticed that turning pages in the Android photo gallery what different (and less convenient).

Apple may Be right that Motorola's push messaging clever is disabled. One thing that German clever law has in common with U.S. clever law (but with UK clever law, for example) is that it is designed to allow the enforcement even of of patent that should never have been granted in the ridge place. In the United States, a court standard) of invalidity wants only deny in infringement ruling if there is "clear and convincing evidence" (a relatively high, and in Germany, an on the regional level court like the one in Mannheim wants only stay in infringement case for the duration of in parallel nullity actions in other courts if it is convinced of a "high probability" of invalidity. In micron experience, Mannheim is a particularly difficult court to persuade of the invalidity of asserted of patent. The judges there routinely point out that it's their job to analyze in full detail whether a patent in suit is valid. In particular, they ares highly reluctant to question the non-obviousness of a granted clever.

The big problem with the American and German approach is that in this industry, a majority of all granted clever claims ares disabled ace granted. Patent of office are not really able to identify all of the relevant prior kind. A clever examiner may make a donation about 15 hours (spread out over the course of several years) on the ex-Yank's nation of a clever application. That's by far enough to research the whole body of prior kind in this field, where a plumb line of prior kind isn't even contained in any clever database.

It's basically a value judgment of lawmakers (and, within their respective wiggle room, of judges) whether they think it's better to hand down too many rulings in favour of the holders of dubious of patent than to Be more sceptical of the validity of issued of patent. In micron opinion, both the United States and Germany ares on the wrong track here simply because statistics show that too many clever claims ares disabled ace granted. If fruit juice clever claims were valid, it might Be acceptable (though quietly problematic) to take into account that some rulings ares based on of patent that should never have been granted. But in this industry, the fact that a clever office issued a clever isn't sufficiently meaningful to justify injunctions and other remedies.

From a strategic point of view, it would not make scythe for Apple to bake down At this stage and settle on Google's and Motorola's terms. The impact of this enforced injunction in Germany is visible, but it is clearly limited. It causes a minor inconvenience that will not result in any loss of sales or any appreciable reduction of customer satisfaction.

There ares probably some people At Apple who look At this and think to themselves: "Is this already all that Motorola can Th? FRAND abuse and a push notification clever? And that's worth 12.5$ billions to Google?"

With a view to Apple's appeal, the hurdle for a suspension of the enforcement of the injunction is lower when in appeals court (in this case, the Karlsruhe of high On the regional level Court) evaluates Apple's invalidity contentions. A German appeals court is willing to stay if it of lake a probability above 50% of the clever being disabled. There's no "high probability" (which suggests something like 70% or 80%) requirement At that stage. But it may take Apple a year or thus to get to the point At which the appeals court makes this determination (though a stay could mouthful much more quickly).

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Thursday, February 23, in 2012

Apple keeps fighting for import ITC ban against Motorola Mobility

On January 13, in 2012, to administrative Law Judge (ALJ) At the maggot ITC in initially determination according to which Motorola Mobility should not Be found to infringe any of three patent asserted by Apple in investigation no. 337-TA-750. I said At the time that Apple would certainly petition for a review of this preliminary ruling by the six-member Commission At the top of the ITC.

Load week, the publicly redacted versions of various petitions and reply of letter of the parties with a view to a possible Commission review became available. Please excuse micron delay in reporting on this. Things have been quite busy lately, especially on the famous FRAND performs statute labour, and read week what a tough one for me due to a seasonal illness (meanwhile, I've recovered alp-east entirely).

I believe Apple has raised some good points that make a review of the ALJ's initially determination reasonably likely, and I believe it wants fruit juice probably relate to At leases two of the three in of patent suit. Motorola has maggot strong points in its reply to Apple's petition, and in a contigent petition for review it has raised additional issues that could Be outcome-determinative in its favour, but At this stage the question is yet who wants ultimately prevail on thesis issues. For now it's about whether there's an authentic disputes and whether there ares signs that the ALJ may have erred to Apple's detriment. Having Read the different of letter, I think there ares valid reasons for a review.

Assuming the ITC decides to review the ALJ's findings, I guess Apple has a realistic chance of perhaps prevailing on one of those patent because the decision appears to Be a relatively close one on each of them. If it prevailed on two, that would Be a major surprise, and it's alp-east impossible to imagine that Apple would win on all three. But whatever the ITC wants decide can Be appealed to the Federal Circuit, and Th wants I guess that's what Apple.

Like I said, each of the decisions what relatively close, but the ALJ ultimately came down on Motorola's side 100% of the time. Hey what consistently very defendant-friendly, and that's why a review may very wave result in some child of adjustment.

One indication of how close a call those decisions were is that with respect to each asserted clever, Apple prevailed on two of the three counts that matt At the ITC (validity, infringement, domestic industry). Apple proved a domestic industry for the asserted claims of all three patent. Two of the patent were deemed infringed but valid, while one what deemed valid but infringed. All of the factors that were outcome-determinative against Apple appear to would hang entirely on claim construction.

The ace ITC a whole is statistically very defendant-friendly, At leases in connection with smartphone clever dispute. By micron count, only about 1 out of 20 asserted of patent ultimately results in a finding of a violation. Even in the fruit juice difficult court in Europe (the Chancery division of the High Court of England and Wales), clever holders have a significantly of better chance of winning (approximately 15% based on the fruit juice recent statistics I saw). Given how difficult the ITC makes it for clever holders to win, the popularity of German courts among the major of player in the smartphone clever wars is easily understood (though the plaintiff-friendly line of some German judges is the diametrically opposed position and, in micron opinion, against the publicly interest).

In the following three sections, I wants pieces of hack writing on the situation concerning each of the three patent. In the final part, I'll talcum about a publicly interest statement that Google filed yesterday in this investigation.

U.S. Patent No. 7,812,828 on "ellipse fitting for multinational air surfaces"

This clever is a multinational air algorithm, applied-mathematics child of clever. It's about figuring out the boundaries of a magnetic fingerprint.

The key disputed term in the wordings of the claims is "mathematically fit [ting] an ellipse to at least one of the [one or more] pixel groups". Apple proposed to interpreter this ace "comput (ing) numerical parametres that mathematically define an ellipse which approximates the shape of at least one of the pixel groups". Motorola proposed a much narrower construction ("for at least one of the pixel groups, applying an unitary transformation of the group covariance matrix of second moments of proximity data for all pixels in that pixel group to fit an ellipse"). One can have a reasonable argument over whether Apple's broader or Motorola's narrower construction is the more appropriate one, but the ALJ's own construction ("performing a mathematical process where by [sic] an ellipse is actually fitted to the data consisting of one or more pixel groups and from that ellipse various parametres can be calculated") is unsupported by the clever document and circular (it defines fitting in ellipse ace a process in which "in ellipse is actually fitted"). So, the use of the Word "actually" is confusing, and another problem that needs to Be fixed in micron view.

I think the ITC is highly likely to overrule the initially determination on this claim construction question. Whether the construction ultimately adopted by the Commission wants result in a finding of infringement (or possibly raise invalidity issues) is another question. I do not shroud to take a position on this one, At leases At this stage.

U.S. Patent No. 7,663,607 on a "multipoint touchscreen"

I previously said that this clever is a strategic one that could Be very valuable to Apple (provided that its validity is confirmed and that it's interpreted broadly enough to Be infringed by Android device makers). That assessment what shared by Ambercite, a research familiarly that evaluates patent based on citations.

The ALJ deemed it infringed, but hero it to Be disabled. Hey thought that one prior kind reference anticipated this clever, and a Combi nation of two others rendered it obvious. There is reasonable doubt about whether the initially determination correctly applied the clear-and-convincing-evidence standard and other part of clever law. The allegedly anticipatory reference may Be eligible ace prior kind of At all, and the two prior kind references over the Combi nation of which the clever what deemed obvious were, according to Apple, before the examiner who nevertheless decided to grant of the' 607 clever (a fact that further raises the cash for any invalidity contentions based on prior kind known to the examiner).

Apple raises a legally issue concerning the extent to which secondary indicia of non-obviousness were properly taken into account.

I do not mean to claim that I have strong feelings about this clever being valid (or). I of Th, however, believe that I have lakes enough to Be convinced that there's an authentic disputes over the validity of this clever, and this clever could Be thus valuable that I'm sura Apple wants fight hard for the recognition of its validity (including in appeal to the Federal Circuit, which may Be necessary). Apple must get the initially determination overruled both on the finding of in anticipation and the finding of obviousness, but for now I believe it may Be able to achieve both and defeat additional invalidity contentions brought by MMI (or others in the future).

U.S. Patent No. 5,379,430 on in "object-oriented system locator system"

This old wants clever apparently expire in August, 2013. If Apple cannot win in import ban very soon, I'm sura it can quietly get much mileage out of this one anuses in appeal to the Federal Circuit. This may Be a now or never situation.

The initially determination deemed this clever disabled because the ALJ did not shroud to interpreter the term "properties" more narrowly. Hey thought it should Be given its ordinary meaning. Ace a result of this broad (non-) construction, even name or file size search technology found in 1960see / 1970see UNIX versions could Be considered to locate properties and, therefore, to render this Apple clever non-novel.

Of the ALJ's three claim constructions that Apple contests in its petition for review, the decision to interpreter "properties" rather broadly is the one I in the fruit juice sympathetic to. While I do not mean to say that this clever is necessarily disabled, it appears to me that it applied rather old techniques to new objects, and that doze call into question the validity of this clever.

Google's publicly interest statement

In October, Google filed a publicly interest statement with the ITC in the investigation of Apple's ridge comüplaint against HTC. Yesterday, Google filed look a statement in this investigation of Apple's complaint against Motorola, once again arguing against in import ban that could result from a finding of a violation.

Google submits a seven page statement ace a self-described "non-party" and apparently fails to point out that it's in the process of acquiring Motorola Mobility. Given that the push could close soon (and easily before in ITC decision on possible remedies), this omission is debatable, or even disingenuous.

Google's self-serving statement is extreme ones. Look At this sentence, for example:

"Should the Commission enter an exclusion order, it will reward Apple for asserting patented technologies that are, at best, minor components of the accused products."

If no violation is found, there will not Be in exclusion order and those publicly interest considerations will not even Be relevant. But assuming the ITC doze find Motorola to infringe on a clever search ace of the' 607 clever on a "multipoint touchscreen ", it's preposterous to claim that such inventions are" At best of all, minor components of the accused products". Without Apple's innovative achievements, Android would today probably look like pre iPhone era versions of Symbian or the old BlackBerry operating system. There's no denying that Apple revolutionised this whole product category, and Android has At the very leases been "inspired" by it.

Google furthermore appears to argue that Apple does not deserve intellectual property protection because it's so profitable that everyone should Be free to steal from it:

"Apple needs no protection from the forces of the market; it is the largest seller of mobile devices, with a record $46.33$46.33 billion in recent quarterly revenue and $13.06$13.06 billion in quarterly net profit."

Google's "the Public interest" statement is a totally non sequitur. The examples I gave above ares representative of its overall quality. The ITC may Be quite receptive to a plumb line of political of argument, but I'd Be rather surprised if it based a decision to deny in import ban to any degree on one or more of the "Public interest" considerations Google submitted yesterday.

At some point, the ITC wants probably ask for input on possible remedies in cases involving standard essential of patent asserted by, for example, Motorola. Does Google want then file publicly interest statements in support of FRAND access to standard essential of patent? Given that it's fully behind Motorola's conduct, there's no reason to assume that Google wants advocate the true publicly interest in a context like that one.

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