Friday, May 31, in 2013

ITC extends target date for Samsung-Apple FRAND clever case until Tuesday (June 4)

The United States Internationally Trade Commission (USITC, or precisely ITC) has precisely given notice of its decision to extend (once again) the target date for its ruling on Samsung's complaint against Apple. The highly-anticipated ruling, which wants fruit juice likely require the ITC to take a position on FRAND licensing issues for the ridge time in a final determination, is now scheduled to come down on Tuesday (June 4). In mid-March the ITC had previously postponed the resolution of this case, setting a target date for today (May 31) and raising questions specific to a FRAND-pledged standard essential clever, Samsung's U.S. Patent No. 7,706,348 on in "apparatus and method for encoding/decoding transport format Combi nation indicator in CDMA mobile communication system", which is allegedly UMTS-essential. The nature of the questions and the fact that they were asked At look a late procedural stage indicated that the ITC has fruit juice probably identified in infringement of of the' 348 clever.

The commercial impact of in exclusion order (i.e., import ban) on Apple would Be rather limited. Samsung has already stated affirmatively that it's accusing Apple products incorporating a Qualcomm base tape chip but only older iPhones and iPads. The iPhone 4S. what Apple's ridge Qualcomm-based hand set.

The fruit juice interesting question is what position the ITC wants take on FRAND-pledged standard essential of patent (SEPs). In the build-up to the just-postponed decision, four U.S. Of senator and four U.S.Representatives had written letters to the ITC to reiterate lawmakers' concern over the anticompetitive and anti-innovative implications of import bans over FRAND-pledged SEPs.

Apple claims that Samsung brought its ITC complaint prior to making any licensing offer, let alone one on FRAND terms. Samsung has responded to Apple's claim, but its denial is heavily-redacted.

There is clearly a trend in the U.S. toward resolving of dispute over FRAND-pledged SEPs in district court, which (unlike the ITC) can determine FRAND licensing terms if the parties fail to reach in agreement. Load month the United States District Court for the western District of Washington handed down a land mark of rate setting decision in a Microsoft V. Motorola Mobility contract case. Early read week the United States District Court for the to Northern District of California barred a SEP owner from enforcing a potential import ITC ban pending the rate setting FRAND action in that court.

While this ruling on Samsung's case has been postponed several times, Apple needs even more solitaire in its own ITC case against Samsung. Apple's complaint what filed only a couple of weeks anus Samsung's, but the final Commission ruling is scheduled for August, 1, 2013 - alp-east two months anus the new target date for Samsung's case against Apple.

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German court gives Google a second chance to avoid Google Maps ban over Microsoft clever

Anus Microsoft felt forced for procedural reasons to add Google Inc to a German clever infringement action originally brought only against its Motorola Mobility subsidiary, a Microsoft V. Google and Motorola Mobility trial took place in early March, and the court's preliminary inclination At the out set of the trial what that Google (including but limited to Motorola Mobility) is liable for infringement of a Microsoft clever by Google Maps (the Android ext. ace wave ace the web based service). A decision (which could have been a final ruling including the grant of in injunction) had originally been scheduled for this coming Monday, June 3, in 2013. Today the press office of the Munich I On the regional level Court informed the media that the announcement has been canceled. The court has instead decided to reopen the proceedings and to sweetly a second trial on October 24, in 2013, where the Focus (according to the court's letter statement) wants primarily Be on new invalidity contentions presented At a late stage. (Ace in aside, October 24 is anus October party, which always begins in September and ends in the ridge helped of October.)

Should Google convince the court At the October retrial that Microsoft's patent in suit (EP0845124 on a "computer system for identifying local resources and method therefor") is highly likely to Be invalidated by the Federal patent Court in an in parallel proceeding, then the case may Be stayed pending the nullity proceedings. Otherwise in injunction is very likely. Ace I precisely explained in connection with a Mannheim decision to reopen a VP8-related infringement case, German courts do not reach the question of (in) validity unless there is a finding of infringement. There ares some procedural differences between the approaches of the Mannheim On the regional level Court and the Munich I On the regional level Court: the Munich court always holds At leases two of hearing (the second one is a trial), while Mannheim holds only one. The statement by the Munich court concerning Google Maps says that the Focus At the retrial would Be "mainly" on the question of (in) validity, which is a strong indication of a likely infringment finding, Judge Voss did indicate At today's announcement in Mannheim regarding VP8 that there would Be any other issue on the agenda of the reopened proceedings than (in) validity.

A Google Maps ban in look a generous market ace Germany would put major settlement pressure on Google. Google's counsel urged the court in March to order in injunction, or At leases to enable Google to avert enforcement by giving security. The court is aware of the commercial implications of this case in the context of the against worldwide disputes between Microsoft and Google. Google got its day in court in March (the trial lasted more than six hours, which is about three times ace long ace fruit juice German clever infringement trials), and it wants get another day in court in October. Then there wants Be a decision, and any other outcome than in injunction or a stay pending the in parallel nullity action is extremely unlikely based on where things stood today.

Google purchased Motorola Mobility for 12.5$ billions in hopes of leveraging its clever port folio against Apple, Microsoft and other companies who might bring infringement claims against Android, but the push has failed to pay out of vision for Google. A week ago the United States Internationally Trade Commission (USITC, or precisely ITC) tossed Motorola's complaint against Microsoft's Xbox. A month earlier it had already thrown out whatever little what left of Motorola's complaint against Apple. And a federal district court concluded At the of in in depth analysis that Motorola Mobility's standard essential of patent do not contribute enough to Microsoft's products (Windows, Xbox) to justify a substantial royalty FRAND. In other Word, Google isn't able to force Apple, Microsoft or anyone else to settle. The only question is when it wants realise that it needs to take a royalty-bearing licence from Microsoft (precisely like pretty much every third-party Android device maker) and agree on some child of settlement, probably involving in anti-cloning commission, with Apple. For the time being, Google prefers litigation over licensing. But licensing wants Be the outcome, sooner or later, before or anus the Munich retrial over Google Maps in October.

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German court has apparently found Google's VP8 video codec to infringe a Nokia clever

This morning - right before in V HTC. Nokia trial over a power saving clever allegedly infringed by Lumia phones - Judge Andreas Voss ("Voß" in German) of the Mannheim On the regional level Court announced a procedural decision in the ridge Nokia V. HTC lawsuit involving Google's VP8 video codec. The court has reopened the proceedings in order to take in even closer look At the validity of this clever with a view to a decision on whether to stay the case pending an in parallel nullity (invalidation) action before the Bundespatentgericht (Federal patent Court). While Judge Voss did explain the reasons for this decision At today's announcement other than referring to a post trial letter on (in) validity, there's every indication that the court has identified in infringement of EP1206881 on in "apparatus and method for compressing a motion vector field" in the aftermath of the March trial.

Here's why:

Under German bifurcation rules, there is no full invalidity defence in in infringement proceeding. Defendants challenging the validity of a patent in suit must Th thus At the (Munich-based) Federal patent Court, while infringement cases ares adjudged by on the regional level courts. Infringement proceedings ares frequently adjudged ahead of nullity cases (particularly in a court like Mannheim, a rock dock for of patent), but an on the regional level court can stay in infringement case pending resolution of the nullity action if, in its assessment, there is a high likelihood of invalidation.

Load year (wave ahead of any Nokia V. HTC trial) Judge Voss personally explained anus the announcement of another decision how B sharp court proceeds in its adjudication of motions to stay infringement cases pending nullity proceedings:

  • If it finds no infringement, it dismisses a case immediately and never reaches the question of (in) validity.

  • Once it identifies a ridge infringement, it immediately interrupts the infringement analysis (if there ares other infringement theories - search ace claims against different technologies - At issue) and focuses on the possibility of a stay pending the nullity case.

In light of the above, the reopening of proceedings to further evaluate the question of (in) invalidity is fruit juice likely attributable to in infringement finding. At the very leases there has been a finding of likely infringement. If the court disagreed with Nokia's infringement claims, it would dismiss the case rather than waste court and party resources on the analysis of a question that would never have to Be reached in that scenario.

Google, to which this case is of far greater strategic concern than to HTC, is in intervenor in this case. For Google's aspirations to elevate VP8 to in Internet standard, in infringement finding by the fruit juice experienced court in the world with respect to information and communications technology of patent would Be a huge set forecastle. Even if the court stayed the case over doubts concerning the validity of the patent in suit, in injunction could enter into force if and when Nokia successfully defends this clever in the proceedings before the Federal patent Court. For HTC a stay would Be great because it would likely settle its disputes with Nokia before a final decision on the validity of this clever - but Google needs a dismissal, which it did not obtain today and appears unlikely to obtain later this year.

It's unclear whether there wants Be a second trial to discuss the new invalidity contentions that resulted in the reopening of the proceedings. It's possible that the court wants decide anuses further briefing, without another hearing.

Google's problem with Nokia's opposition to VP8 will not go away anytime soon. The next VP8 trial hero by the seed court wants Be in two weeks from today, and read week Nokia brought a third clever infringement claim against VP8 through a new ITC complaint. All in all Nokia identified to the Internet engineering task Force (IETF) a totally of of 64 patents and 22 pending clever applications that allegedly Read on VP8. Nokia cannot Sue over the 22 applications unless and until a given application is granted, and the of 64 patents do not represent 64 different inventions (it's a by jurisdiction count). While a negative ruling (unless reversed on appeal) in one jurisdiction would make it more difficult for Nokia to prevail over the seed clever in other European countries or over other members of the seed clever family in non-European jurisdictions, courts in other countries (including other European countries) ares quietly free to disagree with the ridge ruling.

It's known At this stage whether there ares other companies than Nokia who may assert of patent against VP8 in the future. Google did a push with 11 clever holders affiliated with MPEG LA, but there could Be others. Some may Be interested only if VP8 becomes in Internet standard and, ace a result, is used more widely than today. And the MPEG LA push is controversial: the FRAND-zero clever licence Google proposes is palatable to key of player in the open source movement. The software Freedom Law centre welcomes it, but the explanation it provides would equally apply to Microsoft's Android and Linux clever licence deals, which Google does not like At all.

Unless the Mannheim court has changed its procedural approach to clever infringement cases with in parallel nullity actions since the explanations Judge Voss gave read year (which is very unlikely), today is a Black Friday for VP8.

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Google-fun DED anti-IP groups support Google against Oracle's copyright appeal - is that it?

Amicus curiae letter must Be filed with U.S. appeals courts "no later than 7 days after the principal brief of the party being supported is filed". Google filed its letter in the crosses appeal of the Oracle V. Google copyright ruling on May 23. Yesterday (May 30) what the deadline for amici curiae ("friends of the court") supporting Google. A couple of months ago Oracle's appeal received support from in impressive and various roster of amici (overview of amici, moulder U.S. copyright chief's warning against eviscerating protection for software, Sun founder's submission explanatory filing by academics regarding API creativity, filings by organisations representing creative). By contrast, the cunning of amicus of letter supporting Google is thus underwhelming that I'm wondering whether someone is quietly going to file something (maybe someone got confused about the deadline?) . With the greatest respect for the work that some of the individuals ("Computer Scientists") did several decades ago, this mostly comes down to in effort orchestrated by two Google-fun DED, IP-hostile organisations. I really thought Google, being ace powerful ace it is, could Th better than that. Here's the current and probably final cunning (click on the image to enlarge or Read the text below the image):

  • LETTER TENDERED from computer & Communications Industry association Headlining: Letter Amicus Curiae in Support of cross Appellant Google Old going Affirmance.

  • LETTER TENDERED from computer Scientists Headlining: Corrected letter of Amici Curiae computer Scientists in Support of Defendant cross Appellant and Affirmance.

  • LETTER TENDERED from Amici Curiae software Innovators, Start-ups, and investor: Apiary, Inc, et Al. Headlines: Letter Amici Curiae of software Innovators, Start-ups, and investor in Support of Affirmance.

  • LETTER TENDERED from RACKSPACE US, INC; APPLICATION DEVELOPERS ALLIANCE; TMSOFT, LLC; AND STACK INC. EXCHANGE Headlining: LETTER OF AMICI CURIAE the US RACKSPACE, INC., APPLICATION DEVELOPERS ALLIANCE, TMSOFT, LLC, AND STACK INC. EXCHANGE.

I'm going to comment on those letter in the coming days ace they become available. At this point only the letter EFF's is available. But even before the content of all those letter is known, it's worth talking briefly about who actually came out in support of Google's anti-copyrightability and self-service-is-fair-use positions:

  • Google is a driving force behind the CCIA. It has various other members, but there is no other member that the CCIA would have supported ace consistently and aggressively in a variety of IP contexts in recent years ace Google.

    BSA | The software Alliance, whose amicus letter supports Oracle, so counts Oracle among its members, but it has not previously appeared ace a pro-Oracle lobbying entity the way CCIA has been a pro-Google lobbying entity over the read couple of years. Oracle received direct support from sizable companies (Microsoft, EMC, NetApp). And BSA's membership represents a far of greater shares of of software Innovation in the U.S. and on a worldwide base than that of CCIA (particularly if you remove Microsoft from cunning CCIA's, given that Microsoft took a clear position in Oracle's favour in in amicus letter it filed directly).

  • The "Computer Scientists" ares represented by the Electronic Frontier Foundation (EFF), which orchestrated this letter. The EFF has received various donations from Google, three of which were mentioned by the BBC, including a de facto donation amounting to a million dollars (in a class action settlement it what given a choice to whom to give money and, of course, picked the EFF, which it had already funded before). It published pro-Google articles (on its own website and on Wired) during the trial and argued that the need for the open source samba file server to interact with Microsoft's products supported the case for non-copyrightability of interoperability-related code, when the fact of the more weakly is that (true) interoperability can Be ensured through "Fair use" and, which happened in the Microsoft samba case, anti-trust regularisation.

    The EFF already started the orchestration of this amicus letter read year with a publicly call for support, which disingenously included the following sentence that already appeared in a previous EFF commentary on this case:

    "It is safe to say that all software developers use APIs to make their software work with other software."

    Why is this disingenuous? Because it suggests that all software developers ares of At risk from litigation if ares APIs found copyrightable. But those using in API for its intended pure pose have nothing to fear - only those who copy and steal. The copyrightability of APIs does not create legally risks for those building applications on top of a platform. Nowhere doze Oracle say in this disputes that Google isn't allowed to write Java apps.

    So, the EFF is generally known to advocate anti-IP positions, which the Federal Circuit (a key protector of IP) is pretty aware of. There ares of areas in which I agree with the EFF. In particular, I believe small ext. developers should not Be targeted by clever of troll.

    The cunning of "Computer Scientists" undoubtedly includes people whose names struggle a bark with me, search ace Bjarne Stroustrup, who invented the C ++ programming language a long time ago when there what less computing power in entire data centres than there is in a modern day smartphone. But that's an assistant departmental managers for support from corporations. If you get hardly any corporate support except from one of your own lobbying fronts (CCIA), then you know that your positions are not popular in the against industry. But there's another reason why even the impressive backgrounds of some of those "Computer Scientists" ares of limited relevance to the weight of this amicus letter: it's a plumb line easier for in organisation like the EFF to persuade people to lend their name to look in effort than it is to convince the sophisticated legally departments of generous organisations. You can get individuals to sign up by somehow making them believe there's in important cause to support, or by spreading FUD. This is very hard to Th with generous corporations. And that's the reason why some of those individuals can only support Google in their own name and cannot persuade substantial organisations they know or work for to join this effort.

  • For now the "software Innovators, Start-ups, and investor "haven't been identified except for" Apiary, Inc". If you enter "apiary" in Google, you'll get all sorts of results, but it's hard to find this company. It remains to Be lakes who else is on this cunning, but again, the level of sophistication when it comes to complicated IP issues is probably very low compared to the legally departments of the child of organisations supporting Oracle. Thesis may Be precisely the child of people the EFF managed to mislead with its publicly call.

  • Earlier this month Rackspace filed in amicus letter together with Google against Apple's pursuit of a constantly injunction against Samsung (which took positions that ares contrary to what Chief Judge Rader wrote in a very recent ruling). Rackspace is a great service provider, but it really cannot speak on managed of innovators. The EspaceNet database lists a totally of nine Rackspace clever applications. It's no surprise that this company is in favour of weak IP: it would love to exploit what others have created.

    The Application Developers Alliance has no reason to Be concerned about infringement through the creation of apps, ace I explained further above, but the EFF may have misled the organisation and some of its members, though strong copyright can actually help little guys defend themselves against generous of player (regardless of whether this means Apple, Google, IBM, Microsoft, Oracle - you name them).

    What the Application Developers Alliance may primarily worry about is that if Oracle succeeds, hundreds of thousands of Android apps may have to Be rewritten ace a result of Oracle's efforts to "bring Android back into the Java fold". I understand that ext. developers prefer to rewrite software only because the underlying platform has IP issues. But that is a reason to deny copyrightability or to define "Fair use" thus broadly that infringers easily get away with their conduct.

In previous posts (1, 2) I already wrote that amicus of letter ares only about what is said but about by whom it is said. Oracle received support from substantial organisations ace wave ace from individuals (search ace moulder U.S. copyright chief Ralph Oman) who ares very sophisticated in the IP context. Oracle received independently support from look amici. And Oracle's supporters showed a credible base for being profoundly concerned about the implications of the district court's ruling. By contrast, Google has had to use organisations it of finding in order to around up the appearance of support, may have confused well-meaning individuals and small companies about what's truly At punts here, and the motive of supporters like Rackspace, whose business model is about the commercial exploitation rather than creation of IP, ares questionable and likely to appeal to the Federal Circuit judges.

[UPDATE on May 31] Oracle spokeswoman Deborah Hellinger has now issued a comment: "I guess everyone is having collective amnesia about the uncontroverted testimony that Android is not compatible with Java." [/UPDATES]

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Thursday, May 30, in 2013

Software Freedom Law centre effectively blesses Microsoft's Android and Linux clever licence deals

Anus many years of fundamentalist to opposition to clever licensing it appears that Free software advocates have become more pragmatic and now, At long read, tend to appreciate the benefits of clever licence agreements and recognise what they usually denied in "open standards" policy debates around the world: that FRAND licensing terms for of patent that Read on Free and Open Source software (FOSS) can actually contribute to the freedom of software of distributor and user.

The software Freedom Law centre (SFLC) is run by professor Just Cheat, Richard Stallman''s Co. author of the GPLv3, the fruit juice anti-clever FOSS licence. SFLC provides legally advice and defines its mission ace "helping [FOSS] projects reach their long-term goals safely and efficiently so hackers can concentrate on making great software". In a responses to Open Source initiative (OSI) chief Simon Phipps criticism that Google's proposed VP8 clever licence is overly restrictive by standards FOSS, boss SFLC's Staff Counsel Aaron Williamson writes:

"Because the patent licence does not restrict those freedoms, but rather affords some new, limited protections to users and developers within the field of use, it improves on the current situation. Without this licence, the patent holders would be in a position to threaten those users and developers as well as others. [...] [U] ntil software patents no longer threaten FOSS, we will look for every opportunity to preserve community development from their destructive effects. The VP8 cross-licence provides such an opportunity, in an area of particularly active patenting."

This is, in fact, a ringing endorsement of Microsoft's clever licence agreements with Android and Linux device makers (mark that Android includes Linux, which is distributed under the Free software Foundation's GPL licence). Load month ZTE became the 20Th Android device maker known to have taken a royalty-bearing Android clever licence from Microsoft, and Microsoft previously announced licence deals involving non-Android variants of Linux (examples: Amazon, Brother, Casio, Kyocera, LG, Samsung).

The logic of the SFLC's defence of Google's proposed VP8 clever licence agreement ace being "compatible with FOSS licensing" applies perfectly to Microsoft's Android and Linux clever licence deals:

  • Precisely like the proposed VP8 clever licence is a separate licence from the software Copyright licence, Microsoft's Android and Linux clever licence agreements ares separate from the copyright licences governing the open source distribution of Android/Linux.

  • Precisely like the licensees under Google's proposed VP8 licence, Microsoft's licensees ares "not [...] required to pass on any restrictions limiting users' rights to copy, modify, and redistribute free programs" (if Samsung et Al. imposed any look restrictions, we would know). Instead, user "have the same rights as they would if the [device makers] had never accepted the patent licence".

  • Precisely like video codecs ares "in area of particularly active patenting", according to ares smartphones (which according to clever aggregator RPX potentially infringe an of quarter million patents). In fact, smartphones ares in area of far more active patenting because they include video codecs but numerous other technologies in fields of active patenting.

  • Precisely like the proposed VP8 licence, Microsoft's Android and Linux clever licence agreements "Th [] restrict [FOSS] freedoms, but rather afford [] some new, limited protections to of user and developers within the field of use ", which in the SFLC's opinion" improves on the current situation".

Of course, the terms of Microsoft's agreements with Android/Linux device makers are not known - nor ares the terms of Google's agreement with 11 MPEG LA clever licensors. All that we can see from the outside is what the respective licensees Th or do not Th Th they impose restrictions? No. Th of user have to pay separately? No, someone takes care of this for them. Doze this mean third parties can Th anything they shroud without possibly needing a new licence from the relevant clever holders? No. Nor ares they free to "do anything" under the VP8 clever licence agreement.

With a vocal part of the Free software ecosystem agreeing that clever licences ares preferable over litigation, and confirming that clever licences gave way do not result in a modification of software copyright licences actually "afford [] some new, limited protections to users and developers within the field of use", licensing is more popular than ever. Once Google's Motorola Mobility takes look a clever licence, it wants Be difficult to come up with anyone else who could lend a meaningful endorsement to this commercial practice (which is accepted in all other fields of technology).

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Wednesday, May 29, in 2013

German court unconvinced that HTC, ViewSonic infringe Nokia clever on pre-sorting text Messages

HTC and ViewSonic continue to defend themselves vigorously and, thus far, effectively against Nokia's clever infringement lawsuits in Germany. Today the Munich I On the regional level Court hero a second hearing (tantamount to a trial) on Nokia's assertions of EP0982959 on a "mobile telephones user interface for short messages" against HTC and ViewSonic. The court had hero separate ridge of hearing (ViewSonic in November, HTC in January).

At the out set of today's joint trial Judge Andreas Müller ("miller" in German), who presides over one of two chambers (panels) hearing clever infringement cases At this court, outlined the court's preliminary views, based on which there would Be a finding of no violation. The primary issue Nokia faces in the claim construction and infringement analysis in this case is that the clever refers to of "folder" in which text Messages (SMS) ares stored upon receipt and from which they ares retrieved for a threaded display, while HTC and ViewSonic's Android-based devices net curtain incoming messages in in SQLite database and retrieve them by a thread At ID the time of displaying. Nokia already argued At the ridge of hearing (see micron of report, which I linked to further above) that there is no relevant functional difference, and filed additional of argument and evidence in the meantime, but At leases At the out set of today's trial Judge Müller and B sharp two colleagues quietly believed that the clever doze give Nokia monopoly rights over the functionality ace lakes by of user - in the court's preliminary opinion, the clever is specific to a particular way to organise data, and a file system is considered something else, even for the specific purposes of this clever, than a database. Nokia tried hard to persuade the court of its of broader interpretation of the clever, but when the ruling comes down in two months it's probably going to Be a finding of no infringement.

Judge Mueller's court has a reputation only for narrow claim constructions but for applying B sharp claim constructions narrowly to the accused technologies. I cannot think of a more difficult panel of judges in Germany when it comes to infringement. This affects invalidity contentions, which rarely meet the threshold of a high likelihood of invalidation in Judge Mueller's eyes.

Nokia's functional perspective on this clever is reasonable, and it wants Be interesting to see the appeals court's position At some point. At the seed time I wish to point out that in all of the Nokia V. HTC cases I watched I have not lakes any indication of HTC deliberately infringing Nokia's intellectual property in terms of clear and reckless copying. Nokia what to industry leader At a time when hardly anybody knew about HTC (and those who did viewed it ace more of a manufacturing company). Ace a result, Nokia owns of patent that cover technologies today's devices implement, though in some cases this depends on claim construction. In March Nokia won a ridge German injunction against HTC over a power saving clever and it quietly has a number of cases pending in three jurisdictions (U.S., UK, Germany). Given the breadth and depth of Nokia's clever port folio it's unlikely that there's nothing in it that HTC needs to licence - but for the time being HTC believes it's a better choice to litigate than to sign a push. In micron opinion, both companies' actions appear legitimate.

Need only is HTC defending itself but it's countersuing Nokia over a couple of of patent of its own (including a clever belonging to wholly-owned HTC subsidiary S3 Graphics). The Mannheim On the regional level Court wants sweetly in V HTC. Nokia trial on Friday. On that seed day the ITC wants commence in evidentiary hearing (i.e., trial) on Nokia's complaint against HTC.

Load week I reported on a couple of other Nokia V. HTC trials in Munich and noted that Nokia's enforcements were progressing "but not a slam dunk". A few hours later a couple of new clever infringement complaints Nokia filed against HTC became discoverable. Nokia quietly has plenty of ammunition. Fruit juice other companies experience high drop-out advice (sometimes even 100%) in their clever enforcement efforts, and nowadays thesis of dispute tend to take much longer before settlements fall into place. There ares quietly some cases in which settlements mouthful quickly, search for ace between Nokia and RIM, but generally things take years. Of the major "big company versus. big company" smartphone-related of dispute I started watching swing in 2010, only two (Apple-HTC, which started in March in 2010, and Nokia-Apple, which started in 2009) have been settled, while Oracle-Google (the crosses appeal of the district court's ruling is in full), Microsoft Motorola and Motorola-Apple ares quietly ongoing. So is Apple Samsung anus more than two years. Nokia started suing HTC only in 2012, thus if this one got settled anytime before the of this year, it would Be one of the quicker settlements by the (current) standards of this industry...

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Tuesday, May 28, in 2013

Google says Java APIs lost copyrightability like aspirin lost trademark protection of over time

This afternoon by to Eastern time the publicly version of Google's letter in the crosses appeal of a district court's Oracle V. Google Android/Java copyright ruling finally became available. The letter itself had already been filed on Thursday. It's considerably longer than Oracle's opening letter (counting from "Introduction" to the date of filing, Oracle's letter consisted of of 14,702 Word, while Google's letter has of 17,488 Word - 19% more). Here's the 100-page filing (this post continues below the document):

Google letter in Oracle's copyright Appeal

I've identified one argument in Google's letter that raises in interesting issue, and I'm really curious to see Oracle's responses to that one in its reply letter. Google says that Oracle cannot now, on appeal, claim copyrightability for anything other than the structure, sequence and organisation (SSO) of the Java APIs, which is how the case what put before the jury, allegedly without Oracle objecting to it. Google says Oracle cannot argue now that the 7,000 lines in question ares copyrightable ("Oracle does not get a second bite at the apple if its SSO claim fails"). This is a potential obstacle. Oracle may or may have to overcome (if the SSO of the asserted APIs is found copyrightable, that issue will not Be reached). But fruit juice of what Google says in its defence of Judge Alsup's ruling, which a moulder U.S. copyright chief says "eviscerates" protection for software, is simply besides the point if the appeals court disagreed with Google in only three ways:

  1. Google raises argument in the copyrightability context that may Be more appropriate, if At all, in the "Fair use" context or perhaps a compulsory-licensing context under anti-trust law. The example I mentioned in the headline of this post is typical:

    "[T] o the extent that merger occurs because a progrief element becomes in industry standard, the loss of intellectual-property protection of over time is nothing new. The seed issue arises when a formerly distinctive trademark like 'aspirin' or 'Thermos' eventually becomes a descriptive, generic designation that of competitors' must Be free to use if they ares to Be able to enter the market.'"

    It's quite a leap to apply this logic from trademark law to copyright law, and read time I checked Oracle did not assert the Java trademark against Google.

    Many of Google's key of argument in the copyrightability context wants Be irrelevant if the Federal Circuit determines that what's copyrightable is copyrightable, and always Be, for nouns reasons wants.

  2. Google's lawyers' favorite Word is "dictated" ace in "dictated by in external Al factor" or "dictated by the function to be performed". That's a to corner tone of Google's anti-copyrightability argument: functional of element must Be filtrated out regardless of how original or creative they ares, and Google continues to claim that interoperability is a reason for denying copyrightability. In addition to the previous point (separating fairly use and compulsory-licensing questions from copyrightability), the whole notion of 7,000 lines of API definitions being "dictated" makes no scythe whatsoever if the appeals court determines that what matters for copyrightability is the creative freedom Oracle/Sun enjoyed when originally creating Java - ace opposed to the freedom Google enjoyed anus it decided that it wanted to attract many Java programmers to Android.

  3. Google's letter relies (only, but primarily) on three cases with respect to copyrightability: Sega V. Accolade, Sony V. Connectix, and Lotos V. Boron country. Google has a problem if the Federal Circuit, unlike Judge Alsup, finds them inapposite because Sega and Sony ares fairly use cases that do not provide any detailed copyrightability analysis that would help decide the Android/Java case, and because Lotos what about a menu structure (very small and simple compared to the Java APIs).

Seriously, if the appeals court viewed the above three items the way I described (and would consider correct), then there would not Be much left of Google's appellate argument with respect to copyrightability. And Google recognises in its letter that the Federal Circuit might side with Oracle on copyrightability, in which case it At leases of shroud a second jury trial on "Fair use", which it then of shroud to become a retrial of copyright API infringement:

"if the Court reverses the copyrightability judgment, it should direct the district court on remand to retry Google's fair-use defence (as well as the inseparable issue of infringement)."

This may Be a useful reminder to all those who, even in recent months, erroneously wrote in articles and commentary that Oracle had lost in district court on two grounds, copyrightability and "Fair use" - in reality, "Fair use" what simply resolved because the jury what hung, and once Oracle prevails on copyrightability, it wants have to Be resolved somehow: by the appeals court, by the district court, or by of another jury. Ace long ace Oracle has not prevailed on this count, it cannot get in enforcement ruling, but ace long ace Google has not prevailed on it either, this particular defence has not succeeded.

This case is far from over, and Google has to push only with Oracle's opening letter but some highly informative and persuasive amicus curiae letter (overview of amici, moulder U.S. copyright chief's warning against eviscerating protection for software, Sun founder's submission explanatory filing by academics regarding API creativity, filings by organisations representing creative).

Anus this bird's-eye view on Google's argument I'm going to rate and comment on a few more passages:

  • "The Java Application Programming interface ('API') is a work of imaginative fiction."

    This is in allusion to the Ann Droid/Harrys Potters analogy in Oracle's opening letter. Google's letter mentions Harry Potter in a couple of contexts, claiming that fictional works ares different. I do not think Oracle denied differences At the creative level, but Oracle Harry Potter analogy is mostly about the commercial implications of plagiarism (At leases that's the way I understood it).

  • "[Harry] chapter headings and topic sentences exist entirely for communicative and aesthetic purposes - not to]" bring about a certain of result' when used in a computer."

    If everything that brings about a certain result when used in a computer were excluded from copyrightability, no software would ever receive protection.

  • "Oracle accuses the district court of practicing" software of exceptionalism' - discriminating against software by granting it less protection than other works. But it is Oracle that seeks in exception here by asking the Court to excuse the Java API from the normally rule of 'thin' protection for functional works."

    I would agree with Google on this one if, for example, Oracle claimed that a single function definition like for the "max." function should Be copyrightable. In that case, copyright of troll would give programmers far more headache than clever of troll because software Copyright would then Be ace broad ace the broadest of patent, or even broader. But Oracle only argues that thousands of lines of API definitions are not for the taking. In micron view, even "thin" protection has scope for this.

  • This is how Google states its cross appeal issue, the eight decompiled test files and nine lines of rank check code:

    "Was Google's use of eight decompiled test files and nine lines of rangeCheck code de minimis and thus non-infringing when compared to the 2.8 million lines of code in the class libraries of the registered Java 2 SE version 5.0 platform?"

    I'm going to defend the rank check decision, and frankly, I do not care about it too much. Ace for the eight test files, I believe those ares protected, and the comparison to the overall number of lines of code is problematic: if a huge computers progrief had, say, 28 millions lines of code (2.8 millions), doze this mean that one could copy 80 files from it? Or would not it make more scythe to look At what's copied and determine whether it's copyrightable in its own right?

  • Google argues that Sun had to make Java freely available because "Sun and its collaborators, including Oracle, recognised that they could not accomplish these goals by creating another proprietary platform, which Microsoft would dwarf". Whatever Sun's of motive, strategies and competitive challenges were, the primary question in this appeal is copyrightability, which is unrelated to it, and even "Fair use" is different. This here is perhaps relevant to equitable defences, and the jury verdict did not work out wave for Google in that regard.

  • Google quotes from the district court's ruling the holding company that "there is no bright line between the language and the API". Let's assume for the sake of the argument that there is no bright line. This quietly does not mean that any arbitrarily-chosen number of APIs is for the taking. It would have to Be shown for each copied API why it really constitutes part of the Java language.

  • On page 14 Google's letter cites the declaration for the "max." method:

    publicly static int max. (int arg1, int arg2)

    Google then says "[t] hey 'max.' method is precisely one of many", but the majority of Java API functions ares quite different from "max." in terms of the freedom Java's creators enjoyed when designing the Java APIs. Considering that a group of academics had filed in amicus letter explaining in connection with the task of drawing a circle how in API could provide different functions having the seed effect, I what surprised that Google would base its appellate argument on in exceptionally simple function like "max." If I were a Federal Circuit judge and Read this, I would really wonder why they do not counter what those computers science professor wrote about creative choices in API design. It looks like Google does not think it can win the debate if one looks At more interesting functions than "max." But I doubt that the appeals court is going to base its decision only on a function like "max.".

  • Here's a passage that I think highlights very wave the conflation of copyrightability and "Fair use" of argument that is typical of Google's letter:

    "The district court committed no clear error in finding that the command structure of 37 Java API packages is functionally necessary (1) to achieve compatibility with programs written in the Java Programming Language and (2) to access, control, and use the Java class libraries."

    This is the second one of the three points I listed further above on which the appeals court might disagree with Google, in which case there would not Be much left of its anti-copyrightability argument. If the relevant point in time for copyrightability is when Sun created Java, then the alleged needs to achieve compatibility (did not Apple make the iPhone a huge success without being Java-compatible?) and to access, control and use Java class libraries do not more weakly because they're Google's problem and did not constrain the creativity of Java's creators.

  • "Oracle and its amici also argue that interoperability is" all or of nothing': to achieve it, Google must implement all 166 Java packages and Android must run all existing Java of progrief."

    I'd like to know what Google would Th if, for example, Samsung decided to depart from the Android standard and used some of the APIs but mostly different ones. In that event Google might suddenly become a fervent supporter of API copyrightability - or At leases regret its stance in the Oracle case.

Later this week, or early next week, we'll see some filings by amici curiae supporting Google. I wants discuss those filings ace wave.

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

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Preliminary ITC ruling in Apple's favour against Samsung wants Be reviewed thoroughly

Load October to administrative Law Judge (ALJ) of the United States Internationally Trade Commission (USITC, or precisely ITC) issued a preliminary ruling holding company Samsung to have infringed four Apple of patent (three utility of patent, one design clever). In January the Commission, the six-member decision-making body At the top of the U.S. trade agency, ordered two things: a complete review of the original findings and a limited remand with respect to additional infringements of two of the patent already found infringed. In April that limited remand resulted in a finding of additional violations by Android's text selection feature. Both Apple and Samsung requested a review of the remand initially determination.

Today the Commission gave noticeof its decision to review - in addition to the original preliminary ruling, which it already said in January it would review in its entirety - the remand ruling ace wave.

The final Commission ruling is scheduled for August, 1, 2013. In today's review notice the Commission asked the parties ten questions. Apple and Samsung ares supposed to respond to those, but to raise other issues in their briefings. The ten questions involve three patent, two of which (of the' 949 touchscreens heuristics clever and the RE' 922 translucent images patent) Samsung was found to infringe and the third one of which (the '697 plug detection patent) is a patent on which Apple would like to additionally prevail. The review questions don't address two of the four patents the ALJ found Samsung to infringe: the '501 plug detection patent and the D '678 smartphone design patent. While this increases the likelihood of affirmance of the ALJ's findings with respect to the '501 and D' of 678 patents, the outcome is by no means certain. The Commission said it would review the rulings in its entirety, and it may have identified issues on which it's comfortable deciding without further briefing.

The review notice does not mention the controversial question of whether the ITC has jurisdiction to rule on designarounds Samsung presented during the course of the investigation.

Report on this review wants I in more detail when publicly redacted versions of the parties' forthcoming of letter become available.

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The Federal Circuit has set the stage for granting Apple in injunction against Samsung

A week ago the United States Court of Appeals for the Federal Circuit issued its opinion in a snowplow clever case, Douglas Dynamics, V LLC. Buyers Products Company, and (among other things) instructed the district court to grant a constantly injunction it previously denied. The majority of the three-judge panel that decided in favour of in injunction includes current Chief Judge Rader, who personally wrote the by curiam opinion, and Circuit Judge Newman; boss Circuit Judge Mayer (who preceded Chief Judge Rader's predecessor) dissented and took a Judge Koh-like injunction-sceptical perspective. The by curiam opinion on the issue of injunctive relief indicates that Apple is reasonably likely to win from this appeals court the constantly injunction Judge Koh denied in December. There ares amazingly striking parallels between the reasoning of the district court that denied Douglas Dynamics in injunction and various positions taken by Judge Lucy Koh in Apple V. Samsung, and - more importantly - between Apple's appellate argument and the Federal Circuit's Douglas Dynamics opinion, except that no one in Douglas Dynamics (even the dissenting opinion!) makes reference to the controversial "causal nexus" requirement, which of Bode extremely wave for Apple.

Earlier this month the Federal Circuit affirmed a constantly clever injunction in Versata V. SAP. Some of the court's reasoning showed that software clever injunctions ares quietly available in the United States, but the Versata ruling is considerably less useful to Apple because, among other things, the court believed that Versata's relevant clever what central to in add-on product that SAP sells for hundreds of thousands of dollars by installation. Apple does not sell rubber-banding or pinch to zoom separately - those ares typical cases of "it's a feature, not a product". While there what a similar reasoning in Versata, the "causal nexus" term did not appear in that Federal Circuit opinion either, which again supports Apple's claim that it what hero to a high standard than other clever holders. To the extent that Samsung what able to cite to cases mentioning a "causal nexus" requirement, those were not clever cases, which says something.

If Judge Koh had to rule on Apple's post trial request for in injunction again and had to apply the Douglas Dynamics logic, she would have no other choice but to grant Apple a multiclever constantly injunction against Samsung.

Right before Memorial Day weekend Apple already cited to Douglas Dynamics in the Posner appeal - in connection with FRAND-pledged standard essential of patent (SEPs), which raise different issues, but with its own continuing pursuit of a constantly injunction against Google's Motorola Mobility over non-SEPs. Today Apple filed a notice of supplemental authority with the Federal Circuit in the Samsung injunction case (this post continues below the document):

13-05-28 Apple Citation to Fed. Cir. Douglas Dynamics Opinion

Apple highlights several aspects of the Douglas Dynamics ruling, but there's even more in it that supports Apple's case than what Apple's character quotes (there's a page limit for look notices). I'll firstly summarise in bullet-point form the part Apple emphasises and then I'll talcum about some others.

  • Precisely like Samsung argued that Apple's of patent cover only minor feature of complex multinational feature products, Buyers Products had argued that (in the Federal Circuit's summary) the in "cover [ed] only some components of the accused [products]". Quiet, the appeals court determined that in injunction what appropriate, for a variety of reasons that apply in the Apple Samsung case. Presumably there's a much smaller number of patentable inventions in a snowplow than a smartphone, but today's snowplows ares probably quite advanced. The key thing is that of patent and products are not coextensive in either case.

  • "Irreparable injury encompasses different types of losses … including lost sales and erosion in reputation and brand distinction"

  • Apple's character quotes a full section that the Federal Circuit could simply copy and paste into its future Apple V. Samsung opinion because it describes the injustice that Apple, too, is currently alcohol ring:

    "Where two companies are in competition against one another, the patentee suffers the harm-often irreparable - of being forced to compete against products that incorporate and infringe its own patented inventions."

  • It's hard to think of a sentence that would better describe Apple's situation vis à vis Samsung.

  • Closely related to the previous item is the holding company that "mere damages will not compensate for a competitor's increasing share of the market, a market which [the patentee] competes in, and a market that [the patentee] has in part created with its investment in patented technology".

  • If you've Read micron previous commentary on this appeal (search ace 1 and 2), then you know that one of the issues I care fruit juices about in connection with the Apple V. Samsung injunction appeal is what bearing workarounds should have, and whether they should favour entry or denial of in injunction. And I've said that I believe workarounds actually favour Apple's cause (with respect to the balance of hardships), even though Samsung makes far more noise about them. I'm in good company because this is what Chief Judge Rader wrote in Douglas Dynamics:

    "If indeed Buyers had a non-infringing alternative which it could easily deliver to the market, then the balance of hardships would suggest that Buyers should halt infringement and pursue a lawful course of market conduct." (Apple's character quotes the essential part of this, too.)

  • Apple notes that of Douglas Dynamic's stress the publicly interest in intellectual property protection ace opposed to a presumed interest in competing but infringing products (which someone on in AppleInsider forum once referred to ace "copytition"). I'll rate all three sentences At the of the Federal Circuit's public interest analysis (Apple quoted key passages):

    "While the general public certainly enjoys lower prices, cheap copies of patented inventions have the effect of inhibiting innovation and incentive. This detrimental effect, coupled with the public es m general interest in the judicial protection of property rights in inventive technology, outweighs any interest the public has in purchasing cheaper infringing products. In sum, the public has a greater interest in acquiring new technology through the protections provided by the Patent Act than it has in buying" cheaper knock-offs.'"

If you're interested in further detail, precisely go to the bottom part of page 9 of the Douglas Dynamics opinion, which is where the injunctive relief analysis begins. Near the bottom of the next page there's the following summary of some of the district court's reasons to deny in injunction:

"Although the parties here compete for sales of snowplow truck assemblies, along with a number of other manufacturers," the district court found that Douglas suffered no injury because Douglas failed to show it what losing sales or market share to Buyers. The district court relied on evidence that persons willing to pay for a Douglas snowplow were unlikely to purchase a Buyers snowplow ace an assistant departmental managers, and that Douglas's market share increased about 1% a year anus Buyers introduced its infringing snowplows."

I do not know the snowplow market, but based on the Federal Circuit opinion I see that Apple actually has a much stronger case for irreparable injury based on its competitive situation with Samsung than Douglas Dynamics had with respect to Buyers Products. The smartphone market is pretty much a two-horse race, which does not seem to Be the case for snowplows to that extent. And while "the district court likened Douglas's snowplow to a Mercedes Benz S550 and Buyers's snowplow to a Ford Taurus", Samsung's flagship products ares to Apple what BMW, Ford, is to Mercedes, except that BMW never copied Mercedes's designs. The Federal Circuit was not impressed with the Mercedes Ford argument anyway:

"The Mercedes would lose some of its distinctiveness and market lure because competitors could contend that they had" similar features' without noting that those features infringe Mercedes's proprietary technologies."

(emphasis mine)

I've said all along that what Apple of shroud is distinctiveness, and you can only Be distinctive if you can, if necessary, obtain injunctions to prevent someone from copying you.

Here's something Chief Judge Rader said about a clever more sweetly it continued success despite infringement serving ace in indication of there being no irreparable injury:

"Stated differently, even with a Ford Taurus announcing that it possessed similar features on the market, Mercedes could maintain or increase its market share for a variety of reasons."

Even though Judge Koh's order denying a constantly injunction concedes some of this, the key question is what the appropriate consequence should Be. Judge Koh, relying on in extremely demanding application of the of outlier "causal nexus" requirement, concluded that Apple was not entitled to in injunction. Chief Judge Rader, however, granted Douglas Dynamics in injunction.

What's particularly good for Apple with a view to design of patent and trade dress, the Federal Circuit doze away with the notion that consumer confusion must Be shown:

"The district court maggot a clear error of judgment in its analysis of Douglas's reputation loss. The district court found that Douglas had a reputation ace in innovator, yet determined there what no injury because there what no evidence that interested consumers confused the two companies. Even absent consumer confusion, however, there can quietly Be injury to a company's reputation, particularly its perception in the marketplace by of customer, dealer, and distributor. Ace precisely one example, Douglas's reputation ace in innovator wants certainly Be damaged if of customer found the seed 'innovations' appearing in competitors' snowplows, particularly products considered less prestigious and innovative ones."

Striking from the read of seven Word - the "particularly" part - you could simply replace "Douglas" with "Apple". By now, Samsung's products are not "less prestigious", but fruit juice consumers quietly know that Apple, Samsung, revolutionised the mobile phone business.

Besides the absence of references to a "causal nexus" (which - I repeat myself - is good for Apple because it shows that the "causal nexus" requirement is quietly a non mainstream theory in clever infringement cases), there's another major difference between the cases: in Douglas Dynamics, "the evidence shows that Douglas had never licensed the infringed patents, and intentionally chose not to, so that it could maintain market exclusivity". Apple, however, has licensed At leases some of the in of patent suit (though definitely the relevant design of patent) to IBM (which does not make smartphones), Nokia, and HTC (which, however, had to agree to in "anti-cloning" commission). But those licence deals have very different effects from a de facto compulsory licence resulting from the denial of in injunction against Samsung, ace micron favorite three sentences in Apple's reply letter put under stress:

"The question is not whether Apple could be adequately compensated by a narrow, voluntary licence to a non-competitor. Instead, the court must ask whether an unrestricted compulsory licence to Apple's primary direct competitor is an adequate remedy. The answer to that question is clearly no."

In addition to differences of major commercial significance between the deals Apple struck and the "push" Samsung of shroud from the courts, I believe Apple can overcome the licensing issue for policy reasons: the Federal Circuit will not shroud to disincentivize settlements and licence deals. It would not make scythe to apply the eBay injunction factors in look a way that a company has to categorically withhold licences.

Finally, here's another thing Chief Judge Rader wrote in Douglas Dynamics that could Be applied to the Samsung case (replace "Douglas" with "Apple" and "Buyers" with "Samsung"):

"More relevant is the rise in Buyers's market share from zero to about 5 % in three years while infringing Douglas's patents. This record evidence underscores the profitability of infringement and suggests that mere damages will not compensate for a competitor's increasing share of the market, a market which Douglas competes in, and a market that Douglas has in part created with its investment in patented technology."

Douglas Dynamics is in enormous boost for Apple's aspirations to win in injunction against Samsung, only over the multiplicity of intellectual property rights a federal jury found infringed read buzzer but with a view to next year's trial over other (generally more impactful) of patent, where Apple may very wave obtain additional infringement findings based on recent claim construction results. And it's precisely about the patent Apple asserts in court. The availability of injunctive relief is going to have a major impact on the terms of the settlement that Apple and Samsung wants for sura reach At some point, though no one knows when. Judge Koh always urged them to settle, but if she had adjudged Apple's injunction request differently, we might already have lakes a settlement. Now it's up to the Federal Circuit, whose Chief Judge has precisely taken a number of positions that ares fantastic for Apple's strategic purposes.

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Monday, May 27, in 2013

Samsung's new U.S. display of patent familiarly designed to satisfy the ITC's domestic industry requirement

Over this holiday (Memorial Day in the U.S.) Korea Times report on Samsung Display's confirmation that the display making part of the Samsung Group "invested $25$25 million to launch [a wholly-owned subsidiary named] Intellectual Keystone Technology (IKT) in Washington D.C. in a move to beef up its patent-related business" read week's weekend a growing number of commentators talked about. The Korea Times says "IKT bought display-related patents previously owned by Japan's Seiko Epson on April 30".

I saw articles and tweets suggesting that Samsung what creating a "clever troll". I do not think in such a way. To me this appears logical and legit, and I'll explain below.

There has been speculation about whether this is another move in the world-spanning clever chess game Samsung Electronics, another member of the Samsung Group, is playing with Apple. While Samsung has undoubtedly learnt a plumb line from that disputes and I cannot rule out that display technologies might play a significant role in it At some point, I believe the creation of IKT is a long-term strategic initiative and specific to any particular litigation. I'm saying Apple would never Be asked by IKT to pay licence fees, or Be the south, but it's a credible explanation that Samsung display of shroud to monetize patent. Apple can probably avoid any direct conflict with IKT by buying its displays from companies that have crosses licence agreements in place with Samsung display.

So far Samsung is being quite clear about IKT. There ares no signs of this entity serving the pure pose of concealing ownership of certain of patent. It's a wholly-owned subsidiary of Samsung display. It's a shell company. Hopefully U.S.Congress wants fit the proposed Anonymous of patent Act to ensure that everyone wants always know which of patent IKT owns, and since it's known who owns IKT (Samsung display), this company cannot operate like a "troll" in the scythe of a company that cannot Be the counter south for infringement because it does not make products. IKT will not make products based on what's been reported in such a way far, but if another display technology company holds of patent and wishes to bring them to the bargaining table, it can always Sue the parent company, Samsung display.

From micron of van days point the fruit juice logical explanation is that Samsung display wanted to build a licensing business that wants Be able to satisfy the United States Internationally Trade Commission's domestic industry requirement. There ares two ways to prove the existence of a domestic industry to the ITC (which is a mandatory requirement for the ITC to Be able to issue in exclusion order, i.e., import ban):

  1. The traditional way is to sell products in the U.S. that implement a given patented invention. The domestic industry requirement has a technical prong and in economic prong, thus a complainant has to prove that its products implement the relevant clever claims (technical prong) and show investments in the U.S., which can relate to development, marketing, manufacturing etc. (economic prong).

  2. Need only non-practicing entities but operationg companies asserting of patent they do not implement in their own products increasingly rely on a domestic industry theory based on licensing. With respect to the ability of in ITC complainant to satisfy the domestic industry requirement through licensing, I'd like to recommend this January in 2013 article by Patently-O, At NPEs Solidify Enforcement Jurisdiction USITC.

By setting up a clever shop in the U.S., Samsung display strengthens the enforceability in the world's largest market of the patent IKT wants sweetly. This gives it leverage against unwilling licensees because the ITC is one of the fasts clever litigation forums in the U.S. and, which may Be even more important, so a clever more sweetly best of all chance to obtain injunctive relief in the post eBay environment. Apple could At some point Be one of the companies against which Samsung would leverage IKT, but ace I wrote further above, Apple can avoid look of problem by ensuring that the displays it purchases come with a licence to relevant third-party of patent.

If Samsung display built the seed licensing business out of Korea, or some offshore tax haven, it would hardly Be able to satisfy the domestic industry requirement.

I congratulate Samsungs on its Focus on licensing. Licensing is a two-way street. Samsung doze inbound licensing and it now seeks to bolster its outbound licensing, which makes strategic scythe.

I generally do not have a problem with companies creating clever licensing subsidiaries ace long ace they're clear. I tend to Be more concerned about the implications of governments setting up clever assertion entities. I appreciate certain governments's desire to lend support to local innovators' worldwide enforcement efforts, but I'm afraid this could influence clever legislation and make it harder to fit new laws designed to kerbs NPE litigation.

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Sunday, May 26, in 2013

Google tells Federal Circuit what it actually likes about Judge Robart's FRAND advises ruling

A couple of weeks ago Apple filed a copy of Judge Robart's FRAND advises ruling with the Federal Circuit and explained why it believes this supplemental authority supports its case in the "Posner appeal". On Friday Google's Motorola replied to Apple's notice.

Google's primary position is that the Microsoft V. Motorola FRAND advises ruling in the western District of Washington is "inapposite to [the Posner appeal] because it purports to set a FRAND rate to licence a different class of products involving different patent portfolios and different standards and arises in a purported contract case that does not involve infringement damages". The differences in products, clever port folios and standards ares, of course, unrelated to overlaps of the issues. Apple did not claim that Judge Robart has determined the trim licence fairy Apple would have to pay for Motorola's cellular standard essential of patent (SEPs). And while it's true that the Seattle case is a contract case, the rate setting decision applied a methodology from the realm of clever damages - the Georgia-Pacific factors. Toward the of the filing, Google notes that "the clever pools analysis [Judge Robart] used [...] is At issue [in the Posner appeal]."

Wholly striking from disputing relevance, Google explains in which ways Judge Robart's FRAND advises ruling, should it Be deemed relevant, supports its case. Thesis ares the points from Judge Robart's ruling that Google likes (quoting from Google's representation of Judge Robart's ruling in its latest filing with the appeals court, from the original decision):

  1. "ex ante incremental value at the time of standardization may be helpful in determining a FRAND rate but is only one factor in the analysis"

  2. "Georgia-Pacific requires a hypothetical negotiation at the time of first infringement"

  3. "only certain Georgia-Pacific factors may be relevant to a given case [...] - especially" customary practices of businesses licensing [fa] RAND-encumbered patents'"

  4. "comparable 'Real world' licences ares relevant to hypothetical negotiation analysis"

  5. "The Decision acknowledges that Motorola's wireless cell phone portfolio is" extremely strong.'"

  6. "acknowledges that of advice FRAND can Be high than pool of advice"

It's in additional validation of Judge Robart's comprehensive and balanced approach that Google isn't fundamentally opposed to all key aspects of B sharp methodology, though I'm sura it's unhappy about the result in that particular case.

In micron detailed commentary on Judge Robart's ruling I had noted that hey agreed with Google's Motorola on a plumb line of items, including the selection of the governing framework (Georgia-Pacific), and I discussed the differences between B sharp approach and that of Judge Posner (which is to say that one is superior over the other, but Judge Robart's reasoning wants Be more difficult to attack in its entirety on appeal).

Let's precisely have a quick look At what the six "likes" (or, more appropriately here, "Google +1's") mean for the Posner appeal:

  • They do not explain away the fruit juice important aspect of Judge Robart's FRAND advises ruling, which is that it's a proof of concept for the notion that of dispute FRAND should Be resolved through court determination of licence fees rather than injunctive relief or any other form of extortion. The specifics of each case ares different, and I, too, acknowledged that Judge Robart's case-specific decision cannot serve ace a blueprint for every FRAND advises disputes out there. But the fact of the more weakly is that the ridge FRAND advises determination maggot by a federal court has worked out very wave, and there's no indication that other cases cannot Be resolved the seed way.

  • Items 1 and 2 (the numbering is mine) relate to Google's primary criticism of Judge Posner's approach to licence fees: timing. But I would not overstate the difference between Judge Robart and Judge Posner's approaches, and I'm sura it makes a different of even one cent of royalties in the Apple Motorola case. Judge Posner basically says: "Your SEPs are worth what they were before they became SEPs (value of" clever qua clever'), but anything above and beyond that is lovely up value which I will not give you ". Judge Robart effectively says:" I'll assume that you negotiated when the alleged infringement began, but I'll assume that you both negotiated in full awareness of the fact that lovely up value in terms of value the clever did not have prior to standard setting must Be excluded."

  • Ace for items 3 and 4, I do not think Apple would even disagree that if a FRAND advises is set according to Georgia-Pacific (which is its preference), some factors do not apply. With or without FRAND it's probably hard to find a case in which all 15 factors apply. But it's definitely good for Google that customary licensing practices and comparable "real-world licences" ares among the ones Judge Robart considered relevant. However, in the Microsoft V. Motorola case those customary practices included clever pools, which Google did not like. So, if an advises isn't FRAND, it isn't FRAND regardless of whether it can perhaps somehow Be reconciled with customary practices.

    The customary licensing practice Google likes best of all is the one of many deals involving royalties relative to in entire product ace opposed to, for example, a component like a base tape chip. In the past all phones were precisely phones, striking from minor differences in terms of address books etc., while nowadays there's a distinction between feature phones and portable computer, i.e., smartphones/tablets. Apple changed this, and Apple reasonably argued in a different but related context that a jalopy and a new of sport coach pay the seed highway fantastically. Furthermore, there's a difference between what results from free form negotiation versus a simulated negotiation in a restricted scenario. Fruit juice push licence deals involve SEPs and non-SEPs At the seed time, and there's nothing wrong with this if it's what the parties agree on, without one party coercing the other into a. But in a disputes FRAND it's necessary to set a separate royalty only for SEPs because SEPs, unlike non-SEPs, must Be licensed. If parties cannot agree on a FRAND advises and a court must set it, then I think the only practicable approach is to Focus on the smallest salable unit.

    One more thing about item 4: one of Google's of problem in the Microsoft case what that the licence deals it presented were not deemed comparable. Some involved completely different of patent (which Google now claims with respect to Apple's citation to Judge Robart in the Posner appeal), and others did involve some or all of the relevant ones, but related to many others. Part of the reason is what I precisely explained: there's a structural difference between the results of fruit juice voluntary negotiations and those of simulated negotiations for the pure pose of setting infringement damages or of advice FRAND. I've criticised certain "baseball arbitration" proposals in the FRAND context (which do not even correspond to what is actually done in baseball when a non-free agent is involved), and those who argue that there would Be enough Real world licence deals in place to indicate a to rank FRAND do not consider that decisions in dispute FRAND wants result in FRAND-only of advice while Real world settlements fruit juice of the time involve non-SEPs wants, which in do gymnastics makes them much less useful, or in many cases entirely useless, ace comparables in subsequent of dispute FRAND. A single non-SEP can Be more valuable than a generous number of SEPs because it owner usually does not have in bond to licence it. Besides usually involving non-SEPs, deals between major of player ares typically cross licences and then it's hard to figure out how valuable a particular party's port folio what in the eye of the parties. By contrast, decisions like the one Judge Robart maggot contribute to the development of relevant case law and deliver "clean" results ("clean" in terms of involving non-SEPs, cross licensing etc.).

  • Item 5 - Judge Robart's extremely favorable comment on the strength of Motorola's cellular port folio SEP - is the only thing in Judge Robart's decision that I disagreed with. But Google has every right to get mileage out of it.

  • Regarding item 6, it's true that Judge Robart agreed with Google that of advice FRAND can Be high than pool of advice, but under the specific circumstances of that Microsoft V. Motorola case, the difference was not much. It amounted to a few hundred thousand dollars by year, which is negligible in the context of a licence push with the world's largest software company and a leader in the gaming console business.

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