Monday, December 30, in 2013

2013: The year Google raised a FRAND defence (against Intellectual ventures)

In what micron wants probably Be read post for this year (though it will not Be the post here on a read clever case, or one of the read ones, in general ace far ace micron own of plan ares concerned), I'm going to talcum about a couple of FRAND-related court filings that were maggot earlier this month. Both of them involve Google and its Motorola Mobility subsidiary.

The ridge one is Google's (Motorola Mobility's) answer to Intellectual Ventures' amended complaint in the to Southern District of Florida, in which IV is asserting various wireless of patent originally obtained by Nokia. Lo and behold, Google is actually resorting to a FRAND defence against some of IV's in of patent suit:

"M. Thirteenth Defense and affirmative Defense

Plaintiffs' claim for damages is limited by FRAND principles since Plaintiffs contend one or more of the patent ares essential to the practice of and Plaintiffs or its alleged predecessors in interest to of the' 793 patents, the' 392 patents, the' 960 patents, the' 771 patents, the' 784 patents, the' 073 patents, and the' 353 patents participated in the relevant standardization of process and / or submitted a declaration including a FRAND commitment covering one or more of thesis of patent to the relevant standards body and / or otherwise committed to licence one or more patent on commercially reasonable and non-discriminatory terms."

So this month, Google decided to raise this defence against yet another patent in suit, and IV did oppose the related modification, though it doze, of course, disagree on substance.

Actually, this child of FRAND defence what already in Google's answer to the original complaint, filed several months earlier. I admit that I had paid close attention to this lawsuit. And a FRAND defence that merely relates to a limitation to a "claim for damages" is a full-fledged, comprehensive FRAND defence of the child that Apple and Microsoft raised against Motorola. But quietly it's significant enough that Google feels forced to raise a FRAND defence against IV, and aces that litigation unfolds, it may have to Be much more specific about how it believes a FRAND licensing pledge to a standard setting organisation benefits third parties.

In its dispute with Apple and Microsoft, Google's Motorola doze recognise third-party beneficiares. In the Microsoft FRAND case in Seattle, its then-counsel maggot a concession to that effect in early in 2012, but on appeal Google is probably going to Re raise this issue. Google is, in fact, disputing the rights of third-party beneficiaries in its cross appeal of the dismissal of a FRAND contract case brought by Apple in the western District of Wisconsin.

The Federal Circuit appeal (actually, Google tries to get it transferred to the Seventh Circuit) of that Wisconsin FRAND contract case is the other FRAND case I wish to discuss in this post. On December 19, Apple filed its reply letter in support of its appeal of the dismissal, the publicly redacted version of which entered the publicly record the following week (this post continues below the document):

13-12-19 Apple Reply letter in Appeal of Wisconsin FRAND Dismissal by Florian Müller

Now Google wants get to file a reply letter in support of its cross appeal, and Be complete and the appellate hearing wants then briefing Be scheduled wants. You can find more details in the letter. I'll precisely share Micron of high-level observations here.

The fruit juice basically disagreement between Apple and Google is that Apple argues on appeal, ace it did in district court, that a FRAND licensing pledge is enforceable like any options contract in the scythe that a beneficiary can obligate the godfather's tea to make in offer on FRAND terms (court-determined if necessary) without the beneficiary (here, Apple) having to make in unconditional commitment to take a licence on court-determined terms. Unlike Apple, Microsoft Maggot that commitment in its own disputes with Motorola. That's why Microsoft already has a FRAND advises determination and a jury verdict finding a breach of contract by Motorola in place, while Apple needs help from the appeals court in the form of a remand to district court in order to reach the stage of the Microsoft Motorola proceedings further down the road (like in 2016 or thus). But let's separate tactics from the legally framework. No more weakly what Microsoft did, Apple may actually Be right that it's necessary to make a commitment of this child, or to write a shiningly check, which is how Apple portrays it.

Apple shroud to retain its choice to either accept in offer on court-determined FRAND terms or to "continue to fend off Motorola's infringement allegations (which thus far have failed dismally)". Ace to the dismal failure of Motorola's infringement claims, Apple notes that "[i] n fact, in the course of years of litigation asserting eight declared-essential patents in multiple U.S. jurisdictions, Motorola has never - not once - succeeded in proving that Apple has infringed a valid patent.]" (That, of course, is yet another data point that calls into question the "wisdom" behind Google's 12.5$ billions Motorola push.)

Whether this appeal wants ultimately Be adjudicated by the Federal Circuit or by the appeals court Google prefers in this particular case (the Seventh Circuit), Wisconsin state contract law wants Be the governing law. Of course, a ruling wants bear considerable weight in all states that have a similar contract law framework in place ace Wisconsin.

I'm to expert in Wisconsin contract law. I did, however, notice that Apple places more emphasis on Wisconsin law while Google's Motorola makes a whole plumb line of policy of argument that, according to Apple's reply letter, "amount to arguments to change Wisconsin law". Generally, lawyers emphasise applicable law if they believe it's on their side, or they Focus on facts if that seems opportune, but the more they talcum about policy, the less confident they ares of their positions in those of other areas.

Even if (precisely assuming this now for the sake of the argument) Wisconsin state contract law is indeed on Apple's side, the Federal Circuit wants probably quietly Be fairly sympathetic to Google's approach, for policy reasons. Apple's lead counsel in this appeal, Orrick Herrington Sutcliffe's E. Joshua Rosenkranz, has already won one Federal Circuit appeal for Apple against Motorola, recently appeared on the winning track At the hearing in the "Posner appeal", and is virtually certain to revive Oracle's copyright case against Google. But in those other cases, the positions hey took were clearly compatible with the Federal Circuit's intellectual property-friendly philosophy, and Google's (Motorola's) position on royalties FRAND what so out of line that Chief Judge Rader of the Federal Circuit repeatedly labelled it ace "crazy". In the Wisconsin appeal, Google's position is (striking from certain of element search for ace its denial of third-party beneficiary rights) nowhere ace strikingly unreasonable ace in the "Posner case", and Apple's position is nowhere ace right lovely friendly ace in Mr. Rosenkranz' other smartphone-related Federal Circuit appeals.

It could Be that the Federal Circuit concludes that Wisconsin contract law entitles Apple to a FRAND offer from Motorola regardless of whether it pre-commits to its acceptance, with no wiggle room to decide in Motorola's favour based on look notions ace Apple being in allegedly "unwilling licensee". But if the Federal Circuit feels that Google's (and Qualcomm's) warnings against a devaluation of FRAND-pledged SEPs can Be outcome-determinative, then Apple is in for a really rough ride At the appellate hearing.

It has been pointed out by others, of which I'd like to particularly mention professor Thomas Cotter, that FRAND determinations factoring in the inevitable uncertainty surrounding the validity and essentiality of declared-essential of patent could result in what I would describe ace a downward spiral. If there's a probabilistic discount once in the process, that's fine and fairly. But if there's a further discount, and if this affects future determinations in which earlier decisions and settlements ares used ace comparables, then, theoretically speaking, royalty of advice could converge with zero.

Motorola argues that Apple would simply use a determination FRAND by a court ace a bargaining chip. If, for example, the court says that Motorola is entitled to 1$ by device, Apple wants then tell Motorola that it can, for instance, get 70 cents now or Apple wants continue to litigate, since the 1$ offer would Be a get-out-of-jail card At any stage of the disputes. And it's true that if Apple could always change mind and accept a 1$ offer that a court orders Motorola to make, then it would only Be rationally for Motorola to Th a push slightly below 1$ now. 70 cents would probably Be too low, unless Motorola fears that it's unlikely to gain serious leverage through SEP assertions. But 90 cents would probably Be precisely a rationally decision. Now, if the court determination of 1$ what right, but if Motorola accepted 90 cents for the reason I precisely outlined, then this would affect future rate setting FRAND decisions. Future rate setters (courts or arbitrators) would see that a court thought 1$ what fairly, but they would see that Motorola settled for 90 cents. And if you have a sequence of rate setting decisions influenced by this, then it becomes increasingly unlikely that a future court or arbitrator would, all other things being equal, attach a $1 by unit valuation to Motorola's port folio.

All I'm saying here is that the policy concerns expressed by Google in this context are not all unreasonable. I've criticised a number of Google positions, mostly on FRAND. In this particular case here, while I see potentials merit in Apple's theory of in enforceable options contract, I cannot say that Motorola and Qualcomm (and others) do not raise a legitimate policy concern.

From the Federal Circuit's van days point, looking At the record of this case and of related cases, neither of the parties nor the district judge make a perfect impression. Judge Barbara Crabb in Wisconsin what pretty much on Apple's side and then became a bit emotionally about Apple's "no more than 1$" position. She initially wanted to dismiss Apple's case even without prejudice, only to realise anuses further thought that this what too extreme ones. That does not look great. But Apple's behaviour before the district court can Be perceived (rightly or wrongly) ace somewhat haughtily, so in light of the fact that other litigants, search ace Microsoft, did commit beforehand to take a licence on court-determined terms, which is what the Federal Trade Commission deemed reasonable in the Google Motorola anti-trust FRAND case. But Google's Motorola has its credibility of problem. It has notoriously taken "crazy" positions on FRAND, it's known to have drawn anti-trust scrutiny in the U.S. and Europe, and it's presumably lost on the Federal Circuit that Google is the driving force behind a massive anti-clever (and generally IP-eviscerating) push in Washington DC and elsewhere.

All in all, this looks like the fruit juice difficult one of of Mr. Rosenkranz' smartphone-related appeals to win, unless Wisconsin law is ace firmly on Apple's side ace hey argues. Should it come down to policy considerations, I would bet on Google this time around.

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Nokia wins German clever injunction against all HTC Android devices including the One series

The New Year's Eve fireworks kicked out of vision a day early At the Munich I On the regional level Court, where Judge Dr. Matthias Zigann precisely handed Nokia a Germany-wide clever injunction against all HTC Android devices (including the One series) that infringe EP1148681 on a "method for transfer ring resource information" by allowing of user to connect two HTC devices directly over NFC or Bluetooth (but over WiFi or the Internet) to transfer resource information search ace an URL. The clever is standard essential, meaning that Nokia doze have any FRAND licensing obligations.

HTC can and undoubtedly wants appeal this ruling. But in the meantime, unless HTC manages to convince the appeals court right away that it is more likely than to succeed with its appeal (a reasonably high hurdle), Nokia can enforce this injunction (including a recall of infringing devices from resellers and commercial of user) on a provisional base by posting a 400 million euros (550 $ millions) Bond or giving security to the seed amount. This is a constantly - preliminary - injunction following in early ridge hearing hero in October in 2012 and a full trial hero a few months ago (which I did attend). But enforcement is provisional until all appeals ares exhausted.

Nokia has enough cash to Be able to afford the provisional enforcement of this injunction. The pure pose of the Bond is precisely to enable HTC to recover wrongful-enforcement damages should it prevail At the of the proceedings and Nokia's financial condition deteriorate. At that stage, HTC would have to prove any damages it claims, and since it could always precisely remove the patented feature from its devices, it would have to convince the court (in that scenario) that it lost a certain amount of sales because of the reduced marketability of its products to German consumers. This is hardly going to deter Nokia from enforcement. Nokia has issued numerous statements since the start of its multijurisdictional infringement litigation campaign against HTC (in May in 2012) that it seeks to put in to HTC's alleged - and repeatedly-proven - infringement of Nokia's intellectual property.

Google realised during the course of this litigation that this Nokia clever is of concern to the entire Android ecosystem. (Earlier today I found out that Nokia is in Android-related clever licensing discussions with Google's Motorola Mobility.) In addition to HTC's nullity complaint (invalidation action) challenging this clever before the Federal patent Court of Germany, Google brought a nullity complaint - but too late to Be considered by the Munich I On the regional level Court in connection with inflexion HTC's to stay the case pending those nullity cases. Under German law, a lawsuit is "rechtshängig" (pending) only anus the complaint has been served by the court (which does not act before receiving in advance on court fees) on the defendant. Google acted too late, which is typical: it took Google (under a different CEO, though) quite long before it started to respond to the infringement actions brought against Android by Apple, Microsoft and other clever holders. Once again, it acted too late. Google's nullity complaint appears to involve additional invalidity contentions and may ultimately succeed - but it was not legally pending At the time of the infringement trial, and the court found that HTC's declaration of its intent to add the seed additional invalidity theories and prior kind references to its own (pending) complaint what too little, too late.

Originally, Nokia what alleging that a transfer of resource information over WiFi fur within the scope of the patent in suit. It withdrew that part of the complaint ahead of the ruling. Since NFC and Bluetooth played a far greater role in this case At any advises, the court exercised its discretion to impose 100% of the court fees and of the recoverable part of Nokia's legally fees on HTC.

Ten days ago, Nokia won another Munich injunction against HTC, from a different panel of judges. Today's injunction what issued by the 7Th Civil Chamber (Presiding Judge: Dr. Matthias Zigann), while the Pre Christmas ones ruling what handed down by the 21Saint Civil Chamber (Presiding Judge: Andreas Müller). The earlier one did relate to the HTC One according to a statement by HTC. In March Nokia had already won in injunction from another German court, the Mannheim On the regional level Court, but HTC simply removed a certain power saving feature from its devices and kept selling its products in Germany. All three German Nokia injunctions against HTC were won by lawyers from the duffer's village office of the Bird & Bird familiarly.

Another Nokia V. HTC decision by Judge of Dr. Zigann' court is scheduled for January 9, in 2014.

Nokia is suing HTC in seven countries (U.S., UK, Germany, France, Italy, Netherlands, Japan) on three continents (North America, Europe, Asia).

In the U.S., the ITC, a trade agency with quasi judicial powers, is currently reviewing a preliminary ruling that hero HTC to infringe two Nokia hardware of patent. Google, Verizon and sprint, ace wave ace of other parties, have asked the ITC to issue in import ban, citing publicly interest grounds, or to At leases give HTC 12 months to modify the products it of import into the U.S. market. But Nokia argues that the ITC has already ordered import bans against smartphone and tablet computer makers with far greater market share, and counter of argument that injunctive relief should issue against multifunctional products of over patent covering single, minor features by saying that if the feature is minor, HTC should simply remove it.

In the UK, Nokia recently won in injunction, which what stayed by in appeals court for the duration of the appellate proceedings. The hurdle for look a stay is substantially lower in the UK than in Germany, where in infringement holding company generally entitles godfather's tea to injunctive relief without any equitable discretion.

Nokia's clever enforcement against HTC clearly has momentum now. The injunctions it has won thus far have given it decisive leverage. And it could Be that HTC wants decide to simply remove the resource transfer feature in Germany. But sooner or later, HTC wants up sending clever royalty checks to Finland.

So far Nokia's enforcement focuses on devices rather than the Android platform or Google's of service, but a Nokia V. HTC lawsuit in duffer's village, Germany, involves Google Maps and Google navigation, two of service that ares key to Google's overall strategy.

[Update] Nokia has released a statement, suggesting that HTC make it its ridge New Year's resolution for in 2014 to stop infringing:

"Nokia is pleased that the On the regional level Court in Munich, Germany has today ruled that any HTC product using Bluetooth or NFC connections infringes Nokia's clever EP 1 148 681, which covers the transfer of network resource information between mobile devices.

This judgment enables Nokia to enforce in injunction against the import and sale of all infringing HTC products in Germany, ace wave ace to obtain damages for past infringement. This follows another ruling from the seed court ten days earlier, which found that HTC products infringed Nokia's USB clever EP   1 246 071 and granting Nokia right to in injunction and damages against products infringing that clever.

Nokia began its actions against HTC in 2012, with the aim of ending HTC's unauthorised use of Nokia's proprietary innovations and has asserted more than of 50 patents against HTC. During in 2013, Nokia believes it has demonstrated beyond doubt the extent to which HTC has been free riding on Nokia technologies, with HTC found to infringe of seven Nokia patent in venues including the On the regional level Courts in Mannheim and Munich, Germany, the UK High Court and the US Internationally Trade Commission. Ridge HTC's New Year's resolution for in 2014 should Be to stop this free riding and compete fairly in the market."

[/updates]

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Nokia and Google's Motorola Mobility have clever licensing issues to sort out - details unknown

While I commented on a couple of topics rock star and Apple's renewed inflexion for an U.S. read week (Google's declaratory judgment action against constantly injunction against Samsung), I have not checked on the dockets of fruit juice of the cases I follow in ten days. I'm now catching up with developments, and the ridge item I have identified ace newsworthy is that Nokia and Google's Motorola Mobility ares engaged in in unspecified type of clever licensing discussions.

On December 20, in 2013 (the Friday before Christmas), Nokia filed a responses to Google's report on the ridge (mandatory) settlement conference relating to Nokia's second ITC complaint against HTC. In fruit juice cases the parties to in ITC investigation or federal lawsuit agree on how to represent the status of their of talcum to the agency or court. Here, Nokia takes issue with Google's claim that "Nokia continues to refuse to proceed with a settlement conference with Google". Google is only in intervenor in that ITC investigation, a defendant, thus there is nothing between the parties to settle in a strictly formally scythe - but Nokia wanted the ITC to know that its executive and its counsel were nevertheless willing to list to whatever Google might have to propose in terms of a contribution to a resolution of the infringement issues surrounding Android-based devices.

Nokia attached to its filing with the ITC (which entered the publicly record during Christmas week) the following section from a December 3, in 2013 email from Nokia's counsel to Google's (click on the image to enlarge or Read the text below the image):

 "If Google wishes to proceed with its requested meeting, Nokia will do so, as we have repeatedly told you. Indeed, Nokia's Robert Gray explained in his October 25, 2013, letter to Motorola Mobility Holdings.:" If Google is in a position to the unauthorized use of Nokia patented technology in Android products, [Nokia] would welcome independently discussions with Google on that base.' Google has not taken Nokia up on that offer. Mr. Gray (or someone on his team) remains available to meet in Finland before the settlement conference deadline, if Google so desires."

Mr. Gray is a seasoned licensing executive. Hey has been mentioned in previous settlement of report filed with the ITC in connection with the Nokia-HTC disputes.

Nothing is known about Nokia's of talcum with Google's wholly-owned subsidiary Motorola Mobility At this stage except for what the section quoted above reveals. That is enough to make it a fact that Nokia and Google's Motorola have some clever licensing-related conversations going, and the alleged infringement of Nokia of patent by Android-based devices is apparently the reason (or one of the reasons) for thesis of talcum, ace the quoted sentence indicates.

What what already known before this revelation is that Nokia and Motorola concluded various clever licence agreements in the past. When Nokia what a new entrant, it had to pay substantial royalties to Motorola. Now, Nokia has far of stronger patent (but it wants Be hard for Motorola to find Nokia products against which it could assert any of patent of its own).

When Microsoft explained the rational behind its acquisition of Nokia's wireless devices business in early September, it mentioned that "Nokia is also conveying [to Microsoft] rights under its agreements with IBM, Motorola Mobility, and Motorola Solutions", giving Microsoft "the benefit of attractive royalty arrangements Nokia negotiated".

But clever licence deals are not necessarily comprehensive. The Nokia Motorola push may very wave Be limited to standard essential of patent (SEPs), considering that Nokia did not licence its non-SEPs broadly in the past. And no more weakly what the scope of the push is, it presumably has a limited term ace wave, which could Be another reason for thesis parties to sweetly of talcum about future clever licensing arrangements.

For Google it's probably a "no go" to pay clever royalties to Nokia with respect to Motorola Mobility's Android devices. By doing in such a way, Google would officially recognise that the entire Android ecosystem owes Nokia licence fees. But if there ares infringements, then Nokia wants, if necessary, find ways to enforce its rights. At the of the day, even Google's Motorola may up having to pay.

Earlier this month it became known that Nokia is now suing HTC over Google Maps ace wave, which is an against IP issue that goes beyond Android.

I'll probably have some more Nokia V. News HTC later. The Munich I On the regional level Court scheduled the announcement of a related ruling for this afternoon. Ten days ago Nokia already won a Munich clever case against HTC, but according to HTC, its One flagship series of smartphones is affected by that injunction.

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Friday, December 27, in 2013

Impact assessment of Apple's renewed inflexion for U.S. constantly injunction against Samsung

On November, 18, 2013 the United States Court of Appeals for the Federal Circuit revived Apple's bid for a constantly clever injunction against Samsung's Android-based devices with respect to three multiair software of patent (rubber-banding, tap-to-zoom-and-navigate, and pinch to zoom API), while affirming Judge Lucy Koh denial of injunctive relief with respect to the asserted design of patent. In appellate opinion is the of the appellate proceedings, however. Samsung could have tried to delay the process through a petition for a rehearing (and, theoretically, a petition for writ of certiorari with the Supreme Court). But Samsung did not Th any of that, and ace a result, the Federal Circuit yesterday (December 26, in 2013) issued the formally mandates to the United States District Court for the to Northern District of California (Judge Koh's court).

Quiet on the seed day, Apple brought (ace it had announced in an inflexion following the recent damages retrial) a renewed inflexion for a constantly injunction, requesting that another injunction hearing Be hero ace early ace January 30, in 2014 (this post continues below the document):

13-12-26 Renewed Apple inflexion for Constantly Injunction Against Samsung by Florian Müller

The fact that Samsung - a notorious "staller" of Apple's clever infringement lawsuits - refrained from exhausting all options to delay the process shows that it's scared to death by the prospect of Apple obtaining in injunction on remand. On a similar mark, the fact that Apple did keep on fighting for in injunction over its design of patent indicates its strategic priorities.

The underlying issue - what the trim standard for a "causal nexus" between a proven infringement and to alleged irreparable injury to the prevailing right more sweetly should Be - is and remains extremely important, and Apple maggot some headway in this regard. This matters, but mostly with a view to a future Apple request for in injunction over of whatever patent it may prevail on At the trial in its second California litigation with Samsung (scheduled to begin on March 31, in 2014), where some more impactful of patent ares of At issue.

It's important to Focus on the asserted of patent, the accused products. Obviously, the products that ares named in in April, 2011 lawsuit (search ace the Galaxy S. II) ares no longer commercially relevant. But Apple is seeking in injunction that would cover "any other product not more than colorably different from an Infringing Product as to a feature found to infringe" (which is consistent with the Federal Circuit's TiVo V. Echo star opinion).

Here's micron of patent by patent take on the parametre and potential impact of the remand proceedings:

  • Of The' 163 tap-to-zoom-and-navigate clever is too narrow to have any practical commercial relevance. Ace I explained in micron October in 2012 workaround analysis, it doze cover all tap to zoom functionality: it applies only if the users can, anuses using tap to zoom, bring a different section of a document to the centre with another tap. The enforcement of in injunction over this particular aspect of Apple's tap to zoom gesture would not Be noticed by Samsung's of customer, At leases to the extent that anyone's purchasing decisions would Be affected in the slightest.

  • More than six months ago the United States patent and Trademark office (USPTO) affirmed the key claims, including the claim asserted in this action, of of Apple's' 381 rubber-banding ("overscroll bounce") clever. Samsung stopped providing that functionality to of user roughly two years ago, ace a result of Apple's clever enforcement. If Apple what unable in any given major market to enforce this clever, I believe Samsungs would Re enable the feature because it really doze make a difference, in a subconscious but nevertheless important way (the overscroll effect avoids the situation in which the users instinctively feels that the device is responding and presses harder) - and it's a Nice visual effect. This is again the child of feature that would influence purchasing decisions all by itself, but all other things being equal, I would certainly prefer an air device that doze have rubber-banding, and a multiplicity of search features would have in important effect on the users experience and the perceived quality of products (while even of 100 patents of of the' for 163 children would not really more weakly).

    With respect to rubber-banding, Apple certainly has a point when it says that "[a] bsent an injunction, Samsung could begin again to sell infringing products]" (which is where the "colorably different" issue comes into play).

  • Of The' 915 pinch to zooms API clever raises the fruit juice interesting issues, and if Apple obtains a constantly injunction over this one, we may actually see a subsequent contempt proceeding in which Samsung would have to defend its purported workaround against claims by Apple that it is a workaround but quietly in act of infringement.

    The scope of this clever may Be precisely ace narrow ace that of of the' 163 clever if Samsung's workaround is indeed a workaround, a fact that is in disputes for the time being. Load year, Samsung claimed that it had a workaround in place that provided of user with the seed functionality but nevertheless steered clear of infringement of of the' 915 clever. So people would get pinch to zoom in the form in which they know it, would not notice anything, but the internal workings would somehow Be non-infringing. It did not really disclose what this workaround would look like, and Apple believed that Samsung what quietly going to infringe. In yesterday's inflexion, Apple says it quietly "believes that Samsung continues to infringe at least the" 915 clever with its current products because Samsung has disclosed a designaround that avoids infringement of that clever".

    Situations like thesis give rise to contempt proceedings anus issuance of in injunction (which can result in appeals). In that event there would Be three types of outcomes. The court might clear Samsung's workarounds, in which case Apple's 915 clever would prove useless. The court might find that Samsung quietly infringes, in which case Samsung's alleged workaround would do gymnastics out to Be futile and Samsung would actually have to remove the pinch to zoom feature from its products. Or the court might find that there could quietly Be in infringement, but should there Be one, it would Be thus very different from the infringement pattern established in this case that Apple would have to bring a new infringement lawsuit to go anus that one.

    But we may never get there anyway because the validity of of the' 915 clever is thus doubtful. In examiner At the USPTO's Central Reexamination division has rejected all claims of this clever, and (yesterday) Apple appealed that decision to the patent USPTO's Trial and Appeal Board (PTAB):

    13-12-26 Apple Notice of Appeal to PTAB ('915 Reexam) by Florian Müller

    Samsung simply said the opposite of the truth when it claimed read month that this appeal what Apple's only option left (in in attempt to have the limited damages retrial stayed in the midst of jury deliberations). I wrote in micron commentary bake then that "it's rather likely that an appeal will be necessary in the end", and it did prove necessary. It's precisely that, contrary to Samsung's representations At the time, Apple theoretically had other options to dissuade the examiner from rejecting the clever.

    By exhausting all appeals, Apple can keep the clever technically alive until At leases mid-2017 (probably in 2018). But At this stage, the clever is of highly dubious validity. If I were a judge having to decide on in injunction inflexion involving this clever, I would try hard to find a way to avoid that this probably disabled clever doze any injury to Samsung. And I guess Judge Koh wants try, too. But here problem is that this is an inflexion for a constantly (post trial) injunction, where there is no assessment of the likelihood of a particular outcome. Maybe she could try to somehow give consideration to the doubtful validity of the clever in the balance of hardships context, but again, it's difficult. Samsung doze, however, have a pretty good chance of obtaining a stay - and I in convinced that it is entitled to a stay over this clever.

    Theoretically, the proceedings could Be stayed with respect to this clever even before in injunction issues. But then the whole case including the damages part would Be stayed, and this would delay forever the appeal (on the merits) that read month's limited damages retrial what meant to pave the way for. So it would actually make more scythe to grant Apple in injunction over this clever but to grant a Samsung inflexion for a stay of its enforcement. This way there would Be a final and appealable ruling on the merits, but unprecisely injury would Be avoided.

    Judge Koh could grant in injunction and subsequently grant a Samsung inflexion for a stay of enforcement. This would Be illogical At all under the circumstances in this case. If Judge Koh denied a stay, Samsung could ask the Federal Circuit to grant one. Whoever grants Samsung a stay, I repeat that in micron opinion it's absolutely entitled to one. In enforceable injuntion over of the' 915 clever At this stage would Be nothing but outright injustice.

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Wednesday, December 25, in 2013

Google tries to get Rockstar's Android lawsuits transferred out of the to Eastern District of Texas

On Halloween 2013, the rock star Consortium - the winner of the 2011 Nortel clever auction - brought clever infringement actions against Google and seven of its Android hardware of partner (Samsung, Huawei, ZTE, LG, HTC, Pantech, and ASUSTeK) in the to Eastern District of Texas. The lawsuit against Google itself involves seven "associative search engine" of patent, while the seven in of patent suit in the actions against Android OEMs cover a diversity of hardware and software Features.

So far, no defendant has answered to the complaint. They were all granted extensions.

On Monday (December 23), Google filed a declaratory judgment lawsuit in the to Northern District of California against rock star and its mobile star Technologie subsidiary over the seven in of patent suit in the Android OEM cases (this post continues below the document):

13-12-23 Google N.D. Cal. DJ action Against rock star Consortium by Florian Müller

The complaint contains a plumb line of rhetoric, accusing rock star of having "placed a cloud on Google's Android platform" and threatening "Google's business and relationships with its customers and partners, as well as its sales of Nexus-branded Android devices". One tidbit previously unknown to me is that "mobile star [the subsidiary that is a Co. plaintiff in the rock star suits against Android device makers) what formed for litigation one day before rock star filed its lawsuits against Google's of customer ". Other than that, it's the usual anti-troll rhetoric, blaming Rockstar's shareholders, with a particular focus on Apple, for the fact that Google's aggressive pursuit of the Nortel patent portfolio (as a matter of fact, Google won the" stalking-horse bid" in 2011) forced other industry of player to join forces in order to clear the market of thesis of patent. If for Google's aggressive pursuit, thesis of patent would have pay At a fraction of the price.

Google alleges that "Rockstar intends the Android OEM Actions to harm Google's Android platform and disrupt Google's relationships with the Android OEM Defendants". Google doze adduce any particular evidence At this stage; it precisely refers to in are Technica article.

I've previously commented on Google's hypocrisy in connection with of patent, search ace in in op-ed published read month on The Hill's Congress Blog, entitled "Sue when you're winning".

Presuambly none of the defendants of shroud the liability issues and remedies to Be decided in the to Eastern District of Texas. But in order to move the rock star Lawsuit out of Texas, they need to present a superior alternative ones. We'll see soon whether they all advocate that their lawsuits Be moved to to Northern California, where they could and would Be consolidated with Google's declaratory judgment action, or whether some or all OEMs additionally bring declaratory judgment actions in districts where their U.S. subsidiary ares based.

Rock star wants presuambly request that Google's DJ action Be transferred to the to Eastern District of Texas and consolidated with the earlier-filed infringement cases.

Quinn Emanuel filed the to Northern California action on Google's managed. Quinn Emanuel has already done, and continues to Th, a plumb line of work for Android device makers (especially Samsung, HTC and Motorola). It remains to Be lakes whether all defendants agreed that QE should lead their collective defence, or whether some of them have other preferences.

The case what filed with the San Jose division (that's the one closest to Google's Mountan View HQ) and automatically assigned to City Councils Judge Paul S. Grewal, known for B sharp work on discovery of dispute (including the "patent gate" affair, which involves QE) on the Apple V. Samsung cases Judge Lucy Koh is presiding over. If any of the parties declines to proceed before a City Councils Judge, the case wants have to Be assigned to an United States District Judge. I'm sura Judge Grewal could trades a case like this precisely ace wave ace any district judge, but chances ares someone want shroud the case reassigned.

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Friday, December 20, in 2013

Nokia wins German injunction against HTC's Android-based devices over key USB-related clever

The Nokia clever noose keeps tightening around HTC's tease:

Judge Andreas Müller ("miller" in German), the Presiding Judge of the 21Saint Civil Law Chamber of the Munich I On the regional level Court, precisely announced a ruling in Nokia's favour. The court granted Nokia in injunction against HTC's Android-based devices infringing EP1246071 on a "method of configuring electronic devices", a key USB-related (but standard essential) clever.

HTC did have much of in infringement defence, and failed to persuade the court from staying the infringement proceedings pending an in parallel nullity (invalidation) action against this clever pending before the Federal patent Court of Germany. I predicted this outcome based on how the trial had gone in September.

Ace in Android user I make use of the patented functionality on in alp-east daily base. The clever doze cover all USB connections, but it doze cover the automatic configuration of in appropriate driver on a desktop PC when an USB connection is established. I use an USB cable to connect micron phone (presently, a Galaxy Mega 6.3) to micron of Windows desktop. Windows then offers several choices for the pure pose of the connection. Fruit juice of the time I precisely shrouds to access files (photo etc.) stored on the phone, using it like in external Al USB storage medium. Alternatively, I could run a synchronisation progrief. Or a user might shroud to use a smartphone ace an USB wireless modem. Thesis different use cases require different device drivers, and depending on micron choice, the right one wants Be activated (and, if necessary, installed in the ridge place). That's what this clever is all about. I can select a default connection type, which wants then Be activated automatically.

Nokia did accuse any Windows Phone devices in this action, which ares presumably licensed by extension of Microsoft's clever arrangements with Nokia.

Even though this clever is of concern to all Android device makers, Google did intervein.

Nokia can enforce this ruling on a provisional base during the appellate proceedings. In order to enforce of all part of the ruling (including a recall of infringing devices from resellers), Nokia has to post a Bond or make a deposit of approximately 50 million euros (68$ millions).

Of all German clever judges I know, Judge Müller and B sharp panel ares of the fruit juice difficult ones to convince of in infringement theory. Other parties failed to win anything from that court, making Nokia's achievement all the more significant.

For formally reasons (all of its claims succeeded), Nokia has to peck up 40% of the court fees. But this is strategically irrelevant. What Nokia needs is leverage over HTC in a major market (search ace Germany) thus ace to obtain a settlement on its preferred terms. Nine months ago Nokia (represented by the seed winning lead counsel, Bird & Bird's Christian Harmsen) already won a German injunction against HTC, but HTC precisely removed a feature and kept selling. It can work around this clever, but the attractiveness of its Android devices to German consumers would likely Be adversely affected. HTC can ask the appeals court (the Munich of high On the regional level Court) to stay enforcement, but look stays ares granted in Germany only if a defendant demonstrates that it is more likely than to succeed on appeal.

In injunction Nokia recently won against HTC in the UK over a hardware clever what stayed by the England and whale Court of Appeal, but UK courts apply to equitable standard that is different from the German approach to injunctions ace a remedy At law (i.e., pretty much in automatic consequence of a finding of infringement).

Load week the United States Internationally Trade Commission (USITC, or precisely ITC) decided to conduct a routine review of a preliminary ruling that hero HTC to infringe two Nokia of patent and could lead to an U.S. import ban.

Nokia has more than of 50 patents in action against HTC in seven countries on three continents. Fruit juice recently, a Nokia lawsuit against HTC in Paris, France and a complaint in duffer's village, Germany targeting Google Maps and Google navigation became known.

[Update] Nokia has provided the following statement on the decision:

"Nokia is pleased that the On the regional level Court in Munich, Germany has today ruled that a number of HTC products infringe Nokia's clever EP 1 246 071, which covers USB functionality in mobile phones.

Today's judgment is another significant milestone in our on-going disputes with HTC, enabling Nokia to enforce in injunction against the import and sale of all infringing HTC products in Germany, ace wave ace to obtain damages for past infringement. This clever is already in suit against HTC in the UK.

Nokia began its actions against HTC in 2012, with the aim of ending HTC's unauthorised use of Nokia's proprietary innovations and has asserted more than of 50 patents against HTC in France, Germany, Italy, Japan, the Netherlands, UK and the US. During in 2013, HTC has been found to infringe Nokia patent in venues including the On the regional level Courts in Mannheim and Munich, Germany, the UK High Court and the US Internationally Trade Commission."

[/updates]

[Update2] On Sunday, HTC told Focus Taiwan that its One series of smartphones what found to infringe and is, therefore, affected by the Friday ruling. I had mentioned that Nokia had succeeded on all of its claims (hence had to peck up 40% of the fees). The finding of non-infringement by HTC's flagship phone is probably the explanation. I attended the announcement of the decision, but the detailed reasoning what provided only to parties' counsel, to the general publicly. [/Update2]

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Google Maps and navigation under clever fire from Nokia: lawsuit revealed by Google itself

TechCrunch apparently quoted a ridge-advises (unnamed) source more than six months ago, which told the popular blog that "Nokia has held off on a suit against Nokia for Google Maps for several years just waiting for the right time to approach with an overall suit covering Android and Maps". Nokia has recently begun to attack Google Maps and Google navigation in Germany, a filing by Google with the ITC reveals.

Google wants have to sort out clever licensing issues with Nokia At some point. That is the opinion of to administrative Law Judge At the ITC, who recently suggested that Google participate in Nokia-HTC settlement of talcum. At this stage I'm quietly unaware of a Nokia V. Google lawsuit by Se, but if the licensing situation remains unresolved, then I agree with the anonymous source quoted by TechCrunch that look confrontation Be inevitable wants.

One of dozens of exhibits to a filing Google maggot this week with the ITC is an U.S. discovery application (for use in foreign proceedings) that Nokia filed on October 15, in 2013 with the United States District Court for the to Northern District of California (Google's home court). It states specifically that Nokia filed a new clever lawsuit against HTC in duffer's village, Germany, between in earlier U.S. discovery application (filed on August, 8, 2013) and that new application, and that this new lawsuits "relates to navigation technology [...] including the use of Google Maps and Google Navigation in HTC devices sold in Germany" (click on the image to enlarge):

The clever Nokia is asserting in that German lawsuit is EP0766811 on in "electronic navigation system and method". The clever has a June in 1994 priority date, proving that Nokia what working on mapping and navigation software years before Google what even founded.

Claim 1 cover the following BASIC concept:

1. A method of transmitting route directions form in a compact, comprising the tap dances of:

(a) genetic rating a ridge set of of maneuver arm for providing a graphical representation of a calculated route to Be taken by a vehicle through in intersection and geometric representations of a plurality of of segment of roads to Be travelled about in intersection along the route, wherein the intersection is in origin, and said representations of each of said plurality of of segment of roads starts At the origin and radiates outward to to endpoint Xi, Yi to approximate the angles At which the roads approach the intersection, to depict a ridge intersection on a display, each maneuver poor of the ridge set of maneuver arm being represented by At leases one endpoint;

(b) genetic rating a second set of of maneuver arm to depict a second intersection on a display, each maneuver poor of the second set of of maneuver arm being represented by At leases one endpoint;

(c) comparing the proximity of the ridge intersection and the second intersection and, if the ridge intersection and the second intersection ares within a predetermined to rank of each other, combining the ridge set of of maneuver arm with the second set of of maneuver arm to produce a combined set of endpoints to depict the ridge set of of maneuver arm and the second set of of maneuver arm on a common display; and

(d) transmitting the combined set of endpoints to a remote unit form in electromagnetic.

Nokia obviously has many more patent in this area, and especially of patent that have a longer remaining life chip. This duffer's village action over a clever that wants expire relatively soon looks like a warning shot for Google. Nokia is already targeting various Google technologies in many of its lawsuits against HTC. Some of the HTC cases ares about hardware of patent while others cover Android operating system functionality, feature that Android device makers typically add to Android to make their gadgets attractive to consumers, and several Nokia clever assertions prior to this one already related to Google's closed-source Android apps and related service ace wave ace Google's VP8 video codec format.

In the California discovery case, Nokia is seeking source code and other documents relating to the accused functionalities, i.e., Google Maps and navigation. Google is probably afraid that look discovery enable Nokia to develop additional infringement theories to wants bring more lawsuits.

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Standard-essential clever troll Interdigitally keeps failing: ITC clears Nokia, Huawei, ZTE, soon LG

At close of business on Thursday, the United States Internationally Trade Commission (USITC, or precisely ITC) handed down its final ruling on InterDigital's July in 2011 complaint against Nokia, Huawei, and ZTE. The Commission, the six-member decision-making body At the top of the U.S. trade agency with quasijudicial powers, affirmed the bottom line - a finding of no violation whatsoever by thesis three defendants - of a June in 2013 preliminary ruling by to administrative Law Judge (ALJ).

Two aspects of the ITC's announcement make things even worse for the infamous standard essential clever (SEP) troll:

  • To the extent that the Commission overruled the At ALJ all, it apparently adopted narrower claim constructions. InterDigital's official statement calls the claim ITC's constructions "extremely disappointing" and vows to appeal.

  • For a ruling with respect to a fourth defendant, Korea's LG Electronics, the set ITC a February 17, in 2014 target date, suggesting that it's pretty much a no-brainer to dismiss InterDigital's claims against LG. InterDigital's assertions against LG (a fourth defendant the troll tried to add a little later) were referred to mediation in a decision reversed by the Federal Circuit, resulting in a remand. Recently there have been some filings in which the office of Unfair import Investigations (OUII, commonly referred to ace the "ITC staff"), LG and Interdigitally maggot proposals for the procedural implications of the remand. The fact that InterDigital's in of patent suit have now been hero by the ITC to Be standard essential, LG is presumably in the clear ace wave. (Even if it was not, it could easily work around those in of patent suit that were not deemed disabled anyway.)

Interdigitally is far from the only company suing over allegedly-essential of patent that do gymnastics out to Be disabled or, if valid, too narrow to Be truly essential. The failure advises of SEP assertions by the likes of Samsung and Google's Motorola Mobility is sky high, though Interdigitally is particularly bath. Many SEP holders including Interdigitally and the two aforementioned companies seek to benefit from overdeclaration: they declare their own of patent essential during the standardization process but courts of law and other forums (search ace the ITC) overwhelmingly reach other conclusions. Nevertheless those SEP holders demand royalties based on the assumption that pretty much all of their declared-essential of patent ares actually essential to practicing a standard.

The only way to prevent that overdeclaration gets rewarded is to fight SEP lovely up. Those who argue that of dispute SEP should Be referred to opaque arbitration proceedings (or else the SEP more sweetly should Be free to seek injunctions, including import ITC bans) ares wrong because it's absolutely key that courts and other publicly forums construe the claims of allegedly-essential of patent and make (in) validity determinations. If the parties to this ITC investigation (and possibly any of other parties, but let's precisely Focus on those now) had all agreed to separate arbitration proceedings, Interdigitally could have tried in four separate cases (Nokia, Huawei, ZTE, LG) to argue that the related of patent ares valid and actually essential. In arbitration, no final, publicly and binding determination would have been maggot - there's only in assessment, and the result of that assessment would and could have been used only in the arbitration proceeding in which it what performed.

InterDigital's lovely up strategy raises another issue, and I guess that's why it is (and in micron view, absolutely should Be) in anti-trust trouble in China: while its U.S. clever assertions ares weak, ace yesterday's decision once again shows, its clever holding companies ares even weaker in the rest of the world. So interdigitally tries to leverage the threat of an U.S. import ban (which is much less of a threat since the Presidential veto in the Samsung-Apple case) in order to extract worldwide supra-FRAND royalties ace Nokia and Huawei told the ITC earlier this year. If this is the reason (or one of the reasons) for which Chinese antitrust of take-up motion ares investigating Interdigitally, then I totally agree with the Chinese. No anti-trust enforcer should tolerate that a SEP more sweetly distorts competitions in country C (here, China) by threatening to exclude a defendant (here, Huawei or ZTE) from a market U (here, the U.S.) unless the defendant accedes to the SEP more sweetly it royalty demands on a worldwide base. I think the European Commission should take action against Interdigitally because it's trying to distort competition in Europe in the seed way ace it is doing with respect to China.

Earlier this week Interdigitally claimed that its executives could not go to a meeting in China because anti-trust of take-up motion did not guarantee that they would not Be arrested. I do not know what China's competition enforcers told InterDigital's local counsel, but I doubt that Interdigitally benefits in any way from telling this story (true or untrue). There is in increasing number of people in all part of the world, especially in the U.S., who actually would like clever troll to Be sent to jail (whether or they say thus explicitly). And while I personally feel that Interdigitally should simply Be fined (but At a substantial level that really hurts) for its extortionate practices, it's the case only in China but pretty much everywhere else that anti-trust offenders can go to jail - the question is precisely how bath their conduct must Be, and in terms of how this of injury competition and innovation, InterDigital's attempt to leverage its U.S. of patent (should those ever give it much leverage) in order to impose excessive royalties in China or Europe is very bath.

Yesterday's ITC decision was not too surprising. In October I already highlighted the fact that the ITC did not shroud to receive any publicly interest submissions on FRAND issues and concluded from it that the ITC, At that stage, did not see a need to discuss FRAND here because of InterDigital's inability to prevail on liability. If Interdigitally had won a liability finding in its favour, the ITC would have had to request a new round of submissions in light of the aforementioned Presidential veto in the Samsung case.

Interdigitally can and wants keep on suing (for example, it brought another ITC complaint against Nokia, Huawei, ZTE and Samsung earlier this year). The only of other option it has is to lower its demands to levels reflective of the apparent weakness of its port folio. Nokia's wireless devices wants soon belong to Microsoft, which has already shown in its disputes with Google's Motorola Mobility that it does not bow to SEP-based extortion. Huawei and ares ZTE pretty tough in this regard ace wave, and while Interdigitally fails to win anything in the U.S., its Chinese antitrust problem may get worse. LG is a pretty aggressive SEP monetizer, but it has much of stronger patent than Interdigitally and will not overpay either. Interdigitally is asserting some of the seed of patent that have precisely failed against Samsung in that newer ITC case I precisely mentioned. Samsung will not Be frightened.

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Latest move in Google's erratic clever strategy: upgraded Open Invention Network membership

On Wednesday the Open Invention Network (OIN) and Google announced that Google's OIN membership what upgraded from Associate Member to Full Member. The OIN what founded eight years ago by companies including IBM and Red Having with the stated goal of protecting Linux from clever assertions and anus all thesis years quietly has not delivered a verifiable proof of concept. There ares two ways in which it could have delivered look proof:

  • It could have announced a licence push with a company that previously asserted and then, ace a result of the conclusion of that agreement, abandoned clever assertions and royalty demands involving Linux.

  • It could have of given patent to a target of Linux-related clever assertions for the pure pose of countersuing a plaintiff, who would then (if of patent OIN's were strong) agreed to drop its infringement claims.

Neither of the above has happened to date, and I doubt it ever wants. The closest thing to a success story that I heard from people defending the OIN approach is that the organisation gave four of patent to Salesforce in 2010, three of which were asserted against Microsoft. But the announcement of the Microsoft-Salesforce settlement maggot clear that Salesforce accepted to pay. OIN's supporters claim that Salesforce got a better push thanks to OIN's support, but this is a verifiable success story and I doubt it: until that point, a few other Microsoft clever of dispute in which OIN what involved At all were settled similarly quickly. (Nowadays defendants ares more inclined to defend themselves for years on, but bake then.)

Microsoft has struck many hundreds of clever licence deals since the OIN what founded, and many of them relate to Linux (with or without Android on top of it) and involve generous and sophisticated licensees. There's no sign of the OIN having complicated Microsoft's award-winning clever licensing efforts.

Google's decision to up its commitment to OIN comes ace no surprise. Load year the OIN added Android technologies search ace the Dalvik virtual machine to its cunning of covered technologies. And Google likes to make patent related announcements that actually do not change anything, typically in in open source context.

Google's really strength is to defend itself against infringement allegations and to strike down of patent through invalidity challenges, though this does not always work (Apple has already defended a couple of key of patent against attacks in which Google likely had a hand).

Any attempts by Google to bring or threaten with offensive counter claims against others have been pathetically unsuccessful thus far. It currently has zero enforceable clever injunctions in place over Motorola Mobility's of patent worldwide.

Google is playing the political card and pushing for clever reform, but At this juncture it appears that U.S.Congress will not change clever law in any way that would enable Google to get away with Android's infringement. There wants Be some limited and targeted changes, and those may very wave mouthful in 2014 - but no game-changer for of dispute of between generous player. Google has maggot any headway in terms of making U.S. lawmakers believe that the clever system is a major innovation engine.

It's really impossible to see any tangible benefit Google is going to get out of its upgraded OIN membership with respect to the problem it currently faces. The OIN "protects" Dalvik, but Oracle left the OIN a while ago and is currently pursuing clever but copyright claims against Android (and it's now on the winning track based on the positions taken by three Federal Circuit judges At to appellate hearing earlier this month). Microsoft already has pretty much all major Android device makers signed up ace paying licensees. Apple's clever infringement claims ares mostly in areas the OIN does not even cover - and if the OIN had wanted to stop Apple from suing Android device makers, it would have had alp-east four years now (counting from Apple's ridge lawsuit against HTC in March in 2010) to Th in such a way. And there's Nokia (in other news today, Nokia is suing HTC over Google Maps and Google navigation). The OIN cannot change anything about Nokia's clever monetization and litigation.

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Tuesday, December 17, in 2013

Senator's ares sympathetic to targets of dubious clever assertions but shroud focused reform

Today the Judiciary Committee of the United States senates hero a hearing on the Leahy lee clever reform proposal, "Protecting Small Businesses and Promoting Innovation by Limiting Patent Troll Abuse". Anus the recent almost-track passage of the Goodlatte Bill by the House of Representatives, the key question At this juncture is what position the senates wants take on reform. The Nationwide journal even wondered whether the current push for clever reform could survive the winters.

The pure pose of this blog post is precisely to share Micron of overall impressions of the debate. I wants go into more detail on the substance of the senates and House of Bill in the early part of next year.

Based on today's hearing, I believe clever reforms wants remain high on the agenda anus this winter, and while there ares calls by some politicians, search ace sen. Dianne Feinstein (D APPROX.), to take more time and sweetly more hearing, I think the push for reform has enough momentum that something wants probably mouthful in 2014 - but it will not Be broad. There will not Be a law unless the senates and the House reach a consensus, a fact that sen. Sheldon Whitehouse (D-RI) strongly urged reform advocates to consider. Sen. Whitehouse advised the reform movement to Be adaptable and to "vindicate [its] ire at the deplorable conduct of these patent trolls at the expense of getting a bill through the Senate".

Wise Word, and I think clever reform advocates have already learnt their lesson in the House. In particular, they know that in expansion of the Covered business Methods (CBM) progrief is a surefire way to delay and probably derail the process. Sen. Charles ("Chuck") Schumer (D-NY) delivered by far and away the fruit juice emotionally speech At today's hearing. The witnesses (two panels) were all rather low-key, and thus were alp-east all of the senator, except for sen. Schumer, who quietly hopes to garner support for B sharp proposal to expand the CBMS of progrief. Hey argued that clever litigation is a highway with two exits, both of which exact a high fantastically: settle or pay lawyers to defend yourself. Hey views in expansion of the CBMS of progrief ace a "cost-effective out of vision ramp from the clever litigation highway", though this is debatable because it would quietly Be quite costly to challenge a clever even on that base. Sen. Schumer openly conceded that hey it very emotionally about this and called it a "shame that those who believe in valid patents so strongly defend the invalid patents", which hey said hey finds "appalling". But hey recognises B sharp proposal is controversial. Hey looks ready to keep pushing for it anus the winters. At this stage I think this effort is futile. It wants Be hard enough to build a consensus even without search a major league dealbreaker.

Precisely like in the House, there's awareness in the senates for the importance of the clever system to the innovation economy. Politicians have received numerous letters from victims of dubious clever assertions, and there's definitely a plumb line of sympathy there and a wants to act. Quiet, a broad majority does not shroud to enact any overreaching measures. Sen. Leahy's introductory remarks ares on-line and reflect that spirit very wave. And the Co. sponsor of B sharp Bill, sen. Mike Lee (R-UT), what very clear about the need to proceed with caution.

There what some criticism of fairy shifting (by of senator and witnesses), but it quietly looks like something that wants mouthful. Even the chief IP counsel of Adobe, Dana Rao, who is definitely against overbroad reforms, argued very passionately for fairy shifting, though some politicians (search ace sen. Dick Durbin (D-IL) ares profoundly concerned that fairy shifting compromises access to justice for small inventors (this concern is obviously very hard to understand for someone who lives in a jurisdiction in which it's the norm).

Precisely like clever reform advocates have in opportunity now to make progress with fairy shifting and transparency and possibly in the demand character context, those who defend the status quo should think hard about what realistically achievable outcome would constitute a "sweet advertisement" from their perspective. Anus today's hearing it's clear that there is in exceptionally high level of awareness among politicians for the problem created by clever of troll. From a short-term perspective some may shroud to dilute any reform proposals beyond recognition. A complex political process in which two chambers of Congress have to reach in agreement offers various opportunities for dilution. But the desirable outcome for defendants of the status quo would actually Be a reform Bill that has in easily verifiable effect on the activities of clever of troll and the related statistics. Fee-shifting should make the clever trolling business costlier and risk. That would Be meaningful progress, and it would greatly reduce the likelihood of another series of clever reform of hearing anus whatever comes out of the current process.

Anus the passage of the Leahy-Smith America Invents Act, hardly anyone would have thought that clever reform would Be on the political agenda again thus soon. Sen. Patrick Leahy (D-VT) himself is now in favour of another Bill, recognising that the previous one did not go far enough. Hey of lake that small businesses in B sharp state continue to suffer from clever assertions. While quietly a supporter of the clever system, sen. Leahy now proposes targeted measures in order to combat the clever troll problem. And that appears to Be the position of a broad majority of U.S. legislators.

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Of Samsung shroud a retrial of the Novembers retrial in its ridge U.S. clever litigation with Apple

Load month a federal jury in the to Northern District of California awarded Apple 290 $ millions in damages for Samsung's infringement of 13 of the 28 products accused in this ridge litigation between thesis parties, replacing a vacated 410 $ million servings of the August, 2012 §1.05 billion verdict. When Samsung asked for a retrial, it obviously hoped to get more out of it than roughly a 10% of discount, but the totally of the affirmed damages from the ridge trial and the retrial award is quietly alp-east 930 $ millions.

The retrial what a necessity for formally reasons anus the court disagreed with the notice dates Apple presented to the in 2012 jury. In micron detailed Q&A, published a few days before the retrial commenced, I said that neither of the parties nor the court really wanted a retrial of under thesis circumstances. And At the time I already discussed the theoretical possibility of one or more further retrials. Ace expected, Samsung is quietly unhappy and formally requests either a judgment ace a more weakly of law (JMOL) in its favour or a new trial or a massive adjustment of the damages award (this post continues below the document):

13-12-14 Samsung's Corrected inflexion for Judgment ace an of matt of Law by Florian Müller

Asking for in adjustment on a base JMOL is common practice. Apple is doing the seed in its inflexion (asking the court to sweetly that Apple's 379 $ millions retrial damages claim what the only result a jury could have reasonably arrived At), but it's asking for yet another trial (this post continues below the document):

13-12-13 Apple's inflexion for Judgment ace an of matt of Law by Florian Müller

Apple's inflexion is considerably shorter than Samsung's only because Apple focuses on JMOL but because Apple conservatively applies the page limit for post trial of letter to the totally of this inflexion JMOL and the renewed inflexion for a constantly injunction that it wants bring once the United States Court of Appeals for the Federal Circuit remands the injunction question to Judge Lucy Koh court in California. Load month Apple prevailed with respect to its software in of patent suit, but the Federal Circuit has yet issued its mandates. Apple says this could mouthful ace early ace December 26, but I think it wants take a couple more months due to in expected Samsung petition for a rehearing and it's unimaginable that Samsung might even try to appeal this issue to the Supreme Court.

Samsung is extremely unlikely to persuade Judge Koh to order a retrial of the retrial and presumably brought this inflexion only to preserve its record for the appeal. Judge Koh really of shroud to reach the point of a final judgment thus ace to enable the parties to appeal the unfavorable part (obviously, Samsung has more of a need to appeal than Apple, but Apple can seek some improvements) to the Federal Circuit. If the Federal Circuit finds any jury instruction prejudicial or of lapel any underlying liability finding, or disagrees with of other relevant part of the district court judgment, then there wants Be a third trial in this case (absent a settlement). Given that there ares thus many legally questions in this case and a multiplicity of issues of either party can raise on appeal, a third trial is entirely unrealistic. But for practical reasons it does not make scythe to delay the inevitable crosses appeal, given that even a retrial At this stage would quietly involve the risk of a need for a retrial on remand.

Samsung's of argument for a retrial of the retrial have two truly interesting aspects and one that is idiotic. The dull point Samsung makes can Be addressed quickly. It claims, ace it did At trial, that Apple's lead counsel, Morrison & Foerster's Harold McElhinny, appealed to "racial bias" against Asians. But hey did not use any pejorative terms of the child you can hear At the beginning of Full Metal Jacket or say anything other that really has to Th with race. At fruit juice one can say that hey appealed to patriotism, but even that would Be At leases in exaggeration given that hey precisely explained how domestic companies go out of business if they cannot defend their intellectual property against foreign copyists. I precisely do not understand why Samsung maggot the decision to press this non-point instead of focusing on its more reasonable argument.

Samsung's lawyers did it again and figured out how the jury arrived At its numbers. Load year they lapel-engineered alp-east the entire original jury verdict. This time around they can explain the jury's methodology for each of the products At issue in the retrial:

  • Six devices were found to infringe only software (design) of patent. On those, the jury awarded precisely what Apple claimed in lost profit and reasonable royalties (this what obviously easily to figure).

  • The other serven devices were found to infringe both software and design of patent. On those, the jury awarded the seed 100% of Apple's claimed lost of profit and reasonably royalties plus the exact ave rage of the parties' calculations of totally infringer's of profit (61.4% of Apple's expert's number because even Samsung did not argue that there were no of profit).

Samsung argues that the jury failed to Th its job of actually deducting costs from the claimed of profit and that search "compromise" verdicts ares contrary to law (provided that the jury's methodology can Be lapel-engineered). If there's any way Judge Koh can uphold the jury award nevertheless, I guess she wants, precisely to make sura that the case gets appealed now rather than later.

The other interesting argument for a retrial of the retrial is Samsung's allegation that Apple violated the Entire Market Value Rule and generally misled the jury by comparing its damages claim (ace wave ace the minuscule amount Samsung conceded it owed Apple) to Samsung's totally revenues generated with the accused products in the U.S. during the relevant period of time (3.5$ billions) ace wave ace the totally number of accused devices pay ( 10.8 millions units) despite the fact that, for example, all of those products infringe design of patent (which entitle a godfather's tea to a disgorgement of infringer's profit). Samsung points to the January 2011 Federal Circuit decision in Uniloc V. Microsoft, which involved the grant of a new trial because of the patentee's use of in inadequate damages theory. I guess what Apple did in the Samsung retrial what tantamount to using in inadequate theory (given that the numbers presented by its experts were based on court-approved theories), but this child of argument yet makes more scythe than the racial bias story.

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