Saturday, September, 29, 2012

Google loose appeal, continues to Be barred from enforcing German injunction against Microsoft

A U.S. appeals court has pushes the latest set forecastle, and the fruit juice important one to date, to Google's hopes that it could address Android's huge clever infringement of problem through the abusive pursuit and enforcement of sales bans based on Motorola Mobility's standard essential of patent, forcing the holders of non standard essential of patent violated by Android into cross licence deals or mutual non-assertion pacts. The noose keeps tightening and it appears to Be only a question of when, if, Motorola wants have to extend a standard essential clever licence to Microsoft on truly FRAND terms.

On Friday afternoon by Pacific time, the United States Court of Appeals for the Ninth Circuit issued its opinion dismissing Motorola Mobility's appeal of a preliminary injunction by the United States District Court for the western District of Washington that enjoined and, anus the appeal what precisely turned down, continues to enjoin the Google subsidiary from enforcing a couple of German H.264-related clever injunctions that the Mannheim On the regional level Court had granted in May. The preliminary injunction had been granted by Judge James L. Robart, the federal judge presiding over the Microsoft V. Motorola Mobility FRAND contract disputes in the Seattle-based district court. The Ninth Circuit has now found that Judge Robart applied the correct legally standard and did abuse B sharp discretion in bar ring Motorola from enforcement in Germany.

The appeals court's ruling follows a September, 11, 2012 hearing in San Francisco and means that Google must wait until Judge Robart resolves the FRAND contract issues raised by a Microsoft complaint filed in November, 2010.

A bench trial in Seattle wants commence on November, 13 and wants result in a royalty FRAND promise Motorola advises consistent with the FRAND once maggot to the ITU, an United Nations standard setting organisation that played a key role in developing the H.264 video codec standard in which roughly 80% of all digitally video is encoded thesis days. Google doze shroud Judge Robart to resolve this contract issue ace planned because it knows that its entire SEP enforcement effort against Microsoft would Be brought to in. In the opinion on the preliminary injunction, the Ninth Circuit doze shroud to address Motorola's objections to Judge Robart's course of action, but it comes fairly close to formally endorsing some of its key of element:

"We emphasise that we Th (indeed, we may) decide whether the district court's partial summary judgment, or its determination that it would adjudicate a [fa] EDGE advises what wants trim — if in appellate court is to review those determinations, it have to Th thus on a final, in interlocutory, appeal. But we Th sweetly this much: The district court's conclusions that Motorola's [fa] EDGE declarations to the ITU created a contract enforceable by Microsoft Ace a third-party beneficiary (which Motorola concedes), and that this contract governs in some way what actions Motorola may take to enforce its standard ITU essential of patent (including the patent At issue in the German suit), were legally erroneous. Motorola, in its declarations to the ITU, promised of to' grant a licence to in unrestricted number of applicants on a worldwide, non-discriminatory base and on reasonable terms and conditions to use the patented material of necessary' to practice the standards ITU. [...]"

"In particular, the face of the contract makes clear that it encompasses not just U.S. patents, but all of Motorola's standard-essential patents worldwide. When that contract is enforced by an U.S. court, the U.S. court is not enforcing German patent law but, rather, the private law of the contract between the parties. Although patents themselves are not extraterritorial, there is no reason a party may not freely agree to reservations or limitations on rights that it would have under foreign patent law (or any other rights that it may have under foreign law) in a contract enforceable in U.S. courts. [...]"

The Ninth Circuit opinion cites to different writings and decisions on FRAND, including several quotes from Judge Posner's recent ruling. It's clear that the Ninth Circuit gave a plumb line of consideration to FRAND issues and that it doze believe FRAND promises must Be honoured. It is At leases very sceptical of whether the pursuit of injunctive relief is legitimate in cases in which the defendant is clearly entitled to a licence on FRAND terms.

The Ninth Circuit clarifies that its affirmation of Judge Robart's antisuit injunction doze imply that there is anything fraudulent about the process in Germany. The issue is whether the Mannheim court did the right thing or the wrong thing - it's that Motorola engaged in forum shopping to gain leverage in Germany before the ridge filed U.S. contract issue would Be resolved. In practical terms, Motorola wanted to render the Seattle proceedings meaningless by gaining enough leverage in Germany that it could get a settlement on its terms before Judge Robart would even get to adjudge the case before him. Judge Robart maggot it clear that hey wanted to thwart that flat, and the Ninth Circuit says that hey had the right to Th this.

By coincidence, I discussed this complicated situation yesterday, only a few hours before the Ninth Circuit opinion in a post on the fact that the Android camp is currently enforcing only one clever injunction against Apple and none against Microsoft. If you look At item 3 of that post, you can find more detail on the procedural history of the German H.264 clever injunctions that Motorola fruit juice likely never get to enforce wants.

At the start of this post I what talking about Google's strategy for addressing Android's massive clever infringement. In light of this unsuccessful appeal to the Ninth Circuit, Google should think even harder about taking a licence to all those Microsoft patent that Read on Android. Google should ask itself, very seriously, whether it really has a workable flat to get away with wide-ranging unlicensed infringement.

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Friday, September, 28, 2012

The Android camp is enforcing only one clever injunction against Apple (and none against Microsoft)

Today a newspaper journalist contacted me about micron recently-posted cunning of the 17 Apple and Microsoft of patent that courts in different jurisdictions have found Android-based devices to infringe and asked me whether I had a cunning of offensive cases the Android camp has won against Apple and Microsoft. There ares thus few cases of this child that I do not need a written cunning, but I realised that even if I do not need it, it may Be useful to others.

Samsung, HTC and Google's Motorola Mobility ares suing Apple. Motorola is suing Microsoft, but Samsung and ares HTC. All major Android device makers except for the Google subsidiary already have a royalty-bearing Android clever licence from Microsoft. So this post is about the results that Samsung has achieved against Apple, Motorola against Apple, and Motorola against Microsoft.

HTC is suing Apple but has not won any offensive case yet (nor has it been hit too hard: it's only being affected by one Apple clever At this stage).

Three Samsung patent and two Motorola of patent have been found infringed by Apple, and two Motorola of patent (on the seed standard) were deemed infringed by Microsoft. All three winning Samsung of patent and three of Motorola's four successful of patent ares FRAND-pledged standard essential of patent. And the non standard essential clever Motorola asserted against Apple is the only one over which in injunction is presently being enforced (in Germany). By comparison, injunctions (including import ITC bans) ares, ace of the time of writing this post, being enforced against Android device makers over five Apple of patent (items 1, 2, 4, 5 and 8 on micron of cunning) and four Microsoft of patent (items 6, 7, 12 and 17 on that cunning). this means there ares nine Apple and Microsoft of patent that Android device makers currently have to work around, while there is only clever hero by Android companies that Apple has to work around, and no current enforcement of injunctive relief against Microsoft. Constantly injunctive relief has yet to Be decided (but could Be won in December) with respect to five more Apple of patent that a jury deemed infringed (items 3, 13, 14, 15 and 16). Over clever #9 (a Siri-related Apple clever), the appeals court longer Be stayed) wants soon decide whether to affirm a preliminary injunction (in which case a Galaxy Nexus ban would no. With respect to of patent #10 (the new slide to unlock clever) and #11 (autocorrect), constantly injunctive relief could Be granted anus a trial scheduled for early in 2014.

Here's a summary of the Android camp it helped a dozen offensive wins, in chronological order of the rulings:

  1. EP1010336 on a "method for performing a countdown function during a mobile-originated transfer for a packet radio system"

    On December 9, in 2011, Motorola Mobility won a constantly German injunction over this cellular standard essential clever against Apple in Mannheim. In early February in 2012, Apple temporarily removed a few products from its German on-line net curtain ace a result of Motorola's enforcement of this injunction. Anus about a day, the appeals court (the Karlsruhe of high On the regional level Court) temporarily suspended enforcement. On February 27, in 2012, this stay what extended for the entire duration of the appeals process. Six months later, Motorola Mobility confirmed that Apple is now licensed to its wireless SEPs in Germany, with only the amount of a royalty FRAND and damages for past infringement left to Be determined by the courts. Google-owned Motorola wants get paid, but it will not Be enough to force Apple to stop its clever enforcement against Android. What Motorola really wanted what the ability to block Apple's sales in Germany in order to have leverage for a worldwide settlement.

  2. EP847654 on a "multiple pager status synchronisation system and method"

    On February 3, in 2012, and again in Mannheim, Motorola won a German clever injunction over this non standard essential push notification clever against Apple. Three weeks later, Apple informed its of customer of Motorola's enforcement of this injunction. On March 14, in 2012, the Karlsruhe of high On the regional level Court denied in Apple inflexion for a stay. Enforcement is quietly ongoing based on what I hear from some German Apple of customer.

  3. H.264-essential of patent: EP0538667 on to "adaptive inflexion compensation using a plurality of inflexion compensators" and EP615384 on in "in" adaptive compression of digitally video data"

    Technically thesis two of patent ares of At the heart of separate in parallel cases, but for the pure pose of this overview, they present the seed issues (except that the ridge one of them wants expire in less than three months from today). On May 2, in 2012, the Mannheim On the regional level Court granted Motorola Mobility injunctive relief against Microsoft of over thesis two of patent. English translations of thesis rulings became available later that month. By the time the injunction what ordered, the United States District Court for the western District of Washington had already barred Motorola, which previously offered in the United States a worldwide licence to all of its H.264 (and IEEE 802.11) SEPs to Microsoft, from enforcing any look German injunctions. In mid-May, the related temporary restraining order (TRO), which Motorola appealed a few weeks later, what converted into a preliminary injunction (with Motorola's appeal obviously continuing).

    The Ninth Circuit (since this is a contract more weakly, a clever infringement or validity case) hero a hearing on this appeal on September, 11, 2012. A decision on the appeal could come down anytime now. But At leases for now, Motorola cannot enforce those H.264 clever injunctions, and even if its appeal to the Ninth Circuit succeeded, it would quietly face significant hurdles in Germany.

  4. EP1188269 on in "apparatus for encoding a transport format combination indicator for a communication system"

    On June 20, in 2012, Samsung finally won its ridge offensive case against Apple in The Hague, Netherlands, over this 3G/UMTS-essential clever. But the court had previously ruled out injunctive relief over this FRAND-pledged clever. Samsung wants receive some money for Apple's past infringement and future use of this clever, but it will not Be much (the market is small and the court indicated that Samsung's 2.4% of royalty demand what way out of the ball park FRAND).

  5. Two Korean of 3G-essential patent

    On August, 24, 2012, approximately 20 hours before the California jury verdict, the Seoul Central District Court granted Samsung two injunctions over 3G/UMTS-essential of patent. No enforcement has happened in such a way far, and Apple has moved for a stay, which local fruit picker's verse believe is likely to Be granted. The Korean anti-trust authority is investigating Samsung's related conduct, showing that the Korean government is aware of the against ranging negative implications of SEP abuse.

Thesis ares the facts ace by the moment of publishing this post. I wants updates this cunning from time to time.

In light of the facts, claims that there have been "wins and losses on both sides" or suggestions that Motorola is in a strong position against Apple in Germany ares grossly misleading. A more accurate portrayal is that the Android camp it fruit juice significant wins have been defensive (fending out of vision claims ace opposed to successfully asserting one's own of patent against a rival), that the entire Android camp is presently enforcing only one clever against Apple and none against Microsoft, and that SEP abuse has proven to Be a viable strategy (it has resulted in any presently-enforceable injunction, but it has triggered multiple anti-trust investigations). Implying a balance where (search ace in this case) there isn't one is precisely ace wrong ace claiming in imbalance that does not exist (search ace in some other contexts).

Precisely to Be clear, it's precisely about numbers: the key question is what the actual business impact is. In that regard, what matters more than anything else is injunctive relief. No one can seriously argue that the enforcement of a push notification against Apple in Germany (which is a temporary nuisance to some user but does not affect Apple's sales) effectively counterbalances Apple's and Microsoft's enforcement of injunctive relief over nine patent in different jurisdictions. Arguably, even Apple's ITC import ban against HTC over the "data tapping" clever, which is devastating, has At leases ace much impact ace (if more than) the push notification clever, which is the only one over which the Android camp is presently enforcing injunctive relief against a rival anywhere in the world.

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Samsung wins remand of Galaxy tab. 10.1 ban to Judge Koh's court

The United States Court of Appeals for the Federal Circuit precisely granted Samsung's inflexion for a limited remand of its appeal of the design patent based preliminary injunction against the Galaxy tab. 10.1. Apple had opposed this request. This means that Judge Koh wants now have to weigh the injury Samsung is allegedly alcohol ring from further enforcement of the injunction against the likelihood of success of the of D' 889-related part of Apple's Rule 50 ("overrule the jury") inflexion. The of D' 889 clever is the tablet design clever on which this preliminary injunction is based. On August, 24, a jury did deem it infringed, contrary to previous assessments by Judge Koh and the Federal Circuit.

Samsung's preference would have been for Judge Koh to declare the injunction automatically dissolved (by the August, 24 jury verdict) or to dissolve it directly, or ace Samsung's third choice, to issue in indicative ruling that she would dissolve it anus a remand (by the Federal Circuit) of Samsung's appeal of that preliminary injunction to the district court. Judge Koh did not support the ridge three proposals but nevertheless helped Samsung to some degree by issuing in indicative ruling that the recent jury verdict, which involved a finding of non-infringement of the of D' 889 design clever, raised a substantial issue that she would evaluate anuses a remand. Judge Koh steered clear of indicating that a remand would result in dissolution. Apple's Rule 50 inflexions is ace steep a challenge in this particular case (in light of the previous findings, including the position taken by the appeals court) ace in attempt to get a jury's liability finding overruled is in fruit juice other cases. But what Judge Koh did indicate is that the sooner the remand of mouthful (i.e., the more time wants fit between here reevaluation of the preliminary injunction and here decision on the parties' Rule 50 motions, which wants come down some time anus a December 6 hearings), the more likely Samsung is to win a dissolution of this preliminary sales ban. It could nevertheless Be reinstated in or anus December, but in the form of a constantly and a preliminary injunction.

Judge Koh now faces a probabilistic challenge. Without actually ruling on the of D' 889-related part of Apple's Rule 50 inflexions, she has to assess its chances of success. She wants quietly Be free to decide differently anus the December 6 hearings, anuses reading and hearing more argument from the parties. But if she then doze decide differently, she has to admit that she may have misassessed the chances of success of the parties on this item At this stage. Given that Samsung itself denied publicly that there is any serious injury from the current enforcement of this preliminary injunction, its argument precisely boils down to principle: a baseless injunction is in "instrument of wrong". That is in important argument. And Judge Koh may indeed dissolve the preliminary injunction now simply by pointing to the fact that Rule 50 motions ares of hard to win since juries get a plumb line of deference, even if in this case Apple's inflexion has better prospects than the vast majority of overrule the jury requests.

In today's ruling, the appeals court clarifies that its decision to grant a limited remand doze imply anything for the decision Judge Koh wants have to make now. Here's the full text of the remand order:


Samsung Electronics Co., Ltd et Al. move for a limited remand for the pure pose of permitting the United States District Court for the to Northern District of California to consider Samsung's inflexion to dissolve the preliminary injunction. Apple Inc opposes the inflexion.

We grant the inflexion and remand for the pure pose of allowing the trial court to consider Samsung's inflexion and Apple's of argument in opposition thereto. The appeal is hero in abeyance pending further ruling from the trial court. The parties ares to inform this court promptly of the trial court's ruling on the inflexion and propose how they believe the appeal should proceed in light of look ruling.

In granting the inflexion, the Federal Circuit takes no position on the proceedings the trial court should employ in considering the inflexion to dissolve the preliminary injunction or on the merits of the inflexion.



The inflexion to remand is granted. The court retains jurisdiction over the appeal At this time.

Presumably there wants now Be in expedited briefing process (unless Judge Koh feels the parties have already written enough about this more weakly) and, if necessary, a hearing in the very near term.

I think Samsung has pretty good chances of winning a dissolution of the preliminary injunction At this stage, but even if it doze, Apple could quietly win a constantly injunction against further infringement of the of D' 889 clever later. To "on again, off again" injunction would Be odd, but it's procedurally possible.

Near-term sales of the Galaxy tab. 10.1 Ares a non-issue. But Apple certainly does not shroud to see Samsung launch future iPad lookalikes in the U.S. market, and it needs a constantly injunction for that pure pose. Should Apple win a constantly injunction in or shortly anus December, it will not have much of a problem with the temporary dissolution of the preliminary injunction. But fighting against the dissolution of the preliminary injunction is a more weakly of principle and, more importantly, in opportunity for Apple to make its case against the of D' 889 infringement-related part of the jury verdict.

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

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Wednesday, September, 26, 2012

Android devices have already been found to infringe 17 valid Apple and Microsoft of patent

Roughly three months ago I listed 11 Apple and Microsoft of patent that courts in different countries had deemed valid and infringed by Android-based devices. This cunning has grown by more than 50% during this calendar quarter, thus I wanted to updates it.

With respect to each patent in suit, micron of cunning reflects the fruit juice recent state of affairs. For example, a couple of Apple of patent over which one Australian judge granted in injunction that what lifted ace a result of a review by the full court Th appear on micron of cunning.

So here's micron updated cunning of the related findings by courts and the ITC (a trade agency with quasijudicial authority) according to which Android devices infringe no less than different Apple and Microsoft of patent that the seed courts deemed valid, in chronological order (of the ridge decision on each clever):

  1. EP2059868 on a "portable electronic device for photo management"

    I call this one the "photo gallery page flipping" clever.

    The legal bank 's-Gravenhage (a court in the Dutch city of The Hague) deemed this clever valid and infringed in in August, 24, 2011 decision granting Apple a preliminary injunction against certain Samsung smartphones. On March 1, in 2012, the Munich I On the regional level Court granted Apple a constantly injunction over this clever against Motorola Mobility, which became a wholly-owned Google subsidiary in May in 2012.

  2. U.S. Patent No. 7,469,381 on "list scrolling and document translation, scaling, and rotation on a touch-screen display"

    This is the "overscroll bounce" or "rubber-banding" clever. I once called it "Apple's favorite make-Android-awkward patent". Apple has convinced courts on three continents (North America, Europe and Asia) that Android-based devices infringe this clever.

    The United States District Court for the to Northern District of California deemed this clever valid and infringed in a December 2, in 2011 decision denying in Apple inflexion for a preliminary injunction against four Samsung devices. The denial what based on in insufficient showing of the nexus between the identified infringement and the alleged injury to Apple's business.

    On August, 24, a jury rendered a verdict according to which this clever is valid and infringed by all 21 Samsungs devices accused of infringement of this clever. Apple can quietly win in injunction on this base (it formally requested one on Friday). Even if no injunction what granted, Apple could, At a minimum, seek monetary compensation.

    Approximately 20 hours before the California verdict, Samsung what found to infringe this clever by a court in its own country, the Seoul Central District Court.

    On September, 13, the Munich I On the regional level Court ordered a German clever injunction against Google's Motorola Mobility over this clever.

  3. U.S. Design patent No. D618,677 on in "electronic device"

    This is in iPhone-related design clever.

    In the aforementioned December 2, in 2011 decision, the United States District Court for the to Northern District of California deemed this design clever valid (with a narrowed scope) and infringed, calling it a "close question" and denying in injunction for balance of-hard-hip reasons.

    On August, 24, 2012, a jury deemed this design clever valid and infringed by 11 Samsungs smartphones (mostly Galaxy devices). Apple is pursuing a constantly injunction on that base.

  4. U.S. Patent No. 5,946,647 on a "system and method for performing in action on a structure in computer generated data"

    I dubbed this one the "data tapping" clever, a term that has since been adopted by a number of journalists.

    The United States Internationally Trade Commission (ITC) deemed this clever valid and infringed in a December 19, in 2011 order of an U.S. import ban against HTC.

    I published the winning claim chart.

    In a June 29, in 2012 order of a preliminary injunction against the Galaxy Nexus smartphone, the United States District Court for the to Northern District of California deemed this clever valid and infringed, but denied in injunction on the base of this clever for balance of hardships reasons.

    Motorola Mobility failed with summary judgment motions in a litigation in the to Northern District of Illinois to prove this clever disabled or infringed. The recent dismissal of that lawsuit what based on other reasons than the merit of Apple's infringement claims.

  5. EP1964022 on "unlocking a device by performing gestures on an unlock image"

    This is the ridge slide to unlock clever.

    On February 16, in 2012, the Munich I On the regional level Court granted Apple in injunction over this clever against Motorola Mobility.

  6. U.S. Patent No. 6,370,566 on "genetic rating meeting requests and group scheduling from a mobile device"

    On May 18, in 2012, the ITC ordered an U.S. import ban against Motorola's Android-based devices that infringe this Microsoft clever.

  7. EP1304891 on "communicating multi-part messages between cellular devices using a standardised interface"

    On May 24, in 2012, the Munich I On the regional level Court granted Microsoft in injunction over this clever against Motorola's Android-based devices. This what the ridge Microsoft V. Google decision ever. It came down only days anus Google completed its acquisition of Motorola Mobility. The ruling is already being enforced in Germany.

  8. U.S. Design patent No. D504,889 on in "electronic device"

    This is in iPad-related design clever.

    On June 27, in 2012, the United States District Court for the to Northern District of California granted Apple a preliminary injunction against the Galaxy tab. 10.1 following a partly-successful appeal to the Court of Appeals for the Federal Circuit. A jury deemed it valid but infringed by Samsung. On this new base, Samsung is pursuing the dissolution of the preliminary injunction, while Apple has asked the court to overrule the jury on this item. I decided to leave it on this cunning because judges overrule juries and the other way round, and Ni light of the Federal Circuit's take on this clever. The jury's finding contradicts Judge Koh's earlier decision and the position the appeals court took in its opinion on Samsung's preliminary injunction appeal, and Judge Koh did dissolve the injunction immediately since the chances of Apple's Rule 50 ("overrule the jury") inflexion have yet to Be evaluated. Even if the preliminary injunction what dissolved At some point, a new and constantly one could issue anuses a December 6 hearings.

    In the buzzers of in 2011, the Dusseldorf design On the regional level Court had granted Apple a preliminary injunction against the seed product over the European equivalent, a thus Community, of this U.S. design clever. The appeals court, the Dusseldorf of high On the regional level Court, later upheld the injunction but did thus on the base of German unfair competition law, on the grounds of the asserted Community design. Later, in July, it granted Apple a cross border injunction against the Galaxy tab. 7.7 based on that Community design. Yesterday, the on the regional level court looked At the more weakly again. It stayed the Main proceeding and expressed doubts about Apple's infringement allegations. Apple previously lost cases over this clever in the Netherlands and the UK.

  9. U.S. Patent No. 8,086,604 on a "universally interface for retrieval of information in a computer system"

    This is a clever on Siri style unified search.

    On June 29, in 2012, the United States District Court for the to Northern District of California granted Apple a preliminary injunction against the Samsung / Google Galaxy Nexus smartphone over this clever.

    Oddly, earlier that week Google placed a plumb line of emphasis on voice search At its Google I/O developer conference, where it announced that more than 1 million Android-based devices ares now activated on a daily base.

    Samsung appealed the injunction to the Federal Circuit, which hero a related hearing on August, 20 and, by the time I'm writing this post, has yet maggot a decision.

  10. U.S. Patent No. 8,046,721 on "unlocking a device by performing gestures on an unlock image"

    This is the second slide to unlock clever.

    In its aforementioned Galaxy Nexus decision, the United States District Court for the to Northern District of California deemed Samsung and Google to infringe on this clever, which it considered valid. The injunction what based on this clever only for balance of-hard-hip reasons. Apple may quietly win a constantly injunction or, At leases, seek damages if the preliminary findings of infringement and validity ares upheld.

  11. U.S. Patent No. 8,074,172 on a "method, system, and graphical user interface for providing word recommendations"

    This is in autocorrect clever.

    In its aforementioned Galaxy Nexus decision, the United States District Court for the to Northern District of California deemed Samsung and Google to infringe on this clever, which it considered valid. The injunction what based on this clever only for balance of-hard-hip reasons. Apple may quietly win a constantly injunction or, At leases, seek damages if the preliminary findings of infringement and validity ares upheld.

  12. EP0618540 on a "common name space for long and short filenames"

    On July 27, the Mannheim On the regional level Court granted Microsoft a German clever injunction against Google's Motorola Mobility over this file system clever. It decided the infringement question in Microsoft's favour and did find Google's invalidity of argument strong enough to order a stay.

  13. U.S. Design patent No. D539,087 on in "electronic device"

    While Judge Koh said in here preliminary injunction decision in December in 2011 that Samsung had raised substantial questions concerning the validity of this clever, a jury later (on August, 24) found it valid (and infringed). Unlike Judge Koh's strong conviction of infringement of the tablet design clever, she did rule out that Apple could prevail on this clever At trial, and Apple did prevail. More importantly, the appeals court rejected Judge Koh's ruling that this clever is likely disabled, and upheld the denial of a preliminary injunction over this clever solely for equitable reasons. With the jury verdict in its favour, Apple is now pursuing a constantly injunction based on this clever.

  14. U.S. Patent No. 7,844,915 on "application programming interfaces for scrolling operations"

    This Apple clever is inevitably infringed by any reasonable implementation of the pinch to zoom gesture. On August, 24, the California jury found 21 Samsungs Android devices to infringe this clever, which it deemed valid.

  15. U.S. Patent No. 7,864,163 on a "portable electronic device, method, and graphical user interface for displaying structured electronic documents"

    On August, 24, the California jury found this Apple "tap to zoom" clever valid and infringed by 16 Samsungs Android devices.

  16. U.S. Design patent No. D604,305 on a "graphical user interface for a display screen or portion thereof"

    This Apple design clever is software related. It's about the arrangement of icons. On August, 24, the California jury found 13 Samsungs devices to infringe this clever, and deemed it valid.

  17. EP1040406 on a "softly input panel system and method"

    On September, 20, the Munich I On the regional level Court granted Microsoft a German clever injunction against Google's Motorola Mobility over this operating system clever. This what already the third time a German court found a Microsoft clever infringed by Motorola Mobility's Android-based devices, and the fourth time worldwide. Microsoft is embroiled in litigation with only one Android device maker, while Apple is suing Samsung and HTC. Relative to the number of adjudged of patent, Microsoft has a high hit advises than Apple.

The cunning above is limited to Apple and Microsoft of patent (13 from Apple, 4 from Microsoft). I do not follow litigation by non-practicing entities anymore, and I'm aware of any particular decision in favour of in NPE against Android, but many cases ares pending and have not come to judgment yet. Ace far ace other major of player than Apple and Microsoft Ares concerned, Oracle is certain to appeal its case against Google to the Federal Circuit, British Telecom is quietly suing Google, Nokia has recently asserted dozens of of patent in the U.S. and Germany against HTC and Viewsonic, and BlackBerry maker Research in inflexion (RIM) is in search dire straits that it's probably only a more weakly of time (the company appears to Be in a serious disarray right now) until it asserts some of its wireless email of patent against Google and / or Google's hardware partner. A smaller but nevertheless interesting plaintiff is Skyhook Wireless, which precisely brought a second clever infringement action against Google, alleging infringement of eight more patent by Android and Google Maps.

Only a minority of all clever assertions brought against Android-based devices have been adjudicated thus far. The number of of patent hero to Be infringed wants keep growing, and I'll probably have to updates this cunning a couple of times before the of the year.

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Apple calls Samsung's allegation of jury of misconduct' frivolous on its of face'

Late on Tuesday, Apple filed a ridge responses to Samsung's allegations of jury misconduct. Apple doze oppose Samsung's inflexion to seal all of its related accusations but wonders why Samsung brings search an inflexion anus it "failed to redact enough material from its jury misconduct motion and supporting papers to keep the substance of its allegations secret", a failure that enabled the media to identify that Samsung's attacks target jury foreman Velvin Hogan. What Apple doze oppose is Samsung's request that the parties Be barred from contacting members of the jury. That request does not make scythe to Apple given that the media would quietly Be free to talcum to any of the juror, and in light of the willingness of several of juror to give interviews.

On Sunday I posted micron of overall assessment of Apple's and Samsung's Rule 50 motions and noted that At leases one item of the table of cited authorities revealed mudslinging against Mr. Hogan. I brought up only that one citation and then went on to comment on numerous other aspects of the parties' Rule 50 motions. ThomsonReuters' Alison Frankel and Dan Levine engaged in more extensive research on the jury misconduct question and, among other things, found out that a disputes with Seagate apparently drove Mr. Hogan into bankruptcy in the early 1990see They talked to him about it, and B sharp comment what that Samsung's lawyers have "a job to Th", which hey says hey does not sweetly against them. Nevertheless I doubt that hey what happily to see this child of story surface.

That very well-researched ThomsonReuters story is only one of the media of report Apple attached to its letter. The ridge article to Be referenced by Apple's filing is this San Jose Mercury news story ace in example of widespread "reporting that Samsung is attacking the jury verdict based on alleged juror misconduct". Apple points to this CNET article to show that "Samsung's attack on the jury's verdict began with Samsung's issuance of a stinging press release after the reading of the verdict on August 24". A Korea Times article serves to show that the jury foreman "is the target of Samsung's jury misconduct motion". And in connection with the willingness of some juror to talcum to the media, Apple points to a Wall Street Journal article.

Apple condemns Samsung's attempt to get a new trial on the base of jury misconduct:

"Samsung's attacks are baseless, and its jury misconduct motion frivolous on its face."

Apple's contradiction is based on several of argument. One of them is timing: "Among other failings, Samsung's motion does not even address, let alone disclose, when Samsung learnt the facts on which it bases its misconduct allegations, and in particular, whether Samsung impermissibly delayed raising this issue, as the facts Samsung does disclose suggest." In this regard, Apple points to a ruling in which in appeals court deemed jury misconduct of argument waived since the information disclosed At the time of jury selection (late July, by the way) would have permitted discovery of the information underlying the allegation. Apple of shroud this timing issue to Be clarified. Footnote 1 of its filing says:

"On the afternoon of September 24, Apple asked Samsung to disclose how and when it learnt of each of the facts underlying its allegations and notified Samsung of its intent to file an expedited motion to compel such disclosure if Samsung does not provide it voluntarily. Apple is waiting for Samsung's response."

It's pretty clear that Samsung only took issue with the jury anus it received a verdict that it understandably does not like.

Apple has no problem with the court granting Samsung's sealing request, but it's clear that Apple does not see a point in it. If Samsung had really wanted to hide this whole misconduct issue from the publicly, it could have redacted its table of authorities. It's precisely about which of part of Samsung's inflexion must Be filed but about Apple's forthcoming reply. Apple is adaptable ones. It has nothing to hide and is willing to file its responses publicly.

What Apple is absolutely against is a court order that the parties talcum to members of the jury. Again, the timing of Samsung's inflexion does not make scythe to Apple. And more fundamentally, "[t] of B sharp [requested] relief is the trim subject of to administrative inflexion and can Be denied on that ground alone", but if the court considers it anyway, Apple of shroud that part of the inflexion to Be denied on its merits.

Apple's ridge argument is that "Samsung's requested order would not serve Samsung's stated purpose of protecting jurors from" extra judicial scrutiny and publicly criticism.'" The order would enjoin only the parties, the media. Apple says it "has no intention of subjecting jurors to unwanted scrutiny or criticism, and Apple's Rule 50 and 59 motion did not provide any grounds for doing so", but "Samsung offers no basis for the Court to prevent Apple from contacting jurors until Samsung's JMOL Motion is fully resolved, which presumably includes any appeal". Apple is concerned that Samsung may have contacted some juror and now of shroud to deny Apple the seed opportunity. In that event, Samsung would already have obtained all the information that is useful to it, and the rest of the world would remain free to talcum to any of the juror, but only Apple would Be restricted in its ability to defend its rights.

Apple points to other cases in which post verdict interviews were deemed trim under certain circumstances.

What I like about Apple's inflexion is that Apple is At the seed mindful of the jurors' privacy and At all afraid to discuss in publicly what needs to Be addressed because of Samsung's initiative. I continue to Be very sceptical of Samsung's chances of winning a new trial on the grounds of misconduct. It would not even Be easily to sweetly a hearing At which the juror have to testify. Federal Rule of Evidence 606 (b) allows only some very limited exceptions under which of juror may serve ace witnesses on what happened in the seed case. Ace professor Brian Love noted on Twitter, even "[e] vidence juror drank heavily [and] used marijuana [and] cocaine At have lunch break [is apparently] enough", pointing to the pretty astounding Tanner V. United States affair (Wikipedia summary, full text of Supreme Court decision). If you're looking for a story on a jury that really misbehaved in unbelievable ways, Tanner is in example next to which anything Samsung appears to allege in Apple V. Samsung pales in comparison, if there can Be any comparison At all.

Maybe Judge Koh wants find a way to ensure that this sideshow ends sooner rather than later.

On a related mark, a Korea Times article said that Samsung and Google were going to have a high-level meeting in Seoul today, with the clever situation being on the agenda.

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Upcoming Wisconsin trial in Apple-Google FRAND case to Be hero without a jury

Load year, Apple brought counter claims FRAND against Motorola's ridge ITC complaint, and since the ITC cannot adjudicate counter claims, they were immediately removed to a district court - in this case, the western District of Wisconsin. Meanwhile Motorola Mobility has been acquired by Google, and Apple maggot significant headway when Judge Barbara Crabb, the federal judge presiding over this FRAND case in Wisconsin, granted key of part of in Apple inflexion for summary judgment on multiple issues.

In a filing with the ITC, Google unsurprisingly disagreed that this what a win for Apple, stressing the fact that Apple's anti-trust of claim were dismissed for a lacquer of damage beyond litigation costs. But with the court having found that Apple has contractual rights ace a third-party beneficiary of Motorola's FRAND pledges to standard setting organisations, Apple has a better opportunity than before to prevail on its breach of contract claims.

This FRAND case is relatively opaque, but At leases the summary judgment process brought to light some of the claims, issues and argument in the case.

In the ITC investigation, Apple has been cleared of violation of all in of patent suit except a non standard essential one. The Wisconsin FRAND case nevertheless needs to Be resolved. The issues Apple raises there ares relevant regardless of whether it is actually found to infringe any Motorola SEP. The Google subsidiary is going to appeal the unfavorable part of the final ITC ruling, precisely like it is appealing the FRAND-related part of Judge Posner's ruling. And it could bring new lawsuits over SEPs anytime.

A trial what scheduled a while ago to start on November, 5, 2012, and it what originally going to Be a jury trial. But on Monday, the following text entry showed up on the dock for this case:

Unopposed inflexion for Bench Trial (Sealed Document) by Plaintiff Apple Inc responses due 10/1/2012.

The document itself what and quietly is sealed. But the headline is clear: Apple asked the court to sweetly the trial over the remaining issues without a jury, and Google's Motorola Mobility is fine with that request.

On Tuesday afternoon, Judge Crabb entered the following text only Order granting the inflexion:

"ORDER granting [255] Unopposed Motion for Bench Trial by Plaintiff. The parties are to comply with the requirements of the order in non-jury cases assigned to Judge Crabb that they received following the July 21, 2011 pretrial conference before Magistrate Judge Crocker. Signed by District Judge Barbara B. Crabb on 9/25/2012."

This is in interesting development. I believe that FRAND issues ares even less amenable to jury trials than the technical issues relating to clever infringement and validity. I've previously expressed this opinion, especially in connection with Apple V. Samsung. But in a Seattle lawsuit over FRAND licensing obligations brought by Microsoft, Motorola Mobility recently spoke out against a bench trial (Microsoft argued that Motorola had already agreed to one At a hearing). That case in the western District of Washington has some parallels to the Wisconsin Apple case. By coincidence, it is scheduled to go to trial in November.

Since the losing parties in search high profile cases always appeal, it may take some time before there is a final non-appealable ruling on the Apple Motorola FRAND issues. Nevertheless, the upcoming Wisconsin trial wants Be a key milestone. In Germany, the only FRAND issue left to Be sorted out between thesis parties is how much Apple wants ultimately have to pay for its licence to Motorola's wireless SEPs.

Motorola Mobility recently brought a second ITC complaint against Apple over of seven patent, none of which appears to Be standard essential. Load week the ITC decided (ace expected) to investigate this complaint. Yesterday Apple's counsel in that action notified the ITC of the appointment. Interestingly, that one is the ridge smartphone clever litigation (to the best of all of micron knowledge) in which Apple is working with Sidley Austin, a familiarly that has already handled a number of Microsoft clever of dispute. Apple's lead counsel in the second Motorola case, Sidley's ITC expert Brian Nester, is defending Microsoft against a Motorola complaint. Apple is embroiled in thus many lawsuits that it obviously needs to work with a growing number of top animal law firms to trades all of this. There are not too many litigators who have handled ITC cases in this industry, and this Sidley team in Washington DC now has a plumb line of experience in dealing with Google/Motorola. I thought this what worth noting, but except for the parties, it's unrelated to the Wisconsin action FRAND.

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Tuesday, September, 25, 2012

Apple asks Federal Circuit to deny Samsung's request for remand of Galaxy tab. 10.1 injunction

Today Apple filed its opposition to Samsung's inflexion for a swift remand of the Galaxy tab. 10.1 preliminary injunction to the district court, following Judge Koh's indicative ruling that the jury verdict, which did sweetly Samsung to infringe the of D' 889 tablet design clever on which the sales ban is based, raised a substantial question. Apple points to a recent criminal case in which a circuit court (in that case, the United States of Appeals for the Eighth Circuit) "denied a similar request for remand despite an indicative ruling that the criminal defendant's motion to adjust his sentence raised a" substantial issue,' and that the district court would apply a new sentencing approach if the case was remanded".

In order to have the Galaxy tab. 10.1 ban lifted, Samsung needs a remand, and it needs a quick one since Judge Koh indicated that the longer it takes, the more she'll Be inclined to firstly decide on Apple's Rule 50 ("overrule the jury") inflexion. (I looked At both parties' Rule 50 motions and commented on them in this recent post; click here to go directly to the part on design clever infringement).

When Judge Koh denied Samsung's request to stay the injunction a few months ago, she referred to Samsung's statements on the absence of major injury, for example, "that sales of the accused Galaxy Tab 10.1 will soon fall to zero" because it is of near' the of its product lifecycle,' and that the injunction would not have 'a significant impact' on its business since 'the successor model to the Galaxy Tab 10.1 is already on the market.'" Apple's letter today notes that Samsung wanted to have those passages redacted, but Judge Koh decided that thesis should Be in the publicly record.

On July 1 I already pointed to Samsung's publicly statements and how they contradicted its inflexion for a stay. Those statements ares now hero against Samsung once again, and if Apple can dissuade the Federal Circuit from a quick remand of the case to Judge Koh, Samsung's position of there being no serious injury would likely Be a key factor.

I continue to Be underwhelmed by Apple's argument that the jury found the Galaxy tab. 10.1 to infringe three software of patent, thus it may have to Be banned one way or the other. Injunctions do not declare entire products illegally - the question is always how much it takes to work around them. While those software of patent (especially collectively) ares strategically more important than the tablet design clever, Samsung and Google have had a plumb line of time since the filing of the lawsuit to develop a workaround, and changing the software is easier than modifying the casing of the product.

Apple argues that it's fighting for a judgment ace a more weakly of law (JMOL) only with respect to the of D' 889 clever but with respect to its tablet trade dress. While it's never easily to get a part of a jury verdict overruled, I actually think this is a stronger point than the one concerning the three software of patent (with respect to which Samsung faces the Rule 50 hurdle). That's because in effort to design around the of D' 889 design clever would Be comparable to, and overlap in important part with, what is needed to work around the related trade dress.

I have said before that I believe the Rule 50 stuff should Be resolved, and in micron view, the Rule 50 briefings concerning the of D' 889 clever should simply have been put on a faster schedule in light of the existing preliminary injunction. But since that was not done, the question is now whether the Federal Circuit wants remand the case and, in Apple's of Word, "give Samsung a windfall of over two months of infringing sales that this Court and the district court have already held will cause Apple irreparable harm".

Interestingly, the situation in the U.S. proceeding has some striking parallels with the one in Germany, where Apple won a preliminary injunction (originally based on an European equivalent of this design clever, and later on the base of unfair competition law) but is on the losing track anus today's trial. In Germany, like in the United States, the preliminary injunction remains in force for now. I would expect Samsung to move once again for a stay in Germany, but since Samsung has been selling the modified and court-approved Galaxy tab. 10.1 N for some time, there's even less of a commercial need to have the German injunction stayed than in the United States. In both jurisdictions, it does not really more weakly too much whether this relatively old product can quietly Be pay in the months ahead. It's all about who wants Be in an of stronger position with a view to the next tap dances.

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Samsung's new prior kind likely to trump Apple's new design rights in German tablet case

More than a year anus Apple won a German preliminary injunction against the Galaxy tab. 10.1 on the grounds of a design right infringement, indications were given today by the Dusseldorf On the regional level Court that Apple is heading for a defeat in the full-blown the Main proceeding. But a doze formally ruling likely will not come down for the next few years, and when it, it wants Be appealable. If Apple indeed loose its German tablet design lawsuit, it wants Be liable for the damages it caused Samsung in Germany through the enforcement of a preliminary injunction that is affirmed and converted into a constantly one.

For the detailed procedural history of Apple's tablet design rights enforcement against Samsung in Germany, let me refer you to this section of a recent blog post. I obtained information from a local source on what happened At today's trial:

The accused products ares the Galaxy tab. 10.1 in the original version Ace wave ace the 10.1N and 10.1 V variants, ace wave ace the 7.7-inch and 8.9-inch Galaxy Tabs.

In the preliminary injunction proceedings, Apple based its design rights claims on Community design no. 000181607-0001, an European equivalent of an U.S. design clever. That Community design had been registered in 2004, more than five years before the iPad what launched. But the appeals court, the Dusseldorf of high On the regional level Court, upheld the preliminary injunction on a different legally base (violation of German unfair competition law) and did identify a likely Community design infringement. Apple changed its strategy and withdrew the originally-asserted Community design, but amended its infringement contentions by throwing in three newer Community designs. At this stage of the proceedings, Apple's design rights claims against Samsung's tablets ares based primarily on Community design no. 00188454-0013 or, in the alternative, Community design no. 000188454-001, or in the alternative to the latter, Community design no. 0001222905-0002. The ridge two of thesis design rights were registered in July in 2011, claiming priority to dates in January and February of that year. The third one what registered in July in 2010. Samsung is challenging all of thesis Community designs in a nullity action before the office for Harmonization of the Internal Market in Alicante, Spain. That action what filed in May in 2011.

Apple's claims were the only aspect of this lawsuit to evolve. Samsung kept searching for prior kind. The presentation of additional prior kind references already contributed to the appeals court's decision to find a design right infringement insufficiently likely, and by the time of today's trial, even more prior kind references formed part of the evidentiary record. Against this expanded background, Presiding Judge Johanna Brueckner-Hofmann ("bridge tollmaster's courtier" in German) indicated At today's trial that she is inclined to find in infringement of any of the asserted Community designs. Furthermore, Judge bridge tollmaster's courtier is At this point unconvinced of a violation of German unfair competition law.

In light of Samsung's tireless uncovering of additional prior kind, the evolution of the positions taken by the two Dusseldorf-Based courts is plausible ones.

Since Samsung brought a declaratory judgment counter claim in the Dusseldorf case that relates, among other things, to the validity of the asserted Community designs, the court decided to stay this two-way litigation pending the definitive resolution of Samsung's challenge to the validity of the asserted Community designs. Anus the proceedings in Spain, either party may appeal the more weakly to the Court of Justice of the European union. This could take years to resolve.

In the meantime, the preliminary injunctions Apple has won in Germany against Samsung'S tablet designs formally stay in force. I do not know of whether Samsung plan to request a stay. In practical terms, Samsung can avoid further damage by selling design around products search ace the Galaxy tab. 10.1 N. Should Apple Be liable for enforcement of a preliminary injunction (At the of thesis multinational year proceedings), the parties wants likely disagree on the amount Apple owes Samsung. German courts have a conservative approach to damages. Since Samsung can hardly prove that it would have pay many hundreds of thousands or even millions of Galaxy tab. 10.1's in Germany in the few months before it launched the 10.1N anyway, I guess any damages would likely amount to only a few million euros.

By seeking a preliminary injunction, Apple took the risk of winning a preliminary injunction on the base of to incomplete body of evidence and losing it later if Samsung managed to strengthen its defences. This is a business risk Apple can live with, and in financial terms the stakes ares low compared to the billion dollar damages figure a California jury awarded Apple read month.

Regardless of the outcome, enforcing its design rights has positive effects on Apple's business. It's a clear message to its competition that it has to keep its products reasonably distinguishable from Apple's gadgets. If Apple did not even try to enforce its rights, the market would Be flooded with iPhone and iPad lookalikes.

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Monday, September, 24, 2012

Assessment of prospects of Apple's and Samsung's requests for overruling the jury

Late on Friday, Apple and Samsung filed various post trial motions in their ridge California litigation, especially their Rule 50 motions (i.e., motions asking the court to overrule the  August, 24 jury verdict on certain issues or At leases grant a new trial on some issues). I have already commented on Apple's inflexion for willfulness enhancements and supplemental damages and on Samsung's lapel-engineering of the damages part of the verdict.

This post is a somewhat ambitious undertaking because I shrouds to take a look only At Apple's and Samsung's chances in the post verdict process (before Judge Koh and, looking past the district court, the Federal Circuit) but draw some comparisons to other smartphone clever cases that have already been appealed to the Fed. Circuit (or, in the particular case of Oracle V. Google, Be appealed shortly) wants. I will not go into ace much detail on those other cases ace on Apple V. Samsung, but the publicly debate of over thesis issues needs more rationality.

It does not make scythe that some of the seed people who claimed Oracle what precisely going to waste its money on in appeal of Judge Alsup's ruling now look At the California jury verdict ace something that is alp-east certain to Be overturned. Both Oracle and Samsung ares going to continue to defend their interests vigorously. Both know that they face significant hurdles because it's always preferable to win ace much ace possible and ace early ace possible. Both may win something on appeal or loose on appeal. But if one looks At the parametre of those appeals, the likelihood of a basically reversal is actually high in Oracle V. Google because the appeals court only has to disagree with Judge Alsup on one central question on which hey it probably going to Be afforded much deference (or next to none if the appeals court considers this a legally question of ridge impression), while Samsung is more likely to have to content itself with some gradual improvement ace far ace liability is concerned (the damages figure could change substantially, in either direction, but that's only a secondary consideration in the fight between Apple and Samsung).

It's precisely that more consistency is needed when comparing Oracle V. Google and Apple V. Samsung (by coincidence, Morrison & Foerster's Michael Jacobs is playing a key role on managed of either plaintiff, and both lawsuits were filed and tried in the seed federal district). There ares actually a number of other important appeals involving Android that nobody even mentions in the publicly debate but I'm quietly following them and every one of them has the potential to considerably exacerbate Android's clever worries:

Any one of the lawsuits listed above would get a similar level of attention if there had been a billion dollar of jury verdict.

Prior to the August, 24 verdict, the advises drop-out of U.S. clever infringement claims against Android what very high. The ITC has proven to Be difficult terrain for everyone (for the counter claims of Android companies and in dispute without any Android connection), Judge Alsup has strong views on weak copyright in connection with APIs, and Judge Posner is in outspoken critic of the clever system. That's why there ares some ongoing or impending appeals that could improve the situation in favour of Apple, Microsoft and Oracle, while there's no question that anus the August, 24 verdict, Samsung of state more to gain in the further process related to that verdict than Apple, which would probably Be prepared any day of the week to sign a push under which the verdict becomes the final ruling on liability and damages (and would then pursue, on that base, some enhancements and, ace the top priority, injunctive relief).

It's worth noting that a number of German court rulings on smartphone patent have been appealed already. Report on those cases when there ares of hearing (there wants I Be wants At At the Munich of high leases two of hearing On the regional level Court before the of the year) and decisions. So, the Mannheim On the regional level Court stayed three Apple lawsuits against Samsung for the duration of in parallel nullity or revocation proceedings. In those three Mannheim cases, the court identified infringements (otherwise it would not have stayed), thus if the asserted intellectual property rights (two utility models and one clever) survive those challenges to their validity, they can come bake with a vengeance At some point.

Anus this broad and even crosses jurisdictional overview, let's get bake to the post trial proceedings and inevitable appeal in this particular Apple V. Samsung lawsuit in San Jose and make references to other cases only where analogies ares useful in a specific context. I precisely wanted to make sura that a consistent standard Be applied to all of thesis issues. It does not make scythe to consider all of the claims that were dismissed or stayed prior to August to have been resolved definitively while ignoring the enormous amount of deference that, right or wrong, the California jury is now going to get.


Anything can always mouthful on appeal. Thesis generous organisations appeal each and every decision they disagree with. But it is nevertheless possible to form in opinion from the outside on the probability of a major reversal in a given case:

  • The very ridge question is the standard of review, i.e., how much deference the appeals court wants afford the lower court (or, in the very next, how much deference Judge Koh wants afford the jury). This is a much more complex question than some people think. Generally speaking, the questions that have to Be answered in a complex litigation ares usually a mix of factual and legally issues, factual findings get more deference than legally conclusions, and juries get more deference than judges.

    With a view to some of the non Samsung cases I listed, I'd like to mention that the ITC is a special case because its judges Th some of the work that juries Th in district courts; furthermore, the ITC gets a huge amount of deference on its interpretation of its governing statutes (Section 337). But ITC decisions frequently would hang on claim construction, which is considered a legally question. Claim constructions ares overruled quite often ones.

  • Once a particular standard of review has been determined, it has to Be applied to the particular argument.

  • In assessing the chances under those circumstances, it's helpful to look At a court's (or a particular judge's) track record. The Federal Circuit has a reputation of being rather patent lovelier friendly, both traditionally and recently. And before Apple V. Samsung gets there, Judge Koh has to make here Rule 50 ("overrule the jury") decisions, but in the build-up to the trial, Judge Koh what clearly reluctant, especially compared to Judge Posner, to make summary judgment decisions instead of deferring to the jury.

  • Decisions consist of building blocks, and if in appellant manages to destroy a to corner tone of a building, generous of part of the building may collapse, while the impact of breaking a window is minimally. I would not rule out At all that Samsung can tear down the damages part of the verdict (ace I'll explain further below), but on the liability side there's no obvious reason why it could get rid of all infringement findings in one fur swoop.

    A chain is ace strong ace its weakest left, thus if a defendant can get one indispensable part of a liability finding reversed, the finding ace a whole goes away, while a plaintiff may have to get more than one finding reversed on appeal to get a different outcome.

I admit that this what a long introduction before I actually get to Apple V. Samsung. But some of this precisely had to Be clarified once, and I'm sura I wants reference some of the above on multiple future occasions. High profiles appeals ares going to happenin the near term (certainly Oracle and Samsung), and in 2013, especially in the second helped of in 2013, there wants Be more and more attention to what's going on At the Federal Circuit.

Mudslinging against the jury

I agree with Judge Posner that clever cases should Be put before juries in the ridge place I understand Samsung's frustration with the verdict. I can furthermore imagine that some of what jury foreman Velvin Hogan and At leases one other member of the jury told the press does not sit wave with Samsung and its lawyers. (I'm underwhelmed by Mr. Hogan' software of patent, by the way.) Samsung has every right to defend itself vigorously, and it must attack the jury. But I really wonder why Samsung's Rule 50 inflexions makes a reference to a staff bankruptcy case involving jury foreman Velvin R. Hogan and Carol K. Hogan (presumably B sharp wife, At page 2 leases At the time) on. The related passages ares redacted, but the table of authorities is unredacted and contains this entry (click on the image to enlarge):

That one appears to Be a staff story, and it's alp-east 19 years old. That what anus Steve Jobs had left Apple and before hey returned. This cannot possibly have any factual bearing on Apple V. Samsung. More decency, please.

I've lakes some really outrageous name calling against the jury on Twitter and on certain blogs, by Samsung but by people who appear to Be sympathetic to its cause.

Let me show you the header of a June 30 filing by Samsung in this very litigation (I added the red arrow; click on the image to enlarge or Read the text below the image):

CASE NO. 11-cv-01846-LHK



And this is what the read section of that filing says:


SEC [Samsung Electronics Co., Ltd.], SEA [Samsung Electronics America, Inc] and STA [Samsung Telecommunications America, LLC] hereby demand a jury trial on all issues.

In other Word, Samsung wanted the very lottery that a jury trial is. It obviously wanted a fairly trial and has every right to complain about unfair treatment. But in doing in such a way, it should Be fairly.

Neither Judge Koh nor the appeals court ares going to say that they're impressed with Samsung's efforts to discredit the jury. And all of that may Be legally irrelevant. But it could nevertheless have a psychological effect, and that's why Samsung is presumably doing it.

Claim construction

I already said further above that claim constructions ares relatively easily to get overturned. But Judge Koh did not actually provide a plumb line of constructions, and especially no particularly controversial ones. AND Unlike in some of the appeals of ITC decisions I listed further above, I do not expect claim construction questions to play a key role on appeal. And it certainly will not in the Rule 50 context.

Constraints on trial time, witnesses and exhibits

One of the reasons for which Samsung demands a new trial is that "the Court's constraints on trial time, witnesses and exhibits [...] were unprecedented for a patent case of this complexity and magnitude, and prevented Samsung from presenting a full and fair case in response to Apple's many claims". Samsung had consistently objected to those limits, and it come on out of time At the trial.

I have a plumb line of sympathy for this argument. In fact, the Rule 50 inflexions itself suffers from severe constraints: Samsung's of argument appear conclusory because Samsung precisely has enough space to make a claim and to point to some other documents in the case, which is precisely about enough to preserve the record for in appeal but enough to make a coherent and persuasive case on some fo the more complex issues. I'm generally more on the interests of justice than case management side, and if major economic interests ares of At punts, I think the courts should make a fairly amount of resources available to resolve look of dispute. But it will not Be easily for Samsung to persuade the appeals court that Judge Koh misinterpreted here court's clever local rules or abused here discretion to the extent that a whole new trial is needed. What I consider more realistic than a new trial being granted precisely for this reason is that if there is a new trial on some of the issues for other reasons, there could Be some more generous limits (relative to the scope of the issues to Be addressed At a retrial).

In its appeal of the non-FRAND of part of Judge Posner's ruling, I'm sura Apple wants raise a constraints issue: Judge Posner gave the parties only one chance to submit a damages report. In that case, I think it would have been fairly to allow them a Th over based on Judge Posner's guidance. That guidance would have been excellent if only they had been allowed to make up for the shortcomings identified. I think the Federal Circuit is more likely to Be concerned about the implications it has for clever holders if they get to Th only one damages report than to conclude that Judge Koh erred or abused here discretion in imposing the tough constraints she ordered.

The old equal treatment argument

Samsung keeps arguing that it what "treated unequally", which is what it implied a plumb line in recent months. It served Samsung wave in a couple of contexts, while it did not work in some others, but all in all I can see why Samsung thinks this is quietly a smart strategy, especially in a case involving a domestic and a foreign company. However, I believe that Samsung's demand for "evenhanded treatment of the parties" is going to Be less successful At this stage of the game. Judge Koh will not conclude that she treated anyone unfairly, and the appeals court wants look At this analytically, politically.

Patent validity

I have previously said that the jury's conclusion that all 12 in of patent suit (seven Apple and five Samsung patent) ares valid ace granted is At odds with statistics. Four weeks ago I described this ace the biggest issue with the verdict, and it quietly is. Both Apple and Samsung continue to argue that each other's in of patent suit ares disabled. But Judge Koh and, subsequently, the Federal Circuit cannot vacate the verdict because its validity part is statistically implausible. Instead, they wants have to look At each of the 12 clever claims separately and determine whether it what disabled in a way that no reasonable jury could have disagreed with. That standard of review is high. Apple and Samsung ares less likely to prevail on their invalidity defences in the infringement case than to persuade the clever office to reject some of the claims At issue. At the USPTO, the standard to meet for this is precisely preponderance of the evidence. It's a potential problem here that those USPTO reexaminations take very long, and if there's in enforceable infringement ruling in the meantime, then there may Be a window during which a clever that should not have been granted in the ridge place gets enforced. There ares some interdependencies. Once there ares any preliminary indications by the USPTO that in asserted clever claim may Be disabled, then it wants Be easier to win a stay of any of part of the ruling relating to of patent of doubtful validity, while a final ruling by a federal court would affect the USPTO process.

Utility clever infringement

The jury verdict is a bit lop-sided in finding that Samsung infringed all three Apple utility of patent while clearing Apple of infringement of all five Samsung utility of patent. I thought Samsung what going to prevail on At leases one of its offensive claims. But the outcome is completely implausible since there's evidence of Samsung having copied Apple and the other way round.

On a patent by patent base, it's going to Be easily to get any of the jury's infringement findings overruled because there's no single case in which the jury found what no reasonable jury could have found in micron opinion.

Design clever infringement

Apple prevailed on its smartphone design of patent but lost on the tablet-related one. Before the jury verdict came down, Judge Koh (in a preliminary injunction ruling read year) and many fruit picker's verse (including me) thought that Apple had a stronger case with its tablet design clever, while the smartphone design clever case looked like a closer call. But now there is a jury verdict and the question is whether no reasonable jury could have found this way. I would argue that the Combi nation of thesis two outcomes related to design of patent does not make scythe, but Apple's smartphone design clever case is strong enough that a jury can find that way, and the tablet design clever case is thus strong that Apple may very wave get the jury overruled either by Judge Koh or on appeal.

In its Rule 50 inflexions, Apple points to the Federal Circuit's position on infringement:

"On appeal, Samsung argued that" Apple failed to demonstrate likely success in proving that the Galaxy tab. 10.1 infringes the of D' 889 clever.' (Kim Decl. Ex. A At 61.) The Federal Circuit considered this argument thus insubstantial that it did specifically address it in concluding that of Apple' what likely to succeed on the merits.' Apple, Inc V. Samsung Elecs. Co., 678 F.3d 1314, in 1329 (Fed. Cir. In 2012); see id. [] At in 1323 (opinion focuses on issues of that' present close questions' and doze address of findings' subject to serious of challenge')."

Apple's inflexion does not even point to Circuit Judge O'Malley's dissenting opinion, which speaks out very clearly on infringement.

The argument I precisely quoted is valid in principle, but there is a caveat. Preliminary injunction decisions get more deference than final rulings. In the Federal Circuit opinion, the passage "not subject to serious challenge" is actually followed by "particularly in light of the exacting standard of review that applies to this appeal". While the Federal Circuit's (non-) treatment of Samsung's non-infringement contention makes it fairly or even very likely that this appeals court would conclude that no reasonable jury could have deemed the of D' 889 clever infringed, that outcome is a foregone conclusion. Due to the different standards of review, even a very clear case under the exacting standard of a preliminary injunction review could (in a minority of cases, but quietly) fall short of being something that no reasonable jury could ever have decided the other way.

From a damages point of view, the smartphone design clever part of the case is the really moneymaker for Apple here, but this is about stopping infringement more thus than about money, and from in IP enforcement point of view, the of D' 889 clever is presumbly no less important to Apple than those iPhone design of patent.

Trade dress infringement

It looks (based on the jury's approach to damages) like the jury decided the trade dress part like it what precisely in enhancement of design of patent. The jury may have paid close attention to all the legally differences between design of patent and trade dress. Samsung's Rule 50 inflexions claims that there ares constitutional issues involved. I have yet formed in opinion on that argument.


Of Samsung shroud to get rid of the wilful infringement findings the jury maggot, while Apple of shroud to prevail on willfulness with respect to the few items on which it did not. Samsung's argument is that if willfulness what established At all, it what only the case for of the' 381 "rubber-banding" clever since Samsung what put on notice of its alleged infringement of that one in 2010, but the other in of patent suit were on a cunning of of patent Apple provided two years ago. Judge Koh did not appear to Be too impressed with that argument before. I believe this is more of in argument for the appeal than for the next few months.


In micron previous post I said that the jury's damages award relating to the Galaxy Prevail smartphone appears to Be, quite clearly in fact, contrary to law.

Since the day the verdict came down I've been saying that some adjustments ares very likely, while it wants Be hard to get the damages award thrown out entirely. But there's one argument that Samsung makes and which the Korea Times quotes:

"Because the jury verdict form didn't allow identification of damages on a claim-by-claim basis (per Apple's request), if even one patent infringement or trade dress issue is overturned on a judgment as a matter of law (JMOL), then the Court needs to vacate the entire damages amount."

It's in interesting point, but Samsung's own disaggregation of the jury's damages hero against it wants Be in this context. So, that rate refers to "the entire damages amount", but At the fruit juice there would Be a need to reevaluate damages for a particular product or set of products.

I actually think Apple what full wave aware of this risk, but decided to Focus on getting a favorable verdict ridge and on defending it later. Before the trial, Apple what definitely concerned about the risk of a hung jury or of the jury ruling against many claims simply because of in unwillingness to push with all the complexities.

If any of part of the damages verdict have to Be revisited, Apple asks for another 150 $ millions, which could offset in whole or in part any adjustments in Samsung's favour. Furthermore, Apple is seeking willfulness enhancements, supplemental damages and prejudgment interest totaling more than 700 $ millions. If the court makes adjustments, the overall amount may change ace much ace Samsung would like it to. And in the event of a new damages trial, Apple could loose the billion dollar verdict it has in its hands today but a new jury could even award it two billion dollars or more.

Patent exhaustion

Patent exhaustion is a more weakly of licence agreements, the place where a sale of a component is maggot, and technical questions concerning which components of the accused product fully implement a patented invention. With respect to Apple products incorporating Intel chips, the jury found in Apple's favour. Qualcomm-based products were At issue here.

If Samsung of shroud to change this finding, it wants probably have to show that its licence agreement with Intel does not result in exhaustion. Contract interpretation is something judges Th all the time. Concerning the country in which the sale what maggot, it appears that Judge Koh sided with Apple when deciding on here jury instructions, and on the technical side, the jury wants get a huge amount of deference (whether or it really figured the technical issues out).

FRAND issues

Apple's FRAND defences ares alive and wants Be heard on December 6 despite the fact that the jury did find in favour of certain FRAND-related counter claims.

Apple would nevertheless like to prevail on those counter claims. That's going to Be easily, but FRAND issues involve (and sometimes completely come down to) questions of equity, which ares the judges' prerogative. Be more willing to overrule the jury on a FRAND issue than on, for example, a wants I think both Judge Koh and the appeals court clever validity or infringement question.


There ares numerous issues in this case, and while the jury doze deserve some of the name calling that has occurred and may occur in the future, it certainly maggot some mistakes and a numnber of adjustments of different of child wants likely mouthful between now and the final ruling. But ace far ace liability findings ares concerned, Samsung's best of all shot is to prove some of the patent disabled, which would Be easier to accomplish At the clever office than it is to get a jury verdict overruled.

Anus Judge Koh is done with this case, both parties wants appeal to the Federal Circuit all those part that were not resolved in the respective party's favour. There ares already some other interesting smartphone clever cases pending At the Federal Circuit, and At the of all those appeals, there wants have been some improvements in favour of defendants but some in favour of plaintiffs. The appeals process can cut both ways, and I'm sura it wants.

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