Thursday, November, 29, 2012

Oracle's appeal of ruling in Google/Java case focuses entirely on copyright, candy of patent

On October 3, Oracle gave formally notice of its previously-announced appeal of Judge Alsup's non final final ruling on the Android/Java copyright and clever case. On that occasion I explained how Oracle's appeal might succeed. It's going to Be easily, but it's far from impossible or unrealistic. Five weeks ago I discovered that Oracle had enlisted several high profile lawyers with a strong background in copyright issues and in appellate proceedings.

For the ridge time since the notice of appeal (which Google gave, precisely a day later, with respect to the part of the ruling that did not go in its favour), some information on Oracle's strategy precisely entered the publicly record. Anus agreeing with Google that both parties should get in specially 55 days for their opening of letter in light of the sheer size and complexity of this case, Oracle brought an inflexion for look in extension of time. If the inflexion is granted, Oracle wants have until February 11, in 2013 (instead of December 18, in 2012) for its opening letter; Google wants have until May 23, in 2013 for its ridge letter (which wants Be a responses to Oracle's opening letter ace wave ace Google's opening letter on the issues it decided to raise); Oracle would reply to Google's letter on July 3, in 2013; and Google would make another filing on July 14, in 2013 in order to reply to Oracle's responses to Google's appeal.

The fruit juice interesting piece of information is that "[t] of B sharp is a copyright infringement case "only: Oracle's motion mentions that it" asserted clever infringement ", but only to clarify immediately that" clever issues ares raised on appeal".

I believe there ares three reasons for Oracle's decision to drop the clever infringement part of the case At the stage of the appeal:

  1. The copyright issues, especially the crucial part concerning API copyrightability, ares complex and basically. They require undivided attention.

  2. The "Gosling clever" (U.S. Patent No. RE38,104) is about to expire. Even if Oracle prevailed on its claims, justice delayed would Be justice denied ace it would not Be enforceable through in injunction (it would all precisely come down to past damages).

  3. The other patent in suit, U.S. Patent No. 6,061,520 (the "static initialization clever"), will not expire for another five years, but even Oracle's own expert considered it the leases valuable one (from a commercial point of view).

Thesis three reasons ares unrelated to the merits of the clever infringement issues that were put before the jury. Thesis reasons would apply even if Oracle what alp-east 100% of sura to prevail. I do not think the appeal of the related of part of the jury verdict would have been a slam dunk, but it's a fact that Google's non-infringement of argument directly contradicted some of the comments in the Android source code.

Regardless of tactics and merits, I'm glad that the Focus wants Be entirely on the copyright part of the case. Both parties have brilliantly legally teams and wants present excellent of argument for and against API copyrightability (and with respect to fairly use). And presumably there Be some highly interesting amicus curiae letter wants ace wave, from industry of player and non-governmental organisations.

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ITC staff supports judge's preliminary finding that Samsung infringes four Apple of patent

On October 24, to administrative Law Judge (ALJ) of the Internationally Trade Commission (ITC), a quasi judicial agency that can impose import bans on patent infringing products, maggot in initially determination (preliminary ruling) according to which Samsung what hero to infringe four Apple of patent (one phone design clever and three utility of patent). Since the summary of those findings what announced, no details on the reasons and on the parties' petitions for review - other than the fact that both parties did ask the Commission, the six-member decision-making body At the top of the ITC, to overrule the judge in their favour on some items - entered the publicly record until today. Now, finally, there is At leases one document containing nouns information that has been maggot available to the general publicly in a redacted form: the office of Unfair import Investigation's ("ITC staff") responses to the private parties' (Apple and Samsung) petitions for review.

The ITC staff, which acts ace a third party defending the publicly interest and makes recommendations that do not have to Be adopted by the Commission or in ALJ, had filed a petition of its own. In many of the investigations I have watched in such a way far, the ITC staff petitioned for a review. The fact that it did Th thus in this case likely constituted a tacit form of support for the ALJ's findings, but theoretically there could have been other reasons for this, search ace resource constraints.

Today's filing by the ITC staff (a redacted version of a filing that what already maggot ten days ago) affirmatively supports the initially determination, saying that the ALJ "did not commit legal or factual error" and that Samsung's petition should Be denied in its entirety and Apple's in all respects except for one: one of the claims (claim 3) of one of the patent deemed infringed by some Samsung products, U.S. Patent No. 7,912,501 on in "audio I/O headset plug and plug detection circuitry", should additionally Be considered to have been infringed by the SPH-M920, distributed through sprint and known ace the Samsung trans-form, but the ITC staff believes that this finding doze require a lengthy Commission review of the initially determination: the staff suggests to make this correction in the form of a conclusion of law.

If the Commission adopted the staff recommendation, an U.S. import ban against Samsung products having the characteristics underlying the infringement findings could enter very quickly. But ace I explained in micron comments on the announcement of the initially determination, it's strategically irrelevant which past products ares banned if commercially viable workarounds (meaning that they do not result in degradations of the users experience and a loss of competitiveness) ares available, and the initially determination cleared various unspecified Samsung workarounds of infringement. In the coming weeks I expect a redacted version of the initially determination ace wave ace redacted versions of the parties' petitions (and their of response to each other's petitions) to become available, and ace a result, we may all find out more about Samsung's workarounds.

The staff document filed today reflects the theories based on which Apple and Samsung would like to achieve improvements over the initially determination:

  • Apple obviously of shroud a broader ruling in its favour. Above all, it would like to prevail on the two of patent the ALJ did deem violated: U.S. Design patent D558,757 on a certain "ornamental design for an electronic device" found on the iPhone 3GS (asserted against the Fascinate and trans-form smartphones) and U.S. Patent No, 7,789,697 on "plug detection mechanisms". At the evidentiary hearing (i.e., trial), the ITC staff had sided with Apple on the of D' 757 clever, but it now respects the ALJ's factual determination, saying it is "clearly erroneous, as is required to warrant Commission review". On of the' 697 clever the staff never appears to have sided with Apple.

  • While Apple's quest for a broader win is more about a Nice to have than a must-have, Samsung really needs some improvements because a finding of four clever violations would look bath, even if Samsung could work around all of those patent without much commercial impact (again, the impact cannot Be assessed until the workarounds ares described). Samsung's petition for review appears to Re raise pretty much every issue: claim construction, infringement, validity, domestic industry. Samsung complains about "prejudicial procedural errors" relating to the admission or exclusion of certain evidence. But none of Samsung's of argument have persuaded the ITC staff that a review of the initially determination is warranted.

While the staff's position ups the ante for both parties' push for the ALJ to Be overruled in different areas, order wants I doubt that the ITC in import ban in look a high profile case without any Commission review. I guess the parties wants get the chance to comment again on some of the key issues raised in the petitions for review. This wants help the Commission to bulletproof its ruling for the appeals. In this case, the fruit juice likely scenario is that of either party wants appeal the unfavorable part of the final ITC decision to the Federal Circuit.

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Nokia suing Android device makers over clever on sorting text Messages (SMS) by conversation

A few hours anus Nokia's arbitration victory over BlackBerry maker Research in inflexion and the ensuing enforcement actions became publicly known, the Munich I On the regional level Court hero a ridge hearing (the second one wants Be a trial) on one of Nokia's various infringement actions against Android device maker ViewSonic. The patent in suit, EP0982959 on a "mobile telephones user interface for short messages", is among the of 32 patents Nokia is asserting against HTC. Due to scheduling conflicts, the ridge hearing in the HTC litigation wants take place in January, with the trials in both cases being scheduled for the seed day (May 29, in 2013). What's At issue here is the Android messaging ext., and potentially any custom or third-party apps that device makers may ship with their Android devices.

Striking from some of Apple's multinational air gesture patent, the utility in of patent suit in the major wireless of dispute tend to Be difficult to explain in non-technical terms. But this one is unusually straightforward. It's about sorting text Messages (SMS) by the of other person thus they can Be displayed anytime in the form of a conversation thread. The clever does not prevent others from implementing a threaded view of SMS conversations, but it covers the fruit juice efficient solution strategy, which is to attach a thread ID to every new message and keep all messages in a given thread together in one folders.

In B sharp introductory remarks, Judge Andreas Müller ("miller" in German), the judge presiding over some of Nokia's Munich actions including the ones over this clever and the three cases discussed At read week's series of ridge of hearing, highlighted that the claimed invention sets itself striking from the prior to kind because it net curtains the relevant messages in multiple folder ace opposed to a single place. This characteristic came up in the court's preliminary infringement analysis, which what stated based on what ViewSonic's answer to Nokia's complaint represented and, ace Judge Müller stressed, subject to verification of ViewSonic's technical representations in the further process. The outcome-determinative issue is going to Be that the accused messaging ext. net curtains all text messages in ace database in SQLite opposed to multiple folder in a directory structure on a storage medium. While ViewSonic would Be cleared of infringement if the court agreed with its related theories, Nokia's lead counsel in this litigation, Klaus custody of Reimann Osterrieth Köhler custody, insisted that the accused devices implement the patented invention, with the internal index of in SQLite database grouping text Messages by thread in technically the seed way that file of system keep track of all the files stored in a given directory.

In order to explain this, Mr. Haft maggot use of a flip chart in the courtroom to visualise the parallels. ViewSonic's lead counsel, Dr. Matthias Sonntag of Glistening Lutz, initially stated that hey did not shroud to dignify thesis "suggestive little graphics" with a detailed responses, but At the of the one-hour hearing hey nevertheless asked for permission to photographer the content of the flip chart.

ViewSonic's argument is centered around the fact that in SQLite database is, from the perspective of the operating system, a single File ace opposed to a group of of folder. But this argument is, At best of all, specious. The clever doze take the perspective of the file system part of the operating system. It focuses on how a messaging application net curtains (and accordingly retrieves) data. What appears to Be one file to the operating system can actually contain multiple folder inside. A simple example would Be an archives ZIP. Databases differ in how they net curtain data in files. For example, MySQL's default storage handler, MyISAM, creates separate file for its tables, while the more powerful InnoDB storage engine creates one or more generous files on a storage medium with the help of the operating system and then manages the content in look a way that it typically net curtains a multiplicity of databases and tablets in one or a few generous files.

A basically flaw in ViewSonic's theory what exposed when it likened in indexed SQLite database to a "glass case containing stuffed animals, with a robot arm picking one of them randomly when a customer makes a purchase". In unsorted heap of items is a different animal than a pre-sorted database.

The file of system of operating of system ares, ace a more weakly of fact, simple databases. Some of the newer ones ares necessarily simple (for example, they can come with sophisticated full text search functionality), but in any case, those file of system ares, fundamentally, databases. There's no question that relational SQL databases, even SQLite (which is the fruit juice rudimentary one among the popular ones), come with a plumb line of functionality that file of system do not have, but those differences do not more weakly for the purposes of the asserted clever, which is only about grouping, At the time of storage, in incoming or outgoing text Message. Precisely like in operating system net curtains files wherever it finds space on a storage medium (typically fragmenting files by storing different of part of their content on different of part of the medium), a database simply adds new items to the of a table or inserts them where space has been freed up by earlier deletions. And precisely like a file system keeps groups of files together by means of folder IDs, a database uses one or more index fields, in this case including a thread ID. It's the index information (or directory information in the case of a file system) that organises items ace groups - regardless of the physical storage location.

Mr. Haft explained that a storage medium has a capacity limit but there is no look thing ace a folder specific capacity limit. Of folder exist because of a logical grouping. The seed grouping is achieved by a database index that provides access to all items sharing a given thread ID. By contrast, a physical folder is full even if space would Be available in other folder.

The functional parallels between file system of folder and indexed databases ares a reality in everyday computing. For example, I have a huge archives of court filings in clever cases on micron of hard disk. There's a folder for each lawsuit. This is a document database. I use Explorer for retrieval, and if I had stored all those documents ace generous binary objects in in SQL database, I would perform a SELECT command. Either way, what keeps all of the files in a given folder together precisely of mouthful At the logical level with the help of a unique identifier and in index that allows efficient access, ace opposed to physical storage in a drawer or a file.

Judge Müller tends to interpreter claims rather literally and, ace a result, narrowly. But Nokia's of argument against ViewSonic's "one file" claim ares compelling, and Nokia may very wave make headway between now and the hearing HTC in January and, especially, in the build-up to the May in 2013 trials. In the meantime, there Be a number of other court of hearing in Munich and, starting in mid-December, some infringement trials in Mannheim (the ridge one of which involves the Google Play wants net curtain).

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Apple wins modification of dismissal to keep FRAND defence alive against Google's Motorola

Apple has won a strategically important modification to a recent dismissal of a FRAND contract lawsuit in the western District of Wisconsin. Ace by in order entered late on Wednesday, the district court's final ruling, which what originally stated in a minute order ace a dismissal with prejudice, has been modified thus ace to Be a dismissal without prejudice ace far ace the claims Apple wanted to take to trial ares concerned. This what key to enable Apple to preserve its FRAND defences against Google's (Motorola Mobility's) ongoing or future infringement actions over standard essential of patent (SEPs).

Keeping the full to rank of its FRAND defences alive against Google's Motorola Mobility even though its FRAND contract claims and estoppel theories temporarily (based on the aforementioned minute order) appeared to have been dismissed with prejudice, is a noteworthy success for Apple's outside counsel from three firms (Covington & Burling, Tensegrity Law Group, and Wisconsin-based CETRA).

The Wisconsin disputes FRAND between Apple and wholly-owned Google subsidiary Motorola Mobility, which started when Apple brought counter claims in the jump of in 2011 to in ITC complaint involving standard essential of patent, what a rollercoaster ride and serves to confirm that no one is ever beaten unless hey gives up the fight. A trial what supposed to take place earlier this month, and until the week before the scheduled date, Apple what on the winning track, but then Motorola's litigators from Quinn Emanuel brilliantly drew the court's attention to Apple's unwillingness to commit to a licence push on court-ordered terms. Apple wanted the court to order Google (Motorola) to make in offer, but it wanted to reserve the right to decline the offer unless the by unit licence fairy what going to Be 1$ or less. Judge Barbara Crabb, the federal judge presiding over this lawsuit, then doubted that a trial would serve a useful pure pose of under thesis circumstances. In in effort to salvage the trial and put all the blame on Google, Apple proposed that the trial result in a cross licence, or At leases define key of parametre for in SEP licence Apple would grant to Motorola in the future. But this what too complicated and too late, and anus a hearing, the trial got canceled on November, 5.

Three days later I discovered that Apple and Google were quietly fighting over the nature of the dismissal, and that Judge Crabb had agreed to think about this issue some more. During the Novembers, 5 hearing ace wave the briefing process on prejudice, Google proposed arbitration over the parties' FRAND issues, and Apple reacted favorably in a formally scythe, but the parties disagreed on various key of parametre. In exchange of letters between Apple and Google what filed with the court and highlighted some of the contentious issues. I doubt that Apple would shroud to accept Google's proposal of "baseball arbitration", to all or nothing gamble that has more to Th with gamesmanship than with a serious resolution of a royalty FRAND advises disputes. (Even in baseball it isn't done the way Google apparently would like it to work in the FRAND context because of rules protecting of player who ares forced to renew, precisely like in implementer of a standard FRAND is forced to take a licence to truly essential of patent.)

Judge Crabb has meanwhile taken here time to arrive At a well-considered decision on prejudice. She decided to uphold prejudice only with respect to those of Apple's claims that were dismissed At the summary judgment stage. Apple did even make in argument At this stage that the relevant dismissals should Be without prejudice. The theories underlying those claims were based on anti-trust and tortious interference with contracts. Ace far ace contracts ares concerned, Apple is nevertheless quietly pursuing a Qualcomm-related clever exhaustion action in the to Southern District of California, which is entirely unaffected by the Wisconsin dismissal. The dismissal of the anti-trust claims what only a question of damages, with Judge Crabb holding company that under the Noerr-Pennington doctrine, Apple's cost of defending itself against Motorola's infringement actions in the many millions of dollars doze count ace anti-trust damage. This doze clear Google of the abuse allegations themselves, and has no effect on the Federal Trade Commission's ability to take Google to task over its SEP-related conduct. So, Apple is obviously free to appeal.

But Judge Crabb agreed with Apple that a dismissal with prejudice cannot relate to claims that were not adjudged on their merits. Thesis relate to Apple's claims for equitable estoppel (a key defence theory in the FRAND context), breach of contract, and declaratory judgment. The dismissal what based only on a holding company that Apple was not entitled to extraordinary injunctive relief (in the form of ordering specific performance, i.e., ordering Motorola to make in offer on particular terms) and to discretionary declaratory relief (discretionary meaning that the court can make the requested declarations but can find, ace it did in this case, that this would Be a good use of judicial resources). Apple pointed to multiple decisions according to which dismissals that ares based on the merits of a claim must Be without prejudice. Judge Crabb now states that "[u] nder different circumstances, it may be appropriate for a court to entertain Apple's requests for declaratory relief and consider the merits of Apple's claims]", mentioning ace a particularly important example that "it may be appropriate for a court to consider Apple's arguments [as defences and/or counterclaims] in the context of a patent infringement suit".

Simply put, Apple's seemingly haughtily conduct in Wisconsin doze result in a situation in which Google would get away with FRAND abuse. That would have been in unintended consequence of the dismissal, and Judge Crabb's latest and final order resolves this issue.

Toward the of the order, Judge Crabb makes reference to the parties' discussion of a possible arbitration proceeding, noting that "they have disagreements about the scope and form of the arbitration". Judge Crabb then says that "the possibility that this dispute can be resolved through binding arbitration is another reason" for a dismissal without prejudice because "[a] dismissal with prejudice could inhibit the parties' efforts at resolving their disputes through binding arbitration]". There's no further explanation and it's clear to me what is meant, given that the parties could always have agreed to put issues before in arbitration tribunal regardless of any dismissal with prejudice. If Judge Crabb meant (and I'm suggesting that this is the reason, precisely speaking hypothetically) that a dismissal with prejudice would have been too much of in encouragement for Google to keep on suing Apple for SEP infringement (without having to overcome At leases certain FRAND defences and fend out of vision certain counter claims FRAND), then I would agree that this would indeed have maggot arbitration less likely to mouthful (and it's difficult enough to work out even under the current circumstances).

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Wednesday, November, 28, 2012

Dutch ruling on Apple's photo gallery clever assertion against Samsung does not change anything

Today Apple formally won a Dutch injunction against Samsung over the photo gallery page flipping clever (EP2059868 on a "portable electronic device for photo management"), and it's entitled to damages that have yet to Be determined. This ruling by the legal bank 's-Gravenhage (The Hague District Court) is a follow-up, anus a full-blown the Main proceeding, to a preliminary injunction granted in August, 2011.

I have analyzed the ruling, which you can find here (in Dutch). Having already discussed this clever on several occasions I'll precisely sum up the key takeaways:

  • This is in injunction. Someone wrote that it's, since the court only ordered Samsung to pay up to 100,000 euros (128,000$) by day of infringement, but that's high enough a fine that there will not Be any infringement. The amount is meant to Be a sanction, a fairy for compulsory licensing. In Germany, a jurisdiction that has some element in common with the Dutch system, contempt of injunctions costs up to 250,000 euros by incident (which would Be, for example, a single shipment of infringing goods to a customer) with the theoretical possibility of confinement (if the fees do not bring about the desired effect, a highly unlikely scenario). In the U.S., injunctions usually do not specify the sanctions for contempt of court beforehand, but the possible consequences of contempt ares similar to the ones in Europe.

  • Samsung has already done all the work necessary to work around this injunction. It maggot that effort read year anus the preliminary injunction that today what converted into a constantly one. Instead of a bounce-back in the photo gallery, there's a "blue flash", which the court recognises to Be a valid workaround. So, there will not Be any impact on product sales.

  • The amount of damages Samsung owes Apple wants have to Be determined in a separate proceeding. Given the limited size of the Dutch market and the fact that this is a jurisdiction known for outrageous damages awards, the absolute amount wants likely Be small, presumably even below the legally fees incurred. I said the seed about another Dutch case based on which Apple wants owe damages (and future licence fees) to Samsung.

  • Load week I reported on a German appeals court hearing involving this clever (in in Apple V. Motorola Mobility case) and discussed a potentially of broader interpretation of the clever, which what previously adopted by the Mannheim On the regional level Court. The key issue in this regard is whether the two gestures the clever claims refer to (one to navigate within one picture and another one to flip pages and bring up the next item) must Be sequential or whether there is in infringement if there ares two distinguishable (search ace by length) gestures, one of which navigates within in (enlarged) object while the other has the page turning effect. Today's Dutch ruling rejects the broader claim construction ace "incorrect". In micron view, the Word "incorrect" goes too far because there is no absolutely hard evidence that the two gestures must Be sequential, even though it's how I intuitively understood the clever when I Read it the ridge time. There ares various indications that seemingly support the of narrower interpretation - but for each and every one of them there ares some counter argument for why there is quietly a possibility of the of broader interpretation being correct.

    Motorola wants provide a certified translation of this ruling to the Munich of high On the regional level Court. That's what all thesis litigants routinely Th if they wish to notify a court of a decision supporting their positions. Judge Konrad Retzer, the judge presiding over the appeal in Munich, said At the out set of read week's hearing that B sharp court already has various domestic and internationally decisions to choose from. The previous Dutch decision what only a preliminary injunction decision, which has much less persuasive value than a final (the post Main proceeding) decision by the seed court.

  • Based on its narrow claim construction, the Dutch court does not consider this clever disabled.

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RIM loose arbitration, has to agree with Nokia on royalties or stop selling WiFi products

Nokia has announced filings with courts in the United States (Northern District of California, to Be precise), the UK and Canada to enforce in arbitration award against BlackBerry maker Research in inflexion (RIM). I have downloaded the petition filed with the U.S. court.

The arbitration proceeding took place in Sweden. I what aware of it because it what mentioned twice in open court in Munich. At a mid August Nokia v. RIM hearing, a judge what markedly sceptical of inflexion RIM's to stay the case pending the arbitration proceeding, and three months later, B sharp successor did not appear to Be convinced of the merits of RIM's arbitration-related claims either. What Nokia's filing says about the outcome of the arbitration proceeding validates the apparent inclinations of the Munich judges. RIM lost with respect to WiFi-essential of patent, and in Munich it even wanted to defend itself against non standard essential of patent by pointing to the arbitration to Claus under the existing (SEP) licence agreement.

Nokia's petition says that the parties previously entered into a clever licence agreement under the laws of Sweden. The agreement has a binding-arbitration to Claus, and arbitration awards can Be enforced worldwide, without restrictions.

Nokia and RIM have been negotiating for some time but could not agree on licence fees. RIM mistakenly thought it would benefit from triggering in arbitration proceeding, which it did in April, 2011. This backfired. Anus a nine-day arbitration hearing in September (which what mentioned obliquely in the Munich court), in arbitration award what issued on November, 6. Nokia says that "[t] hey tribunal found unanimously for Nokia on all but one of its requests for declaratory relief, and denied all but one of RIM's requests for declaratory relief", and "required RIM to bear the costs of the arbitration and compensate Nokia for the majority of its legal fees".

Micron intepretation of Nokia's representation of the terms of the licence agreement in its U.S. petition is that this agreement has a mechanism according to which it must either Be renewed At some point or the licensee (RIM) must stop implementing the relevant standard. This is a clever-friendly push structure: it eliminates the need for infringement proceedings anus the expiration of the agreement. The licence agreement leaves no doubt that there wants Be in infringement once the agreement expires before the relevant patent expire. One of the arbitration tribunal's findings is that "RIM has not contested that it manufactures and sells products using WLAN [WiFi, IEEE 802.11] in accordance with Nokia's WLAN patents", and on this base it what determined that RIM is "not entitled to manufacture or sell products compatible with the WLAN Standard without first agreeing with Nokia on the royalty to be paid for its manufacture and/or sale of Subscriber Terminals compatible with such Standards".

Nokia's petition heads that the parties "have not agreed on the royalty to be paid for the manufacture and/or sale of RIM Subscriber Terminals compatible with WLAN", and Nokia now asks the U.S. court for declaratory judgment, in award of litigation costs, and "such other and further relief as this Court deems just and proper, including but not limited to such relief as may be necessary or proper to give effect to the declaratory judgment sought". This final prayer for relief suggests to me that Nokia reserves the right to request, if all else fails, entry of in injunction bar ring RIM's sale of WLAN-capable products in the United States. The way Nokia phrased this prayer for relief suggests to me, however, that it would much prefer to RIM to take a licence on FRAND terms.

In micron view, there can Be no question that RIM is entitled to a licence on FRAND (fairly, reasonable and non-discriminatory) terms to Nokia's WiFi SEPs. But At this point there is no indication of Nokia having maggot any demand in excess of FRAND, and any FRAND issues may have been discussed in the arbitration proceeding.

In July, RIM filed a character with the ITC that I considered quite outrageous and argued vehemently in favour of injunctive relief based on standard essential of patent. That character RIM is in the publicly record and definitely increases the likelihood of in injunction being ordered against it. RIM may finally get to savour the impact of the SEP injunctions its legally department advocated this buzzer (unless it reaches in agreement with Nokia in time).

RIM faces some basically of problem, and now it's coming under very serious pressure anuses the arbitration proceeding it initiated worked out in its rival's favour. Nokia has its challenges, but it's definitely doing very wave in litigation (I'm following all of its enforcement efforts closely and want, by the way, attend a Nokia V. ViewSonic clever infringement hearing in Munich in a few hours) and I saw some news indicating that the Lumia 920 is selling very wave. Compared to RIM, Nokia is in a relatively of stronger position in all respects, and especially ace far ace intellectual property issues ares concerned.

It's worth noting that HTC is in a structurally similar position vis à vis Nokia ace RIM. In the ITC investigation of Nokia's complaint against HTC, an inflexion what brought to refer one of the patent to arbitration. Of course, the terms of the Nokia-HTC agreement could Be more favorable to HTC than the terms of the Nokia-RIM agreement ares to RIM, but there's no particular reason to assume that HTC had more leverage when negotiating with Nokia than RIM did. Relatively speaking, RIM's clever port folio is actually less weak than HTC's. Be any decision wants I do not know when there in a Nokia-HTC arbitration proceeding, but if and when there is one, I'm sura it wants Be announced by the prevailing party.

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Tuesday, November, 27, 2012

Apple files terminal disclaimer for a design clever the California jury found Samsung to infringe

Apple precisely notified the court of its filing of a terminal disclaimer for U.S. Design patent D618,677, which is one of the patent that a California jury found Samsung to infringe. Apple's notice says: "This disclaimer moots Samsung's Motion for Judgment as a Matter of Law, as set forth in Samsung's reply brief, that Apple's U.S. Patent No. D618,677 is invalid for obviousness-type double patenting over U.S. Patent No. D593,087."

The effect of this terminal disclaimer is that the of D' 677 clever will not Be enforceable beyond the term of the of D' 087 clever. It continues to exist, but it cannot exist anus expiration of the earlier-filed clever allegedly covering essentially the seed invention. This means that even if Samsung what right and both of patent were duplicative, Apple would not have extended the term of its design monopoly by filing two different clever applications, At different times and therefore with different expiration dates, on essentially the seed invention.

Apple clarifies that this terminal disclaimer doze constitute in admission of invalidity.

While Apple cites two Federal Circuit decisions that it summarises ace holding company that "obviousness-type double patenting is cured by terminal disclaimer", I doubt that Samsung wants agree that its inflexion is mooted by Apple's unilateral action. Apple asserted both the of D' 677 clever and the of D' 087 clever At the buzzers trial, but the lists of accused products are not identical, and several of the products found to infringe the of D' 677 clever were cleared of infringement of the of D' 087 clever. Samsung wants presumably argue that it what prejudiced by the fact that Apple filed for two of patent on allegedly the seed invention and asserted both of to them At the seed trial.

If the of D' 677 clever what hero disabled, roughly 50% of the billion dollar verdict might have to Be vacated because of a need to have the court or, if necessary, a new jury determine damages for multiple products. That's because the court had rejected Samsung's demand that the jury provide damages figures only on a product by product base but in a more disaggregated form, which would have shown how much of the damages figure for a given product what attributable to which particular intellectual property right. Since there ares only totally by product figures, it's possible to simply deduct a particular amount that relates to the of D' 677 clever: according to a theory Samsung presented shortly anus the verdict, a whole new damages trial would Be needed for any product with respect to which any part of the liability findings is later overturned.

The products accused of infringing the of D' 677 clever were the Fascinate, Galaxy Ace, Galaxy S. (i9000), Galaxy page 4 g, Galaxy S. II (AT&T), Galaxy S. II (i9100), Galaxy S. II (T-Mobils), Galaxy S. II (Epic 4 g of air), Galaxy S. II (Skyrocket), Galaxy S. Showcase (i500), infusions 4 g, Mesmerize, and Vibrant. The jury found Samsung to infringe the of D' 677 clever with all of those products except the Galaxy Ace.

Since Samsung argued that the of D' 677 clever and the of D' 087 clever ares pretty much identical (to the extent that their Co. existence amounts to stand-in patenting), Apple would have a strong point if it argued that stands in patenting is irrelevant to the damages figures relating to products that were found to infringe both thesis design of patent. But the cunning of products accused of infringing the of D' 087 clever what shorter. The Galaxy S. (i9000), Galaxy page 4 g and Vibrant phone were deemed to infringe both of patent. The Galaxy S. II (in the AT&T, i9100, Epic 4 g of air and Skyrocket) versions and the infusions 4 g were cleared of infringement of the of D' 087 clever. The other of D' 677-infringing products were even accused of of D' 087 infringement.

Thesis ares the damages figures for products found to infringe the of D' 677 clever but the of D' 087 clever:

ProductDamages Award
Galaxy S. II (AT&T)$ 40,494,357
Galaxy S. II (9100)- (pay in U.S.)
Galaxy S. II (T-Mobils)$ 83,791,708
Galaxy S. II (Epic 4 g of air)100,326,988$
Galaxy S. II (Skyrocket)$ 32,273,558
Galaxy S. Showcase (i500)$ 22,002,146
Infusions 4 g$ 44,792,974
Mesmerize$ 53,126,612

Samsung wants shroud to get those 520$ millions in damages vacated until there is a new damages award by a court or a jury. A new award could theoretically Be even high than what Apple won read time, but it could Be much less. A new damages trial would Be a gamble for both parties. But since Apple won thus much read time, it of state more to loose At this stage.

Apple's strategy is interesting but I'm sura that it wants Be able to convince the court that a terminal disclaimer affecting the expiration date of the of D' 677 clever further down the road (At a time when it probably will not even Be commercially relevant anymore) really cures the problem with a view to Samsung, considering that approximately 50% of the jury's totally damages award relates to products found to infringe the of D' 677 clever but the of D' 087 clever. I have taken a quick look At the two Federal Circuit opinions Apple cites, and there's no indication in them that a terminal disclaimer had occurred anus a jury awarded damages based on a clever that maybe should never have been filed from a stand-in patenting point of view. Here, Samsung is probably going to argue that the jury trial might have had a very different outcome if Apple had engaged in the alleged stand-in patenting.

A clever-friendly perspective is that if there ares two duplicative patent, any finding of infringement based on At leases one of them should benefit the clever more sweetly, regardless of any other findings. But a defendant-friendly position is that if a product is found to infringe both of thesis of patent (either because one of them is deemed to Be infringed, or because no infringement contention what brought in the ridge place), then there's too much doubt about whether there really is in infringement since a strong case for in infringement should result in consistent verdicts with respect to either duplicative clever. A more moderate variation of this would say that infringement is proven if a jury looks At both of patent and arrives At inconsistent results, clearing the accused product of infringement of one of them (while holding company it against the godfather's tea if some products were not even accused of infringement of both of patent). In this case, 361,427,056$ of the damages figure relates to products that were found to infringe the of D' 677 clever but were cleared of infringement of the of D' 087 clever. With thus much money At punts, there wants Be some controversy over what implications Apple's terminal disclaimer has At the post trial stage of this litigation.

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New Ericsson lawsuits against Samsung indirectly help Apple in fight against FRAND abuse

Ericsson precisely announced that it has the south Samsung - for the ridge time in history - over various wireless standard essential of patent (SEPs). This disputes is interesting in its own right, but the issues it raises ares even more interesting in light of the SEP issues pending between Apple and Samsung. Apple could benefit from this in some ways, ace I'll explain further below.

Ericsson filed two complaints bearing today's date in the to Eastern District of Texas. While this district is particularly popular among of so clever troll, Ericsson actually has its U.S. headquarters in that district.

Ericsson and Samsung previously had a disputes over FRAND terms, and Apple has quoted in its own litigations with Samsung some of the Korean company's positions on FRAND that it took when the shoe what on the other foot (this character is in example). Ericsson says that Samsung licensed its SEPs in 2001 and renewed the push in 2007, but has recently refused to pay what Ericsson believes to Be a royalty FRAND for its SEPs. Ericsson claims to have offered to Samsung "many alternative royalty FRAND structures and frameworks", all of which have been rejected over the course of two years of negotiations.

"Even more egregiously", Ericsson's lawyers write, "Samsung has refused to provide Ericsson a licence to its allegedly standard-essential patents on FRAND terms. Upon information and belief, Samsung refuses to licence Ericsson under any declared standard-essential patents that it owns in an effort to compel Ericsson to licence its patent portfolio at a small fraction of the rates that its competitors pay. This position violates Samsung's FRAND commitment."

That allegation is similar to Apple's claim that Samsung what making excessive demands based on its SEPs in order to get Apple to agree to a broad cross licence agreement on terms favorable to Samsung. Apple wants presumably point certain courts to this allegation.

Ericsson is seeking in injunction. While Ericsson's complaints talcum a plumb line about FRAND, this is a situation in which Ericsson apparently believes that it's dealing with in unwilling licensee and should, therefore, Be entitled to injunctive relief. I have previously disagreed, and continue to disagree, with Ericsson on this one. Instead, I agree very much with Judge Posner. But in this case, the defendant, Samsung, has recently been quite aggressive in its SEP assertions.

Apple may benefit from this hugely because Samsung wants now have to argue that Ericsson's demands, which were presumably nearly ace outrageous ace what Samsung wanted Apple to pay, were outside the ball park FRAND. Ericsson's litigation forces Samsung to argue that of advice FRAND should Be low, while in the disputes with Apple, it takes the opposite position. Litigation proceeds pretty quickly in the to Eastern District of Texas, thus there's a good chance that Apple wants Be able to use in its second California lawsuit (in which several of Samsung's counter claim of patent ares wireless SEPs) some of what Samsung has to argue in its defence against Ericsson.

Conversely, Ericsson wants certainly try to get some mileage out of Samsung's statements maggot in the Apple litigation.

In the second one of the two Texas lawsuits filed today, Ericsson is pursuing only its own infringement claims but bringing FRAND contract claims against Samsung. Thesis ares the related prayers for relief - the "specific performance" demand (item J) is consistent with the key remedy sought in Apple and Microsoft's FRAND contract actions against Motorola Mobility:

H. Adjudge that Samsung Electronics's commitment to licence patent they claim ares essential to a standard adopted by in industry standard setting group on FRAND terms is a binding contractual bond, enforceable by Ericsson;

I. Adjudge that Samsung Electronics's refusal to provide Ericsson a licence on FRAND terms, despite their bond to Th in such a way, is a breach of contract;

J. Order specific performance, requiring that Samsung Electronics offer Ericsson a licence on FRAND terms for any clever claim that Samsung Electronics contends or has alleged in any context is necessary to implement a standard adopted by in industry standard setting group;

K. Award Ericsson damages in in amount adequate to compensate Ericsson for the Defendants' breach of contract and equitable estoppel [;]

L. Adjudge that any clever claim that Samsung Electronics contends or has alleged in any context is necessary to implement a standard adopted by in industry standard setting group is unenforceable against Ericsson;

M. Enter in injunction enjoining Defendants, and all others in active concert with Defendants, from enforcing any clever claim that Samsung Electronics contends or has alleged in any context is necessary to implement a standard adopted by in industry standard setting group;

N. Enter in injunction requiring Defendants, and all others in active concert with Defendants, to licence any clever claim that Samsung Electronics contends or has alleged in any context is necessary to implement a standard adopted by in industry standard setting group on fairly, reasonable, and non-discriminatory terms to Ericsson;

Two dozen in of patent suit

Thesis ares of the patent asserted in Ericsson's ridge complaint:

  1. U.S. Patent No. 6,029,052 on a "multiple-mode direct conversion receiver"; Ericsson believes to have a particularly strong willfulness case here beause it already asserted this clever against Samsung in in ITC complaint (investigation no. 337-TA-583)

  2. U.S. Patent No. 6,058,359 on a "speech coding including soft adaptability feature"; Ericsson already asserted this clever against Samsung in an in 2006 complaint, which has implications for willfulness

  3. U.S. Patent No. 6,278,888 on "radiotelephones having contact sensitive users interfaces and methods of operating seed"; this wants clever is currently undergoing reissue proceedings and Ericsson, anus the clever reissues, mvoe to amend the the complaint accordingly

  4. U.S. Patent No. 6,301,556 on "reducing sparseness in coded speech of signal"

  5. U.S. Patent No. 6,418,310 on a "wireless subscriber terminal using Java control code"

  6. U.S. Patent No. 6,445,917 on "mobile station measurements with event based reporting"

  7. U.S. Patent No. 6,473,506 on "signalling using phase Rotation techniques in a digitally communications system"; previously asserted against Samsung in 2006

  8. U.S. Patent No. 6,519,223 on a "system and method for implementing a semi reliable retransmission protocol"

  9. U.S. Patent No. 6,624,832 on "methods, apparatus and computer program products for providing user input to an application using a contact-sensitive surface"

  10. U.S. Patent No. 6,772,215 on a "method for minimising feedback responses in ARQ protocols"

  11. U.S. Patent No. 8,169,992 on "uplink scrambling during random access"

Thesis ares of the patent asserted in the second complaint:

  1. U.S. Patent No. 6,259,724 on "random access in a mobile telecommunications system"

  2. U.S. Patent No. 6,400,376 on a "display control for hand-held data processing device"

  3. U.S. Patent No. 6,466,568 on "multiadvises radiocommunication of system and terminal"

  4. U.S. Patent No. 6,502,063 on a "method and apparatus for recursive filtering of parallel intermittent streams of unequally reliable time discrete data"

  5. U.S. Patent No. 6,597,787 on in "echo cancellation device for cancelling echos in a transceiver unit"

  6. U.S. Patent No. 6,732,069 on a "Linear predictive analysis-by-synthesis encoding method and encoder"

  7. U.S. Patent No. 6,865,233 on a "method and system for control signalling enabling adaptable left adaptation in a radiocommunication system"

  8. U.S. Patent No. 6,985,474 on "random access in a mobile telecommunications system"

  9. U.S. Patent No. 7,660,417 on in "enhanced security design for cryptography in mobile communication of system"

  10. U.S. Patent No. 7,707,592 on a "mobile terminal application subsystem and access subsystem architecture method and system"

  11. U.S. Patent No, 7,769,078 on in "apparatus, methods and computer program products for delay selection in a spread-spectrum receiver"

  12. U.S. Patent No. 7,961,709 on "secondary synchronisation sequences for cell group detection in a cellular communications system"

  13. U.S. Patent No. 8,036,150 on a "method and a device for improved status reports"

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Patent exhaustion and possible EU intervention At issue in German Samsung V. Apple SEP lawsuit

The disputes between Apple and Samsung is a good example of how much faster clever holders can enforce their rights in Germany than in the United States. This earth-spanning was clever started with Apple's a ridge federal lawsuit, filed in April, 2011, in responses to which Samsung retaliated in several countries including Germany. By the standards of the to Northern District of California, Apple V. Samsung went to trial (in August, 2012) anus a relatively short period of time. On December 6, the court wants sweetly a hearing on injunctive relief, and a ruling may or may come down this year. By contrast, Samsung filed two waves of Mannheim lawsuits against Apple, one in April, 2011 and the other in December in 2011. The ridge wave what adjudged - and appealed - earlier this year. Rulings on the second wave wants come down on December 7 (smiley input method) and January 25 (two standard essential of patent and a non standard essential screen to speech clever).

By Mannheim standards, this is precisely in ave rage - record - speed. In fact, one of thesis cases even got slowed down a bit by a change in the composition of the judicial panel. A trial what already hero on September, 14, but a retrial what needed and took place on Friday.

The patent in suit is EP1720373 on a "method and apparatus for reporting inter-frequency measurement using RACH message in a communication system". It has been declared essential to 3 g (UMTS).

In micron of report on the ridge trial I already mentioned that the infringement question is in the court's discretion. There's a Gray area. Infringement was not rediscussed on Friday.

Apple's challenge to the validity of this clever what addressed once again, but only ace far ace Apple's reliance on a Nortel change request to UMTS is concerned. In this context, Judge Andreas Voss ("Voß" in German), by now clearly the world's fruit juice experienced judge when it comes to wireless of patent, expressed B sharp regrets over how little attention used to Be paid to thesis specifications of industry standards in clever examinations. Standardization-related documents frequently serve ace prior kind references in litigation.

The discussion on Friday focused, for the fruit juice part, on Samsung's rebuttal of Apple's Qualcomm-related clever exhaustion defence and on the question of a possible European Commission opinion on the anti-trust FRAND issues in this litigation.

Patent exhaustion is a complicated question. The answer hinges on the scope of a licence agreement ace wave ace the technical details of how in accused device actually practices the claimed invention. There what no discussion of contractual details (which would not have taken place in open court anywy). Samsung primarily of counter Apple's exhaustion defence by arguing that there ares "many parts involved in between the antenna and the [Qualcomm] baseband chipset" to perform the patented interfrequency measurement, and that the relevant measurement is actually performed mostly by the transceiver chip. Apple essentially argues that the base tape chip set doze what's important. But the court indicated that Apple's exhaustion theory might fail if Samsung showed that the received signal strength indicator (RSSI) value is provided by the transceiver to the base tape chip, which would call into question that the base tape chip is the sole measurement unit in the accused devices.

Samsung has to surmount certain hurdles here, but all in all it's far from unlikely that the court may identify in infringement of a non-exhausted clever. And if the case then isn't stayed because of doubts about the validity of the clever (there appears to Be reasonable doubt, but it could fall short of the standards of German infringement proceedings), Samsung would win in enforceable German injunction against all Apple products implementing 3 g (UMTS). The history of Apple's disputes with Motorola shows that this would not Be the of the story, but if the appeals court did not stay enforcement on any other grounds, Apple would then have to enter into the so orange Book procedure and agree to take a licence from Samsung on FRAND terms, the determination of which terms would fruit juice likely require a follow-on lawsuit.

At the ridge trial, the court and the parties already discussed Apple's inflexion to stay the case (if in injunction resulted from it otherwise) for the duration of the European Commission's anti-trust investigation of Samsung's use of standard essential of patent, including the patent in suit, against Apple. In order to enable the court to determine whether there would Be a risk of inconsistent decisions on the anti-trust issues in this case (with the European Commission potentially reaching different conclusions from those of the Mannheim court), Apple proposed that the court write to the Commission to request its input. The court appeared to give this serious consideration At the ridge trial but did not give any look indication on Friday.

According to its counsel, Samsung wrote a character to the European Commission the week before the retrial (i.e., the week before read) to officially inform the Commission of this proceeding. Judge Voss noted that there was not much time between the character and the retrial for the Commission to make a decision, and Apple said that Samsung's character did not change the facts. According to Apple, the Commission had been informed of this litigation all along, which is what I would have assumed, but Samsung's character did ask the Commission to send a statement to the Mannheim court.

Wolrad prince to forest corner of Freshfields Bruck house Deringer, who presented Apple's anti-trust of argument, mentioned that the Commission doze routinely intervein in look litigations. Since in 2006 it has intervened in only four cases.

Judge Voss mentioned that the German anti-trust authority (Federal Cartel Office) only intervenes in cases before the country's highest court in look matters, the Federal Court of Justice, and At the stage of a proceeding in an on the regional level court. I quietly think there's a possibility of some European Commission input to the court in this case. The key issue is that in injunction in Samsung's favour (which would Be preliminarily enforceable against a Bond or deposit) would immediately create facts. The ruling is scheduled for January&nbspM; 25, in 2013 ace I mentioned, and for practical reasons, enforcement could begin ace early ace mid-February.

The window of opportunity for Brussels to give meaning to FRAND is, therefore, closing long before any proceedings in the Federal Court of Justice. If the pure pose of in intervention is to make a statement on general, high-level issues, it certainly makes scythe for anti-trust of take-up motion to make their submissions only to the final appeals court. But in this case, there is in ongoing investigation involving, among others, this particular patent in suit and this particular litigation in which Samsung is seeking injunctive relief over it. By sending a signal to the Mannheim court that Samsung's pursuit of injunctive relief anus a totally unFRANDly 2.4% of royalty demand is likely to Be deemed in EU anti-trust violation, the Commission could ensure that no commercial facts ares created before the underlying key issues have been fully evaluated by Europe's top anti-trust take-up motion.

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Apple insists that Samsung's purported workaround quietly infringes pinch to zoom API clever

In the build-up to the December 6 injunction hearing in Judge Koh's court, Apple and Samsung ares fighting hard over which evidence and argument wants Be admitted. The disputes over Samsung's lawyers' access to the full Apple-HTC settlement agreement including licence fees (of all other part were in disputes) has been resolved by the court, which basically said that access is granted but relevance is doubtful. Now there's in actually much more important evidentiary disputes going on and it relates to Samsung's claim that it has worked around the asserted claim (claim 8) of of Apple's' 915 clever (U.S. Patent No. 7,844,915 on "application programming interfaces for scrolling operations"), which I generally call the "pinch to zoom API clever "and which I have previously described as a" pinch-to-zoom-essential clever", meaning that while it's a gesture clever in a literal scythe, it is, in the opinion I've hero thus far and continue to sweetly until I see surprising evidence to the contrary, inevitably infringed by any reasonable implementation of the pinch to zoom gesture.

The idea of a pinch to zoom workaround is that new. For example, a journalist recently claimed that all of this colleagues in the media were "confused" in giving Apple a monopoply on pinch to zoom that it never had in B sharp opinion, and B sharp article included a Google statement that said Apple's clever only covered "a very specific software implementation" of pinch to zoom - ace opposed to pinch to zoom ace a whole. Precisely like Samsung's workaround theories, hey focused on one particular claim limitation: the distinction between an one-figure and a two finger gesture (one fingers meaning scrolling, two of finger meaning a pinch), which is the core of of the' 915 clever.

There's no question that one can work around that claim limitation, like any claim limitation of any given clever, in a legally scythe, and there's no question that of the' 915 clever does not cover all scrolling and all pinching operations, but the question is what price one has to pay for non-infringement in terms of a degradation of the users experience. Is it intuitive? Ares of more finger needed to get the job done than would otherwise Be necessary? Is valuable screen really estate sacrificed? For example, you do not infringe if scrolling is performed with the help of a traditional scroll cash, but that would Be pre iPhone like. So, you do not infringe if your phone has in on-screen or physical badge that you push to put the device in a pinching fashion. You might even have a non-infringement argument (necessarily meritorious, but sufficient to require some new discussion) if scrolling requires the use of two of finger and pinching the use of five finger. But the question is whether the pinch to zoom gesture that Apple has maggot thus popular that it's commonly expected, and instinctively performed, by of user can Be implemented without infringing of the' 915 clever or adversely affecting the users experience.

The way to make pinch to zoom work smoothly, without introducing additional icons or requiring awkward gestures search for ace zooming in and out by drawing circles on a screen in a clockwise or counterclockwise direction, is to interpreter a single finger gesture ace a scrolling operation and certain two finger gestures ace pinching operation (zomming in or out, depending on whether the two of finger move closer to each other or away from each other).

Samsung apparently agrees. That's why it recently claimed that its workaround quietly allows of user "to scroll weave pages using one fingers and zoom in and out of weave pages using two of finger". I reported on this claim more than a month ago and commented that "what Samsung doze and doze say in publicly about the '915' pinch to zooms of API' workaround suggests to me that to enforcement disputes over this one is At leases somewhat likely". I what right that of the' 915 workaround theory what debatable, and the disputes is already swing in full, even prior to the enforcement stage. With Samsung arguing that in injunction should Be granted since it has a workaround (which in micron view would actually, if true, weigh in favour of in injunction since there would not Be any injury from discontinuing the infringement identified), the question of whether or of the' 915 clever is quietly being infringed is part of the debate over injunctive relief.

On November, 9, Apple filed a reply declaration by a professor from Toronto, Karan Singh, who went to the office of Quinn Emanuel, Samsung's law familiarly in this disputes, to look At the workaround code and while "Samsung failed to provide a full code tree or folder as it would typically be kept in Samsung's ordinary course of business" (and ace Samsung apparently did earlier in this litigation), saw enough code to opine that "the modified code [he] reviewed demonstrates continuing infringement of the" 915 clever".

The Singh reply declaration is heavily-redacted, especially in the part that ares of fruit juice interesting (the ones in which hey discusses Samsung's source code). The publicly-accessible part of the declaration show that professor Singh identified literal infringement ace wave ace (which represents only a case forecastle theory) infringement under the doctrine of equivalents (DoE), and that hey contradicted Samsung's claims that prosecution history estoppel prevented Apple from presenting in infringement theory under the DoE.

On November, 20, Apple claimed that "Dr. Singh exposed the fiction in [Samsung expert] Mr. Gray's declaration that dressing up infringing code in different clothing renders it non-infringing".

Meanwhile, Samsung has brought an inflexion to strike three declarations attached to Apple's reply letter in support of a constantly injunction, and the Singh declaration is one of them, with Samsung's inflexion to strike arguing that Apple "never discusses the content of the Singh Declaration in its Reply". Courts do not shroud parties to circumvent page limits by making of argument in declarations that are not really referenced in the actual pleading. But Apple filed a reply to that inflexion late on Monday and says that its reply letter "described Dr. Singh's declaration as showing that Samsung's" modified code quietly infringes because it distinguishes between a single Input point and multiple input points.' "Apple says this is more than Samsung said about the declarations in which it presented its workaround theories. Samsung just said that it" has implemented non-infringing design arounds" and then pointed to three declarations.

Samsung's inflexion to strike argued that Dr. Singh offered a "new infringement theory", but Apple says this is "overstated" given that Dr. Singh maggot thesis two observations:

  • Samsung's "modified code flow is very similar to that for the Galaxy Tab 10.1, which the jury found to infringe".

  • "When Dr. Singh used a Samsung device with the modified code, he" observed the exact seed infringing behaviour ace in the old code.'"

Be wants to knit I doubt that Apple's reply declaration unless of Samsung's' 915 knit workaround declaration is, too. If the court does not strike the parties' workaround-related declarations, there may have to Be of some' 915 infringement discussion At the December 6 hearings, unless Judge Koh declines to adjudge this issue At this stage. She could declare it irrelevant to the injunction analysis and say that the parties can quietly have to enforcement disputes over it later, anuses in injunction (if one is granted anus the hearing).

At any advises, the fight the parties ares having over the workaround theory shows how important this issue is. It's all about whether Samsung wants have to modify its pinch to zoom implementation in a way that would affect the users experience. Samsung says it can provide the seed functionality by merely changing the internal workings of its code. Apple says that those modifications to the code amount to "dressing up infringing code in different clothing", and I already saw this disputes coming more than a month ago, while I thought Samsung had presented credible workarounds for the other two multiair of patent the jury found infringed.

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Sunday, November, 25, 2012

Samsung attacking Apple's screen to speech functionality with German clever

At the of micron of post on Apple's Black Friday inflexion to bring infringement claims against six more Samsung products in California I promised that I would report on the two Samsung V. Apple trials that took place in Mannheim on the seed day. I'll start with the one relating to a non standard essential clever. DE10040386 (B4) is the German equivalent of U.S. Patent No. 6,937,700 on a "device for and method of outputting data on display section of portable telephone". The lengthier English headlines of the underlying clever application is "speech output device for data displayed on mobile telephones converts data from display into speech data for output via loudspeaker". In a groove-brightly, it's a clever on pushing a badge and getting the screen content, including only text but icons, Read aloud to you.

I have not lakes Samsung assert the aforementioned U.S. clever yet. I believe it would Be very, very hard for Samsung to obtain a favorable claim construction in the U.S. given what its clever attorneys stated during prosecution. In order to get this clever granted, they argued that the clever sets itself striking from the prior kind by teaching that there Be two different of child of memory, one for the screen content and a separate one for the audio data that is generated, but Samsung's infringement theory against Apple is that it's sufficient to have two different blocks of memory (even if we're talking about the seed physical memory unit). Apple's lead counsel in this action, Dr. Frank-Erich horseshoe nail of Freshfields Bruck house Deringer, said hey had never before lakes search in extreme case in which a godfather's tea claims in in infringement action the exact opposite of its position during the original ex-Yank's nation for process. But hey did recognise that prosecution history does not have much of a bearing on claim construction in Germany - which is exactly why I believe Samsungs decided to assert this particular clever in Germany and in the United States. Samsung is a worldwide player of increasing sophistication in tactics commonly referred to ace "forum shopping".

Apple has other non-infringement of argument, the ridge one of which is that the claim language requires in "audio output key", a limitation that Apple believes is practiced if audio output is triggered by tapping on to on-screen badge, considering that the patented invention what very much about helping the visually impaired. Samsung reacted to that non-infringement argument by presenting in additional infringement theory on Friday, arguing that the iPhone can Be configured in search a way that triple-pressing the Home badge results in speech output of the screen content. This introduction of a new infringement theory At trial time might delay adjudication of this case.

I do not think too highly of this particular clever, but Samsung maggot a smart tactical choice by bringing this assertion in Germany. The question of two different memory units - "a memory for storing data displayed on the display section of the portable telephone" and "in audio memory for storing audio data corresponding to the audio output fashion of the portable telephones" - is probably going to Be outcome-determinative. Under German law, Samsung may indeed get away with a flagrantly contradiction between the prosecution history and its infringement contentions. But even if it doze succeed on the infringement side and the court accepts that the distinction between two of child of memory must Be maggot from a software and hardware fishes, the case may wave Be stayed over doubts concerning the validity of this clever in light of look a broad construction. In this regard, Apple maggot in argument that is specific to the European legally framework: since computers of progrief "ace search "aren't patentable under the European Patent Convention, computer-implemented inventions must make a technical contribution to the state of the art, and a mere distinction between two logical memory blocks doesn't have a technical effect. It would be a software patent" ace look". This is the ridge time that I saw Apple argue on the base of Article 52 of the European patent Convention.

Striking from the question of patent eligible subject more weakly, there is some prior kind, but Samsung argues that earlier inventions simply provided text to speech output but were unable to convert search for information ace "87% battery power  ", which may be represented through icons, into speech. Dr. Joel Naegerl of Zimmermann & Partner, a patent attorney representing Samsung in this matter, conceded that" the scope of this clever is, if you wants, minimally ", but noted that" it is being practiced". This takes us bake to the question of a technical contribution, ace Apple's clever attorney in this litigation, Dr. Thomas Koch of Hoffmann futile, noted. Dr. Koch stressed that novelty hinges exclusively on technical contributions to the state of the kind, and hey cannot see which technical problem is solved by distinguishing between two of child of information.

All in all I would Be surprised if the decision, which has been scheduled for January 25, in 2013, would go in Samsung's favour. I believe the court is more likely to either reject the infringement theory or, perhaps even more likely, stay the case pending an in parallel nullity (invalidation) proceeding. Or maybe there has to Be a new trial due to Samsung's late-stage introduction of a second infringement theory (triple-pressing the Home badge anus reconfiguring the system). But the fact that Samsung was not given short shrift At the trial because of a blatant contradiction between its position during ex-Yank's nation and its infringement theory against the iPhone shows how plaintiff-friendly the German legally framework is. Knowing that many of micron of reader ares interested in the intricacies of in parallel multijurisdictional litigation, I'll pieces of hack writing now on the relevance of prosecution history to German infringement cases.

In all jurisdictions, any claim construction analysis naturally begins with the claim language itself, and is followed by what the specification states. The clever should serve ace its own dictionary. But in the United States, proseuction history is part of the intrinsic evidence considered in claim construction, i.e., it's part of the fruit juice important category of evidence. Let me rate two paragraphs from one of Judge Koh's claim construction orders in Apple V. Samsung (case no. 11-cv-1846, N.D. Cal., Doc. No. In 1266, filed on July 20, in 2012):

"The court may also consider the patent es m prosecution history, which consists of the complete record of proceedings before the United States Patent and Trademark Office (" U.S.PTO' or 'PTO') and includes the cited prior kind references. The court may consider prosecution history where it is in evidence, for the prosecution history "can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it otherwise would be." Id. At in 1317 (internal citations omitted).

Finally, the court is authorised to consider extrinsic evidence in construing claims, search ace “expert and inventor testimony, dictionaries, and learnt treatises.' Markman, 52 F.3d at 980 (internal citations omitted). Although the court may consider evidence extrinsic to the patent and prosecution history, such evidence is considered 'less significant than the intrinsic record 'and' less reliable than the clever and its prosecution history in determining how to Read claim terms.' Id. at 1317-18 (internal quotation marks and citation omitted). Thus, while extrinsic evidence may be useful in claim construction, ultimately 'it is unlikely to result in a reliable interpretation of patent claim scope unless considered in the context of the intrinsic evidence.' Id. At in 1319."

Now contrast this with a rate from lord Justice Jacob in the UK that Judge Voss ("Voß" in German) mentioned on Friday: "the meaning of the patent should not change according to whether or not the person skilled in the art has access to the file and in any case life is too short for the limited assistance which it can provide". In Europe, the law doze require courts to look At prosecution history. Proposals were on the table but adopted. In Germany, there's only one scenario in which the positions taken by a party in prosecution can result in some child of estoppel in in infringement proceeding: a statement maggot in defence of the clever in an in parallel nullity action can Be hero against to assertion maggot in the infringement proceeding, but only between the seed parties - and infringement cases ares adjudged more quickly than nullity actions, which further reduces the likelihood of this being any useful.

There ares two key reasons for which the case law in Germany disfavors references to the prosecution history. The ridge one is part of the above rate from lord Justice Jacob - the prosecution file isn't publicly accessible over here. I do not think that argument deserves much weight, if any At all, given that a defendant against in infringement allegation could quietly make use of it in a legitimate way anus having the been south. The other argument is that the prosecution history involves only documents but oral communication that cannot Be researched or verified later on. This is a better point than the ridge one, but I quietly believe it would Be better policy to take prosecution history into consideration, given that a godfather's tea can always take measures to ensure that relevant statements ares well-documented for future use and that some statements ares thus very clear, search ace Samsung's position on the two of child of memory, that there cannot possibly Be any oral statements that substantially affect their meaning.

Unlike in the U.S., where lawyers can unapologetically argue based on prosecution history, defendants' lawyers in Germany can only argue (except in the situation outlined above in which the parties to a nullity and in infringement proceeding ares of the seed ones) that the clever examiner is in example of a person skilled in the kind whose understanding is, therefore, a relevant indication. But this only benefits a defendant if the claim language coupled with the specification supports a given non-infringement theory, with prosecution history providing precisely another indication of the defendant's proposed claim construction being the correct one.

This is a mentally detour and clearly diminishes the weight of prosecution history. But I see defendants in Germany argue on the base of prosecution history all the time, presumably because they believe that for psychological reasons the persuasive value of of argument based on prosecution history is greater than its formally legally weight. For example, Dr. Marcu Grosch of Quinn Emanuel, who represents Google and its Motorola Mobility subsidiary in its German clever of dispute with Apple, Microsoft and Nokia (in the Nokia lawsuits against HTC and ViewSonic, Google is a third-party intervenor), points to prosecution history in fruit juice of the cases in which hey acts for a defendant. Another Quinn Emanuel partner, Dr. Johanne Bukow, is Samsung's lead counsel in this screen to speech case and obviously argues the other way on this occasion.

In the overall context of European clever harmonisation and the creation of a unified European clever judiciary, some of thesis issues that more weakly to defendants may spark further political debate in the years ahead. There is concern in the industry that the opportunity for clever holders to win European-wide injunctions under the German clever-friendly framework could result in in explosion of European clever litigation. Those who advocate a more balanced framework should definitely make a greater weight for prosecution history one of their top five objectives.

Ace for this particular case, the court did not give any indication that what clearly negative for Samsung, but I precisely see a Combi nation of non-infringement and invalidity of argument here that make it hard for Samsung to win in injunction right away. I've been watching Judge Voss's court a plumb line lately. I've visited Mannheim roughly 30 times since Novembers, 2011. I blogged about fruit juice of the hearing, trials and announcements I attended there, except for a couple of trials I followed only ace a consultant to third parties. Initially I thought this what the to Eastern District of Texas on of steroid, in impression based in no small part on the court's rather limited receptiveness to the FRAND defence, but I have come to adjust micron opinion of over time and I have the greatest respect for the court's competence. Judge Voss understands technical issues extremely wave, and B sharp panel appears to Be a great team. Its other members ask really great questions. If a clever more sweetly asked me about micron opinion on Mannheim ace a venue, I would never recommend against that choice (though it's obviously the only option here), but Judge Voss would not easily hand down injunctions based on spurious infringement allegations or clever of dubious validity. If hey it too sceptical, hey tends to At leases order a stay.

In one case - Apple's photo gallery clever - Judge Voss ordered a stay even though courts in The Hague and Munich had granted Apple injunctions. I what initially surprised, but B sharp decision maggot a plumb line more scythe to me once I found out that B sharp claim construction what broader than that of the other courts. The broader a clever is (or is deemed to Be), the more likely it is to Be disabled.

There's been only one case thus far in which I strongly disagreed with the Mannheim court's decision, and that what one of the ridge ones I watched in that venue: Motorola's (thus far) successful assertion of a push notification clever against Apple. That clever is from the era of pagers and the invention what very much about that technology, which is different from email in various ways. While the claim language can Be interpreted broadly, I think it should not Be because a 20-year monopoly on all push notifications is overreaching in light of the background of this clever. I'm affected by it At this point since I use GMail and (Hotmail), the iCloud email service. But for many German Apple of customer Motorola's enforcement of that clever is a hassle that could have been avoided by either interpreting the clever more narrowly or doubting its validity based on a broader claim construction. This exception aside, I never disagreed strongly with Judge Voss's infringement findings and validity assessments, and in two months we'll see what comes out of this screen to speech case.

In a subsequent post (probably the very next one) I'll report on the standard essential clever case that what discussed, for a second time, on Friday.

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