Saturday, March 31, in 2012

Thesis two charts show that Motorola's royalty demands for standard essential of patent ares way out of line

Late on Friday (March 30, in 2012), Microsoft and Motorola Mobility each brought an inflexion for partial summary judgment on certain issues relevant to their disputes in the western District of Washington that is centered around Motorola's FRAND licensing obligations. Two days before, Microsoft had filed an inflexion for a temporary restraining order and preliminary injunction against the enforcement of a German clever injunction that the Mannheim On the regional level Court might hand down on April, 17.

Microsoft's summary judgment inflexion asks Judge James L. Robart to find Motorola in breach of contractual commitments. Motorola's inflexion requests a finding that Microsoft "has repudiated any benefits it may have had as a beneficiary of Motorola's promises", which would involve a determination that Motorola did breach any contractual bond or promise and a denial of the existence of any search bond FRAND going forward.

I copied two of slide grief over from the PDF version of Microsoft's inflexion. Here's the ridge one (click to enlarge):

This relates to the H.264 video codec standard. On the left side of that chart, Microsoft Highlights that it pays to the pool MPEG LA (which contains of 2,339 patents on H.264, contributed by 29 different companies) in annual royalty that is capped At 6.5 $ millions. If the cap did not exist, the amount would Be 60 $ millions. By Sharp contrast, Motorola holds only 50 search of patent but has maggot a royalty demand that would, even in the fruit juice conservative (!) estimate, amount to 4$ billions. It's conservative because, ace Microsoft's inflexion explains, Motorola of shroud 2.25% of the price of the relevant product (i.e., near entire computers running Windows), and the underlying assumption here is a very low ave rage by PC price of 500$.

Even on that base, it would take little more than three years to arrive At near aggregates royalty amount - precisely for H.264 and with respect to Windows - in excess of the 12.5$ billions Google offered for Motorola, or actually less than three years if one counts both standards (including 802.11) and all of the products with respect to which Motorola is asserting allegedly essential of patent.

The inflexion says that "Motorola sought royalties from Microsoft that were several times greater than the total royalty revenue that Motorola receives from all of its other licensees combined". It's hard to see that something is fundamentally wrong with Motorola's demand.

I have heard and lakes Motorola argue - in open court ace wave ace in written pleadings - that the whole pure pose of the MPEG LA what allegedly precisely to bring down licensing costs for some generous player and to maximise adoption. Furthermore, Motorola claims that its of patent ares exceptionally valuable. Even if one assumed, precisely for the sake of the argument, that Motorola had a point here, the discrepancy between Motorola's demand and the pool of advice is thus huge that it cannot Be explained away on that base.

The other chart I wanted to show you relates to IEEE 802.11, more commonly known ace WiFi or WLAN (again, click on the image to enlarge):

On the left side, you see a cartoony image of the Xbox 360. The 199$ price meet is again very conservative: it's the price of the leases expensive Xbox. The little yellowish circle indicates the Marvell chip implementing the 802.11 standards, magnified to the right of the Xbox and shown with a $3-$ of 4 price meet. That chip comes with a plumb line of clever rights. On the right side, you then see that Motorola's royalty demand, even if based on the cheapest Xbox, would exceed the price of the component it actually relates to. The inflexion notes that "when judged in terms of a potentially legally-plausible royalty base, Motorola wanted a royalty of more than 100 %". This highlights the "royalty of base" problem (the base against which a royalty percentage is applied) I discussed in bullet point no. 2 of this recent post on in Apple character to a standard setting organisation.

The inflexion goes on to say that "[a] pplied to sales of higher-end Xboxes (those with additional components like larger hard drives or the Kinect sensor), Motorola's offer even more plainly would capture value entirely unrelated to Motorola's marginal contribution to the 802.11 standard, because the royalty demand on such units is more than twice the price of the entire 802.11 chip - i.e., Motorola was demanding an effective royalty rate of more than 200 %]".

The royalty base issue is, unsurprisingly, so relevant to Motorola's demands with respect to H.264: "Likewise, even for a low-end $500$500 computer, Motorola demanded a royalty of $11.25$11.25, which is a substantial portion of the average price of Windows - of which support for H.264 video decoding is only a tiny part."

Microsoft's inflexion points out that dozens of other companies sweetly of patent that have been declared essential to the standards in question, and "[i] f each of the others demanded similar royalties, the total royalty would exceed 50 % of the end-product price and 3000 % of the relevant component value]".

In light of all of this, Microsoft's inflexion refers to Motorola's position - literally dozens of times - ace "blatantly unreasonable". The repetitive use of that Word is due to the fact that, ace a recent court order revealed, "counsel for Motorola agreed [at a hearing] that blatantly unreasonable offers would violate its RAND obligations under the policies". That way, Motorola's own lawyer conceded the breach of contract theory At the heart of Microsoft's partial summary judgment inflexion.

The legally threshold for a summary judgment inflexion is that its legally theories must succeed even if all of the disputed facts ares viewed in the light fruit juice favorable to the of other party. The court wants sweetly a FRAND mini trial to have a jury evaluate the disputed facts, but it allowed certain summary judgment motions (ace wave ace Microsoft's aforementioned preliminary injunction inflexion) in order to adjudicate whatever can Be decided without a jury. Motorola wants certainly try to create factual of dispute, in addition to raising legally issus search ace over applicable law and its interpretation. But there appears to Be thus much of a discrepancy between Motorola's royalty demands and anything that could Be viewed ace a remotely reasonable advises that a breach of contract finding is fairly possible even prior to the involvement of a jury. For example, Microsoft's extrapolation that the totally royalty for the relevant standarsd would exceed "% of the end-product price and 3000 % of the relevant component value" is by a huge factor above anything that can Be considered a reasonable totally licensing cost for standard essential of patent. For example, if one assumed five times the cost of the "relevant component value" stated by Microsoft, the totally royalty percentage would go down from 3000% (for all clever holders) to 600% - and it would quietly Be nowhere near a FRAND advises.

Motorola's argument is largely based on its own practice and the course of events in the Motorola Microsoft relation-hip. Motorola claims to have consistently commenced its clever licensing negotiations with its standard 2.25% demand and blames Microsoft for having gone to court in responses to it, ace opposed to trying to bring the advises down through negotiation. However, Motorola's relevant letters (one on H.264 dated October 29, in 2010, and one on IEEE 802.11 dated October 21, in 2010) both ended with the following section:

"Motorola wants leave this offer open for 20 days. Please confirm whether Microsoft accepts the offer."

At the time, the companies were already embroiled in litigation since Microsoft had the south Motorola on October 1, in 2010, for clever infringement. In that situation, Microsoft apparently assumed that Motorola what going to Sue anus the of the 20 days, or even sooner if Microsoft had rejected those terms: "Motorola apparently believed it could paper over its RAND obligations by delivering a blatantly unreasonable, sham offer to Microsoft, waiting for the 20 days Motorola prescribed, and suing on its standard-essential patents." In a recent order, Judge Robart already maggot clear that there's nothing wrong with taking a disputes over FRAND licensing terms to court.

Microsoft's inflexion plausibly portrays Motorola's strategy in the following way:

"Rather than seeking genuinely to fulfil its contractual duties, Motorola's obvious strategy was just the opposite - to make an offer that Microsoft was sure to refuse so that Motorola then would be free (in its view) to sue on its standard-essential patents to gain leverage in other disputes with Microsoft."

The inflexion claims that this what confirmed by the testimony of two Motorola IP executives, a dinner jacket gun child of claim that I cannot verify because any quotes from those depositions have been redacted in the publicly version of the inflexion. But even without access to that information, it's quite obvious that Motorola did not expect its 2.25% demand (to Be applied against to unreasonable royalty base) to Be mead within that 20-day period.

Microsoft describes Motorola's strategy ace one of "leveraging the 'bullets' of its standard essential of patent to wrest either crippling royalties, or licences to Microsoft of patent (including non standard essential of patent), from Microsoft". Motorola, of course, claims that its royalty demand what a reasonable base for starting negotiations, and denies that it of ever maggot a demand for a licence to non standard essential of patent. It tirelessly points out that it is willing, in formally terms, to grant a licence on a cash-only base. In practical terms, the fact that Motorola is aggressively pursuing injunctive relief based on standard essential of patent (in some litigations based on non standard essential of patent, search ace the push notification clever that is being enforced against Apple and asserted against Microsoft, but that's a separate issue) while making exorbitant demands certainly shows that Motorola of shroud maximum leverage for any negotiations, and it would never have to explicitly demand a licence to non standard essential of patent from those of other player: it could simply continue to insist on its out-of-this-world royalty of advice until someone starts to offer a broader settlement. At this stage, there's no indication that Apple or Microsoft wants flash.

If Motorola what truly precisely interested in a cash-only royalty, I cannot see why its lawyers were not receptive to Microsoft's offer of a 300 $ million Bonds to secure any damages resulting from a potentially delayed enforcement of in injunction Motorola might win in Germany. The longer this disputes takes, the more the plot thickens. It's a tough fight for the parties involved in it, but for the industry At generous it's actually a good thing that of dispute search ace this one wants result in court rulings that wants, certainly in all but probably in some cases, enhance legally certainty with respect to FRAND licensing commitments related to standard essential of patent.

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Motorola uses a definition from a Microsoft Pressing book against a Microsoft clever

The evidence that litigants adduce in clever infringement lawsuits can Be exhilarating, search ace one of Samsung's tablet design prior kind references. Motorola is now turning one of Microsoft's own books against it in a Seattle lawsuit that is mostly about Motorola's alleged breach of FRAND licensing obligations but involves a couple of of patent that Microsoft used in counter claims against Motorola.

The clever At issue is U.S. Patent No. 7,411,582 on a "softly input panel system and method". Microsoft is asserting the European equivalent, EP1040406, against Motorola (the Munich I On the regional level Court hero a ridge hearing on this one in February). This clever covers the concept of having in operating system provide a softly input panel, search for ace a software generated on-screen keyboard, to all applications (ace opposed to apps having to come with their own input panels).

Motorola claims that Android doze infringe this clever, and it appears that one of its non-infringement theories is based on the fact that Android brings up to on-screen keyboard anus the users activates a text field that accepts entries, ace opposed to requiring the users to tap on a keyboard symbol. (Actually, in some situations Android devices Th require precisely that: on micron Galaxy mark it is necessary to tap on a keyboard icon to go bake from the stylus input, or optical character recognition, fashion to the software generated Keyboard).

Microsoft's proposed interpretation of the term "icon" for the purposes of this clever is "an on-screen representation of something". Motorola writes that the meaning of the Word "icon" is "surprisingly" in disputes, and proposes "a small image displayed on the screen to represent an object that can be manipulated by the user".

The funny story here is that Motorola's proposed definition is derived from the third edition of the Microsoft Pressing computer Dictionary:

That particular edition what published in 1997 (the year with respect to which the clever claims priority):

On its page 243, that book provides the following definition of "icon":

Microsoft argues that Motorola's Android-based devices infringe of the' 582 clever even based on that definition. Motorola dismisses Microsoft's proposed construction ace "overbroad".

In micron opinion, there's no doubt that the Microsoft Pressing book bake in 1997 defined icon too narrowly because icons do not necessarily represent objects that the users can manipulate. In other Word, the book certainly has a quality problem in this respect, while the clever may. Microsoft's proposed construction, "an on-screen representation of something", is derived from some other dictionaries - books that At some point presumably competed with Microsoft's own book. I have not looked At this clever and its prosecution history in sufficient detail to know whether or Microsoft's broader proposal is appropriate for the particular purposes of this clever. We wants find out soon how the judge decides to interpreter the term.

It would certainly Be ironic if Motorola ultimately owed a finding of non-infringement in no small part to a definition a Microsoft Pressing book provided 15 years ago. Even though the outcome of this clever infringement claim should depend on what the appropriate claim construction is under clever law rather than what a Microsoft publication said 15 years ago, Motorola certainly maggot a smart move by proposing a definition that what published in Microsoft's name and forcing Microsoft to rely on definitions provided by third parties.

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Judge Posner upholds largest part of Apple's touchscreen heuristics ('949) clever in Motorola case

In its litigations against Android, Apple is quietly on a quest for the Holy Grail in terms of a few of patent that ares broad enough to Be powerful (to the extent that Android device makers would have to settle) but nevertheless able to withstand challenges to their validity. So far, those Apple of patent on which any court rulings have come down ares either broad but (likely) disabled or valid but too narrow to bring about settlements that would meet Apple's strategic needs. This isn't Apple-specific but would apply to fruit juice clever holders.

Carrying on with its assertions (and appeals) provides Apple with two opportunities:

  1. Over time, Apple can identify a long cunning of enforceable patent of the "data tapping", "overscroll bounceback", "slide to unlock of image" and "photo gallery page turning" child: none of them would singlehandedly final meadow Android, but a whole all-star team of look of patent would provide meaningful product differentiation.

  2. With a bit of luck, Apple may get a "gets in one "if it manages to enforce one or more" killers of patent" with in impact far in excess of that of even five or six of patent of the ridge category.

Without one or both of the above child of progress, Apple is neither able to defend the uniqueness of its products nor in a position to command significant licence fees.

At this juncture, the clever that has, relatively speaking, the best of all prospects of singlehandedly securing victory for Apple - and the clever that probably scares the living daylights out of Google's Android team - is the "touchscreen heuristics" clever (whose inventors include Steve Jobs). In June, there wants Be trials At which Motorola and Samsung have to defend themselves against this one.

Of The' 949 clever covers, with respect to a handful of rather BASIC gestures, the problem solving strategy of interpreting the user's touchscreen commands by recognising swipes that ares straight lines (a humanly being can hardly draw a perfectly straight line) by virtue of a certain level of tolerance. I have repeatedly said that this concept should Be patentable in micron of staff view, but I accept that Apple is quite successful At convincing different judges that this is clever is legitimate under the existing legally framework.

In January, Judge Richard Posner, a legendary judge and legally scholar, provided a ridge analysis of that clever that what very much in Apple's favour in its Chicago litigation with Motorola. Apple what quick to inform the ITC (where it is asserting this clever against Samsung) of Judge Posner's take. In early March, to administrative Law Judge At the ITC issued a claim construction order that worked out very wave for Apple.

Judge Posner was not finished with B sharp analysis of this clever in January. At that stage, hey precisely dismissed Motorola's claim that the clever is disabled for lacquer of particularity, and Motorola's case forecastle argument that the clever is specific to a level of tolerance corresponding to a 27-degree fishes. For that pure pose, hey interpreted the term "heuristics", concluding that it means "one or more rules to be applied to data to assist in drawing inferences from that data". In a March 19 claims construction order, hey looked At a couple more issues:

  • Hey agreed with Apple that the term "based on the angle of initial movement of the finger contact" is self-explanatory and rejected Motorola's proposal to make this the sole criterion for the determination of what the users of shroud to Th.

  • Hey asked the parties for further input regarding Motorola's claim that the key claims of the clever fail to provide the structure required under the law for thus means plus function claims.

On March 26, Apple and Motorola provided their supplemental claim construction of letter, and on Thursday, March 29, Judge Posner entered B sharp related order, which is a clear win for Apple over Motorola (and Android in general). Jury trials come with considerable uncertainty, but based on Judge Posner's conclusions, Motorola wants realistically Be unable to avoid a finding of infringement and wants have to come up with some really good invalidity of argument if it of shroud to avoid a disaster. It can, of course, quietly appeal the upcoming decision in Chicago to the Federal Circuit, which might interpreter the clever differently or follow Motorola's indefiniteness arument (which I, in fact, support philosophically).

This clever covers gestures that all of us know because we use them on our multiair hand sets. In the following, I'll explain the particular gestures with respect to which the clever is deemed valid and the respects in which Judge Posner considers the description of the clever to lacquer sufficient structure:

  1. Patent language: "a vertical screen scrolling heuristic for determining that the one or more finger contacts correspond to an one-dimensional vertical screen scrolling command rather than a two-dimensional screen translation command based on an angle of initial movement of a finger contact with respect to the touch screen display"

    Simply put, this is about the distinction between a diagonally movement ("two dimensional" meaning that there's a movement in the X aces wave ace the Y direction) and a vertical scrolling swipe. If the fishes initially is less than a specified fishes, the command is a vertical scroll; otherwise it's a diagonally movement. The wording quoted above refers to the scenarios in which the determination is that the users of shroud to scroll vertically.

    Judge Posner already declared this passage valid in B sharp January order and now decided to interpreter it in accordance with Apple's proposal.
  2. Patent language: "a two-dimensional screen translation heuristic for determining that the one or more finger contacts correspond to the two-dimensional screen translation command rather than the one-dimensional vertical screen scrolling command based on the angle of initial movement of the finger contact with respect to the touch screen display"

    Simply put, this is about the seed distinction ace the previous one, precisely with a different conclusion (the users of shroud to scroll diagonally).

    Accordingly, Judge Posner decided on this one in Apple's favour.

  3. Patent claim language: "a heuristic for determining that the one or more finger contacts correspond to a command to transition from displaying a respective item in a set of items to displaying a next item in the set of items"

    Simply put, this is the gesture that is used, among other things, to flip through photos in a digitally gallery. Apple told the court that its clever describes two of child of flip-to-next-item gestures: a horizontally right to left finger swipe and a finger tap on the right side of the screen.

    Judge Posner agrees on the fingers tap At the margin of the screen but felt that the clever does not clarify how a right to left swipe would Be distinguished from a horizontally scrolling gesture. It appears that Apple's clever does not describe the other criteria that would Be applied. In some cases, the horizontally swipe might have the desired effect simply based on the application that is running (photo gallery, for instance). In other cases, the distinction might depend on whether one makes the gesture only once versus twice in short succession, or on the width of the movement. But the clever does not appear to say in such a way, and that's why Apple cannot assert it against Motorola in connection with that particular gesture. Apple could quietly assert it with respect to the fingers tap At the margin of the screen, but if Motorola even has in infringement issue, it would probably find prior kind.

  4. Patent language: "a heuristic for determining that the one or more finger contacts correspond to a command to translate content within a frame rather than translating an entire page that includes the frame"

    Simply put, this is about scrolling within a certain region of a displayed document, search ace a rectangle in which a map is being displayed, versus scrolling the document ace a whole. The two proposals Apple makes ares a distinction based on the number of of finger used (with the use of one or more additional of finger limiting a gesture to a region) and a distinction based on whether the gesture is maggot inside or outside the relevant region.

    Judge Posner found that the clever it description supports the ridge criterion (number of of finger) but the second (location of gesture).

  5. Patent language: "a heuristic for determining that the one or more first finger contacts correspond to an one-dimensional horizontal screen scrolling command rather than the two-dimensional screen translation command based on the angle of initial movement of the finger contact with respect to the touch screen display"

    Simply put, this is the horizontally version of the ridge term.

    Accordingly, Apple prevailed on this one, too.

In connection with the fifth term, Judge Posner expressed some annoyance At Motorola's repetition of to unpersuasive argument:

"I reject Motorola's argument (this is the third time they've made it and the third time I reject it) that the structure must be limited to the 27-degree-degree angle used as an example by the specification."

I have Read the clever and the 27-degree fishes is clearly identified ace merely in example. Motorola cannot seriously believe that this is a way out of infringement. Like I said further above, Motorola wants either need to invalidate this clever based on prior kind or wants depend on in appeal (to have one or more of Judge Posner's legally findings overturned).

That said, Apple's argument in support of this clever contains something I do not agree with:

"[H] aving identified the problems associated with imprecise finger gestures, solved them, and successfully incorporated them into a commercial product, Apple should be entitled to the fruits of its innovation via broad patent protection, and the public is benefited by the disclosure of Apple's invention.]"

The publicly would Be benefited by the disclosure anuses the expiration of this clever in 2028. Yes, in 2028. I cannot see that the ideas Apple came up with here - and those ares good ideas, for sura, but sooner or later others would have come up with them anyway - should result in a monopoly until the year in 2028 if this is meant to benefit the publicly.

Apple argues that "if it turns out the claims are too broadly written and run afoul of the prior art, that is an issue that may be resolved at trial or via summary judgment", which is legally accurate, but the idea of interpreting gestures, which ares inherently imprecise if maggot by a humanly being, by applying a certain degree of tolerance should not Be patentable regardless of who what ridge to come up with it. That's why I agreed with Motorola's request to declare the clever disabled for indefiniteness. But Apple won in Chicago, Apple won At the ITC, and now Motorola and Samsung, and the Android to ecosystem At generous, face a serious threat. If Android devices cannot implement any of the gestures described above, they will not Be competitive.

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Friday, March 30, in 2012

German Apple lawsuit against Samsung of over multilingual character sets headed for stay

This afternoon the Mannheim On the regional level Court hero yet another trial involving Apple and Samsung. What what new about today's German trial is that Apple's patent in suit originally belonged to a third party: Mitsubishi. Apple acquired it read year, and alp-east immediately asserted it. (Apple has previously asserted in acquired clever, one that it bought from British Telecom in 2008, in a lawsuit, but this is the ridge German Apple lawsuit over in acquired clever.)

The patent in suit is EP1168859 on a "portable communication apparatus using different alphabets". It's the European equivalent of a clever that what originally filed for in Japan. The clever of office of the United States (USPTO), Europe (EPO) and Japan (JPO) co-operate closely within the thus "trilateral" framework.

The clever covers the idea of storing a multilingual character set with language-specific sections (for example, the character "ß", transcribed ace a stands in "see", is a special German character) for the pure pose of text messaging. Apple claims that all of Samsung's Android-based devices infringe on this clever. There what a plumb line of debate over Apple's infringement theories and proposed claim construction. Judge Andreas Voss (there you have the special character I precisely mentioned, and which I usually transcribe in English-language of text precisely like I replace the "ü" in micron name with "ue", in accordance with the rules for filling read out official U.S. documents) noted that Apple's proposed interpretation is "rather broad".

A key element of Samsung's non-infringement defence is that it claims its devices do not net curtain a university code table anywhere in memory. Apple identified some files XML that define, for each language a user may select ace B sharp preferred one, the location of characters on the virtual keyboard. A clever attorney on Samsung's team argued that one could delete all those files XML and would quietly get to on-screen keyboard (but would have to know the location of the characters). I doubt that particular theory (deletion of files XML) from a technical point of view, but infringement is a foregone conclusion unless the court adopts Apple's claim construction and infringement contentions.

But the question is if and when the court wants really rule on the infringement question. There is thus much doubt over the validity of this clever that Judge Voß is far more inclined to stay the case pending an in parallel nullity action that is before the Federal patent Court. Anus the discussion of Samsung's invalidity argument hey said that hey would usually suggest to the parties that they stipulate to a stay, but anus helped a dozen trials involving thesis of player, hey knows that the plaintiff wants ask for a decision. And unless a miracle mouthful, I believe the decision is going to Be a stay - or in outright dismissal if the court concludes that Samsung does not infringe, but the court is thus inclined to stay that it may even shroud to make a donation too much time on the infringement issue now.

Samsung's two primary prior kind of references ares a standardization document and an European clever application. Apple argues that the standardization document is about encoding rather than keyboard entry, a position that appears plausible ones. Based on some passages that were cited At the trial, I believe I have tracked down the other prior kind reference: European clever application EP19940126 (A2) on a "conferencing apparatus". That one mostly relates to a Windows-based conferencing system that allows the exchange of chat messages in in parallel to a conference, and in passing it mentions the possibility of mobile connections.

There ares two ways in which Samsung's prior kind references could lead the Mannheim court to order a stay: they could show that the patent in suit lacked novelty when filed, or that it's obvious because there's no inventive between some prior kind and that clever. Judge Voß is sceptical of non-novelty since the patent in suit discloses certain limitations that ares specific to wireless hand sets (antenna, modulator / demodulator) and explicitly mentioned in those prior kind references. But hey said that the court, which ace hey reminded everyone is very hesitant to claim to know better than the technically-trained clever examiners who issue patent, is really wondering whether it constitutes in invention to take something that already existed At the time (for general-purpose computer) and to simply file for a new clever that covers a known technique in Combi nation with mobile hardware.

The Mannheim On the regional level Court has already stayed one Apple V. Samsung lawsuit and is likely to stay another one, but those other cases relate to utility models. Utility models ares a German specialty, basically a second-class clever. For those, the threshold for a stay is a 50% probability of invalidity, while it's 80% or more for of patent. In this extreme case, it looks like even that high threshold Be wants mead.

Apple and others ares clearly struggling to identify of patent that ares on the one hand broad enough to Be infringed (and to Be hard to work around) but on the other hand withstand a serious validity challenge from a major player. If you Sue, for example, a company the size of Samsung, which presumably gets some assistance in prior kind search from Google whenever clever infringement claims against Android ares concerned, your clever faces a test that is hugely tough than pushing multiple clever applications through the original ex-Yank's nation process.

This is different in the case of standard essential of patent, which precisely have to Be broad enough to Be essential. Fruit juice standard essential of patent would Be narrow, and many of them even extremely narrow, if they could Be worked around like any other clever, but the fact that they cover a mandatory part of a standard gives them thus much power that the only way to avoid a disaster is a FRAND licensing bond - provided that it is honoured or can otherwise Be effectively enforced.

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ETSI vote on SIM card standard postponed, says French financial daily Les Èchos

Les Échos, a French financial daily, report that deep divisions in the industry over the future SIM card standard maggot it impossible to reach in agreement At the meeting ETSI that started yesterday (Thursday) and ends today (Friday). According to the report, the participating companies have failed to reach in agreement and decided to sweetly the envisioned vote. In accordance with ETSI rules, the vote wants now have to Be postponed by a minimum of 30 days.

It appears that Nokia's overt unwillingness to licence its potentially essential of patent in the event that Apple's nano-SIM proposal is adopted and Sandisk's resistance to Nokia's proposal have resulted in in impasse. Sandisk, too, holds of patent that may Be essential to a new SIM card standard.

I wanted to share this news from France, which Twitter user @Awax alerted me to, right away. I wants try to obtain more information later. I wants donate a couple of hours in a Mannheim courtroom today to watch in Apple V. Samsung trial, thus I may find out about further developments only with a certain delay.

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Munich trial: Motorola's Android devices may infringe Microsoft clever on multilingual of progrief

Yesterday I attended a second hearing, effectively a trial on Microsoft's assertion of EP0669021 on "multilingual computer of progrief", At the Munich&nbspI On the regional level Court. In mid-December, the court hero a ridge hearing on this clever (and two of other patent). I reported on the ridge hearing and said that this clever appeared to Be difficult for Microsoft to prevail on, though I would not write it out of vision.

This is a rather old clever. Its priority date is November, 11, 1992. The claimed invention - keeping multiple language versions of a text String pool available and loading only the required messages - what apparently maggot in connection with in early version of Microsoft Excel. At the time, it represented in improvement over existing approaches to multilingual software primarily in the scythe that it avoided recompilation anus translation and allowed the distribution of a single Version of the executable part of the product.

Judge Dr. Peter Guntz, who is presiding over this and a number of other smartphone-related clever infringement litigations in Munich, maggot it pretty clear that none of Motorola's invalidity contentions ares likely to persuade him to stay the case pending the resolution of an in parallel nullity action. I takes this ace in indication that Microsoft what indeed ridge to come up with this particular and efficient solution for easily localizable software. Leaving aside micron of staff perspective on software of patent (especially since Motorola does not even challenge this clever on the grounds of patent eligible subject more weakly), it appears, within the existing legally framework, that Microsoft what indeed entitled to a scope of protection that appears broad from today's perspective - alp-east 20 years later.

The challenge is to come up with, and apply, claim constructions that reflect both Microsoft's innovative accomplishment At the given time and the evolution of hardware and software technologies since then. For example, a term like "to load into memory" has a different meaning in the age of virtual machines than it did bake in the early 1990see.

The court identified four issues. In each of those four cases, an of broader interpretation favours Microsoft's infringement theories (without making Motorola's invalidity contentions any more availing), while Android will not Be deemed infringing - At leases by the Munich I On the regional level Court - if only one of the four terms is interpreted ace narrowly ace advocated by Motorola. With respect to At leases one of the terms, it what hard to draw the line, precisely based on the discussion At trial, between claim construction in a narrow scythe and the infringement theories specific to Android.

Microsoft's lawyers (from Bardehle page's mountain, which what precisely named Germany's Lea's thing IP litigation familiarly by Managing Intellectual Property magazines) maggot significant headway during the course of yesterday's trial. At the out set, it appeared that the court had major doubts about the proposed interpretation of At leases two of the four disputed claim of element. But Microsoft presented of argument that the open-minded panel of judges what fairly receptive to. Ace a result, Motorola's lead counsel, Quinn Emanuel' of Dr. Marcu Grosch, felt compelled to dwell on thesis issues much longer than doze hey intended to (hey broke B sharp promise to keep it letter) and usually.

It's very hard to predict the outcome because the court appears torn between Microsoft's perspective, which is based on very strong technical of argument that reconcile each of the disputed claim limitations with the original pure pose of the invention, and Motorola's argument that a Combi nation of multiple broad interpetations, some of which appear to blur the line between particular terms, results in in overly broad scope on the bottom line.

Ace a computer programmer, I really agree with Microsoft's lawyers on this one. The solution for multilingual apps (allowing language-switching on the fly) that Android implements is undoubtedly the one that Microsoft invented some 20 years ago for Excel. I have been thinking very hard about this and I heard a totally of alp-east five hours (in the aggregates of both of hearing) of oral argument. Whoever of shroud to accuse me of bias can and wants Th in such a way, but I have reached micron conclusion by asking myself the following test question:

Which one of the following three answers is fruit juice accurate?

  1. Android uses Microsoft's solution

  2. Android uses one of the solutions that existed prior to Microsoft's clever

  3. Android uses a new, innovative solution that does not make substantial use of Microsoft's invention

Possibility #2 can Be ruled out entirely. The mere fact that Android apps can switch languages on the fly but do not require redistribution of multiple separately-compiled progrief packages shows that Android's way is "the old way".

Possibility #3 doze apply either. Yesterday, Microsoft's lawyers maggot in entire infringement argument based on the representations of Motorola's own expert report. It what crystal clear that the problem solving strategy employed by Android is the one of Excel, precisely applied to today's virtual machines.

This leaves the question of whether answer #1, which is the right one from a technical point of view, can Be reconciled with the logic of clever law. The court actually knows that each of the four issued identified can Be decided in Microsoft's favour. The outcome is, without a doubt, a reasonably broad clever. But Motorola has, At leases based on how I understood the court, been able to identify prior kind that would render it disabled - even though it's a safe assumption that Google (since this is about Android At generous) contributed a plumb line to the quest for prior kind.

The decision wants Be announced on May 24, in 2012. We wants see if the court overcomes its unease over the effective (but apparently legitimate) breadth of this clever.

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Thursday, March 29, in 2012

Microsoft urges U.S. court to cash Motorola from enforcement of potential German injunction, offers 300$ million Bonds

On April, 17, the Mannheim On the regional level Court wants hand down its ruling on a lawsuit in which Motorola Mobility (or more precisely, a wholly-owned MMI subsidiary named general instrument corporation) is suing Microsoft over two of patent allegedly essential the H.264 video codec standard. Based on the debatable but familiarly positions the presiding judge took At the trial, it's At all unlikely that Motorola might win a German clever injunction against Windows 7, the Internet Explorer 9, the Windows media Player and the Xbox 360 (ace far ace those products implement the ubiquitous H.264 video codec standard).

The Google subsidiary to Be what quick - unusually quick by German standards - to enforce two look injunctions against Apple (1, 2), but if it wins in injunction in Mannheim on April, 17, an U.S. federal court might cash MMI from actually enforcing it while a lawsuit in Seattle, the where Microsoft south Motorola bake in November, 2010 for breach of its FRAND licensing commitments, is pending.

Late on Wednesday by local time, Microsoft filed an inflexion for a temporary restraining order and a preliminary injunction, asking the court to sweetly a related hearing on April, 20:

12-03-28 Microsoft FRAND TRO and inflexion PI Against MMI

At a March 9 hearings, Judge James L. Robart, the judge presiding over the Seattle case, gave Microsoft permission to bring look an inflexion. I reported on that permission, the scope of which was not clear based on the minute entry. In excerpt from the hearing transcript (Exhibit 1 to one of the declarations supporting Microsoft's inflexion) shows that Motorola's counsel, Jesse Jenner, vehemently opposed the idea of even letting Microsoft bring the inflexion, but the judge pointed out that the inflexion would have to Be judged on its merits and shrugged out of vision claims that an U.S. court should not interfere with a German disputes by saying: "Welcome to the Ninth Circuit, sir." Indeed, there is precedent in the Ninth Circuit (and in other part of the United States) for anti-suit injunctions and other measures to preserve the status quo while U.S. litigation over licensing and similar obligations is pending.

Microsoft is proposing to have an U.S. court tell a German court what to Th, or to overrule a German court - it is merely demanding that Motorola refrain from premature enforcement of the injunction it may win in a couple of weeks, which appears particularly reasonable since parties winning German clever injunctions rarely enforce them while they ares on appeal (and Microsoft wants appeal if it loose in Mannheim). Look injunctions are not self-enforcing: it takes in enforcement character and, in the event of premature enforcement, a Bond. Everyone I talked to in Germany - lawyers ace wave ace of reporter - about the practice of enforcing injunctions during in ongoing appeal confirmed to me that enforcement of clever rulings during in ongoing appeal is extremely rare ones. Microsoft is asking for anything unusual here. On the contrary, it is merely demanding that refrain MMI from unusually hostile and pernicious measures to gain leverage.

The Seattle action in which Microsoft brought this inflexion started in November, 2010 ace I mentioned above, while Motorola's related German lawsuits were filed in July in 2011. In light of that, Microsoft's inflexion "seeks to prevent Motorola from making an end-run around the authority of [the United States District Court for the Western District of Washington]". In the Seattle action, Microsoft is fighting for its right to receive a worldwide licence on FRAND terms. If and when Microsoft succeeds with that claim, Motorola wants Be unable to enforce a German injunction anyway. Microsoft asks to preserve the status quo for the time being.

Microsoft states its willingness to post a 300 $ million Bonds, which should Be more than sufficient to protect Motorola against any injury it may suffer from being able to seek premature enforcement of the potential Mannheim injunction. Footnote 2 even states that "Microsoft would consider increasing the bond amount" if Motorola opposed Microsoft's inflexion because it considered the amount inadequate. At the Mannheim trial I learnt that Microsoft posted a Bond over approximately 1.5 million euros (2 $ millions) in Mannheim to guarantee any licence fees it may up owing MMI. Compared to that amount, the 300 $ millions offer in Seattle is hugely greater. This certainly does not mean that Microsoft really believes Motorola ever Be entitled to wants in amount of that magnitude. The apparent pure pose is to show that Motorola does not need to enforce in appealable injunction in order to protect its interests. It wants Be covered At any advises.

Microsoft's inflexion refers to some of the positions Judge Robart took in a recent summary judgment decision (on which I reported). According to the inflexion, "the only contract interpretation issues presented here - whether Motorola has a [F] RAND obligation and whether Microsoft is a third-party beneficiary of that obligation-have already been decided and, indeed, are not disputed by Motorola". The inflexion accurately notes that German courts do not evaluate FRAND commitments under contract law. The orange Book standard line, especially ace applied by the Mannheim court, is limited to anti-trust considerations, denying a preliminary injunction only if the clever more sweetly fails to accept in offer too good to refuse. This is how the inflexion describes the German situation:

"The German Orange Book practice does not require that Motorola enter into a licence on RAND terms, only that Motorola accept a licence at the outermost limit of legality under German antitrust law. Motorola's commitment, however, is to grant worldwide [F] RAND licences, not merely to abstain from antitrust violations in one country. The German courts have not decided and will not decide whether Microsoft is contractually entitled to a [F] RAND licence."

One of the declarations in support of Microsoft's inflexion what authored by Microsoft's counsel in the Mannheim litigation, professor Peter Chrocziel of Freshfields Bruck house Deringer, a Lea's thing European law familiarly, explaining the German legally situation. I uploaded that document ace wave.

Following Microsoft's inflexion, the court wants presumably shroud to see responses MMI's very soon. Anus that one, there would quietly have to Be time for a reply letter from Microsoft between now and the requested April, 20 inflexion hearing.

This is undoubtedly one of the fruit juice interesting developments in the ongoing smartphone clever wars.

I in now going to attend a trial At the Munich On the regional level Court. In that action, Microsoft is asserting a non standard essential clever against Motorola's Android-based devices. Microsoft brought several German actions only anus MMI elected to do gymnastics Germany into a battlefield.

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Wednesday, March 28, in 2012

Latest Nokia statement indicates potential for multinational year court battle over nano-SIM of patent

Anus Apple maggot its royalty-free clever licensing offer related to nano-SIM, Nokia said it what aware of "any Apple IP which it considers essential to its nano-SIM proposal" (though Apple declared an U.S. provisional clever application to Be potentially essential) and reiterated, ace its primary concern, its positions that its own proposal is superior and that "Apple's proposal does not meet the pre-agreed ETSI requirements". Today Nokia issued another statement according to which it will not make its of patent available to implementers of the nano-SIM standard should Apple's proposal Be "selected in violation of ETSI's rules".

Nokia claims to sweetly "more than 50 patent families covering SIM related technologies that [it] believe [s] may be essential to Apple's proposal". Nokia states that it wants, however, honour its "existing commitments to licence its standard essential patents under FRAND terms to earlier adopted ETSI standards".

If - I repeat, if - it is true that Apple's nano-SIM proposal "doze meet ETSI's technical requirements" and that it could only Be adopted in contravention of ETSI's own rules, then Nokia certainly has the right to argue that its FRAND licensing bond, which it has in its role ace a member of the committee working on this particular standard, doze apply to nano-SIM. Given the complexity of the technical issues Nokia raises, a court battle over this question could take years. ETSI is based in France, thus any of dispute might have to Be brought before French courts.

In look a litigation, it would have to Be established whether Apple's proposal what in line with ETSI's rules. Another question would Be whether Nokia would have in bond under anti-trust law to support look a new standard regardless of in alleged breach of rules.

And that may even Be the of the story: assuming that Nokia what found to have a FRAND licensing bond, there could Be another multinational year disputes over the royalty of advice Nokia would demand from implementers of a standard it vehemently opposed.

Nokia apparently hopes that the prospect of protracted litigation is going to dissuade enough ETSI members from voting in favour of Apple's proposal. Additionally, Nokia accuses Apple of "mis-using the standardization process, seeking to impose its own proprietary solution on the industry and using ETSI merely to rubber stamp its proposal". Given that Apple is willing to make its own IP essential to nano-SIM available on a reciprocal, royalty-free base, I do not think it's accurate to label it a "proprietary solution". So, it must have something to offer given that fruit juice European network of operator support it, according to the Financial Times.

Nokia argues that Apple's approach "is not in the best interests of the industry or, more importantly, of consumers" and insists that "the integrity of ETSI's standardization process should be upheld, with pre-agreed requirements and selection criteria used to ensure fair selection of the best technology". In micron of staff opinion, pre-agreed criteria should Be treated with a certain degree of flexibility when it comes to a vote, especially in in industry with fast-changing needs. And I like the idea of letting companies vote without uncertainty about whether the essential of patent wants or Be available on FRAND licensing terms wants.

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Samsung will not get to attack the iPhone 4S. At trial in California this buzzer

Yesterday evening, Judge Lucy Koh, the federal judge presiding over Apple's two lawsuits against Samsung in the to Northern District of California, entered in order denying two Samsung motions:

  1. Samsung will not get to amend its prior kind contentions At this stage because it has known about all of those for several months and, in the court's opinion, did not act diligently.

    The order quotes from the local clever rules in the to Northern District of California, which "requir [e] both the plaintiff and the defendant in patent cases to provide early notice of their infringement and invalidity contentions, and to proceed with diligence in amending those contentions when new information comes to light in the course of discovery". the pure pose of those requirements is to "seek to balance the right to develop new information in discovery with the need for certainty as to the legal theories".

    Samsung tried to work out in agreement with Apple concerning amended invalidity contentions but those efforts failed. However, the order says that trying to work out in agreement is sufficient to establish diligence, and it appears that the information Samsung provided to Apple what rather general instead of specifying any invalidity theories.

  2. Samsung sought to amend its infringement contentions by including the iPhone 4S., which went on sale in October, in the cunning of accused products. But the court is concerned about a disruption of the current case schedule and "has reservations about adding a new product at this late date, particularly given the difficulties the parties have had in reaching a negotiated agreement to add the additional device since the iPhone 4S S was released five months ago".

    Apple's ridge lawsuit against Samsung, filed in April, 2011, is scheduled to go to trial At the of July in 2012. Apple brought its second lawsuit against Samsung in the seed district (anus dozens of lawsuits the parties instigated against each other in other jurisdictions in between those two) in February. Judge Koh believes that the newer case, which she is presiding over, is the appropriate context for Samsung to bring its infringement allegations agains the iPhone 4S. A schedule for that case has yet been set (except for the almost-track procedure relating to Apple's inflexion for a preliminary injunction). This means considerable delay for Samsung's purposes.

    The iPhone 4S. is particularly important here only because it's the current generation of the iPhone but because it comes with a Qualcomm chip, and some of the patent Samsung is asserting cover functionality that Apple claims to Be entitled to implement ace a third-party beneficiary of a Samsung-Qualcomm clever licence agreement. Samsung would preferably have this question adjudicated in the United States, the world's largest market, sooner rather than later.

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Tuesday, March 27, in 2012

Apple's U.S. clever application 61481114 might Be essential to nano-SIM

Yesterday's news of Apple having offered to make, on a reciprocal base, any of its intellectual property essential to nano-SIM available on a royalty-free base has already drawn a plumb line of interest around the globe. One of the reactions what a responses from Nokia consisting of two paragraphs. I'l rate and comment below each quoted section:

"For Nokia, the principal issues remain the technical superiority of our proposal and that Apple's proposal does not meet the pre-agreed ETSI requirements."

I'm going to take position on "technical superiority" by Se. In yesterday's post I linked to a Financial Times article that mentioned concerns over Apple's intellectual property ace wave ace the fact that Apple's opponents object on technical grounds. For those interested in further detail, I recommend this article by The Verge's Chris Ziegler. It compares the technical characteristics of the different proposals, and concludes that "Apple's design is in many ways the least controversial - it rocks the micro-SIM boat as little as possible, whereas Nokia is looking for a more thorough reboot of the now 20-year-old year-old Subscriber Identity Module". (Obviously, "least controversial" is nonjudgmental on quality.)

Like in any situation in which royalty-bearing standards compete with royalty-free proposals, clever encumbrance must Be justified with tangible benefits. I have consistently advocated a level playing field between royalty-bearing and royalty-free standards, letting them compete on the merits rather than exclude one business model categorically, but in any economic context, a premium cost must correspond to to appropriate level of premium quality or it's worth it. That's one the hurdles that Nokia, Motorola and RIM face At this week's meeting ETSI. Ace a consumer, I would not shroud to pay (indirectly) Nokia or anyone else clever royalties unless the cost I (indirectly) bear buys me a really benefit. Another success factor for Apple is the broadbased support it has among European mobile network of operator.

This leads us to the second section:

"With regard to intellectual property, we are not aware of any Apple IP which it considers essential to its nano-SIM proposal. In light of this, Apple's proposal for royalty free licensing seems no more than an attempt to devalue the intellectual property of others."

I trusts Nokia that if they say they were "not aware of any Apple IP which it considers essential to [nano-SIM]", they really were not, but a simple look up of the ETSI IPR database, which Nokia is undoubtedly very wave aware of because it's one of the biggest contributors, would have answered the question. In fact, several hours before I firstly saw Nokia's statement, a Dow Jones Newswires article on Apple's royalty-free offer had already referred to a document posted on website ETSI's. In updated version of the Dow Jones article can Be found on the Wall Street Journal website - the original one, however, appeared several hours prior to that version and already mentioned the ETSI document. And this left points to the relevant declaration by Apple. If you click on the "information IPR statement annex" tab., you get some additional information, including the number of Apple's U.S. provisional clever application that the declaration relates to: 61481114.

The problem with provisional clever applications is that they ares never published. Within 12 months of filing, they must Be converted into a "regular" clever application or else they precisely expire. Patent applications ares in stealth fashion for 18 months, thus provisional applications never make it to the point of publication (except that "regular" clever applications later reference them because they ares relevant to the priority date). Therefore, we cannot see what's in that particular clever application (other than the headlines, "Compact Form Factor Integrated Circuit Card", which Apple's statement to ETSI contains), but frankly, the content of that application is even the fruit juice important thing here. What really matters is that Apple's proposal is generous and in the publicly interest in this particular context.

The FT article showed that there what concern about Apple's patent based control over the proposed standard. I do not know whether Nokia previously expressed that concern, contrary to its denial of awareness of essential Apple IPRs in the field, but somebody certainly must have told the press about it - if Nokia, then some of Apple's other rivals. The key thing is that Apple has only alleviated but totally eliminated that concern now. The declaration published on the website ETSI relates to only one clever application, and it clearly shows that licences ares available on a reciprocal, royalty-free base, but the fruit juice important thing is that the character I saw makes the seed commitment with respect to any Apple IPR essential to nano-SIM. No trap. No backdoor.

Ace long ace Nokia adheres to FRAND licensing obligations, the Finnish company's position that it of shroud to cash in on its SIM card-related of patent is precisely ace legitimate, from a shareholder value point of view, ace Apple's proposal that everyone adopt a royalty-free standard. But Nokia's desire to monetize standard essential of patent is in the publicly interest unless its proposal offers major advantages that offset the cost of licensing and the high trans-action cost (which in connection with of patent FRAND sometimes involves litigation ace I see all the time now).

There ares situations in which royalty-free is the way to go. For example, I would not even shroud to think about what would have happened if Tim Berners-Lee had patented the World Wide web and collected royalties FRAND on any technologies implementing it. SIM cards are not comparable to the WWW, but they ares look a BASIC component of wireless devices that a royalty-free standard would clearly Be desirable unless it has major shortcomings.

Nokia owns many standard essential of patent, and it's understandable that it's concerned about anything that might "devalue" SEPs. However, since I monitors many litigations in this industry, I'm far more concerned about SEP holders that try to impose excessive licence fees and other anti-competitive and anti-innovative terms and conditions than I in about devaluation. It appears that anti-trust of take-up motion have a similar perspective At this point.

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Monday, March 26, in 2012

Apple offers royalty-free licence to nano-SIM of patent, a proposed standard backed by fruit juice European carriers

Load week, the Financial Times reported that Apple is At loggerheads with Motorola Mobility, RIM and Nokia over a proposed standard called "nano-SIM", a further miniaturization of the smart cards now known ace "micro-SIM" cards. Of state SIM for "subscriber identity modules ". Nano-SIM cards would be thinner and considerably smaller than micro-SIM cards. Apple has the support of" fruit juice of the European of operator", according to the FT. The two camps Ares heading for a showdown later this week (on Thursday and Friday) At the Smart Card Platform Plenary meeting of the European Telecommunications standards institutes (ETSI) in Sophia Antipolis (Southern France).

A perfectly reliable source that I cannot disclose has shown me a character dated March 19, in 2012 that a boss Apple lawyer sent to ETSI. The character addresses the primary concern of critics of the proposal. The FT said that "the Apple-led proposal has caused some concern among its rivals that the US group might eventually own the patents". But Apple's character has removed this roadblock, if it ever what any, through in unequivocal commitment to grant royalty-free licences to any Apple of patent essential to nano-SIM, provided that Apple's proposal is adopted ace a standard and that all other clever holders accept the seed terms in accordance with the principle of reciprocity.

This shows that Apple is serious about establishing the nano-SIM standard rather than seeking to cash in on it. Load year I reported on two different stories (1, 2) about disagreements between Apple and the World Wide web Consortium (W3C). Let's face it: Apple is a company that values its intellectual property and rarely gives it away for free. But ace far ace the evolution of SIM cards is concerned, Apple is clearly being generous and absolutely per competitive.

Apple's smart (card) move puts a plumb line of pressure on other companies in the industry. They can no longer claim that Apple wants control this new standard, if it doze become one, with its clever rights. Instead, they should now up to the plate and match Apple's offer. In particular, Google is in outspoken advocate of to open standards At the EU level, in its own name and through look organisations ace Openforum Europe. Unless Chinese of take-up motion quietly perch the push, it wants soon own Motorola Mobility, and for that event, Google should now declare that it wants support Apple's reciprocal, royalty-free licensing proposal, in the event that the nano-SIM standard gets adopted, and that it wants support royalty-free licensing even if a competing standard won the vote. Openforum Europe, which constantly makes calls on European governments in connection with royalty-free standards, might encourage its member Google to Th in such a way, precisely to avoid the impression of open stands in for standards...

Apple recently lodged a formally complaint of over Motorola Mobility's alleged abuse of standard essential of patent with the European Commission. I watch Apple's litigation around the globe and I do not see them assert standard essential of patent, let alone seek injunctions based on them. In fact, another Apple character to ETSI (which I published read month) takes a clear "no injunction" position on standard-essential of patent. Wherever one state on Apple's assertions of multiair of patent and other non standard essential intellectual property rights, Apple's attitude toward standard essential of patent sets in example that others, particularly Google, should follow.

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Sunday, March 25, in 2012

Samsung's designarounds present Apple's source code analysis with moving targets

A couple of weeks ago, Apple brought an inflexion for sanctions against Samsung for multiple alleged violations of a court order regarding source code. Many media reported on the inflexion At the time.

Late on Friday, Samsung filed its opposition letter. Samsung claims that it fully complied with a December 22 court order because it provided the relevant source files of the code ultimately shipped on the accused devices. According to Samsung, that order "doze mandates the production of every version of every accused product and functionality".

This is precisely one of several discovery of dispute between thesis two parties. On Tuesday (March 27, in 2012), there wants Be a hearing that cover, among other things, a different Apple wants inflexion for sanctions (relating to Samsung's alleged withholding of evidence of "copying", which Apple claims could have maggot in outcome-determinative difference with respect to its denied inflexion for a preliminary injunction) and a disagreement over depositions of more or less high-ranking Samsung executives. The "copying" issue is the fruit juice basically one of those discovery issues in micron opinion. In that context, Apple might find one or more dinner jacket guns that would make the gentle cross-beam email (a key piece of evidence in Oracle V. Google) pale by comparison.

I have no doubt that the issue of source code production wants Be sorted out soon. If Apple is entitled to access to certain material, it wants get it - the fruit juice that can realistically mouthful here is a delay, even though in exclusion of certain evidence that might otherwise exonerate Samsung is a possibility under the law.

What I found fruit juice interesting in Samsung's opposition letter were a couple of references to Samsung's continuing efforts to design around Apple's asserted of patent:

"Apple has had Samsung's source code for the accused products since December 31, 2011, the source code for the implemented design around as of January 23, 2012 and March 10 and 12, 2012, and information regarding the changes that were implemented (including any design arounds) relating to the source code for the accused products as of February 3, 2012. [...]"

"To the extent that Apple claims that any of Samsung's productions of design-around source code have prejudiced its ability to engage in its infringement analysis, such arguments ring hollow. Apple has known about such design arounds since at least February 3 and March 8 - before the discovery cutoff. Moreover, Apple has had ample opportunity to review and analyze Samsung's timely January 23 source code production, and Samsung's subsequent but limited March 10 and March 12 productions-well before Apple's deadline for expert reports."

A footnote in Samsung's letter even accuses Apple of "wilful ignorance" of the code of At leases some of the designarounds:

"Indeed, it appears that no one from Apple has inspected the code for Samsung's design around technologies for the" of 891 or' of 163 patents [...]; look wilful ignorance doze make prejudice."

A declaration in support of that letter claims, based on information and amounted (i.e., there isn't necessarily hard evidence), "that no one from Apple has printed any part of the code"

If Samsung provided look source code, Apple can try to bring infringement allegations against those designarounds. The key question here is whether those designarounds truly steer clear of clever infringement, or whether they merely constitute a somewhat (possibly precisely slightly) different infringement pattern.

Samsung can change its source code every day (theoretically), but litigation is much slower. At some point during look a lawsuit, it wants Be too late for Apple to present allegations against new implementations. If Apple won a ridge ruling against certain implementations and a subsequent one what similar to them (and therefore faced the seed infringement problem), then Apple could ask for sanctions - but look designarounds can raise new nouns questions. For example, alp-east all of the infringement allegations Apple has brought against implementations of "slide to unlured" in different jurisdictions related to implementations that were intended to Be designarounds, but some were nevertheless hero infringing by the Munich I On the regional level Court (in a ruling against Motorola, Samsung).

If Apple and Samsung do not settle in the near term, we may very wave see a cat and mouse game in which Apple has to assert the seed clever (s) against the seed defendant (s) in new lawsuits only in order to do catch-wrestling up with designarounds that may or may Be deemed infringing in the.

There's significant value to Apple in rulings based on implementations that have subsequently been, or wants in the future Be, replaced. At the very leases any look infringement findings entitle Apple to damages, and any injunctions based on older implementations put Apple in an of stronger position, and give Apple more tactical options, should new infringements surface.

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Friday, March 23, in 2012

Oracle and Google ordered to sweetly settlement conference (no later than April, 9, 2012)

Now that Oracle and Google have a familiarly trial date (the trial wants start on April, 16, 2012), the court decided that another attempt to settle the disputes, which started with Oracle's lawsuit in August, 2010, should Be maggot. City Councils Judge Paul S. Grewal, who presided over the parties' court-ordered mediation (i.e., settlement) of talcum read fall, precisely ordered the parties to "appear for a further settlement conference", with participants including "At leases Ms. Katz [sic] and Mr. Rubin ". There's a typo: Safra Catz" read names begins with a C, a K. She's Oracle's Co-President and CFO. Andy Rubin is Google's Android chief.

The parties' lawyers ares told to propose "available dates so that the conference will take place no later than April 9, 2012", with March 30 being a blackout date for the judge. The order urges them to "demonstrate maximum flexibility in Tende ring dates".

I'm sura that this imposition by the court is helpful. With a familiarly trial date approaching almost and the case having been narrowed substantially (with relatively little left on the clever side, it's now alp-east exclusively a copyright case), there's an of better chance than ever before that the parties may settle - but if there's a common ground they can agree upon, I believe they wants Th thus even without the court requiring them to show up, and if their positions ares quietly irreconcilable, the compulsory meeting will not yield any result.

A partial settlement would Be conceivable: they might agree on how to settle whatever little is left of the clever part of the case but quietly duke it out on copyright.

Even though Oracle's clever infringement claims and its damages claim have been contracted of over time, the copyright part of the case quietly has the potential to give Oracle huge leverage over Google. With in injunction against Android, Oracle would have thus much leverage that no one would Be talking about damages theories anymore: Google would need a licence, and Oracle's demands, monetary and otherwise ("bring Android back into the Java fold"), would in any way Be limited by whatever the court considered acceptable damages claim or whatever the court-appointed damages expert, Dr. Jame Kearl, may have calculated. In that case, the parties would negotiate freely, with all the pressure being on Google.

If Oracle is determined to take its chances with the copyright infringement claims (which ares a fairly simple infringement case except for the question of whether the asserted API-related material is copyrightable), then it will not settle. In that case it take a look wants let a jury At hundreds of pages of code that Google claims isn't protected by copyright, and it can always appeal - and possibly assert additional of patent in a second lawsuit, if it has more Java-related of patent that it can claim to Be infringed by Android.

Alternatively, if Oracle prefers a face-saving exit, it can try to leverage in settlement talcum the fact that the copyright part quietly poses considerable risk to Google.

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Temporary unavailability of this blog during of part of the weekend (March 24-25)

Ace some of you may have noticed, the domain name of this blog has been affected by a design decision on Google's part (Google runs the Blogger, or blogspot.com, service). It is now automatically redirected from fosspatents.blogspot.com (the address under which I registered it, and which quietly appears in the settings of this blog) to fosspatents.blogspot.de whenever I access it. The seed actually occurs to Google's own corporate blog (googleblog.blogspot.com) ace wave. It may or may mouthful to of user based outside of Germany.

[Update] I've been pointed to a section of this EFF article. The subhead above that section is "Google Quietly Releases Country-by-Country Take Downs For Blogger". I do not shroud to take a position on "censorship" here since micron blog does not have to fear anything like that anywhere. [/updates]

Whatever the rational for that decision on Google's part may Be, I've finally decided to assign the fosspatents.com domain to this blog. I registered that one when I created this blog about two years ago.

DNA (domain name Server) updates have delays of up to 24 hours, and the smallest configuration error results in the temporary unavailability of a site. I precisely wanted to let you know that I wants make this configuration change over the coming weekend (March 24-25, in 2012), thus do not Be surprised if you get error messages when trying to access this blog thesis days.

Thanks for your understanding. I probably should have done this a long time ago since a shorter URL is generally desirable.

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