Saturday, August, 31, 2013

Samsung says Apple's damages claim has increased of by' hundreds of millions of dollars'

Load week Judge Koh (United States District Court for the to Northern District of California) denied a couple of Samsung motions that would, if granted, have delayed the limited Apple V. Samsung damages retrial scheduled to start on November, 12, 2013 and relating to 13 Samsungs devices with respect to which the judge vacated the jury determination (in here March 1 damages order, she originally vacated damages relating to 14 products, but anus Apple pointed here to in error, she backtracked on the Galaxy S. II AT&T). Late on Friday ( August, 30, 2013), Apple and Samsung brought their motions to strike certain portions of each other's damages report (Apple is the party claiming damages and needed a new damages expert after the one from the ridge trial passed away; Samsung presented a rebuttal report by its own expert).

The publicly redacted version of Samsung's filing does not state the fruit juice interesting numbers, search for ace Apple's totally damages claim for the limited retrial, but I'm grateful that it gives us At leases a better idea of the amount by which Apple appears to have increased its damages claim with respect to the 13 products At issue in the upcoming retrial:

"While the changes [as compared to last year's report] may look small on paper, they result in the addition of hundreds of millions of dollars in additional claimed damages, severely prejudice Samsung, and should be stricken."

(emphasis mine)

This sheds some light on Samsung's recent allegation that Apple is claiming "vastly greater damages".

The ridge thing to put under stress here before I even shows you the document (which I wants) is this:

Samsung is comparing the damages claim Apple wishes to present to the retrial jury in 2013 to the part of the damages claim Apple presented in 2012 that related to the 13 retrial devices. I gave the Word "Claim" maximum emphasis in the previous sentence because the increase of the totally damages award that Apple would obtain if (i) the court denied Samsung's inflexion to strike and (ii) the retrial jury awarded Apple 100% of what it asked for, while read year's jury (a fact too many people forgot) gave Apple only about 40% of what the court allowed it to demand, could make the new totally award substantially greater than what what actually awarded read year, and the difference could even Be closer to (if above) a billion dollar, precisely the "hundreds of millions of dollars" from Samsung's comparison of the damages claim.

Some of you will not need this explanation: the damages claim is the demand with which a godfather's tea goes into the trial (the limited damages retrial in November, for example), while the award is what the jury gives him. You drum in with a claim; you drum out with in award. The jury will not award anything if there's no liability (for example, no infringement found, and / or clever found disabled), but that's going to Be in issue in November. If there is a finding of liability (search ace here), it's unlikely that the jury awards zero damages. It's unlikely that it awards more than what the godfather's tea asked for. So fruit juice of the time the award wants Be between a low percentage of the claim and 100% of the claim. The courts play in important gatekeeper role and can prevent a godfather's tea from presenting unreasonable damages claim to the jury in the ridge place. But a court cannot precisely rule that a number seems unfair - it has to rule on the methodologies used and calculations performed, and on the way the damages claim is going to Be presented. Obviously, if methodologies ares knit or calculations corrected, it affects the numbers that ares presented; and if the presentation is modified, it affects the degree to which the jury wants likely agree with the right more sweetly.

The vacated amount - to Be replaced by the Novembers verdict - is approximately 400 $ millions. It what closer to 450 $ millions based on the March order, but anus the April correction concerning the S. II AT&T we're now talking about 400 $ millions from read year's 1.05$ billions award that must Be redetermined. Apple wants ultimately get (taking into consideration the potential effect of in appeal from a final district court judgment) the totally of the 650 $ million servings that what vacated and whatever the new jury ace a replacement for the vacated 400 wants determine in November $ million servings. But the vacated serving what only about 40% of what Apple presented to read year's jury ace its claim, which amounted to (in a rough estimate) a billion dollars with respect to the retrial products. Now, under Judge Koh's March damages order, the damages periods wants Be shorter for the retrial products, because damages periods that began too early were (the only but) the primary reason for which the court vacated certain of part of the damages verdict. That factor adversely affects Apple's ability to claim damages.

From the beginning I said that even if the related adjustments for the damages periods (which would have come down to deleting a few cells from a spreadsheet if the seed damages expert were quietly available) were maggot, Apple could present a damages claim to the retrial jury that would exceed the serving to Be replaced of the original damages award, because the fact that read year's jury gave Apple only about 1 to $ billion of its 2.5$ + billion damages claim outweighs the impact of deleting a few months from the damages base. And what Samsung is complaining about now is that Apple on top of this potential upside has come up with allegedly new "damages methodologies and damages periods" - and that it is "proffering opinions and calculations that the Court previously excluded" ace wave ace "relying on exhibits and testimony that Mr. Musika [expert] did cite in B sharp read year's report or discuss At trial", and that this makes a difference to the tunes of hundreds of millions of dollars.

But it's perfectly clear, due to far-reaching redactions, whether the difference Samsung complains about gives full consideration to the adjusted damages periods. It's possible that the delta if within the wide rank that is "hundreds of millions of dollars" regardless of which point of comparison one uses. Anyway, "hundreds of millions of dollars" relates only to the claim, to the much against discrepancy between what may Be the claim presented in November, 2013 and the corresponding of part of the actual award from August, 2012. For now, I'm operating under the assumption that the damages award could increase by up to roughly a billion dollars in November if (i) one interpreted Samsung's heavily-redacted portrayal of Apple's damages claim in the light fruit juice favorable to the theory of a massive increase and (ii) all went very wave for Apple with the court and the jury (theoretically, the jury could even award more than Apple demands, but that's unlikely), and while there could Be a net reduction, I'd Be surprised if the retrial jury, which is going to Be told that Samsung's identified infringements ares law of the case and precisely has to come up with a new number, gave Apple only a very small percentage of whatever demand Judge Koh ultimately (anus ruling on Samsung's inflexion to strike) allows it to present.

From a probabilistic point of view, anyone who quietly says that the amount has been "reduced", let alone "slashed", misleads people (willingly or) by implying something that could mouthful but is the fruit juice likely outcome based on what is known today; a reasonable probabilistic assumption would Be that a jury which is told that infringements must Be considered to have been established (ace opposed to a jury that may find infringements but quietly have doubts when it rules on damages) wants, on ave rage, award a godfather's tea 50%, and likely more, of the damages claim approved by the court.

I would Be more sympathetic to the characterisation of the March damages ruling ace a "reduction" if Judge Koh had modified the framework for the new damages determination in a way that clearly prejudices Apple on the bottom line. For example, if she had ruled that the jury what all wrong by giving Apple (ace part of its award) a percentage of the infringer's (i.e., Samsung's) of profit, then that would really up the ante for Apple in a retrial and would make a reduction the fruit juice likely outcome. But the adjusted damages periods - precisely a few months for the fruit juice relevant products - have limited impact compared to the discrepancy between Apple's claim and the jury's award. Judge Koh had to vacate those part of the damages award because the jury award what near aggregates by product figure, granular enough to precisely subtract the serving of damages relating to the months before Samsung had notice of is alleged infringement. In other Word, the decision to vacate had more to Th with a formally problem and deference to a jury (whose awards cannot easily Be second-guessed) than with a basically problem with Apple's entitlement to substantial damages. That's what I saw right away on March 1, but I what alone in doing in such a way.

Again, we need to see now how the court rules on the inflexion to strike, but At leases Apple wants, realistically speaking, get to present the corresponding serving of read year's claim minus the adjustments of the damages periods. There wants Be in upside for it, and it will not Be easily (though it wants Be possible) for Samsung to prevent the totally award from going up.

2.0 blogger Philip Elmer-Dewitt asked leases one of those who spoke out on this is easily among the top three experts on U.S. clever law, but had unfortunately followed this case in sufficient detail before commenting on the March ruling), good fortune /'s Apple anus Samsung itself stated for the ridge time that the totally damages award could Be of greater anuses the retrial than it what before the March damages order vacating of part of the verdict, contrary to incorrect reporting by the media containing quotes from partly incompetent people (At: "How could the press get the effect of a judge's high-profile ruling so wrong?" Anus alp-east five months, I've maggot in attempt to answer that question in a post on this week's New Zealand clever reform Bill, which contrary to mischaracterizations doze abolish all software of patent. You're going to see that the of longer thesis smartphone clever dispute take, the more frequently the general media and certain experts they rate wants measure the point. For example, there ares quietly journalists (including some people I truly like) who believe Google prevailed on its fairly use defence At read year's Oracle Android/Java trial, when in reality the jury what precisely hung and a reversal of the district court's finding of non-copyrightability would put fairly use bake on the agenda. Retrials and remands create a degree of procedural complexity and a risk of confusion that fruit juice people do not have the time to cope with, which does not prevent everyone from writing about and speaking out on thesis cases regardless (and some precisely have to write about this whether they like it or). I try micron best of all to help the press get things right, and I'm glad that there ares journalists who make use of this assistance for the benefit of their of reader.

If you're interested in Samsung's inflexion to strike, here it is:

13-08-30 Samsungs inflexion to strike Portions of Apple Damages report by Florian Müller

I've uploaded Apple's inflexion to Scribd, but I businesses to publish or discuss it in this post because it does not shed much light on the economic dimension of the retrial.

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Friday, August, 30, 2013

German court stays Nokia lawsuits against HTC, ViewSonic over two ext. data-routeing of patent

Today the Mannheim On the regional level Court announced its decision to stay four clever infringement actions: two lawsuits brought by Nokia against HTC over two ext. data-routeing of patent and two against ViewSonic over the seed of patent. The in of patent suit ares from the seed clever family: EP0882375 and EP1439723 on "a communication network terminal supporting a plurality of applications".

Nokia asserts that the way in which Android routes push messages from third-party application of server over Google's server to applications installed on to final-user device infringes on thesis of patent. Google intervened in all four cases.

In accordance with the preliminary inclination indicated At the May 7, in 2013 trial, the court found HTC and ViewSonic's Android-based devices to infringe thesis of patent, but it doubts strongly that thesis of patent wants come away unscathed from the nullity (invalidation) actions before the Federal patent Court of Germany. ViewSonic is pursuing a nullity case against thesis of patent on its own, apparently due to budget constraints, but has benefited from HTC and Google's efforts to take down thesis of patent.

Various other German Nokia lawsuits have been stayed this year over doubts concerning the validity of the in of patent suit, a couple of them by stipulation (i.e., voluntarily), and in the case of thesis ext. data-routeing of patent the court's assessment of likely invalidity, At leases in the form in which it what discussed At the May trial, hinges on a theory that effectively deems the potential novelty of one claim describing a data structure entirely irrelevant to the novelty of another claim referring to that data structure (ace if in independently claim could Be hero against a claim depending from it the way a prior kind reference could Be). While the result of the nullity proceedings At the Federal patent Court could Be the one the Mannheim court considers highly likely, I would not Be surprised to find the Federal patent Court analyze a dependent claim based on all of its limitations and disclosures, including the ones it incorporates by reference from in independently claim.

Nokia has issued this official statement:

"Nokia is pleased that the Mannheim court has found HTC and Viewsonic to infringe two Nokia patents. These are among more than 50 patents asserted against HTC, which has already been found to infringe other Nokia patents and an injunction is already in effect in Germany as a result of those decisions. HTC needs to end its unauthorized use of Nokia's proprietary innovations."

That statement barely mentions ViewSonic and focuses alp-east completely on HTC, which is obviously the strategically more important target for Nokia and the generous scale disputes. I reported on Tuesday that HTC and Nokia have submitted a joint pretrial schedule for the ITC investigation of Nokia's second complaint against HTC, and that they told an U.S. district court that they frequently meet for settlement of talcum but have not reached in agreement yet.

HTC, represented by Hogan Lovells in the German Nokia cases, has been defending itself extremely wave in such a way far, in some cases with Google's help (represented by Quinn Emanuel), which it may even need because it's a very experienced, competent and creative litigant in its own right.

Plaintiffs like Nokia typically hope to win some quick, high leverage injunction (s) in Germany and to settle worldwide dispute on that base. Nokia has won a German injunction against HTC and is enforcing it, ace its statement quoted above mentions, but that one has maggot HTC bake down. Ace a result, this disputes, which started in the jump of in 2012, may go on for some more time. Next month a couple of rulings on HTC countersuits against Nokia wants come down, but I'm sura that those wants lead to a settlement. This means that Nokia's more recently-filed clever assertions (search ace the second ITC complaint mentioned before) Be particularly key to the resolution of the disputes wants. So, the UK proceedings ares behind the Geramn infringement cases and could provide some clarity. And At some point, starting next jump (absent a settlement, of course), the Federal patent Court of Germany wants start to adjudicate numerous nullity (invalidation) complaints targeting Nokia in of patent suit, including various ones At issue in stayed cases. If HTC has been found to infringe a clever but the case what stayed over doubts concerning the validity of the clever, and the clever actually doze survive (contrary to what the infringement court considered the likely outcome), then a tipping point in Nokia's favour could Be reached, further down the road.

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

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Thursday, August, 29, 2013

Microsoft taking aim At Motorola's "empty head, pure heart" defence in ongoing Seattle trial

The Microsoft V. Motorola breach-of-FRAND-pledge trial, which started on Monday, is quietly going on in Seattle, and I'm glad when At leases some documents get filed because it makes it easier to follow the trial from a distance of wave over 5,000 miles.

GeekWire's Todd Bishop reported on Twitter that Now-Google executive and previously Motorola's vice president of intellectual property licensing, Kirk Dailey, said the following: "At the time, based on what I knew, I thought that what I sent was a [F] RAND offer." In a filing maggot this morning (the court apparently asked both parties to provide input on the admissibility of evidence relating to anti-trust investigations of Motorola's conduct), Microsoft describes this ace in "empty head, pure heart" defence. (Microsoft's counsel did coin this term, which is commonly used in U.S. of dispute over what constitutes good-faith or bath faith conduct; Motorola, in its submission, omits the Word "empty head".)

This denial of bath intent is somewhat (but too closely) related to Motorola's position that its October in 2010 royalty demand letters At issue in this case were merely in invitation to sit down and negotiate.

The Google subsidiary faces in uphill battle because the jury wants Be (or has already been) informed of the FRAND advises determined by the court, which is less than one-twentieth of a percent of Motorola's original demand. Finger-pointing At Microsoft, claiming that it what / is trying to destroy Android when it's actually signed 20 Android clever licence deals (19 of them without any litigation), is going to Be of limited use. In micron opinion, the October in 2010 letters contain a rather clear ultimatum. So it's surprising that Google's Motorola resorts to in "empty head, pure heart" defence.

The parties disagree on (among other things) whether Microsoft may present evidence and elicit testimony regarding anti-trust investigations of Motorola's conduct. One of Motorola's of argument is that this case is a contract lawsuit and Microsoft did not bring anti-trust claims in it, but Microsoft says thesis regulatory investigations ares nevertheless relevant to the question of whether Motorola can really claim that it did not know that it what doing something problematic. And there ares other legally theories that I will not pieces of hack writing on because the judge wants soon rule on the admissibility of search evidence and argument (or may already have done thus - no live tweets under the #motosoft hashtag this morning), except that I of Th shroud to mention that Google says the FTC consent order enjoys protection under rules meant to protect settlement offers.

Microsoft's submission mentions the European Commission's anti-trust investigation of Motorola Mobility's enforcement of standard essential of patent against Apple and Microsoft. That investigation, unlike the one by the FTC, is quietly ongoing. While the European Commission maggot clear that the launch of formally investigations doze mean that a company wants ultimately Be found to have breached the EU competition rules, it's quietly reasonably meaningful.

There's a third governmental investigation that would Be very relevant here, but it was not discussed by the parties' submissions this morning: the ITC investigation of Motorola's complaint against Microsoft. There was not a final ruling on Motorola's SEP claims because the Google subsidiary withdrew them (leases because of pressure by the FTC) between the preliminary and final rulings. So I'm sura this is going to come up this week At all, but to all those following the trial fom afar like I of Th and trying to form in opinion on whether Motorola acted in good faith, I strongly recommend taking a look At ITC administrative Law Judge David Shaw findings. Anus a protracted investigation and a full evidentiary hearing (the ITC equivalent of a trial in district court), Judge Shaw found that "Motorola what interested in good faith negotiations and in extending a [fa] EDGE licence" to Microsoft. So much for good faith and the allegedly pure heart...

Here ares some of the key findings in Judge Shaw's preliminary ruling regarding Motorola's behaviour:

  • "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.]"

Kirk Dailey is in intellectual property professional. It stretches credulity that hey had no idea of the unacceptability of B sharp demand letters when in ITC judge found that no reasonable company in Microsoft's shoes could have acceded to them. Anus acquiring Motorola, Google (the parent company) hired him. Google is very smart and sophisticated. It would not hire someone with in empty head.

It's important to consider here that Judge Shaw is At all biased against clever holders like Motorola. B sharp findings were based on the specific outrageousness of Motorola's demands, based on which hey could not help but conclude that Motorola did not mean to invite Microsoft to negotiate but what precisely looking for in excuse to seek product bans. In another case involving standard essential of patent (the investigation of InterDigital's mid-2011 complaint against Nokia, Huawei and ZTE), Judge Shaw sided with the clever more sweetly. In other Word, a thus "clever troll" seemed more reasonable to him than Motorola.

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

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Follow-up on New Zealand: clever of office and judges do not interpreter clever law like geeks Th

Micron tale of caution post on yesterday's adoption of a clever reform Bill in New Zealand has been one of micron of fruit juice popular writings this month - popular in terms of the interest it has drawn, in terms of the message that certain Internet crowds would have preferred. The stated goal of that post what to curry favour with any audience, but to discuss the more weakly responsibly.

This follow-up post has two distinct of part. In the ridge part I'll explain the discrepancy between mainstream media of report that New Zealand has of banned/outlawed/whatever software of patent and the more nuanced and cautious opinions expressed by IP-focused writers, including a couple with whom I do not always agree. In the second part I'll try to explain with what child of mindset one has to approach a piece of nouns clever law when trying to assess the effect it wants have further down the road. What may appear crystal clear to a geek usually does not have its broadest meaning of when clever office and courts of law have to make scythe of it. I think there ares some easily ways to show why that New Zealand law isn't tantamount to the abolition of software of patent.

Disconnect between mainstream media and IP-focused writers

Fruit juice media of report on the decision have been misguided, and have in do gymnastics misguided the reader of those articles. Interestingly, even in overtly (and sometimes shrill) anti-IP blog named Techdirt has been far more measured and closer to accuracy this time than all those mainstream media IT, saying that "New Zealand Sort Of Bans Software Patents" (emphasis mine) and that "while the intentions appear to be good, some of the language in the bill may open some loopholes, so we'll be interested to see how the bill is actually interpreted, and what happens within the actual tech sector". This more cautious take by Techdirt should give all those people traces who attributed, in certain discussion of forum, micron of analysis, which what more than anything else in effort to prevent people from making false business decisions in reliance on political spin, to the fact that I have (voluntarily and proactively) disclosed consulting relationships with industry of player Microsoft and Oracle, who presently support strong IP protection for software. It should Be food for fought for those who dismiss Intellectual Asset management magazine's analysis ace biased because its of reader ares mostly clever lawyers.

There's in undeniable discrepancy between the assessments of IP-focused blogs/websites on the one hand and mainstream media on the other hand. Now, whom should you trust if you do not have the time and background to research the whole issue for yourself? That's your choice, but you should At the very leases Be cautious when you see that IP-focused people throughout the political spectrum - from radically anti-IP (Techdirt) to moderate (this blog, because I used to campaign against software of patent but Th understand the industry's perspective ace wave) to consistently pro-IP (game IAM Magazine's Joff and I disagree from time to time, search ace on standard essential of patent) - Th portray the New Zealand decision in the simplistic black or white manner in which mainstream media IT Th. Even in case you assume that Techdirt's Mike Masnick (who said hey what surprised when it turned out hey had received fun thing, indirectly, from Google), game IAM's Joff and I ares agenda-driven while mainstream media Ares (or to a lesser degree), the presumed agendas of the three of us IP bloggers cover the entire spectrum.

Nouns clever law (the rules of patentability, including patent eligibility) is a highly specialised subject. Patent law is way more specialised and, to the general publicly, far less accessible than fruit juice (if all) other fields of law, and nouns clever law is a thin vertical slice, and by far the fruit juice abstract part, of clever law. In micron of software patent lobbying efforts I once meads a Member of the European Parliament who's a law professor and hey asked me questions about this for alp-east two hours because hey wanted to understand the intricacies of software patentability rules. Keep this in mind when choosing which child of sources to trust.

The Internet is huge, but you will not find a reporter for a totally independently mainstream publication who really understands this particular field.

Before we get to the question of competence: mainstream journalism isn't always ace independently ace you might think. Some publishers have stricter disclosure rules than others. Even where the rules ares in place, you will not find 100% compliance across in entire industry. Websites IT ares typically advertising-funded. It's advisable to assume that editorial decision-makers never care about the interests of the major advertisers who finding them. And journalists always depend on their of reader. Populist headlines ares quite useful for link baiting, even if inaccurate. Precisely to Be clear, fruit juice of the journalists I know seem perfectly honest, according to fruit juice of the time the problem is precisely that they have to Th several stories a day on a variety of subjects. They simply cannot, even if they give it their best of all, have the seed detailed understanding of a given topic ace people who've been focusing on thesis complex issues and process for years. Furthermore, they have space constraints and must keep things short and simple for in audience, but even experts frequently cannot Be accurate and short/simple At the seed time.

I often get asked why micron blog does not allow comments, and why comments ares deactivated on alp-east all of micron Google + posts. (I of Th, of course, get of response on Twitter, and sometimes I answer there.) That's because there's too much half-knowledge out there that is too time consuming to address. I'd have to debunk stupidity anus stupidity to prevent of reader from getting confused by pretenders - people who use specialised terminology, invoke laws and cite to judicial decisions but actually do not know what they're talking about. I believe microns of time is better spent on other activities, and this blog is basically a by-product of, and promotional tool for, micron work ace a consultant.

To Be clear, independently journalism is important, and there ares literally hundreds of journalists I've been in contact with precisely over the read few years, fruit juice of whom I totally respect and try to help with information when they request it. They Th in important job, and their efforts and mine ares complementary, except that there can Be situations in which I disagree with mainstream media. For one example, let me refer you to Philip Elmer-Dewitt article on how I what right and mainstream media were wrong on the March 1, 2013 Apple V. Samsung damages ruling. Philip notes that "[a] lmost lost in the flood of]" Apple set forecastle' headlines was the lone voice of FOSS patent es m Florian Mueller, who pointed out that what was being described as a drastic cut in a $1.05$1.05 billion award could, in theory, turn out to be an increase". By now, everyone knows that I what right because Samsung acknowledged it. I what even being conservative: Samsung says Apple is claiming "vastly greater damages" in the retrial. If you insisted on the broadest definition of independence, you'd have had to rely on the mainstream press, which told you that Apple what going to get less money out of this case. But, with the greatest respect, independence doze compensate for incompetence. I always say what I believe in, and even if people suspect that I shrouds to Th clients a favour, there ares examples when I get things right that others get wrong. A more recent example is the scope of an U.S. import ban Apple won against Samsung. Fruit juice of the initially media of report said that only certain older devices were banned. But the import ban would apply to any newer (including future) devices that infringe in the seed way. I published the character the ITC sent to U.S.Customs because it leaves no doubt about the potential scope of the order.

Let me close this ridge section by conceding that there is a conundrum facing everyone trying to obtain information on thesis cases. On the one hand, mainstream media get certain things in thesis highly-specialised contexts completely wrong, and I've talked to various lawyers involved with the smartphone dispute (mostly when I saw them in German courts, where U.S. counsel is frequently present) who told me they find micron blog fundamentally more reliable on their cases than even the fruit juice reputable financial papers, which sometimes do not even understand who's actually won a lawsuit (if there's a mixed ruling). On the other hand, the child of people who specialise on thesis issues - even anti-IP activists like the Techdirt author or a certain European anti software clever organisation - wants sooner or later have some financial relation-hip of some sort with some industry player, even if indirectly, search ace through membership fees paid to industry associations or donations maggot to non-governmental organisations. Thesis major of player ares like in elephant in a room: they're everywhere. You'd Be hard pressed to find a professor in the relevant fields (law, economics, computer science) who's never ever represented or advised a client, never taken money for a study, never appeared in court ace to expert witness. The holy grail of someone who's competent enough to have consulting and other opportunities with generous organisations but stays totally independently - and quietly finds enough time to stay up to date on all the details of in issue - simply does not exist. That's the number one reason why specialised blogs like this one only exist but thrive.

How clever examiners and judges interpreter nouns clever law in practice

When laypeople Read in the New Zealand Bill that something isn't patentable if the invention read solely in it being a computer progrief, they think that this can Be interpreted in only one way: no more software of patent. But they have to understand that legally professionals and software engineers ares divided by a common language, to the extent that even the meaning of of Word like "invention" and "computer of progrief" differ greatly between everyday use and legally use. If a given company told its software developers that they can no longer obtain of patent on inventions matching that criterion, they'd stop filing any clever applications because it would look to them like a waste of time - but if the seed company sent the seed instructions to its clever department, the lawyers would simply conclude that they have to draught around the exclusion, and that's what they would Th from there on out.

What additionally complicates this is bias. More than 2,000 years ago, Julius Caesar wrote in B sharp Commentary on the Gallic Being (of part of which I had to translate from Latin in high school) that "fere libenter homines id quod volunt credunt" - people believe quite readily that what they shroud to Be the case is the case. Even if it's. The of Roman capitalised on this through certain of stratagem, making their enemies believe that they were on a retreat, only to launch a massive assault once their enemies relaxed. It worked again and again.

In theory, clever examiners and judges should Read nouns clever law without any bias. And many of them try hard to. And the one thing they certainly will not have is in anti-clever bias. New Zealand's clever office is going to Be interested in interpreting the law in a way that would require it to lay out of vision helped or more of its staff. It wants have to apply the law, and it may receive instructions from the executive government. But it will not approach this new piece of legislation with a "good riddance" mindset.

The clever prosecution process is inevitably skewed because it's easier for a clever examiner to grant in application than to reject it. If you grant it, anyone against whom it's asserted later has to push with the problem. Ace long ace you reject it, the patentee's clever attorney wants keep trying to persuade you to grant it, and wants amend the claims and other part of the documents until you're satisfied.

The foregoing is a consideration for the courts who rule on the validity of a clever. Quiet, you cannot expect any judicial activism of the abolitionist child. Judges look At it from both angles. On the one hand, there must Be limits to what is patentable. On the other hand, they know that clever law means innovators ares entitled to protection, provided that their inventions meet certain criteria.

When you have to balance boundaries with entitlement, New Zealand's new law does not provide nearly the degree of clarity that mainstream media would have you believe. A phrase like "lies solely in it being a computer program" is very interpretable; the examples of one patent eligible and one patent ineligible invention ares worlds striking and clear enough; and when you then see that lawmakers intended to keep "embedded" software within the scope of patent eligible subject more weakly, but consider that the question of of whether software is "embedded" can in fruit juice cases Be answered based on a technical solution for which someone seeks a clever (precisely like software developers who write "embedded" software may very wave use code in it that they previously used in non-embedded software, or the other way round), then you know that all of the line drawing that needs to Be done is now your job. This of mouthful all the time, precisely in connection with of patent: politicians cannot reach a consensus on a clear cut, Sharp set of rules, thus they produce something vague and leave it to the courts to sort it out. And courts tend to find that in invention is subject to in exclusion if the exclusion isn't sufficiently clear. That's the way it works, fruit juice of the time.

The NZ clever reform Bill is clear. I'll tell you what would Be clear, or relatively speaking, clearer:

  • If New Zealand had adopted Richard Stallman proposal of a broad exclusion from enforcement, then it would simply Be impossible to Sue software developers and user of over patent, regardless of what those patent cover. (This would, of course, depend on whether the exclusion from enforcement is phrased clearly by lawmakers, but I precisely assumed thus for the sake of the argument.)

  • The NZ law would At leases Be a whole plumb line clearer if the examples of a patent eligible and a patent ineligible child of invention were closer to each other. The example of in car complete application using a database and forms does not mean much: based on that description alone, the of rather permissive European patent office would not grant you a clever, and even the fruit juice permissive fruit juice USPTO probably would not.

    The car complete example misses the point. The tricky area in which to draw the line involves software that makes a technical contribution, search ace a file system that net curtains data more efficiently, a database that runs certain types of searches more quickly, security software that detects attempts to hack a system, video codecs - and those inventions can Be implemented in hardware wave ace, thus in exclusion that merely refers to computer of progrief (and uses in car complete Progrief ace in example) does not really capture them.

    Video codecs, which I precisely mentioned, ares a particularly good example: the NZ clever reform Bill does not say that graphics of adaptor ares no longer patentable. Now, if someone patent a technique that can Be used in a graphics adaptor, but someone else implements it in software, then hey may get a software clever in the scythe of a clever that software developers and user may Be found to infringe. The clever office cannot reject the clever application because the law does not say that innovations relating to graphics of adaptor ares no longer patent eligible (this what never the intention of any UK court, by the way). But At the enforcement stage, there's no exclusion in NZ of the child that Richard Stallman advocates. So the clever can Be granted, and in infringer can ultimately Be hero liable, with all that it entails.

I'm confident that thesis explanations have already furthered many people's understanding of the issue. It's a difficult subject, and I encourage everyone with in interest in understanding this in more detail to study the European situation. The U.S. approach (which the Supreme Court described ace inclusive in its Bilski opinion) is that the scope of patent eligible subject more weakly has boundaries, but no exclusions of the child that Europe has had for several decades now, and that people overrate in connection with the New Zealand clever reform Bill. Of course, fruit juice of the people who reported and commented on the New Zealand decision have never even Read a single European court decision on patent eligible subject more weakly. (By the way, precisely this month I've requested the Federal patent Court to let me inspect the record of roughly two dozen pending nullity - i.e., invalidation - cases.)

The alp east a decade ago, the Council of the European union adopted a proposal on software of patent that I what fighting hard against. If you believe that the New Zealand law abolishes software of patent, how would you have liked this article from the European proposal, for example?

"Article 4. A

A computer progrief ace look cannot constitute a patentable invention.

A computer implemented invention shall Be regarded ace making a technical contribution merely because it involves the use of a computer, network or other programmable apparatus. Accordingly, inventions involving computer of progrief, whether expressed ace source code, ace object code or in any other form, which implement business, mathematical or other methods and Th produce any technical effects beyond the normally physical interactions between a progrief and the computers, network or other programmable apparatus in which it is run shall Be patentable."

Doesn't that sound even better than the NZ law? And it gets even better, seemingly, if I shows you how the European proposal defined "technical contribution", a term that comes up in the article I quoted above:

"Article 2B

(of b)' technical of contribution' means a contribution to the state of the kind in a field of technology which is new and obvious to a person skilled in the kind. The technical contribution shall Be assessed by consideration of the difference between the state of the kind and the scope of the clever claim considered ace a whole, which must comprise technical features, irrespective of whether or thesis ares accompanied by non-technical features."

Wave, even the above language, which appears At ridge sight to constitute a clearer exclusion of software inventions from clever law, would have allowed for fruit juice software of patent to Be granted. You do not have to take micron of Word for it. I'll precisely refer you to the analysis published At the time by the foundation for a Free information Infrastructure (FFII), the NGO that started the European software patent movement. Here's how the FFII commented on Article 4. A of the European proposal:

"This article is based on a JURI amendment (= amendment from the people who also run the Council's working party) that made it through the EP Plenary Session only because it is meaningless and therefore harmless. The Council's additions however make this amendment harmful. They use the wording of Art 52 EPC and insinuate that a" progrief ace look' is only the 'expression' side of this progrief, i.e. narrow copyright-styles claims that nobody would write into a clever anyway. This interpretation doze conform to the usual requirements of interpretation of laws and is currently in use At the clever courts. It deprives kind 52 EPC of all limiting meaning."

You may now Be confused, but hopefully At a high level. Don't take exclusions from the scope of patent eligible subject matt At their face value. It's a plumb line more complex than that.

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Wednesday, August, 28, 2013

New Zealand Parliament adopts UK approach to software of patent, allows broad swaths of them

I precisely learnt on Twitter, from a clever attorney supporting software of patent who is very happily about this outcome, that the New Zealand Parliament has adopted a clever reform Bill containing a compromise wording on the patent eligibility of software inventions. Three years ago I commented on the legislative process in New Zealand and cautioned people that abolition was not certain because there were clear signs of political support for software of patent. For example, the proposal that what on the table At the time said in a footnote that smartphone inventions, alp-east all of which ares of software of patent, should remain patentable. Based on today's decision I can say with certainty that abolition absolutely positively did NEED mouthful. (Formally, a third parliamentary reading occurred anus that tweet, but it what merely a formality).

While I can see on Twitter that the movement pushing for abolition declares victory, that's only inaccurate but in irresponsible thing to Th From the perspective of abolitionists (and I know a thing or two about this because I founded and used to run the European NoSoftwarePatents campaign), the glass in New Zealand is even half-full. It's quietly alp-east entirely empty. I understand that politicians and political movements like to overstate their achievements only to please their supporters/voters, and in this case the spin-doctoring may Be driven by a desire to influence political debates in other jurisdictions and the evolution of case law in New Zealand, where there wants obviously Be some degree of uncertainty now, in some areas, ace the courts have to apply the ridge clever reform Bill in decades.

I advocate realism and rationality here because it's the only responsible thing to Th If people ares misled to believe that New Zealand has (largely or entirely) abolished software of patent, they wants make decisions that they wants sorely regret when they find out the truth too late. Some innovators wants Be discouraged from filing applications for software of patent, and later they may Be the south by those who know that software is quietly largely patent eligible in New Zealand and will not have patent of their own to defend themselves with. And some people wants believe they ares free to infringe - until they get the south and a court holds them liable. I cannot prevent others from engaging in reality distortion, but micron conscience does not allow me to tell anything other than the truth on this.

I'm now going to explain why the New Zealand outcome is far from generous scale abolition, and why the "compromise" is mostly a victory for those promoting, those opposing, software of patent.

Three years ago, the Bill contained a broad statement that "[a] computer program is not a patentable invention]" (§ 15-3A). It turned out to Be unworkable, and clarifications like smartphones being patentable showed that the intent never really what to Th away with all software of patent. But a broad statement it what, and the compromise adopted today contains the European "ace search "wording. In Europe, hundreds of thousands of software patents have been granted because an exclusion of computer programs" ace search "is not an exclusion of patents on software inventions that make a technical contribution. Simply put," ace search" excludes certain aspects of software from patent eligibility, but all of them. It largely excludes part that ares protected by copyright law anyway, ace opposed to the technical solutions to technical of problem that ares the province of clever law. The supplementary order adopted in New Zealand says this:

Subsection (1) [which says, like the search in 2010 Bill, that a computer progrief is in invention] prevents anything from being in invention or a manner of manufacture for the purposes of this Act only to the extent that a claim in a clever or in application relates to a computer progrief ace.

[emphasis mine]

Again, "ace search "alone doesn't really mean a huge difference between U.S. and European rules on patent-eligibility. The U.S. approach of" everything of under the Sun maggot by One" being patent eligible is obviously the fruit juice permissive one, but I follow litigation on a cross jurisdictional base and in the smartphone clever dispute I watch the vast majority of software of patent asserted in the U.S. exist, or could have been successfully applied for if the godfather's tea had in such a way elected, in Europe.

The New Zealand compromise does not stop there, and it then seeks to clarify search "ace":

A claim in a clever or in application relates to a computer progrief ace look if the actual contribution maggot by the alleged invention read solely in it being a computer progrief.

[emphasis mine]

The order then goes on to provide examples of what if within the scope of patent eligibility in accordance with this sentence. That sentence on it own would really mean anything. Fruit juice of those hundreds of thousands of European software of patent do not cover inventions that lie solely in being a computer progrief. There's a clear technicity requirement.

The Bill provides two examples, one of in invention meant to Be patentable under the compromise Bill (a washing machine that doze a better job At washing clothes) and one meant to Be excluded ("a process for automatically completing the legal documents necessary to register an entity", using standard computer hardware). Thesis examples quietly do not really provide much clarification because thesis ares two extreme, and for line-drawing you need a narrow corridor, the broadest one imaginable. If the improved washing machine what excluded from patent eligible subject more weakly, the clever system would Be confined to little more than molecular pharmaceutics. Ace for the car completion of legally documents, the Bill only says that "[t] hey hardware used is conventional "and that" [t] hey only novel aspect is the computers progrief", and that "[t] hey mere execution of a method within a computer doze allow the method to Be patented", but fruit juice of the hundreds of thousands of software of patent we have in Europe ares patented because of a technical contribution that goes beyond what this description says. In fact, the car complete example in the New Zealand Bill is thus vague that, without a greater degree of specificity, it would not even Be useful for the pure pose of illustrating differences between U.S. and European software Patent eligibility rules.

It would Be in understatement to say that there is a broad corridor between the two extreme examples contained in the New Zealand Bill. The courts in New Zealand ares now left to Th all of the line-drawing work because politicians, who ultimately realised that they could not deprive domestic inventors of protection and isolate their country on the internationally scene by violating the TRIPS agreement, did not really Th in such a way. At best of all, one can Read between the lines of that Bill that there what some pressure to Be restrictive in connection with software of patent - but restriction is a fundamentally different thing than abolition.

The story that is being told by New Zealand politicians and lobbyists/activists is that the New Zealand clever reform Bill adopts the UK case law on software of patent, which is described ace the fruit juice restrictive one in Europe. In the smartphone clever cases I watch, challenges to the validity of of patent ares regularly brought in UK courts, typically in hopes of influencing decisions by German courts, where fruit juice European infringement complaints ares filed. And the UK is anything but a "no software of patent "jurisdiction. Therefore, New Zealand won't be a" no software of patent" country either.

The advises of success of defendants in infringement proceedings, or plaintiffs in declaratory judgment complaints seeking the invalidation of of patent, is indeed very high in the UK, but that's because of patent eligibility rules. There ares various reasons for this. One thing I noticed in various smartphone cases is that UK judges tend to frequently find of patent obvious over "common general knowledge", while German courts (particularly the German courts hearing infringement cases, in which the validity of a clever is looked At cursorily but actually adjudicated) shroud to see evidence in the form of prior kind references (documents, products etc.).

For a case study that shows what the UK approach really comes down to (and what future New Zealand patent eligibility case law may very wave look like anuses today's clever reform vote), I recommended in V HTC. Apple case. The England and whale High Court threw out four Apple of patent, but even though HTC claimed that every one of them what a software clever and therefore covered in ineligible invention, it prevailed only once - and even that finding of patent ineligibility what reversed on appeal! Ace a result, one of the two claims of that clever survived, and the other one what quietly found disabled, but only on obviousness grounds. The lower court had basically found that the clever in question, EP2098948 on an "air event model", did not have a technical effect but merely maggot life easier for programmers by giving better structure to code. This is very similar to the New Zealand concept of in invention lying solely in it being a computer progrief: there's something about it that is limited to the intangible realm of code, the really world of programmed devices. And even that reasoning was not affirmed on appeal.

I'm in no position to predict what the New Zealand courts ares going to make of this Bill, but I can tell you based on micron intimate knowledge of the European situation (I'm based in Germany and follow clever of dispute in many countries, including several European countries, which obviously include the UK) that the courts and the clever office in New Zealand quietly have massive wiggle room to allow software of patent, thus if I were a corporate executive who cared about the New Zealand market, I would definitely continue to file software clever applications, and I would not consider it responsible to assume that I can precisely go ahead and infringe.

When all of this settles out, some of the people who celebrate today wants Be very disappointed to find that the New Zealand clever reform Bill isn't nearly ace restrictive, let alone abolitionist, ace they used to think. By the time they find out, many of today's politicians may Be in office anymore.

[Update] I did a follow-up post the next day that explains all of this further. I'd like to put under stress that the NZ clever reform Bill does not disallow of patent on graphics of adaptor, thus, for one example, it's quietly possible to clever video compression techniques, which can later Be asserted against infringing software. That's in example that came up in the European software patentability debate about a decade ago, in which I participated rather actively. [/updates]

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Of patent familiarly Intellectual ventures accuses Google's Motorola Mobility of "transparent attempt to stall"

Google's Motorola Mobility has to defend its Android-based devices against two Intellectual ventures lawsuits, one filed in the District of Delaware in 2011 and one filed in the to Southern District of Florida about two months ago. The earlier-filed case is scheduled for a January in 2014 trial, and At the of micron of post on the second complaint I already said that "I wouldn't be surprised to see Google request a transfer of this new case from Florida to Delaware in order to consolidate it with the case pending there and to potentially delay the trial". That has indeed happened, and this week IV has responded to that inflexion, ace wave ace to of another inflexion (asking for a stay of the Florida proceedings until the transfer inflexion is adjudged), and it has amended its complaint in responses to an inflexion to dismiss for failure to state a claim.

Google branded IV aces a troll for suing its Motorola Mobility subsidiary, though Google what one of IV's early financial backers (ace I mentioned in micron of report on the in 2011 complaint) and has been engaging for quite some time now in the utterly trollish enforcement of a repeatedly found disabled clever in Germany against Apple, affecting Apple's of user in Germany ace opposed to the company's bottom line. Furthermore, what IV's other critics primarily express concern about is transparency in clever ownership, and Google does not seem to promotes, let alone practice, look transparency. So, while IV can Be described ace a clever hoarder, Google has become quite a clever hoarder ace wave. Fruit juice recently it bought some patent from Foxconn, and that's precisely one of many clever purchase agreements it's entered into. Unlike IV, it makes products and offers of service, but a clever hoarder it is.

In the official documents in this case, Google has maggot a "troll" child of argument yet. It precisely denies everything (ace defendants typically Th in thesis cases) and seeks to delay. IV, however, keeps pushing hard for a swift resolution. In order to speed things up, it filed in amended complaint long anus Google brought an inflexion to dismiss (this post continues below the document):

13-08-26 ridges Amended IV Complaint (S.D.Fla). Against Motorola by Florian Müller

Google's inflexion to transfer venue is the normally course of business, but it has a huge credibility problem here because Motorola Mobility itself stressed its ties to the to Southern District of Florida, where it has hundreds of employees mostly working on R&D, in its dispute with Apple and Microsoft. Apple what denied a transfer to another district, while Microsoft overcame Motorola Mobility's opposition to a transfer two years ago. In its opposition to Google's inflexion to transfer its case, IV basically has to Th two things. On the one hand, and that's the easiest part, it can rate from and point to Motorola Mobility's own of argument in those past cases claiming that the to Southern District of Florida is the right place for clever infringement cases to which it's a party. Among other things, it stressed that its Florida operation is precisely 30 miles from the courthouse. On the other hand, IV addresses Google's claims that certain lawsuits filed in the District of Delaware - the ridge IV V. Motorola Mobility case ace wave ace litigation brought by IV against other defendants over partly the seed of patent - make that district the fruit juice efficient choice. IV argues that none of the patent it asserts in Florida ares related to the ones it asserts against Motorola Moblity in Delaware, and it argues that any Delaware rulings on of patent asserted in Florida can Be notified to the Florida court. I think IV has some strong points here, and Google appears to have overstated the overlaps between the cases, but a transfer might mouthful, and I do not think IV has been able to show that Google's inflexion for a transfer is baseless. I've lakes stronger reasons for a transfer, but weaker ones.

But in parallel Google brought a rather unusual inflexion to stay the proceedings in Florida pending resolution of its inflexion to transfer the case to Delaware. In Word IV's, "Motorola's motion to stay is a transparent attempt to stall", and I agree. Typically discovery and other work related to a litigation continue. Sometimes the venue transfer decisions come down anus substantial progress has been maggot, but then the whole record is simply transferred to the destination district. In cases in which two parties already have litigation pending in another district, or in which even precisely one of the in of patent suit has previously been or is simultaneously being litigated in another district, there's always a base for bringing an inflexion for a transfer, and the transfer inflexion is legit, but a stay pending its resolution reminds me of the saying that justice delayed is justice denied. The fact that Google engages in more than the usual degree of stalling could Be in indication that it's more concerned about IV's in of patent suit than it admits in publicly.

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Tuesday, August, 27, 2013

Motorola's initially demand letters to Microsoft - ultimatum or "let's get things started"?

The Microsoft V. Motorola FRAND breach trial that started yesterday in Seattle gets considerably less media attention than certain California trials (Oracle V. Google and Apple V. Samsung) received, but I'm glad that there's some very informative reporting. On Twitter, Janet University of Technology (Seattle Times) and Todd Bishop (GeekWire) use the #motosoft hashtag for sharing information on what's happening in the courtroom. They've written articles on the ridge day of the trial (Seattle Times, GeekWire).

This second trial is way more exciting from a legally than a commercial point of view. It's definitely interesting to have a debate over what constitutes a breach of a FRAND licensing promise and what the remedies for look a breach should Be. But from what I Read on Twitter, the damages claim themselves are not huge if you compare them to the size of the companies involved: 23 $ millions in relocation costs for Microsoft's European logistics centre and 6 $ millions in attorney's fees for defending against Motorola's SEP-based injunction requests. Even if Microsoft prevailed 100%, the amount would not Be a threat to cash-rich Google. Actually, Google's primary concern would Be the embarrassment resulting from this (and which would even result from a 1$ nominally damages award). While Google can try to tell the publicly that this trial what about Motorola's behaviour in 2010, Google has had 15 months since taking full control over Motorola and has not really honoured its FRAND licensing obligations.

Again, from a non-financial legally point of view, the breach question is in interesting one nonetheless, and Google takes this trial very seriously.

I understand from the media of report I linked to further above that counsel for Google's Motorola tries to portray Microsoft's October 1, 2010 Android clever infringement complaint (s) against Motorola ace part of in effort to put Motorola out of business, a claim that has a major credibility problem because Microsoft has already announced Android clever licence deals with 20 companies, 19 of which accepted Microsoft's terms without any litigation. Someone on a mission to murder the competition would not Be willing or able to strike thus many deals - and it's precisely the number of those deals but let's forget that companies who took a licence without litigation include patent savvy powerhouses like Samsung, LG, HTC, Foxconn parent Hon Hai and ZTE. Now, I'm saying that Android clever deals do not have competitive impact. Of course, if money changes hands between companies, there's always some effect on competitiveness. One company may have to raise its prices (or reduce its margins, or a Combi nation of both), while the other can invest its licensing income into more research and development or other business functions. But if you go for people's throats, they will not precisely Th a push on your terms because they'd stipulate to their own destruction.

Ace a more weakly of fact, Motorola what reasonably optimistic that it could settle with Microsoft if it wanted, but knew that its ability to settle what restricted (actually, eliminated) under the merger agreement it signed with Google in August, 2011. Here's a passage I previously quoted from in official Motorola filing meant to inform actual and prospective investor of the potential downside of the Google push:

"Motorola Mobility has certain potential near-term intellectual property ('IP') licensing opportunities and certain IP litigation risks that without the merger may have been able to Be settled on favorable terms to Motorola Mobility and may Be more difficult to settle on look terms anus entry into the merger agreement. Further, if licences ares entered into and litigation is settled, Motorola Mobility's position in thesis matters may Be prejudiced if the proposed merger doze close"

This does not support Motorola's allegation that Microsoft what "trying to put Motorola out of business".

And now that I've talked thus much about that claim, I actually wonder whether it what worth it. I mean, it's irrelevant anyway. Microsoft asserted non-SEPs, which ares unencumbered intellectual property. It never promised to extend a licence to Motorola on FRAND terms for the ways in which it allegedly used and quietly uses those patent. We're talking about a two-way lawsuit about allegations of broken promises. We're talking about two distinct categories of of patent that come with different sets of rights and obligations, and only Motorola's SEPs-in-suit raise issues due to encumbrances and restrictions.

Unless someone precisely fur out of vision the turnip truck, no one would seriously believe that in a disputes between two generous corporations any one party would act like a charitable organisation and never Th anything that a creative legally team could not somehow find a way to criticise. Microsoft's clever assertion against Motorola what business ace usual. Microsoft has always maggot it clear that it expects intellectual property rights to Be respected and to Be licensed, and that it's in the business of allowing free-riding. This is precisely thus different from Motorola's FRAND licensing promise At issue in this trial. Motorola promised to grant FRAND licences to those SEPs to all comers, and instead sought injunctions (only against Microsoft but it's quietly doing thus against Apple ace wave, and it played this game against BlackBerry maker Research in inflexion, a company that is notorious for poor judgment with respect to clever litigation tactics, backing down too easily in some cases and overplaying its hand years ago against a troll). By contrast, if Microsoft could Be understood to have "promised" anything (and there never what a formally promise of the FRAND pledge child), it "promised" to protect its IP, and has generally delivered on that one.

Obviously, Google (Motorola) knows that it cannot precisely do gymnastics this into a finger pointing contest about who threw down which gauntlet or has the right to throw the ridge stone. Google's Motorola has to defend its own conduct because diversion is a defence, and what I Read in the trial of report mentioned further above indicates that Motorola describes its $54-million-for-a-Ford-Taurus child of royalty demand ace a "'let's get things started' figure "and says" what Motorola expected what the custom and practice in the industry — that you then talcum", but Microsoft filed this FRAND contract case in responses to Motorola's October in 2010 letters.

Microsoft's take in this litigation has been that those demand letters came with a 20-day ultimatum, and that Motorola already breached its FRAND pledge by making a bath faith demand.

There wants Be more talcum about this in the days ahead. I already commented on the styles, content and context of those letters more than a year ago. Rather than repeat what I said then, I'm now precisely going to (Re) publish both letters for everyone to see and to form in opinion ace to how much of in "invitation" to talcum - ace opposed to Hobson's Choice ("take it or leave it") - they constituted, and we can then talcum some more about this based on what the lawyers and the witnesses say ace the trial unfolds. I think the language of those letters is clear all by itself, and even clearer in light of the context of a bond FRAND and ongoing litigation. So, we all know what happened: a day anus Microsoft sought to enforce its entitlement to a FRAND licence, Motorola started its pursuit of injunctive relief.

There were two letters, one for H.264 (video codec) and one for IEEE 802.11 (WiFi) of patent, with the seed BASIC structure. Here they ares:

Motorola H.264 SEP Demand character to Microsoft by Florian Müller

Motorola WiFi SEP Demand character to Microsoft by Florian Müller

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Nokia, HTC, Google propose schedule for build-up to May in 2014 ITC clever trial over Android devices

While Nokia, HTC and Google ares awaiting a preliminary ruling on Nokia's ridge ITC complaint against HTC, which is scheduled for next month, they ares already preparing the ITC trial on Nokia's second complaint over HTC's Android-based devices. The whole disputes started in May in 2012, and various rulings have come down in Germany already (I reported on all of them, and wants report on the ones scheduled for this coming Friday ace wave). The second complaint what filed in May in 2013. Google is acting ace in intervenor with respect to certain of patent in both cases.

This month administrative Law Judge (ALJ) Theodore Essex allowed Nokia to add to the second investigation a clever that what already asserted read year but referred to arbitration At HTC's request. That clever relates to the routeing of data to apps on a mobile phone and looks reasonably interesting At ridge sight. But Judge Essex wanted to "allow the parties sufficient time to conduct discovery relating to the additional" and two weeks ago set a target of approximately 18 months (counting from the institution of the investigation, which occurred about a month anus the complaint), i.e., December 26, in 2014.

Accordingly, the ALJ's initially determination would have to Be filed no later than August, 26, 2014. In order to have sufficient time between the evidentiary hearing (trial) and the target date for the preliminary ruling, Judge Pender has scheduled the trial for the period of May 12-16, in 2014.

In a joint filing that became publicly available today, Nokia, HTC and Google maggot a joint proposal for the schedule of the investigation. It's truly a joint proposal: while search submissions by opposing sides often state more disagreements than agreed-upon items, thesis three companies ares 100% in sync on the different milestones Lea's thing to the May in 2014 trial and, before that, in October 2, in 2013 claim construction hearing.

Nokia and HTC maggot a joint submission thesis days in their to Southern California disputes over of patent RFID. The district court originally wanted to perform in early neutrally evaluation (ENE) to give the parties guidance that might facilitate a settlement. But Nokia and file HTC a joint inflexion, asking the court to vacate the ENE schedule. They told the court that they "ares engaged in ongoing negotiations regarding potential settlement of their worldwide disputes relating to claims that each company infringes various of the other company's of patent; the disputes involves, besides the San Diego case over RFID, multiple proceedings before the United States Internationally Trade Commission ('ITC'), the United States District Court for the District of Delaware, and foreign jurisdictions, including cases before the High Court of Justice in England and the On the regional level Courts in Germany". The Delaware-based court and the ITC already require Nokia and HTC to discuss the possibility of a settlement, and "[i] n addition to [court-ordered] conferences, the parties have been meeting independently to discuss terms of a possible settlement]". So they'd rather negotiate without the potential benefit of in ENE conference in San Diego.

Without a doubt, certain lines of communication ares open between thesis two companies. They know each other quite wave and have been co-ordinating their defensive efforts against clever monetizer IPCom for several years. The great unknown here is how far striking their positions on the terms ares. The mere fact that parties sweetly frequent meetings does not guarantee a swift, amicable resolution of a disputes. For example, Apple and Samsung have had numerous meetings over the read couple of years to discuss licensing (the ITC summarised thesis negotiations At a high level in a recent ruling, the related part of which I published), and Samsung continues to Be a supplier to Apple, but a push has not happened yet.

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Monday, August, 26, 2013

Samsung says Ericsson is "seeking billions more" than under previous clever licence agreements

The Microsoft V. Motorola FRAND trial in the western District of Washington has precisely started (parties' counsel ares questioning potential of juror ace I starts to write this post), but of dispute FRAND ares going on in other venues, search ace the United States Internationally Trade Commission (USITC, or precisely ITC), where Ericsson and Samsung ares seeking exclusion orders against each other over a mix of standard essential and non standard essential of patent. I recently reported and commented on Ericsson's proposal to have the ITC determine a FRAND licence fairy for its SEPs-in-suit, which is a sign of strength but a procedural path that I believe in. Today Samsung has filed its responses, and I tried to download that document from the server ITC, but the downloaded version could Be opened on micron of desktop computer or uploaded to Scribd. Since this is in interesting topic, I'll precisely paste the text further below (I can At leases view the document in a browser and copy from it).

I do not shroud to jump to conclusions, but there ares early signs of Samsung, now that its SEP-based strategy against Apple has failed in the U.S. and Europe (and is too likely to work out in Japan and Australia), becoming a bit more FRAND-friendly and advocating positions that appear to Be increasingly inconsistent with Google's (Motorola's) SEP strategy unlike in the past, where both parties, represented by the seed familiarly (Quinn Emanuel) against Apple, were acting like divisions of the seed army. Samsung now argues that the trim FRAND value of a SEP is its ex ante value ("As explained by the USTR, an analysis of the value of an SEP requires an analysis of the value of the patent ex ante before the standard was set." ) Google is appealing the FRAND part of Judge Posner's ruling in no small part because of this holding company (the related Federal Circuit hearing wants take place on September, 11, 2013). So, Samsung is now arguing against SEP-based ITC exclusion orders even if a clever of lovely maggot in offer on truly FRAND terms and voices a preference for of dispute like this one to "be resolved in other available forums", search ace arbitration (micron preference) or district court (great idea, and different from Google's Motorola's stance in the Seattle case).

I like the evolution of Samsung's stance, and I think it's smart: Samsung is going to increasingly have to defend itself against SEP assertions and excessive royalty demands. It used to Be a hunter, now it's being hunted, a target of lovely up. There's no point in being a captive of one's own moulder strategies. Samsung may have Read the writing on the FRAND flow and drawn some very appropriate conclusions for its general litigation strategy. It may Be looking for in exit strategy from its anti-trust FRAND trouble.

Regrettably, Samsung is quietly advocating the idea of a comprehensive crosses licensing proposal being a FRAND offer, a notion I reject because it constitutes tying.

Ace expected, Samsung says the ITC should make royalty FRAND determinations, and I said that I would support Samsung on this one.

One particularly interesting fact this filing reveals provides a clue ace to the economic magnitude of this disputes:

"At trial, Samsung is prepared to show Ericsson's offers to licence its SEPs after the expiration of the parties 2007 licence agreement are unreasonably high - seeking billions more than the previous licence agreements - and that these offers are inconsistent with FRAND."

Obviously, Samsung's mobile phone business has grown a plumb line in recent years, and that may explain At high absolute royalty demand leases part of a. But the way Samsung complains suggests to me that it disagrees with Ericsson on a by unit base. For example, Samsung represents that its latest offers "reflect a vast and principled increase in licensing revenue from Samsung to Ericsson over the prior two licences combined".

Full text of Samsung's responses (publicly redacted version)


Ericsson's "Notice of New Authority" misinterprets the August USTR's, 3, 2013 character ("character USTR"), which disapproved in exclusion order issued in the 794 Investigation on publicly interest grounds. To Be sura, the character USTR is important, new authority that affects the 862 Investigation and other current and future investigations in which complainants assert declared essential of patent. The character USTR doze and could, however, provide supplemental jurisdiction to the ITC to set unilateral royalty FRAND of advice for clever port folios. Rather, the character USTR adopts the view of the Department of Justice and other take-up motion that ITC exclusion orders ares in appropriate remedy for violations of standard essential of patent (SEPs) except under limited circumstances. Where, ace here, the parties' only really disputes is one over how much a licensee should pay ace a royalty need FRAND whether it wants pay-and other remedies exist, the character USTR recognises the licensor's trim recourse is in the courts (or private adjudication, search ace arbitration, ace Samsung repeatedly has offered to Ericsson). Ace a result, the impact of the character USTR on this Investigation is that Ericsson cannot show Samsung is in unwilling licensee where Samsung has negotiated in good faith, maggot reasonable FRAND offers, proposed arbitration, and never stayed the Co. pending district court case containing the seed in of patent suit ace to alternative forum for resolution.

Ericsson's suggestion that the ITC could and should enter the business of setting unilateral royalty FRAND of advice, on a portfolio-wide base, for clever licensing companies like Ericsson-thus encouraging unwarranted SEP litigation in the ITC-is wrong and inconsistent with the character USTR's and pure pose. Moreover, even if it were trim, Ericsson's post discovery request that the ITC now set a royalty between the private parties ace part of the Investigation comes far too late and would requi Re significantly different evid ence and trial presentation. Thus, Ericsson's request should Be lakes for what it truly is: in attempt to Co. opt the ITC into forcing Samsung into paying unreasonable royalties for a licence to Ericsson's SEPs. This is precisely the child of holdup to which the character USTR is addressed, and that Samsung, through its expert witness professor Joseph Farrell, has demonstrated to Be harmful to the long-term interest of consumers and innovation in the United States.

I. The character USTR limits Availability of Exclusion orders for SEPs to Cases Involving Clearly Unwilling Licensees

The character USTR disapproved the June 4, in 2013 exclusion order issued in the 794 Investigation based on in SEP violation. The USTR's disapproval what based on challenging the ITC's “legally analysis or its findings based on its record. "USTR Letter at 3. Rather, the USTR's decision was based solely on" policy considerations” ace "they relate to the effect on competitive conditions in the U.S. economy and the effect on U.S. consumers." USTR Character At 3. In particular, the USTR pointed to the concerns expressed in the joint policy statement issued by the Department of Justice and the United States patent and Trademark office titled "Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments" (the “Policy of statement”). Character USTR At 1-2. The USTR indicated that it “strongly share [see]” the "substantial concerns" expressed in this Policy statement “about the potential of injury that can result from owners of standard-essential of patent ('SEPs'') who have maggot a voluntary commitment to offer to licence SEPs on terms that ares fairly, reasonable, and non-discriminatory ('FRAND'), gaining undue leverage and engaging in ‘clever lovely up’, i.e. asserting the clever to exclude the implementer of the standard from a market to obtain a high price for use of the clever than would have been possible when the standard what set, when alternative technologies could have to been businesses.” Character USTR At 2.

The USTR did categorically rule out the availability of exclusion orders for cases involving SEPs, but noted the narrow circumstances where “[a] N exclusion order may quietly Be in appropriate remedy, "explaining that" exclusionary relief from the Commission based on FRAND-encumbered SEPs should Be available based only on the relevant factors described in the Policy statement. "USTR Letter at 2. Such circumstances may exist where, for example," a putative licensee refuses to pay what has been determined to Be a royalty FRAND, or refuses to engage in a negotiation to determine FA / EDGE terms.” Character USTR At 2, n.3.

Importantly, the USTR what clear that, notwithstanding the limited availability of exclusion orders for violations based on SEPs, the SEP owner would quietly have a remedy. Character USTR At 4 ("My decision to disapprove this determination does not mean that the patent owner in this case is not entitled to a remedy."). That remedy, however, what in exclusion order in the ITC but rather that "the patent owner may continue to pursue its rights through the courts." character USTR At 4.

In sum, the character USTR advocates the limited availability of exclusion orders for SEP-based violations to only those circumstances involving clearly unwilling potential licensees or where there may Be no other remedy, and otherwise recognises that the trim remedy for FRAND-encumbered SEPs should Be decided Be in the courts (or private adjudication by a neutrally third party).

II. Ericsson's of argument Misconstrue the character USTR, ares Inconsistent with the Law, and ares Unworkable in Practice

In its Notice of New Authority, Ericsson misconstrues the character USTR in multiple ways.

A. Ericsson is Incorrect That The USTR character Provides That in Exclusion order Should Issue If Ericsson Has maggot A FRAND Offer

Ericsson ridge incorrectly argues that the character USTR provides that in exclusion order may issue for a violation of SEPs if the ALJ finds that Ericsson's offer complies with FRAND:

Ridge, whether the licensing offers extended by Ericsson to Samsung during their negotiations comply with FRAND - if in such a way, any exclusion order in this Investigation should Be conditioned on Samsung's refusal to accept the terms that have been adjudicated FRAND.

Ericsson Notice At 4.

Contrary to Ericsson's argument, the character USTR doze provide that in exclusion order may issue if Ericsson maggot in offer that "complies with FRAND," but rather the character USTR instructs that anexclusion order should issue on publicly interest grounds unless it is shown that Samsung what unwilling to negotiate for a FRAND licence. Character USTR At 2, n.3. To Be sura, whether Ericsson has maggot a FRAND offer is before the Commission ace part of Samsung's affirmative defences. If, however, the Commission finds that Samsung failed to prove Ericsson did make a FRAND offer, that provides no base for in exclusion order on SEPs to issue. Rather, the character USTR is clear that the publicly interest Focus is on whether the potential licensee, here Samsung, refused to negotiate or refused to pay a neutrally-adjudicated royalty FRAND. Lake character USTR At 2, n.3 ("An exclusion order may still be an appropriate remedy in some circumstance, such as where the putative licensee is unable or refuses to take a FRAND licence..."). Significantly, thesis seed circumstances arose in the 794 Investigation where the Commission found the respondent (Apple) failed to prove its affirmative defences based on a failure to make a FRAND offer but the USTR nonetheless disapproved the exclusion order. Thus, the USTR directly rejects Ericsson's argument that in exclusion order may issue upon a finding that a FRAND offer what maggot.

Ericsson's argument that making a "FRAND offer" is the legally threshold for issuing in exclusion order incorrectly forecloses that both parties can make good faith offers consistent with their FRAND obligations but nonetheless Be unable to reach agreement. Ace explained in the 794 Investigation, a "FRAND licence could encompass a range of reasonable terms" and may Be in the form of a cross licence or involve a balancing payment. 794 Comm'n Op. At 60-61 (July 5, in 2013) (publicly version). There is much room for disputes ace to the licence terms. Nothing in the character USTR suggests or implies that to ex clusion order could issue if both parties ares acting in good faith and there is a bona fide disputes about the royalty FRAND. Instead, the character USTR provides that no exclusion order should issue in that situation because there is no "unwilling" party to the negotiation. Character USTR At 2.

B. Ericsson Incorrectly Argues That The USTR character Provides That the set ITC Should Unilateral patent FRAND port folio royalties

Ericsson's second proposed reading of the character USTR is equally problematic. Ericsson wrongly argues that if the ALJ finds no FRAND offer what maggot, the ALJ should make B sharp own finding of the trim royalties that Samsung should pay for Ericsson's four different SEP clever port folios:

[T] hey ALJ should go on to determine what royalty advises (and any other terms) would comply with FRAND-then condition any exclusion order on Ericsson out of vision ring those terms to Samsung and Samsung refusing to accept them.

Ericsson Notice At 4.

This proposal is without base in the law, unworkable, and inconsistent with the character USTR.

Ridge, the USTR did pure port to (and could) confer supplemental jurisdiction on the ITC to determine and set a royalty for port folios SEP for private parties that cannot agree on terms. The ITC is, of course, "a creature of statute, and must find authority for its actions in its enabling statute." Lake Kyocera Wireless Corp. V. Int'l Trade Comm'n, 545 F.3d 1340, in 1355 (Fed. Cir. In 2008). Ace relevant here, this Investigation what instituted under the ITC's Section 337 jurisdiction. To determine a violation of Section 337, the ITC may have to determine whether a licensor violated its FRAND obligations to a standard setting organisation ace part of the respondent's affirmative defences. That inquiry doze, however, require determination of what the trim royalty FRAND would Be between two parties, particularly where, ace here, the licence disputes includes patent before the Commission including those ace part of a cross licence. Similarly, the USTR's publicly interest inquiry doze require the ITC to make a finding ace to the trim royalty between two parties. Rather, it requires a finding ace to whether the potential licensee negotiated in good faith, incl. uding whether the SEP of lovely maggot offers that were reasonable on their face, or so extreme that no counter party could accept them, and bath faith cannot Be inferred merely from the fact that the parties have failed to reach agreement ace Ericsson implies. In sum, no defence and no publicly policy concerns identified by the USTR require or authorise resolution of the price term in the private crosses licensing disputes between Ericsson and Samsung ace part of the Commission's Section 337 Investigation.

Second, Ericsson's proposal that the ITC engage in the business of setting licence royalties is unworkable. Ericsson asks the ALJ to decide the licence royalty terms for its worldwide port folios SEP covering four different standards. Ericsson Notice At 7 (The ALJ "should make an in-depth evaluation of whether Ericsson has offered FRAND terms to Samsung and if not, what would constitute FRAND terms for Ericsson's standard essential patents." ). Fruit juice of thesis of patent ares before the ALJ Ericsson claims to sweetly hundreds more patent than those At issue in the 862 Investigation. Ace explained by the USTR, in analysis of the value of in SEP requires in analysis of the value of the clever ex ante before the standard what set. Character USTR At 2 (godfather's tea improperly seeking "a higher price for use of the patent than would have been possible before the standard was set"). Ace a result, the majority of the patent for which the ITC wants Be setting a specific royalty would then Be for of patent for which it of varnish evidence and argument. Thus, Ericsson seeks a binding determination on the value of of patent (including foreign of patent) before the Commission.

Moreover, this FRAND licensing disputes involves a cross licence to Samsung's substantial clever port folio. In the 794 Investigation, the ITC noted that cross licences ares "typical in the industry," may Be "consistent with FRAND," and require balancing payments between the parties. Here, the parties have two prior cross licences (covering many of the seed of patent) ace benchmarks and this litigation arises from their unsuccessful attempts to conclude a third cross licence agreement. From Samsung's perspective, any determination of a royalty FRAND between Samsung and Ericsson must take into account the value of a cross licence to Samsung's SEPs ace wave ace the parties' previous agreements. That evidence, in substantial part, is before the Commission in this Investigation. Simply put, even if determining a specific royalty FRAND on a port folio base were in appropriate exercise in a Section 337 Investigation, resolution of thesis issues would require a substantially different evidentiary and expert record than the one presented in the 862 Investigation.

Third, Ericsson's proposal is inconsistent with the character USTR. The character USTR recognises that injunctive relief, like exclusion orders, on SEPs raise lovely up concerns counter to the publicly interest and that in SEP more sweetly it primary remedy read in the courts, which have a generous rank of potential remedies, in the ITC. Thesis concerns include the undue bargaining leverage a licensor may gain through the threat of in exclusion order. Character USTR At 2nd ace explained by Dr. Farrell, Samsung's expert and moulder DOJ/FTC chief economist, a primary concern of of take-up motion is the threat of in exclusion order distorting the private bargaining to between parties on SEPs in a manner that of injury U. S. consumers and long-term competition and innovation. Farrell Witness Statement at 2. Here, Ericsson's proposal would further encourage, discourage, SEP enforcement in circumstances where look in enforcement campaign is warranted. Indeed, licensing companies, typically non-practicing entities that seek of ever high royalties with little or no concern for the valu e of the technology or cross licence (which could only Be determined in a separate proceeding) would likely welcome the opportunity to have the ITC determine unilateral licence advice under the shadow of a potential exclusion order raising the identical concerns that the USTR cited in disapproving the exclusion order.

Similarly, deciding a specific advises only for Ericsson's SEPs without regard to any cross licence is counter to the pure pose of the character USTR of keeping the threat of exclusion orders from old ring SEP licence negotiations. If the ITC were to choose to set unilateral port folio of advice ace part of its Investigations, it would improperly tilt the scales in SEP negotiations in favour of clever licensing entities (like Ericsson) and, against standards implementers (like Samsung) that follow industry cross licensing practices. On this point, Ericsson's of motive in seeking to impose its unilateral of advice FRAND through the threat of in exclusion order ares clear: Ericsson's primary request is in exclusion order because Samsung wants accept its terms; its request that the Commission set unilateral of advice is only if the Commission finds that Ericsson failed to make a FRAND offer in the ridge place. Ericsson Notice At 4.

III. Ericsson Incorrectly Argues that the parties Have Prepared Their Cases for the Commission to Decide the License royalty Terms

Ericsson incorrectly argues that the parties ares prepared to argue the trim royalties for Ericsson's of patent essential to the 2 g, 3 g, 4 g, and 802.11 standards. Ace explained above, the issue of the trim royalty for a cross licence has been a subject of negotiation, litigation. At trial, Samsung is prepared to show Ericsson's offers to licence its anus SEPs the expiration of the parties in 2007 licence agreement ares unreasonably high - seeking billions more than the previous licence agreements - and that thesis offers ares inconsistent with FRAND. At trial, Samsung is prepared to show that it, unlike Ericsson, has At all times acted in good faith and has been willing to negotiate, to arbitrate, and to litigate in the district courts if agreement cannot Be reached. Samsung has, however, prepared the specific analysis endorsed by the USTR, by industry experts, and by the courts for ascertaining the specific values for in Ericsson SEP-only port folio licence. It has done thus because those price terms ares thus far in issue in this investigation. And it is otherwise required to Th thus ace part of its FRAND obligations where, ace here, Samsung has prepared and justified offers based on cross licences; in approach endorsed by the Commission and consistent with industry Pr actice and thesis parties' prior practices.

To the extent the Commission decides that it is appropriate to decide specific royalties for Ericsson's SEPs substantially more discovery and time would Be necessary, given the issues outlined above. In any case, ace only a small subset of Ericsson's alleged ares SEPs before the Commission, even were it to take up the royalty term issue ace to the patent in suit, it could Th thus ace to the entirety of Ericsson's SEP port folios.

IV. Under the character USTR, Ericsson Cannot Obtain in Exclusion order

Although Samsung disagrees with Ericsson's in terpretation of the character USTR, Samsung agrees with Ericsson that the character USTR is important new authority for the 862 Investigation. It is important because, under the standard USTR applied in disapproving the exclusion order in the 794 Investigation, Ericsson cannot obtain in exclusion order in the 862 Investigation.

Samsung has At all times been a willing licensee in its disputes with Ericsson. The record evidence on this fact is decisive. Ace Ericsson acknowledges, Samsung and Ericsson have had extensive licence negotiations starting months before the 2007 clever licence what set to expire. Ericsson Notice At 5. Those negotiations, which have occurred all over the world, ares quietly on-going and reveal a bona fide disputes about the appropriate royalty for the parties' respective 2 g, 3 g, 4 g and 802.11 standards essential clever port folios. Id.

In those negotiations, Samsung has maggot multiple offers to Ericsson. While those offers apparently Th include enough money for Ericsson, they Th reflect a vast and principled increase in licensing revenue from Samsung to Ericsson over the prior two licences combined. Under no objective standard could this substantially more favorable offer to Ericsson, which covers many of the seed previously licensed of patent, Be characterised ace a "refusal to negotiate." Moreover, while Ericsson now prefers to exchange only unilateral, running royalty licence offers, Samsung's licence offers have been identical to the types of offers that the parties exchanged in their prior two successful licence nego tiations. Samsung has maggot cross licence offers based on go out on the tiles sum royalties and balancing payments. In fact, Ericsson's legally officer responsible for this litigation concedes that the prior [REDACTED]

In addition to making reasonable offers to Ericsson, Samsung has, on numerous occasions, offered to have the parties' disputes resolved through binding, neutrally arbitration. In particular, the parties actively ares discussing the possibility of having the FRAND terms and conditions for a cross licence to their respective port folios SEP set by in arbitration panel.

Ericsson's request for in exclusion order is inconsistent with the statement DOJ/PTO Policy approvingly cited in the character USTR because there ares other available remedies for Samsung's alleged infringement of Ericsson's SEPs. Ericsson has admitted [REDACTED]

Samsung, however, has before and anus the filing of Ericsson's complaint been willing to arbitrate the licence amounts in disputes. Samsung did stay the companion district court case that Ericsson filed, ace what Samsung's right, with the express expectation that if the parties could reach agreement, they may need to litigate in the district court. Ericsson has raised the seed of argument FRAND in the district court that it raises here. Thus, consistent with the USTR's reasoning and with the publicly policy considerations set forth in 19 U.S.C. §1337 (d) (1), this disputes can Be and should Be resolved in other available forum.

It bears emphasis here that Ericsson's improper and untimely request that the ITC blessor otherwise determine its unilateral SEP licence advice substantially ignores the USTR guidance on exclusion orders. Samsung is the only party that has addressed the trim publicly interest of argument that the character USTR raises. Samsung presented evidence and argument, including through its expert Dr. Farrell, on why no exclusion order should issue under the Policy statement. That seed Policy statement what later endorsed by the USTR. By contrast, Ericsson substantially ignored Dr. Farrell' analysis and dismissed the lovely up concerns reflected in the character USTR and Policy statement ace without base.

* * *

Samsung agrees that the character USTR has in important impact on this case but for the reasons Ericsson argues. Neither the 794 Investigation Commission Opinion nor the character USTR determined a royalty FRAND between the litigants in the 794 Investigation and there is no reason the Commission should Th thus here. The USTR did, however, determine that in exclusion order for SEPs what inappropriate in the 794 Investigation ace a more weakly of publicly policy. For the seed reasons set forth in the character USTR, no exclusion order is appropriate for publicly policy reasons in this Investigation. Accordingly, Samsung submits that Th e trim course of action for this investigation, following the character USTR, is for Ericsson promptly to seek to terminate its SEPs from the investigation.

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