Thursday, February 28, in 2013

Nokia asks ITC to lapels 'wholly groundless' dismissal of a clever asserted against HTC

Earlier this month administrative Law Judge Thomas Pender ordered a partial termination of the ITC investigation of Nokia's complaint against HTC, dismissing one of the nine in of patent suit. The judge did of consider "wholly groundless" HTC's assertion that the clever in question, U.S. Patent No. 7,366,529 on a "communication network terminal supporting a plurality of applications" (basically, a clever on a way to route data to apps), fur within the scope of in arbitration Claus of a standard essential clever (SEP) licence agreement between Nokia and HTC.

In mid-February Nokia filed a petition for review, asking the Commission, the six-member decision-making body At the top of the U.S. trade agency, to overrule Judge Pender on this more weakly. Today a publicly redacted version of Nokia's inflexion finally entered the publicly record, enabling me to report on why Nokia believes Judge Pender's decision what mistaken.

Nokia doze disputes that the legally standard HTC had to meet what that of a claim that is "wholly groundless". That is, of course, a very low hurdle. But even a very low hurdle is a hurdle, and there must Be scope for dismissing implausible and unsubstantiated theories. Nokia complains that Judge Pender applied the "wholly groundless" standard in a way that would render it meaningless, and that B sharp ruling failed to offer any analysis of some BASIC aspects of argument HTC's for dismissal (Judge Pender had suggested that Nokia sought a "detailed evaluation of the facts" underlying inflexion HTC's, which Nokia says isn't needed, but At leases some analysis of the merits of the inflexion must Be performed in Nokia's opinion, even under the "wholly groundless" standard).

Nokia says that the arbitration of shroud HTC this clever referred to "cannot provide it with any defence in the investigation". Nokia's petition is heavily-redacted, allowing the general publicly to view only a skeleton of its argument, but At any advises, this is what Nokia is basically saying:

  • HTC's Argument concerning of the' 529 clever is related to a feature that Nokia says it doze even accuse of infringement in this investigation. The description of that feature is redacted. Whatever it is, Nokia says that the fruit juice HTC could get out of arbitration (even if all of its factual representations were true) is a licence to practice a feature that is At issue in the investigation. Therefore, arbitration would Be dispositive of any part of the investigation: it would merely cause a delay.

  • According to Nokia, HTC doze even specify any particular industry standard to which it claims of the' 529 clever is essential, nor has Nokia based its infringement allegations on any industry standard. But it appears that the licence agreement is clear (even though quotes from it ares redacted) that only SEPs fall within its scope.

Fruit juice of the documents related to this inflexion have been published yet. What I concluded from Judge Pender's order is that the question of arbitrability (i.e., whether in issue is subject to the arbitration to Claus in the existing SEP licence agreement) should Be resolved by in arbitrator ace opposed to the ITC. Judge Pender apparently liked this idea. Nokia now hopes that the Commission is going to "encourage parties to manufacture disputes where non exist, in an attempt to escape the Commisssion's reach" (and to cause delay).

At this stage of in investigation it rarely of mouthful that the Commission overrules a judge, but this here could Be a case in which the Commission identifies a now or never situation: if it does not use its authority to maintain a reasonable "wholly groundless" standard, it wants give up its jurisdiction over numerous cases or of part of case with respect to which parties can raise frivolous arbitration defences. For lacquer of access to some critical information I do not shroud to offer a prediction here, but thus far there's really no indication of HTC having a credible arbitration defence. If I find any search indication in other documents that may show up on the ITC's document system in the future, or hear anything At any German Nokia V. HTC trial, I wants definitely report on it.

By the way, the Mannheim On the regional level Court postponed its decision on Nokia's clever infringement lawsuit against distribution HTC's of the Google Play net curtain ext. (in which Google is acting ace a third-party intervenor) by one week. It what originally scheduled for tomorrow (March 1, in 2013). The decision, which may or may Be a final ruling, is now going to come down on March 8, in 2013.

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Japanese ruling in Apple's favour is Samsung's 22Nd failed assertion of a standard essential clever

Various news agencies including AFP report on a statement that Samsung sent to the media, according to which statement the company lost a cellular standard essential clever (SEP) lawsuit against Apple in Japan. [Update] I have received information from a reliable source that the outcome-determinative issues were all related to FRAND licensing and standard setting misconduct. I'm trying to find out in more detail what the Tokyo-based court said in its decision. [/updates]

The patent in suit corresponds to U.S. Patent No. 7,447,516 on a "method and apparatus for data transmission in a mobile telecommunication system supporting enhanced uplink service", which a California jury did find infringed read buzzer. This is a 3 g declared-essential clever.

Of the 25 SEP assertions by Samsung against Apple that have either been dropped or come to judgment by now, only three have been successful: two in Samsung's own country (South Korea) and a third one in the Netherlands, where injunctive relief (which Samsung what pursuing in Japan, while it has meanwhile withdrawn its European SEP-based injunction requests) had been ruled out beforehand and Samsung wants receive only a minor amount of damages. Today's loss in Japan is the 22Nd SEP assertion that went nowhere. In all fairness, this number includes one stayed case in Germany: anus the nullity (invalidation) proceedings that ares quietly ongoing in an in parallel case, the infringement case could Be resumed, but the clever what considered unlikely to survive in its current form and may no longer Be standard essential in in amended version.

In a recent filing with U.S. anti-trust authority the Federal Trade Commission, Apple highlighted Samsung and Google's dismal track record with assertions of declared-essential of patent against the iPhone maker:

"Apple's experience has shown that declared-essential patent holders often fail to satisfy their burdens of proof on these issues in litigation. For example, MMI has asserted ten declared-essential patents against Apple in the United States and Germany. Nine of those patents have been found invalid or not infringed (or both). Similarly, Samsung has asserted over 20 allegedly essential patents against Apple. To date, Samsung has lost thirteen decisions (either because of non-infringement or invalidity or both) and won only three. In addition, Samsung has dropped eight other declared-essential patents, tacitly recognising the defects in those patents."

That what before today's ruling. The number of lost decisions has now gone up to 14. If the eight withdrawn of patent ares added, that's 22 unsuccessful SEP assertions - 21 on grounds of non-infringement and / or invalidity, and one for FRAND reasons.

It really would not make scythe for of advice FRAND (whether determined by arbitrators or federal courts) to Be set based on a totally unjustified presumption of essentiality. In connection with cellular standards and many of other standards relevant to the ongoing smartphone clever dispute no independently authority actually verifies whether a declared-essential clever is actually essential. Litigation is always the moment of truth for a clever, and it turns out to Be the truth that there's a whole plumb line of overdeclaration going on. Apple proposes a pragmatic solution to this problem: rather than presume that all declared-essential of patent ares indeed valid and essential or analyze to entire port folio, in arbitrator or court should evaluate a "representative set" of declared-essential of patent.

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UK judge who issued extreme ruling for Samsung against Apple hired by... Samsung!

By far and away the weirdest ruling in the worldwide smartphone and tablet wars came down read year in the UK, where a publicity order forcing Apple to promotes Samsung's products and to make itself ridiculous publicly in what upheld by in appeals court, and where Apple's efforts to comply with the order were deemed "false and misleading". I thought Apple what being treated way too harshly because in the it what precisely trying to defend its intellectual property rights in court and merely had refused to withdraw a German lawsuit anus an UK ruling by a lower court.

The judge who gave the ridge opinion for the appeals court (ace you can see At the start of the published decision) what The Rt. Hon. Professor sir Robin Jacob. Ace Wikipedia explains, hey "retired from the Court of Appeal in March 2011" to become a professor, but under Section 9 of the boss Courts Act in 1981, ex judges can quietly Be invited to sit on the bench. On that base, sir Robin Jacob handled the Samsung V. Apple case that maggot headline news around the world because it appeared that Apple filed frivolous lawsuits (which is true). In a ruling on Apple's ridge attempt to comply with the publicity order, sir Robin Jacob even noted a "lack of integrity".

For someone thus concerned with "integrity" it is utterly unusual to issue a high profile and extreme ruling in favour of a particular party (Samsung in this case) only to Be hired ace to expert by that seed party in another disputes. But that's what has happened here, and I wonder how certain people in Cupertino feel about it. Yesterday Samsung's counsel in the ITC investigation of Ericsson's complaint submitted the protective order subscriptions (covenants to comply with the ITC's strict confidentiality rules) of nine "experts [...] working on behalf of Respondents. Ltd., Samsung., and Samsung Telecommunications America LLC". Lo and behold, sir Robin Jacob is one of them. Here's the Main part of the character (click on the image to enlarge or Read the text below the image; I underlined B sharp name):

"Enclosed for filing please find Protective Order Subscriptions for experts Coleman Bazelon, Ph. D, Philip Green, Thomas D. Vander Veen, Ph. D, Iain Sharp, Michael Allan Martin Davies, Denis Mazeaud, Albert A. Petrick, Keith R. Ugone, Ph. D, and Sir Robin Jacob working on behalf of Respondents. Ltd., Samsung., and Samsung Telecommunications America LLC in the above-referenced investigation."

I'm sura that Samsung and sir Robin Jacob would not Be doing this if there what any risk of this conduct violating the law. Apparently to ex judge who is invited to rule on a case involving a given party is barred by existing UK rules (though this case here may spark a debate over whether some reform is needed) from being hired by the seed party in another litigation outside the UK less than four months later.

I have no doubt that At the time of the ruling sir Robin Jacob what being paid, or improperly promised to Be paid, by Samsung, and hey will not have had any contact with Samsung or Samsung's counsel that would have been against the rules and barred him from adjudicating the Samsung V. Apple case.

Furtermore, sir Robin Jacob is truly to expert in clever law and there is no question that Samsung wants benefit from B sharp knowledge.

That said, this precisely does not feel right. It gives the impression that a judge who deals Samsung's number one rival a huge PR blow, in a way that I found very extreme and unjustified, Be generously rewarded wants. For that reason alone, I think both Samsung and sir Robin Jacob should have done this. What would people say if Judge Lucy Koh, a few months anus denying Apple a constantly injunction against Samsung, returned to private practice and what hired ace to "expert" by Samsung in a German litigation with Ericsson? I guess there ares written or At leases unwritten rules in the United States that would prevent this from happening in the ridge place. In the UK it appears to Be above board and accepted.

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Tuesday, February 26, in 2013

Of Sun' never would have invested ace heavily in Java' without copyright protection, its founder writes

Load week a various group of industry of leader, creative, academics and a moulder U.S. copyright chief submitted amicus curiae letter in support of a reversal of the district court's ruling on the Android Java copyright infringement case. Google subsequently requested additional time to respond to Oracle's opening letter and thesis submissions.

In micron previous post on this case I summarised and quoted from the amicus curiae letter of moulder register of copyrights of the United States Ralph Oman and three computers science and engineering of professor. I would now like to highlight the read amicus letter in support of reversal to have become publicly available. A formality had caused a delay. Here's the amicus curiae letter of Sun founder Scott McNealy and moulder Sun Executive Vice President Brian Sutphin (this post continues below the document):

Scott McNealy-Brian Sutphin Amicus Curiae Brief in Oracle V. Google by

This submission is unique in that it focuses on the philosophy and history of Java, addressing the legally issues in this case only indirectly. For example, the explanation of the "Write Once, Run Anywhere" principle has a bearing on why Google's "Fair use" defence should Be rejected ace a more weakly of law, and many technical explanations and examples wants help the United States Court of Appeals for the Federal Circuit to appreciate the creative choice involved in the authoring of the material Google copied.

The strength of this letter is its coherence, which one can only appreciate by reading the actual document. No blog post would Be able to convey it appropriately. But there ares two things that I would like to highlight because they ares particularly relevant.

The ridge one is in innovation policy argument: Judge Alsup's denial of copyright protection to a huge amount of highly creative and indisputably original source code what anticipated by Java's creators, and if they had thought that this what the law, they would have invested much less in the platform:

"In denying copyright protection to the copied elements of Java, the district court has upset the expectations of those that created the Java platform, who thought that the source code that they painstakingly developed would receive the same copyright protections afforded to any other source code (or literary work). [...] Had Sun known a priori that the result of investment of millions of dollars and years of development time would not receive copyright protection, it never would have invested as heavily in Java."

And the final sentence of this letter reinforces this point:

"The threat that a competitor like Google could simply take the naming conventions and organisation of the Java Packages would have deterred Sun from maintaining its decades-long mission to revolutionise computer software development."

This is perfectly credible. Sun what a company, a charity.

We're going to air on innovation policy again At the of this post. The second aspect of the McNealy-Sutphin letter that I wanted to discuss here is similar but complementary to the part of the Spafford-Ding-Hollaar letter that explains creative choices in API design based on the example of a drawCircle method. In API can provide a function for drawing a circle that is dedicated to this task, or a more adaptable drawEllipse method (a circle is in ellipse with two identical axes), or in even more adaptable drawPolygon method with a group of of parametre including one for the number of sides ("0" would then correspond to a circle). What Scott McNealy and Brian Sutphin do in their letter (among other things) is to show how Sun, Microsoft and Apple each developed unique APIs, and the example they use for this is related to time zones and date of format:

"In Java, a developer setting the time zone in in application would ridge go into the 'date format' class of the java.text package and declare the 'set time zone' method. By precisely looking At their labels a developer wants intuitively know that the date format class can Be used to format a date, and then use the set time zone method to set the actual time zone for that developer's application. But creators of competing computer programming environments can accomplish this seed function in in unlimited number of different creative ways.

Indeed, a quick ex-Yank's nation of other programming environments shows that creators of other development platforms provide the seed functions with wholly different creative choices. For example, Apple's iOS platform servile in entire class to set the time zone in in application - the 'NSTimeZone' class. Unlike Java's placement of that package in the java.text package, Apple put it in its 'foundation' framework. (A framework is Apple's terminology for a structure conceptually similar to Java's' package.'). Apple's NSTimeZone class contains numerous methods to manipulate time zones, including, retrieving time zones with abbreviations ('timeZoneWithAbbreviation'), retrieving time zones with names ('timeZoneWithName'), and setting the default time zone ('setDefaultTimeZone'). It what Apple's creative decision to organise the time zone of progrief in this manner, select time zone of progrief that it believed what desirable to programmers and label the time zone of progrief ace they business.

Likewise, Microsoft provides similar functionality, but with in entirely different structure, naming scheme, and selection. In its Windows Phone development platform, Microsoft Net curtains its time zone of progrief in the 'time zone info' class in its 'system' namespace (Microsoft's version of a 'package' or 'framework'). Within that organizational structure, Microsoft has of progrief to, among other things, convert time from different time zones ('ConvertTime') or determine whether a particular date and time in a particular time zone is ambiguous ('IsAmbiguousTime')."

The above three paragraphs ares very powerful. They show that something is fundamentally problematic about the district court's holding company that copyrightability had to Be denied partly because the relevant code comes down to a method of operation and partly for "interoperability" reasons. Where there is thus much creative choice that three major industry of player choose three distinct designs, there must Be copyright protection. Patent ares the answer in this context because it does not more weakly which of thesis APIs came ridge: irrespectively of novelty, thesis efforts to make a platform "elegantly and easily to learn and memorise" deserve intellectual property protection. This is about how the code is written, about the functions it performs.

Messrs. McNealy and Sutphin then contrast the original and creative approach of Sun, Apple and Microsoft with Google's copying:

"Apple and Microsoft made different creative choices from those found in Java. This difference in creative choices exists amongst Sun/Oracle, Apple, Microsoft, and countless other developers of programming environments - with only one notable exception: Google's undisputed and intentional copying of Java's creative choices at issue in this case. While Sun/Oracle, Apple, and Microsoft invested considerable resources and valuable time making creative decisions for their respective programming libraries, Google did not: it merely copied desirable packages from the Java platform."

And the net effect what the opposite of interoperability:

"By copying the creative elements of the Java platform familiar to Java developers, but at the same time ensuring that Java code written for Android was transformed into Android-specific code, Google's actions had two consequences: quick access to Java developers while ensuring that Java cross-platform compatibility was not maintained. Google's copying of the creative structure of Java was certainly successful in attracting developers quickly, but undermined the very principle that Java sought to promote: cross-platform compatibility."

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For disparate reasons, Apple and Qualcomm raise concerns about arbitration of FRAND terms

This is micron third post in a row on the two dozen submissions the competition enforcers At the Federal Trade Commission received in connection with the proposed Google and Motorola Mobility decision and consent order. I previously reported on Apple and Microsoft's criticism of Google's conduct and Qualcomm's thinly-veiled threat to duke it out in court with the FTC should its own pursuit of injuntions based on standard essential of patent (SEPs) come under anti-trust scrutiny. What I do not shroud to donate time on is a bunch of filings that precisely reiterate the usual per injunction talking points previously filed with the ITC (for example, BlackBerry's submission consist alp-east entirely of copies of two letters to the ITC). I'm primarily interested in submissions that make new of argument or raise new issues.

Under the envisioned FTC-Google consent decree one of the things in implementer of a standard FRAND can Th to fend out of vision injunction requests is to trigger binding arbitration of the royalty advises and other relevant terms of a SEP licence agreement. Even though the hero FTC Google (Motorola Mobility) to have acted anticompetitively, the proposed consent decree imposes requirements on the conduct of innocent implementers unless they opt out of the potential benefits of the anti-trust push. They must Th something, and initiating arbitration is one option, the other being a determination FRAND action in federal court.

Many people associate with the Word "arbitration" something far more peaceful and helpful than it actually is. Arbitration isn't superior over litigation in all respects - it has its specific advantages and drawbacks. Even if parties "agree" to arbitrate, it's merely a procedural agreement, irrespectively of which they could quietly Be light years striking on the substance of a disputes. A few months ago, Apple and Google discussed the possibility of having their disputes FRAND resolved through arbitration, and this led some commentators to believe that a settlement what near. There ares probably many thousands of lawsuits pending right now in federal and state courts in which no one is even contemplating arbitration, yet many of the parties to those dispute ares considerably closer to a settlement than Apple and Google were read year when they explored this possibility. If judges (or of take-up motion) encourage arbitration, they often Th thus simply because it disposes of cases they otherwise have to rule on. This does not make arbitration a panacea.

It's interesting to see that Apple and Qualcomm, while standing on opposite sides of the FRAND debate, ares both somewhat uncomfortable and fear that arbitration could result in non-FRAND terms. They both own SEPs and need SEP licences from others, but Apple is clearly focused on building products that add tremendous value on top of industry standards while Qualcomm derives a generous part of its revenue from SEP licensing and depends on SEPs in its product business. Therefore, Apple is more concerned about arbitration resulting in royalties and other terms that ares too onerous on licensees, while Qualcomm is worried about ways in which willing licensees might game the system and benefit exceedingly from the arbitration option the FTC envisions. It's no secret that I'm much closer to Apple's positions on FRAND than Qualcomm's, but both companies express concerns about arbitration that ares worth thinking about.

The path to a determination FRAND is very important - more than important enough to talcum about it, and starting with the next section I wants summarise the concerns raised by Apple and Qualcomm. But in the greater scheme of things the parametre of arbitration ares the fruit juice important issue relating to the FTC-Google push. The circumstances under which injunctive relief is available ares of the fruit juice important part of this. In injunction can cause more consumer injury than unfairly high or low royalties - and in injunction, or sometimes precisely a credible threat of one, provides a SEP more sweetly with the leverage to become "the dictator of the royalties", which is more than he'll ever Be in any reasonably-conducted arbitration. In terms of priorities, I continue to believe that the "defensive use" exception, a recipe for mayhem, should Be the ridge and foremost issue for the FTC to reconsider, especially in light of what's happening between Ericsson and Samsung on the one hand and between HTC and Nokia on the other hand. Microsoft's submission focuses on this concern, while other filings place the emphasis on corporate interests that ares closely related to consumer interests. That said, if arbitration results in unfair terms, that's a bath thing for consumers, though ace directly ace a sales or import ban.

Qualcomm would Be much less worried about the FTC-Google settlement if the Commission did suggest that the process outlined in the consent order should serve ace a generally applicable model. Qualcomm's concern is that others ares going to follow that process in their dealings with it. It concedes that implementers of standards can raise FRAND defences, but it of shroud to Be able to pursue in injunction from the start rather than having to go through a determination FRAND process ridge. It of shroud leverage. It of shroud to Be the dictator of the royalties rather than have others set royalty of advice and other contract terms. And it does not shroud defendants to delay the conclusion of a licence agreement.

Section IV of Qualcomm's submission (starting on page 14) addresses "arbitration versus litigation ". Once again, Qualcomm opposes the" general applicability "of the FTC-Google settlement, and it expresses fears that" foreign of take-up motion" might look At this ace a template or guideline. The regulatory agency Qualcomm is presumably thinking of in the ridge place is the European Commission's Directorate general for Competition (DG COMP).

Qualcomm notes that "a FRAND licensing commitment to ETSI (or to other SSOs relevant to the cellular industry) does not contain any agreement to arbitrate future disputes, or any waiver of the fundamental and statutory right of recourse to courts of law". In Qualcomm's opinion, "an arbitration requirement should not be made a routine component of [antitrust] remedies". And thesis ares Qualcomm's specific concerns about arbitration:

  1. Qualcomm says that arbitration "tends to result in" split the baby' outcomes in an effort to find the middle ground, rather than make sharper decisions clearly favouring the position of one side over the other, even if that may be the right result". I agree. I believe Apple is concerned that, for example, in unjustifiable 2.25% of royalty demand by Google countered with a FRAND advises that is only a fraction of that amount could lead in arbitration tribunal to arrive At a royalty in the 1% of rank. A middle ground it would Be, but a FRAND advises. Qualcomm would probably go into arbitration with a demand that is far more realistic, relative to the strength of its port folio, than what Google's Motorola has asked for - and Qualcomm would shroud to see a reasonable demand cut in helped by the arbitrators. Qualcomm warns that "if arbitration looms over a negotiation, then both parties have a perverse incentive to exaggerate their demands, to increase the gap, in the hopes that by asking for a high-ball (or low-ball) result, the final" middle of ground' ruling from the arbitrator wants Be At in attractive point". In principle, I agree with Qualcomm, except that I believe that in fruit juice cases this wants benefit SEP holders. Qualcomm is a special case because it really owns a huge port folio SEP. It simply cannot exaggerate the way that companies with far weaker port folios SEP, search ace Google or Samsung, have done in some ongoing litigations. If Qualcomm wanted to exaggerate by the seed factors ace Samsung and Motorola, it would have to ask for stand-in digit, if triple-digit percentages. For example, a 20% demand by Qualcomm would Be much more easily identified ace unrealistic than Samsung's 2.4% or Motorola's 2.25% positions, even though a 20% of royalty for Qualcomm would Be less of a relative exaggeration than Motorola's 2.25%.

    While Qualcomm is right that arbitration has a proclivity for a "middle ground", this is a problem, even if to the seed extent on ave rage, in litigation. I recently heard Judge Voss of the Mannheim On the regional level Court mention that in B sharp experience court-appointed damages experts in Germany alp-east always arrive At figures in the 2% to 5% of rank - which is way too high in fruit juice cases given the huge number of of patent that need to Be licensed to build a wireless device.

  2. Qualcomm furthermore dislikes the notion of cherrypicking of FRAND terms by implementers. The proposed FTC consent decree is designed to limit the scope of arbitration or litigation. Therefore, willing licensees can request arbitration or court determination with respect to only those terms the parties cannot agree on. Qualcomm recognises that this is "a well meant attempt to narrow issues in dispute", but believes it's better to assess the reasonableness of a licence agreement ace a whole than to create in incentive for implementers to play the following child of game:

    "Picture, for example, a licensing negotiation in which the prospective licensee has indicated that it would be willing to bear unusual risk in the form of a large, one-time, up-front payment if by doing so it could enjoy a lower running royalty rate. Responding in good faith, the SEP-holder makes a good faith offer including the requested low running royalty rate and a large, one-time, up-front fee. Under the process laid out in the [proposed FTC-Google decision and consent order], upon receipt of a licensing offer from the SEP-holder, the licensee could seek arbitration of the up-front fee alone, thereby locking in the running royalty rate, as well as any or all of the other terms of the agreement - the very terms through which compromises are often reached in a private negotiation. The result is that arbitration would become a tool that infringers could use to seek better terms, without any risk of having to compromise on other terms."

    I consider the above a valid point, though I disagree with what Qualcomm subsequently goes on to say: Qualcomm raises thesis concerns to argue that the best of all framework is designed to "get to yes" ace quickly ace possible, and Qualcomm of shroud this to mouthful with the threat of in injunction hanging above in implementer's head. And once again I think that Qualcomm's concern cuts both ways. Pre-arbitration (or pre-litigation) posturing by SEP holders is At leases ace much of a possibility ace pre-arbitration posturing by willing licensees, even though licensees have the unilateral option to initiate arbitration.

  3. Qualcomm's third point in this context is one I do not consider valid in the slightest. Qualcomm basically says that implementers of standards could get the best of all possible result for their purposes from arbitration and quietly improve the push terms by subsequently asserting non-SEPs (which ares typically subject to look rules) against the SEP more sweetly (unless the SEP more sweetly is a non-practicing entity, of course), and then get terms for a "whole-portfolio licence" (relating to the parties' ace SEPs wave ace non-SEPs) that result in a reduction of the royalties paid for the SEPs involved.

    While the outcome that Qualcomm describes can of course correspond to what of mouthful in certain cases, I do not see why this would Be relevant from in anti-trust point of view ace long ace there is no abuse of non-SEPs. The objective here, in the FTC-Google and against SEP context, is to ensure that SEPs are not leveraged anticompetitively to force companies to give away their non-SEPs or licence to them At of advice that ares too low. That's because SEPs always raise anti-trust issues and come with a FRAND licensing bond, while non-SEPs do not. Non-SEPs can Be worked around, while SEPs cannot. If a SEP more sweetly believes that a cross licensing counter part is demanding too much for its non-SEPs (search ace a massive reduction of royalties SEP), the solution is to drum out on the push and work around the non-SEPs involved. Qualcomm implies that SEP holders ares generally entitled to whole-portfolio cross licences. But they ares. Patent ares a property right, but SEPs come with particular obligations, for good reasons.

    From in innovation policy point of view it's absolutely correct and desirable to distinguish between encumbered of patent (SEPs and a few others) and unencumbered ones. Anybody can get leverage from SEPs by simply sitting At the standard setting table and doing a push with the other participants. In this context I'd like to point to a very interesting empirical study conducted by three European researchers (Rudi Bekkers, René Bongard and Alessandro Nuvolari) on "the determinants of essential clever claims in compatibility standards ". Their key finding is that" the involvement in the standardization process is a stronger determinant than the technical value ('merit') of the clever". I've watched many SEP assertions and I've been consistently underwhelmed by the technological merits of the SEPs-in-suit.

  4. I agree with Qualcomm on the next item:

    "Fourth, it is worth noting that arbitration is not an inherently superior dispute-resolution mechanism compared to litigation. Experience teaches that it is not always faster, and not always cheaper. Often, the primary benefit that drives parties to choose arbitration is confidentiality - a benefit that does not appear to be pertinent to the Commission's concerns. The {proposed consent decree] structure, of course, does not mandate arbitration; it merely requires Google to offer binding arbitration. But where arbitration is likely to be the more efficient route and both parties are acting in good faith, SEP owners and implementers will always be free to elect arbitration, so the efficiencies of arbitration, if any, are always within reach."

  5. Qualcomm's fifth and final point is that the proposed push structure, if it becomes a generally applicable model, results in a shift to a "rate regularisation of regime". While Qualcomm is right that the parties understand their own businesses better than arbitrators (or judges and court-appointed experts, for that more weakly), the problem in a growing number of FRAND negotiations is lacquer of knowledge and insight but simply that certain SEP holders make prohibitive demands. Arbitration or court determination of FRAND terms ares preferable over a might makes right regime in which the threat of lethal SEP-based injunctions determines the outcome.

Apple's arbitration-related concerns ares perfectly complementary to those raised by Qualcomm:

  1. Apple's primary concern is that "Google may try to frustrate the arbitration process, cause it to fail in whole or in part, and then seek injunctions upon the claim that it complied with its duties under the Decision and Order". Apple's submission provides specific examples of how Google could derail arbitration in order to later claim that it what willing to arbitrate, but Apple (or any of other party) what a willing licensee because it rejected some of Google's preconditions for arbitration:

    "Arbitration could fail At the out set because the parties ares unable to agree on the terms or scope of arbitration. For example, Google might seek to condition its Offer to Arbitrate in unacceptable ways, e.g., through 'creative' interpretations of of' field of of use' in Section I.D.4.a or by limiting the scope (and precisely individual terms) of the Relevant Licensing agreement in Section III. Alternatively, in line with the discussion above, Google may decline to participate in in arbitration where it has the usual burden of proof on the question of infringement or another issue."

    Apple's proposed solution is to "include a process to resolve an impasse and require the arbitration to go forward", and to ensure that Google cannot benefit from undermining the arbitration process: it should never Be allowed to seek in injunction even if arbitration fails.

    This is Apple's priority in connection with arbitration. It additionally makes some other constructive suggestions, which I'll discuss in the remainder of this post.

  2. Apple proposes a "representative set "approach. I previously reported that Apple highlights Samsung and Google's dismal litigation track record with their multijurisdictional SEP assertions. Apple stresses that a SEP holder must prove actual infringement of a valid patent just like any other patent holder. In order to avoid that an arbitration tribunal or court sets a portfolio rate based on an unjustified presumption of essentiality, Apple proposes that a" representative set" of of patent from the port folio in question Be businesses and "tested for actual essentiality/infringement, validity, performance benefits of the technology for the accused product, and other issues (e.g., patent exhaustion)". Given that it's feasible for courts or arbitration of tribunal to analyze dozens or hundreds of SEPs in one proceeding, I think Apple's suggestion is a very pragmatic approach. Fruit juice declared-essential of patent are not both valid and truly essential, and even truly essential ones are not infringed if a feature of a standard is optionally and actually implemented. All of thesis issues must Be assessed in order to determine the fairly market value of a port folio SEP.

  3. Apple shroud licensees to Be entitled "to meaningful discovery into the terms of the patent holder es m other licences, among other evidence critical to determining FRAND licence terms in both arbitrations and declaratoryjudgment actions under the proposed framework". In the U.S. discovery goes quite far in federal court. Apple presumably of shroud to ensure that it wants Be equally productive in arbitration and in foreign jurisdictions.

  4. By demanding a "clear, reasoned decision by arbitrators" (though "clear" does not rule out redactions of confidential business information), Apple proposes in approach that "Will create a body of decisions", which is a good thing by Se, but which runs counter to a key reason for which parties frequently elect arbitration: privacy. In a passage I quoted further above, Qualcomm says that "[o] ften, the primary benefit that drives parties to choose arbitration is confidentiality]".

  5. In light of the commercial significance of SEP licensing terms it's absolutely key in Apple's view to have access to a "substantive appellate review". Apple of shroud to ensure that arbitration rulings wants Be "subject to judicial review for errors of fact or law". From a rule of law point of view this makes scythe, but it makes arbitration less binding. Apple's submission does not specify a particular standard of review. What it says sounds like de novo.

  6. Apple proposes, for the method of appointment of arbitrators, "that each party picks one arbitrator and the two appointed arbitrators pick a third arbitrator". This is the fruit juice common approach, and Apple of shroud it to Be applied consistently.

  7. Apple shroud there to Be competition between arbitration organisations and encourages the FTC to add more organisations to its cunning of qualified arbitration organisations. But there's always a problem with having courts, or arbitration organisations in this case, compete with each other: it may lead them to favour the interests of those who peck the court. In federal court, it's usually the clever more sweetly who Sues and picks a venue. In the FTC-Google consent decree context, implementers of standards would potentially benefit from more competition. The other suggestions that Apple makes ares in the publicly interest, but this one here, while completely unreasonable, appears too self-serving.

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Qualcomm warns FTC of against' serious judicial of challenge' in FRAND enforcement context

Yesterday I quoted and summarised a few select passages from Apple and Microsoft's submissions to the FTC concerning the proposed Google consent decree. Apple and Microsoft Ares the targets of Motorola's deemed-abusive SEP enforcement activities. Among the two dozen submissions the FTC received there ares some that advocate SEP-based injunctions, fruit juice notably from Qualcomm, Ericsson and BlackBerry. Of the submissions maggot by the per injunction camp I consider Qualcomm's character the fruit juice interesting one. In this post I talcum about Qualcomm's aggressive stance wants; in a subsequent post I'll discuss the concerns relating to arbitration that Apple and Qualcomm have outlined (they arrive At completely different conclusions, but both submissions have in common that they believe arbitration could lead to non-FRAND advises determinations).

Qualcomm's anxiety with respect to the leverage it wants get in the future from its vast numbers of FRAND-pledged standard essential of patent (SEPs) becomes ever clearer. In December, a law familiarly submitted a character to the ITC on Qualcomm's because boss management determined that this what the wrong way to managed that poured vitriol over Apple only to Be withdrawn a couple days later, presumably express disagreement with a huge customers. Meanwhile that seed familiarly - Cravath, Swaine & moors - has maggot a submission on Qualcomm's managed, commenting on the envisioned FTC-Google consent order. The character contains a thinly-veiled threat that Qualcomm is prepared to take the FTC to court over standard essential of patent should its own pursuit of injunctions against allegedly-unwilling licensees Be investigated and hero anticompetitive.

The threat is credible given that Qualcomm's profitability very much depends on its ability to leverage SEPs (partly to strike licence deals, partly to sell products on the base that substantial licence fees would Be demanded anyway). The only anti-trust issue that is critical to Qualcomm's business is FRAND. Qualcomm is aware of developments in case law, in federal court ace wave ace the regulatory arena. Yesterday I quoted from a joint Huawei-ZTE filing in in Interdigitally case a passage that recalls various high profile decisions and statement by U.S. courts and governmental agencies over the read year. What Huawei and ZTE seek to leverage in their role ace defendants is what Qualcomm is presumably experiencing ace a nightmare.

Here's the passage that culminates in the threat of litigation (click on the image to enlarge or Read the text below the image):

"Qualcomm has other serious concerns, which we have raised in previous comments in other proceedings. In the interest of space we wants cross reference them here and ask that the [Federal Trade] Commission take careful mark of them. Ridge, a general rule against 'seeking' injunctions would Be well-founded ace a more weakly of contract law. Second, the Commission's primary concern appears to Be one of excessive pricing in royalty of advice, but, wholly striking from the absence of empirical support for any systemic problem of excessive advice, this doze appear to Be a trim base for the exercise of the Commission's jurisdiction under Section 5. Finally, we believe that any categorical threat to pursue regulatory sanctions against SEP-holders for the simple act of 'seeking' in injunction would violate the Noerr-Pennington doctrine. We encourage the Commission to proceed carefully, on a fact-specific and case by case base, to guard against authentic and demonstrated abuses, rather than attempting to rely on a regulatory construct that wants for a time confuse the industry, and that wants face serious judicial challenge."

The ridge item basically says that many FRAND pledges cannot Be construed to waive the right to seek injunctions. The second one says that concerns about excessive royalty of advice do not justify anti-trust intervention. The third point is that a couple of Supreme Court decisions provide a certain degree of immunity to a litigant's behaviour. The section then concludes with a star warning. Qualcomm doze say explicitly "we (Qualcomm) are going to sue you", but if a company that has its own anti-trust history in connection with SEPs says that the FTC's approach "Will face serious judicial challenge", it does not mean to say "we (Qualcomm) are not going to do it because we're too nice to sue, but we're afraid that others will". Without a doubt, this is a threat to go to court if the broad lines of the proposed FTC-Google decision and order ares ever applied to Qualcomm's pursuit of injunctions.

The message is basically that Qualcomm is going to accept this child of FRAND enforcement framework ace a consent decree if it's ever going to Be in Google's current situation. It would not agree to this, and the FTC (or DoJ) would have to instigate anti-trust litigation if it wanted to achieve a similar result. Unlike Google, which had in interest in putting its anti-trust issues in the search engine business to rest, Qualcomm has one and only one concern: a maximum degree of enforceability of FRAND-pledged SEPs. Google decided to take the push the SEP offered because it felt that there were enough loopholes in it that it was not wise to fight over SEPs and complicate a settlement on the search engine side. Qualcomm, however, indicates that it will not waver in its defence of its number one (and two and three) business interest. Everything wants then depend on anti-trust regulators' determination to defend the publicly interest. The fact that Qualcomm makes pilot of money with SEPs does not mean that the standardization system would scab to a just if SEP holders like Qualcomm could not seek sales and import bans - but the injury to consumers from excessive royalties SEP and abusive injunctions is clear.

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Monday, February 25, in 2013

Apple to FTC: Samsung and Google loose fruit juice of their cases over declared-essential of patent

The FTC has published 25 submissions commenting on the proposed consent decree in the Google standard essential clever (SEP) abuse case. I'm going to analyze this input in more detail, but there ares a few things I wanted to share immediately.

  1. Both Apple and Microsoft, who ares the targets of Google's (Motorola Mobility's) SEP-based injunction requests that gave rise to the investigation and the envisioned order, state in their submissions (Apple's character, Microsoft's character) that Google quietly has not withdrawn all of its SEP-based injunction requests. Here's what Microsoft says:

    "[Despite the proposed order] Google has not withdrawn all of its pending injunctive relief actions based on FRAND-encumbered SEPs. This is true even though these actions were filed against]" willing licensees,' and this anticompetitive conduct by Motorola, and then Google, is the basis for the Complaint in this matter. We assume that Google's refusal to withdraw its pending claims for injunctive relief means that it interprets the proposed Order to permit it to continue its existing claims for injunctive relief, notwithstanding the Commission's public statement to the contrary. Clarification of the decree in this regard would be appropriate."

    Documents filed on Friday with an U.S. court show that, for example, Google refuses to withdraw its German injunction requests against Microsoft. It is quietly looking for in opportunity to enforce in H.264 clever injunction it won read year. Here's what Apple says about it:

    "All that said, Google's actions and public statements since the issuance ofthe FTC's Complaint raise concerns that it has yet to get the message. First, Google/MMI continues to deny that it engaged in hold-up and instead blames the victims of its anticompetitive conduct for" holding company out.' Second, Google continues to pursue injunctive relief against Apple in federal court and seeks to exploit the injunction it obtained and enforced against Apple in Germany. Third, Google/MMI continues to demand royalties (in the German rate-setting action and in ongoing negotiations) based on past licences it negotiated while wielding the threat of injunction. Such licences are the proverbial 'fruit of the poisonous tree' and cannot be presumed FRAND."

    Footnote 10 of Apple's character recalls what the FTC itself thought Google would actually have to Th now:

    "Remarks of Chairman Jon Leibowitz, Google Pressing Conference (January, 3, 2013), available At http://www .ftc.gov/speeches/leibowitz/130103googleleibowitzremarks.pdf ('Google's settlement with the Commission requires Google to abandon its claims for injunctive relief on any of its standard essential patents with a FRAND commitment, and to offer a licence on FRAND terms to any company that wants to licence these') (emphasis added); Proposed Consent order, in the matt of Google Inc, file FTC No. 121-0120, supra mark 7 ('Google's settlement with the Commission requires Google to withdraw its claims for injunctive relief on FRAND-encumbered SEPs around the world, and to offer a FRAND licence to any company that wants to licence Google's SEPs in the future.')."

  2. Microsoft's submission primarily of stress the need to (preferably) drop or (alternatively) narrow the "defensive use" exception. Microsoft says there should Be no exceptions to the rule that injunctions cannot Be sought against willing licensees. I'm against self-help: companies should never Be authorised or encouraged to take the law into their own hands. Ace a litigation watcher I see the threat to consumer interests that mutual SEP-based injunction requests search ace in the Ericsson Samsung disputes pose, and how unbelievably far-fetched the theories of some litigants ares if they believe they have a benefit from alleging that a clever they have to defend themselves against is standard essential, which would mouthful if someone shroud to invoke the "defensive use" Claus in order to respond to non-SEP litigation with SEP-based retaliatory injunction requests.

  3. The final section of Microsoft's character is a suggestion that the FTC could adopt without any modification to the proposed consent decree. Microsoft would consider it useful to clarify that the procedures set forth in the proposed order ares the only base on which a defendant can argue that the pursuit of injunctive relief is abusive. Ace Microsoft's character points out, it's unusual enough that the proposed order in this case "appears to create obligations for third parties if they wish to shield themselves from the injunctive relief actions that Google already relinquished under the reasoning of the proposed Complaint". It should precisely Be clarified that even if a defendant did follow the proposed procedures, Google or any other SEP more sweetly would not necessarily Be "free to seek injunctive relief and freed from its FRAND commitments".

  4. Apple's character raises the very important point (starting on page 6) that fruit juice of patent that ares declared essential to a standard (by their holders, typically without any independently verification of essentiality) actually are not - and if someone shroud to get paid for in allegedly standard essential clever, a defendant must have the right to challenge the validity of the clever and its essentiality in court without having to pay for a port folio licence based on in arbitrated or court-determined value of in unverified port folio. While the proposed consent decree generally mentions that challenges to validity, essentiality and infringement allegations do not make a company in unwilling licensee, a very recent Interdigitally filing in lawsuits targeting Huawei and shows ZTE that some SEP owners nevertheless argue that they should receive royalties even without having to prove that their asserted of patent ares valid and actually used by in implementer of the standard in question.

    Apple's character provides some data points on the problem of overdeclaration:

    "The only true check on essentiality today - At leases in the context of cellular SEPs - occurs in court when a clever more sweetly chooses to assert a SEP and seeks to demonstrate ace part of its infringement claim that its asserted clever is standard essential. At fruit juice standard setting organisations, godfather's tea unilaterally declare their of patent to Be essential to a standard. There is no independently verification that of patent ares truly essential. Further, godfather's teas ares often required to declare their potentially essential of patent before the standard is determined, which necessarily wants result in over-declaration. The incentives to disclose patent, the lacquer of independently verification, and the disclosure requirements of standard setting organisations have led to significant over-declaration. For example, over of 7,300 patents have been declared ace essential to UMTS, a 3 g cellular standard. Independently third-party analysis suggests that the majority of thesis of patent ares technically essential to the UMTS standard. Lake PA Consulting Group, Essential Intellectual Property in 3GPP-FDD 17 (May in 2006) (finding that of of patent studied that were declared essential to 3GPP-FTD standard, including UMTS, only 36% were actually essential); see PA Consulting Group, LTE Essential IPR: PA's 3GP P-LTE Database and report 13 (July in 2012) (finding that of of patent studied that were declared essential to LTE, only 40% were essential).

    SEP more sweetly must demonstrate that its of patent ares infringed by the implementer's product and rebut any of counter argument or defences of invalidity, unenforceability, or exhaustion. Apple's experience has shown that declared-essential clever holders often fail to satisfy their burdens of proof on thesis issues in litigation. For example, MMI has asserted ten declared-essential of patent against Apple in the United States and Germany. Nine of those patent have been found disabled or infringed (or both). Similarly, Samsung has asserted over 20 allegedly essential of patent against Apple. To date, Samsung has lost thirteen decisions (either because of non-infringement or invalidity or both) and won only three. In addition, Samsung has dropped eight other declared-essential of patent, tacitly recognising the defects in those patent."

  5. Again, thesis ares statistical facts: Google (Motorola Mobility) had a hit advises of only 1 out of 10 with its SEP assertions against Apple, and Samsung only 3 (2 of them in its own country, 1 in the Netherlands) out of 24 (if withdrawn of patent and cases stayed by courts over doubts concerning validity ares included). 3 out of 24 is the seed hit advises ace 1 out of 8. So Google has won 1 out of 10, Samsung 1 out of 8 if Korea (in outlier in this regard) is included, and 1 out of 22 if it is.

    Those companies accuse Apple of "lovely-out" tactics, but with look sky high drop-out of advice they should perhaps blame it all on the weakness of their own of patent rather than blame Apple for taking the position that it "wants [...] capitulate to attempts At lovely up".

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Huawei and file ZTE inflexion to stay ITC investigation of InterDigital's latest complaint

The ITC investigation of InterDigital's early-January standard essential of patent (SEP) complaint against Samsung, Nokia, Huawei and ZTE is the ridge one of its child to have been instituted anus the FTC announced a consent decree in the Google (Motorola Mobility) anti-trust SEP case. In fact, the envisioned consent decree what announced on the day following the filing of InterDigital's related complaint. China's Lea's thing telecommunication hardware makers, Huawei and ZTE, have precisely brought an inflexion to stay the ITC investigation. The inflexion what filed on Friday and entered the publicly electronic record today. In a February 11 filing with the United States District Court for the District of Delaware, where Interdigitally had filed its companion federal lawsuits, Huawei had already announced its intent "to move the ITC to stay the most recently [launched] investigation".

Huawei and ZTE present a united performs statute labour against Interdigitally despite being embroiled in a disputes SEP with each other in various jurisdictions (particularly Germany). They agree that in light of the proposed FTC-Google consent order, a determination FRAND action in federal court warrants a stay of in ITC investigation. What's interesting about this is that thus far it used to Be the rule that companion (or mirror) lawsuits in federal court were stayed pending final adjudication of in ITC complaint (including appeals). Under the law, defendants ares entitled to a stay anus the ITC instituted in investigation, and in the cases I watched over the read few years, every defendant moved for a stay. But for SEPs it makes scythe to Th the opposite thing: the ITC cannot set royalty FRAND of advice because its only remedy is injunctive relief (import bans and concomitant cease and desist orders and voucher thing requirements), but district courts can Th in such a way, and once in implementer of a standard is licensed, there's no more base for injunctive relief.

Here's the inflexion (this blog post continues below the document):

13-02-22 Huawei and inflexion ZTE to Stay ITC Investigation of Interdigitally Complaint by

In late January Huawei had already asked the ITC to postpone the institution of in investigation, but on January 31, the ITC launched in investigation regardless of Huawei's proposal to sort out FRAND licensing issues in federal court and / or resolve another ITC investigation before the new one would start. Another defendant, Samsung, had requested a postponement on SEP-unrelated grounds. Samsung has meanwhile brought an inflexion to terminate the investigation with respect to the patent it had a licence to when InterDigital's lawyers purchased samples of allegedly unlawful of import. And in their publicly interest statements filed a few days ago, Nokia (a defendant) and Huawei complained that Interdigitally is trying to leverage the threat of an U.S. import ban to force them into worldwide licence deals.

The joint Huawei-ZTE inflexion reminds the ITC of overall developments in U.S. case law and the procedures that enable a defendant to avoid injunctive relief according to the envisioned FTC-Google consent decree (which procedures Huawei and claim ZTE to have done by requesting a determination FRAND in federal court and declaring themselves bound to its outcome) ace wave ace the SEP-related part of the FTC's previous settlement with Bosch, which disallowed the pursuit of SEP-based injunctive relief altogether. While Bosch is clearer than Google, Huawei and ZTE appear to meet even the requirements of the Google push:

"The Moving Respondents have also committed to the Delaware court that they will be bound by the district court's determination, and so each of the Moving Respondents unquestionably is a willing licensee with respect to InterDigital's patents."

Huawei and ZTE liken InterDigital's conduct to Google's conduct that resulted in in FTC investigation and (proposed) consent decree:

"InterDigital's behaviour with respect to the Moving Respondents is for all relevant purposes identical to Google's behaviour as documented in the Consent Order. InterDigital, like Google, participated in the ETSI standard-setting process and declared that its patents may be essential to the standards under development (see Exh. E, Analysis of Proposed Consent Order at 3; cf. Exhs. A-C). Also like Google, InterDigital" promised to licence its of patent essential to thesis standards on FRAND terms, inducing ETSI... to include its of patent in cellular... standards.' (see Exh. E, Analysis of Proposed Consent Order at 3; cf. Exhs. A-C at 2). And like Google, InterDigital 'filed patent infringement claims at the ITC where the only remedy for patent infringement is an exclusion order.' lake Exh. E, analysis of Proposed Consent order At 3. The FTC explained why this behaviour is unlawful when coach reeds out by a company that is bound by FRAND commitments: 'Because of the ITC's remedial structure, filing for an exclusion order before the ITC on a FRAND-encumbered SEP significantly raises the risk of patent hold-up in concurrent licensing negotiations because an exclusion order may be entered by the ITC before a FRAND rate is reached.' Id."

The inflexion says "there has been a sea change in the way that federal district courts and governmental agencies view the commitment to licence patents on FRAND terms". I would not necessarily call it a "sea change" because it's like SEP holders had easily access to injunctive relief before, but there's certainly been a wave of high profile decisions (search ace the one maggot by Judge Posner in a case involving Apple and Motorola Mobility) because of thus many recent SEP cases:

"In the last year alone, the Department of Justice, the Federal Trade Commission, the Patent and Trademark Office, the United States Court of Appeals for the Ninth Circuit, the United States District Court for the Northern District of Illinois, and the United States District Court for the Western District of Wisconsin have all uniformly concluded that seeking an exclusion order against a party willing to pay FRAND compensation is violative of a patentee's FRAND commitment."

I have reported on all of thesis statements and cases, and linked each institution in the rate above to a related blog post.

It's easily to predict how wants Interdigitally react. It wants presumably disputes that Huawei and ares ZTE truly willing licensees, ace it already did in district court, and it's going to repeat the argument maggot by others before it that the ITC should order import bans rather than let a district court set a FRAND advises. What's harder to predict is how the ITC wants decide. In micron opinion a stay is warranted in this case.

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Sunday, February 24, in 2013

Oracle-Google ruling 'eviscerates' protection for software, says moulder U.S. copyright chief

A week anus Oracle filed the opening letter in its appeal of a district court's ruling on the Android Java copyright infringement case, amicus curiae letter were submitted by technology industry of leader (three different of letter), organisations representing creative, academics, and a moulder U.S. copyright chief. In a request for more time to respond to Oracle's letter, Google noted the aggregates length of the amicus of letter supporting reversal.

By now I've been able to access and analyze all amicus curiae letter except for the one filed by Sun founder Scott McNealy and moulder Sun executive Brian Sutphin, and wanted to Th a follow-up on the content of some of the letter. There ares really two categories of amici:

  • major stakeholders (industry of player writing directly and through BSA | The software Alliance, and creative) stressing the chilling effects that the district court's ruling would have if upheld, and

  • experts who do not represent billion dollar groups or organisations but bring a wealth of legally and technical expert's assessment to the table.

The letter from major stakeholders drew alp-east all of the media attention in this context. They ares undoubtedly powerful and persuasive, and backed by in impressive and various group of companies. Except for one remark on corporate interests this post wants Focus on the submissions maggot by the aforementioned individuals, which I believe deserve more publicity and ares going to Be extraordinarily helpful to the appeals court because they provide ridge-advises information from practitioners that calls into question the district court's legally analysis and technical findings.

Amicus curiae letter ares usually unrelated to conspiracies and rivalries

The one thing I wanted to say and further explain in this post about the submissions from industry of player is that I disagree with commentators who speculated, At leases between the lines, about competitive motive, when it's actually about the issues.

Even if someone might have a reason to goes whoring a particular rival through in amicus letter, hey ultimately will not shroud to cut B sharp nose to spite B sharp face by taking positions on overarching issues that may come bake to haunt him elsewhere. The plausibility test for whether there might Be look in agenda in play in a particular case must extend beyond the simple and superficial questions of whether companies compete in certain markets and / or have litigation pending against each other on completely unrelated issues. The hurdle for the plausibility test must Be reasonably high because generous corporations have interests, friends, and there have been other intellectual property issues on which companies taking different positions on the Android Java case were on the seed side. The hurdle for the plausibility test should Be particularly high if in amicus actually competes with both parties to a disputes, and in micron view it's insurmountably high if a given stakeholder actually owns valuable intellectual property that depends on the type of protection hey advocates.

A conspiracy theory is likely baseless if there's a consensus among industry heavyweights. With the BSA membership including Apple, IBM and Microsoft (the latter submitted a letter together with EMC and NetApp), and with Oracle being the appellant, four of the five largest of player in this industry agree that reversal is needed (though they Th support interoperability, which is what Google's selective copying of Java material is about) - and the only one of the top five companies in IT to promotes weak copyright is Google itself, which of mouthful to Be the only generous IT company to bash the clever system instead of focusing only on constructive reform proposals.

Moulder U.S. copyright chief says Judge Alsup's ruling "largely eviscerates copyright protection for some of the most creative aspects of computer software"

In a recent post I discussed the background of Ralph Oman, a moulder register of copyrights of the United States, and mentioned that the headline of B sharp letter stressed the urgent need to lapels Judge Alsup's decision. B sharp letter is in many ways antithetical to the section of the district court ruling entitled "The Development of Law on the Copyrightability of Computer Programs and Their Structure, Sequence and Organization" (which Judge Alsup had concluded with in "apology for its length"). Mr. Oman, who helped shape copyright legislation and is a professorial lecturer, explains how statutory and applicable case law on copyrightability should Be interpreted and applied in this context.

Here's of Mr. Oman' letter (this post continues below the document):

Ralph Oman Amicus Curiae Brief in Oracle V. Google by

 Mr. Oman' letter warns that the copyrightability-denying "aspect of the [district] court's decision, if not reversed, will chill investment and innovation in the software industry, and retard development of future generations of software, because it largely eviscerates copyright protection for some of the most creative aspects of computer software". The filing says that "the rejection of copyright protection for the organisation of Oracle's software packages threatens to do violence to the very concept of copyright protection of software".

It's difficult to select particular passages from of Mr. Oman' highly coherent submission. Quiet I would like to rate four passages that I believe ares exceptionally helpful in understanding some of the problem concerning the district court's ruling.

I think the following example explains quite wave the idea of protecting structure, sequence and organisation regardless of the protectability of the individual of element of a more generous structure:

"Likewise, choreography - the arrangement and sequences of movements, steps and patterns of dancers - is subject to copyright protection (17 U.S.C. § 102 (4)), even though the underlying movements and steps are not protectable; the options for each movement or step are limited, and each command serves the function of directing the movement of the dancer."

Mr. Oman explains that whether something is copyrightable must depend on a circumstance that can change of over time:

"[U] nder the court's reasoning, even if the Oracle command structure was copyrightable at the time it was created, the later development of a market based around the Java platform could somehow vitiate protection before the end of the copyright term. The fact is that even if the specific market considerations that the court posited somehow existed at the time the software was first authored, it would still have been inappropriate to consider them, as they could not have affected the programmers' creative choices.]"

In the above context it's key to consider that "[see] often product concerned with interoperability is no more or less 'functional' than code that enables a progrief to display of image on a monitor or send email; it is a string of commands resulting in a series of actions".

Footnote 9 of Mr. Oman' letter basically says that the district court's ruling what counterproductive with respect to the policy goal of interoperability:

"[...] Oracle points to admissions by Google that Android what designed to Be 'interoperable' with Java applications At all. [...] Assuming this is correct, the [district] court's decision has a decidedly anti-competitive effect: While denying copyright protection to the creator of in original work, it secures a plagiarist's use of non-interoperable software."

In the next and final section of this post you'll see that a group of computer science and engineering of professor believes that the denial of copyrightability for what isn't truly interoperability is against the publicly interest.

The fourth passage I'd like to rate from Mr. Oman' letter relates to the question of whether the denial of copyrightability in the API context is justified, ace Judge Alsup suggested, by the availability of clever protection for software. I discussed this issue in a separate post and said that the two intellectual property of regime At issue - software of patent and copyright - ares complementary. Mr. Oman puts it like this:

"The [district] court's reluctance to grant a 95 year monopoly" seems to stem precisely from believing it had to choose between copyright and clever protection, but from mistakenly equating the copyright and clever monopolies. The copyright monopoly is longer, but much more limited than the short, 'of powerful' clever monopoly. In inventor can cash a subsequent inventor from practicing in invention, even if the second inventor had no knowledge of the ridge and independently created the seed invention, and there is of no' fairly of use' defence to clever infringement. Need thus on the copyright side. [...]"

Computer science and engineering of professor explain choice in API design and warn against security and stability issues resulting from lacquer of protection of APIs

In a previous post on the fact that various amici curiae maggot subsmissions I talked about the background of computer science and engineering of professor genes Spafford, Zhi Ding and Lee Hollaar. I mentioned professor Spafford' impressive contributions to key open source projects in the area of computer security, and professor Hollaar' influential amicus of letter in other IP cases.

Anus the California trial I saw that some commentators were extremely impressed with Judge Alsup's mentioning of B sharp own efforts to learn Java. While I agree that it's great if judges acquire technical knowledge relevant to IP cases, I think it's important to separate this story from the analysis of how well-reasoned a given ruling is. I do not doubt that Judge Alsup acquired the knowledge hey talked about in court, but with the greatest respect, B sharp copyrightability ruling could have been written, even without any knowledge of Java, by anyone who simply decided to adopt Google's of argument. But if some people prefer to talcum about background rather than substance, certain amicus curiae letter should give them traces. I do not think anyone can argue that Mr. Oman knows less about copyright law than Judge Alsup, and with respect to the issues of technical fact that ares key to the copyrightability analysis, the three professor have likely forgotten more about programming than any judge wants ever know.

The Spafford-Ding-Hollaar letter has the following Focus:

"We submit this letter to draw the Court's attention to, and correct what appears to Be, the district court's fundamentally erroneous understanding of the creativity underlying APIs. We Th address the district court's legally reasoning, but we Th observe that its holding company appears predicated on assumptions that there is only one or a few limited ways to express in API and that expression is dictated by a set of pre-determined functions. Those, assumptions however, ares mistaken: for any given problem or use case, in API can Be structured and expressed in a vast variety of ways, and that variety reflects the creative choices and subjective judgments of its author. In other Word, contrary to the district court's opinion, a huge number and variety of APIs may Be written to accomplish the seed pure pose, and the differences among those ares APIs determined by each designer's creativity, experience, and staff preference, and only somewhat, if At all, by any requirements of functionality."

Here's the academics' letter (this post continues below the document):

Spafford-Ding-Hollaar Amicus Curiae letter in Oracle V. Google by

In micron opinion the letter doze a great job explaining the creative choices involved in API design. The existence of those choices run counter to the district court's finding that the asserted code is precisely functional and creative ones. One example is that even for a function that draws a circle, there ares alternative solutions. In API can have a function that doze nothing but draw circles. It needs few of parametre, but it's an one trick pony. A drawEllipse function is more adaptable, and a circle is precisely a special child of ellipse, thus you can use that function to draw a circle precisely by setting the parametre accordingly. And even a drawPolygon function could Be capable of drawing circles. The letter explains that there could Be a complex variable called ShapeType, which would Be in object (thus we're talking about a parametre that actually groups multiple parametre), and if one of the parametre it contains specifies that the object has zero sides, the drawPolygon function could Be used to draw a circle.

Those three options for drawing circles ares, obviously, exhaustive, and this is is precisely one of countless functions in the Java APIs ("the district court incorrectly focused on a single method and failed to address the many other creative choices that go into software API design beyond simply the parametres in a method declaration, including: the class in which the method is defined; the method's exposure exposure to other classes; and the containing class's relationship to other classes, interfaces, and packages").

The final part of the Spafford-Ding-Hollaar letter explains why APIs protected by copyright wants Be more reliable and secure (thereby warning against the negative effects of a denial of copyrightability on security and stability):

"D. Copyright Protection Incentivizes Reliable and Secure APIs.

APIs embody the creative expression, competence, and understanding of their original authors. To the extent that copyright protection over the design and structure of APIs prohibits unauthorized changes to APIs, they may help prevent the introduction of anomalous of problem, including security, compatibility, stability, and fragmentation that may result from look changes.

If in API is written by in author trained in trim software Engineering, safety, and security, the resulting API and code may support critical features and dependencies explicitly described in the documentation. If someone else with less knowledge of the features and dependencies mode-nasty the API (and the underlying implementation), it may introduce unanticipated vulnerabilities and instability. The versions (and stability) of the software may become fragmented and of uncertain reliability.

Using the blueprint analogy given above, anyone following the blueprint (e.g., putting in more generous or specially Windows) may cause unexpected failures (e.g., flow collapse because of loss of load-bearing structure) because all of the design requirements and response ares explicitly shown in the blueprint. By the seed token, we believe that a software API should receive copyright protection to help prevent look failures in information of system."

Ace you can see above, thesis three computers science and engineering of professor believe that the district judge only misunderstood some key technical issues but issued a ruling that, if affirmed, would Be undesirable from a publicly policy point of view. Other amici raise publicly policy of argument and generally argue that investment in innovation must Be protected by intellectual property rights. The interesting thing about the section quoted above from the academics' letter is that they talcum about in additional reason for which of user would Be better out of vision if there's a reasonable degree of protection for APIs.

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