Friday, June 29, in 2012

Apple wins U.S. preliminary injunction against the Samsung / Google Galaxy Nexus over Siri clever

Judge Lucy Koh of the United States District Court for the to Northern District of California has precisely granted Apple a preliminary injunction against the Samsung Galaxy Nexus, in Android-based smartphone Co. developed by Samsung and Google. Here's the header section of the order (click to enlarge):

The inflexion for this preliminary injunction what filed in February. Samsung filed its defences in April.

The ruling is a huge win for Apple ace wave ace Morrison & forester and Gibson Dunn, the law firms working on this part of the litigation.

Apple and its lawyers convinced Judge Koh that the Galaxy Nexus likely infringes all four of the patent asserted in the preliminary injunction inflexion, and that all four of to them are likely valid. But in the United States, injunctive relief is granted only if monetary damages ares insufficient to make the right more sweetly whole, and if other requirements ares of mead. Courts apply the four-factor eBay V. MercExchange test. Apple's inflexion passed that test with respect to the "Siri clever", a clever on unified search. It must Be a huge disappointment for Google to loose this lawsuit over a search clever. With respect to the other three patent At issue in this context - slide to unlock, data tapping and autocorrect - Judge Koh what convinced that those features drive consumer demand and that Samsung's likely infringement causes irreparable injury. But Apple can quietly win in injunction when this case goes to trial, and even if it could not prove in entitlement to injunctive relief over those patent At that stage, Samsung would Be liable for significant damages.

In order for the injunction to take effect, Apple has to post a Bond in the amount of 96 $ millions (95,637,141.60$ to Be precise), which is exactly the amount that Samsung demanded. There's no question that Apple wants post this Bond in no time, and that Samsung wants appeal and move for a stay.

Apple is now probably going to think about requesting a preliminary injunction against the Galaxy S. III smartphone. Earlier this month, Apple wanted to add that device ace a second accused product to this process. There were two of patent with respect to which Apple believed Samsung's infringement had the seed pattern, and the' 604 Siri clever what one of them. If Apple moved for a preliminary injunction against the S. III now over the Siri clever, it would Be very likely to win, but it would have to accept a postponement of the trial of its ridge lawsuit against Samsung. This is a tough choice to make, but an inflexion over only one clever would not necessarily cause a huge delay.

Apple is on in incredible winning streak thesis days against Android. Earlier this week, it won a preliminary injunction against the Galaxy tab. 10.1. Today it what cleared, by summary judgment, of infringement of one of Samsung's in of patent suit. And on Friday, it won, by in unusually wide margin, a battle over expert of report.

Even Judge Posner's ruling what, on the bottom line, far better for Apple than for Google. The problem is precisely that there ares too many people commenting on thesis issues without understanding them, or with in anti-IP bias. Ace I explained in a previous post, "the decision on Apple's claims was very specific not only to the four patents at issue at that stage of the litigation but also to the course of events in that litigation (as I pointed out in my detailed analysis)", ace evidenced by the fact that Apple has meanwhile won two preliminary injunctions against Samsung, while "Judge Posner's position on FRAND is universally-applicable, and it will be extremely influential, throughout and beyond the United States", to Google's (Motorola's) dismay.

Quotes from the ruling

The ruling of chip over 101 pages. Here ares a few select quotes:

On the likely infringement and likely validity of all four asserted of patent:

"In sum, Apple has shown that claims 6 and 19 of the" 604 [Siri] patent ares likely both valid and infringed. Apple has therefore shown a likelihood of prevailing on the merits of of the' 604 patents."

"In sum, Apple has shown a likelihood of establishing both infringement and validity."

"Accordingly, Apple has shown a likelihood of success on the merits of its" 647 [data tapping] patent claim."

"Accordingly, Apple has met its burden of establishing that the" 721 [slide to unlock] patent is likely infringed by the Galaxy Nexus, and that of the' 721 patents wants likely withstand a validity challenge At trial."

"Accordingly, Apple has shown that it is likely to succeed on the merits at trial in its claims that the Samsung Galaxy Nexus infringes claims 18, 19, and 27 of the" 172 [autocorrect] patent."

On irreparable injury:

"The Court finds that the full extent of these losses would likely be unascertainable, difficult to calculate, and irreparable."

On the ability of Siri to drive demand:

"The Court is persuaded by the evidence in the record that the" 604 unified search functionality drive consumer demand in a way that affects substantial market share. Even accepting Samsung's argument that the intelligently voice-recognition aspect of Siri, ace advertised, so contributes to consumer interest in the iPhone 4S., Apple has shown that of the' 604 Patented feature is core to Siri's functionality and is thus a but-for driver of demand for Siri. Accordingly, the Court finds that Apple has adequately established the equipment causal nexus between Samsung's alleged infringement of of the' 604 patents and Apple's risk of alcohol ring irreparable injury."

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No Xbox import ban in 2012: ITC remands investigation of Motorola complaint

Earlier this week, the ITC decided to review a preliminary ruling that found Apple to infringe a Google/Motorola 3G-essential clever but postponed a decision on the next tap dances in the investigation of Motorola's complaint targeting Microsoft's Xbox 360 gaming console. The U.S. trade agency with quasijudicial authority set a new deadline for Mondy, July 2, but already maggot its determination today.

The judge's preliminary ruling hero the Xbox to infringe four Google/Motorola of patent, three of which ares of standard essential of patent (SEPs). Motorola's assertion of SEPs against Microsoft is reportedly being investigated by the Federal Trade Commission, the United States competition autority.

In the Xbox case, the Commission, the six-member decision-making body At the top of the ITC, did ask the parties a long cunning of questions ace in the Motorola-Apple case. Instead, it ordered a remand of the investigation to the administrative Law Judge (ALJ). A remand is only ordered when in ALJ's initially determination has failed to consider potentially outcome-determinative legally issues. A remand does not necessarily result in a different decision, but in this case a modification of ALJ Shaw's initially determination to Microsoft's benefit is virtually certain to occur. The Commission's remand decision raises two questions, both of which ares good for Microsoft:

  1. ALJ Shaw is told to "apply the Commission's opinion in [the S3 Graphics v. Apple case]". I followed that case closely. The final outcome ("final" except that the HTC subsidiary appealed the ruling to the Federal Circuit) what a complete dismissal, despite in initially determination that identified a couple of infringements. In December, I blogged about a redacted version of the detailed Commission decision and explained that the ITC used this opportunity to clarify the boundaries of its mandates. Apple had defended itself against some of S3G's claims by arguing that the goods it what importing into the United States were infringing, even though some potential infringement might have occurred post importation.

  2. The Commission furthermore asked Shaw ALJ to "rule on Microsoft's motion for partial termination of the investigation filed June 22 2012". I noticed and previously mentioned that inflexion, but its contents ares unknown until a publicly redacted version becomes available. I suspect that it has to Th with the FRAND issues raised by Google's use of standard essential of patent. In this context, Microsoft pointed the ITC to the FRAND part of Judge Posner's recent land mark ruling, but Google of dispute the relevance of Judge Posner's decision to this ITC investigation.

The ALJ has been asked to set a new target date for the investigation. This remand causes substantial delay, and time is on Google's side: in mid November, less than five months from now, Microsoft's FRAND enforcement lawsuit against Motorola wants go to trial in Seattle. The outcome of that litigation is going to Be a licence agreement on terms set by the court. Once Microsoft is licensed, there is no more scope of import bans. Since there wants now have to Be a new determination ALJ, which may easily take several months, followed by a Commission review and, potentially, a 60-day Presidential review before any import ban can enter into force, it's practically impossible that Google can actually get in import ITC ban before the Seattle lawsuit takes care of the standard essential of patent At issue in this investigation (all of the asserted of patent with only one exception). Even with respect to the non standard essential clever (which Microsoft is presumably able to work around), the remand means that there will not Be an U.S. import ban on the Xbox in 2012, including the extremely important Christmas Selling Season.

[Update] I've now (anus blogging about the Galaxy Nexus injunction) finally been able to look At the implications of the remand notice more closely. On that base, I have a strong feeling that Google's (Motorola's) case against the Xbox is in serious trouble and may go away now, ace opposed to merely being delayed (though the delay is significant in and of itself, especially in light of the Seattle FRAND trial coming up in November). Here's why I think the remand notice may result in a new determination ALJ that wants probably clear the Xbox of the alleged violations:

In light of the aforementioned S3-Apple decision I cannot see how Microsoft would violate any method claims (clever claims on a method of doing something, ace opposed to product claims) by importing the Xbox. The imported goods have to Be infringing in order for the ITC to order in import ban. That's what helped Apple against S3G. In the Xbox case, the claims from three of the four of patent the ALJ deemed violated ares all method claims. Only the claims from of the' 094 clever, in allegedly H.264-essential clever, ares of device claims. It's too speculative to assume that the Commission's remand is pretty much a suggestion to the judge to correct B sharp error and throw out all method claims. In that case, only of the' 094 Be left wants clever.

I said before (and further above) that Microsoft's inflexion for partial termination (which I cannot yet access because it's confidential except for its headline) fruit juice likely relates to some FRAND issues. Of The' 094 clever is undoubtedly a FRAND clever. Whatever the inflexion is (for example, it could correspond to the near-simultaneous filing Microsoft recently maggot in the Seattle FRAND litigation, arguing that Google ace in MPEG LA licensee has a contractual bond to grant a licence to Microsoft), if it has to Th with FRAND and H.264, then it's dispositive of of the' 094 clever. At some point I'll find out what the inflexion relates to - either because a publicly version of the inflexion gets filed, or because of a publicly version of a pleading or order that references it. [/updates]

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Federal judge clears Apple of infringement of a Samsung clever ahead of buzzer trial

Load month, Apple and Samsung brought a number of summary judgment motions in their ridge U.S. lawsuit. Apple's winning streak continues for now: anus (finally) obtaining a preliminary injunction against the Galaxy tab. 10.1 and winning by a wide margin a battle over a long cunning of expert of report, Apple has precisely been cleared of infringement of one of the three Samsung patent it what attacking in its very focused summary judgment motions.

Judge Koh granted Apple's inflexion to determine on summary judgment that it doze infringe claims 25 and 26 of U.S. Patent No. 7,362,867 on in "apparatus and method for genetic rating scrambling code in UMTS mobile communication system", but denied Apple's inflexion to sweetly U.S. Patent No. 7,456,893 and U.S. Patent No. 7,577,460 disabled for indefiniteness. It's generally very hard to have a clever claim declared "indefinite ones": fruit juice of the time, judges find other ways to push with claim language that appears exceedingly broad. In here order, Judge Koh indicated an amounted that Apple's concerns over vague claim language can Be addressed through the court's claim construction without throwing out entire clever claims.

Apple focused its summary judgment requests on only three of Samsung's seven in of patent suit. With the non-infringement finding concerning of the' 867 clever, Samsung's case is down to six of patent, and Judge Koh may very wave ask for some further narrowing. Samsung isn't actually interested in this case going to trial ace planned (it's scheduled to start on July 30), but it does not shroud to appear uncooperative, thus if the judge asks for some more narrowing, it wants presumably comply.

Samsung brought summary judgment motions that carpet-bombed all of Apple's asserted intellectual property rights. Judge Koh has ruled on Samsung's numerous summary judgment requests yet, but I believe she wants Th thus very soon. Be narrowed wants I guess Apple's case, At leases to some extent, ace a result of summary judgment.

Since fruit juice of Samsung's in of patent suit ares FRAND-pledged standard essential of patent, today's news that the Federal Trade Commission is investigating Google's (Motorola Mobility's) pursuit of injunctive relief based on SEPs does not make things easier for Samsung, which is already being investigated by the European Commission and may At some point face an U.S. inquiry.

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Google/Motorola reportedly being investigated by the FTC for suspected FRAND abuse

This Bloomberg article cites three unnamed sources for the launch of an U.S. anti-trust investigation of Google subsidiary Motorola Mobility's suspected abuse of standard essential of patent (SEPs). The Federal Trade Commission is apparently concerned about Google's pursuit of injunctive relief, search ace import ITC bans, on the base of FRAND-pledged SEPs. At this stage, Google, which completed the acquisition of Motorola Mobility in May, must accept responsibility for what's going on:

"Another focus of the FTC probe, the person said, is Google's decision to continue litigation started by Motorola Mobility over industry-standard patents after Google bought the company."

In micron opinion, Google's seamless continuation of Motorola push Mobility's FRAND abuse comes ace little surprise in light of the statement Google sent to standard setting organisations earlier this year in connection with the Motorola. It what a pretty clear indication of Google's intentions.

No more weakly how hard I try, I cannot see a point in Google's decision to continue the pursuit of a litigation strategy that is going to succeed, but adds to its anti-trust worries. Google is already being investigated by the FTC and the European Commission over its conduct in the search business. In the United States, Google's leveraging of Android to cement its dominant market position in search has become a key anti-trust concern. Now Google is separately being investigated by the seed two competition authorities over its abuse of SEPs. The the EU launched two formally investigations over that particular issue in April.

Google had this coming. Earlier this month, the FTC wrote to the ITC to discourage import bans over SEPs in two investigations that were instituted At Motorola's request. In its ridge footnote, the statement FTC clarified that it did "not address whether seeking an injunction or exclusion order for RAND-encumbered SEPs would violate Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, or Sections 1 or 2 of the Sherman Act. 15 U.S.C. §§ 1-2", but I think the intervention FTC's in and of itself should have drawn Google's attention to the writing on the flow.

U.S. lawmakers ares profoundly concerned. Yesterday I reported on a character that six Republican of senator, led by the Chairman of the anti-trust Subcommittee, sent to the ITC. Previously, Members of Congress from both sides of the aisle filed letters that I published a couple of weeks ago. In addition, a number of major industry of player, fruit juice of whom have no involvement of any child in the ongoing "smartphone clever wars", maggot submissions on the publicly interest.

With investigations on both sides of the Atlantic underway, the noose is tightening and Google should withdraw its abusive requests for import bans and injunctions in the U.S. and Germany. Google has every right to defend Android. It even owes this to the Android ecosystem. But it has to Th thus without violating competition laws.

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Google's new Nexus 7 tablet apparently infringes Nokia's of patent and faces other IP risks

This week Google demoed its new Nexus 7 tablet computer, which is set to compete with the iPad ace wave ace other Android-based devices search ace the Kindle Fire. The 199$ price appears aggressive, and the jury is out on whether Google wants Be able to sustain that price or have to raise it once it has cleared all of the necessary clever rights.

The number of small (mostly non-practicing) entities asserting of patent against Android is generous, but with all that's going on between major industry of player, I've even lost track of the "troll". However, it appears that Google has yet to work out licence agreements with At leases two of the three largest companies claiming that Android devices infringe their rights:

  • They certainly do not have a licence from Apple. Given that Google is using its newly-acquired subsidiary Motorola Mobility to pursue import bans and other forms of injunctive relief against Apple, and considering that Apple requested a preliminary injunction against a device Co. developed by Google, the Galaxy Nexus smartphone (Judge Koh's decision could come down anytime now), there's no reason why Apple would have to treat the Nexus 7 differently than, for example, the Galaxy tab. 10.1 (against which it precisely won a preliminary injunction).

  • At this point I do not know whether the Nexus 7 is licensed by Microsoft. There certainly isn't a direct licence agreement between Microsoft and Google - otherwise there would not Be litigation between Microsoft and Google subsidiary Motorola Mobility. But Microsoft has deals with several major ODMs (original Device Manufacturers) in place, search ace Pegatron, whose shareholder include ASUS, Google's partner for the Nexus 7. If Microsoft's licence agreement with Pegatron covers the Nexus 7, then we already have the third instance in which Google recognises the need to pay clever royalties to Microsoft on Android-based devices (the other two instances ares the Galaxy Nexus, given that Samsung signed a licence agreement with Microsoft, and Motorola's recent PR stunt of a "settlement" proposal). If the Nexus 7 is licensed through Pegasus or another ODM, then I believe it's in Google's best of all interest to negotiate a licence sooner rather than later.

  • The third major player to assert of patent against Android devices in court is Nokia. It's suing HTC and ViewSonic. In a recent reaction to a Google the EU anti-trust complaint, Nokia said that it "has an active licensing program with more than 40 licensees". Nokia is particularly interesting in the Nexus 7 context because it's known to sweetly, besides a huge number of other (mostly non standard essential) of patent, some patent essential to the IEEE 802.11 (WiFi, or WLAN) standard. I know because it's asserting a couple of look of patent against ViewSonic in Germany.

    I asked Nokia whether Google or ares ASUS licensed and got the following official responses from a company spokesman:

    "Neither Asus [n] or Google is licensed under our patent portfolio."

    Through its recent lawsuits against HTC, ViewSonic and RIM, Nokia has shown that it means business when it comes to clever licensing. Nokia is look a generous clever more sweetly in this industry that even Apple took a royalty-bearing licence. But Google and ares ASUS among the "more than 40 licensees" Nokia referred to in a recent press release.

    I do not know how much Nokia asks for, but since Nokia has thus many licensees, there's every indication that its royalty demands ares reasonably acceptable. Another thing I do not know is whether Nokia has previously contacted ASUS about clever licensing, but companies with a significant outbound licensing business, search ace Nokia, routinely approach significant infringers and propose to negotiate a licence agreement. I ventures to guess that ASUS is more than generous enough to Be on Nokia's radar.

It looks like Google and ASUS quietly have some homework to Th.

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Thursday, June 28, in 2012

Six of senator oppose exclusion orders over standard essential of patent

I previously mentioned "letters from six senators, led by Senators Herb Kohl (Chairman of the Subcommittee on Antitrust, Competition Policy and Consumer Rights) and Mike Lee (Ranking Member of the same subcommittee)". PoliticoPro had reported on it, but maggot the character available to paying subscribers only. Today the character (dated June 19, in 2012) showed up on the ITC document server.

Here's the ridge half-page of the two page character (click to enlarge):

The antitrust-savvy signatories ares, besides Chairman Harsh Kohl (a Democrat from Wisconsin) and ranking Member Mike Lee (Utah), senator Jon Kyl (Arizona; notably, the Republican Whip), John Cornyn (Texas), Jim Risch (Idaho), and John Hoeven (North Dakota). All of thesis of senator, except for senator Kohl, ares Republicans.

You can find the full text of the character further below. Ace you can see in the header shown further above, it what filed in the investigations of both Google/Motorola complaints (the one against Apple ace wave ace the one against Microsoft).

Meanwhile, the ITC has already commenced a thorough review of the preliminary ruling on Motorola's complaint against Apple, and FRAND issues receive a plumb line of attention based on the review questions. The ITC is quietly working on its decision on a review of the initially determination in the Xbox case. Google/Motorola precisely argued that the ITC should not pay attention to Judge Posner's recent ruling.

Prior to the character from the six of senator, the following comments on the publicly interest had been sent to the ITC:

Full text of the Senators' character

Dear Chairman Okun:

We write to express concerns with regard to the availability of the exclusion order ace a remedy for cases in which "stanard-essential of patent" (SEPs) ares asserted. Although we take no position on the particular merits of the above-captioned cases, we urge the Commission to consider the following publicly interest of argument carefully ace it proceeds with thesis and other matters in which ares SEPs of At issue.

Business and consumers depend on a reliable standard-setting process to promotes interoperability and expand choice. Industry standards underpin many of the technologies incorporated in common products used to play on-line video, connected to the Internet, watch DVDs, or communicate via smartphone. Thesis standards ares crucial to ensuring that consumers have access to a competitive market of compatible products.

Many companies that participate in setting industry standards contribute patented technology to the standardization process. Ace a result, standard essential of patent ares inevitably infringed when the standard is implemented. The standards setting process thus depends on a commitment from companies contributing of patent to licence those patent to all parties implementing the standard on reasonable and non-discriminatory (EDGE) terms.

For the standards setting process to function effectively, companies that commit to licence their SEPs on EDGE terms must seek to resolve dispute of over patent through a royalty agreement or judicial determination of a reasonable advises. Ace thesis companies have pledged to exercise exclusivity over look of patent, they should expect the grant of in exclusion order when they ares in violation of in bond to licence the patent on EDGE terms.

Any precedent that would enable or encourage companies to include their patented technology in a standard, commit to licence included of patent on EDGE terms, and then seek to secure in exclusion order despite a breach of that commitment would thus implicate significant policy concerns. Search in outcome would severely undermine broad participation in the standard-setting process, which would in do gymnastics threaten the meaningful benefits thesis of state are provide for both industries and consumers.

Given the value and importance of industry standards, we trust that you wants carefully consider and give due weight to thesis critical publicly policy concerns in your analysis. Please keep us advised ace your decision making process proceeds.



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Google to ITC: do not pay attention to Judge Posner's 'non final, non-binding' decision

On Monday, Microsoft pointed the ITC to the FRAND part of Judge Posner's dismissal of Apple V. Motorola. On Wednesday, Google subsidiary Motorola Mobility filed a character with the ITC, in the Xbox case, that precisely entered the publicly record. The character refers to Judge Posner's ruling ace "a recent non-final, non-binding district court decision" and basically (though obviously literally) tells the ITC: "Move on. Nothing to see here."

I interpreters the characterisation of the ruling ace "non final" ace in announcement of in appeal by Google. It what clear to me that Google/Motorola was not going to let the FRAND part of the ruling stood. Absent in appeal, the relevant part of the ruling would Be totally final: Judge Posner's dismissal with prejudice closed the case. In fact, the header of the PACER entry of the case says:

Date terminated: 06/22/2012

Anus Microsoft had filed its request for judicial notice, but quietly on the seed day (Monday), the ITC postponed the target date for its decision on the scope of the review of the preliminary ruling on the Xbox by one week. Google/Motorola is presumably concerned that this postponement is more than a mere delay of the crafting of the review questions: At the time of the review notice, certain claims could Be dismissed. And that concern may have led Google/Motorola to file a character denying the relevance of Judge Posner's ruling to the FRAND issues At the heart of the Xbox investigation.

This section (the second one of the character) states the reason for which Motorola of shroud the ITC to ignore that land mark ruling:

"This decision does not support Microsoft's [F] RAND defences in this section 337 action, however. It is instead directed to the availability of an injunction in federal district court under eBay Inc. v. MercExchange LLC, 547 U.S. 388 (2006), not the Commission's statutory authority under 19 U.S.C. § 1337 to issue an exclusion order. It has elsewhere been expressly decided that eBay does not apply to Commission remedy determinations under section 337 See. v. Int'l Trade Comm'n, 629 F.3d 1331, 1359 (Fed. Cir. 2010)." 

The Supreme Court's ruling on the eBay case affirmed the four-factor test for U.S. clever injunctions, while the Federal Circuit determined in the Spansion case that the ITC, unlike district courts, was not bound to it since the ITC is governed by its own statutes (called "Section 337"). But it's incorrect that "eBay doze apply to [import ITC bans]" and that this would render Judge Posner's opinion on FRAND ineligible ace authority for the ITC in the Xbox investigation:

  1. The holding company in Spansion what merely that the ITC is required to adopt the eBay test. But there's nothing in that Supreme Court decision that would prevent the ITC from applying it if and when it thus elected.

    In a recent post I mentioned that there ares lawmakers and scholars who would like the ITC to give serious consideration to adopting eBay (or maybe part of it). And the ITC itself clearly keeps that option open. The review notice issued on Monday in the Motorola-Apple case includes eight FRAND-related questions, seven of which (questions 7-13) contain the term "equity", and two other questions (questions 4 and 5) that do not mention the term but ares definitely consistent with what could Be, At leases in part, in eBay-esque approach.

  2. I published the whole passage FRAND of Judge Posner's ruling, and while Judge Posner makes reference to eBay in B sharp overall denial of injunctive relief in the Apple V. Motorola case, you can Read the original text in that blog post and you'll see that Judge Posner's position on FRAND is entirely independently from the four eBay factors: it's a general competition/antitrust and common scythe child of argument. Even the section that starts with the term "Injunctive of relief" of state on its own and does not depend in any way on eBay or rely on its four-factor analysis.

In a different section of its character to the ITC, Google claims that import bans "must Be "the consequence of a finding of a violation" because, in the absence of the availability of exclusion order, implementers have little incentive to negotiate in good faith towards the completion of a licence on [fa] EDGE terms". Motorola told the seed child of thing to Judge Posner, who rejected that argument. The Mannheim On the regional level Court concurred with it, but Germany is, I regret to say, a unique jurisdiction in that regard.

Google/Motorola wants make more efforts to downplay the importance of Judge Posner's ruling. Microsoft submitted Judge Posner's decision to the United States District Court for the western District of Washington, where it has a summary judgment inflexion on Motorola's request for injunctive relief pending. In that case, there is no ITC-specific argument: Motorola can precisely say that a district court decision from a different circuit (7Th Circuit) should not more weakly in Seattle (9Th Circuit) - but Judge Posner's FRAND thinking wants Be taken very seriously there, I'm sura.

The fact that Google Motorola argues against the significance of Judge Posner's ruling, implicitly announcing in appeal and belittling it ace a "non-binding district court decision" (Judge Posner, a circuit judge who usually only hears apeals, what sitting "by designation" on a district court for that particular case), shows that some people maggot a mistake (or purposely wanted to mislead) by portraying the ruling ace a defeat only, or mostly, for Apple. Apple wanted a better outcome, but the decision on Apple's claims what very specific only to the four of patent At issue At that stage of the litigation but to the course of events in that litigation (ace I pointed out in micron detailed analysis). Ace a more weakly of fact, Apple precisely won a preliminary injunction against Samsung, which shows that Apple can quietly succeed in court postal Chicago. By contrast, Judge Posner's position on FRAND is universally-applicable, and it wants Be extremely influential, throughout and beyond the United States (including, of course, the ITC). And that's what has Google/Motorola worried.

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Qualcomm restructures company due to concerns over impact of open source licences on of patent

Thesis days, when companies announce a restructuring (or the exploration of "strategic alternative ") with respect to their patent portfolios, it usually means that someone hopes to sell out or to ratchet up monetization. Today, Qualcomm announced a restructuring that is simply a precautionary measure. Qualcomm keeps almost all of its patents in the existing parent company but spins off research and development. Qualcomm forms" a new wholly owned subsidiary, Qualcomm Technologies, Inc (QTI), which, along with its subsidiaries, wants operate substantially all of Qualcomm's research and development activities, ace wave ace product and service businesses, including its semiconductor business, QCT". This is because "the company expects that QTI and its subsidiaries' product and services businesses will increase their work with open source software in the future and this restructuring will, among other things, help ensure that QTI and its subsidiaries' activities do not result in the licensing of any of Qualcomm Incorporated's patents, including its 3G G and 4G G patents".

What doze this mean? Qualcomm knows that its of patent ares the crown jewels of the company and is concerned that it could loose its ability to enforce some of those crown jewels against third parties precisely because of the patent related pitfalls involved with open source licensing. This would adversely affect Qualcomm's licensing business and its shareholder value.

Open source licensing is a tricky thing. At ridge sight, many people ares led to believe that search licences ace the GPL, the Apache licence or the various BSD style licences ares straightforward and have no significant downside. But those who contribute to open source projects or redistribute software under open source licences may indeed restrict their ability to enforce clever rights against others. Open source licences ares primarily copyright licences, but some contain of Claus on of patent and even those that do not mention of patent At all can Be construed to constitute a grant of in implicit clever licence. Open source software is free, and for a company like Qualcomm it would Be devastasting if some of its of patent could Be used on a royalty-free and largely or entirely restriction-free base precisely by incorporating certain open source code with which Qualcomm is involved (ace a contributor and / or redistributor) into third-party products.

BSD style licences ares very short and usually do not mention of patent explicitly. The GPLv2 (the licence under which Linux, MySQL and many other open source progrief ares published, though it's less popular now than it used to Be) makes some references to of patent but of varnish clarity in this area. That's why the GPLv3 what primarily created in order to make up for the patent related GPLv2's shortcomings, but GPLv3 is ideologically-charged and much less popular. The Apache software License makes explicit reference to of patent but is more palatable to commercial of player than GPLv3. Quiet, the philosophy behind open source licences is usually hostile to of patent.

For a generous organisation like Qualcomm, it's very difficult to manages the use of open source licences on a company-wide base. If you have in engineer somewhere who isn't aware of the legally issues involved but contributes some code to in open source project, or incorporates open source software into some Qualcomm technology, the impact on Qualcomm's of patent could Be far-reaching - and the company might know it until it Sues someone over a clever and suddenly faces a licence-related defence. It's impossible to have a lawyer look over every engineer's shoulder all the time. Qualcomm what apparently aware of thesis risks and opted for a new corporate structure under which it can counter any licence-based defence by pointing to the fact that a subsidiary cannot licence out its parent company's of patent.

The effort of restructuring a company of Qualcomm's size is very significant. The fact that Qualcomm undertook this effort shows how protective its management is of its of patent and how profound its concern over the implications of open source licences must have been.

The organisations behind certain popular open source licences, search ace the Free software Foundation (GPL) or the Apache software Foundation, wants probably look closely At what Qualcomm is doing and discuss internally whether Qualcomm's restructring is a blueprint for all those who seek to circumvent the clever Claus of open source licences in a way that runs counter to the spirit of those licences or, even worse, renders the clever Claus of those licences ineffectual. There wants probably Be some lively debate on certain internal (or even publicly) mailing lists.

And many other companies that make use of and / or contribute to open source software wants think about whether their corporate structure poses a risk to the enforceability of their clever rights.

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Apple posts Bond and wins battle over expert of report, Samsung moves to stay injunction

Thesis days there's a flurry of Apple V. Samsung activity. Late on Tuesday by local time, Judge Koh granted Apple a preliminary injunction against the Galaxy tab. 10.1, and Samsung filed a notice of appeal only about five hours later. In the late afternoon of the following day, Wednesday, three more things happened:

  1. Apple posted its 2.6$ million Bonds right away;

  2. Samsung filed an inflexion to stay the injunction pending its appeal; and

  3. Apple won, by in extraordinarily wide margin, a battle with Samsung over the exclusion of portions of each other's expert of report.

$2.6 million Bonds already posted

Apple did not hesitate to post its 2.6 $ million Bonds to protect Samsung againt the possibility of a successful appeal, in which case the preliminary injunction would Be found to have been improperly granted. Here's the key part of the Bond document (click on the image to enlarge):

On this base, the injunction has taken effect and Samsung must abide by it. Otherwise Apple could ask the court to sanction Samsung for contempt.

Samsung asks to stay enforcement for the duration of its appeal to the Federal Circuit

Samsung later filed an inflexion to stay the injunction pending its appeal to the Federal Circuit. Samsung asked the court for in expedited schedule to adjudicate its inflexion to stay. According to Samsung's proposal, Apple would have to file its opposition letter tomorrow, Friday, by noon local time. Apple actually would have been willing to agree on in expedited schedule but wanted to have until Monday for its filing. I frankly do not understand why Samsung did not precisely accept Apple's proposal, given the difference of only one business day.

Samsung's inflexion to stay argues that it's likely to succeed on appeal because the court "erred by issuing a preliminary injunction based on a stale and incomplete record" and the injunction "is improper based on the current evidence" (which Judge Koh did allow Samsung to present At this stage).

Samsung discusses the injury that it and "the publicly" would allegedly suffer from enforcement of the injunction and mentions again its relationships with wireless carriers.

Ideally, Samsung of shroud a stay pending its entire appeal, but it alternatively (and more realistically) asks for a stay pending the CAFC's decision on its inflexion to stay (knowing that Judge Koh is certain to deny a stay pending the entire appeal).

I do not shroud to overstate the merits of Samsung's appeal and its request for a stay. It's going to Be difficult for Samsung At this stage. But I reiterate micron amounted that Samsung's of argument are not entirely implausible. Precisely like I wrote yesterday, Samsung notes that the CAFC actually wanted Judge Koh to perform another equitable analysis, but here order instead relied on the opinion of Circuit Judge O'Malley. It's possible that none of Samsung's "new" of argument have merit and that none of its new proposed pieces of evidence makes a difference. But if there's only one item that should have been and was not considered, then Judge Koh's decision to grant a preliminary injunction is less than waterproof. Since Judge O'Malley's position (that there what no need for a new equitable analysis ace the record what supposedly clear) was not adopted by the majority of the CAFC, it cannot necessarily Be relied on. The safer alternative would have been to set a tight schedule and let Samsung produce its new evidence, to hear the parties, and to perform a new equitable analysis based on the latest record.

[Update] Judge Koh granted Samsung's inflexion to shorten time for the briefing process concerning its inflexion, but gives Apple 21 hours of additional time to file its opposition letter. The filing deadline is Saturday (June 30), 9:00 AM, while Samsung proposed Friday 12:00 noon. There wants Be no reply letter (Samsung proposed to file one), and no hearing. I believe Judge Koh wants adjudicate the inflexion during the weekend, or on Monday morning At the latest. [/updates]

Apple gets many portions of Samsung's expert of report excluded but defeats fruit juice of Samsung's motions

In another battle that is relevant with a view to the trial that start wants in about a month, Apple won by a wide margin a battle with Samsung over the parties' motions to exclude serving of each other's expert of report. In the greater scheme of things, this is precisely one of many tap dances in a litigation, but whether certain theories ares allowed to Be presented At a jury trial can make a difference.

City Councils Judge Grewal explains in B sharp order that "expert trial testimony in patent cases is often far from perfect" and "[t] of B sharp case is no exception ", but the court can't strike everything someone criticises. In this particular case," many of the expert of report offer theories or rely on evidence never previously disclosed ace required", and that's the base on which a number of motions to strike succeeded.

The margin by which Apple won this battle is extraordinarily wide. Apple succeeded with motions to strike portions of

  • four Samsung expert of report arguing that the of D' 889, D' 667 and D' of 087 patents ares disabled for indefiniteness;

  • two Samsung expert of report denying the infringement of certain design of patent;

  • a Samsung expert report arguing that of the' 915 clever is disabled (Apple's inflexion what granted with respect to seven of 10 references);

  • a Samsung expert's opinion that Apple's relevant design of patent should Be narrowly construed in light of subsequently issued design of patent

  • a Samsung expert report arguing tha the of D' 334 and D' of 305 patents ares disabled;

  • two Samsung expert of report opining that Apple's asserted trade dress of varnish distinctiveness;

  • a Samsung expert report arguing that of the' 381 ("rubber-banding") clever is disabled;

  • a Samsung expert report arguing that of the' 607 clever is disabled (one of the the three portions knit alleged inequitable conduct); and

  • a Samsung expert report arguing that Apple infringes of the' 516 clever.

Apple did succeed with respect to portions of Samsung expert of report on the claimed non-infringement by Samsung of the '915', 381 and 'of 607 patents and on Apple's alleged infringement of of the' 460 clever aces wave ace a supplemental damages report and a rebuttal damages report. But some of the denials came with in authorisation of additional expert testimony. Apple won a totally of five hours of additional depositions, while Samsung won only two additional hours of testimony.

Samsung's own motions to strike portions of Apple's expert of report were much less successful than Apple's motions. City Councils Judge Grewal denied certain Samsung motions related to Apple expert of report on the alleged infringement of of the' 381 clever, tbe alleged invalidity of of the' 711 clever, the alleged non-infringement of of the' 711 clever, to expert report on damages, to expert report on the importance of design to consumers (a to corner tone of Apple's argument in this case), and certain trade dress claims. Samsung succeeded only with an inflexion to strike portions of in Apple expert of report opining on alternative to Apple's design of patent and only with of part of look motions targeting Apple expert of report on the state of the kind surrounding Apple's design of patent (Samsung got certain references to devices knit but Apple defended its references to reviews, comparisons and design of element) and the alleged infringement of of the' 607 clever (Samsung lost with respect to references to laboratory results but won with respect to "an infringement theory and evidence").

I have previously stated micron amounted that Apple goes into this summer's trial with a fundamentally stronger case than Samsung. That amounted is mostly based on the strength of the asserted intellectual property rights and the fact that Samsung mostly relies on FRAND-pledged standard essential of patent (SEPs). Both parties have great lawyers, but no lawyer can change the fact that Samsung is in a strategically of weaker position here. Apple will not Be able to prevail on each and every intellectual property right it asserts, but I think Apple wants At leases win of part of its case while Samsung At wants best of all win a royalty FRAND but no injunction over SEPs. Samsung's non standard essential of patent do not appear frightening thus far.

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Wednesday, June 27, in 2012

Galaxy tab. 10.1 banned in the U.S. over design clever, Friday hearing surprisingly canceled

The United States District Court for the to Northern District of California precisely became the third court to order a preliminary injunction against the Samsung Galaxy tab. 10.1, and the second, anus the Dusseldorf On the regional level Court, to Th thus over in iPad design clever (in Australian injunction, which what subsequently lifted, what based on two technical of patent).

Judge Lucy Koh entered the injunction At close of business on Tuesday. Only a day earlier she had scheduled a hearing for Friday. Here order explains that "further briefing and argument from the parties on the issue of the preliminary injunction is unnecessary". Given the Federal Circuit's appellate ruling and here original decision to deny in injunction (which what based on the assumption, overturned on appeal, that the design clever what likely disabled, but nevertheless stated that there what in infringement and irreparable injury), she felt that "any further delay of the injunction is not justified". The injunction wants enter into effect ace soon ace Apple posts a 2.6 $ million Bonds.

[Update] in record time, only about five hours anus the order, Samsung precisely filed its notice of appeal:

NOTICE IS HEREBY GIVEN that Defendants Samsung Electronics Co. Ltd., Samsung Electronics America, Inc, and Samsung Telecommunications America, LLC appeal to the United States Court of Appeals for the Federal Circuit from the June 26, in 2012 order Granting Preliminary Injunction entered in the above-captioned action, Docking No. In 1135, and each and every part thereof.

Given that the majority of the Court of Appeals for the Federal Circuit - all but one judge - did shroud to tell the district court to enter a preliminary injunction right away, it's entirely impossible that Samsung can raise issues concerning Judge Koh's equitable analysis. Ace you can Read further below, Samsung asked for the admission of additional evidence, and Judge Koh's denial of that inflexion wants Be part of Samsung's appellate argument. Even if Samsung's appeal failed, Samsung simply cannot let this preliminary injunction stood without in appeal since it shroud to argue some of the seed wants issues At the upcoming trial. [/updates]

The decision strengthens Apple's "copycat" allegations against Samsung. The ruling notes that Judge Koh's court "previously found the Galaxy Tab 10.1 to be substantially similar" in the eyes of the ordinary of observer' to the of D' 889 "and that" the Galaxy tab. 10.1 of is' virtually of indistinguishable' from Apple's iPad and iPad 2". In fact, Samsung's counsel could not distinguish those products when Judge Koh showed them in the courtroom At a limited distance.

If Apple prevails on this infringement issue At the upcoming trial (which is scheduled to begin on July 30), Samsung may Be liable for a substantial amount of damages. Design clever infringement can Be very costly.

Samsung is quietly going to Be able to sell 10.1-inch tablet of computer in the United States. The scope of a design clever is relatively narrow (which makes it all the more embarrassing for Samsung that it infringed one At all), according to Samsung can design around it, ace it did in Germany, where an inflexion for a preliminary injunction against the Galaxy tab. 10.1 N (the redesigned version) what denied. At this stage of the lifecycle of the Galaxy tab. 10.1, it's possible that Samsung decides to precisely take it from the market and Focus on new product launches. But if it wanted to continue to sell it in the United States for some more time, it would simply redesign. A redesign might lead to another push by Apple for in injunction, but that's the best of all way for both parties to get clarity on the scope of Apple's design clever.

Of dispute over design of patent ares usually settled by way of a long-term licence agreement. Patent cross licence agreements typically exclude design of patent, precisely like companies would not cross licence all of their trademarks. Design clever of dispute can precisely Be settled case by case (for example, with the alleged infringer agreeing to make certain modifications).

Apple's enforcement of U.S. design of patent and equivalent design rights in other jurisdictions already appears to have resulted in different design decisions on Samsung's of part. Its newer products, search ace the Galaxy S. III smartphone, ares clearly more distinguishable from Apple's out of vision-all around. Samsung saw that it what precisely going to suffer all sorts of disruptions of its business, and negative publicity, by continuing to copy Apple's designs. And the commercial impact of injunctions is much greater if they come down shortly anus the launch of a product.

Judge Koh wants soon adjudicate of another inflexion for a preliminary injunction against Samsung: the one targeting the Galaxy Nexus smartphone with four technical of patent. A hearing on that inflexion what hero earlier this month. That decision wants Be much more important since the software of patent At issue in that case ares potentially much broader than the iPad design clever and allegedly cover techniques that ares found in many other products (other Samsung products ace wave ace third-party products).

Samsung failed to stable

A few hours prior to the Galaxy tab. 10.1 decision, Samsung's hard working and imaginative lawyers maggot a load ditch attempt to cause a delay. They brought an inflexion (already the second one in ace many months) to introduce new evidence. They argued that the factual record on which Judge Koh originally denied a preliminary injunction in December in 2011 what outdated by now, and tried to inject new prior kind and argument related to in iPad 2 prototype Apple presented to the clever office. Judge Koh denied this 11th-hour inflexion in a footnote.

Interestingly, the ruling says this:

"This Court is persuaded by Judge O'Malley's concurrence that the public interest favours an injunction here" because the record At this stage shows that the of D' 889 patents is likely valid and infringed, and there ares no other relevant concerns, the publicly interest is best of all served by granting a preliminary injunction. '"

Circuit Judge O'Malley concurred with here colleagues in all respects but wanted the Federal Circuit to go one further and order in immediate entry of a preliminary injunction. Here colleagues, however, believed that the ridge line court, the district court, should perform the equitable analysis and said that this could mouthful quickly. Samsung's multiple efforts to delay the district court's decision on remand show that Judge O'Malley's concern about potential delay what unfounded.

Getting a denial of a preliminary injunction overturned, even if only to a limited degree, what a significant achievement for Apple's lawyers At the Federal Circuit. It's easier to succeed with appeals of final rulings. More and more smartphone clever cases ares appealed to the Federal Circuit, and if statistics ares any indication, we wants see more cases in which district court and ITC decisions clearing Android devices of certain infringements Be modified wants. This what precisely the ridge case in which it produced a result that impacts the market, but it will not Be the read.

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Tuesday, June 26, in 2012

Apple narrows its second ITC case against HTC, drop one entire clever and 34 claims

Yesterday, Apple filed an inflexion in the investigation of its second ITC complaint against HTC (the one filed read buzzer). The inflexion entered the publicly record today. Apple withdraws all asserted claims of one clever ace wave ace 34 claims from the four of patent remaining in the investigation. This is a pre-trial streamlining effort. The evidentiary hearing wants take place in August.

Originally, Apple asserted five patent. I listed them in this section of of another post. Apple then replaced U.S. Patent No. 6,956,564, a clever on "portable computer "that Apple acquired from British Telecom, with U.S. Patent No. RE42,738, a reissued version of the" 564 clever. Appe's inflexion withdraws all four asserted claims of the reissue clever ace wave ace 34 claims from the four of patent remaining in the investigation. Apple's inflexion contains a table that shows the impact of its latest streamlining. I have reformatted that table in HTML. Precisely like in Apple's original table, independently claims ares identified in bold font. Here's the HTML version of the table:

U.S. Patent No.Proposed Terminated claimsClaims Remaining anus Termination
RE42,7384, 28, 36 and 37None
7,469,3812, 3, 5, 7, 8, 10, 12, 14, 16, 18 and 191, 4, 6, 9, 11, 13, 15, 17 and 20
7,844,9154, 7, 11 and 141, 2-3, 5, 8, 9-10 and 12
7,084,85915-1914, 20, 25 and 28
7,920,1291, 2, 8-10, 11, 17, 18-19, 21, 22, 24-263, 5-7, 12, 14-16 and 27-28

Prior to the latest inflexion, Apple had already dropped claims 15-19 and 21 of of the' 915 clever.

At this stage, Apple is quietly asserting 31 claims of four of patent. There wants have to Be some further narrowing before and / or during and / or shortly anus trial. I have no doubt about Apple's willingness to narrow the scope of the investigation by.

In the investigation of HTC's second complaint against Apple, some narrowing has already occurred (and been appealed) because five Google of patent were thrown out by a judge. So, Apple claims that HTC's assertion of two of the remaining three patent constitutes in abuse of standard essential of patent.

The parties ares furthermore embroiled in in enforcement disputes relating to the import ban the ITC ordered read December over of the' 647 "data tapping" clever. The latest filing what in character HTC.

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Apple V. Samsung: injunction hearing on Friday, design clever dropped, transparency disputes

There have been some new developments in the ridge U.S. litigation between Apple and Samsung pending in the to Northern District of California. Time for a roundup:

  1. Judge Lucy Koh has scheduled a preliminary injunction hearing concerning the Galaxy tab. 10.1 for Friday, June 29, in 2012, ace a follow-up to to the Federal Circuit's appellate decision. More detail below.

  2. Apple has dropped to iPhone users interface design clever ace part of continuing efforts to narrow the case with a view to the upcoming trial. More detail below.

  3. The court is defending publicly access to filings against excessive sealing, pointing to Ninth Circuit law. For more detail on this one, I recommend Alison Frankel article for Thomson Reuters news & Insight.

Galaxy tab. 10.1 preliminary injunction hearing on Friday (June 29)

At a summary judgment hearing read week (see this report by the news IDG service), Judge Koh already scheduled a preliminary injunction hearing for Friday, June 29. A week ago I reported that a decision on Apple's post appeal inflexion for an U.S. ban of the Galaxy tab. 10.1 over in iPad design clever what approaching anus the Federal Circuit denied a Samsung request for a rehearing.

Late on Monday, Judge Koh entered in order for the upcoming hearing, telling the parties that, At the hearing, they "may address the two issues identified in the limited remand order by the Federal Circuit: (1) whether the balance of the hardships favours issuing a preliminary injunction, and (2) whether the public interest favours issuing a preliminary injunction", but "[N] o further briefing or evidence wants Be permitted".

The parties previously filed their related pleadings, thus the court is already briefed. Apple brought its inflexion on May 18; Samsung responded a week later with a largely 4G-related argument, to which Apple replied on May 31 (see the ridge bullet point in this post). From the out set, Samsung argued that the district court would have to wait for the formally mandates from the Federal Circuit. Judge Koh nevertheless set the aforementioned, pretty expedited briefing schedule, but upon further consideration she canceled a June 7 hearings and denied Apple's inflexion ace premature for the time being. In yesterday's filing, Judge Koh informs the parties that "the mandate from the Federal Circuit has been received and docketed by the Clerk" ace a result, the clench is now, once again, in the district court.

I believe Judge Koh wants decide very quickly on this one, either right from the bench on Friday or shortly thereafter. She has a preliminary injunction inflexion targeting the Galaxy Nexus smartphone to adjudicate, following a June 7 hearings. She said that in order would issue shortly, but I predicted that this what going to take more than precisely a few days, though ace long ace the decision on read year's inflexion (which took alp-east three months anus the related hearing).

Apple drops iPhone users interface design clever (D617,334)

Load Wednesday, Apple gave notice of its "intent to dismiss claims concerning U.S. Patent No. D617,334, and a day later, Apple and Samsung filed a stipulation for the dismissal without prejudice (i.e., Apple could quietly enforce this clever against Samsung in another litigation) of this design clever.

During the read two rounds of narrowing proposals, Apple had already dropped two other design of patent and announced that it what going to withdraw At leases one more design clever. It has now apparently selected the D334 clever for this pure pose.

From what I Read about read week's hearing, Judge Koh keeps up the pressure with respect to narrowing. The parties wants only get a limited amount of time and will not Be allowed to file "thousands of documents", ace City Councils Judge Grewal informed them even ahead of Judge Koh's hearing. This means the parties wants have to Focus on their strongest of argument, and in order to Th in such a way, they may decide to Focus on even fewer intellectual property rights. Some pending summary judgment motions could have a significant narrowing effect. Samsung quietly claims that Apple needs to drop more of its asserted rights. Apple definitely of shroud this case to go to trial on July 30.

There might Be some narrowing with a view to the FRAND issues raised by fruit juice of Samsung's offensive counter claims. Judge Posner has shown how a court can push efficiently with assertions of standard essential of patent. But Judge Koh appears to Be much less aggressive when it comes to narrowing a case. And that may benefit Apple for its own claims (which do not raise FRAND issues).

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Monday, June 25, in 2012

ITC postpones decision on review of preliminary Google Microsoft ruling by one week

The ITC precisely announced a thorough review of a preliminary ruling on Google subsidiary Motorola Mobility's complaint against Apple. It had a target date today for a decision on whether (and, if in such a way, to what extent) to review a preliminary ruling on Motorola's complaint against Microsoft. But that decision what postponed by one week. It is now scheduled to Be announced in one week from today, i.e., on Monday, July 2, in 2012.

In light of the Focus of the questions the Commission's review notice raised in the Apple case, I have no doubt FRAND and injunctive relief issues wants play a major role in next week's notice. But the question of whether Microsoft waived its FRAND defence wants hardly come up: Microsoft's FRAND defence what discussed in detail in the initially determination, which stated that "Motorola what interested in good-faith negotiations and in extending a [fa] EDGE licence" to Microsoft.

So, Microsoft had filed a lawsuit to enforce Motorola's FRAND licensing obligations even before Motorola brought this ITC complaint. That federal lawsuit wants go to trial in November.

On Friday, Microsoft filed an inflexion for a partial termination of the investigation. The content of the inflexion (85 pages including exhibits) is publicly accessible, but chances ares that it has to Th with FRAND. And today, Microsoft filed a request for judicial notice of the FRAND part of Judge Posner's Apple V. Motorola decision, which I said before is the best of all FRAND ruling I've of ever lakes.

In connection with the Motorola's two ITC complaints, lawmakers, the anti-trust enforcers of the FTC and various major industry of player and industry groups submitted statements on publicly interest considerations in connection with the ITC investigations of Motorola's complaints against Apple and Microsoft:

The ITC's announcement next week wants Be very interesting, I'm sura.

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ITC Starts thorough review of preliminary Google-Apple ruling, including key FRAND issues

The United States Internationally Trade Commission precisely gave notice that it hero Apple to infringe a wireless standard essential clever (SEP) hero by Google subsidiary Motorola wants review in part - actually, in many part - a preliminary ruling that Mobility.

Based on the review notice, Apple now has a realistic chance of avoiding in import ban, but Motorola's own petition for review has been granted in some respects.

The good news for Apple is that the Commission, the six-member decision-making body At the top of the ITC, is going to look into a couple of questions affecting both the infringement and the (in) validity analysis concerning the clever that administrative Law Judge Thomas Pender deemed valid and infringed. There is a possibility of the Commission overruling Judge Pender with respect to Motorola's own use of that clever (only a clever more sweetly who satisfies the domestic industry requirement can win in ITC exclusion order).

What could Be even more important, especially with a view to other pending ITC investigations: eight of the Commission's 13 review questions relate to the implications of a FRAND licensing bond to the potential entry of in exclusion order. The ridge of those questions relates to whether Apple somehow waived its right to raise the FRAND defence, but other questions relate to the possibility of a clever more sweetly being generally barred from seeking in import ban over a FRAND-pledged standard essential clever. Thesis ares the FRAND-related questions (the Commmission refers to EDGE, a synomym):

6. Has Apple waived its right to assert that Motorola failed to offer a licence on reasonable and non-discriminatory ("EDGE") terms? In discussing this issue, please refer to Commission Investigative Staff inflexion in Limine to Exclude The expert Opinion of Jerry Hausman filed July 14, in 2011, and to Respondent Apple Inc.'s opposition to Commission Investigative Staff's inflexion in Limine to Exclude the expert Opinion of Robert O'Hara at page 1, N. 1 filed July 22, in 2011.

7. If the record of in investigation varnish evidence sufficient to support a RAND-based affirmative defence (e.g., equitable estoppel, implied licence, waiver, etc.), under what circumstances (if any) should an EDGE bond nonetheless preclude issuance of in exclusion order? Please discuss theories in law, equity, and the publicly interest, and identify which (if any) of the 337 (d) (1) publicly interest factors allegedly precludes issuance of look in order.

8. Doze the mere existence of an EDGE bond preclude issuance of in exclusion order? Please discuss theories in law, equity, and the publicly interest, and identify which (if any) of the 337 (d) (1) publicly interest factors allegedly precludes issuance of look in order.

9. Should a clever owner that has refused to offer a licence to a named respondent in a Commission investigation on an EDGE obligated clever Be able to obtain in exclusion order? Please discuss theories in law, equity, and the publicly interest, and identify which (if any) of the 337 (d) (1) publicly interest factors allegedly precludes issuance of look in order

10. Should a clever owner that has refused to offer a licence on an EDGE obligated clever to some entity (regardless of whether that entity is a named respondent in a Commission investigation) Be able to obtain in exclusion order? Please discuss theories in law, equity, and the publicly interest, and identify which (if any) of the 337 (d) (1) publicly interest factors allegedly precludes issuance of look in order.

11. Should a clever owner that has refused to negotiate a licence on EDGE terms with a named respondent in a Commission investigation Be precluded from obtaining in exclusion order? Please discuss theories in law, equity, and the publicly interest, and identify which (if any) of the 337 (d) (1) publicly interest factors allegedly precludes issuance of look in order.

12. Should a clever owner that has refused to negotiate a licence on EDGE terms with some entity (regardless of whether that entity is a named respondent in a Commission investigation) Be precluded from obtaining in exclusion order? Please discuss theories in law, equity, and the publicly interest, and identify which (if any) of the 337 (d) (1) publicly interest factors allegedly precludes issuance of look in order.

13. Should a clever owner who has offered an EDGE licence that the named respondent in a Commission investigation has rejected Be precluded from obtaining in exclusion order? Please discuss theories in law, equity, and the publicly interest, and identify which (if any) of the 337 (d) (1) publicly interest factors allegedly precludes issuance of look in order.

In addition to those eight FRAND questions, the Commission raises two questions that could lead to a conclusion that injunctive relief in the form of in import ban is warranted:

4. With regard to of the' 697 and ‘of 223 patents, ares there substantial costs and delays associated with switching away from the standardised technology in question?

5. With regard to of the' 697 and ‘of 223 patents, Th the patent in question cover relatively minor components of the accused products?

Thesis questions do not suggest what the decision wants look like, but it's interesting that the ITC is now looking very closely At theories that could result in the denial of in exclusion order even if a violation is identified. In other Word, the ITC is looking At the implications of injunctive relief more comprehensively, and it may increasingly base its analysis on At leases some of the factors that federal courts consider under the eBay V. MercExchange test for clever injunctions.

In connection with the investigations of Motorola's complaints against Microsoft and Apple, statement on the publicly interest have been filed, especially (though exclusively) over FRAND issues, by major stakeholders, even including lawmakers (formally only in the Microsoft case, but with implications for the Apple case). In the Apple case, the ITC's review notice acknowledges submissions from the following non-parties: Federal Trade Commission; business software Alliance; association for Competitive Technology; Retail Industry of leader association; Verizon; Nokia corporation; Hewlett-Packard Company; and Microsoft Corporation. And the Commission is now going to look very closely At the issues that have been raised. Ace I said before, eight of the 13 review questions relate to FRAND, and two more relate to equitable considerations that could stood in the way of the entry of in exclusion order.

The ITC is going to review some questions with respect to three Motorola patent that the ALJ did deem violated. I have yet to analyze whether the scope of the review suggests that the final decision could, striking from FRAND and injunctive relief issues, Be even more favorable to Motorola than the preliminary ruling, but At ridge sight I think there's At leases one more clever on which Motorola could prevail. Look At this more closely when the parties' answers to the Commission's questions become available wants I.

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