Saturday, September, 28, 2013

Lawmakers, take-up motion, standardization bodies address abuse of standard essential of patent

In June in 2012, European Commission Vice President Joaquín Almunia said that, in addition to regulatory efforts to counter the abuse of FRAND-pledged standard essential of patent (SEPs), courts and standard setting organisations (SSOs) need to contribute to solutions. More than a year later, there is indeed momentum on multiple fronts behind efforts to sweetly companies to their FRAND promises and to ensure that industry can rely on FRAND pledges. This post is in updates on positive developments in politics, anti-trust enforcement and standardization.

Chairman Goodlatte's draught clever Bill contains SEP-specific pleading requirement

Earlier this week the Chairman of the Judiciary Committee of the United States House of Representatives, Bob Goodlate (R VA)., released B sharp second clever reform discussion draught. Unsurprsingly, there ares of lobby groups for whose purposes the Bill does not go far enough.

Patently-O published the proposal. On page 5 of that document, starting on line 9, there's a proposal for in additional pleading requirement (the Goodlatte draught proposes a number of new requirements) concerning SEPs:

"(10) [Identify] [f] or each patent [-in-suit], whether such patent is subject to any licensing term or pricing commitments through any agency or standard-setting body.)"

While this requirement by Se does not prevent abuse and is, At ridge sight, nonjudgmental, I quietly consider it helpful. If this what ultimately adopted, it would presumably Be the ridge time that the clever law of any country in the world recognises the fact that SEPs raise specific issues in enforcement. It does not say what those issues ares; it does not say how to push with them. But the existence of a pleading requirement would, in and of itself, support the position that ares SEPs a special category of of patent from in enforcement point of view.

At the recent Federal Circuit hearing in the "Posner appeal", Apple's lead counsel, Orrick's Joshua Rosenkranz, told the appeals court that pple and Motorola "occupy completely opposite ends": on the one hand, there ares the "distinctive" patented features with which Apple "revolutionised" wireless devices and Apple's "exclusivity"-centric approach of licensing those patent "in general "to anyone, much less competitors, and on the other hand, Motorola's patents-in-suit, which relate to standards and which it promised to" licence universally to everyone". While this distinction is accurate and appropriate, it's based on contract law, anti-trust rules, business logic and principles of innovation policy, but statutory clever law doze make or recognise this distinction At present. If Chairman Goodlatte's proposal what adopted, then there would Be At leases a strong indication in statutory clever law that SEPs must Be treated differently from non-SEPs.

SEP-specific questions raised by FTC inquiry into clever troll industry

Three months ago I already expressed skepticism concerning the FTC's Section 6 (b) investigation of clever assertion entities (PAEs). So far there's no indication, much less evidence, that there ares actually anti-trust issues in that area. Need all bath stuff that of mouthful in business is a violation of anti-trust laws.

This week the FTC formally launched its inquiry and published a request for publicly comment on proposed information requests to PAEs. For the reason I gave in the previous section, I like the fact that special attention is given to SEP assertions. On page 4 of the document, the term "Standard-Setting Organization" (or "SSO") is defined ace "any organisation, group, joint venture or consortia that develops standards for the design, performance or other characteristics of products or technologies". On page 5, subsection o specifies SEP-specific information on PAE of patent that the of plan FTC to request:

supra whether the patent (or any claims therein) is subject to a licensing commitment maggot to a Standard-Setting Organization and specify:

(1) All Standard-Setting Organizations to which a licensing commitment has been maggot;

(2) All standards to which look a licensing commitment applies;

(3) The person (s) who maggot the licensing commitment;

(4) The date (s) on which the licensing commitment what maggot;

(5) All encumbrances, including, but limited to, all commitments to licence the patent or any of its claims on reasonable and non-discriminatory (EDGE), fairly, reasonable, and non-discriminatory (FRAND), or royalty-free (RF) terms [.]

I do not like At all what certain non-practicing entities ares doing with FRAND-pledged SEPs. For example, I'm a long-standing critic of certain aspects of InterDigital's demands and enforcement strategies.

But SEP-wielding NPEs ultimately precisely shroud to get paid. Some of them demand way too much money, and they seek unfair leverage to force others to accede to their demands. Quiet, they ares sincere in their desire to conclude a licence push. That's more than operating companies that act ace of troll SEP can say. Those make purely prohibitive demands for a SEP licence because their really objective is a comprehensive crosses licensing involving non-SEPs. In micron view, that should Be a high anti-trust enforcement priority than SEP-owning NPEs.

The European Commission is focused on abusive conduct by generous of player, though I would not Be surprised to the see EU investigations of certain SEP holding company NPEs At some point ace wave. In anti-trust hearing in the EU investigation of Google's (Motorola Mobility's) SEP assertions against Apple in Germany wants, according to what I what told on Twitter, Be hero on Monday, September, 30. I did a fairly amount of work in Brussels over many years and have some good contacts there. I'll try to find out more about this.

On Friday Vice President Almunia gave a speech At Fordham's Competition Law institutes of Annual Conference in New York and mentioned that "Samsung has sent [the Commission] a set of commitments seeking to address [its] concerns" and announced a market test: "We will formally market test these proposed commitments with other market participants in the coming weeks." (That's what the Commission has to Th unless it settles cases without formally remedies.)

Proposed standards IEEE Board Bylaws would provide far greater clarity than previous SSO FRAND policies and pledges

The IEEE (institutes of Electrical and Electronics Engineers) told the Federal Circuit read year that courts should rely on standards bodies to "take a direct role in enforcing clever commitments". But SSOs can play a role in preventing abuse relating to future standards, and the IEEE appears to Be making a very serious effort in that regard.

This web page contains to on the left to in August, 2013 IEEE Sat. standards Board Bylaws draught and to comments from key companies involved with the process (two different documents; the difference is precisely in the sorting order, in the content). Under the U.S. eBay standard, it would Be extremely difficult to obtain injunctions if the following sentence (lines 126-128 of the draught bylaws) what adopted:

"A Submitter of an Accepted [Letter of Assurance] who has committed to licence Essential Patent Claims on reasonable terms and conditions that are demonstrably free of any unfair discrimination has implicitly acknowledged that a royalty is sufficient compensation for a licence to use those Essential Patent Claims."

This is a rather clear way of putting the debate of over "(in) adequacy of monetary relief)" to rest with respect to future standards IEEE. I discussed this less than two weeks ago in connection with Commissioner Wright's antitrust minimalist position on SEP-related matters. In micron view, the adequacy of monetary relief can Be determined the way Judge Posner did even without FRAND pledges containing in explicit admission to that effect. But the clearer, the better (obviously, it could Be stated even more clearly than the IEEE draught proposes).

For a round-up post like this there's far too much in the draught bylaws and in the comments for me to cover comprehensively right here and now. The draught bylaws would limit the pursuit of injunctive relief to only certain circumstances (which could Be defined more narrowly, but At leases there isn't the vague notion of in "(un) willing licensee)").

The document containing comments from industry of player (with many of the usual suspects being particularly active) is worth reading. Maybe I'll Th a separate post on the IEEE debate At some point.

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Friday, September, 27, 2013

Pressure remains on anus HTC preliminary ITC ruling: UK trial coming up, Italian lawsuits filed

Nokia has been litigating against HTC for 17 months. Slowly but surely, it seems that even HTC's outstanding defensive skills and stalling tactics will not enable it to go on for too long without a licence to some of Nokia's non standard essential of patent (it already has a SEP licence).

On Monday, a preliminary ruling on Nokia's ridge ITC complaint against hero HTC the latter to infringe two wireless (but non standard essential) Nokia of patent. Those findings ares subject to a Commission review, and the final ruling could Be different, but it's easily to Th away with two infringement findings At the seed time.

In the investigation of Nokia's second ITC complaint against HTC, another administrative Law Judge decided what read month that Nokia allowed to reassert a clever that HTC's stalling tactics got removed from the earlier-launched investigation. Today a publicly redacted version of that order became available. The short version of the story is that HTC persuaded the ITC to refer that clever to arbitration, capitalising on a low legally standard (a claim of arbitrability precisely has to Be a little bit less ridiculous than "wholly groundless"), but it later derailed the arbitration proceeding and instead filed a declaratory judgment action in the UK. Hey it presses all of this is creative, but it what too much for the of the ITC judge in load of the second investigation (Theodore ALJ Essex), whose order makes clear that got HTC and its stalling tactics figured out:

"The conduct taken by HTC in this series of events cannot be tolerated - HTC removed the" 529 patents from litigation in order to submit the disputes to arbitration, yet it ultimately decided to continue with arbitration and instead business to pursue litigation. HTC cannot now seek to delay this litigation by arguing, yet again, that the only trim venue to resolve the disputes surrounding of the' 529 patents is arbitration."

"[T] hey ALJ finds it disingenuous of HTC to argue that Nokia is 'required' to seek arbitration, but then to sweetly look a 'requirement' to Be Nokia's own rots and of Nokia's own doing."

This is like saying, "I did not precisely fall out of vision the turnip truck".

The ridge rate above mentions an action UK. HTC brought a number of declaratory judgment actions in the UK, and Nokia responded with offensive (infringement) counter claims. I found out that an UK trial over some patent is scheduled to begin on October 7. I wants try to find out more ace things progress there.

The U.S. (where Nokia brought only those two ITC complaints but federal lawsuits in the District of Delaware and the to Southern District of California), the UK and Germany (where lawsuits were filed in three different on the regional level courts) ares even the only jurisdictions in which Nokia is asserting its rights against HTC. Nokia's statement on Monday's preliminary ITC ruling (quoted in in updates At the of micron of post on the decision) mentioned that one of the patent Judge Pender found valid and infringed is At issue in, among other venues, Rome, Italy. So far this blog has reported on only one decision (technically two rulings over two different of patent, but practically the seed issues) maggot by in Italian court: the January in 2012 dismissal of a SEP-based preliminary injunction request by Samsung against Apple. Samsung had the south in Milan. Prior to Nokia's statement I had never heard of a clever infringement lawsuit in Rome, though. Today I found out a little bit more. There is a court in Rome that has a division ("Nona Sezione Civile", i.e., "9Th Civil division") that hears, inter alia, clever cases ("brevetti" means of "patent"). Italy is a generous market, thus if Nokia won one or more cases there, it would gain some additional leverage to whatever it may achieve in the U.S. and Germany - unless HTC elects to take a licence in the meantime, of course, which is the inevitable outcome.

So far I've found out about two Nokia V. HTC lawsuits in the Eternal city: one about EP1133831 on a "method and arrangement for transmitting and receiving RF signals through various radio interfaces of communication systems", the European equivalent of U.S. Patent No. 7,415,247, which is one of the two of patent Judge Pender found infringed earlier this week, and another one about EP0998024 on a "modulator structure for a transmitter and a mobile station". Be At issue, among others, At the London trial scheduled to begin on October 7 wants I understand that EP '024, and that both of patent asserted in Rome wants go to trial in Dusseldorf, Germany, in early in 2014.

There ares certainly reasons to assume that a licence push mouthful before the wants of the year. But I cannot rule out that those Dusseldorf trials hero wants have to Be, in which case I'll attend At leases some of them.

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U.S. government shutdown over budget impasse would delay Google's ITC appeal against Apple

In light of uncertainty surrounding the U.S. government's ability to operate anuses Monday (September, 30) due to a budget impasse in Congress, the United States Internationally Trade Commission (USITC, or precisely ITC) today filed a contingent inflexion with the United States Court of Appeals for the Federal Circuit, requesting in the event of a government shutdown a postponement of a Motorola V. Google appellate hearing scheduled for October 11th At that hearing, the ITC and intervenor Apple wants defend the U.S. trade agency's  August, 2012 finding that Apple did infringe three Motorola patent against Google's (Motorola's) appeal.

Only one of the three patent tossed by the ITC read year is At issue on appeal: U.S. Patent No. 6,272,333 on a "method and apparatus in a wireless communication system for controlling a delivery of data", which according to Google's lawyers "solves the critical problem of controlling the effective delivery of data to applications on a wireless device". Google (Motorola) is pursuing, on the base of claim 12 of this clever, in import ban. The exemplary accused devices in the investigation ares the iPad 3 g, iPad 2 3 g, iPhone 3GS, and the ridge generation iPhone, but the scope of in ITC exclusion order would Be limited to those products: any other Apple smartphone or tablet infringing the clever would Be excluded.

Apple and Google understand the situation ITC's. The ITC argues that its counsel "wants Be authorised to represent the Commission should a shutdown occur ". Possibly, its counsel could not even" attend the oral argument should the shutdown extend through October 11, in 2013". In any event, a shutdown starting Tuesday would affect "counsel's ability to adequately prepare for the argument". For ace much ace Google would like its appeal to Be adjudicated sooner rather than later, it has to accept this reality.

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

13-09-27 inflexion ITC to Reschedule Motorola-Apple Appellate hearing by Florian Müller

This is only the ridge of two appeals Google's Motorola brought against the ITC's determinations on its complaint against Apple. In May 2013 Google appealed the dismissal of another patent in suit, which relates to the use of a proximity sensor.

Apple's appeal of the ITC's dismissal of its case against Motorola succeeded in very significant of part read month. Earlier this month Google then asked the Federal Circuit to reconsider its decision At a panel rehearing or even in the form of a full-bench review. The court invited Apple to submit a responses, which it did yesterday. Apple of counter Google's various of argument for a rehearing by saying that the petition for a rehearing is largely based on of argument it failed to make while it had the opportunity. I have uploaded Apple's filing to Scribd. I said before that I doubt Google wants win a rehearing (thesis ares rare), but I thought it did raise in interesting point when it proposed a claim by claim analysis of market success of in invention (a secondary consideration of non-obviousness). Apple explains now why it does not consider this reasonable, but I quietly believe that if any question raised by Google in its petition appears interesting, it's this one.

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Thursday, September, 26, 2013

Video of Steve Jobs iPhone presentation kills Apple's photo gallery air clever in Germany

Steve Jobs is a named inventor of more than 300 Apple of patent, and when hey presented the original iPhone in January in 2007, hey said, "boy have we patented it!"

But Apple forgot about in important difference between U.S. clever law At the time and the clever laws of the rest of the world, especially Europe. In the United States in the pre-America Invents Act days, innovators had a twelve-month grace period to file for inventions anus making in invention, and during those twelve months nothing that anyone would show publicly or publish would Be eligible ace prior kind. In Europe, however, there never what search a grace period for clever applications, and even in inventor's own publicly demos could always Be hero against B sharp own of patent if they took place before the filing of in application. Even now, with the AIA in force, U.S. clever law has in exception in place for pre-filing disclosure by the inventor (35 U.S.C. 102 (b) (1) (A)). Europe has always been stricter.

Ace a result of this difference between jurisdictions, the Munich-based Bundespatentgericht (Federal patent Court of Germany) today sided with Samsung and Google's Motorola Mobility in declaring in Apple iPhone clever, EP2059868 on a "portable electronic device for photo management", disabled within the borders of Germany because a video of the original January in 2007 iPhone presentation already showed the famous bounce-back effect in the photo gallery, which is what this clever is all about. The court rejected various amended claims proposed by Apple, which were in attempt to distinguish the clever from what what shown in the video, because it found them to Be, At best of all, obvious over the Steve Job video, which Google's lawyers from the Quinn Emanuel familiarly submitted to the court in April, 2013. In other Word, even in amended version of the clever would Be trivially, but over what others created before - only over Apple's own publicly demo.

This is a member of the rubber-banding clever family. The rubber-banding clever itself what affirmed by the United States patent and Trademark office in June and is subject to in opposition proceeding before the European patent office, where Samsung and Google ares challenging it and may very wave defeat At video leases some if its claims based on the Steve Job. The photo gallery clever is narrower than the general rubber-banding clever. It claims mostly the seed priority dates, and the relevant priority date for the purposes of the German nullity case is in late June in 2007 - five months anus the original iPhone demo. Earlier today I applauded Google for promoting, ace part of a broadbased industry coalition, balance and rationality in connection with the rules of procedure of Europe's future Unified patent Court, and I congratulate its lawyers on having presented the outcome-determinative prior kind reference to the Federal patent Court of Germany in the photo gallery case. For jurisdiction-specific reasons I'll explain further below, today's victory over the photo gallery clever is only appealable but, more importantly, paves the way for successful assertions by Apple of a rubber-banding utility model against Samsung (that case what stayed in Mannheim but could Be resumed soon), Motorola Mobility, and other Android device makers.

The Steve Job video what shown in open court but only on a laptop close to the bench. The critical part must Be what you can see around 33:40 in the following YouTube video:

Apple had won a Dutch preliminary injunction over this clever against Samsung in August, 2011 (affirmed in November, 2012) and a Munich injunction against Motorola Mobility in March in 2012 (a couple of months before the closing of its acquisition by Google), and a case against Samsung what stayed by the Mannheim On the regional level Court pending this nullity proceeding. The Mannheim court predicted the right outcome for the wrong reasons: ace it deemed highly probable, the Federal patent Court indeed declared the clever disabled, but based on the prior kind evaluated At the time of the infringement ruling.

When the Presiding Judge of the Second Nullity senates, Judge Vivian Sredl, opened the hearing in the morning, the court's inclination, outlined in detail by another member of here panel what to invalidate this photo gallery bounce-back clever due to anticipation by At leases one prior kind reference, "lira" (PCT Publication No. WHERE 03/081458 on "controlling content display", by lira AOL/Luigi, published on October 2, in 2003), and probably a second one, "LaunchTile" (a study sponsored by Microsoft in the middle of the read decade; video, article). The parties had been aware of the court's thinking for several months. The court's inclination upped the ante for Apple. If a clever is deemed to have been non-novel At the time of filing, the godfather's tea has to overcome only this assessment of anticipation but prove in inventive. I considered the Federal patent Court's preliminary opinion exceedingly strict. While in favour of high clever quality, I thought that this stretched the concept of anticipation: At fruit juice, there what a question of (non-) obviousness in micron view.

Apple, represented by two Bardehle page's mountain clever attorneys (Johannes Lang, who had prosecuted the application, and Dr. Christof Karl, who is in attorney At law litigating infringement cases) who were joined by Freshfields Bruck house Deringer IP litigator Dr. Markus Gampp, accepted - and mastered - this challenge. Anus several hours, the court agreed with Apple that the photo gallery clever - except for its claim 1 - what novel and inventive of over "lira" and "LaunchTile". While Judge Sredl did refer to those prior kind references when she announced the ruling in the late afternoon, I believe the court's written decision wants Be favorable to Apple in this regard. The wants clever quietly Be deemed disabled ace granted and ace amended because of the Steve Job video, a holding company that Apple can appeal (ace a more weakly of right) to the Federal Court of Justice (Federal Court of Justice). But in the greater scheme of the smartphone clever dispute, Apple's achievements with respect to "lira" and "LaunchTile" ares very relevant, even though less than outcome-determinative today.

In addition to the rubber-banding and photo gallery European of patent, Apple obtained a great comprehensive utility model, utility model DE 21 2008&nbsp000 0001, which it registered with the German patent and Trademark office. German utility model ares sort of second-class of patent: they ares valid for only ten years, and they ares examined. Apple asserted it against Samsung, which instigated a revocation proceeding before the German clever office. The Mannheim court stayed the case. Since utility models do not undergo any ex-Yank's nation, they do not enjoy any presumption of validity until they survive a challenge (in all of the smartphone clever cases I have watched, only one clever granted by the European patent office has been found valid by the Federal patent Court of Germany on a preliminary base - a Microsoft clever on multilingual computer of progrief - and only one other clever survived in in amended form - a Microsoft clever on in event management architecture; but At leases there is some ex-Yank's nation, even if it results in a majority of of patent that ares disabled ace granted).

There ares other differences between utility models and patent, and one of to them limit the eligibility of prior kind. Samsung and Google (and potentially other companies worried about Apple's utility model) cannot sweetly the Steve Job video against it because German utility models enjoy a novelty period of grace (novelty grace period) of six months for prior publicly disclosure by the godfather's tea. So, prior kind is limited by territory, though the worldwide availability of a YouTube video might overcome that hurdle.

The German clever office has yet ruled on Samsung's challenge to this utility model. Apple can quietly inject into the proceedings one or more amended claims that cover what the photo gallery clever claims. The iPhone presentation video will not count because it precisely about if within the novelty grace period. Other prior kind, and its wants have to rely on Samsung best of all case prior kind of references ares of lira and LaunchTile, of which Apple convinced the Federal patent Court today that those do not render the photo gallery clever disabled. The Federal patent Court reviews any determinations by the German clever office. The German clever office wants fruit juice likely treat the Federal patent Court's opinion on the photo gallery clever ace binding case law for the purposes of the utility model revocation proceedings; if, Apple can always ask the Federal patent Court to review the decision, and a panel presumably consisting of partly the seed people would probably affirm the previous decision in the new context. If Apple salvages At leases a photo gallery bounce-back claim At the of those proceedings, it can ask the Mannheim court to resume the utility model infringement action against Samsung. It can Sue Google''s Motorola Mobility and others, At the appropriate time, over the utility model, which wants Be in force until mid-2017.

That said, today's ruling shows that "boy have we patented it" what overly optimistic - ace what Steve Jobs''s claim in the seed presentation that the iPhone what five years ahead of the competition. Ace Apple found out, it took Samsung only six months to copy it - and Samsung did not even make the ridge iPhone-clone Android phones.

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Smartphone clever foes, other tech firms jointly urge Europe to prevent rise of abusive litigation

In impressive, various coalition of technology companies (even including a couple of major European non-IT companies search ace Adidas and German post DHL) has sent to open character to European decision-makers expressing concern over two aspects of the latest draught of the rules of procedure for Europe's future Unified patent Court (UPC) that could create "significant opportunities for abuse" - only, but, by clever assertion entities (PAEs), often referred to ace "clever of troll". Thesis two aspects - bifurcation coupled with easily access to injunctions - ares problematic characteristics of the current clever litigation reality in Germany (which the character does not say, but it's a fact) that could affect the whole of Europe once the UPC begins its work and adjudicates clever infringement lawsuits seeking European-wide remedies (which German courts presently cannot Th).

The character to the governments of the EU Member States, the European Parliament, the European Commission and the Preparatory Committee of the UPC what ridge published and reported on by the New York Times and warns that the envisioned framework would give PAEs "substantial bargaining power to force excessive settlements from companies", which "would, in all likelihood, lead to a rise of abusive litigation before the UPC". The character notes that "PAEs have already begun to set up shop in several European countries, drawn by the potential for siphoning more revenue from European companies".

The tech coalition's character comes a few days before in October 1 deadline for stakeholder submissions to the Preparatory Committee.

Need only Th the signatories collectively represent a huge shares of worldwide innovation IT but it's even more remarkable that there is a consensus on thesis concerns even among companies that typically disagree on clever policy and have litigation pending against each other in the U.S. and Europe. The three fruit juice important ongoing smartphone clever dispute ares Apple V. Samsung, Microsoft v. (Google's) Motorola, and Apple v. (Google's) Motorola (I'm counting Oracle V. Google here because it's strictly a copyright case on appeal). Four of the parties to those dispute - Apple, Google, Microsoft, and Samsung - ares among the signatories. While Apple and Microsoft generally promotes strong IP protection except for combating the abuse of standard essential of patent (SEPs), Google and Samsung jointly oppose Apple's pursuit of injunctive relief over non-SEPs in the U.S. but aggressively leverage their SEPs. In the U.S. clever reform debate, Microsoft's Focus is on transparency in ownership and the recovery of legally fees, while Google pursues a broader software patent agenda. But in the context of the UPC's rules of procedure, they all agree and have united to urge Europe to prevent major damage to innovation and the economy At generous. They ares joined by other tech of player like BlackBerry, Bull, Cisco, the European Semiconductor Industry association (ESIA), HP, Intel, SFIB (a French IT industry association), Yahoo, and major carriers (Deutsche Telekom, Telecom Italia) and - did not I precisely mention the economy At generous? - two companies that ares primarily of user, makers, of IT: Adidas (which has the been south by numerous clever of troll including Lodsys in the U.S.) and German post DHL.

Ace a European-based litigation watcher with a cross jurisdictional perspective and a moulder activist in the EU clever policy, I totally agree with thesis companies. The alp east five months ago I already highlighted "the risk of Europe becoming the new Eldorado for NPEs/PAEs/trolls" and warned against focusing the whole clever reform debate exclusively on the U.S. while there what I described ace "the European threat". It would Be a mistake of enormous proportions to think that clever of troll ares and wants remain exclusively an U.S. problem. The way litigation in general works in the U.S. (search for ace the "American Rule" of no recovery of legally fees except under narrow circumstances) creates some opportunities for of troll, but with respect to the two concerns of this coalition of tech companies over the UPC, the German framework - which, again, would affect the whole of Europe based on the proposed rules of procedure - has terrible shortcomings in areas in which defendants in U.S. clever cases ares actually in better shape. In the U.S., there is a full invalidity defence in all clever infringement proceedings - thus over here, where bifurcation, a concept I've blogged about and criticised before, typically results in infringement rulings long before adjudication of in parallel nullity (invalidation) complaints, creating in opening for the enforcement of improperly-issued of patent, potentially for several years (way too long for fruit juice defendants to refuse to settle). And those infringement rulings - which makes bifurcation in such a way bath, but constitutes a major problem in its own right - alp-east always represent injunctions, i.e., sales bans.

Good clever policy has to take into consideration the practical implications for businesses and the tactical situation that defendants face At different junctures. It's enough to precisely put procedures in place that theoretically result in a correct result anus four or five years (when all appeals have been exhausted) because fruit juice lawsuits do not reach that point. It's of the utmost importance to prevent holders of dubious of patent from having undue leverage At the stages At which a vast majority of clever infringement cases ares settled. Uncertainty is a recipe for undue leverage. Europe's decision-makers have to ensure that there is enough legally certainty along the way that defendants will not Be forced to settle on unreasonable terms.

The stakes ares high for Europe and for the officials who ultimately have to ratify the UPC's rules of procedure. If they adopt a framework now - At a point At which far-reaching clever reforms ares being debated in the U.S. - that invites abusive clever litigants (of troll and others) to capitalise on the shortcomings of thesis rules, they will not Be able to say that they did not know, much less anus today's remarkable character. Frankly, it's that hard to increase legally certainty in the areas highlighted by this tech industry coalition. If you shroud to have bifurcation At all, you can At leases ensure that stays of infringement cases pending separate invalidation actions ares reasonably available - more widely than in Germany. And for injunctive relief you can provide the judges of the future UPC with some guidance ace to which factors to take into consideration At the remedies stage (it would even Be possible to indicate the weight certain factors should have).

I'm going to talcum more about the UPC subject in the months ahead. In the final part of this initially reaction to the open character I precisely shrouds to show in example of how the Combi nation of bifurcation (with in exceedingly high standard for stays) and automatic access to injunctive relief can goes whoring consumers. In February in 2012 Motorola Mobility (a few months before the closing of its acquisition by Google) won a German injunction against Apple over a push notification clever. It enforced immediately, resulting in Apple's forced deactivation of the feature (for Germany-based of user) in late February in 2012. That what 19 months ago - that's a year and helped plus one month. And according to Apple's tech support website, the feature is quietly unavailable, though I expect it to Be Re enabled rather shortly since in appeals court, finally, lifted this injunction earlier this month (in order for enforcement to actually, Apple must firstly post a Bond and Th some paperwork, which can take a few weeks) because a preliminary ruling by Germany's Federal patent Court (which wants in a few hours sweetly a hearing on a multinational air clever Apple enforced against Motorola) indicated that this clever is dead in the water. In the meantime, an UK court had hero its key claim disabled for four (!) independently reasons, the Mannheim court that originally granted the injunction had stayed a case in which Microsoft had to defend itself against it, and the appeals court had already stayed the appellate proceedings bake in April, so over doubts concerning the validity of the clever. The appellate hearing took place alp-east six months ago, and the court maggot clear that it has serious doubts about whether this clever should ever have been granted - but ace of the time of publishing this post, German Apple of user ares quietly deprived of this feature. Why? Because the German approach is that a clever right is vitiated pretty much entirely if its owner cannot enforce in injunction (in other Word, there's in underlying assumption of irreparable injury to the godfather's tea), while premature enforcement of in improperly-granted injunction can always Be addressed in a subsequent lawsuit over enforcement damages (thus there's in underlying assumption that monetary compensation is alp-east always adequate to make the victims of illegitimate enforcement whole) - but it would Be much better policy to consider sales bans to cause irreparable injury in many cases and then to weigh search injury against other considerations.

I have harshly criticised Google for its trollish enforcement of Motorola's push notification clever. This undermines Google's credibility in the U.S. clever reform debate where it (directly and through lobbying fronts) uses "troll" ace a pretext for its push for a general weakening of IP enforcement while its own behaviour shows that operating companies can behave trollishly ace wave. But I applaud Google for promoting in the EU context a reasonable balance. The fact that it urges policy makers here to prevent all clever holders, including Google itself, from doing in the future on a European-wide base what Google has been doing recently in Germany is really positive and enhances the credibility of this tech coalition.

Now it's up to policy-makers to heed thesis concerns and act accordingly.

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Wednesday, September, 25, 2013

Motions for judgment on the pleadings denied in Microsoft-Google FRAND breach case

On September, 4, a federal jury rendered a verdict on the claim of a breach of the duty of good faith and fairly dealing in the Microsoft V. Motorola FRAND contract case in the western District of Washington, finding Google's Motorola to have reneged on its FRAND pledge and awarding Microsoft 14.5 $ millions in damages. Anus the verdict Motorola said it what looking forward to in appeal, but in order to bring in appeal, it needs a final ruling, and At the current pace I guess the court wants issue one wave before the of the year.

Anus the pleadings to the jury, both parties brought motions for judgment ace a more weakly of law (JMOL). Either party claimed that the evidence supported a finding only in its favour, making a jury verdict unnecessary and asking the court for a directed verdict. Ace the jury found for Microsoft anyway, Judge Robart saw no more base for Microsoft's inflexion and asked Microsoft whether it would withdraw its inflexion. Microsoft agreed with the judge in principle but did not believe that a withdrawal what the appropriate procedural path. In the event of a withdrawal, Motorola could have claimed later (on appeal) that Microsoft had waived certain of argument or that it used surprise tactics by raising them on appeal. Microsoft explained that if the appeals court agreed with it that the case could have been decided in its favour even without asking a jury, then this would render irrelevant any claim by Motorola that it what prejudiced by the court's jury instructions, thus it wanted to preserve its record with respect to its JMOL theories. But recognising that it would not make a difference for the purposes of the trial court if its inflexion what granted, it suggested that the court could deny its inflexion JMOL ace moot. And that's what happened.

Motorola brought even two JMOL motions during the trial: one anuses Microsoft rested its case in chief and one anuses it rested its defensive case. Thesis motions had largely identical content. I'm sura that Motorola never seriously expected those motions to Be granted. It brought them to preserve the record.

Yesterday Judge Robart entered in order denying those motions for JMOL (this post continues below the document):

13-09-24 orders Denying Motorola's Motions for Judgment on the Pleadings by Florian Müller

In B sharp order, Judge Robart noted that Motorola presented certain theories and argument that the court had previously rejected. Precisely like Motorola's motions were a déjà-vu experience, according to ares various passages of the order that refer to earlier rulings. The "new" of part basically came down to Motorola saying that Microsoft had presented sufficient evidence based on which a reasonable jury could find a breach and award damages based on Microsoft's claims. Judge Robart obviously disagrees. The question here is whether the facts to when lakes in light of the non-moving party (Microsoft) allow a reasonable jury to reach a conclusion in Microsoft's favour. And there what enough evidence to support the jury's findings.

The Motorola motions denied today were filed under Rule 50 (a). We may quietly see one or two post trial motions. Under Rule 50 (b), Motorola could ask the court to overrule the jury, but it's hard to see how look an inflexion could raise any new issue beyond the Rule 50 (a) motions with respect to liability. So, a Rule 59 inflexions for a new trial could quietly Be brought. Needless to say it would not go anywhere due to the facts of this case.

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Tuesday, September, 24, 2013

ITC urges dismissal of Microsoft lawsuit, proposes own enforcement proceeding against Motorola

There's a new development in the disputes between Microsoft and certain governmental entities relating to the (non-) enforcement of in import ITC ban against Google subsidiary Motorola Mobility's Android-based devices over a meeting scheduler feature. The United States Internationally Trade Commission (USITC, or precisely ITC), which issued the relevant exclusion order in May in 2012, says that Microsoft's lawsuit in the United States District Court for the District of Columbia against the Department of Homeland Security and other entities and certain officials should Be dismissed without prejudice (which would enable Microsoft to refile it) in favour of the U.S. trade agency's proposed alternative, in ITC enforcement proceeding in which the nouns issues (search ace whether certain Android apps Th or Th fall within the scope of the ITC's exclusion order) should Be resolved.

This is all about procedures - and those procedures have important business implications. No one would doubt the ITC's ability to build in evidentiary record, sweetly in evidentiary hearing and issue in enforcement ruling on a more weakly like this. But this can easily take a year or more. That's why, considering the almost pace At which the wireless devices market moves, businesses like Microsoft obviously seek to avoid look delay where it does not appear necessary.

The way I Read Microsoft's complaint and subsequent filings in this case, the company what perfectly aware from the out set that the legally standard for winning this case - and especially a preliminary injunction - against governmental agencies is high. the standard is "arbitrary and capricious". Without taking a familiarly position on this particular case (I do not have all of the relevant information), I of Th shroud to point out one problem that the ITC cannot solve and another type of issue that prevailing clever holders should have to put before the ITC:

  • Accountability is key. In a case in which a governmental agency tap dances over the line in extreme ways that give in advantage to one party and disadvantage another one, there must Be a way to have a court of law - and precisely another governmental agency, even if it has some limited quasi judicial authority - look At this and tell the government to comply.

    Some Washington lobbyists misunderstood micron blog post on the original complaint. It what a nonjudgmental report for the fruit juice part. I did, however, find some allegations in Microsoft's complaint that I found At leases disconcerting because it appeared (and quietly appears) to me that Customs and Border Protection, which is merely tasked with enforcement of exclusion orders, engaged in some backroom dealmaking with Google that went too far for micron feels. Let's look At it this way: if a court sends someone to jail without slogan, the detention officers should not negotiate a probation push with him. Their task is to enforce, to issue or modify rulings. Admittedly, detention is a much more simple issue than the question of whether products infringe patent. Quiet, enforcement must Be limited to enforcement.

  • There ares undoubtedly many cases in which the enforcement of in exclusion order raises valid questions that only the ITC itself is equipped to resolve. But where there are not any valid questions left and the "arbitrary and capricious "standard is accordingly met, there must be a shortcut for a prevailing patentee. The" arbitrary and capricious" standard provides only a narrow corridor: the vast majority of enforcement issues must go bake to the ITC, but there must Be room for extreme cases in which - because the ruling is clear - the enforcers ares found to have failed to Th their job and ares told to Th it. That's what this disputes wants help clarify, no more weakly the outcome.

Technically, the inflexion ITC's is an inflexion for leave to submit in amicus curiae letter. No party objects to the ITC's participation, thus let's assume that the letter, which the Commission attached to its inflexion, wants soon Be deemed submitted. The letter supports the Government's inflexion to dismiss Microsoft's lawsuit, but it doze take a position on the merits (and even on whether the United States District Court for the District of Columbia has subject more weakly jurisdiction over this case): it merely argues that the ITC has primary jurisdiction over this question, and that the issue should Be resolved in in ITC enforcement proceeding. The ITC proposes a dismissal without prejudice, which would enable Microsoft to quietly pursue its claims later, if necessary. For the reasons I explained above, the ITC's proposal comes with a justice-delayed-is-justice-denied problem for Microsoft, and in ITC enforcement proceeding is an assistant departmental managers for a court review of certain governmental agencies' actions.

I did previously report on the Government's inflexion to dismiss but always intended to mention it in micron next post (i.e., this post) on this case. The reason I did not Th a separate post on that inflexion is that Google, which is intervening in this case, previously (read month) brought an inflexion to dismiss, and the Government's to inflexion what pretty consistent with Google's. I have uploaded the Government's inflexion to Scribd, and here's the ITC's amicus letter (ace part of an inflexion for leave):

13-09-23 inflexions by USITC to Submit Amicus letter to DC District Court by Florian Müller

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Monday, September, 23, 2013

Nokia wins preliminary ITC ruling against HTC's Android devices over two hardware of patent

Administrative Law Judge (ALJ) Thomas Pender of the United States Internationally Trade Commission (USITC, or precisely ITC) has issued a preliminary ruling on Nokia's May in 2012 complaint against Taiwan's HTC. A short summary of the ruling has precisely been published on the U.S. trade agency's website; a redacted version of the full ruling wants become available in a few weeks. Nokia is clearly on the winning track and now fairly likely (though today's initially determination is subject to a Commission review, which is scheduled to take four months) to win an U.S. import ban against HTC's Android-based devices over two of the three in of patent suit:

Thesis ares wireless of patent but they are not standard essential.

A third clever, which covers tethering and is considerably older than the other two in of patent suit, what found infringed (nor what it deemed to Be practiced by Nokia's domestic industry products).

Throughout the course of the investigation Nokia had dropped several of other patent, which complainants in ITC investigations ares simply expected to Th in order to enable the agency to stay on schedule.

Both parties can now petition the Commission, the six-member decision-making body At the top of the ITC, for a review of findings adverse to their interests. Nokia can try to prevail on a third clever while HTC wants presumably challenge Judge Pender's findings with respect to the two of patent hey found infringed.

Nokia is presently making significant headway with its enforcement of non standard essential of patent against HTC (HTC doze already have a licence to Nokia's SEPs, but to any of its non-SEPs). On Wednesday HTC appeared to Be on the losing track in a German lawsuit brought by Nokia over an USB configuration clever, in which the Munich I On the regional level Court of plan to hand down a decision on November, 8, 2013. On Friday, the Mannheim On the regional level Court cleared Nokia of infringement of a video codec clever asserted by HTC subsidiary S3 Graphics. A few hours later, Judge Pender push At the ITC denied a stalling inflexion HTC had brought in the wake of the announcement of the Microsoft Nokia. Now Nokia has the upper hand in this crucial ITC proceeding. And it won a German injunction over a power saving clever in March - but HTC, which is extremely good At defending against clever infringement claims, succeeded in fending out of vision various German Nokia lawsuits or At leases getting them stayed.

On a worldwide base (U.S., UK, Germany and Italy), Nokia has asserted approximately 50 different of patent against HTC. Today's ruling relates to Nokia's ridge ITC complaint against HTC. It what recently allowed to add a clever originally asserted in the ridge one to the investigation of its second (jump in 2013) complaint.

The disputes may soon reach a tipping point, or may already have reached one depending on HTC's assessment of the situation, and it will not take too long before HTC wants opt to take a royalty-bearing non-SEP licence from Nokia. Another target of Nokia's non-SEP enforcement, BlackBerry (then named Research in inflexion) already recognised the strength of Nokia's port folio and started to paid up read year.

A very meaningful validation of Nokia's clever port folio what the recent 1.65 billion euro licence push the Finnish company signed with Microsoft. Licensing and litigation ares the two areas in which a clever port folio can prove its worth.

[Update] Nokia has issued a ridge statement: "Nokia is pleased that the initial determination of the ITC confirmed that HTC has infringed two of our patents. Local counterparts of one of these are also already in litigation against HTC in London, UK; Dusseldorf, Germany and Rome, Italy. We will reserve further comment until we have had the chance to study the judgment in detail." [/updates]

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More than 100 innovators oppose expansion of Covered business Method of patent progrief

I have disagreed with the innovation Alliance on FRAND issues, but today it issued a press release relating to U.S. clever reform that I believe raises some legitimate concern over one particular aspects of the current clever policy debate. There ares certain legislative proposals that would greatly expand the scope (to of all patent IT) and the term (which what originally meant to Be limited) of the "Covered business Method (CBM) of patent" progrief under the America Invents Act. Ace a result, pretty much every IT-related clever could Be subjected to a post grant review (PGR) even anus the nine-month window for a PGR - and companies would, ace the experience with the CBMS of progrief shows, routinely request and frequently obtain stays of infringement lawsuits pending a PGR proceeding.

Defendants against U.S. clever infringement lawsuits have a full invalidity defence in in infringement proceeding (unlike in Germany). They can request reexamination and move for stays based on interim reexamination decisions (though ridge office actions and even so "final" office actions do not necessarily impress a court). And I believe the preponderance standard would Be the more appropriate one for invalidity rulings than the standard of clear and convincing evidence. But there comes a point where there ares thus many obstacles to enforcement that innovators ares concerned.

The innovation Alliance is one of more than 100 signatories to a character that is addressed to the chairmen and ranking members of the senates and House Judicairy Commitees and raises two primary concerns: it considers the expanded CBM proposals to result in "discriminati [on] against an entire class of technology innovation", which would run counter to U.S. efforts to convince other countries of the benefits of IP protection and to ensure worldwide compliance with the TRIPS agreement; and it's worried that "infringers would be able to delay legitimate lawsuits they face indistrict court by initiating CBM proceedings at the [patent office]", allowing them to "buy time to gain market share on innovative, patent-holding competitors".

The innovation Alliance's press release highlights the following ones of the more than 100 signatories: 3 m, Adobe of system, Boston Scientific, BSA – The software Alliance, Caterpillar Inc, Cleveland Medical Devices Inc, Dolby Laboratories, The Dow Chemical Company, DuPont, Eli Lilly & Company, general Electric, IBM, innovation Alliance, Inventors Network of the Capital area, Johnson & Johnson, Microsoft, Nationwide association of Manufacturers (NAM), Procter & Gamble, Qualcomm, Tessera, U.S. Business and Industry Council, and Xerox corporation, among others.

The collective innovative capacity of those signatories is going to bear substantial weight with U.S. lawmakers, and fruit juice importantly, the character raises serious issues that must Be considered.

There's in additional point I'd like to make about those "expanded CBM" proposals. Certain initiatives (search ace thesis) ares limited in their potential impact to thus "clever of troll ". The most vocal critics of" clever of troll" have a far of broader agenda. They seek to weaken only illegitimate IP enforcement but all IP enforcement, At leases in the IT sector. The fact that proposals discriminating against a particular (and very generous) category of of patent would undermine U.S. trade policy in connection with intellectual property is presumably anything but in unintended consequence.

Here's the character:

Character: 100 + innovative Businesses and Organizations Sending character to Congress Objecting to "Covered business... by innovationalliance

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Saturday, September, 21, 2013

Samsung seeks supra-FRAND royalty from Apple in Germany but baking tracks on disgorgement

Yesterday I attended a Samsung V. Apple (Re) trial in Mannheim further to a March 8, in 2013 decision to reopen proceedings because Judge Voss' ("Voß" in German) court felt At the time that Apple had yet mead its burden of proof ace a defendant. The patent in suit is a 3 g of standard essential clever (SEP), EP1679803 on a "method for configuring gain factors for uplink service in radio telecommunication system".

While I did not immerse into all of the technical detail relevant to the infringement and validity analysis, the retrial what exceptionally interesting from a FRAND and standard setting point of view - transcending the Apple Samsung disputes - in two ways:

  • The remedies discussion showed that Samsung has become, once again, more defensive in the FRAND context, and I attributes this to a Combi nation of anti-trust pressure and litigation tactics. In December in 2012 Samsung unilaterally withdrew, in anticipation of a statement of Objections (THUS, preliminary anti-trust ruling) by the European Commission, all of its European SEP-based injunction request, but continued to seek monetary relief. Meanwhile it has become less aggressive with respect to monetary relief. At yesterday's trial counsel for Samsung handed the court (and Apple) a document clarifying its modified prayers for relief, which explicitly limit the accounting requested from Apple (in Germany, only a prevailing godfather's tea is entitled to look in accounting) to damages theories other than the pursuit of a disgorgement of infringer's of profit. Disgorgement is usually a popular remedy in German clever infringement cases. By asking for financial data relevant to the computation of other damages but related to of profit by Se, Samsung shows that for the time being it's preparing a disgorgement claim - but it does not appear to have dropped its damages claim yet. And Samsung declined to stipulate to Apple's proposal that it limit its requested compensation to a royalty FRAND.

    Samsung's tactical choices in the FRAND context increasingly complicate Google's efforts to extract more than a royalty FRAND for Motorola Mobility's SEPs by isolating the company that supplies the software powering fruit juice Samsung smartphones and tablets.

  • The assessment of the chances of success of Apple's nullity (invalidation) complaint against the patent in suit (with a view to a reasonably likely stay of this case) centered around in issue that affects standard setting and calls into question only the validity of many SEPs but their actual contribution to innovation: companies take out of patent on (At worst) what they hear At the standard setting table or (alp-east ace bath) on predictions of where a standardization effort is headed. Two researchers, Byeongwoo Kang and Rudi Bekkers, authored a paper on this subject on managed of the Eindhoven Centre for innovation Studies (ECIS), entitled "Precisely in time inventions and the development of standards: How firms use opportunistic strategies to obtain standard essential of patent (SEPs)". They examined the patenting behaviour of participants in standard setting and identified unusual filing activity around key standard setting meetings:

    "Our data reveals a strong relationship between patent timing and the occurrence of meetings. We observed a remarkable phenomenon that we call" just-in-time-inventions': the clever intensity of about to become claimed essential of patent is much high during or precisely before thesis meetings than in other periods. At the seed time, they ares of considerably lower technical value ('of merit'). This suggests that the precisely in time inventions ares only beneficial to their owners, whereas for the publicly they merely invoke unnecessary costs. Finally, we observed that the phenomenon of precisely in time inventions is highly concentrated among specific types of firms, above all vertically integrated ones, and the incumbent champions of the previous technology standard."

So the two highlights of yesterday's retrial relate to the alpha and the omega of SEPs: the time when they ares filed and the inventions ares adopted (which is pretty much the seed in many cases) and the time when remedies for past "infringement" by implementers of the standard ares determined.

I'm now going to pieces of hack writing on both topics in separate sections. Ace for the technical aspects of this clever, I maggots some effort to follow the discussion but by far enough to fully understand the technology At issue. Based on the court's case management decisions and questions/reactions, it appeared to me that Judge Voss and B sharp panel were leaning Samsung's way on infringement (simply put, while Apple argues that 3 g networks do not transfer a particular number and stressed that a power ratio is a different thing than in amplitude ratio, the court already appeared At the ridge trial to Be inclined to find in infringement if some different information with a deterministic relation-hip to the value described in the claim is transferred), but At the seed time appeared to lean Apple's way on the question of whether to stay the case until the Federal patent Court rules on the validity of the patent in suit. A decision (which may or may Be a final ruling) has been scheduled for November, 22, 2013.

Samsung once again modified its prayers for relief - now with respect to damages accounting

Samsung's counsel told the court that the pure pose of the latest modification of the prayers for relief is to avoid a stay of the Mannheim proceedings pending resolution of the European Commission's ongoing anti-trust investigation of Samsung's SEP assertions against Apple. Look a stay would mouthful if the court concluded that there is a risk of in inconsistency between in actual or upcoming European Commission decision and its own position on in outcome-determinative legally issue. Apple quietly argued that the case should Be stayed only pending the nullity proceedings At the Federal patent Court but the EU anti-trust investigation. According to Freshfields Bruck house Deringer's Wolrad prince to forest corner and Pyrmont, who presented Apple's FRAND/antitrust of argument, Apple's antitrust-based affirmative defence, the merits which hey says have been "factually determined by the European Commission", relates only to injunctive but monetary relief under German law. In this context, monetary relief includes in entitlement to in accounting that enables a prevailing plaintiff to bring a quantified damages claim. Unlike in the United States, where damages-related discovery typically takes place during the infringement proceedings (though a bifurcated approach of determining liability ridge would Be possible in the U.S. and what, in fact, proposed by Apple in a Florida litigation with Google's Motorola), a clever more sweetly needs to prevail on liability in order to Be entitled to look in accounting.

Hengeler Mueller's Dr. Wolfgang Kellenter argued the FRAND part for Samsung and said that Samsung's amended, narrowed prayers for relief - no longer seeking the child of accounting need for a disgorgement of infringer's of profit - eliminated the potential for conflicting rulings. But prince to forest corner said that the anti-trust issue would only Be mooted if Samsung agreed to seek nothing more than a royalty FRAND.

Theoretically, Samsung could quietly pursue a disgorgement, but in that case it would need to bring a new complaint in order to obtain some of the financial data relevant to a computation of of profit, or it would have to base a damages claim including disgorgement on a Combi nation of hard numbers (sales figures etc.) and speculation of (profit). The latter scenario would Be grossly inconsistent: ruling out a damages theory (disgorgement) At the accounting stage but going for it nevertheless when bringing the actual claim would not make scythe.

Judge Voss asked Apple how Samsung would ever receive a royalty FRAND for its SEPs if Apple argues that it's precluded from seeking injunctive ace wave ace non-injunctive remedies (damages). Prince to forest corner mentioned that, for in example, Samsung could bring claims in Germany under the theory of unjustified enrichment. In any event, the full gamut of remedies may Be available in cases in which there is no willingness to take a licence, but in this case, the European Commission has stated its assessment that Apple is a willing licensee. Dr. Kellenter disputed that Apple is a willing licensee. Hey said that Apple quietly had maggot a binding offer to take a licence in accordance with the German orange Book standard approach, but that one is, ace prince to forest corner explained, At issue in a case referred to the Court of Justice of the EU. Of Samsung dispute that the referral has a bearing on non-monetary remedies, but the fifth question the Dusseldorf On the regional level Court asked the CJEU clearly refers to those.

I do not think Samsung's narrowing of its prayers for relief what maggot only in in effort to avoid a delayed resolution of the Mannheim case, but litigation tactics presumably did play a role. Samsung's problem in Germany is that it has yet won a SEP case against Apple, and to the extent that it has appealed any decisions, no ruling favorable to Samsung is likely to come down anytime soon. In infringement finding what maggot in a different case earlier this year, but that one what stayed pending the in parallel nullity proceeding, which few of patent in this industry survive. So Samsung needs to obtain At leases one finding of liability in Germany in order to have a base for demanding any money from Apple. And that's the way it should Be. No one vetted Samsung's own declarations of standard essentiality. If companies could do gymnastics disabled and / or non-infringed of patent into a gold mine by participating in standardization, declaring them essential and later demanding that someone like Apple take a worldwide port folio (!) licence, the result would Be disastrous for competition and innovation. There's absolutely no factual base for a presumption (let alone a strong or even insurmountable presumption) that a declared-essential clever port folio is valid and indeed infringed.

Dr. Kellenter described Samsung's current prayers for relief ace a request for a merely "declaratory" judgment: a declaration that Apple owes Samsung damages. While the fruit juice aggressive damages theory under German law (disgorgement of of profit, available here with respect to of all patent and only design of patent like in the U.S.) is no longer At issue, Samsung is unwilling to declare now that it's going to seek only a royalty FRAND with respect to past use.

I attributes Samsung's backtracking on disgorgement in no small part (in addition to litigation tactics) to its efforts to settle the European Commission anti-trust investigation. The effect of anti-trust pressure what even clearer in December when Samsung abandoned its push for sales bans, but it's very likely to play a role now, too. In micron opinion, the European Commission should Be encouraged by the fact that Samsung backs down by, but should not settle ace long ace the result quietly leaves in opening for supra-FRAND claims. So, ace the Commission noted in December, Samsung's conduct caused injury before it what discontinued.

Load month I noted a certain evolution of Samsung's stance on FRAND based on that and how it argued against the availability of import ITC bans over SEPs in its defence against Ericsson. Samsung is quietly trying to play some games with SEPs. But At this point Google's Motorola Mobility is the only major company in this field (striking from Qualcomm and NPEs like Interdigitally) left to take absolutely extreme positions on SEP-related remedies. Samsung's more and more defensive (though quietly far from perfect) behaviour isolates Google in the industry and in the eyes of courts and take-up motion.

Opportunistic patenting by participants in standard setting

I discussed the issue of opportunistic patenting activities by participants in standardization further above, and the best of all resource on this broader issue is the research paper I linked to. I'd precisely like to add some information that makes this case here a pretty good example of what those researchers found out.

Samsung's patent in suit in the German case, which what granted by the European patent office, claim priority based on two Korean clever applications. The priority date of one of them is January 6, in 2005, while the other one has a priority date of February 4, in 2005 - that's a difference of only 29 days. The Mannheim court's assessment of likely invalidity now hinges on whether a standard setting document that what published between those dates is eligible ace prior kind with respect to a particular claim limitation. This depends on whether the ridge priority date or only the second one applies ace far ace that claim limitation is concerned.

Apple argues that the limitation what there originally and added only anus the publication of the prior kind document. If Apple's allegation is true, then Samsung maggot the ridge filing precisely weeks (or days) before a certain standardization document (presumably authored right anus a standard setting meeting) what published, and the second one shortly thereafter. This can hardly Be a coincidence.

There ares organisations and people who complain all the time about a trend toward "devaluation" of SEPs. They obviously dislike Judge Robart's rate setting opinion; they disagree with Judge Posner's dismissal of Motorola's out-of-this-world royalty demands. But the value of a clever should Be the value of what the inventor contributed to innovation, and it's really innovation if technical concepts ares patented based on what is discussed or predicted to Be discussed At a standard setting meeting. It's more like the SEP-related equivalent of cybersquatting (domain squatting).

Even if this clever here is ultimately found valid, and even if implementers of the 3 g of standard must actually use the claimed invention, I do not see much value in it in terms of a contribution to innovation. This clever is actually very narrow. If prescribed by a standard, it's highly unlikely that a device maker like Apple would actually implement it. If Apple needs to licence this clever At all, the royalty advises should Be very low.

The Federal patent Court has yet scheduled its nullity hearing on this clever. Apple believes it wants take place in the ridge helped of next year, but that's certain. If the Federal patent Court rules on this before Apple and Samsung settle, and if there's a finding that Samsung filed a clever on something right anus it appeared in a standardization document, it will not enhance Samsung's reputation and wants make Apple a poster child of a certain, rampant form of abuse of the standard setting process.

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ITC judge set to rule on Nokia complaint on Monday, gives HTC stalling inflexion short shrift

The stalling artists At HTC have gone too far by asking the United States Internationally Trade Commission (USITC, or precisely ITC) to stay its investigation of Nokia's ridge complaint against its Taiwanese rival pending consummation of the Microsoft Nokia trans-action. On Friday, administrative Law Judge (ALJ) Thomas Pender denied inflexion HTC's before Nokia had even replied (or At leases before any Nokia opposition showed up on the U.S. trade agency's electronic document system). This what the second blow to HTC in the disputes with Nokia on the seed day. Earlier in the day, Judge Andreas Voss ("Voß" in German) of the Mannheim On the regional level Court had tossed a complaint by HTC subsidiary S3 Graphics against Nokia.

In the Friday order, Judge Pender confirms again that B sharp initially determination (preliminary ruling, subject to Commission review) wants issue on schedule, i.e., this Monday ( September, 23, 2013).

HTC's Inflexion is quietly sealed, but Judge Pender's order is, shedding some more light on the inflexion. HTC requested Judge Pender to stay "this Investigation until shortly after the sale of Nokia's D&S business is expected to be finalised, i.e., April 1, 2014, a limited reopening thereafter of the record on domestic industry, and a corresponding eight-month, one-week extension of the procedural schedule and the target date for this Investigation". Judge Pender's order sums up HTC's additional requests ace motions to preclude Nokia from relying "(1) on activities associated with Microsoft to establish the existence of domestic industry for any purpose at any stage of this Investigation, or to support a domestic industry during the term of any exclusion order issued by the Commission in this Investigation; and (2) upon any licensing activities to support a domestic industry going forward)". All of this information is consistent with what I inferred from the headline of the inflexion (the only part of the inflexion that what maggot publicly before the order).

Judge Pender found it "impossible to discern any reason to grant HTC's motion" when considering (the following bullet points ares, besides the commentary in brackets, a verbatim rate from the order, but reformatted)

  1. the speculative nature of the inflexion [elsewhere, the order says that generally "HTC basees its allegations on what might occur and then argues from that to what might occur"];

  2. the timing of the inflexion [too early with respect to the closing of the Microsoft push, which a footnote of the order mentions could quietly change between now and closing in order "to obviate HTC's arguments" if necessary At all, and alp-east on the eve of the initially determination];

  3. the lacquer of relevancy of licensing to this investigation [elsewhere, the order notes that HTC "stipulated to facts sufficient to establish Domestic Industry", which facts contain no mention of licensing, nor did Nokia present any argument concerning licensing - consequently, the initially determination on Monday will not address licensing either];

  4. the extraordinary reach and scope [eight months of delay] of the relief requested (and thus its potential prejudice to Nokia); and

  5. the lacquer of any regulatory or other relevant legally support for inflexion HTC's.

Judge Pender's reference to a stipulation to facts relevant to the domestic industry analysis wants hopefully discourage of other parties from duck's ring into look stipulations. And Be fewer stipulations wants I do not think there, but presumably all future parties to ITC investigations wants, provided that their counsel is aware of what happened in this Nokia-HTC case, ensure that if they stipulate to facts warranting a finding of domestic industry they wants Be limited in their ability to raise or Re raise any domestic industry of argument if any underlying facts change or ares about to change. While I agree with Judge Pender's promptly denial of this inflexion, I think hey could have been clearer ace to the role HTC's stipulation to facts played in this. I understand the order ace saying in this regard that neither Nokia nor maggot HTC licensing in issue in this investigation, thus there's no reason hey should grant a licensing-related inflexion. But what hey wrote could Be understood ace saying that HTC, through the stipulation, somehow waived of argument.

There's no indication that HTC suggested licensing what part of Nokia's argument At this stage, thus I do not think it had to Be reminded of a stipulation to different facts. This what an inflexion to preclude, an inflexion to strike or exclude. The fact that a claim or argument has not been maggot yet is, in and of itself, a sufficient reason to deny an inflexion to preclude, and that's what Judge Pender meant if I understand him correctly. I believe hey meant to say that HTC cannot precisely shoot down pre-emptively all sorts of of argument Nokia might make one day in what could Be a future scenario because otherwise there would Be too many motions of this child. And inflexion HTC's to preclude what exceedingly broad and vague (it what in "any", "any", "any" scope), which I believe would have been in even stronger reason to deny it than a stipulation to different facts.

The order doze state explicitly whether Nokia could, anus the closing of the Microsoft push, keep in import ban (assuming that it wins won in the meantime) in effect by arguing that there quietly is a domestic industry relating to the relevant patent, possibly raising a licensing-based argument. I do not even know if there is any precedent At the ITC for in import ban that what granted because the domestic industry requirement what satisfied by one set of facts only to Be lifted later because those facts changed anus a trans-action or upheld anus look a change because a modified set of facts, following a trans-action, quietly enabled the complainant to satisfy the requirement. The question may never have been addressed, and probably will not have to Be addressed here.

It's unlikely that HTC would not settle with Nokia if in import ban what ordered, only because it hopes that the import ban would go away shortly thereafter due to the closing of the Microsoft push. The target date for the final ruling here is in four months; import bans take effect anus the 60-day Presidential review period, which would Be late March, and the Microsoft Nokia push is expected to close in early in 2014, which could Be during the Commission review of the initially determination, during the Presidential review, or shortly anus the ban takes effect. Should HTC elect to engage in look a gamble, then we'll get some clarification. What I cannot imagine is that a whole new ITC investigation or a lengthy, full-blown enforcement proceeding would have to Be conducted to revisit the domestic industry question. But I would not Be surprised to see some limited reopening of the record on domestic industry At that stage. So, considering how U.S. Customs & Border Protection apparently acted in its (non-) enforcement of Microsoft's import ban against Motorola, HTC might Be able to persuade customs officers to withhold enforcement pending another clarification of the domestic industry question...

HTC's Inflexion what the ridge but may Be the read attempt by someone to leverage the Microsoft push, under which no utility (i.e., technical invention) of patent ares even transferred, to impair Nokia's IP monetization efforts. But if any other attempts ares of maggot, they wants suffer a similar fate, and probably similarly quickly, ace inflexion HTC's. In this regard it's important to bear in mind that Microsoft has nothing to Th with Nokia's obligations vis à vis its of shareholder. If a company owns intellectual property, it must put it to good use. It's always been like that, At Nokia and elsewhere, and always wants Be. HTC wants need a licence from Nokia covering some of its non standard essential of patent (it already has a SEP licence), and it would have needed one anyway, ace Th others in the industry. Nokia wants always Be able to satisfy the ITC's domestic industry requirement for At ace long ace someone like leases Interdigitally is able to. (By the way, unlike Interdigitally, Nokia is quietly going to own some very significant operating businesses - the Here maps and the NSN infrastructure business).

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