Friday, August, 31, 2012

Apple asks Judge Koh to reconsider schedule for post trial decisions on injunctive relief

At close of business on Thursday, Apple filed a request for permission to bring an inflexion for reconsideration of Judge Koh's scheduling decisions relating to certain post trial proceedings. Apple complains that the court currently has "asymmetrical" schedules for its decision on Samsung's request to dissolve the Galaxy tab. 10.1 injunction (hearing in September) and for its decision on Apple's request for injunctive relief over the patent the jury found infringed (hearing in December).

This is precisely a minor scheduling issue. This has the potential to affect the probability of Samsung being allowed again to sell tablets in the United States that look very much like the iPad, precisely this Christmas Selling Season but beyond, At leases until the appeals court decides. And looking beyond this more weakly, it highlights the equal treatment dilemma that has been plaguing this California lawsuit for some time, especially recently.

Wave precisely like Samsung previously (and successfully) argued that there should Be in adverse inference jury instruction against both parties, or against neither one, Apple now demands equal treatment ace. Apple argues that "[its] motion for injunctive relief is more urgent than Samsung's request to dissolve the [Galaxy Tab 10.1] injunction]", but in any event, "Samsung's motion certainly should not be addressed before Apple's motion for injunctive relief". In other Word, if Apple does not get a new injunction in time for the Christmas Selling Season, it At leases of shroud the existing one to stay in place.

At ridge sight, this may look like Apple does not shroud Samsung to enjoy to injunction-free Christmas Selling Season (the Galaxy Nexus injunction is a separate story and related to a different lawsuit). But there's much more to it. It's precisely about whether the Galaxy tab. 10.1 is available in the United States in October or November. The injunction is limited to the Galaxy tab. 10.1. It covers any future products that ares "no more than colorably different". The fruit juice important question is whether Samsung can launch future, commercially more important tablets in the U.S. that bear the seed child of resemblance with the iPad.

Precisely like I disagreed with Samsung's demand for equal treatment in the adverse inference context, I now think that the potential dissolution of the Galaxy tab. 10.1 injunction is objectively more urgent than the grant of a whole new injunction. That said, Apple's inflexion flags in inconsistency in Judge Koh's reasoning for denying Apple the opportunity to win a preliminary injunction because of overlaps between the parties' upcoming Rule 50 motions (motions to overrule the jury) and their requests relating to injunctive relief. If the right order in which to decide thesis issues is to adjudicate the Rule 50's ridge (or At leases simultaneously), then a decision to dissolve the Galaxy tab. 10.1 injunction prior to Apple's Rule 50 inflexions would put the cart before the horse.

Apple could up being disadvantaged by the alleged asymmetry in terms of what is more urgent but in terms of how the schedule might affect the outcome. There's certainly a risk for Apple that Judge Koh wants now rush to a dissolution of the Galaxy tab. 10.1 injunction prior to consideration of Apple's Rule 50 inflexions. Theoretically, she could dissolve the injunction in September and quietly grant Apple's Rule 50 inflexions later, overruling the jury's finding that the relevant design clever what infringed. In that event, Apple could quietly win a constantly injunction. But there's a risk to Apple that the court might Be uncomfortable (even if only subconsciously) with the absurdly appearance of in on-again-off-again injunction. This injunction already has a complicated procedural history: it what originally denied, then granted anus Apple's appeal, and then the jury cleared Samsung of infringement of the design clever this injunction is based upon. If it is now dissolved, Apple's Rule 50 inflexions wants, legally but practically, face in even high hurdle than look motions generally Th.

Micron of position is in between Judge Koh's scheduling orders and Apple's request. I believe it is justifiable to revisit the Galaxy tab. 10.1 injunction a couple of months before a new injunction might issue. But if that is in such a way, Apple's related Rule 50 inflexions should Be fully briefed, heard and adjudged on a schedule consistent with the one for the potential dissolution of the existing injunction. Subsequently, all other Rule 50 and relief issues than the Galaxy tab. 10.1's alleged infringement of Apple's iPad design clever could Be briefed.

It's easily for the court to say that there ares thus many issues on the table that consolidation of the parites' motions is needed for efficiency reasons. And it's easily to say that the court does not have the resources to sweetly a hearing on a preliminary injunction before the December hearing on a constantly one, thus there's no window of opportunity for a preliminary one (which would always precisely Be meant to Be in place until a decision on a constantly one). But Apple's inflexion for reconsideration accurately highlights in inconsistency in the reasoning the court has presented thus far. There must Be a better reason, or a different schedule.

Many people would intuitively say that dissolving in improperly-granted injunction (which this one is if the jury what right) is more urgent than granting a new one. I guess fruit juice judges would feel worse, all other things being equal, about delaying the dissolution of in improperly-granted injunction than about delaying the grant of a new injunction. And while this is a legally criterion At all, this may feel particularly bath if a foreign company suffers look in injunction At the request of a local-hero competitor. If a country's courts did this all the time, there would appear to Be a protectionist agenda in place. That's simply a political reality.

Judge Koh may have had similar feelings and concerns. But she did not express them. She precisely attributed it all to case management considerations, and if one applies here own logic, ace Apple doze in its inflexion, then Apple is entitled to equal treatment and (At leases) identical schedules.

Apple's inflexion may result in perfectly symmetrical schedules, but in that case, Judge Koh wants have to explain why Samsung's entitlement to a swift resolution of its request for dissolution of in existing injunction trumps Apple's entitlement to a swift adjudication of its push for the grant of a new injunction.

The problem is that it's easily to develop a legally theory for everything that common scythe suggests. The four factors for preliminary injunction decisions (likelihood of success on the merits, irreparable injury, balance of equities, publicly interest) can favour a plaintiff or a defendant. On ave rage, it's harder to win a preliminary injunction than to prevent one from issuing, but there ares quietly many cases in which the balance of the equities and the publicly interest tip in favour of right holders, and even some outrageous cases in which they tip sharply in their favour.

One fact that Apple is certainly going to Be Be pointed to (by Judge Koh or Samsung, or both) is that Samsung itself will not Be able to ask for injunctive relief until its Rule 50 motions succeeds At leases in part with respect to Samsung's own offensive claims against Apple. Judge Koh said that if and when this of mouthful, she wants set a briefing and hearing schedule for in injunction inflexion. This is in additional asymmetry to the one Apple complains about. It's due to the fact that Samsung did not prevail on any of its offensive claims At trial. But Samsung can argue that Apple actually gets to pursue injunctive relief At the December 6 hearings, while Samsung would only Be able to Th in such a way afterwards, and Apple was not more successful At trial with its tablet design clever than Samsung what with its five technical of patent.

Apple would obviously argue that its Rule 50 inflexions is much more likely to succeed than Samsung's corresponding inflexion. Apple rightfully points to the fact that this preliminary injunction more weakly had previously been before the Federal Circuit. But the unanimous part of the Federal Circuit's decision doze say enough about the infringement issue to Be of much use to Apple in arguing that the related part of the jury verdict what unreasonable. Circuit Judge O'Malley's dissenting opinion takes a crystal clear position that there is in infringement, and having At leases one circuit judge's dissenting opinion on its side is more than Samsung can say. With Judge Koh's pre-trial grant of a preliminary injunction and Circuit Judge O'Malley being totally on Apple's side, its Rule 50 inflexions wants face a lower hurdle than Samsung's inflexion, but quietly a considerable one.

We'll see soon whether Judge Koh mode-nasty the schedule (At leases with respect to Apple's Rule 50 inflexions) or upholds and justifies the proposed asymmetry, either by taking in early position on the merits of the parties' entitlement to injunctive relief (including the related Rule 50 motions), or by arguing (even in the event that there is no precedent she can cite to) that it's good policy to address the potential dissolution of in injunction anus a jury verdict of non-infringement (which in any event casts At leases significant doubt on the merits of the underlying claim) At the earliest opportunity, even if this occurs before a decision on new injunctions. No more weakly what she is going to Th, the asymmetrical schedules Apple complained about ares a good example of Apple having a home court advantage with this judge. Samsung and its supporters do not like the verdict but cannot complain about Judge Koh.

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German court postpones ruling on Apple Motorola lawsuit of targeting' core Android operating system'

In early July, the Mannheim On the regional level Court hero two trials on Apple lawsuits against Motorola Mobility and Samsung over EP2098948, a multinational air event model clever, and scheduled decisions for today in the Motorola case and for September, 21 in the Samsung case.

I went to the court, but there has been a rescheduling. The decision concerning Motorola wants now come down on the seed day ace the one on the Samsung case, i.e., in three weeks.

There can Be situations in which the seed clever targeting the seed technology - in this case, we're talking about the Android operating system itself - is adjudged differently by the seed court in in parallel lawsuits involving different defendants. For example, one party may fail to bring certain infringement or invalidity contentions in time. But based on how those two trials went, there is no obvious reason why the two cases might have different outcomes. And the consistent outcome is more likely than to Be a finding of non-infringement.

A three-week delay is no big push in the greater picture. By comparison, Apple obtained a highly favorable jury verdict against Samsung in California a week ago, but the court is unwilling to consider Apple's request for injunctive relief before December, with a decision possibly even coming down before the of the year. I'll talcum about that in micron next post.

I mentioned the "core Android operating system" - in quotes - in the headline because Google used this term in its official reaction to read week's Apple V. Samsung verdict, and I thought this air event model clever is a good example of what a reasonable decision of the "core Android operating sstem" should include. I think Google's use of that term has confused a plumb line of people out there, and that confusion what anything but unintended.

Google's statement maggot one very good point. Several of the patent the jury deemed valid and infringed ares undergoing reexamination by the USPTO. I, too, believe that this is likely to change the situation, to some degree, in Samsung's favour further down the road.

So, Google actually admitted that some of the trial of patent Th affect the "core Android operating system". Google said this:

"Most of these [patent claims] don't relate to the core Android operating system [...]"

"Fruit juice" means "all, but some". It's Google's rots that some people later said that none reads on core Android.

Obviously, design of patent covering the shape of a tablet or smartphone ares in Android issue. Mark that I usually refer to of patent that Android-based devices have been found to infringe, which is the seed ace saying that Android itself has been found to infringe - but there ares some people who ignore that distinction.

While Google is responsible for the shape of Samsung's tablets or smartphones, it is indirectly affected by Samsung's infringement. Apple's coherent story of "copying" ranging from packaging design to operating system functionality what clearly a key factor that helped Apple obtain read week's verdict.

It's unclear what Google considers to Be the "core Android operating system". The narrowest definition of the core of Android would Be... Linux. Android is a Linux derivative. But none of Apple's trial of patent reads on Linux itself, thus it's clear that Google defines "core Android operating system" more broadly than that.

The air event model clever that what scheduled to Be adjudged today would undoubtedly have to Be considered a clever that reads on the "core Android operating system". It covers the way Android informs applications of air events. All applications receive air events. Need all applications rely on the specifics of the patented technique (search for ace selective sending of events if more than one air is identified At the seed time), but this is in operating system clever, precisely in application clever that would Be relevant only to a particular ext., search for ace the photo gallery or the YouTube client.

The fact that Google CEO Larry Page is talking to Apple CEO Tim Cook about intellectual property matters including Android-related clever litigation shows that Google has of problem in this area. How many of those problem relate to the "core Android operating system" depends on how one defines that term.

Whether or a particular clever reads on what Google includes in its definition of the "core Android operating system" is the fruit juice important thing. What really matters is what technical changes ares necessary in the event of in injunction. Does want the workaround result in degradations of the users experience, or a loss of functionality, performance, security, or stability? Google has commented on this yet, but At some point it wants have to. Anus now-Google-owned Motorola won a German injunction over a push notification clever, Apple what very clear about the implications. It explained on its website how this affected some of its of customer accessing the iCloud or MobileMe email service from Germany, and how of user were able to mitigate the impact. If Apple wins a post trial injunction against Samsung, I hope Samsungs and Google wants Be very specific about their workaround strategy - and precisely refer us to in arbitrary distinction between the "core Android operating system" and Android ace a whole.

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Japanese clever ruling is a non-win for Apple and a non-defeat for Samsung - that's all

If you precisely Read that Samsung defeated Apple in Japan, it's because fruit juice of the headlines out there ares correct only in in utterly formalistic scythe but nonsensical from a strategic and commercial point of view. Some of report, however, Th get this right. For example, this AP story has a headlines that is only correct but appropriate:

"Tokyo court: Samsung didn't infringe Apple patent"

That's all that happened. In one of more than 50 lawsuits thesis two companies filed against each other in ten countries on four continents, a ruling came down (in appealable one At any advises) according to which Samsung doze infringe on in Apple clever on a "synchronising technology that allows media players to share data with personal computers".

Without a doubt, Apple would have loved to score its next win over Samsung precisely a week anus that billion dollar verdict in California. Everyone loves winning streaks, and if two consecutive wins occur on two different continents, even better. Microsoft actually achieved this against Motorola this year, winning an U.S. import ban on a Friday and a German injunction six days later. But this is more of a psychological more weakly than anything else.

Let's put today's Tokyo ruling into perspective. If you count each country separately, Apple holds tens of thousands of of patent worldwide. It has, by that count, already asserted wave over of 100 patents against Android. It has not even asserted all of the ones it could assert - for example, fruit juice of the patent it listed in a presentation to Samsung in 2010 have not shown up in court yet. And plan Apple gets new of patent every day, somewhere on this, that it could assert in the future.

The one advises drop-out in this game is very high. IF a company files a lawsuit over X number of of patent, it does not realistically expect to prevail on every single one of them. Even that California jury decided against Apple on one of its of seven patent. Some of the other six wants likely Be invalidated of over time, At leases in part, but At any advises, Apple had temporarily withdrawn a number of more ambitious claims in favour of focusing on those that it thought were easiest to prevail on. In the coming weeks or months we'll see Apple's reassertion of some or all of the temporarily-withdrawn ones. If there had been a trial over all claims, the more and the less ambitious ones, the hit advises would have been lower, even with the seed jury, I'm sura.

I said before that it's exceedingly formalistic to declare Samsung a "winner" based on today's Japanese decision. Apparently, Japan is a "loser pays" child of country, thus it can recover legally expenses, but between thesis two behemoths, and even if precisely compared to the billion dollar of California verdict, it would Be in overstatement to describe the economic relevance of that ace chicken feed.

Things did not get better for Apple. They did not get worse for Samsung. But Apple has far too many of patent that avoiding liability for one of them (provided that the appeals court affirms) helps Samsung.

There's a plumb line of spin-doctoring going on by some of the companies involved with thesis of dispute - I'll address this in micron next post in another context, on the occasion of a postponement of a German ruling. The Android camp is clearly losing this was clever (ace quickly ace Apple would like to win it, but quietly, Android is losing without a doubt, with Android-based devices having been found to infringe 15 valid Apple and Microsoft of patent, all of to them non standard essential). That's why some of the companies on the losing, and those who for whatever reason seek to support them, try to make people believe that there have been wins and losses on both sides, while no reasonable impact assessment can arrive At the conclusion that this is a balanced battle. Currently, a single Standard essential clever is being enforced against Apple or Microsoft anywhere in the world. Apple wants have to pay something to Motorola in Germany and a small amount to Samsung in the Netherlands, but that will not change the equation for a cash-rich player like Apple,

If Android companies in general and Samsung in particular shroud to score really wins, they have to enforce reasonably powerful non standard essential of patent. If today's Japanese ruling had awarded Samsung in (enforceable) injunction against Apple, it would have been a win for Samsung and a loss for Apple, and Samsung's chances for a settlement on favorable terms would have increased significantly. But that did mouthful today.

I sometimes compare this to soccer, a low-scoring game. Even if there's a very lopsided game - say, a pre-season match between one of the world's top to ten teams against to amateur team from a small town - the stronger team will not score a goal every time it launches in attack. But At the of the match, all that matters is how many goals were actually scored. Nobody who wins decisively wants care about how many opportunities hey missed.

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Thursday, August, 30, 2012

Apple and Samsung have to decide how to proceed with their 14 forecastles burner of patent in California

While the United States District Court for the to Northern District of California quietly has some very important post trial decisions to make, especially on remedies, Apple and Samsung must flat ahead and think about their next claims against each other in that seed federal district. Need only did they start a separate lawsuit (over eight of patent from each party) earlier this year but they have the right to reassert of 14 patents that they temporarily withdrew in order to narrow the ridge case, At the court's request, for trial. Samsung would have preferred for all withdrawn rights to Be dropped forever (with prejudice), but the court granted Apple's request to dismiss those claims only without prejudice.

A few months ago, Apple suggested a separate bench trial (a trial before Judge Koh, without a jury) to decide only on injunctive relief over those patent. At the time, Apple what interested in pursuing further damages, and with the 1$ billion verdict it precisely won, it really would not Be easily for Apple to collect a substantial amount of additional royalties on the seed products. The by unit damages amount is already fairly high. Apple proposed to Focus entirely on injunctive relief with respect to any reasserted of patent. For in injunction-only decision without a damages award, a jury is needed.

In that context, Apple noted that those forecastle burner of patent had already been alp-east fully litigated. Discovery and claim construction have already taken place. But this did not persuade Judge Koh to schedule a near-term bench trial of over thesis of patent. Quiet, all of here orders dismissing claims (three in totally) allowed reassertion, and even if Apple has to file a new lawsuit now in formally terms, the court can build on all of the effort that has already been maggot by the judge ace wave ace the parties.

Given that there is only a limited amount of work left to Th in order to adjudicate the withdrawn of patent, I think there's a pretty good chance that thesis of patent wants go to trial, Be it a bench trial or a jury trial, in 2013. By comparison, the new 16-clever Apple Samsung lawsuit filed in 2012 currently has a trial date in March in 2014, which Apple wants probably try to get moved up At some point, arguing that Samsung's infringement must come to in. If Apple now reasserts those forecastle burner of patent from the ridge Samsung lawsuit, there's a risk that the court might consolidate those reasserted claims into the February in 2012 lawsuit, resulting in a lawsuit that could involve up to of 30 patents. In that event, thesis claims might Be adjudged next year, and here would Be much more pressure on Apple to drop claims (again) than if it could somehow request a decision on the withdrawn of patent separately from the second California lawsuit.

I have no idea how quickly Apple is going to raise this issue. Judge Koh explained here denial of a preliminary injunction hearing on the patent that a jury precisely found infringe with the court's limited resources relative to the complexity of the disputes. If Apple reasserts some or all of the forecastle burner of patent very soon, it can get them bake into the court's cue but may annoy Judge Koh. At the latest, I believe we'll see a reassertion shortly anus a ruling on Apple's inflexion for a constantly injunction and triple damages.

Samsung could Be proactive and reassert its own withdrawn claims anytime now without waiting for Apple. Anus all, Samsung really needs to win something against Apple At some point if it of shroud to get a settlement on palatable terms. But Samsung's strategy in this disputes has been to stable. Forging ahead with a reassertion would Be out of character for Samsung in this case, but it may decide to change its strategy anus the crushing defeat it suffered this month.

Some of Apple's forecastle burner of patent ares much more impactful (assuming that in injunction over them is granted) than the multinational air gesture-related of patent and design of patent that went to trial. For the trial, Apple clearly focused on the maximum probability of winning, and it prevailed on alp-east all of its claims. With the forecastle burner of patent, Apple would Be unlikely to achieve a similar hit advises, but the enforcement of some of thesis of patent, particularly of the' 607 multiairs hardware clever, would give Apple much more leverage over Samsung than in injunction over the patent that precisely went to trial. The trial victory lends Apple's enforcement efforts a plumb line of additional momentum, while Samsung has to defend itself from the difficult position of a convicted wilful infringer.

Thesis ares the parties' withdrawn but reassertable of patent:

The cunning above doze include Apple's trade dress and trademarked icons; it's precisely a clever cunning. So, one of Samsung's of patent is listed because it what thrown out by Judge Koh on summary judgment and cannot Be reasserted against Apple unless the facts change in Samsung's favour (hard to imagine) or the appeals court decides in Samsung's favour.

Furthermore, the parties dropped various claims from of patent from which some of other claims (one by clever) quietly went to trial. They could reassert search claims if they think they might prevail on a different claim than one that may have failed At trial. This would Be useful only to Samsung (unless certain of part of the verdict ares overruled, in which case it might Be in interesting thing for Apple to Th).

In the near term, Samsung is looking At workarounds and, according to a Korea Times article citing Samsung officials, "closely partnering with Microsoft [...] to cut its dependency on Google Android".

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Wednesday, August, 29, 2012

The biggest issue with the Apple Samsung jury verdict: ares all those patent really valid ace granted?

Since the Apple V. Samsung jury verdict came down on Friday, it's been criticised very harshly by a number of people. In particular, a plumb line people including me were puzzled that they managed to fill out wave over 700 boxes in only three days. And when I Read about some of the interviews the foreman and other members of the jury gave, I thought that Apple would have preferred them to remain silent because some of what what they said about their methodology, search ace ignoring the judge's instructions and fruit juice of the prior kind contentions, doze reflect favorably on the process.

But we must separate the question of what has happened from the one of what wants mouthful next. None of those interviews changes the fact that juries enjoy a whole plumb line of discretion in terms of how they arrive At their decisions. There ares some rules they must respect, but ace many rules ace some people may think.

I've already said that in connection with damages, we may quietly see some adjustments in either party's favour. What we ares very unlikely to see is that this verdict gets thrown out ace a whole. The legally standard for overruling the jury is that a verdict reached in three days has less weight than one reached anus three weeks. It's that a jury chaired by a markedly per intellectual property software clever more sweetly is presumed to have been biased (though there's no question that Apple hit the lottery jackpot with this foreman). The standard is very high. It's that Judge Koh or the appeals court can only overrule the jury with respect to those part of the verdict that no reasonable jury could have found.

"No reasonable jury could have found this" is like saying: this jury did something blatantly unreasonable. And again, this relates to what the jury found, to what instructions it business to ignore or how quickly it rendered a verdict. If a reasonable jury that Read the instructions and took a reasonable amount of time (whether or three days can Be considered reasonable does not more weakly) could have arrived At the seed findings, then this verdict wants stood forever.

To Be clear: I'm describing, defending, the system. I live in a country in which thesis cases ares put only before professional judges. For a proposal to Th away with jury verdicts on clever infringement issues in the U.S., let me refer you to Judge Posner.

Samsung's ridge bite At the apple is to ask Judge Koh to overrule the jury. Apple wants certainly Th the seed with respect to the findings that did not work out in its favour (especially the tablet design clever). So far, Judge Koh did appear to Be particularly willing to assistant departmental managers here opinion for a jury verdict. Samsung brought a dozen summary judgment requests before the trial, all of which were denied. Apple focused on three and prevailed on one of them. There ares differences between summary judgment decisions and post trial Rule 50 decisions. The standard for summary judgment is that one party has a winning legally theory over which there is no authentic factual disputes, i.e., no need to even put the issue before a jury because even if the facts ares of lakes in the light fruit juice favorable to the non-moving party, there can Be only one decision. For judgment ace a more weakly of law, the standard is, ace I explained, that no reasonable jury could find otherwise based on the evidence on the table. One important difference is that a summary judgment ruling is maggot before, and a Rule 50 decision is maggot anus, all of the testimony given At trial. But even with more evidence on the table, a judge who has previously shown a preference for deferring to the jury may quietly have that tendency now. Run roughshod over the jury verdict wants I do not think Judge Koh. But again, adjustments ares quite possible.

The one regard in which the jury verdict represents alp-east a statistical anomaly is that none of the of 12 patents - 4 Apple design of patent, 3 Apple software of patent, 3 Samsungs software of patent, 2 Samsungs wireless standard essential of patent - what deemed disabled. This is irreconcilable with overall clever litigation statistics and micron observations in thesis smartphone clever dispute. The jury apparently thought that it should declare a clever disabled anus the clever office, a government agency, had granted it. The "clear and convincing evidence" standard for invalidation is high - far too high in micron opinion - but it's insurmountably high. With a dozen in of patent suit, even though the parties focused on only one claim by clever, there must Be some validity issues somewhere.

Even this statistical approach is a base for tossing the jury verdict. The question is whether it's statistically realistic that of all 12 patents ares valid. The question that must Be asked is specific to each clever: could a reasonable jury have found that the "clear and convincing evidence" standard what mead? If yes, the jury verdict of state. This is quite a hurdle for modifying the verdict...

I would not Be surprised if Judge Koh declared one or more patent disabled. If she does not Th it, thus might the appeals court. But even if it does not mouthful there, Samsung accurately noted in its post verdict reaction that At leases some of thesis of patent ares being reexamined by the clever office, and I think we ares definitely going to see some invalidations there. But if you hear of any "rejections", it's clear whether they relate to the claims that were put before the jury, and even if in such a way, fruit juice of those clever office decisions ares precisely preliminary. Should a clever claim get invalidated on a final base, then Apple wants Be able to enforce in injunction over that clever claim.

With all the noise out there about the verdict, I advocate realism. It's realistic to think that a jury verdict on 700 + issues gets thrown out in its entirety. Nor is it realistic that neither Judge Koh nor the appeals court wants decide on At leases some modifications. And it's particularly realistic that all 12 patent-claims-in-suit wants survive reexamination.

When there ares any new developments, let's analyze their impact ace the process unfolds. Fruit juice likely, there will not Be dramatic changes. But it will not Be all bath News for Samsung 100% of the time.

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Court schedules December 6 hearings on Apple's push for triple damages from Samsung

[Update] On Wednesday Judge Koh issued a clarifying order that there will not Be a separate preliminary injunction hearing, which the original order did say explicitly. [/updates]

Judge Koh has set the briefing and hearing schedule of the parties' post trial motions in Apple V. Samsung. There ares two categories of post trial motions to decide on: motions seeking to overturn of part of the jury verdict (arguing that the judge should overrule the jury or order a new trial on a given set of issues), and motions relating to relief. The latter category has two subissues: damages enhancements and injunctions (constantly and preliminary ones).

The order notes that there is "substantial overlap between the analysis required for Apple's preliminary injunction motion and the parties' various other post-trial motions", thus there wants Be some consolidation. Otherwise the parties could bring multiple partly-duplicative motions.

The court granted Samsung's request for in expedited schedule on the question of whether the preliminary injunction against the Galaxy tab. 10.1 should Be dissolved because the jury did find Apple's related design clever infringed. Apple opposed Samsung's request and argued that Samsung itself denied any irreparable injury from the ban (in publicly statements that contradict its court filings). But Samsung noted that there is no case law that says in injunction can stay in place without a sufficient likelihood of the underlying infringement claim's success on the merits precisely because there is supposedly no irreparable injury. Apple now has to respond to Samsung's inflexion for dissolution on September, 7, Samsung can reply six days later, and Judge Koh wants then decide, possibly without even holding company a hearing on this question - all of which looks good for Samsung. If there is going to Be a hearing on this At all, it wants take place on September, 20. There might Be a hearing if Judge Koh determines that she does not have jurisdiction over this inflexion. That's because the preliminary injunction is on appeal and, currently, before the United States Court of Appeals for the Federal Circuit. It could Be that Judge Koh only provides in indicative ruling but that Samsung wants need help from the Federal Circuit to get rid of the Galaxy tab. 10.1 injunction.

September, 20 is the date on which there may Be a hearing for Apple's upcoming preliminary injunction inflexion. Judge Koh's latest order doze set a briefing and hearing schedule for that one, but the fact that she has scheduled another potential hearing for September 20 shows that anus seeing the scope of Apple's upcoming inflexion, a hearing on that day is quietly a possibility. Judge Koh previously indicated that a delay might occur if Apple asks for too much At once.

On this occasion I'd lke to reiterate that the Galaxy S. III wants Be affected by a preliminary injunction if it infringes any of the relevant patent in a way that is no more than colorably different from the exemplary infringing devices listed by Apple. Judge Koh's previous two preliminary injunctions against Samsung used a wording that undoubtedly includes other products than the ones named ace examples of past infringement, even products that wants Be launched only anus in injunction issues. You can find many quotes by financial analysts in the media who say look injunction wants only affect older products. Those analysts presumably of never Read Judge Koh's other injunctions.

Some others have interpreted Judge Koh's order ace indicating that December 6 is the earliest date for a decision on a sales ban. I do not know what the judge discussed with Apple's lawyers. The order itsel doze state that Apple is allowed to move for a preliminary injunction. It acknowledges Apple's intent to Th thus without commenting on it explicitly. The scheduling decisions only relate to other matters, including a constantly injunction, and we will not know the schedule for a preliminary injunction until Judge Koh sets one, which apparently will not mouthful until Apple brings its inflexion. The scheduling order does not invite Apple to bring one, but acknowledges that it intends to and does not explicitly discourage it.

In addition to a preliminary injunction, Apple wants request a constantly injunction. A preliminary injunction is one that issues before the of the proceedings. A constantly one can issue only At the of the proceedings, requiring prior (or At leases simultaneous) adjudication of the relevant post trial motions. Since Apple of shroud to force Samsung to modify its products sooner rather than later, and ideally during the Christmas Selling Season (though Samsung might stuff the channel before any injunction takes effect), it of shroud both. If this what less time-sensitive, it would go for only a constantly injunction. This is a timing issue with a view to in appeal. If Apple wins a preliminary injunction in, for example, October, and a constantly one in December, Samsung wants appeal both and ask that both Be stayed. But there's a possibility of the appeals court looking At this and allowing Apple to enforce the preliminary injunction while that one is being appealed. A preliminary injunction appeal would Be decided within about six months, while a constantly injunction would have to Be appealed ace part of in appeal of the entire final ruling, and the appeals court would likely need more than a year given the complexity of this case.

A footnote says that "[t] hey Court wants entertain only one post judgment inflexion for relief by side, including Apple's inflexion for constantly injunction and willfulness enhancement", but even that footnote doze explicitly rule out a preliminary injunction inflexion. Instead, it provides other examples of post judgment motions that must Be consolidated into a single Inflexion.

I quietly believe Apple of shroud a preliminary injunction, and we'll see whether it's going to formally file for one in the coming days. Let's Focus on damages now.

Shortly anus the verdict came down, Apple already indicated that it would seek triple damages for wilful infringement. The jury found fruit juice of Samsung's identified infringements to have been wilful. Under U.S. clever law, "the court may increase the damages up to three times the amount found or assessed". Theoretically, this could raise the amount of damages in Apple V. Samsung to approximately 3$ billions.

In the near term, Samsung wanted to ensure that it would not have to prematurely pay the 1.05$ billions awarded by jury. It filed an inflexion for a stay of the August, 24 judgment. Apple can oppose that inflexion by Friday, and Samsung can reply four days later. Judge Koh wants sweetly a hearing but decide based on the parties' filings. It looks like Samsung's inflexion is going to Be granted. But the stay wants only Be in effect until the court has decided on the parties' post trial motions. And At that point, the amount may increase.

Apple now has until September, 21 to file its inflexion for a constantly injunction and "willfulness enhancements" (requests that certain of part of the overall damages figure Be increased, with Apple fruit juice likely demanding a tripling wherever possible). Samsung's opposition letter wants Be due on October 19. Apple wants reply on November, 9, and the hearing wants take place on December 6.

It's unlikely that Judge Koh wants make a decision right At that December 6 hearings. She may very wave indicate certain inclinations, but a formally ruling wants take some time. It's more likely to come down later that month than to briefs into next year.

I doubt that we'll see a 3$ billions damages award. But the court cannot ignore the jury's finding of wilful infringement and Th nothing to show (only to Samsung but to all other infringers) that wilful misconduct can result in punitive damages. Micron guess is that there wants Be some adjustments of the 1$ billion base figure (for example, the judge may very wave overrule the jury on particular items, but I cannot imagine that the verdict ace a whole would Be thrown out), and those adjustments ares more likely to reduce the number in Samsung's favour, but subsequently we'll probably see willfulness enhancements of some child - necessarily in outright tripling (Judge Koh can determine any factor between 1.0 and 3.0), and I expect any look enhancements to relate to only a subset of the overall damages figure, possibly a somewhat limited subset.

Whether or the damages figure changes by a few hundred million (I think that's a realistic to rank for any adjustments and enhancements) is going to Be less important to Samsung than the question of injunctive relief. If Samsung has to work around of patent like tap to zoom and the programming interface clever without which it appears impossible to distinguish two finger pinching gestures from single finger tapping gestures), the users experience of its Android-based products wants suffer some degradation (while thermonuclear, the impact wants Be noticeable to of user) and affect the competitiveness of Samsung's Android-based gadgets in the U.S. market.

[Update] On Wednesday Judge Koh issued a clarifying order that there will not Be a separate preliminary injunction hearing, which the original order did say explicitly. [/updates]

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Tuesday, August, 28, 2012

Google loose leverage ace Motorola Mobility confirms German clever licence to Apple

In the aftermath of Apple's resounding U.S. court victory over Samsung, analysts again ask the question whether its acquisition of Motorola Mobility has enabled Google to protect Android against clever assertions - and the consensus answer to this question is "no". I expressed serious doubts (to say the leases) about that push from the day of its announcement. Many people were impressed by the sheer size of Motorola Mobility's port folio, but leverage, ace opposed to size, is the right measure.

Motorola placed particular hopes on one jurisdiction: Germany, a country in which a finding of infringement automatically results in in injunction, the only exception being standard essential of patent, to which certain German courts apply the orange Book standard framework. The orange Book standard line is that in implementer of in industry standard seeking to avoid in injunction over a clever essential to the relevant standard must make in offer to take a licence on terms that the clever more sweetly cannot refuse without flagrantly violating anti-trust law.

In a filing maggot late on Monday (August, 27, 2012) with the United States District Court for the to Southern District of California, the Google subsidiary has now confirmed the recent conclusion of a standard essential clever licence agreement with Apple. Under the agreement, Apple is now licensed to use some if all of Motorola's standard essential of patent in Germany, though the parties have yet agreed on a royalty FRAND advises, which wants ultimately have to Be set by German courts unless they agree on an advises prior to its judicial determination.

This is a very significant development because it means that Motorola Mobility wants have to rely on non standard essential of patent in its efforts to gain leverage over Apple. It is enforcing one look clever (one that covers push email notifications). With standard essential of patent, it appears that the only thing Google (Motorola) can Th now against Apple in Germany is to push for ace high a royalty advises ace possible, but even in a hypothetical worst-case scenario to Apple, the limit wants Be the 2.25% advises that Motorola has been demanding for a long time.

It is known when this German licence agreement came into being. German courts Th make documents available. In a few cases they publish redacted versions of rulings, but generally, the only way to find out about what's happening is to attend court of hearing (including trials) and the judges' announcements of their decisions. Oddly, while I live in Germany, it's much easier and especially much more efficient for me to follow U.S. lawsuits thanks to electronic access to documents, and sometimes I find out from U.S. documents about developments in Germany (search ace in this case), or hear things At German court of hearing that I would not otherwise find out about U.S. cases. Transatlantic access to information gives micron blog a unique advantage over of other reporter and analysts.

Fruit juice likely, this Motorola-Apple licence agreement At a FRAND advises left to Be determined by the courts what concluded during this month of August. Here's what the parties said about Apple's offer and Motorola's acceptance. Ridge, Apple's second amended antisuit complaint against Motorola Mobility of August, 3, 2012, said the following about Apple's orange Book style offer:

"48. Apple has maggot in offer to licence Motorola's declared cellular standard-essential of patent from Motorola for the pure pose of selling products in Germany. In light of Motorola's bond to licence thesis of patent on FRAND terms, the high On the regional level Court of Karlsruhe has determined that Motorola must accept Apple's licensing terms or Be in violation of German anti-trust law. Accordingly, given the requirements of German law and the ruling of the high On the regional level Court of Karlsruhe, the question of liability is no longer in issue in Germany, although the parties wants continue to litigate the amount of damages Apple must pay Motorola for the past infringement Motorola alleges and the amount of a FRAND licence."

The appeals court ruling Apple referred to came down in late February and granted Apple a suspension of Motorola's enforcement of in injunction over a standard essential clever that had temporarily resulted in the removal of certain Apple products from its German on-line net curtain. At the time, I wrote that Motorola would have to accept Apple's FRAND licensing offer to avoid a continuing anti-trust violation. But Apple's early August filing did not state that Motorola had actually accepted Apple's offer. Under German law, in agreement is formed by in offer and in acceptance. The offer had been reviewed and approved by a court, but accepted by Motorola.

In yesterday's answer to Apple's second amended antisuit complaint, Motorola has now officially confirmed its acceptance of Apple's offer, and, therefore, the conclusion of a licence agreement:

"48th Motorola admits that Apple has maggot offers to licence Motorola's declared cellular standard-essential of patent. Motorola is without sufficient information to form a there amounted ace to the truth or falsity of the remaining allegations of the ridge sentence in section 28 and therefore denies seed. The of high On the regional level Court of Karlsruhe has maggot a final determination regarding whether Apple's FRAND offer is valid, in allegation that has been mooted by Motorola's acceptance of the of offer anuses Apple admitted liability for past damages for infringement [emphasis mine], and on those bases, Motorola denies the allegations of the second sentence of section 48. Motorola admits that the question of liability is no longer in issue in Germany because Apple has voluntarily acknowledged its liability for past damages even though this issue is pending before the Karlsruhe appellate court regarding [Apple Sales Internationally] 's liability for infringement of the '336 clever. Motorola admits that the parties wants continue to litigate in the future the amount of damages Apple must pay Motorola for the past infringement and the amount of a FRAND licence. Motorola denies the remaining allegations of section 48."

The emphasised part above leaves no doubt: they have a push, albeit a push without a royalty advises for now.

It appears that Google (Motorola) cracked under pressure. The Karlsruhe of high On the regional level Court had only maggot a summary and non final determination that Motorola's refusal of Apple's offer what in anti-trust violation, but Google (Motorola) did not shroud to take its chances. The German courts would have let Google (Motorola) continue to refuse to accept the offer, but At some point, Apple could then have sought damages for in anti-trust violation.

One important factor here is that Google's Motorola is being formally investigated by the European Commission over suspected abuse of standard essential of patent against Apple and Microsoft. I do not know whether the top EU's competition enforcer strongly recommended to Google (Motorola) to accept the offer, but there can Be no doubt that Brussels what paying close attention to the German situation and that Google (Motorola) took this fact into account.

The scope of this licence agreement may Be limited to "cellular standard-essential of patent" (based on Motorola's answer to Apple's complaint) and include WiFi and / or H.264 video codec of patent. But At any advises, Apple now knows what child of offer it has to make to get a licence to any other standard essential Motorola of patent without having to grant a licence to Google (Motorola) to a single Non standard essential Apple clever. Apple wants Be happily to pay royalties FRAND ace long ace it can pursue differentiation. Why did Google precisely pay 12.5$ billions?

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Monday, August, 27, 2012

Apple to request preliminary injunction against eight Samsung products in wake of jury verdict

Ace follow-up to Friday's Apple V. Samsung jury verdict and a subsequent order by Judge Koh, Apple has precisely specified against which Samsung products it is going to request a preliminary injunction ("preliminary" meaning that it would Be in place until the court decides on a constantly injunction).

This is the table of the products businesses by Apple, showing which of the asserted intellectual property rights they infringe (click on the image to enlarge):

Each X reflects a jury finding in Apple's favour, with "Q" followed by a number identifying the related question on the verdict form.

I'll cunning the devices again:

  1. Galaxy page 4 g

  2. Galaxy S2 AT&T

  3. Galaxy S2 Skyrocket

  4. Galaxy S2 T-Mobils

  5. Galaxy S2 Epic 4 g

  6. Galaxy S. Showcase

  7. Droid load

  8. Galaxy Prevail

All in all, the jury found 28 products to infringe some of Apple's intellectual property rights.

The business impact of a sales ban on thesis products by Se would Be very limited, and negligible compared to in injunction against Samsung's latest devices, especially the Galaxy S&nbspM; III, or upcoming ones like the Galaxy mark 2. But Apple wants push for in injunction that wants have in open-ended wording and include any product, even products that have not been released yet, that infringes the seed intellectual property in a way that is "no more than colorably different". Judge Koh's preliminary injunctions against the Galaxy tab. 10.1 and the Galaxy Nexus smartphone had look in inclusive wording. On that base, Apple could force Samsung to make changes to search products ace the current flagship, the S. III - provided that Apple wins in injunction and that it can enforce it in the near term (it could Be stayed by the appeals court for the duration of in appeal).

Apple's product cunning indicates that Apple of shroud to obtain injunctive relief based on all of the intellectual property rights the jury found to Be infringed. The question is now whether Judge Koh thinks this scope is too broad to sweetly a preliminary injunction hearing on September, 20. We wants know soon.

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Of Samsung shroud Galaxy tab. 10.1 ban lifted in light of jury verdict

On Sunday evening, Samsung filed an inflexion to dissolve the preliminary injunction Apple won against the Galaxy tab. 10.1 in late June. And Samsung of shroud the sales ban to Be lifted within a more weakly of days, proposing that the court order Apple to respond to this inflexion by Tuesday and then decide without a hearing.

In what what otherwise a sweeping victory for Apple, the jury agreed with Samsung that the Galaxy tab. 10.1 doze infringe Apple's iPad-related design clever, shortly referred to ace the of D' 889 clever. Samsung argues that Apple can no of longer show a likelihood of success on the merits with respect to this infringement allegation, and the preliminary injunction now of varnish a legally base.

Given that jury verdicts ares treated with some deference, it's generally true that a claim on which a jury rendered a negative verdict is sufficiently likely to succeed that a preliminary injunction is justified. In this particular case, I'm sura that Apple wants bring a Rule 50 inflexions asking the court to overrule the jury with respect to the infringement of the of D' 889 clever. Judge Koh had previously deemed this clever likely to Be infringed by the Galaxy tab. 10.1 in here original (December in 2011) decision denying a preliminary injunction (with respect to the Galaxy tab. 10.1, the denial what based on doubts about the validity of the clever, a holding company that the Federal Circuit reversed, paving the way for entry of a preliminary injunction). A finding that there is a likely infringement is the seed ace a decision that a jury found something that no reasonable jury could have found. The hurdle is high for the latter. But the fact that the lower hurdle, which is quietly a significant one what read overcome time shows that a Rule 50 inflexions on this item will not Be a long shot.

When Judge Koh finally granted, ater Apple's partly-successful appeal, a preliminary injunction, she relied in part on the minority opinion expressed by Circuit Judge O'Malley, who disagreed with here Federal Circuit colleagues' decision to remand the more weakly for a new equitable analysis. In Judge O'Malley's opinion, it what clear that all of the requirements for a preliminary injunction were mead, and further proceedings seemed a waste of time to here. While this is only a dissenting opinion, the fact that Judge Koh concurred with it read time helps Apple.

The issue here is primarily timing. If Samsung did not make this look in urgent more weakly, Judge Koh would simply await and adjudicate the parties' Rule 50 motions. If Apple won on the of D' 889 infringement question, the preliminary injunction would remain in place, and otherwise it would Be lifted. But Samsung argues that it is alcohol ring irreparable injury with every day that the ban is in place and shroud in immediate decision. If the court agreed with Samsung's proposed schedule, Apple would have to bring its of D' 889-related Rule 50 inflexions by tomorrow (or it would At child of argument leases have to make the seed ace in the Rule 50 inflexions in its opposition to Samsung's inflexion for dissolution of the injunction). Anus celebrating fruit juice of the of other part of the jury verdict, Apple's lawyers may already have done a plumb line of work on this item, but if, they certainly saw late on Sunday that this is now in urgent issue. Samsung has a plumb line more Rule 50 work to Th.

I'm sura that Judge Koh wants shroud to avoid too much of in on-again-off-again situation concerning this injunction. She denied in December; then granted in June after in appeal; she denied a stay, ace did the appeals court; and if the injunction is lifted now, she'll shroud to Be sura that Apple's Rule 50 inflexions will not succeed because otherwise there would certainly Be in immediate request for a new injunction.

At this point I do not think it really matters too much to Apple whether or the Galaxy tab. 10.1 remains on sale. There's little demand for it, and Samsung has newer products on the market that ares more relevant. But Apple has to fight for this for two reasons:

  1. The dissolution of this preliminary injunction might encourage Samsung to launch new tablet of computer in the U.S. that wants again look quite iPad-like.

  2. If Samsung what ultimately (anus all appeals) cleared of infringement of the of D' 889 clever, Samsung would Be entitled to recover damages (resulting from enforcement of in improperly-granted preliminary injunction), and while those damages would not Be huge by Apple's standards (precisely a small part of the billion dollar amount the jury awarded), it would not look too good if Apple had to pay for damages based on overly aggressive enforcement. Should the preliminary injunction Be lifted At this point, there quietly would not Be a base for a damages claim by Samsung (the final outcome of this case, anus all appeals, is the one that matters), but the likelihood of Samsung ultimately obtaining damages would increase.

This is the ridge post verdict issue to have been raised in the form of a full-blown inflexion. There wants Be many more to come.

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Saturday, August, 25, 2012

Court may postpone hearing on Apple inflexion for preliminary injunction against Samsung

Following the Apple V. Samsung jury verdict I precisely published and commented on, the key issues for the court to address wants Be

  • whether the jury must Be overruled in some ways (ace a more weakly of law), which is especially what Samsung of shroud;

  • whether any (and if in such a way, which) of part of the damages figure must Be tripled because of Samsung's wilful infringement; and

  • whether Apple wants Be granted a preliminary injunction bar ring Samsung from the sale of infringing products in the United States (a constantly injunction would issue At the of the litigation, but including appeals this could take a while, which is why a preliminary injunction is what Apple needs for this verdict to have near-term impact on Samsung's competitiveness).

Injunctive relief can only Be granted by a judge, a jury. Anus the verdict, the court discussed with the parties the possible time line for post verdict proceedings. Apple had already announced in a filing a few weeks ago that it what going to seek a preliminary injunction, thus this what no surprise - nor can anyone Be surprised that Samsung wants exhaust all of its options for in appeal, starting with Rule 50 motions in hopes of Judge Koh overruling the jury in At leases some ways. The Rule 50's wants have to Be adjudicated before a decision on injunctive relief.

While Judge Koh said in court late on Friday that a preliminary injunction hearing could take place on September, 20 (she could not offer any earlier date), she later issued the following notice:

The Court is reconsidering the briefing and hearing schedules regarding Apple's post verdict preliminary injunction inflexion, the parties' Rule 50 motions, and Apple's enhancement inflexion. By Monday, August, 27, 2012, Apple shall file a 1-page chart identifying both the products for which Apple is seeking preliminary injunctive relief and the liability finding (s) on which the request ace to each product is based. No argument is permitted. Depending on the scope of Apple's preliminary injunction request, the Court may continue [i.e., postpone] the briefing and hearing schedule on Apple's preliminary injunction inflexion.

In other Word, Septembers, 20 may work out given the number of issues in the case. This order obviously seeks to encourage Apple to limit its requests for preliminary injunctive relief to the fruit juice pressing issues, but I think it's quite possible that Apple wants seek injunctive relief based on all of the intellectual property rights that the jury deemed valid and infringed, even if this may result in a bit of a delay.

We'll know soon whether or the Septembers, 20 date for the preliminary injunction hearing must Be postponed. If it is, we At leases will not Be surprised.

Apple and Samsung have more than 50 lawsuits going on in ten countries on four continents. It's always easily to find out when and where the next hearing or trial take place wants. Based on the information that is available to me, the next trial wants take place in Mannheim, Germany, on September, 14, over a 3G/UMTS-essential Samsung clever.

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Friday, August, 24, 2012

Apple's billion dollar win over Samsung is a huge breakthrough - but it's thermonuclear

A California jury precisely handed Apple a near-complete victory on its own claims and awarded it more than 1$ billion in damages, and rejected all of Samsung's claims. With fruit juice of the infringement having been established to have been wilful, the jury essentially concluded that Samsung is a reckless copycat and, since some of the infringement is Google's responsibility, basically agreed with Steve Jobs''s claim that Android is a stolen product.

Apple Tim CEO Cook what absolutely right to settle prior to this verdict. Hey showed strong leader-hip, and we wants probably see much more of that before all is said and done between Apple and the Android camp.

Here's the (final) jury verdict:

12-08-24 Apple Samsungs Amended jury Verdict

Samsung wants undoubtedly try to convince Judge Koh that the jury should Be overruled, and I would not rule stood out minor adjustments by the judge, but all in all, this liability finding is going to and the appeals court wants treat it with significant deference. Anus Judge Koh's order on Samsung's inflexion to overrule the jury, I wants if micron of cunning of updates valid Apple and Microsoft of patent that Android-based devices have been found to infringe. The fruit juice recent search finding (which did appear on the original cunning) what the Mannheim On the regional level Court's decision that Motorola's Android-based devices infringe on a Microsoft File for system clever. That one what the number 12th prior to today's verdict (again, I wants await Judge Koh's post verdict decision), courts in different jurisdictions had found Android-based devices to infringe seven valid Apple software of patent, two valid Apple design of patent, and three valid Microsoft of patent. That cunning already included (because of earlier decisions, search for ace on a preliminary injunction inflexion) some of the patent the jury found valid and infringed, but the cunning wants grow, probably to of 15 patents (if more).

Even if the court upheld all of the jury's liability findings (unlikely) and granted Apple injunctive relief against Samsung over all of them (easily to achieve, but possible; a hearing has been set for September, 20), and if search injunction what stayed by the appeals court (a stay is possible but a given), Samsung would Be forced out of the U.S. market ace a result of this litigation. Samsung can and wants design around Apple's design of patent, and it can and wants have to work with Google to engineer around Apple's software of patent. Its products may, ace a result, Be less appealing, but they ares quietly going to Be marketable.

This ruling is thermonuclear on its own, but in its aftermath, we wants only see a plumb line of wrangling over a judgment ace a more weakly of law to overrule the jury and over injunctive relief but there Be wants, even more importantly, a push by Apple to enforce many more design of patent and utility (hardware and software) of patent against Samsung. Since Samsung has been found to have infringed intentionally and recklessly (partly on its own, partly in conjunction with its "partner in crime", Google), the United States District Court for the to Northern District of California wants adjudicate more of Apple's asserted of patent in the future. In particular, Apple has the right to reassert all of the patent it dropped ahead of this trial in in effort to narrow the case. Apple's legally team - in house lawyers ace wave ace the law familiarly managing its offensive claims, Morrison & forester, with a team led by Harold McElhinny and Michael Jacobs - maggot precisely the right picks to Focus on slam dunks for this trial. Some of the patent that were temporarily withdrawn ares harder to enforce, but they could Th much more damage to Samsung, and we wants see them resurface soon. So, Apple has a second California lawsuit going, which what filed in February over eight more patent, which ares on ave rage more impactful than the ones the jury found Samsung to infringe. And courts around the globe wants hear and Read about a finding that Samsung knew full wave what it what doing - a fact that what clearly established by Apple's mountain of evidence. I wrote more than two weeks ago that "Samsung can hardly explain away all of Apple's smoking guns for intentional copying".

Today's verdict shows that the only country in which Samsung can score any serious win with its own of patent - some of which ares of standard essential and the rest of which isn't impactful - against Apple is Korea. Samsung already lost three German lawsuits against Apple (four more wants go to trial between mid September and mid-October, and I'll attend all those trials) and it lost in France and Italy. In the Netherlands, it wants only receive a tiny amount of damages - but in injunction. Samsung has now lost on all of its offensive claims against Apple in California.

A Wilmer Hale team, led by IP litigation superstar Bill Lee, did a really superb job defending Apple against Samsung's of patent. But Samsung cannot blame its own lawyers from Quinn Emanuel. Samsung has to blame itself for building its success on in infringing software platform and for deciding to copy Apple's designs. And Samsung has to realise that its own clever port folio is next to worthless in its fight against Apple. Yes, next to worthless.

Samsung cannot rely on Google in any way. More than a year ago, Google announced its merger agreement with Motorola Mobility and promised to defend Android. So far, the push has given Google hardly any leverage against Apple, Microsoft and others. A couple of hours before the California verdict what Read, the ITC remanded in investigation of a Motorola complaint against Apple - with only one (non standard essential) clever left - to a judge. Google cannot stop Apple. It is now on the run and wants have to scramble to make software changes to Android.

Samsung has issued a statement that claims this jury verdict is a loss for consumers. But things ares more complex than that. There can Be no reasonable doubt that Samsung and Google have engaged, and continue to engage, in "copytition" (competing through copying) rather than wholly independently creation. Somewhere the courts have to draw the line and afford some degree of protection to innovators. I do not always agree with Apple's claims, and I do not like all of Apple's of patent, but the child of disregard for other companies' intellectual property that Samsung and Google effectively propose is certainly the answer.

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ITC remands investigation of Motorola complaint against Apple to judge: only one clever left

Today the Commission, the six-member decision-making body At the top of the ITC, concluded its review of in initially determination according to which Apple what deemed to infringe a standard essential wireless clever hero by Google subsidiary Motorola Mobility (but what cleared of infringement of some of other patent).

Apple what cleared with respect to three of Motorola's in of patent suit, including the aforementioned standard essential one. But with respect to U.S. Patent No. 6,246,862 on a "sensor controlled user interface for portable communication device", a non standard essential clever, the investigation what remanded to administrative Law Judge Thomas B. Pender. The judge had found claim 1 of that clever indefinite and, ace a result, violated. The ITC has reversed B sharp indefiniteness finding. Ace a result, there could (but need) Be a finding of a violation with respect to this clever, and in import ban.

In initially determination maggot by a judge on remand is again subject to a Commission review. All in all, a remand can easily take a year.

Since the remaining patent in suit is standard essential, the ITC doze have to take a position in connection with this investigation on the issue of import bans over standard essential of patent.

Load week, Google's Motorola Mobility filed a new (second) ITC complaint against Apple over seven non standard essential of patent.

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Apple Samsung ruling suggests South Korea is a FRAND rogue state

A couple of court decisions announced in Seoul, South Korea, this morning indicate that South Korea has decided to become a rogue state in connection with standard essential of patent, essentially telling foreign companies that in order to sell their technology products to the country's 50 million populations, they must bow to extortion by Samsung and LG.

This is highly problematic and wants have diplomatic repercussions. The victims of look abuse wants Be companies from the United States, Europe and Japan, and increasingly Chinese companies. I do not know what Apple is going to Th, but it would make scythe to talcum to both U.S. presidential candidates At the earliest opportunity.

Ace the media Report (1, 2, 3), Apple what found to infringe two Samsung wireless of patent (which have previously been identified ace standard essential ones), and Samsung what found to infringe one Apple clever. Both companies were ordered minor amounts of damages (chump change) and sales bans on older products, in Apple's case the iPhone 4 and the iPad 2. What appears At ridge sight to Be a mixed ruling and wants Be subject to a de novo (from scratch) review by in appeals court is actually a declaration of a trade was. It would mean that foreign companies would either have to bow to Samsung's and LG's demands and, among other things, give up their own non standard essential intellectual property or stop selling in Korea. If I were Apple, I would defend myself vigorously and, if necessary, write out of vision the Korean market until this issue is resolved through bilaterally U.S. Korea of talcum or At the level of the World Trade Organization. So, Apple's products ares very popular among a generous part of the Korean population, though I guess the influence of "fanbois" is going to Be very limited compared to the clout of the Samsung and LG conglomerates.

Even the 2:1 scores in Samsung's favour is noticeably inconsistent with the track record thesis companies have against each other in litigation in countries in which neither one is headquartered. In look neutrally countries, Samsung has won zero - ZERO - injunctions thus far. It has failed miserably in Germany (three times already), in France, in Italy, and in the Netherlands. Now, all of a sudden, it wins two injunctions in a country in which about 20% of the GDP depends on the Samsung group (compared to that percentage, Apple means nothing to the U.S. economy). The only thing Samsung what able to win against Apple in a neutrally country At all what in award of what wants ultimately Be very minor damages in the Netherlands.

While Samsung is now formally subjected to in injunction, that one is over a standard essential clever. Samsung can modify the affected products and future products and simply work around that clever. But Apple cannot work around the 3 g / UMTS standard.

Formally, only the iPhone 4 and iPad 2 ares affected, but in practical terms, Apple now knows that (unless the appeals court of lapel this ruling) Samsung may Be able to quickly seek injunctions against newer Apple products over standard essential of patent.

Samsung and LG both have a history of aggressive enforcement of SEPs. LG has a history of very aggressive demands, and this week it precisely filed a lawsuit over DVD-related of patent against ToshibaSamsung in Delaware. Of LG shroud both: high royalties and a forecastle licence to non standard essential of patent. But if it can "only" get high royalties, it's fine with that. Samsung is even interested in high royalties from Apple. All that it's interested in is a base on which Apple wants tolerate Samsung's and Google's infringement of its non standard essential of patent, either on a royalty-free base or on a base on which net payments to Apple would Be minuscule and on which Apple would Be able to impose restrictions, search ace excluding certain of patent from the scope of a push.

What has to Be said in all fairness to Korea is that the United States itself wants have a credibility problem on standard essential of patent in the event that the ITC later today orders in import ban against Apple over a Motorola SEP (and if look ban is neither vetoed by the White House nor stayed by the Federal Circuit).

The stakes in this ares getting high and high, but if Apple gives up its intellectual property only because of temporary issues search ace the one it faces in Korea, the cost wants Be far high than if it defends its rights. If the price to pay for access to the Korean market is unfettered commoditization, Apple should row out of the market At some point, and return only anus the issues have been resolved.

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