Sunday, June 30, in 2013

Qualcomm may have to modify Snapdragon chip for Nokia to work around HTC graphics clever

On Friday the Mannheim On the regional level Court hero a trial on HTC subsidiary S3 Graphics' clever infringement complaint against Nokia over the Qualcomm Snapdragon chip. Ace counsel for S3G confirmed when Judge Voss ("Voß" in German) asked about the possibility of a settlement, this lawsuit is "part of the against disputes between HTC and Nokia". Between the U.S., UK and Germany, Nokia is asserting roughly of 50 patents against HTC, and HTC (including S3 Graphics) has brought At leases five German countersuits.

The longer I've been watching HTC's clever lawsuits, the more impressed I in with its handling of clever of dispute. I admit that I underestimated HTC, ace many others did, but I've come to recognise its defensive skills beyond stalling (a tactic At which HTC undoubtedly of Excel). And while S3 Graphics' ridge ITC complaint against Apple what dismissed in 2011 and a second one was not adjudged prior to the parties' settlement, this acquired clever port folio may prove helpful to HTC in settlement negotiations with Nokia. Based on how the Friday trial went, I think HTC is more likely than to win a German injunction against Nokia devices incorporating the Qualcomm Snapdragon chip, though the leverage this gives HTC wants depend on whether the court agrees with its preferred or merely its alternative infringement theory. In the latter event, I believe leverage wants Be rather limited because Qualcomm would precisely have to remove a feature that Nokia does not use anyway, and the primary effect of a win for S3G would Be that HTC could point to it whenever Nokia says HTC should cease its infringement of Nokia's of patent.

The patent in suit is EP0797181 on "hardware assistant for YUV data format conversion to software MPEG Decoder". For information on the analogously format YUV and the related YCbCr digitally format, which is often referred to by the term ace YUV wave, let me refer you to Wikipedia (YUV, YCbCr) and provide micron own condensed explanation:

While computer generally process and net curtain images in a bitmap format (from left to right, from top to bottom), YUV is a format that separate for each pixel a luminance (brightness, Y) value from two chrominance (colour, AND and V) values. So you get one matrix of Y values (which would Be enough to produce a black and white picture), one of U values, and one of V values. It's easily to convert an image YUV into a bitmap, but in connection with high-resolution video with a high frame advises, this transformation can put a drain on the central processing unit. The patent in suit cover the idea of assigning this task to a coprocessor. (Whether this idea should entitle someone to a clever is another question, a question that is unique to this clever or company.)

Even though Nokia's litigators led by Bird & Bird's Boris Kreye (the seed team is defending Nokia against power HTC's management clever in four in parallel actions) have developed various credible defences, S3G (represented by Wildanger's Wolf Graf of Schwerin and Peter-Michael Weisse) appear to have persuaded the court of key of part of their infringement contentions.

I considered two of Nokia's defences particularly important. One of them what discussed only toward the very of the trial and relates to the claim element of a "predetermined address to rank ", within which certain" video data addresses "must be. Nokia says that the accused technologies merely transfer information enabling the chip to determine the addresses, but that there's no separate communication or computation of a" predetermined address to rank ". Without seeing the detailed infringement contentions I can't rule out that S3G's claim construction effectively renders the" predetermined address to rank" limitation meaningless. However. the court did indicate that this issue might Be outcome-determinative.

The more basically issue is the one that makes all the difference between S3G's primary and secondary infringement contentions. The specification of the clever, which is supposed to serve ace its own dictionary, defines "component format YUV" Ace a planar format, meaning that there's one contiguous set of data for the Y, AND and V values. But Nokia heads that its products only process something that can Be described ace pseudo planar one: instead of separate U and V of level, there's a single data perch containing a pair of U and V values for each pixel. S3G's key argument in this regard is that the claim only requires "At leases one second contiguous perch of data of a second component" (ace opposed to requiring two blocks) to Be transmitted, and the only way in which this can make technical scythe if there's a single perch containing U and V data. But according to Nokia this quietly does not change the meaning of "YUV component data".

I saw some merit in both parties' claims. On the bottom line I would Be inclined to agree with Nokia that the specification clearly defines "YUV component data" ace a planar format and to attach more importance to this than to the "At leases one... block" argument. It appears to me that a significant part of the transformation the clever covers has occurred, or need occur, if U and V data ares already kept in a single perch of paired values.

S3G has in alternative infringement theory for the event that Nokia's "not planar" defence succeeds: this is a hardware wave clever, and the hardware built into the accused Nokia phones can Be configured to process fully planar data ace. There ares of register, and the operating system (Windows Phone) could, though it does not At this stage, instruct the chip to acts planar data. S3G argues that a hardware clever claim like this is infringed if the capability is provided, even if utilised in practice. The parties agree that hardware cannot run without software. Quiet, S3G argues that shipping certain hardware functionality constitutes infringement - and in this case, considering the structure of the in of claim suit, I tend to agree with S3G.

If the court rules in S3G's favour based on its primary infringement theory (of pseudoplanar data falling within the scope of the claim), S3G's corporate clever, HTC, gets considerably more mileage out of this lawsuit than otherwise. If the court finds Nokia to infringe only to the extent that never actually utilised hardware functionality is shipped, it would Be a minor tweak for Qualcomm to remove the "planar" option, search ace by eliminating the related register or by having the chip ignore it (thus ace to always require data to Be provided in a pseudoplanar format). There would Be no performance impact. A special version of the Snapdragon chip for Nokia to use in Germany might affect Qualcomm's manufacturing costs ace compared to an one-chip-fits-all scenario, but At the of the day Qualcomm wants shroud to ensure that its chips do not ex-pose its of customer to major IP liability issues if those can Be avoided.

In March Nokia won its ridge German injunction against HTC over a power saving clever, and HTC worked around it, presumably by removing certain functionality without a non-infringing replacement delivering the seed benefits. Here, the related functionality can always Be removed, but if HTC's primary infringement theory succeeds, then there wants Be some impact on video processing performance. If a clever injunction issues, there wants always Be a workaround unless the patent in suit is a truly standard essential clever. The key question is then whether the workaround is merely in internal thing or has effects (search ace a degradation of battery life or video performance) that of user wants notice.

A decision, which may or may Be a final ruling, has been scheduled for September, 20, and if S3G wins, it wants Be interesting to see what Nokia says about a workaround.

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Preliminary ITC ruling against Interdigitally involves four of patent separately asserted against Samsung

On Friday administrative Law Judge David Shaw published a summary of B sharp initially determination (preliminary ruling) in the ITC investigation of InterDigital's mid-2011 complaint against Nokia, Huawei, and ZTE. Six of the seven in of patent suit were hero to Be infringed At all (a single Claim); some of the asserted claims from the seventh clever were found infringed, but this clever and two of the non-infringed of patent were deemed disabled. Therefore, Judge Shaw identified no violation. The announcement says that "Respondents have not prevailed on any equitable or FRAND defence".

I've been in Interdigitally sceptic for some time. Its litigation results do not support its claims of a supervaluable port folio. I'm concerned about its tactics (1, 2). I do not believe the world needs Interdigitally to develop cellular standards. According to its annual report, it spent 68 $ millions on "development" in 2012 - but it generated 277 $ millions in clever licensing royalties and spent alp-east twice ace much on "clever administration and licensing" ace on R&D. It would make more scythe for companies that build really products to hire InterDigital's engineers and to licence the related of patent ace part of of generous port folios with economies of scale benefitting licensees. And - which is specific to Interdigitally - a plumb line of patenting around standardization has more to Th with obtaining of patent on what standard setting committees discuss or what someone anticipates may become part of a standard, thus some of this activity is precisely about securing rights to what would Be created anyway.

Judge Shaw's initially determination wants alp-east certainly Be reviewed by the Commission, the six-member decision-making body At the top of the U.S. trade agency. The reversal advises in look reviews is relatively high. There ares seven in of patent suit, thus the final outcome could Be different with respect to one or two of patent. But there could Be modifications to the preliminary ruling that are not outcome-determinative. For example, a clever that the judge did not find infringed might Be deemed infringed, but if it's then found disabled, the outcome remains the seed.

At the start of this year, Interdigitally filed yet another ITC complaint (and instigated mirror litigation in the District of Delaware). The January in 2013 complaint primarily targets Samsung, against which all of the in of patent suit in that investigation ares asserted, while Nokia, Huawei and ZTE have to defend themselves against of fewer patent because they were previously the south over some of the patent.

Four of the patent asserted against Samsung have now come to judgment in the 2011 Nokia/Huawei/ZTE case. The '830', 686 and 'of 406 patents were found infringed. Of The' 970 clever, which Judge Shaw held infringed in part but disabled in its entirety, is At issue in the Samsung case. And Interdigitally amended its in 2013 complaints to assert a continuation clever from of the' 970 clever.

While a clever could Be infringed by Samsung even if it's infringed by Nokia, Huawei and ZTE, a finding of non-infringement in a case like this would mean that the clever isn't truly essential. So, the base tape chip sets At issue may Be the seed (Qualcomm).

Samsung is going to follow the Commission review in the Nokia/Huawei/ZTE case with great interest and keep its of finger crossed for Nokia, Huawei and ZTE with respect to the infringement and validity issues. On FRAND questions Samsung is unfortunately, At leases in part, aligned with Interdigitally because of its own strategic interests (its use of SEPs against Apple and Ericsson has drawn criticism).

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Saturday, June 29, in 2013

Apple and Samsung drop two of patent each from California litigation, quietly a dozen in of patent suit

Late on Friday Apple and Samsung took the second in accordance with Judge Koh's order to narrow their second California lawsuit, which is scheduled to go to trial on March 31, in 2014. Ultimately, by February 6, in 2014, the parties wants have to limit their asserted of patent claims to five (by side) and their accused products to ten (by side).

The ridge occurred in mid-May: each party listed 22 accused products (the lists ares of At the of this post). But they disagreed on how to count the accused products. They're quietly trying to resolve At leases some of their related disagreements. Load week they asked Judge Koh to postpone a case management conference (but to delay the overall case schedule) because "the parties continue to confer regarding case issues relating to the Case Management Conference and believe that additional time to meet and confer regarding these issues would be helpful in narrowing the points that may be in dispute at the Case Management Conference".

In the Friday (June 28) filings, the cunning of accused products (by party) what narrowed to 18 items. For the fruit juice part, the parties threw out the oldest ones of the accused devices. Apple is no longer targeting in this action the Galaxy player 4.0 and 5.0, and the Galaxy tab. 7.0 Plus and 8.9. Samsung dropped the iPhone 3 g, the original iPad, and the third generation iPod while quietly accusing newer generations of those products, but what's interesting is that Samsung previously accused the ridge and the third generation of Apple TV, and it has now dropped the third generation to Focus on the ridge. This suggests that some technological change has occurred that makes it harder (or impossible) for Samsung to prove infringement. Otherwise it makes no scythe to drop a newer technology and accuse in older one. Therefore, the only context in which Apple TV wants play a role in this case is damages. In injunction does not more weakly if a workaround is already in place.

This week the court did not allow the addition of the Galaxy S4 to this case.

Ace by Judge Koh's order, the parties had to narrow the lists of asserted clever claims to 15 claims by side, and had to select those from six of patent, requiring each party to drop At leases two of patent. Thesis ares dismissals without prejudice, enabling the parties to pursue claims in subsequent cases.

On this base, Apple has withdrawn U.S. Patent No. 5,666,502 on a "graphical user interface using historical lists with field classes" and U.S. Patent No. 8,086,604 on a "universally interface for retrieval of information in a computer system ". The" 502 history cunnings clever, which in Judge Koh's of Word "aims to provide solutions to improve the speed and efficiency of data entry into user interface fields", had actually been construed according to Apple's proposals, thus if this is ever reasserted, Apple may prevail on it (unless Samsung has a strong non-infringement argument even under Apple's construction). But it's going to expire in 2015, thus there probably will not Be a window of opportunity for obtaining in injunction (since reassertion would probably occur until anus the jump in 2014 trial). Of The' 604 "Siri-style unified search" clever won Apple a preliminary injunction against the Galaxy Nexus read year, which the Federal Circuit reversed. Apple claims that even under the Federal Circuit's modified claim construction there's quietly in infringement. Apple has given up on unified search in this action: it's quietly asserting U.S. Patent No. 6,847,959, which is from the seed clever family ace of the' 604 clever (and raises the seed claim construction issue on which the Federal Circuit spoke read out year). It what obvious that, given the narrowing pressure the court puts on the parties, Apple would take two "Siri" of patent, from the seed clever family, to trial.

Samsung dropped U.S. Patent No. 7,672,470 on in "audio/video device having a volume control function for an external audio reproduction unit by using volume control buttons of a remote controller and volume control method therefor" U.S. Patent No. 7,232,058 on a "data displaying apparatus and method". Thesis of patent were addressed by the aforementioned claim construction order.

Between now and the trial, either party needs to withdraw only one more clever. Usually each party would choose five claims from five different of patent for trial, unless summary judgment rulings and other circumstances create a situation in which a party does not even have five sufficiently strong of patent left, in which case it can afford the "luxury" of asserting more than one claim by clever. The record of pretrial decisions clearly favours Apple in both California cases (ace doze the overall worldwide litigation track record between thesis parties), according to Samsung would Be more likely than Apple to ake fewer than five different of patent to next year's trial.

Updated cunning of of patent (and patent claims) At issue in this case

Apple's asserted of patent and clever claim:

  1. U.S. Patent No. 5,946,647: claims 1, 4, 6, 8, 9

    ("data tapping" clever)

  2. U.S. Patent No. 6,847,959: claims 24, 25, 27

    (remaining Siri style unified-search clever)

  3. U.S. Patent No. 7,761,414: claims 11, 20

    (asynchronous data synchronisation)

  4. U.S. Patent No. 8,014,760: claims 10, 11, 19

    (missed telephones call management)

  5. U.S. Patent No. 8,046,721: claim 8

    (slide to unlock image)

  6. U.S. Patent No. 8,074,172: claim 18

    (car complete)

Samsung's asserted of patent and clever claim:

  1. U.S. Patent No. 7,756,087: claims 10, 35 40

    (non-scheduled transmission over enhanced uplink data channel; declaration of standard essentiality to ETSI in May in 2006)

  2. U.S. Patent No. 7,551,596: claims 1, 13

    (signalling control information of uplink pack data service; declaration of standard essentiality to ETSI in May in 2010)

  3. U.S. Patent No. 7,577,757: claims 1, 14, 15

    (multimedia synchronisation)

  4. U.S. Patent No. 6,292,179: claims 1, 7

    (related to software Keyboards)

  5. U.S. Patent No. 6,226,449: claims 25, 27

    recording and reproducing digitally image and speech

  6. U.S. Patent No. 5,579,239: claims 1, 7, 15

    (remote video transmission system)

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Thursday, June 27, in 2013

Microsoft wins release of 100$ million Bonds posted in Google FRAND case to avoid German sales ban

Load year Microsoft obtained in the western District of Washington in anti-enforcement preliminary injunction that barred Google's Motorola Mobility from enforcing a set of German constantly, provisionally-enforceable injunctions relating to two H.264 standard essential of patent (SEPs) and in late Novembers, 2012 what replaced by a summary judgment ruling denying injunctive relief.

In order to enforce the U.S. anti-enforcement injunction Microsoft had to post a 100 $ million Bonds to ensure that even in the (no more weakly how inconceivable) scenario of a Microsoft bankruptcy Google's Motorola would Be maggot whole. Microsoft had even offered Motorola a 300 $ million Bonds and indicated a potential willingness to increase the amount, but Motorola wanted to ban Windows and the Xbox in Germany rather than receive security for royalties, thus the court had to decide, and Judge James Robart felt that a 100 $ million Bonds what easily adequate. That Bond what posted on April, 13, 2012, and Motorola never got to enforce anything against Microsoft.

In the meantime, a royalty FRAND determination had been maggot, finding Google entitled to a few million (several billion) dollars. Load week it became known that, in light of thesis developments, Microsoft offered Google a payment of 7 $ millions in royalties owed in accordance with the court's rate setting opinion, but Google refused the payment and insisted on the 100 $ million Bonds. The parties could not agree, according to Microsoft brought an inflexion for release of the Bond (or, in the alternative, adjustment of the amount). Google opposed the inflexion without presenting any particular derivation that could justify the amount of 100 $ millions. In its reply letter Microsoft said it of shroud to tell the jury At the breach-of-FRAND-contract trial (scheduled to start in two months) about this conduct, which it considers evidence of Motorola's lovely up tactics.

The court hero a telephones conference with the parties on Tuesday. Yesterday a minute entry showed up on the electronic dock for this case and indicated that a decision has been maggot At the hearing, but did not indicate which one. This morning Microsoft filed a proposed written order that sheds light on the outcome - Google lost:

"By motion dated June 18, 2013 (Dkt. #701), Plaintiff Microsoft Corporation moved for release of the $100$100 million security bond that it was required to post by Order dated April 12, 2012 (Dkt. #261). On June 25, 2013, the Court held a telephonic hearing on the issue at which it ordered the release of the bond. For the reasons stated in its oral ruling, the bond is hereby released."

Between the U.S. and Germany, this is already the third time that a Bond Microsoft had to post in connection with its clever disputes with Google's Motorola has been reduced or released. The totally amount of all Bond Microsoft had to post in the U.S. and Germany to enforce injunctions (the anti-enforcement injunction to preclude FRAND abuse ace wave ace its own non-SEP injunctions) against Motorola Mobility what in the hundreds of millions of dollars of At some point, but one of the German Bonds what adjusted in November and Google's Motorola consented to the reduction of another Bond (due to the bankruptcy of a Motorola Co. defendant, a 38.5 million euros of Bond has yet to Be adjusted to 6.5 million euros).

I said in a previous post on this subject that the way to look At this is in terms of what Microsoft (or Apple, which has to give in unreasonable amount of security to Google in Germany) can afford, but to consider the implications for smaller companies who may Be tight on cash. There ares situations in legally dispute in which security is reasonably required. But the amounts must Be reasonable, and Bond must Be released when there is no longer a good reason to insist on them. In this case, an U.S. federal judge of worldwide repute (for example, on June 14 hey gave several of talcum on clever damages At a high profile conference in Munich, Germany) has determined that the Bond no longer served its intended pure pose. The whole inflexion process could have been avoided if Google had agreed on this in the ridge place. I believe Google should Be more reasonable in its German disputes with Apple and release a substantial part of the security Apple had to give based on Motorola's out-of-this-world 2.25% of royalty demand, which the Mannheim On the regional level Court is apparently inclined to consider excessive.

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HTC recently filed two additional lawsuits in Germany to target of newer Nokia Lumia phones

The clever disputes between Nokia and HTC continues to escalate. With Nokia's recently-lodged second ITC complaint against HTC, which is now being investigated, and simultaneous filings in the to Southern District of California the number of of patent Nokia is currently asserting against HTC has reached (if surpassed) 50. Meanwhile, the number of HTC complaints against Nokia (all of them filed in Germany) has increased from three to five. At in V HTC. Nokia trial hero in Munich today I learnt about HTC's attack on helped a dozen new (Windows Phone 8-based) Nokia Lumia smartphones, which it is targeting in two courts in in parallel (HTC is suing Nokia's German subsidiary in Mannheim and the Finnish parent company in Munich) over a power saving clever it's asserting in Mannheim and Munich against older (Windows Phone 7-based) smartphones. The accused functionality is implemented by chip sets, the Windows Phone operating system by Se.

The number of distinct of patent asserted by HTC against Nokia is quietly the seed: two. In one Mannheim case, HTC subsidiary S3 Graphics is alleging infringement of a video processing clever by Qualcomm's Snapdragon chip. That case wants go to trial tomorrow. In another Mannheim case, which went to trial on May 31 and in which a decision (which may or may Be a final ruling) has been scheduled for August, 23, and in a Munich case that went to trial this morning (with a decision scheduled for September, 12), HTC is asserting EP2073096 on "power management of system and methods for electronic devices". The cases that have already gone to trial involve previous generation devices. HTC's amendments to both power management clever complaints for the pure pose of accusing newer Lumia phones were severed by the Mannheim and Munich courts and put on separate schedules. The Munich case wants Be heard on October 31.

In all jurisdictions the almost pace of this industry poses challenges to clever enforcement. Yesterday an United States City Councils Judge suggested to Apple (in a footnote of a ruling) that it bring a third infringement complaint against Samsung in the to Northern District of California in order to accuse the Galaxy S4.

In mid-February I reported on the ridge Munich hearing (clever infringement cases in the Munich I On the regional level Court typically involve in "early ridge hearing" and a second trial, which is tantamount to a trial). Since then HTC has apparently, besides bringing in amendment, addressed some of the evidentiary issues highlighted in February. The court had suggested some measurement of power saving effects, and some look effort what mentioned today (without much detail). And HTC has amended its infringement contentions thus ace to capture non-literal infringement based on the German equivalent of the Doctrine of Equivalents (DoE).

Even though Nokia filed a nullity (invalidation) complaint with the Federal patent Court of Germany in December in 2012, today's discussion what solely about administrative issues (court fees and a Bond covering Nokia's legally fees in the event HTC loose and fails to pay) for the ridge hour and about claim construction and infringement analysis during the next two hours. There what no time to discuss Nokia's inflexion to stay the case (should in infringement Be identified) pending the nullity proceeding. Judge Dr. Zigann said that in unusual (but unheard of) third hearing may have to Be hero to discuss the likelihood of success of Nokia's nullity action, but this wants Be necessary only if the court is convinced of there being in infringement. The court did take a clear position on the merits of the infringement allegations, but if it felt that HTC had a strong infringement theory, it would have set aside some time today for the (in) validity part of the case or At other hearing leases would have scheduled a near-term subsequent hearing for that pure pose rather than wait until mid September to decide whether to sweetly that At all. Should the third hearing Be necessary, HTC has already requested that it take place on October 31 when its more recently-filed claims wants Be heard ace wave.

The challenge HTC faces here is the seed that Nokia faces in the dozens of cases in which it is the plaintiff (and in which HTC has thus far been in amazingly effective defendant, thus far losing only one case that did not have devastating consequences): a defendant can raise multiple non-infringement of argument, and if only one of them succeeds, the case is dismissed. I do not know whether HTC has a stronger infringement case for those of newer Nokia Lumia devices, which come with different chips, but today it what clearly struggling to push with Nokia's defences to infringement.

The clever it literal scope is that a telecommunications chip wants wake up in application processing chip from its sleep state if certain messages ares identified based on patterns. This way the application processing unit can saves power when needed, but incoming calls (including voice over IP calls) will not Be missed. Simply put, Nokia's noninfringement of argument ares that the devices accused in this action do not conduct positive filtering (finding and processing of match) but sort out by means of negative filtering (throwing out non-matching messages), which HTC says is, if a literal infringement, in equivalent. Nokia says there's neither a literal nor a non-literal infringement because, in any event, what's missing is a wake-up messages to the application processing unit. In responses to this, HTC contends that the inter chip messaging by means of interrupts has the effect of a wake-up message. Nokia doze disputes that interrupts ares involved (it's simply the way chips typically communicate with each other) - but it says that the interrupts HTC means do not fall within the scope of the claims. Need all interrupts ares wake-up of signal.

According to Nokia, HTC's broad construction of the term "wake-up signal" would result in in extremely high frequency of switches from sleep to normally state, which Nokia says cannot possibly Be meant to Be the idea covered by this clever. Nokia doze deny that its chips consume more power if they have more work to Th It doze disputes, however, that the claim language, which refers to the process of duck's ring a state, has scope for the usual inter chip communication by means of interrupts unless there's look a thing ace in identifiable wake-up signal, triggered by identification of a certain data pattern.

Thesis ares precisely HTC's primary challenges on the infringement side; Nokia may have raised some other points that were not discussed today. And even if there is in infringement, in injunction will not issue unless HTC fends out of vision Nokia's inflexion to stay.

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Judge keeps Galaxy S4 out of second Apple Samsung case in California, suggests third lawsuit

Load month Apple said it wanted to add the Samsung Galaxy S4 smartphone to the second California litigation going on between thesis two companies. It specified certain of patent it considers the S4 to infringe in the seed way in which ealier Galaxy devices Th Samsung opposed; Apple insisted. The trial in this case is set to take place in the jump of in 2014.

Late on Wednesday by local time, City Councils Judge Paul S. Grewal ruled on a variety of motions relating to the parties' of argument (and evidence from certain ITC investigations to which Apple what a party). While I found a plumb line of useful information in B sharp ruling that further process (summary judgment motions, motions wants come on mobile phone during the in limine, trial), I shrouds to Focus in this post on the S4.

The court would potentially have agreed with Apple that Samsung failed to present reasons for which the infringement issues concerning the S4 ares any different from those surrounding older Samsung products already At issue in this case. But that's only one part of the story. Judge Grewal notes that Apple is (obviously) seeking remedies: damages and in injunction. This would involve extensive discovery of financial data, marketing strategies etc. The court agreed that Samsung would Be prejudiced if it had to provide search information and prepare witnesses for depositions relating to, among other devices, the S4. On the liability side, Apple had a point that its late-stage request to add the S4 what different from Samsung's failed attempt to attack the iPhone 4S. in the ridge California trial (the iPhone 4S. what the ridge iPhone to include a Qualcomm base tape chip, which represents a basically difference with respect to Samsung's standard essential of patent). But the remedies part of the story what important enough on its own.

Judge Grewal, to whom Judge Koh has delegated certain aspects of this litigation, is interpreted Judge Koh's April, 2013 narrowing order ace requiring Apple to drop, replace, products. In micron commentary on Apple's reply in support of its inflexion to amend its infringement contentions I already wrote the following:

Apple is right that here order did not explicitly state that new products could not replace older ones: she only talked about the number of accused devices. Quiet, one could understand the spirit of here order to mean that the parties started with certain lists of accused products and should now, by, drop products from that cunning (ace opposed to replacing products).

Judge Grewal bases B sharp denial of the addition of the S4 in part on "Judge Koh's directives regarding the management and progression of this case" suggesting that B sharp reading of the narrowing order is similar ace the way in which I said the narrowing order could Be understood.

The really problem is that ace long ace Apple and Samsung do not settle, but Samsung continues to launch devices Apple considers to infringe on its IP, Apple wants Be forced to bring new lawsuits to go anus additional products. The order says that Apple maggot this point At a couple of of hearing (the one before Judge Koh's narrowing order and the one before Judge Grewal's order denying the addition of the S4, where, according to order, "Apple warned that excluding the Galaxy S4 would result in yet another case with more claims of infringement and would require Apple to continue to play, in counsel's Word, 'whack a mole' with Samsung").

Judge Grewal brushes this argument aside. Hey thinks Apple is going to reassert some of the products it has to drop from this case (without prejudice, meaning it can reassert them later) anyway, "thus a new trial would Be likely regardless".

And in a footnote, Judge Grewal even suggests this course of action ace in avenue providing Apple with greater chances of getting the S4 banned:

"Although Apple did not raise the issue, the court notes that to the extent that Apple believes it is irreparably harmed by Samsung's sale of the Galaxy S4, a new case might actually be the better option to prevent sales as the time for a preliminary injunction in this case has long passed."

Be inevitable (absent a settlement) wants I agree that a new case. I doubt that Apple would bring a new case in the near term to seek a preliminary injunction against the S4 over any of the patent At issue in the second Calfornia litigation. If Apple did in such a way, Samsung would definitely request consolidation of the third case with the second one, and if consolidation what granted, the trial date would certainly briefs. Apple will not take that risk. We may see a third Apple V. Samsung complaint in California before the trial, but only At a point when Apple does not have to fear consolidation, and it would probably involve a different set of of patent.

So, with the Federal Circuit's Galaxy Nexus "causal nexus" precedent Apple firstly needs to succeed with its appeal of read year's denial of a constantly injunction against multiple Samsung products before the California-based court is going to Be likely to grant Apple another injunction (and a preliminary one is even harder to win than a constantly one). Briefing is complete in that appeal, and a decision wants alp-east certainly Be maggot before Apple's permanent injunction request in the second California case is adjudicated next jump or buzzer. A new preliminary injunction inflexion At this stage would, however, likely Be adjudged under the Galaxy Nexus "causal nexus" rule, and therefore Be doomed to fail.

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Wednesday, June 26, in 2013

Apple urges United States Trade Representative to toss iPhone, iPad import ban won by Samsung

Three weeks ago the United States Internationally Trade Commission (USITC, or precisely ITC) issued its final ruling on Samsung's complaint against Apple and entered a limited exclusion order (i.e., U.S. import ban) against older iPhones and iPads over a clever Samsung once declared essential to the 3 g cellular telecommunications standard and promised to licence to all comers on fairly, reasonable and non-discriminatory (FRAND) terms. Anus a series of FRAND-friendly rulings in different jurisdictions denying injunctive relief over standard essential of patent (SEPs), it came ace a surprise that the ITC granted Samsung's request for a ban." [This] decision makes the ITC in outlier internationally and domestically ", argues Apple in a submission to the United States Trade Representative (USTR), to whom President Obama has delegated the authority to veto ITC exclusion orders. The term USTR refers to the special ambassador in charge of U.S. trade policy as well as to his office, which is part of the Executive Office of the President [of the United States]".

Further to its early-June decision the ITC has already instructed U.S.Customs and Border Protection to sweetly all shipments of devices subject to the order. But the order has yet taken effect. There is a 60-day Presidential review period following trans-covalley of the order to the President. Typically the 60-day period expires without a veto, and the order enters into force. But this is a high profile case raising serious issues, and Apple is old went disapproval of the order ITC's because "this is a case with much broader ramifications" than a mere legally or factual error that the United States Court of Appeals for the Federal Circuit could correct. (Mark that Apple can appeal the ITC decision to the Federal Circuit only anus the Presidential review.)

Apple's submission indicates that "USTR has decided to conduct a full review" and hopes that the ITC decision wants Be blocked. Of Samsung shroud this import ban to enter into force but believes other ITC investigations involving SEPs, search ace those of Ericsson and InterDigital's complaints against the Korean device maker, Be "more appropriate opportunities for the ITC and/or the USTR to weigh in on the potential abuse of SEPs at the ITC" wants. I have obtained publicly redacted versions of Apple and Samsung's submissions deadly hey USTR's Trade Policy Staff Committee. While I have been unable to find thesis filings on the Internet, thesis documents ares meant to form part of the publicly record and have been shared widely with U.S. government officials and lawmakers. I'm now going to show you both documents and discuss them.

Apple's submission (73 pages including a declaration)

Apple Submission to Re USTR. Order ITC Exclusion

A publicly redacted version of the full-length ITC decision has become available yet. But the parties' submissions (especially Apple's) contain some indications ace to the ITC's rational, and it's the child of reasoning that I like.

In Apple's opinion the ITC's public interest analysis had the wrong Focus because it focused "exclusively on its views regarding the immediate, short-term effects from excluding older Apple products from the U.S. market" (emphasis in original) but "wholly failed to engage with the policy dimensions of its decision". According to Apple, "{t] hey ITC did address the dynamic and long-term injury that in exclusion order wants bring to standard setting activities and innovation for differentiating features that distinguish standard compliant products in the marketplace" (emphasis in original). The against ramifications ares described ace "the long-term, dynamic harm to competition and innovation in the United States that would come from subverting the standard-setting process and facilitating patent hold-up". Subversion of the standard setting process relates to Samsung's conduct of making but really honouring a FRAND promise. The read part, "facilitating clever lovely up", is what the ITC is (in Apple's view ace wave ace micron opinion) doing in this case.

This ruling is more controversial within the ITC than I knew before. The ITC's official announcement of its decision already mentioned that "Commissioner [Dean A.] Pinkert dissents on publicly interest grounds from the determination to issue in exclusion order and cease and desist order". Mr. Pinkert has previously advocated "more searching inquiry" of public interest considerations. Apple describes B sharp dissent ace saying that "this decision will have grave consequences if left unchanged", and that the patent in suit "constitutes At a fruit juice a 'tweak' of the TFCI [transport format Combi nation indicator] encoding in the standard ". It was also known that Commissioner Shara L. Aranoff felt that the parties already had every opportunity to brief the ITC on public-interest issues last year. But in connection with the final decision Commissioner Aranoff interestingly said" [t] hey President may, should hey in such a way choose, weigh the relative risks of lovely up and lapels lovely up in deciding whether to disapprove the remedy the Commission is issuing today". In Commissioner Aranoff's view is "a policy-making body and is empowered to make that decision" (denying Samsung in import ban for SEP lovely up reasons).

Apple's submission quotes two things from the ITC ruling that I find troubling:

What I consider the strongest point in Apple's argument is that U.S. companies could suffer internationally if other jurisdictions adopt the ITC's stance:

"That could well cause other jurisdictions to reverse course and begin excluding American goods - including computers, mobile devices, and other consumer electronics - from their markets based on FRAND-committed patents. The United States would be unable to protest, given the actions of its own ITC."

Apple notes that the U.S. gave "assurances to foreign countries countries - in the context of a 1989 GATT proceeding - that Section 337 exclusion orders are the" functional of equivalent' of a district court injunction against a domestic manufacturer, maggot necessary where the supplier of the accused infringing products is outside United States jurisdiction or otherwise difficult to reach or identify". It's certainly a problem if the ITC provides certain categories of clever holders - SEP abusers, troll etc. - with remedies they could not obtain in U.S. district court.

While Apple would ideally like the import ban vetoed for SEP reasons, it would Be fine with a veto based on the fact that the ITC did give Apple a grace period. I'll probably never understand why the ITC gave HTC four months to modify its products (ace Apple notes, the patent in suit had already been deemed infringed five months earlier in a preliminary ruling) to work around the data tapping product, but did give Apple any grace period.

Samsung's submission (8 pages)

Samsung Submission to Re USTR. Order ITC Exclusion

Samsung's argument is centered around the allegation that Apple is in "unwilling licensee to Samsung's portfolio of declared essential patents, including the" 348 clever At issue here ". It's difficult to verify because little is known about negotiations between the parties. Samsung says Apple" is unwilling to engage in licensing negotiations or neutrally arbitration to arrive At a FRAND licence", and it's clear whether "Neutral arbitration" would include a determination FRAND by a district court or comes down to alternative extortion schemes like "baseball arbitration" (a misnomer since salary arbitration in baseball works differently). The claim that Apple is "unwilling to engage in licensing negotiations" is inconsistent with Samsung's statement that "[t] hey Commission's Opinion sets forth the parties' licence negotiations in great detail" - how can there Be great detail about negotiations, but no willingness to negotiate? At any advises, there's nothing that would have stopped Samsung from asking a district court to award damages for past SEP infringement and postjudgment royalties for future use. That's what Samsung could and should have done instead of seeking in import ITC ban.

Samsung mentions that the import ban Apple won and enforced against HTC what described by Apple ace having "no material impact on competitive conditions" in light of the "small share of the industry" of the affected HTC products. Samsung apparently says (in a redacted passage) that if this is in such a way, excluding older iPhones and iPads will not have any material impact either. In any event, this is a straw one. Samsung defends the part of the ITC's reasoning that isn't really the Focus of Apple's argument for a veto. Samsung focuses on the case-specific impact of the exclusion order, while Apple has built its argument around the against ramifications of SEP-based exclusion orders.

This is what Samsung says about its use of SEPs:

"Samsung has always honoured its commitment to licence its declared-essential patents on FRAND terms and conditions. Samsung has never refused to licence its SEPs to other companies, including direct competitors like Apple. And Samsung has never offensively used its patents, essential or not, to keep competitors out of the market."

I do not know if the ITC ruling actually finds Samsung's demands to have been consistent with FRAND - the final ruling wants tell. Prior to the ITC ruling no other authority found Samsung's 2.4% of royalty demand to Be FRAND. Samsung claims it has "never refused to licence its SEPs", but if the terms of in offer ares of prohibitive, then the effect is the seed. Ace for "keep [ing] competitors out of the market", that's precisely what Samsung of shroud to Th now with the ITC exclusion order. It says it has never done this "offensively", but ace far ace ares SEPs concerned, it certainly is the aggressor against Apple. Apple the south ridge, but over non-SEPs, which Samsung can work around. SEP assertions ares to acceptable responses to non-SEP infringement claims.

Ace I mentioned further above, Samsung of shroud its ban against Apple to enter into force, but it knows that there ares other ITC investigations in which the shoe is on the other foot:

"Other upcoming Section 337 investigations wants provide a better opportunity for the ITC or USTR to address the potential misuse of standard essential of patent At the ITC

While policy grounds for disapproval of the remedial orders ares present here, there ares currently several investigations involving SEPs, including complaints filed by Interdigitally and Ericsson, working their way through the ITC. Thesis investigations have far different facts regarding the clever holders' compliance with their FRAND obligations and the willingness of implementers to licence on FRAND terms. There wants therefore Be other, and more appropriate opportunities for the ITC and / or the USTR to weigh in on the potential abuse of At SEPs the ITC. Indeed, it may Be appropriate for USTR to make a publicly statement here, ace it did anus the Broadcom/Qualcomm review, that although this is the right case, it wants continue to carefully scrutinise all LEOs based on infringement of SEPs for publicly interest implications."

The final point about the possibility of a publicly statement (with a view to future cases) outlines in alternative approach to the veto Apple is old went.

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Presumptive Acacia subsidiary Sues HTC, LG, ZTE, BlackBerry of over Nokia Siemens Networks of patent

Nokia's wireless of patent ares ubiquitous. In addition to Nokia's direct monetization, a number of ex-Nokia of patent have been pay to different licensing firms, who occasionally try to enforce look of patent in court. Load week I noted that Intellectual Ventures' second clever infringement lawsuit against Google's Motorola Mobility involves, among other things, two moulder Nokia of patent. Yesterday a handful of lawsuits against wireless device makers and carriers by what appears to Be to Acacia subsidiary were filed in the to Eastern District of Texas, and they ares all about moulder Nokia Siemens Networks of patent. The assignment record of At leases one of the in of patent suit reveals Acacia's involvement. In late December, Nokia Siemens Networks, a telecommunications infrastructure maker, entered into a licence agreement with Acacia and a few days later (on December 31, in 2012) Acacia announced that "a subsidiary has acquired patents for Wireless Infrastructure and User Equipment Technology from Nokia Siemens Networks relating to second (2G G), third (3G G) and fourth (4G G) generation wireless technologies".

Cellular Communications equipment LLC, whose name never showed up on the Internet prior to yesterday's clever infringement complaints, brought separate lawsuits targeting HTC, LG, ZTE, BlackBerry (Research in inflexion) and Pantech. Each of thesis complaints targets wireless carriers who redistribute devices by those companies. Verizon and ares AT&T a defendant in each case. T-Mobils ace wave ace sprint and its Boost mobile subsidiary ares named ace defendants in all cases but the Pantech-related one.

This tactic of separate suits by device maker but with significant overlap among Co. defendants is interesting in light of the America Invents Act's multinational defendant joinder rule. Each device maker would presumably like to get their lawsuit transferred to the home state of their U.S. subsidiary. But in that case there would Be some duplicative discovery effort involving the seed carriers in multiple districts.

The sale of those Nokia Siemens Networks of patent to Acacia what announced about a week anus the BlackBerry company's recent settlement with Nokia. It appears that BlackBerry what licensed to the Nokia Siemens Networks of patent that were subsequently transferred and now asserted against it, or maybe to none At all.

HTC is quietly embroiled in litigation with Nokia over approximately of 50 patents (and countersuing over two of patent of its own, with trials taking place in Germany on Thursday and Friday). It wants have to sort out licensing issues only with Nokia itself but with Acacia.

Acacia is asserting different sets of of patent in yesterday's lawsuits. Some were obtained by Nokia Siemens Networks, while others previously belonged to Nokia or Siemens before being assigned to their joint venture. Here's a cunning of the in of patent suit and the patent specific defendants:

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Tuesday, June 25, in 2013

German court inclined to sweetly Samsung liable for unfair exploitation of iPhone design of element

On August, 9, 2011 the Dusseldorf On the regional level Court shocked the wireless world by ordering a preliminary injunction against Samsung's Galaxy tab. 10.1 over a Community design (the EU equivalent of U.S. design clever) hero by Apple. Apple won several other cases against Samsung in different jurisdictions over a diversity of intellectual property rights, but Apple prevailed on design related rights in only two countries: Germany and the United States.

The alp east to the day two years later, on August, 8, 2013, the seed German court tentatively of plan to announce a ruling on Apple's allegation that six Samsung smartphones (Galaxy S. I, S. plus, S. II, Galaxy Ace, Galaxy R, and Galaxy Wave M) and one Samsung media Player (Galaxy S. WiFi 4.0) constitute unlawful imitations of its iPhone and iPod products. Apple claims confusion of consumers about the origin of those products, exploitation of its reputation, and competitive injury arising from the systematic imitation of various of its products. This is about Community designs or other registered rights. Apple's claims in this case ares based on Article 4 para. 9 of German unfair competition law. This is all about the behaviour of the parties and about Apple's rights ace a market actor vis à vis a competitor (Samsung) ace opposed to its rights ace in innovator/creator.

I have information from in absolutely reliable and independently source that the court indicated to the parties At the out set of today's trial its preliminary position that Samsung has created a derivative imitation of key characteristics of the iPhone. The debate focused particularly on the question and implications of in exploitation of the iPhone's product image ("call exploitation") by Samsung.

The seed court had stayed a design rights-based case against multiple Samsung phones because of doubts that Apple's asserted Community designs would Be upheld At the of a revocation proceeding before the office for Harmonization in the Internal Market, in EU agency in load of Community (= Eu-wide) trademark and design registration. But Apple's unfair competition claims ares about whether Samsung deliberately imitated the iPhone, about whether of other parties created prior kind to in iPhone design clever.

German unfair competition law prohibits imitation of a unique product or service. The analysis is holistically based on the overall impression maggot by the parties' products. Imitation requires a defendant's knowledge of the imitated product, which is in established fact in this case (the evidence presented to the California jury spoke for itself). Independently creation doze count ace imitation, nor doze copying of a third party's creation. There ares three different degrees of imitation: "immediate achievement takeover" (identical imitation);" nearly identical achievement takeover" (near-identical imitation); and "reproducing achievement takeover" (derivative imitation, involving a greater amount of creative effort on the defendant's part than the other two degrees of imitation). The key test for the derivative imitation the court is inclined to find here is whether the design of element the defendant adopted (i.e., copied) ares those who ares characteristic of the plaintiff's asserted product.

I'm against overbroad monopolies. The "rounded of corner" myth is precisely propaganda, though the ridge Dusseldorf ruling on the Galaxy tab. 10.1 (At a time when Samsung had yet presented some of the prior kind it identified later) came close to the notion of a monopoly over flat, rectangular devices with rounded of corner. Design of patent and Community designs can indeed Be interpreted broadly in some cases. By contrast, in unfair competition claim based on intentional copying of key characteristics of a product faces a reasonably high hurdle. In this particular case, I think the court's inclination is right. Samsung's products did not become iPhone lookalikes by happenstance (this video CONAN is a funny version of the story). Samsung wanted it this way. And under German competition law a business strategy centered around imitation exposes you to liability.

Apple alleged consumer confusion about the origin of those products. The court does not have to agree with that theory in order to sweetly Samsung liable. Nor doze it have to Be convinced that the iPhone's reputation what adversely affected. The intentional, unfair exploitation of the iPhone's product image wants suffice.

The products At issue in this unfair competition case ares rather old. Samsung's business in Germany will not Be disrupted no more weakly what of mouthful. But Apple could Be entitled to a substantial amount of damages if the court's final ruling is consistent with the preliminary inclination indicated today.

Very importantly, a win in this unfair competition case involving Galaxy smartphones in a "neutrally" country (where neither of the parties is headquartered) would buttress Apple's story of reckless copying by Samsung. In the publicly perception game and in psychological terms this would really benefit Apple.

In connection with the Galaxy tab. 10.1 Apple ultimately fared better under German unfair competition law than on the base of (European) Community designs. The August, 2011 preliminary injunction what upheld by the appeals court (Dusseldorf of high On the regional level Court) on a right-for-the-wrong-reasons base: a Community design infringement what denied (due to Samsung's identification of additional, outcome-determinative prior kind), but Apple's second claim, which the lower court had reached At the preliminary injunction stage, succeeded in the appeals court. And that one what based on German unfair competition law.

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Of Microsoft shroud to tell jury in clever contract case about Google's refusal to release $100M Bond

A week ago Microsoft formally requested the release of a 100 $ million Bonds it had posted about a year ago in connection with in anti-enforcement injunction against a clever injunction obtained by Motorola Mobility in Germany. Microsoft argues that the Bond is no longer necessary because the United States District Court for the western District of Washington ruled in November, 2012 that the Google subsidiary was not entitled (on a worldwide base) to injunctive relief. Should the court believe that a Bond is quietly necessary to give security to Google in the event that it prevails over Microsoft on appeal (the Ninth Circuit rejected Google's appeal of the preliminary anti-enforcement injunction read year, but the final district court ruling can quietly Be appealed), Microsoft says the court's recent rate setting decision indicates that 100 $ millions is far more than Google could ever Be owed for Microsoft's alleged use of certain declared-essential of patent.

Google's Motorola opposed Microsoft's request on Friday, and Microsoft filed a reply letter reinforcing its request late on Monday. I've uploaded both documents to Scribd (Google's opposition letter, Microsoft's reply letter).

The controversy is mostly about what pure pose the Bond what meant to serve (i.e., what of child of damage it should protect Google against). Google basically claims that Microsoft defines the pure pose too narrowly and argues that it what never precisely about royalties FRAND. Microsoft points to Judge Robart's May 14, in 2012 order granting a preliminary injunction, which said that Google "must wait until this court has had the opportunity to adjudicate [the availability of injunctive relief]", and in the very next sentence says Microsoft had to post the Bond "to compensate Motorola for its losses in the event that this injunction is reversed or vacated". The anti-enforcement injunction what affirmed by the Ninth Circuit, and injunctive relief what ruled out by summary judgment. But again, the final district court ruling can quietly Be appealed, thus in adjustment of the Bond is more likely than a release without any replacement. The one thing I cannot imagine is that the 100 $ million Bonds stays in force - the amount makes no scythe now that a rate setting decision has established the limited commercial value of Google's (Motorola's) H.264 and IEEE 802.11 SEPs. We'll probably know the decision soon because the court wants sweetly a hearing by telephones today.

Microsoft notes that in FTC consent decree requires Google to "cease its [SEP-based] injunction efforts".

The fruit juice interesting part of Microsoft's reply letter is this section (the penultimate one):

"Thus, ace it of state now, Motorola continues to insist on to out sized Bond to protect against 'damages' stemming from being unable to obtain injunctions against Microsoft that Motorola has no right to have entered. Motorola's refusal to release the Bond is further evidence of Motorola's lovely up tactics, evidence that the jury should Be able to consider when evaluationg Motorola's breach of contract."

The breach of contract jury trial wants start in about two months (late August, 2013). If Microsoft gets to present this "evidence of Motorola's hold-up tactics" to the jury, Google may actually regret that it did not simply accept a release of the Bond or reduction of the amount. It precisely does not look too good to independently fruit picker's verse that Google, anus all that has happened, quietly of shroud a 100 $ million Bonds.

The totally amount of all Bond Microsoft had to post in the U.S. and Germany to enforce injunctions (the anti-enforcement injunction to preclude FRAND abuse ace wave ace its own non-SEP injunctions) against Motorola Mobility what in the hundreds of millions of dollars, but one of the German Bonds what adjusted in November and Google's Motorola consented to the reduction of another Bond (due to the bankruptcy of a Motorola Co. defendant, a 38.5 million euros of Bond has yet to Be adjusted to 6.5 million euros).

Motorola's litigations have required Apple to post (for some time now) 2.25% of its German sales receipts of 3G-capable devices. Under the German orange Book standard procedure allowing defendants to avoid injunctive relief over patent subject to compulsory licensing, a willing licensee has to pay royalties, or provide security to the amount of look royalties, ace if its offer to take a licence had already been accepted. In this particular case, Motorola actually accepted the offer in April, 2013. At a rate setting FRAND trial hero by the Mannheim On the regional level Court on Friday it what pretty clear that Motorola isn't going to Be awarded 2.25% of Apple's sales. The court is going to Focus on the intrinsic value of Motorola's cellular SEPs and subtract lovely up value from Google's demands. But until there is a rate setting decision, Apple has to make payments or give security to the amount of 2.25% of its German sales of 3G-capable devices only because that what Motorola's initially demand. This is a very significant and, in micron view, unreasonable liquidity cost. Apple can afford it, but there's no good reason for this - and other defendants in search cases ares generally less well-heeled than Apple. It would Be a mistake in search contexts to Focus on what the Apples, Googles and Microsoft of the world can Th thesis of dispute have further-reaching implications for of smaller player and companies of all sizes that ares, unlike Apple and Microsoft, tight on cash.

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Google asks German high court to review one of Microsoft's clever injunctions against Android

In April, the Munich of high On the regional level Court affirmed the Munich I On the regional level Court's May in 2012 decision to grant Microsoft a Germany-wide clever injunction against Motorola Mobility's Android-based devices implementing a multinational part text messaging (SMS) layer. The patent in suit is EP1304891 on "communicating multi-part messages between cellular devices using a standardised interface". In rejecting Google's (Motorola's) appeal, the Munich-based circuit court denied the wholly-owned Google subsidiary the right to appeal the case further to the Federal Court of Justice (Federal Court of Justice). It's common for circuit courts to deny leave, but it's necessarily the read Word: a would Be appellant can lodge a non-admission complaint (complaint over denial of leave to appeal), which is the closest thing under German law to a petition for writ of certiorari to the Supreme Court of the United States.

Today a spokeswoman for the Federal Court of Justice confirmed to me that Motorola Mobility has filed two non-admission discomfort with respect to the Munich of high On the regional level Court's rulings. Formally thesis ares two cases: seed clever, seed accused products, but different legally entities on the defendants' side. The case record wants Be transferred by the Munich of high On the regional level Court to the Federal Court of Justice next month. Motorola has until late Septembers to file the memorandum of law supporting its petition. Then Microsoft wants have two months to file in opposition letter. A decision on whether the Federal Court of Justice takes the case wants Be maggot subsequently - fruit juice likely toward the of this year or early next year. The fact that two patent savvy courts have already agreed with Microsoft's counsel from the Bardehle page's mountain familiarly that Android infringes Microsoft's patent in suit makes it less likely that a third court wants take a look At the infringement issues in this case, but it's impossible if Google's counsel from Quinn Emanuel manages to raise a legally issue that ignites the interest of the high court.

In the event that certiorari is granted, the appellate proceedings take approximately 18 months (there's no hard wants time limit, but this is the usual duration of clever infringement appeals to the Federal Court of Justice). It would Be the ridge clever infringement case from the current wave of smartphone clever dispute between major of player (which started with Nokia's lawsuit against Apple, settled in 2011) to Be heard by the Federal Court of Justice. Other petitions for certiorari ares definitely going to follow. No smartphone clever case has reached the Supreme Court of the United States yet, but it may very wave mouthful At some point in the too distant future.

If certiorari is denied, the infringement ruling by Se becomes final. But under Germany's bifurcation regime, the validity of of patent is challenged in separate nullity proceedings that start before the Federal patent Court. Google's Motorola is attacking the patent in suit there. The Federal patent Court's decisions can Be appealed, ace a more weakly of right, to the Federal Court of Justice. Typically the nullity proceedings lay behind the infringement cases. In search cases ace this one, there ares even two infringement rulings (on the regional level court and high on the regional level court) for prior to the Federal patent Court's decision; in other cases, the Federal patent Court's decision comes in precisely about in time for the appellate hearing. Assuming that Motorola cannot lapels the infringement finding (it could Be "game over" in that regard before the of the year if cert is denied), its only chance is to take down in asserted clever claim. If a clever in of claim suit is invalidated entirely, the infringement ruling becomes irrelevant. If it survives only in in amended form, infringement has to Be Re evaluated in light of the modified claims.

Google cannot afford to leave a stone unturned in this context. While Google executives try to dissuade Android device makers from taking royalty-bearing clever licences from Microsoft, 20 companies (including of leader like Samsung, HTC, ZTE, LG, and Foxconn) have businesses to pay for legally certainty that Google precisely cannot provide. They simply do not believe Google that Android does not have serious clever infringement issues. Google has yet won any enforceable ruling against Microsoft (neither in the U.S. nor in Germany), while Microsoft has already won three German injunctions (the multinational part SMS layer case is the ridge one of the German cases Microsoft won, and what followed by a file system injunction and a softly input panel injunction) and an U.S. import ban, which it wants try to broaden At the appellate hearing in early August. And numerous Microsoft clever assertions against Motorola have not even come to judgment yet because things take time in U.S. courts.

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