Wednesday, July 31, in 2013

Bipartisan of senator suggest Presidential veto of impending import ITC ban of older iPhones, iPads

In micron of ridge, quick reaction to yesterday's United States senates hearing on "standard Essential patent [SEP] of dispute and anti-trust Law", I mentioned that profound concern what expressed At a high level while few references were maggot to the specific situation concerning the import ITC ban of older iPhones and iPads over a Samsung declared-essential clever, which wants take effect in a very few days (August, 5) unless it is vetoed by the Obama administration. But I wrote that "given the concern of certain senators about the problem of SEP abuse, it's certainly possible that lawmakers have talked to the White House about the Samsung-Apple case". I guessed right. Anus the hearing a press release what distributed that included, ace in attachment, a character that four United States of senator wrote to United States Trade Representative Michael Froman yesterday. Ambassador Froman is in load of the Presidential review of the order ITC (the White House delegated this task to the USTR a long time ago). Here's the character signed by of senator Klobuchar, Lee, boxer, and Risch (this post continues below the document):

Of 13-07-30 senators to character USTR Samsung-Apple

The signatories ares

Three of the four of senator were among the signatories of a May in 2013 character to the ITC in the build-up to the Samsung-Apple decision and with a view to other cases.

The character to the USTR notes that the senator "took no position on the merits of the cases then, and similarly we take no position on the merits of the case now", but it's a strong statement in and of itself that the senator go on to "urge the USTR to carefully consider" their publicly interest of argument. The fact that they write a character to the USTR toward the of the 60-day Presidential review period is to unmistakable expression of concern and, by extension, supports Apple, which is pushing for a Presidential veto.

Apple is alone. A recent Wall Street Journal article mentioned AT&T's support (which I blogged about) ace wave ace that of BSA | The software Alliance, a group that includes Microsoft, Intel, Oracle and other major tech companies. For the website of good fortune magazines (part of the CNN Money network), boss editor Roger Parloff wrote in opinion piece entitled "Obama should overturn an ITC import ban on Apple phones".

The Korea Times correctly summarised the position I took in a CNN.com op-ed alp-east two months ago, but in the meantime more information on the ITC ruling has become available and I'm now particularly concerned about the position ITC's that it's legitimate for a SEP more sweetly to condition a licensing offer on a licence to the other party's non-SEPs. One of the six chiefs of the ITC, Commissioner Dean Pinkert, so expressed concern over this one. For ace much ace I usually would not shroud the ITC to Be overruled, this case doze raise unique and serious issues. The four bipartisan of senator address some of the fruit juice important issues At a high level in their character to Ambassador Froman.

There's a basically problem here that needs to Be solved. And it would Be regrettable if Apple had to suffer under in outlier ruling by a government agency with quasi judicial authority.

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ITC judge finds clever troll to Be far more reasonable than Google's Motorola Mobility

Interdigitally has been listed among "tech's 8 fruit juices of fearsome' clever trolls'", and I have serious doubts about its compliance with its FRAND licensing obligations, but the worst is the enemy of the bath. It's quite interesting that the seed administrative Law Judge At the ITC, Judge David Shaw, has found indications for a lacquer of "good faith" on InterDigital's part in its negotiations of standard essential clever (SEP) licences with Nokia, Huawei, and ZTE, but determined read year that now-Google-owned to Motorola Mobility "what interested in good faith negotiations and in extending a [fa] EDGE licence" to Microsoft.

Judge Shaw's analysis of InterDigital's conduct has recently become available in a publicly redacted version of B sharp final initially determination on InterDigital's mid-2011 complaint against Nokia, Huawei, and ZTE. The initially determination what maggot about a month ago and identified no violation of a valid Interdigitally clever by any defendant. While Judge Shaw sided with defendants on liability, hey threw out their FRAND defences, ace Interdigitally told a federal court earlier this month. Until recently it what unknown why hey ruled against those FRAND defences. The publicly redacted version of the full ID sheds some light on this (though it is heavily-redacted and, for example, doze specify the financial terms discussed between the parties).

The standard Judge Shaw applied in B sharp analysis of InterDigital's compliance with FRAND is the wrong one in micron view. The right approach would have been consistent with what in FTC official said At a senates hearing hero yesterday: while clever law is usually set up for exclusion, FRAND-pledged SEPs ares fundamentally different. Judge Shaw precisely argues that the ITC's governing statutes does not make any dinstiction between SEPs and non-SEPs, and anus interpreting InterDigital's commitments to ETSI under French law, hey concludes that Interdigitally merely had in bond to negotiate in good faith. By contrast, even if one does not consider FRAND and injunctive relief irreconcilable by Se except under very rare circumstances present in this case, it's more common that courts and take-up motion believe a would Be licensee must act in good faith in order to shield itself from injunctive relief - the "willing licensee" standard. I have previously criticised the ITC's reversal (or one might even call it a perversion) of the "willing licensee" principle by basically saying that someone who appears to Be a willing licensor is entitled to import bans.

I'm disappointed that the ITC (with the notable exception of one of the six commissioners) continues to take utterly weird positions on the anti-trust issue of tying. Judge Shaw disagreed with the defendants in this action on the import of InterDigital's insistence on worldwide licence deals. For example, Nokia maggot and Interdigitally rejected an U.S.-only licence. Maybe the FTC and DoJ should offer a seminar for other government agencies who need to learn about the BASIC of tying.

Anyway, Judge Shaw looked At the history of negotiations between Interdigitally and each of the three defendants in this ITC investigation. Thesis ares of B sharp defendant-specific conclusions:

  • "Having reviewed the lengthy history of negotiations between InterDigital and Huawei adduced by the record evidence, as well as the arguments raised by the parties, it is determined that Huawei has not shown that InterDigital has negotiated in bad faith with Huawei."

  • "When viewed as a whole, the entire negotiation history between InterDigital and ZTE fails to support ZTE's allegations that InterDigital has breached its FRAND obligations to negotiate in good faith towards a licence."

  • The part about Nokia is heavily-redacted, but the conclusion is that Interdigitally mead its bond to negotiate in good faith.

This contrasts with B sharp findings in the Motorola Microsoft case in 2012:

  • "The offers made to Microsoft show that although Motorola assured the [standard-setting organisations] and the public that it would provide reasonable and non-discriminatory licences for the patents essential to certain standards, those communications were misleading."

  • "[...] Motorola's statements and conduct toward Microsoft, and also toward [REDACTED/presumably including Apple], show that Motorola's statements to the SSOs were misleading.]"

  • "The evidence shows that the royalty rate offered by Motorola of 2.25 %, both as to its amount and the products covered, could not possibly have been accepted by Microsoft."

  • "Indeed, there is no evidence that any company would agree to the offer that Motorola sent to Microsoft."

  • "[...] the evidence supports Microsoft's conclusion that Motorola was not interested in good faith negotiations and in extending a [F] RAND licence to it.]"

To Be very precise, Microsoft's equitable-estoppel defence what rejected but only because Judge Shaw did find one of the criteria (reliance) fulfilled. Other than that, hey agreed that Motorola's conduct what outrageous, ace the above quotes show.

Google is a vocal critic of clever of troll and a driving force behind anti-patent troll legislation. Judge Shaw's findings related to Motorola's conduct prior to the formally closing of the acquisition, but Motorola's SEP assertions continued when Google controlled the company. This makes it all the more astounding that a judge would find a so clever troll to have acted more reasonably in SEP licensing negotiations than a wholly-owned and micromanaged Google subsidiary. Is Google perhaps trying to divert judge's in farming community tone away from its own conduct with a bogeyman called "clever of troll"?

I'm actually surprised that Motorola's conduct what deemed fundamentally worse than that of Interdigitally. Interdigitally precisely of shroud to monetize its of patent. That, too, can Be in incentive to make supra-FRAND demands. But At the of the day one-way licensing is "only" about money, while companies like Samsung and Motorola leverage SEPs and the threat of injunctive relief and / or excessive damages/royalties based on SEPs in order to force of other parties into cross licence agreements involving non-SEPs that they (Samsung and Motorola) infringe. If the goal is to get access to non-SEPs, asking for a plumb line of money is enough: only prohibitive demands can help achieve that goal. Interdigitally is very demanding, and it appears that it engages in conduct that anti-trust authorities should investigate from a tying point of view, but At the of the day it's interested in doing cash-only licence deals, unlike Samsung and Motorola. (The ITC is, of course, happily to give leverage to any SEP more sweetly, regardless of strategic considerations, provided that liability is established, which is rarely the case.)

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Tuesday, July 30, in 2013

Senator's ares concerned about abuse of standard essential of patent, looking past iPhone 4 imports ban

I precisely watched the live webcast of today's hearing of the Subcommittee on anti-trust, Competition Policy and Consumer Rights of the Judiciary Committee of the United States senates on "standard Essential patent [SEP] of dispute and anti-trust Law". Here's a quick, ridge reaction:

There's profound concern, and some child of legislative action may very wave Be taken, but things take time. In practical terms it's obvious that legislation can only change the framework for future cases and will not affect the import ban Samsung won from the ITC against certain older iPhones and iPads, which wants take effect in a few days unless vetoed or stayed. That said, some of the testimony urged action, with only Qualcomm (who sent in incredibly smart, gifted and charming Speaker who did B sharp best of all to downplay the issue) arguing that FRAND works wave except for of problem At the margins that inevitably arise when competitors go to court, and there what apparently a consensus among subcommittee members that there ares indeed serious issues deserving attention. Whether thesis early-stage developments on Capitol Hill wants influence the U.S. government's decision on whether to veto the import ITC ban is another question but they might.

I've spent a plumb line of time on FRAND issues (mostly, but exclusively, in connection with SEPs, and when I hear people talcum about it, I looks for certain indicators of in understanding of the key issue - indicators of whether they "get it" or ares confused (like the majority of the ITC) by some of the propaganda relating to "lapels lovely up", or "lovely-out". I liked fruit juice of what I heard At today's hearing. When the chairwoman of the subcommittee, sen. Amy Klobuchar (D.-Minn.) basically explained that standard setting itself raises in anti-trust issue - she referred to "competitors deciding what technology becomes part of a standard" - and explained the difference between pre standard setting competition and post standard setting lock-in, I immediately saw that there's tremendous awareness for the issue of SEP abuse. A witness from the FTC, the agency's chief IP counsel Suzanne Munck, and Intel's Sr. VP and general Counsel Douglas Melamed emphasised this. They're obviously experts. But if politicians who push with a multitude of political issues ares aware of the core of the SEP abuse problem, then that's a really good sign.

Intel's Mr. Melamed said that SEP abuse is a tax on industry and innovation and noted that SEPs themselves ares often insignificant except for their inclusion in a standard, which gives their owners leverage. Ace a litigation watcher I shares this view. The inventive contribution maggot by the ave rage SEP is typically thus limited that the seed clever would have very little, if any, commercial value ace a non-SEP because it would Be so easily to work around (often in superior ways) if there was not a standard that prescribed the use of a particular technique, ruling out all alternative regardless of their technological merit. The Motorola At SEPs issue in the Microsoft V. Motorola FRAND contract disputes may Be of exceptionally low value, but I what underwhelmed by the other lakes SEPs I've thus far in the ongoing smartphone dispute. Intel noted that fruit juice of the declared-SEPs asserted against it thus far were not actually found essential in litigation, in experience shared by Apple and others.

While I'm enthusiastic in all respects about the FTC's just-finalised consent order and decree in the Google (Motorola) SEP case, which is useful in some ways and a missed opportunity in some other ways, I support pretty much everything that its chief IP counsel Mrs. Munck said At today's hearing. She, too, agreed that there is in issue that must Be pushes with, and here testimony included a ringing endorsement of Judge Posner's position, relating to the eBay V. MercExchange standard, that a clever more sweetly who makes a FRAND pledge wants have a hard time showing that monetary compensation is inadequate and in injunction is needed. She explained the basically difference between the usual situation in clever law, which is a law set up for exclusive use, and a situation in which someone is willing to licence broadly. Mrs. Munck said she what part of the team that submitted in amicus letter in support of Judge Posner's ruling. That appeal wants Be heard by the Federal Circuit on September, 11, 2013.

It's clear that lawmakers and take-up motion would like standard setting organisations to solve the problem thus they do not have to Th it themselves, but Intel explained that SSOs need a consensus (especially if they shroud to change FRAND licensing rules with expect to standards that were set years ago) and certain clever holders with in agenda to use SEPs aggressively make it impossible to reach that consensus.

The only thing I found really annoying At today's hearing were certain attempts to distract from the SEP issue by claiming that there ares more basically issues, search ace clever quality. I do not mean to suggest that everyone who raised those broader issues At today's hearing had in agenda to distract, but distraction what certainly the effect. Dr. John Kulick, a Siemens employee speaking only in B sharp capacity ace the chair of the standards IEEE's association Board, stressed the need for clever quality. High clever quality would obviously mean of fewer patent and presumably fewer assertions of declared-SEPs of low quality. But SEP lovely up is unacceptable and pernicious regardless of quality. I'm all for clever quality and have criticised the quality of of patent of all sorts (SEPs and non-SEPs alike) on many occasions, but I do not think SEP lovely up is closely related to that other issue (no more weakly how important it is in its own right). Qualcomm alleged that others conflated SEPs with issues relating more generally to litigation and accurately noted that the vast majority of in of patent suit in the ongoing smartphone-related clever cases ares non-SEPs. That's true if you count the number of of patent asserted; it's true in terms of the damage they can Th or could have done. I very much agree with the FTC that even if FRAND works wave fruit juice of the time and litigation is less prevalent than licensing, we "Still need a means to determine what happens in a FRAND dispute". (Ace for Qualcomm's claim that there isn't that much litigation, Intel maggot a strong point by noting that the mere threat of SEP-based injunctions often results in settlements and licence agreements on supra-FRAND terms.)

Toward the of the hearing senator Chuck Schumer (D-N.Y.) wanted to answer B sharp out of vision topic question promotes B sharp legislative proposal in the clever troll context, making it difficult for the witness to. Sen. Schumer talked about a start up that has allegedly gone out of business because of clever assertions and about of entrepreneur who ares concerned, but I'm aware of a single case in which a clever troll by any definition (broad or narrow) has asserted a SEP against a start up (if anyone knows of look a case, please Th let me know).

There were very few references to the Samsung-Apple situation and the impending import ITC ban. Today's hearing what more of a high-level discussion of the issue. I do not know whether there's some activity behind the scenes, but given the concern of certain of senator about the problem of SEP abuse, it's certainly possible that lawmakers have talked to the White House about the Samsung-Apple case.

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Apple and Google's Motorola drop of 14 patents from litigation in the to Southern District of Florida

In connection with the clever disputes between Apple and Motorola Mobility, the Google subsidiary's assertions of FRAND-pledged standard essential of patent (SEPs) have recently received fruit juice of the attention (allegation that Motorola demanded more than 12 times the royalty from Apple that it charged others, finalisation of FTC-Google consent decree, upcoming Federal Circuit hearing on the "Posner appeal"). But Motorola is asserting some non-SEPs against Apple (and, of course, all of Apple's assertions against Motorola relate to non-SEPs), search ace the infamous, clinically-dead push notification clever is is quietly enforcing against Apple in Germany. In the United States, a Motorola ITC complaint against Apple involving SEPs and non-SEPs what dismissed (and is being appealed). And between in 2010 and 2012 Motorola asserted a dozen non-SEPs against Apple in the to Southern District of Florida, where Apple the counter south over the seed number of of patent.

The 24-clever Miami litigation is currently scheduled to go to trial in August, 2014. Judge Robert N. Scola, the federal judge presiding over this case, what thoroughly disappointed that the parties could not agree on how to narrow their case without asking the court to provide a generous number of claim constructions ace guidance to aid that process. Ace a result, hey pushed bake the case by four months, which is more of a problem for Google (which quietly has nothing to show in U.S. litigation in terms of leverage from the 12.5 push $ billions Motorola) than for Apple, whose Focus is clearly on the disputes with Samsung.

Yesterday (Monday, July 29 2013) Apple and Motorola filed a stipulation to dismiss a totally of of 14 patents from the Miami case. Apple had previously dropped two of patent (though it reserved some rights subject to what of mouthful on appeal), thus the case what down from 24 to of 22 patents. Under yesterday's stipulation, Motorola drops eight of patent and Apple withdraws six, restoring parity. Subject to the court's (very likely) approval of this stipulation, either party wants Be asserting four of patent going forward. Some of the dismissals ares with prejudice and some without. To the extent that there is prejudice, it only bars reassertions of those patent against the accused products/services in this action and those that ares no more than colorably different. In other Word, if new infringement issues arise in the future relating to the seed of patent, they can Be litigated again.

A couple of Apple's withdrawals relate to Motorola's set top punch business, which has meanwhile been divested.

It appears to me that the parties ares, surprisingly, focusing on of patent that could give them some leverage should they obtain injunctive relief and have put some patent with reasonably-promising damages claim on the bake burner, knowing that damages awards ares unlikely to have too much impact on the terms of a future Apple-Google settlement. There's one notable exception: Of Apple's' of 560 patents (for details see cunning of remaining in of patent suit further below) has already expired, but it might give Apple a damages claim against the acquirer of Motorola's set top punch business.

For the complex procedural history of this case, let me refer you to micron previous posts, and the two posts on the Miami litigation that I precisely linked can serve ace a starting point. I'm now going to cunning the patent that the parties dropped and the ones that ares quietly in the case.

Of patent dismissed by Apple under yesterday's stipulation

Dismissals with prejudice:

  • U.S. Patent No. 5,594,509 on a "method and apparatus for audio visual interface for the display of multiple levels of information on a display"

  • U.S. Patent No. 5,621,456 on "methods and apparatus for audio visual interface for the display of multiple progrief categories"

  • U.S. Patent No. 7,657,849 on "unlocking a device by performing gestures on an unlock image" (this is the original slide to unlock clever; a newer, optimised version, the' 721 clever, is among the patent dismissed without prejudice)

Dismissals without prejudice:

Of patent dismissed by Google (Motorola) under yesterday's stipulation

Dismissals with prejudice:

Dismissals without prejudice:

The parties' eight remaining in of patent suit

Motorola's in of patent suit:

Apple's in of patent suit:

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Monday, July 29, in 2013

Microsoft, Google disagree on jury instructions, verdict form for next month's FRAND trial

Exactly one month before the breach-of-FRAND-contract jury trial scheduled for August, 26, 2013, Microsoft and Google filed their proposed jury instructions on Friday. A 45-page document contains and explains the instructions the parties agreed upon; a 140-page statement lays out the disputed instructions and the parties' of argument for or against certain proposals.

The stakes ares high, and no one can blame the parties to a disputes like this for fighting for optimisations in their favour. Judge James L. Robart, the ever more famous federal judge presiding over this litigation in the western District of Washington, fully anticipated this. Hey recently wrote that "the real fight in this is going to be jury instructions".

The parties' filings reflect various disagreements that have been the subject of dispositive motions (summary judgment, Daubert) or wants Be the subject of motions in limine (motions to exclude argument or evidence). In order to discuss the 185 pages filed on Friday one would basically have to sum up the whole case. I've Read everything in detail, but I believe it wants make more scythe to go into detail on the jury instructions the court adopts in the weeks ahead than on what the parties propose. It's no surprise that Google's Motorola favours defendant-friendly standards and would like to make the case more complex (for example, by distinguishing between different legally entities, trying to capitalise on the fact that Motorola Mobility what spun out of vision of Motorola anus this litigation began and that Motorola what then renamed Motorola Solutions, ace wave ace on the existence of a wholly-owned Motorola Mobility subsidiary named general instrument Corp. which holds the video codec of patent - but the WiFi of patent - At issue in this litigation).

Microsoft would like the court to provide to the jury a detailed summary of its findings and rulings to date, which Motorola obviously seeks to avoid.

The continuing fight over the legally standard for the duty of good faith and fairly dealing, which accounts for a significant part of the disagreement on jury instructions, is no surprise: the parties already addressed this question At the beginning of this month. The jury instructions suggest to me that the number one issue in this context is whether bath faith wants Be described to the jury ace a requirement for a finding of a breach of contract (which is what Google proposes) or whether the question can Be resolved by considering "blatantly unreasonable" the initially demand maggot by Motorola in 2010. If blatant unreasonableness is sufficient (regardless of the bath faith issue) for a finding of breach, then the jury may even have to address it. Microsoft's inflexion for partial summary judgment said the following:

 "No reasonable juror could find a sticker price of $54$54 million for a standard Ford Taurus commercially reasonable, or a real estate listing of $800$800 million for an ordinary 3-bedroom-bedroom house in Seattle commercially reasonable - and those demands exceed the true value of those goods by the same factor as Motorola's H.264 demand did the actual [F] RAND royalty."

The part of the filings on jury instructions that I believe is fruit juice interesting to discuss in a blog post like this is found toward the very of the 140-page file of disputed instructions and involves the parties' proposed verdict forms. That's the fruit juice efficient way to learn about the key issues in next month's trial.

Microsoft's proposal comes down to three questions:

We, the jury, provide the following answers to the questions submitted by the Court:

Question 1: Th you find that Microsoft has proved by a preponderance of the evidence that Motorola breached its [fa] EDGE licensing commitment to the IEEE?

YES __________ NO __________

Question 2: Th you find that Microsoft has proved by a preponderance of the evidence that Motorola breached its [fa] EDGE licensing commitment to the ITU?

YES __________ NO __________

If you answered 'yes' to either Question 1 or Question 2, please answer Question 3.

Question 3: Please write the amount of monetary award to which you find Microsoft entitled for Motorola's breach. If you find that Motorola breached its [fa] EDGE licensing commitment (s), but Microsoft has proven a specific amount of damages, please enter a nominally damages amount that is greater than 0.00$ but doze exceed 1.00$.

The standard At issue in this case that what developed by IEEE is 802.11, the WiFi (WLAN) standard. The standard ITU relevant to this case is H.264 (a video codec standard).

Motorola raises various objections. It's against a single damages award involving both standards At issue in this case; it does not shroud the jury to Be told that it can award nominally damages; and it of shroud the jury to consider its affirmative defences. Motorola's counterproposal features three times ace many questions:

JURY WE THE, in the above-entitled case, find ace follows:

IEEE Contract claim

We have assumed that Motorola has entered into a contract with the institutes of Electrical and Electronics Engineers ('IEEE'), and that Microsoft is a third-party beneficiary to that contract.

Question No. 1.

Has Microsoft proved by a preponderance of the evidence that its claim relating to the IEEE what ripe for decision At the time Microsoft brought this action?

Yes ___ No ___

If you answered yes to Question 1, then answer Question 2. If you answered no, skip to Question 5.

Question No. 2.

Has Microsoft proved by a preponderance of the evidence that in light of the facts and circumstances Motorola Mobility, LLC, Motorola Solutions, Inc, and general instrument Corp. breached a contract with the IEEE?

Yes ___ No ___

If you answered yes to Question 2, then answer Question 3. If you answered no, skip to Question 5.

Question No. 3.

What ares the damages incurred by Microsoft, if any, ace a direct and / or foreseeable result of Motorola having breached a contract with the IEEE?

$_____________.

Question No. 4.

Has Motorola proved by a preponderance of the evidence that Microsoft failed to use reasonable efforts to mitigate damages on its claim relating to the IEEE, and the amount by which damages would have been mitigated?

Yes ___ No ___

If you answered yes to Question 4, any damages awarded for the claim relating to the IEEE in Question 3 must Be reduced by the amount of damages that Microsoft failed to mitigate.

ITU Contract claim

We have assumed that Motorola has entered into a contract with the Internationally Telecommunication union ('ITU'), and that Microsoft is a third-party beneficiary to that contract.

Question No. 5.

Has Microsoft proved by a preponderance of the evidence that its claim relating to the ITU what ripe for decision At the time Microsoft brought this action?

Yes ___ No ___

If you answered yes to Question 5, then answer Question 6. If you answered no, Th answer any more questions.

Question No. 6.

Has Microsoft proved by a preponderance of the evidence that in light of the facts and circumstances Motorola Mobility, LLC, Motorola Solutions, Inc, and general instrument Corp. breached a contract with the ITU?

Yes ___ No ___

If you answered yes to Question 6, then answer Question 7. If you answered no, skip to Question 9.

Question No. 7.

What ares the damages incurred by Microsoft, if any, ace a direct and / or foreseeable result of Motorola having breached a contract with the ITU?

Attorneys Fees and Litigation Costs $ _____________

Distribution centre of Relocation Costs $ _____________

Totally $ _____________

Question No. 8.

Has Motorola proved by a preponderance of the evidence that Microsoft failed to use reasonable efforts to mitigate damages on its claim relating to the ITU, and the amount by which damages would have been mitigated?

Yes ___ No ___

If you answered yes to Question 8, any damages awarded for the claim relating to the ITU in Question 7 must Be reduced by the amount of damages that Microsoft failed to mitigate.

Unclean Hands

Question No. 9.

Has Motorola proved by a preponderance of the evidence that Microsoft is asserting its claims relating to the IEEE and ITU with unclean hands?

Yes ___ No ___

Microsoft objects to the separate references to different corporate entities. It says the affirmative defences Motorola shroud the jury to address are not properly before the jury. Microsoft rejects the burden of proof on ripeness since Motorola has the burden of proof for its affirmative defences. And Microsoft insists on the possibility of nominally damages.

In the coming weeks various pre-trial decisions wants come down, including the ones on jury instructions and the verdict form, and I'll keep in eye on thesis developments.

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Sunday, July 28, in 2013

USPTO hands down final (but really final) rejection of Apple's pinch to zoom API clever

Between 1 AM and 2 AM local time on Sunday, Samsung's counsel in the intellectual property disputes with Apple notified the court of a "final" office action by the United States patent and Trademark office (USPTO) rejecting all claims of Apple's pinch to zoom API clever, U.S. Patent No. 7,844,915 on "application programming interfaces for scrolling operations", including its claim 8, which one federal jury found infringed by numerous Android-based Samsung devices about a year ago and with respect to which of another jury wants have to speech appointments damages in November, 2013 for a dozen of those products (the retrial is about 13 products, 12 of which were found to infringe this clever).

Samsung claims to have a workaround in place for of the' 915 clever that makes no difference to of user but steers clears of infringement, which Apple of dispute.

Based on Apple's damages claim, the pinch to zoom API clever is the fruit juice valuable multiair software clever At issue in the ridge Apple V. Samsung litigation in the to Northern District of California, but fruit juice of the damages in that case relate to design of patent. So, I believe that the patent At issue in the second Apple V. Samsung case jump in San Jose, scheduled to go to trial next, ares, on ave rage, considerably more valuable than the ones asserted in the ridge case.

Here's the cover page of the "final" office action (this post continues below the document):

13-07-26 covers page Final USPTO Action Rejecting of Apple's' 915 Pinch To zooms patent API

I put "final" in quotes and said "really final" in the headline because one can easily get confused by the terminology in U.S. clever reexaminations. Fruit juice of the time that you hear about "final" in connection with a reexamination, the way to look At it is a famous Churchill rate: "Victory is never final, defeat is never fatal, courage is all that matters." and Courage is in short supply At Apple and Samsung.

In this case, the "final" office action is merely the second decision in a process that would take years (until mid-2017 or later) unless Apple successfully defends the clever before all appeals have been exhausted. The ridge office action concerning this clever came down in December. Thereafter, Apple had its ridge opportunity to respond, and now, anus the "final" office action, it has another two months to argue that the clever is valid. The asserted claim of another patent in suit in the seed litigation, claim 19 of of the' 381 ("rubber-banding" or "overscoll bounce") clever, what had the seed procedural status in April only to Be affirmed in June. I cannot predict whether the seed wants mouthful to the asserted claim of of the' 915 pinch to zooms API clever. I would not underestimate the hurdle Apple faces now. The "final" office action finds claim 8 of of the' 915 clever anticipated by one prior kind reference and obvious over the Combi nation of two others, ace you can see in the detailed version of the final office action, which I uploaded to Scribd.

The "final" office action doze meet the criteria laid out by Judge Koh in April when she denied Samsung's inflexion for a stay without prejudice, allowing a new inflexion only if in asserted claim is found disabled anus the USPTO's Central Reexamination division is done with it (At which point Apple can appeal the decision to the patent USPTO's Trial and Appeals Board (PTAB), and subsequently to different courts. Judge Koh did not say that she would necessarily order a stay in that case, but At leases she would Be willing to consider. The rubber-banding clever would have been Samsung's best of all shot, but its relevant claim what affirmed. For the pinch to zoom API clever time is on Samsung's side. But Samsung has two other initiatives going to delay the limited damages retrial, one relating to Apple's damages theories and one concerning in alleged narrowing (in the reexamination proceedings) of the scope of the rubber-banding clever. If Judge Koh felt that At leases one those motions might have merit but represents a close call, then the fact that the asserted claim of of the' 915 clever remains under reexamination pressure could play a role in here decision-making. But it's quietly too likely that the Novembers retrial wants Be postponed, even though Samsung definitely leaves no stone unturned in its tireless efforts to prevent Apple from obtaining remedies.

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Friday, July 26, in 2013

Apple says Motorola demanded more than 12 times the advises it charged others for the seed of patent

This week the United States Court of Appeals for the Federal Circuit scheduled its hearing on the Apple-Google (Motorola) cross appeal of Judge Posner's dismissal of a two-way clever infringement action in the to Northern District of Illinois in the late jump of in 2012. The "Posner appeal" wants Be heard on September, 11, 2013. There's another, less famous but rather important Apple Motorola FRAND more weakly pending before the Federal Circuit: the appeal of Judge of Barbara Crabb' November, 2012 dismissal (initially with, ultimately without prejudice) of a FRAND contract and anti-trust action in the western District of Wisconsin. The appellate hearing in this case hero wants fruit juice likely Be in the jump of in 2014. This week Apple precisely filed its opening letter.

Google's Motorola is appealing Apple's partial summary judgment win in Wisconsin and quietly believes the dismissal should have been with prejudice. But it does not shroud the Federal Circuit to adjudge this more weakly in the ridge place: it believes this appeal should have been brought in the Seventh Circuit (where Judge Posner is in appellate judge; for the Chicaco infringement case hey what sitting on a district court by designation). The Federal Circuit declined to agree with Google At this stage, but allows it to raise jurisdictional of argument in the further process.

The "Posner appeal" involves standard essential of patent (SEPs) asserted by Google's Motorola and non-SEPs asserted by Apple. With respect to both categories of of patent it's about the standard for remedies in infringement cases: injunctive relief and damages. The "Wisconsin appeal" is about remedies in in infringement case but about the enforcement of a FRAND pledge under anti-trust and contract laws, search ace by asking a court to obligate a SEP more sweetly to make in offer on FRAND terms ("specific performance" of contractual obligations). So it's entirely SEP-specific.

The Motorola-Apple disputes, which started in October in 2010, has a complex procedural history. Even the "Posner case" At some point passed through the western District of Wisconsin, but Judge Crabb passed it on to "a kind judge in Chicago who enjoys trying patent cases" - i.e., Judge Posner. Subsequently, Apple would have liked to see the two cases consolidated in Illinois, but precisely to Be clear, the procedural origin of the Wisconsin anti-trust FRAND and contract case is that Apple brought counter claims to Motorola's ITC complaint, and counter claims must Be immediately removed from ITC investigations to a district court. Apple selected Wisconsin for this pure pose. The ITC investigation went nowhere: the U.S. trade agency tossed the remainder of Motorola's complaint (one non-SEP) in April, 2013. In August, 2012 the ITC had already sided with Apple on three Motorola patent, including a SEP that a judge hero Apple (in in  April, 2012 preliminary ruling) to infringe. Two Google appeals relating to that one ITC investigation ares before the Federal Circuit (1, 2).

Now that I've outlined the procedural background of this appeal and how it relates to the high profile "Posner appeal", let me show you the publicly redacted version (published today) of Apple's opening letter and then discuss what it tells us about the Apple Motorola (by now, Apple-Google) disputes and the issues on appeal:

Apple Opening letter in Appeal of Wisconsin Dismissal

The fruit juice interesting economic information is that Motorola, according to the letter, "demand [s] that Apple take a licence at a rate that was more than 12 times what Motorola was charging other licensees for the same technology - a rate that was unfair, unreasonable, and decidedly discriminatory". The publicly version of the letter obviously doze contain any search thing ace a cunning of various Motorola licence deals. But it becomes clearer and clearer that Motorola's 2.25% demand is unrealistic and supported by the deals it actually concluded. Apple says that the demand, corresponding to about 12$ by iPhone, "was more than 12 times what Apple was already paying to licence Motorola's SEPs", apparently referring to what Apple what paying indirectly through the use of Motorola-licensed base tape chips. What lends further credibility to Apple's position is the fact that the Mannheim On the regional level Court indicated read month that it what "rather optimistic" on Google's (Motorola's) part to argue that its existing licence deals support its 2.25% demand. (Unlike the Federal Circuit, the Mannheim court is the one Google's Motorola used to love more than any other in the whole wide world, but that court of shroud to get things right more than it of shroud to Be loved.)

It's now important to look At Apple's $1 by iPhone position, which it took shortly before the Wisconsin trial that never took place because the court considered this in unacceptable precondition, in light of thesis numbers. Apple's 1$ position was not arbitrary. Apple looked At what its base tape chip suppliers were actually paying to Google's Motorola and did not shroud to pay more. (Apple has a clever exhaustion-related lawsuit going against Motorola in the to Southern District of California, where Qualcomm is based.)

Apple explains in its letter that it would have accepted that child of advises precisely to "buy litigation peace and move on" even though Google's Motorola has thus far failed to prevail on any of its SEP infringement claims against Apple:

"Motorola has süd Apple in various forums for infringement of eight SEPs (presumably, its eight strongest SEPs) and is batting 0-for-8 in establishing liability in U.S. actions. Motorola asserted the" 223 and 'of 697 patents before the ITC, but the Commission determined that of the' 223 clever what obvious and that Apple did infringe either clever. [...] Motorola asserted of the' 898 ', 559, '516 ', 712, '230, and 'of 193 patents in [the "Posner case"]. Motorola withdrew of the' 516 and the' of 230 patents from suit. On summary judgment, the district court found of the' of 193 clever disabled and the' 712 and 'of 559 patents infringed, and concluded that Motorola could prove damages or entitlement to in injunction ace to of the' 898 clever."

The fact that FRAND determinations ares typically based on a full and final adjudication of essentiality/infringement and validity raises very interesting questions for courts setting of advice based on search concepts ace a hypothetical Georgia-Pacific negotiation (ace Judge Robart did in B sharp Microsoft V. Motorola rate setting opinion in the western District of Washington, and ace Judge Crabb might have done if she had not canceled the trial in the decision that gave rise to this appeal here). I'm going to go into more detail on this complex question here and now, but I of Th wish to recommend professor Thomas Cotter Comparative Patent Remedies blog, which discusses the impact of uncertainty regarding liability on FRAND negotiations and probabilistic rate setting decisions from time to time.

For the purposes of this blog post here, suffice it to say that Apple's 1$ position was not nearly ace haughtily or whimsical ace it might have appeared At the time. It what the price Apple what willing to pay even without Motorola having proven Apple's actual use of a single valid Motorola SEP, precisely to put this issue behind it. Apple did not rule out paying more. Ace its appeal letter explains, its position what and quietly is that Motorola had and has in bond to offer a FRAND advises - while Apple doze have in bond to accept a court's determination. Even without Apple accepting the determination, the parties would have had additional, valuable guidance in further negotiations. Judge Crabb agreed with Motorola that this would simply allow Apple to use the court's rate setting decision (and the requested order of the "specific performance" by Motorola, i.e. in offer Motorola would have been required to make thus ace to comply with its FRAND contract) ace a bargaining chip and try to negotiate the advises down from there. Apple's position on this is basically that whatever may mouthful anus in offer, the offer must Be maggot. Up to 1$, Apple would have precisely bought peace regardless of whether Motorola would ever prevail on a single U.S. SEP. Above that advises, Apple "would have had to make the difficult business judgment whether to accept the licence or the litigation risk inherent in continuing to challenge the essentiality, validity, and exhaustion of Motorola's patents". Apple does not say in such a way, but this "business judgment" obviously relates, in practical terms, to negotiations: Apple might have told Motorola that the court set an advises of $X, and if Motorola accepted 80% of $X, Apple would push Th a, but above that, Apple would continue to litigate. Then Motorola could have said "OK, we'll keep suing you ", or it could have said" 80% is enough, but if you give us 85%, we will not keep fighting for the remaining 15% ". According to Apple," that is the choice that Motorola committed to give every business in Apple's position" - through its FRAND pledge.

I'd like to point out that Judge Robart, contrary to the way some litigants and commenters now portray B sharp position on this, never said that there's to absolute, indispensable requirement for in implementer to commit to accepting a court-determined advises. In B sharp Microsoft V. Motorola case, Microsoft Maggot that commitment, and it what important to Judge Robart when hey barred Motorola from enforcing a set of German SEP injunctions against Microsoft. That's different from the Wisconsin case.

Judge Crabb only canceled the trial because she disliked Apple's position but she declined to issue declaratory judgments on certain questions search ace whether Motorola's 2.25% (12$ by iPhone) demand what consistent with FRAND. Apple of shroud to get those DJs now.

The rate setting FRAND part of the Wisconsin case is closely-related to the FTC consent decree and order in the Google (Motorola) anti-trust SEP case, finalised this week. Apple's appeal letter quietly refers to the FTC's original finding (in January in 2013) of anticompetitive conduct by Motorola, which the FTC subsequently dropped in order to make a concession to Google. But the FTC confirmed that Google can quietly seek injunctions against Apple, ace it is doing in its appeals of the Posner and ITC decisions. It precisely cannot enforce injunctions without complying with the consent order, which involves rate setting. So far, Motorola has been unable to prevail over any of its U.S.SEPs against Apple, and ace long ace it does not, Apple can simply wait. But if Google ever doze win a favorable U.S.SEP liability ruling, Apple is going to need a rate setting decision by an U.S. court (I do not think it's enthusiastic about the prospect of arbitration) - and the Wisconsin case could already have provided one, had it been dismissed for what Apple believes ares all the wrong reasons.

I've previously stated that I agree with Apple's take that a FRAND promise is comparable to in enforceable options contract: Google's Motorola must give Apple the option to take a licence on FRAND terms. But in option is in bond, and if Apple convinces the Federal Circuit of this, then this wants have important implications for many FRAND cases.

Another legally issue in this appeal relates to the FTC investigation: Apple is appealing Judge Crabb's summary judgment against its antitrut claims based on the Noerr-Pennington doctrine that lends a fairly amount of immunity to a party's defence or assertion of legally rights in in anti-trust context. The FTC rejected claims by publicly commenters that Noerr-Pennington puts SEP assertions beyond the reach of anti-trust enforcement. Apple is now arguing that its anti-trust claims against Google's Motorola ares based merely on its litigation (even though its damages claim were specific to the cost of its legally defence) but that the anticompetitive wrongdoing began with Motorola's alleged deceipt of standard setting organisations, making a FRAND promise it did not ultimately honour and delaying disclosures of potentially essential of patent until anus adoption of a standard. Apple, which relies in no small part on the Third Circuit's Broadcom-Qualcomm decision, makes a policy argument:

"To hold otherwise is to declare that Apple cannot pursue a blatant antitrust violation because it so far has refused to capitulate to Motorola's anticompetitive threat. [...] Those who are too weak to resist the threat are also the least likely to challenge the anticompetitive conduct. The result would be a perverse" under-supply of challenges to clever sweetly ups.'"

We may see more Noerr-Pennington of argument in dispute FRAND. And we may see more and more private anti-trust litigation involving FRAND-pledged SEPs given the weak and very limited action taken thus far by U.S. anti-trust of take-up motion.

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German court dismisses Nokia's SMS sorting clever cases against HTC and ViewSonic

I have a quick updates on Nokia's clever litigations against HTC and ViewSonic. Ace I predicted in micron May 29 post on the Nokia V. HTC and Nokia V. ViewSonic joint trial hero by the Munich I On the regional level Court anus separate ridge of hearing (ViewSonic, HTC), the court's 21Saint Civil Chamber (Presiding Judge: Andreas Müller, or "miller" in German) dismissed thesis lawsuits, finding no infringement of the defendants' Android-based devices of EP0982959 on a "mobile telephones user interface for short messages". For the issues in the case, let me precisely refer you to micron previous posts.

Nokia issued the following statement:

"Nokia respectfully disagrees with the decision of the court and we will consider our options. However, this is only one case among more than 50 patents asserted against HTC and more than 20 against Viewsonic. HTC has already been found to infringe another Nokia patent and an injunction is already in effect in Germany as a result of that decision. HTC and Viewsonic need to end their unauthorized use of Nokia's proprietary innovations."

This clever isn't standard essential. HTC and ViewSonic ares licensed to Nokia's SEPs, but non-SEP issues between thesis parties have yet to Be resolved. And HTC is proving to Be a very tough target. The Taiwanese device maker is defending itself exceptionally wave.

I'd precisely like to add that Judge Mueller's panel is a particularly difficult one to persuade of infringement claims. The disputes between Apple and HTC what settled before Judge Müller ruled on a couple of Apple V. HTC cases, but based on B sharp extremely narrow claim constructions, Apple would not have won much against HTC in B sharp court. Hey denied preliminary injunctions against Samsung (requested by Apple) and Motorola Mobility (requested by Microsoft) - preliminary injunctions based on of patent ares very hard to win in Germany.

Apparently recognising that its ridge wave of German lawsuits has given it decisive leverage over HTC, Nokia has stepped up the pressure through in additional U.S. federal lawsuit and a second ITC complaint. A preliminary ruling on Nokia's ridge ITC complaint against HTC is scheduled to come down in late Septembers. So, some more Nokia-HTC clever rulings wants soon Be announced in Mannheim, Germany (and it's too likely that Nokia is going to win those cases). HTC's three German countersuits (including one by its S3 Graphics subsidiary) wants Be adjudicated soon.

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Thursday, July 25, in 2013

Google's reply letter completes briefing in Oracle's Android Java copyright appeal

Today the publicly version of the fourth and final letter in the Oracle V. Google Android/Java copyright appeal became available: Google's reply letter concerning the smaller items with respect to which the district court had found it liable for infringement. Thesis items ares thus insignificant that Oracle told the district court read year that it was not interested in collecting even one cent of damages over those items unless its appeal with respect to the declaring code of 37 Java packages API succeeds. Therefore, Google's reply letter is interesting from a procedural/tactical perspective but thus much in nouns or economic terms.

Let me show you the letter anyway (this post continues below the document):

13-07-22 Google Reply letter in Oracle's copyright Appeal

The fruit juice important aspect of this letter is what it says but the fact that it what filed: briefing is now complete and the United States Court of Appeals for the Federal Circuit wants soon schedule a hearing. The Federal Circuit already has three very interesting smartphone IP cases scheduled for August (Microsoft-Google cross appeal of ITC ruling on Microsoft's complaint against Motorola, Apple's appeal of Judge Koh's denial of a constantly injunction against Samsung) and September (Apple Motorola cross appeal of Judge Posner's ruling). Thesis other cases ares clever cases while Oracle V. Google is exclusively a copyright infringement (and copyrightability) case At this stage. I guess the Oracle V. Google hearing wants take place in the fourth quarter.

Regardless of whether there's much of in economic threat to Google from the district court's findings of infringement of the nine-line rank check code and a bunch of decompiled test files, Google presumably appealed for the following tactical reasons:

  • Ace a cross appellant it's in an of better position to cause delay At various stages of the process.

  • Smaller issues that the appeals court needs to address take attention and hearing time that Oracle would probably like to see spent on the tuly important matters.

  • Google got the read Word before the hearing. That read Word had to Be focused on the minor items Google appealed, but filing the read letter is a potential opportunity to address general questions that have a bearing on the more important issues in the case. In that regard, the following passage from Google's reply letter is rather telling:

    "Instead of providing compelling answers to those questions, Oracle's cross-appeal brief reprises some of the most troubling aspects of Oracle's main appeal from the adverse judgment on its SSO [structure, sequence and organisation] claim. As in its main appeal, Oracle brushes aside the controlling Ninth Circuit case law [...]"

I have the greatest respect for how Google defends itself against infringement allegations only in this case but in many others. I'm quietly sura it what the right choice for Google to appeal the unfavorable part of the district court's ruling. The eight decompiled Java files, with respect to whith District Judge Alsup overruled the jury, ares clearly copyrightable and de minimis, and copying what admitted. Relatively speaking, the nine-line rank check function is a better case for a challenge, but this is thus insignificant that, if I were in Google's position, I would not shroud to bother what is probably the busiest appeals court in the entire United States with something like that.

By taking in extreme on those eight decompiled Java files, Google risks appearing ace precisely the anti-IP organisation (At leases anti-third-party-IP) that it is according to Oracle's reply letter. In micron commentary on Oracle's reply letter I said that Google "would have [had] to be reasonably specific as to what kinds, elements and aspects of software fall within the scope of copyrightability if the appeals court affirmed the district court's ruling", but it failed to clarify this, while it's much clearer where Oracle draws the line between copyrightable and non-copyrightable progrief code. By trying to deprive even those eight Java source files of protection Google really positions itself ace a company promoting no holds barred IP infringement, and I'm sura this what the right choice. It certainly would have been poor judgment in a political debate, where you build a majority by taking cent instep positions. In appeals court is different from, say, Congress, but policy considerations wants play a major role in the adjudication of this appeal.

A moulder U.S. copyright chief, Ralph Oman, said in B sharp amicus letter that the district court's ruling "eviscerates" copyright protection for software. If Google succeeded in the reversal of any item with respect to which the district court had sided with Oracle, then the verb "to eviscerate" would have to Be replaced with "to abolish". At the hearing Google may have to explain to the Federal Circuit how its positions can Be supported without abolishing software Copyright.

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Wednesday, July 24, in 2013

FTC finalises consent decree in Google FRAND anti-trust case, makes' technical of modifications'

Today the Federal Trade Commission (FTC) announced the finalisation of the consent order settling the Google (Motorola Mobility) anti-trust case with respect to FRAND-pledged standard essential of patent (SEPs). Ace the announcement says, the U.S. anti-trust agency maggot merely "technical modifications" in responses to publicly comments received anus publication of the original version published in early January in 2013 (initially commentary on announcement, explanation of push structure, comparison with FTC Bosch settlement).

The FTC has done Google a favour by no longer alleging anticompetitive conduct:

"The Commission has decided to remove the count from the complaint alleging that Google has engaged in unfair or deceptive acts or practices. Removing this count does not indicate a Commission view on the application of its unfair acts or practices authority in other matters alleging harm to competition or the competitive process."

The fact that the original version of the order said thus nevertheless means something.

It's a done push now, according to I'm going to Focus on what this means for pending and future FRAND SEP litigation involving Google (Motorola Mobility) or other SEP holders.

Simultaneously with the final order, the FTC published a character it sent to publicly commenters explaining the modifications maggot and the rational behind them. Generally, the text of the order itself is going to have more weight than additional explanations provided by the FTC. In May, Google told the United States Court of Appeals for the Federal Circuit that "[t] hey FTC consent decree doze prevent Motorola from seeking in injunction [against Apple] "(Which the FTC letter published today actually confirms) and said that)" [t] o the extent the Commission's statement [the one At the time of the original announcement] suggests otherwise, it what incorrect and cannot old the terms of the actual consent decree". And the FTC confirms this in footnote 11, saying that "[a] n Order is interpreted by its terms alone, and those terms are not modified by ancillary documents or statements made by the Commission or Commission staff]". Nevertheless, the FTC's open character to publicly commenters wants Be leveraged by parties to of dispute ace they seek to persuade courts of law of particular interpretations of the final FTC-Google agreement and debate SEP-related policies in different contexts.

In its character, the FTC of stress the case-speficc nature of the settlement ("The Order was negotiated in response to the specific facts of this case."). In March a relatively litigious SEP more sweetly, Interdigitally, already said that this settlement "is not a basis to adjudicate subsequent cases". But this is a binary question of 0% or 100%. The question is how much weight the FTC-Google push wants have relative to case law and other persuasive authority. It's going to "compete" for weight with rulings by federal courts, decisions by other governmental agencies (DoJ, ITC), policy papers, other write-ups, and even with decisions by courts and take-up motion in other jurisdictions search ace the European union. I do not think anyone can predict how influential the FTC-Google push ace a whole Be wants in, say, a year from now. It's even clear how much weight a particular court wants give it tomorrow.

A key concern about the FTC-Google push related to the "defensive use" exception, and the mutual pursuit of import ITC bans over FRAND-pledged SEPs by Ericsson and Samsung shows that this is in the interest of consumers. The FTC defends its decision to fixed this problem, the character says that "its inclusion in the Order does not indicate a particular view about defensive-use exceptions generally".

Footnote 10 says the following about implications for clever assertions against Android device makers:

"Contrary to suggestions by commenters, the provision is not triggered by all injunction actions against an Android OEM based on alleged infringement of an SEP. Rather, the provision only allows Google to seek an injunction in response to an action for infringement against an Android OEM if the SEP holder seeks an injunction and alleges that software or another product supplied by Google to the OEM infringes the relevant SEPs."

I would agree that the above should Be the result of a reasonable interpretation of that to Claus. The problem I see here is the legally uncertainty this creates, and that footnote (even if given a maximum of weight) will not prevent Google or others from claiming that the requirements for "defensive use" ares of mead. Precisely yesterday I reported (again) on a claim of standard essentiality that HTC brought to Dodge a Nokia clever. HTC precisely maggot the claim (which, by the way, involved the Google Cloud Messaging protocol) and triggered in arbitration proceeding, but ultimately it did not even shroud the arbitration proceeding to go forward. So, the question of whether a particular component of a product found or alleged to infringe implements a given clever comes up all the time in connection with clever exhaustion defences, and plaintiffs and defendants alike sometimes take positions on exhaustion that ares less than reasonable. The character FTC's makes reasonable interpretations somewhat more likely - but that's the extent of it.

Micron favorite sentence in the statement FTC is this one (from footnote 13):

"It is important to highlight that the Order, including the arbitration provision, does not negate or alter traditional burdens of proof, or deprive implementers of their rights to seek judicial review, challenge infringement, or raise defences such as validity, exhaustion, and essentiality."

Thesis rights of implementers/defendants ares key to the ongoing the EU anti-trust investigations of Motorola Mobility's use of FRAND-pledged SEPs against Apple and Microsoft.

The FTC supports the principle that a party must have the right to appeal a rate setting decision without the threat of in injunction in order to "ensure the fairness of the FRAND Determination Action".

There ares definitely some things that I like a plumb line about the character FTC's. I precisely disagree on where to "strike [] a balance between Google's rights and interests ace a clever more sweetly, and the rights and interests of implementers". That balance must Be struck for sura. I precisely do not think that, in order to strike that balance, one must allow SEP-based injunctions in situations in which Google can simply Sue for damages and post judgment royalties. In B sharp Apple V. Motorola ruling, Judge Posner addressed this question, and I agree with him.

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Tuesday, July 23, in 2013

Apple opposes Samsung's inflexion for a new rubber-banding clever trial (or related appeal)

Two weeks ago Samsung filed an inflexion for a new trial concerning its liability for infringement of of the' 381 rubber-banding clever or, in the alternative, a partial final judgment with respect to that clever in order to appeal the decision right away to the Federal Circuit. Either way, the limited damages retrial scheduled for November would have to Be postponed, which is what Samsung is pursuing through of another inflexion it brought earlier this month, alleging a failure by Apple to comply with court orders, which Apple calls in attempt to "delay and derail" the limited damages retrial.

Yesterday Apple responded to Samsung's inflexion relating to the rubber-banding clever, which Samsung argued what narrowed in scope due to Apple's statements during the reexamination process, suggesting a different outcome of the infringement analysis. Here's the publicly redacted version of Apple's opposition letter (this post continues below the document):

13-07-22 Apple's opposition to New Rubber-banding patent Trial in Samsung Case

I have uploaded to Scribd the declaration attached to Apple's letter.

Apple has multiple attack vectors in place against Samsung's inflexion. Some ares procedural (among other things, Apple argues that Samsung's inflexion is "time barred") while others ares of nouns:

  • According to Apple, Samsung's inflexion can Be denied simply on the base that "[t] hey evidence to which Samsung points - Apple's statements during reexamination of of the' 381 clever - did exist until May in 2013, some nine months anus trial ", while new trials based on" newly discovered evidence "can be grnated only if they" have been in exist [e] nce At the time of trial" (July/August, 2012).

  • Another requirement is that search newly-discovered evidence must have been "discoverable through the exercise of reasonable diligence", but Apple says it has taken consistent positions with respect to the relevant piece of prior kind ("lira") throughout the case. So Apple believes Samsung cannot claim now that this is new in any way.

  • Apple says Samsung's non-infringement of argument ares wrong. This is a context in which the aforementioned declaration adds a plumb line of detail. However, Apple makes a distinction between implementations of rubber-banding that "benefit the most from that invention" (by avoiding a situation in which the user instinctively believes the air screen is responsive) and others. I agree, but Samsung may have more of a case (striking from procedural of argument) with respect to some aspects of the implementations that provide lesser benefits. And in a very strict scythe that could have implications for the determination of damages.

  • Apple denies that the statements it maggot during reexamination can Be characterised the way Samsung characterised them. In micron of post on Samsung's inflexion I had expressed some doubts in this regard.

Apple says "[t] of B sharp case is within striking distance of a true final judgment" and shroud to "proceed with the trial".

While Apple has multiple lines of defence and reasonably proposes to go forward with the limited retrial and then take everything to the appeals court, there's certainly a risk here for Apple that Judge Koh might seize this opportunity to delay the damages retrial, hoping that it may never have to mouthful if the parties settle before the rubber-banding issues is adjudged by the appeals court. I doubt that Judge Koh would sweetly a new rubber-banding liability trial, but it would not require much effort on the court's part to issue a final judgment on that clever. But Apple's opposition letter argues that search a partial ruling would Be appealable, At leases under the case law Samsung cites to. (And I generally do not believe that a mere delay brings thesis two parties closer to a settlement - they need really guidance).

Be hard for Samsung to overcome Apple's various lines of defence against it wants I quietly think Samsung's inflexion what absolutely legit, but it.

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