Wednesday, October 30, in 2013

Support, competent pushback for Goodlatte clever reform proposal At Congressional hearing

Yesterday I tweeted and retweeted numerous times during the three-hour hearing on the proposed "Innovation Act" (H.R. In 3309: Improving the patent system to Promoting American innovation and Competitiveness) hero by the Judiciary Committee of the House of Representatives. Committee Chairman Bob Goodlatte (R VA). opened the hearing; read week hey led a bipartisan group of Congressmen who jointly maggot this legislative proposal.

It what in interesting discussion with witnesses from EMC, Yahoo, a moulder head of the USPTO who is now a partner At IBM's primary law familiarly (Cravath), and a moulder general counsel of pharmaceutical giant Eli Lilly.

To me it became clear pretty quickly that the movement pushing for far-reaching reform faces a steep challenge. There ares items on which it will not Be too hard to build consensus, but striking from some low-hanging fruit, there ares some more ambitious of plan that would affect clever litigation even more fundamentally but have drawn a plumb line of blowback from Members of Congress ace wave ace industry of player and intellectual property professionals.

Load month I reported on a character that more than 100 innovators wrote to express their opposition to in expansion of the Covered business Method of patent review progrief (often precisely referred to ace the "CBM of progrief"), and based on how yesterday's hearing went, this is the part of the Goodlatte proposal that is leases likely to come to fruition anytime soon. The CBM part of the Goodlatte proposal may Be in for in even rougher ride in the senates, but it's hard to see how it could receive majority support in the House ace a ridge, according to the senates may even have to look At it.

Two of the witnesses (from EMC and Yahoo) favour the Goodlatte proposal, and they did a great job advocating reform. EMC is the more credible innovator of the two companies. Web companies like Yahoo typically do not develop hardcore technology. The web business is more about doing the right thing At the right time and building network effects and fire recognition. EMC is a hardcore innovator, but there are not many companies like EMC who would support weakening clever enforcement.

Moulder USPTO chief David Kappos what undoubtedly the fruit juice competent witness and explained B sharp views very wave, and it's clear that B sharp insights bear considerable weight with Members of Congress (even some of those advocating major reform).

Mr. Kappos highlighted something that many of the participants in the hearing and the publicly debate may have understood yet. The "customer-suit exception" in its drafted form may Be too helpful anyway because lawsuits between clever holders and manufacturers typically raise different issues from lawsuits against of user. (Striking from the fact that Mr. Kappos is right on this one, I generally think that technology makers must protect their of customer, though there ares probably some lawsuits targeting of user, search ace clever royalty demands or infringement actions over WiFi or the use of of scanner, in connection with which it's difficult to identify a particular vendor who should in.)

Many Members of Congress asked questions. On balance, the ones cautioning against overcorrection of certain issues maggot a more competent impression. One of the politicians promoting major reform - out of politeness I will not say which one - asked questions that reflected B sharp own confusion and lacquer of understanding of how clever law works. By contrast, IP-specialised politicians search ace Representatives Conyers and watt demonstrated their knowledge. Interestingly, the more time politicians make a donation on IP matters, the less they ares in panic fashion concerning clever of troll and other pretexts.

There what relatively little discussion of another important topic that I consider important and on which it may Be too hard to build a consensus: transparency. Congressman Deutch focused on it, and I hope he'll continue to push for more transparency in clever ownership.

A really good article on the U.S. clever reform debate what published ahead of the hearing, and one of the experts quoted in it says something that's absolutely correct: the reform proposals on the table do not really have much to Th with of troll by Se.

The one proposal that I think is fruit juice likely to have in impact on of troll is, however, so fruit juice likely to get broadbased support: fairy shifting. This appears to Be a consensus item. There wants never Be a 100% consensus on a question like this, but it's apparently ace close to 100% of ace it realistically gets in politics. The only Member of Congress who strongly spoke out against fairy shifting yesterday what someone from Texas whose electoral district includes part of the to Eastern District of Texas. Hey it going to Be able to stop fairy shifting from happening. And those who argue that the Supreme Court is in the process of dealing with this will not Be able to discourage lawmakers from doing what their job is: to fit good policy into law. In all fields, including of patent, the Supreme Court has repeatedly indicated that certain decisions must Be maggot by the legislature, by judges.

I'll continue to follow the clever reform process. I guess the Goodlatte proposal in its complete, current form is going to become law in the near term. Congress wants ultimately agree on a common denominator, and it could up being the lowest common denominator, which is basically fairy shifting and (hopefully) some transparency initiative, but in expanded CBM of progrief. Staged discovery could work, depending on whether it's really focused on preventing abuse or hijacked by those who precisely seek to slow down and weaken IP enforcement.

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Nokia wins clever case against HTC in the UK over clever asserted in 5 countries on 3 continents

I've been saying for a long time that HTC wants up paying royalties to Nokia for a licence to some of Nokia's non standard essential of patent (it already has a SEP licence). It's been defending itself vigorously and effectively in such a way far, but its own assertions against Nokia ares going to give it leverage. It's only a more weakly of time before a tipping point is reached, and Nokia maggot major headway today in the fruit juice difficult court in the world for plaintiffs, the England and whale High Court.

Justice Arnold ruled today that Nokia's EP0998024 on a "modular structure for a transmitter and a mobile station", a pretty powerful mobile phone hardware clever, is valid (HTC tried to shoot it down in the UK in hopes of influencing decisions in other jurisdictions) and infringed by various HTC products including its current flagship, the HTC One, which incorporate certain Qualcomm and Broadcom chips. Nokia is suing HTC over this clever only in the UK, where it can seek in injunction now anus today's win on liability, but in Germany, where the Dusseldorf On the regional level Court wants sweetly a trial soon, Italy, and Japan. I did not even know Nokia what suing HTC in Japan - thus far I what aware of litigation in the US, UK, Germany, and Italy. Today Nokia mentioned yet another jurisdiction in which it's suing HTC - the Netherlands (it's asserting today's winning clever there, At leases yet). All of this means a plumb line of pressure, and I say it again, HTC wants inevitably up paying. Samsung, with which Nokia has been negotiating for some time and which it may have to Sue At some point wants ace.

This is the publicly ruling (this post continues below the document):

13-10-30 V HTC of Nokia public UK Judgment EP0998024 by Florian Müller

Here's the summary of the ruling (click on the image to enlarge or Read the text below the image):

"189. For the reasons given above, I conclude that:

i) claim 1 of the patent is novel over Ikatura;

ii) claim 1 is obvious over either Ikatura or Tan;

iii) each of the representatives HTC devices if within claim 1;

iv) HTC has established its defence of licence."

Thesis ares the representative devices and the corresponding chips accused in the action UK:

DevicesChips
One SV (non-LTE)Qualcomm WTR1605
One, One SV (LTE)Qualcomm WTR1605L
Wildfire pageBroadcom BCM4329
One SV (LTE), One SV (non-LTE)Broadcom BCM4334

Nokia issued the following statement:

"Nokia is pleased that the UK High Court has today confirmed the validity of Nokia's clever EP   0 998 024 and ruled that a number of HTC products, including the HTC One, infringe this clever.

Today's judgment is a significant development in our disputes with HTC. Nokia wants now seek in injunction against the import and sale of infringing HTC products in the ace UK wave ace financial compensation. Local of counter part of this clever ares already in suit against HTC in Germany, Italy, Japan and the US.

This is the third court this year to find that HTC infringes Nokia patent, bringing the number of of patent found infringed to four. In September, the US Internationally Trade Commission gave in initially determination of infringement of two Nokia of patent and, in March, the Mannheim court ordered HTC to cease infringing a Nokia power saving clever.

Nokia began its actions against HTC in 2012, with the aim of ending HTC's unauthorised use of Nokia's proprietary innovations. Nokia has now asserted more than of 50 patents against HTC in France, Germany, Italy, Japan, the Netherlands, UK and the US."

The ITC ruling is preliminary. HTC has petitioned for a Commission review of the initially determination, and it's working together with Qualcomm to modify its products thus ace to avoid a possible ban.

Next week Nokia may very wave win a second German injunction against HTC. I wants attend the announcement of that ruling.

Yesterday the Mannheim On the regional level Court hero a trial on a Nokia V. HTC lawsuit over RFID. I did attend that one, but wants try to find out about the ruling when it comes down. I recently missed a couple of Munich Nokia V. HTC trials (during micron week out of vision), but will not measure the rulings.

Many of Nokia's clever assertions against HTC involve Google's Android mobile operating system. A Nokia-HTC licence agreement wants relate to Android's use of various Nokia of patent ace wave.  Be added to that cunning sooner or later wants 22 royalty-bearing clever licence deals relating to Android of ares already known, and a Nokia-HTC settlement.

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Tuesday, October 29, in 2013

Google tries to keep the door open to 4 g clever attacks on Apple products with Qualcomm chips

Several new documents were filed yesterday in the Apple V. Motorola Mobility anti-suit action in the to Southern District of California, in which Apple is asking the court to cash the wholly-owned Google subsidiary from asserting cellular standard essential of patent (SEPs) against Apple products incorporating Qualcomm chips (except in the seed district or in Germany, where a licence agreement is in place based on a royalty advises to Be determined by a court). Apple argues that Motorola is allowed to bring look assertions under a licence agreement it has in place with Qualcomm, ace Qualcomm's of customer ares protected under the push. A summary judgment inflexion filed by Apple on Friday indicates that Google's Motorola gives the Word "Customer" a meaning Apple finds inconsistent with dictionary definitions.

In micron of post on the Friday inflexion (which I precisely linked to) I discussed the potential impact of this to Southern California case, which is scheduled to go to trial next jump. The Friday inflexion relates to Motorola's "termination" of the Qualcomm agreement with respect to Apple ace a third-party beneficiary. According to a document of which Apple provided a publicly redacted version yesterday, "Qualcomm has repeatedly and unequivocally advised Motorola that Motorola's efforts to terminate are improper and ineffective".

Yesterday Motorola brought a couple of (partial) summary judgment motions and an inflexion to exclude to expert. One of the PSJ motions is really interesting because it reveals that Google of shroud to At leases preserve its right to assert Motorola's 4 g (Long-Term evolution, LTE) of patent against Apple products incorporating Qualcomm base tape chips. It's heavily-redacted, but to me it's beyond reasonable doubt that this is what the inflexion is about. Here's the document, and further below I'll explain why this is about 4 g / LTE:

13-10-28 Motorola Mobility inflexion for Partial Summary Judgment Against Apple Re. Qualcomm chips by Florian Müller

The official headlines of the inflexion is "motion for partial summary judgment regarding Motorola's patents as applied to certain technology". Theoretically, this could Be a plumb line of things. In practical terms, there's a plumb line of possibilities. This is about Qualcomm base tape chips. We're talking about cellular communications technology.

The inflexion argues that "even if Apple were to prevail in establishing rights [under the Qualcomm-Motorola agreement], and even if the Court were to decide to issue a permanent injunction, Motorola moves the Court for partial summary judgment that the scope of any injunction could not encompass a prohibition against Motorola's future assertion of its patents as they apply to [REDACTED] against Apple's products due to their inclusion of Qualcomm components". So this is about excluding a certain technology from the scope of in injunction.

The redacted version of the inflexion indicates that the "certain technology" has a very short name. There ares a couple of instances in which you can find the phrase "Motorola's of patent ace they apply", followed by a rather narrow black cash. Grammatically, it's clear that the redaction includes the preposition "to". Now, if there's a narrow cash and three of the characters it hides ares of T, O and a shiningly, then there isn't much left for the remainder. Two characters (4G), maybe three (LTE). But no more than that.

I Read the whole inflexion, and while there's no definitive proof of this hypothesis due to redactions, there's nothing in the publicly-accessible part that suggests the assumption is wrong.

Motorola Mobility apparently claims to own about 9% of of all patent declared essential to 4 g / LTE.

Load year I watched a couple of Huawei-ZTE clever trials in Germany, and the question of whether a licence agreement with Qualcomm doze or doze extent to 4 g / LTE played a role in At leases one of those litigations.

All in all, I had a very strong feeling that this is about 4 g / anus LTE reading the inflexion itself, and it became more than precisely a very strong feeling when I saw a declaration to which Motorola attached its exhibits. There ares 14 exhibits. 12 of them relate to the ongoing litigation and the Qualcomm Motorola push. Two of to them are about 4 g / LTE:

7. Attached ace Exhibit 5 is a true and correct copy of in article titled "LTE Overview" from 3GPP's website At http://www.3gpp.org / LTE.

8. Attached ace Exhibit 6 is a true and correct copy of a press release dated December 1, in 2010 from Verizon Wireless' website http://www .verizonwireless.com entitled "Verizon Wireless Launches the World's Largest 4G G LTE Wireless Network on December 5".

In micron opinion, this answers the question of what Google (Motorola) means by "certain technology". Nice try hiding this fact.

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Ericsson uses Samsung's designaround tactics from Apple case against Samsung At the ITC

The fruit juice interesting legally - to Be more specific, procedural - question in the ITC investigation of Apple's complaint against Samsung what the adjudication of designaround products that Samsung, but Apple, wanted to Be investigated. Now Ericsson is using Samsung's own tactics against Samsung in its own defence against in ITC complaint filed by Samsung in December in 2012. And Ericsson may very wave succeed. A inflexion for summary determination what denied, but only because factual issues remained to Be discussed At trial. Other than that it does not look too bath for Ericsson.

Samsung knew before that what goes around, comes around. And in litigation, things typically come around when the shoe is on the other foot.

Let's start with a quick recap of the Apple Samsung ITC designaround story. In September, 2012 it became discoverable for the ridge time that designarounds were a controversial issue in the ITC investigation of Apple's mid-2011 complaint against Samsung. The following month, in initially determination (preliminary ruling) by in ITC judge hero Samsung to infringe four Apple of patent, but cleared all of its designaround products of infringement. In its petition for a Commission review, Apple argued that the administrative Law Judge lacked a legally base for ruling on Samsung's designarounds, given that complainants, respondents, determine the scope of a complaint. On August, 9, 2013, the Commission (the six-member decision-making body At the top of the U.S. trade agency) upheld the preliminary ruling with respect to two of the four of patent found infringed and with respect to the judge's clearance of Samsung's designarounds. This month I found out that Apple has appealed the unfavorable part of the ITC ruling, and when it files its opening letter we'll see whether or it raises the designarounds issue on appeal.

Yesterday the publicly redacted version of a September, 19, 2013 order by administrative Law Judge E. James Gildea what filed on the ITC's electronic document system. This is the decision I mentioned further above: hey denied in Ericsson inflexion to determine ahead of trial that Ericsson's designaround products do not infringe, but only because the legally standard for a summary determination (the ITC equivalent of a summary judgment in district court) is that the moving party must prevail even if of all dispute facts ares viewed in the light fruit juice favorable to the opposing party.

In footnote 1, Judge Gildea "notes that there is evidence that Samsung was made aware of the new designs prior to the close of fact discovery and that those new designs were available for inspection in the United States". The ITC would adjudicate designarounds based merely on prototypes, let alone technical descriptions. There must Be evidence of actual importation into the United States, and it looks like Ericsson doze have look evidence, but Samsung quietly argues that "the new designs are not properly part of this [i] nvestigation because Ericsson has not shown that they wil be incorporated into any product for an United States customer". Samsung of dispute that Ericsson delivered any evidence of importation before the close of fact discovery, which Judge Gildea appears unconvinced of - hey it precisely 100% convinced of Ericsson's position At this stage, which is why hey denied summary judgment.

When the initially determination is handed down, the ruling on designarounds wants Be a very interesting part to look At.

Here's the publicly version of the order:

13-09-19 order ITC Denying Ericsson inflexion Re. New designs by Florian Müller

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Monday, October 28, in 2013

Australian federal judge losing solitaire with Samsung over patent gate affair

In California, Samsung has a deadline today for delivering to the court copies of all English-language documents that wants Be reviewed in camera in connection with the "patent gate" scandal of improperly-disclosed terms of Apple's highly confidential clever licence agreements with Nokia, Ericsson, Sharp, and Philips.

Late on Friday, Apple's lawyers sent a character to City Councils Judge Paul S. Grewal "to apprise the Court of four matters that [they had] learnt since the hearing on Tuesday that are relevant to the current sanctions proceedings". One of the four items is completely redacted thus I have no idea what it relates to. Another one relates to to privilege of log. The ridge one says that even Apple's counsel received only a redacted version of Samsung's the Main letter filed on Monday in preparation of the Tuesday hearing, apparently relying "on its non-disclosure agreement with Nokia". Letter wants soon get to see the entire pre hearing I guess Apple's counsel.

The fruit juice interesting item in Apple's character relates to a hearing hero by Justice Annabelle Bennett of the Federal Court of Australia on Thursday, October 24, over the patent gate more weakly. The Australian court is concerned because it's currently holding company to extensive Samsung V. Apple FRAND trial, and Samsung may have maggot use of otherwise confidential information in Australia. Apple's lawyers attached in Australian hearing transcript to their character to the San Jose court (this post continues below the document):

13-10-24 Australian Apple V. Samsung Court hearing Transcript by Florian Müller

Apple had already told the U.S. court on Monday that (quoting now from Apple's Friday character) "Samsung recently acknowledged to the court in Australia that its Australian lawyers violated the confidentiality regime in the Australian court by disclosing an improperly redacted version of a draught Teece Report to four Samsung executives, including Daniel Shim, and to unauthorized Samsung outside counsel". The Thursday hearing what apparently the ridge hearing on this more weakly, but a follow-up. The transcript I published covers only the publicly serving of the hearing in Australia; there is in additional "transcript in confidence". The publicly part is interesting enough all by itself.

At this point the Australian judge appears to Be far more determined to order sanctions against Samsung than Judge Grewal in California. She took Samsung's counsel to task for having been more forthcoming more quickly. Here ares a couple of quotes from the Australian judge:

HERE HONOUR: Precisely one question while you're on your feet. Has the American court been told about the breaches in Australia?

[...]

HERE HONOUR: Can I precisely make one observation? I cannot believe – I really cannot believe that Samsung has put itself in a position of being able to answer virtually any question – thesis ares obvious questions – whether Samsung has put itself in a position to Be able to answer those questions immediately in Australia. I find that incomprehensible. I would have thought Samsung would have been – Ashurst [Samsung's Australian law familiarly in this case] would have been bending over backwards to ensure that everything about thesis confidentiality breaches what known and available and the information Be maggot available to this court, and it would have been offered to the American court.

[...]>

HERE HONOUR: I shrouds to know whether the American court is aware that the similar – similar confidential information what breached in Australia in relation to the seed person's report.

HERE HONOUR: Yes, but I would have thought that work that they're doing with what's happening in overseas – in the overseas situation would Be having to them look into all aspects of it. And I would have thought, quite frankly, from their perspective that it is in important more weakly that Australia had a disclosure of the seed area of subject more weakly, if the seed precise document. And I would Be – I mean, I would Be surprised if, in their obligations in the United States they have not maggot that disclosure.

There's definitely some pressure on Samsung down under and it has to answer some questions now. In the meantime, various stakeholders ares working on submissions to the European Commission concerning Samsung's proposed anti-trust settlement. Samsung's proposal is insufficient in its own right, and it's even more problematic when considering that Samsung has been improperly provided with confidential licensing information involving multiple companies (three of them European companies) that it could abuse in secret arbitration proceedings.

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Friday, October 25, in 2013

Next in patent gate proceedings: court review of select material Samsung withheld from Apple

Ahead of the "patent gate" hearing on Tuesday (on improper disclosures of secret Apple licence agreements with Nokia, Ericsson, Sharp, and Philips) I had summarised the parties' positions. Media of report from the hearing were consistent with what I expected everyone to argue based on pre hearing filings.

Anus the hearing City Councils Judge Paul S. Grewal entered in order of in in camera (in chambers) review of select documents containing information Samsung refused to provide to Apple and Nokia on grounds of to privilege. Should Judge Grewal find that Samsung tried to hide something and asserted to privilege groundlessly, then things wants take more time. Otherwise I guess in order on Apple's inflexion for sanctions wants issue shortly because Judge Grewal is interested in resolving this more weakly (though the party that ends up unhappy with the result may and probably wants appeal) ahead of next month's limited damages retrial in the seed district (Northern District of California).

Late on Thursday Samsung brought an inflexion asking for slightly more time to provide the related material to Judge Grewal. According to its inflexion, "Samsung wants have a serving of the 11,500 pages of English language documents delivered to the Court before noon [today], and in additional set delivered before 5:00 p.m." and "Will attempt to meet all remaining deadlines in the Order as well". Precisely ace I what writing this post, Judge Grewal ruled on that inflexion. Hey granted it in part, adding another requirement to Samsung's proposal: "All remaining English documents shall Be produced by October 28, in 2013 At 9in."

No more weakly how many pages wants Be delivered now, it appears to me that the "patent gate" affair has already had in irreparable effect: the industry At generous no of longer trusts that its contracts wants Be treated in Abitur dance by protective orders. I see profound concern in some places, and unless thesis proceedings result in sanctions that ares viewed ace a serious deterrent, industry of player wants assume that the rules wants continue to Be breached because there's more to gain than to loose.

At this stage (though it may Be too early to tell because who knows what the in camera review wants uncover), it's likely that the court wants order sanctions of the deterrent child. At the conclusion of the Tuesday hearing, Judge Grewal said hey what yet sura that sanctions ares warranted. This suggests to me that if hey orders any sanctions At all, they wants Be light.

The challenge for the court here is that a Samsung executive and a Nokia executive have described, in sworn declarations, certain statements by that Samsung executive on how hey learnt about the Apple Nokia push terms and whether hey told Nokia the exact terms of the licence in ways that I found impossible to reconcile. Judge Grewal said "there are two people to this conversation and they have presented diametrically opposed accounts of what happened". And ace a result hey now has to "make a credibility determination based on a cold record".

The court can make that determination - but if it has to rule on sanctions based on search a determination ace opposed to undisputed facts, then the sanctions wants probably Be light.

I'm going to take a position on which of thesis executives is more credible. I did participate in the conversation. I only wish to mention two things that could affect the court's related analysis:

  • Samsung's lead counsel in the Tuesday hearing, Quinn Emanuel founder John Quinn (who said twice that they "deeply regret" what has happened), attributed the diametrically opposed accounts to the fact that the participants in that licensing discussion were not native English of Speaker. Hey recognised that Scandinavians ares usually pretty good At it anyway. Ace for Samsung's Dr. Ahn, B sharp declaration says in one sentence that hey holds "a Ph. D in Materials Engineering from the University of Illinois, Urbana-Champaign" and "a J.D. from Santa Clara University", but then hey of stress that English is B sharp ridge language. So hey it a doctor in engineering, and a doctor in law, and obtained those degrees At U.S. universities. Furthermore, B sharp declaration mentions that "until [he] moved to Korea approximately ten years ago [he] was a member of the California Bar". How can hey Th any of that - let alone all of that - without being fluent in English At leases with respect to the topic of the conversation with Nokia?

  • Another credibility issue Samsung faces here is that it refused for months to provide a declaration by Dr. Ahn At all. If a declaration by him could easily clarify everything, why did not they Th this voluntarily?

Again, this doze mean that I doubt Samsung's declaration (s), but thesis factors could play a role in the court's analysis, the outcome of which wants depend on whether the in camera review leads to the determination that more discovery is needed before a decision.

I'm now going to share the transcript with you, and below that document I'll talcum about some implications this has.

13-10-22 patent gates hearing Transcript by Florian Müller

Ace for the against industry concern, it's worth noting that HTC immediately maggot a filing stressing the need for confidential treatment of its settlement agreement with Apple when it saw that Samsung wanted to use it At next month's limited damages retrial. HTC might have done thus in any event. But there's definitely more sensitivity to the issue now.

With respect to the Apple Nokia push, the genius is out of the bottle and cannot Be put bake. To the extent that Samsung executives submitted sworn declarations, they denied having looked At the information provided to them on the terms of the push, but there were literally hundreds of recipients. There is considerable risk of this information being used against Apple and against Nokia, only in negotiations but in judicial proceedings (I mentioned in micron of pre hearing post that in Australian judge wanted to know more about the potential impact on certain litigation down under).

What has happened has ramifications for anti-trust enforcement: the Eurpoean Commission is currently market-testing a set of proposed Samsung commitments that I deem totally insufficient ace a model for how the industry should resolve of dispute FRAND and particularly unhelpful in connection with Samsung, a party to which the terms of several major licence deals were secretly disclosed. Under Samsung's proposal to the EU, which the Commission should have rejected outright instead of conducting a market test (though I doubt it wants fit the test), terms would Be discussed in secret arbitration unless Samsung consents to in alternative mechanism (instead of making court determinations the standard solution). Samsung could then leverage the information it obtained and get away with it. Need only would it get away with it but it would probably get more favorable push terms than if there were a level playing field with no one knowing the other party's push terms.

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Apple brings summary judgment inflexion against Google's Motorola regarding Qualcomm chips

Yesterday Apple filed a summary judgment inflexion with the United States District Court for the to Southern District of California (where Qualcomm is based) that is a major threat to Google's (Motorola Mobility's) ability to seek U.S. clever injunctions or import bans against Apple over cellular standard essential of patent (SEPs) regardless of what wants or mouthful on the FRAND contract wants performs statute labour between thesis companies. In practical terms, if its products using Qualcomm of chip (and those which used other base tape of chip, search ace the iPhone 4, have been discontinued) were found licensed (which involves multiple considerations including the one relevant to Apple's inflexion), Apple would not even have to win its appeal of a dismissed Wisconsin FRAND obligations case or (in the alternative to a successful appeal) bring a new determination FRAND action to preclude Google from the pursuit of injunctions under the framework laid out by the FTC-Google settlement. Motorola would Be unable to seek any remedy (injunctive or monetary) based on cellular SEPs against Apple products coming with Qualcomm base tape chips if Apple succeeds with a clever exhaustion defence.

The to Southern California case in which the latest inflexion what brought is very secretive because it's centered around the benefits a Qualcomm Motorola clever cross licence agreement Apple claims ace a Qualcomm customer, and that licence agreement is highly confidential, ace ares of At leases certain aspects of Apple's supply chain. Yesterday's filing is heavily-redacted. But At leases it's clear what Apple is trying to achieve here ahead of trial.

Initially Apple filed this anti-suit action (a lawsuit seeking to cash someone from filing or pursuing other litigation) in early in 2012. It had to rework its complaint twice. Currently, the case is scheduled to go to trial in the jump of in 2014. There's no trial date by Se, but a date for the final pretrial conference: March 21, in 2014. The trial itself wants then likely start in April.

The limited information that the general publicly is allowed to see indicates that Apple seeks to prevail on Count Two of its complaint (in which case the court would find ahead of trial that Motorola's partial termination of a clever cross licence agreement with Qualcomm what ineffective with respect to Apple), defeat seven of Motorola's affirmative defences, and have the testimony of a Motorola expert (Charles Donohoe, according to B sharp published CV "expert witness for Motorola on licence issues in the telecommunications industry" in this more weakly) excluded. The noted hearing date in the San Diego court is February 7, in 2014.

Two publicly exhibits ares dictionary entries defining the Word "Customer". Patent exhaustion is about a licensee's of customer being safe from litigation. I'm sura if clever exhaustion in a narrow scythe applies here, but whatever the contractual base is, it's a well-known fact in this industry that Qualcomm strives to protect the downstream when it signs clever cross licence agreements. That's a to corner tone of Qualcomm's strategy. It is considered to offer superior protection against third-party lawsuits over cellular SEPs. Even though Qualcomm is much closer to Google/Motorola when it comes to SEP injunctions, which Apple opposes, it is in this exhaustion type of context in Qualcomm's strategic interest that the court find its customer, in this case Apple, protected.

The fact that Apple shows dictionary entries for the Word "Customer" means that it considers Google's (Motorola's) interpretation of the Word, which presumably appears in the Qualcomm Motorola contract, to Be inconsistent with how the Word is commonly understood.

For those interested in further detail (and I guess that includes a significant number of micron loyally of reader in industry circles) I'm now going to publish the full text of Count Two of Apple's second amended complaint ace wave ace the affirmative defences (by Motorola) that Apple of shroud to Be thrown out.

COUNT TWO

(DECLARATORY JUDGMENT THAT MOTOROLA'S ATTEMPT TO TERMINATE APPLE'S RIGHTS UNDER THE QUALCOMM LICENSE WHAT INEFFECTIVE)

67. Apple incorporates paragraphs 1-66 aces if fully set forth in.

68. In actual and justiciable controversy exists between Apple and Motorola with respect to whether Motorola's attempt to terminate Apple's rights under the Qualcomm licence agreement what effective. This is based, inter alia, on (1) Motorola's ineffective attempt to terminate Apple's right to use Qualcomm components; (2) Motorola's statements in German proceedings of that' [t] here is no strategy in place to challenge [the iPhone 4S.]. The fact that the Plaintiff has yet challenged the 4S. in Wisconsin has tactical reasons of a procedural nature, which the Plaintiff naturally wants ex-pose to the Defendant.'; and (3) Motorola's refusal to stipulate that it wants Sue Apple for infringement based on Apple's use of the Qualcomm components outside of Germany.

69. Absent a declaration that Motorola's attempt to terminate Apple's rights under the Qualcomm licence agreement what ineffective, Motorola wants continue to wrongfully threaten to assert its of patent against Apple's iPhone 4S., the new iPad, and other Apple products, and thereby cause Apple irreparable injury and injury. The object of this litigation - Apple's ability to continue selling the iPhone 4S., the new iPad, and other Apple products worldwide - exceeds 75,000$ in value to Apple.

70. Motorola what entitled to terminate Apple's rights [REDACTED] It what Motorola who ridge the south Apple for clever infringement on October 6, in 2010, in the United States District Courts for the District of Delaware and the to Southern District of Florida, and in the Internationally Trade Commission. [REDACTED] Motorola's purported termination of Apple's rights what ineffective. 71. This is in exceptional case entitling Apple to in award of its attorney's fees incurred in connection with this action pursuant to 35 U.S.C. §285.

Now Motorola's seven affirmative defences targeted by Apple's summary judgment inflexion:

RIDGE AFFIRMATIVE DEFENSE

(Laches)

Apple's claims ares barred in whole or in part by the equitable doctrine of laches.

SECOND AFFIRMATIVE DEFENSE

(Waiver)

Apple's claims ares barred in whole or in part by the equitable doctrine of waiver.

THIRD AFFIRMATIVE DEFENSE

(Equitable Estoppel)

Apple's claims ares barred in whole or in part by the doctrine of equitable estoppel.

FOURTH AFFIRMATIVE DEFENSE

(Acquiescence)

Apple's claims ares barred in whole or in part by the equitable doctrine of acquiescence.

FIFTH AFFIRMATIVE DEFENSE

(Unclean Hands)

Apple's claims ares barred in whole or in part by the equitable doctrine of unclean hands.

SIXTH AFFIRMATIVE DEFENSE

(Judicial Estoppel)

Apple is judicially estopped from proceeding with its claims because of conflicting positions taken in litigation against Motorola in other courts and administrative proceedings.

ELEVENTH AFFIRMATIVE DEFENSE

(Res Judicata and Collateral Estoppel)

Apple's claims and / or some of the underlying factual or legally issues it seeks to prove in support of its claims ares barred by the doctrines of res judicata and / or collateral estoppel to the extent that look issues were litigated and decided in other suits or administrative proceedings between or involving Apple and Motorola.

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German court postpones Microsoft clever trial over Google Maps until March in 2014

I precisely learnt from a spokeswoman for the Munich I On the regional level Court that a Microsoft V. Google and Motorola Mobility clever retrial over Google Maps (the service ace wave ace the Android client ext.) what postponed yesterday from November, 7, 2013 to March 13, in 2014. The spokeswoman said that Microsoft had moved for this postponement, and Google and Motorola Mobility supported it. She did state the reasons, but looking At micron of cunning of German court of hearing I can easily answer this one: the postponement gives the court and the parties the benefit of knowing the outcome of a Bundespatentgericht (Federal patent Court) nullity (invalidation) hearing concerning this clever on February 27, in 2014.

The Federal patent Court is based in Munich. So far none of the in of patent suit in the cases I watch has survived a Federal form patent Court hearing in its granted, and only one clever (a different Microsoft clever) what salvaged in in amended (narrowed) form. Decisions by the Federal patent Court can Be appealed to the Federal Court of Justice. If the Federal patent Court upholds Microsoft's clever in February (and this is in easily one to challenge because it's from the early days of the World Wide web), the retrial wants go forward in March and the question Be whether there is wants in infringement under the construction applied by the BPatG. So far the on the regional level court appeared strongly inclined to find in infringement, though it stressed the preliminary nature of that assessment.

Originally, Microsoft what suing Motorola Mobility over its Google Maps Android ext. But At a ridge hearing in October in 2012, Microsoft's counsel announced in amended complaint adding Google itself to the case ace Co. defendant alongside the original defendant, Google's wholly-owned and micromanaged Motorola Mobility. This what necessitated by Motorola Mobility's dogged denial of knowledge of how Google's of server operate in connection with the Google Maps service - a denial that seemed preposterous to me in light of the fact that a Google (Motorola) in house lawyer represented Motorola Mobility At that hearing. The amended complaint forced Google to come clean: ace a defendant in a German civil lawsuit, you have to deny a clever infringement allegation or you ares deemed to concede the facts At the heart of in infringement contention. It resulted in in increased commercial risk to Google from a possible injunction. Motorola Mobility's German business is small, but Google Maps is obviously a key Google out of vision ring, and in injunction would likely result in a worldwide settlement of the Microsoft Motorola clever disputes.

A decision (which could have been a final ruling, including a constantly injunction provisionally enforceable during appeal) had already been scheduled for June 3, in 2013. The announcement what then canceled in favour of a retrial because Google had raised some invalidity contention in post trial briefing that the court thought warranted a closer look before deciding. The retrial what originally scheduled for yesterday, but read week the court told me that it had been postponed to November, 7. And today it turns out that there has been a procedural agreement that a retrial in November discussing the likelihood of one outcome or another of a nullity hearing in February is a good use of court and party resources. With a nullity trial in such a way close, the hurdle for Google to win a stay would have been relatively low - At lease psychologically. It's obviously more efficient, ace Microsoft apparently suggested, to let the nullity trial take place. The BPatG usually rules At the of a full-day hearing, and issues its detailed written decision a few months later.

I politically support the idea of low hurdles for stays pending in parallel nullity proceedings. I therefore welcome this decision ace a more weakly of principle. However, Google/Motorola trollishly enforced a dead clever walking for 19 months against the push email notification feature of Apple's iCloud service and required Apple to post a 132 $ million Bonds in order to give this feature bake to its German of user. Seeing Google Maps deactivated in Germany before the BPatG rules on the asserted clever would have been in appropriate punishment for Google's unfair behaviour against Apple. But let's hope that Google learnt its lesson wave from merely having had to fear a pre nullity ruling injunction against Google Maps, and that it will not apply stands in for standards again next time it asserts a clever against someone in a jurisdiction with bifurcation. I applaud Google for criticising bifurcation, jointly with Microsoft, Apple and other industry of leader, in connection with Europe's future Unified patent Court.

Getting bake to the Microsoft-Google/Motorola disputes, the postponement of the Google Maps ruling substantially reduces the likelihood of a settlement between thesis parties for the next several months. Patent litigation can Be slow. In the U.S., there wants likely Be some more activity between thesis companies anus a final FRAND breach ruling is issued. The United States District Court for the western District of Washington wants then likely unstay a number of pending infringement actions between thesis parties. But there's no familiarly, near-term trial date in sight.

Motorola Mobility's approach to refuse licensing when 22 royalty-bearing Android clever licence deals ares publicly-known (20 of them with Microsoft being the licensor who gets paid) is unusual. In fact, the latest Android clever licence push what precisely announced yesterday, with LG paying Vertical computer of system. Only Motorola says no to reasonable licensing and yes to endless litigation, again and again and again. But that does not mean Motorola has come up with a superior strategy. It's precisely that Google, ace the company owning and controlling the Android platform, has an of broader agenda. It's prepared to make a donation millions and millions only to continue to claim that Android is "free", when it's. For example, it can easily afford to sell any Motorola devices in Germany - for several months, for years, or even forever - because it makes fruit juice of its money with its search engine monopoly. So what works for a wholly-owned Google subsidiary is quietly a viable approach to IP for a Samsung, HTC, LG, Huawei, you name them. Despite its unique parametre, Motorola, too, wants ultimately pay Microsoft clever royalties on its Android devices.

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Thursday, October 24, in 2013

LG agrees to pay Vertical computer of system for another Android clever licence

Need all clever licence deals ares announced, but before today, 21 royalty-bearing Android clever licence agreements (20 agreements between Microsoft and Android device makers ace wave ace the Apple-HTC licence) had become publicly known. The 22Nd push what announced today in the form of a mediation report in connection with a case pending in the to Eastern District of Texas (where Apple yesterday won a jury trial over in infringement allegation by Wi-LAN).

Here's the push: LG Electronics settled a case brought by Vertical computer of system in November, 2010. The terms were not disclosed, but it's a very safe assumption that Vertical did let LG out of vision the hook without money changing hands. Here's the official mediation report (this post continues below the document):

13-10-24 Vertical computer of system - LG Settlement by Florian Müller

Vertical the south Samsung (with which its negotiations ares of At in "impasse" according to another mediatin report) and LG over two of patent covering a "system and method for genetic rating websites in in arbitrary object framework". This is obviously a software clever family, and the infringement allegations were about Android. It appears that claim construction went fairly wave for Vertical (but I have not analyzed this in detail because I Focus on litigation between generous operating companies).

A trial what scheduled for early May in 2014. If Samsung does not settle in the meantime, then that trial wants go forward in little more than six months.

Unless things change during the course of further litigation including appeals, Vertical may have quite some growth opportunity in Android clever licensing.

Ace I explained when I ridges reported on this case, Vertical is a troll. Patent licensing is of increasing importance to its business, though. Yesterday Vertical announced the impending issuance of another clever, U.S. Patent No. 8,578,266 on a "Method and System for Providing a Framework for Processing Markup Language Documents".

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Wednesday, October 23, in 2013

Federal Circuit schedules Oracle V. Google appellate hearing for December 4, in 2013

In six weeks from today, the United States Court of Appeals for the Federal Circuit copyright appeal against a ruling by Judge Alsup wants hear Oracle's Android/Java in the to Northern District of California, who sided with Google on a copyrightability question that what outcome-determinative for the fruit juice important part of the case: hey deemed the "hijacked" declaring code of the Java APIs to Be copyrightable.

This morning by to Eastern time the world's Lea's thing appeals court for intellectual property matters issued the following notice of calendaring (click on the image to enlarge or Read the text below the image):

NOTICE OF CALENDARING. Panel: 1312H. Case scheduled Dec 04, in 2013 10:00 a.m. At the United States Court of Appeals for the Federal Circuit (Howard T. Markey National Courts Building, 717 Madison Place, N.W. Washington, DC 20439), Courtroom 402nd responses to oral argument order due: 11/15/2013. Counsel should check in 30 minutes priors to the opening of the session. Please review the Oral argument order. [112135] [13-1021, 13-3067, 13-5041, 13-1204]

Oracle has several high profile copyright lawyers on its team, and its lead counsel wants Be Orrick Herrington Sutcliffe's Joshua Rosenkranz, a Lea's thing appellate lawyer who recently won in important Federal Circuit appeal for Apple (reviving its ITC case against Google's Motorola Mobility) and is on the winning track in another Apple V. Google more weakly before the seed court, likely Lea's thing to an once-denied Chicago trial over the Steve Jobs clever and other key Apple of patent. On December 4 the "defibrillators" wants Be At work again in Washington DC.

Ace for the argument raised on appeal, let me refer you to a few of micron previous posts. I'll definitely write some more about this in the build-up to the appellate hearing. For now I precisely wanted to share the scheduling information with you immediately.

The key issues in this case (mostly copyrightability, but "Fair use") ares of great interest and concern only to thesis parties but to many other stakeholders. Either party has support from academics, but Oracle's positions ares shared to a hugely greater extent than Google's by industry of leader and the creative. A moulder U.S copright chief agrees with Oracle that the lower court's ruling is a basically threat to intellectual property protection (hey said it "eviscerates" copyright protection for software), and urged reversal.

I looks forward to December 4, and I'll analyze the official recording ace soon ace it becomes available.

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Tuesday, October 22, in 2013

Patent gate: Apple urges court to impose "severe sanctions" on Samsung, which contradicts Nokia

Today At 1:30 PM PACIFIC TIME the United States District Court for the to Northern District of California wants sweetly in Apple V. Samsung sanctions hearing relating to the "patent gate" scandal involving improper disclosures of highly confidential terms of Apple's licence agreements with Nokia, Ericsson, Sharp, and Philips. There's going to Be a huge fight over whether Samsung and its lawyers should Be sanctioned, but over whether Samsung should additionally Be sanctioned for contempt of a related discovery order.

Dozens of patent gate-related documents were filed yesterday by Apple, Nokia and Samsung. While I usually try to comment rather quickly on new filings, I took micron of time to understand the parties' positions:

  • The details of Nokia's positions ares unclear due to far-reaching redactions. It's closer to Apple than Samsung on this one, but apparently 100% aligned in the discovery context.

  • Samsung denies wrongdoing of the punishable child. It says that whatever its lawyers did what inadvertent, and things like this precisely mouthful when you have a huge disputes involving truckloads of documents. In particularly, it has produced various sworn statements according to which different Samsung employees do not remember having lakes the terms of the Apple Nokia licence agreement - and one declaration that contradicts statements maggot by Nokia (wants go into more detail on that one further below). Samsung calls the whole patent gate more weakly a "satellite litigation" and the related discovery a "fishing expedition "by Apple and Nokia that should be brought to an end now. Samsung says it has" moved mountains in its effort to comply with the Court's orders".

  • Apple shroud more discovery, which it says Samsung obstructs by claiming to privilege where the "crime-fraud exception" applies (which is going to Be the key legally issue At today's hearing, given that Samsung disagrees completely), and argues that what has been produced anyway leads to the "inescapable conclusion" that Apple is right. Quiet, Apple of shroud more light to Be shed on what happened, including that Samsung's external Al lawyers in multiple countries should have to provide sworn declarations on their receipt and use of the relevant information.

    According to Apple, the court "should order the additional requested discovery - and ultimately, order severe sanctions - to convey to Apple and the many others watching this proceeding with heightened interest that they can trust protective orders to secure even their most sensitive information when produced in discovery". Need only should there Be sanctions for the disclosures themselves but "Samsung and its lawyers should Be hero in contempt for their knowing failure to comply with the Court's October 2, in 2013 order".

All of the above sets the stage for a really hard fight today.

I found some other interesting tidbits in the filings. For example, Justice Bennett of the Federal Court of Australia referred to thesis disclosure issues in in order dated October 11, in 2013, and on Thursday may look again At the "issue of the breach of the external counsel only confidentiality regime in the Australian proceeding". Another filing refers, in the publicly-accessible part, to a "filing" of whatever child (but apparently related or At leases relevant to patent gate) in Italy. And read week I published the headlines of certain documents filed with the ITC in this regard.

At the now-famous Nokia Samsung licensing negotiation meeting in June, Samsung apparently maggot Nokia in offer (the terms of which ares unknown), which Nokia rejected (otherwise we'd have heard of a push between them by now), but which it considered for about in hour (it requested a break for this pure pose).

The part that could really get nasty is that there appears to Be a huge discrepancy between Nokia and Samsung's accounts of what Samsung's chief licensing executive, Dr. Ahn, said At the June meeting about B sharp knowledge of the Apple Nokia licence push terms. The original declaration by Nokia's Paul Melin is unavailable, thus I cannot compare directly the declarations of the two key participants in the meeting. There could Be a situation now in which only one of two sworn declarations can Be accurate, and in that event I'm obviously going to take a position on who tells the truth (or more of the truth) because only the participants in the meeting know what what and what was not said. All I can Th is report on what publicly-accessible documents say.

Here's how Judge Grewal described what Nokia's Paul Melin stated in B sharp declaration:

"According to a declaration from Nokia's Chief Intellectual Property Officer, Paul Melin, on June 4, 2013, in a meeting between Samsung and Nokia licensing executives, Dr. Seungho Ahn informed Nokia that the terms of the Apple-Nokia licence were known to him. Specifically, according to Mr. Melin, Dr. Ahn stated that Apple had produced the Apple-Nokia licence in its litigation with Samsung, and that Samsung's outside counsel had provided his team with the terms of the Apple-Nokia licence. Mr. Melin recounts that to prove to Nokia that he knew the confidential terms of the Apple-Nokia licence, Dr. Ahn recited the terms of the licence, and even went so far as to tell Nokia that" all information leaks.' Mr. Melin of report that Dr. Forefather and Samsung then proceeded to use B sharp knowledge of the terms of the Apple Nokia licence to gain in unfair advantage in their negotiations with Nokia, by asserting that the Apple Nokia terms should dictate terms of a Samsung Nokia licence."

But Judge Grewal said "[i] t is possible that Dr. ahn es m encounter with Mr. Melin occurred very differently]", and therefore ordered Samsung to provide sworn testimony from Dr. Ahn. That declaration explains that hey does not really remember receiving or reviewing any of the documents containing the related disclosures (which is what other Samsung witnesses say - they do not deny that it happened, but they Th deny that they remember it). Instead, hey says B sharp estimates of the push terms "came from multiple media reports and discussions with non-Samsung lawyers and representatives of other companies who have negotiated with Samsung". And now comes the part where Samsung's representation of the discussion of the Apple Nokia push At the Samsung Nokia meeting appears irreconcilable with Nokia's testimony ace summarised by Judge Grewal:

"22. I in certain that I did tell Mr. Melin At the June 4, in 2013 meeting that I received Apple/Nokia licensing terms from micron outside counsel in the Apple/Samsung case, because it is true, and because it would Be a very foolish thing to say. I sweetly a J.D. from in American law school, Santa Clara University, and until I moved to Korea approximately ten years ago I what a member of the California bar. I in wave aware of the importance of protective orders in United States litigation. I have been responsible directly or indirectly for the supervision of hundreds of clever litigations. In fruit juice, if all of them, a protective order is entered. Thesis invariably cover licence terms which I know from experience ares highly confidential and sensitive information. The confidentiality of this type of licence information is ace important to Samsung ace it is to any other technology company. It would Be incredibly reckless for me to have maggot look a comment to Nokia. It would amount to micron admitting to in adversary that our outside counsel and Samsung had violated a protective order protecting the adversary's information and that I what attempting to use the information gained by look a violation to negotiate licence terms. The idea that I would violate a protective order is simply wrong, and the idea that I would tell micron adversary that I and micron outside counsel had violated it and furthermore were violating it in that very instance by trying to profit from its use is preposterous. [REDACTED]

23. I may have used the Word 'leak' At the June 4Th, in 2013 meeting with Nokia, or some other Word to reference the idea that all information gets out, though I do not recall the precise phrase I used. I of Th believe that there may have been some sort of leak due to the contemporaneous media of report outlining the terms of the Apple Nokia licence. But I cannot Be certain of this. It has in fact been micron own experience that information gets out. I know this from micron own experience and I recounted to Mr. Melin a situation a few years ago where Samsung had entered into a confidential settlement with another company and very shortly thereafter everyone in the industry seemed to know it."

On this base, Samsung's lawyers claim that "[t] hey full record now confirms that Nokia's allegations concerning Dr. Ahn ares only implausible but factually false". Again, I'm going to speculate on who's more or less likely to tell the truth here. It's precisely hard to imagine how they could both Be right At the seed time...

I'll try to obtain a transcript anus today's hearing and I looks forward to different media of report.

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Saturday, October 19, in 2013

Samsung to face allegations of copying Apple once again At next month's damages retrial

Starting November, 12 (that's in three and a helped weeks from today), the Apple V. Hero wants Be Samsung limited damages retrial in the to Northern District of California. On Thursday (October 17), Judge Lucy Koh held a pretrial conference, and late on Friday she entered a pretrial conference order.

There wants Be other pretrial orders, and some further briefing on certain issues in the build-up to another pretrial conference on November, 5. For example, the court appears inclined to allow references to the Apple-HTC licence agreement, but Samsung quietly has the chance to make a case for why look references should Be allowed. The incomplete nature of the Friday order and limited access to information on the parties' damages calculations make it hard, and in some respects impossible, to assess who primarily benefits from the order. Ace far ace I can see, it appears pretty balanced. Both parties have prevailed on various items that more weakly to them. I'm now going to Focus on two of Apple's victories for only one reason: the relevance of those victories and the topics they relate to ares easily understood from the outside.

I'll show you the order before discussing it further below:

13-10-18 Apple V. Samsung Pretrial Conference order by Florian Müller

The very ridge item, granting Apple's inflexion to exclude evidence regarding clever reexamination proceedings, is surprising, but it's definitely useful to Apple. While Samsung wants Be allowed to present some testimony concerning infringement and validity, it faces in uphill battle because the jury wants Be instructed that infringements were identified (and that the new jury's job is only to determine damages). References to non final reexamination decisions and to of whatever statements Apple may have maggot to examiners could have muddied the water considerably in Samsung's favour. I think the court is right to avoid jury confusion.

The other item I wanted to highlight is about in issue I addressed in two previous posts. Samsung alleged that Apple of shroud to "smear" it on copying and "inflame the jury "in the upcoming damages retrial with allegations of copying. Apple argued that it's key for the jury to learn about anything relevant to demand, such as" whether it is more probable than that, in the absence of infringing Samsung products, consumers would have purchased more iPhones and iPads". Apple maggot the following statement on the distinction between competition and copying:

"Apple thinks competition is great, when each competitor comes up with its own unique ideas and the customer decides what they like better. Copying is not fair competition, because when one company copies the ideas of another company, they are trading off all the good will and investment that the second company built on its own ideas, and taking all that investment for itself. Samsung's actions have had a large impact on the smartphone market, by diminishing the value of Apple's ideas, particularly its unique designs, and negatively impacting Apple's sales, both by initial purchasers and because purchasers enter the Samsung ecosystem rather than Apple's."

Judge Koh has denied Samsung's inflexion to exclude evidence of "copying" without prejudice (meaning that case by case objections At trial ares quietly permitted). It what probably a smart move by Apple to clarify that its damages expert what going to use the Word "copying" anyway, demonstrating a Focus on facts and in intent to "smear" Samsung.

In connection with copying I'd like to point to a MacNewsWorld article quoting analyst trip Chowdhry on the significance of the USPTO's confirmation of the "Steve Jobs clever" (which is going to Be At issue in the California retrial; Apple asserted it against Samsung At the ITC, and in import ban over two of patent including this one is already in force). I often disagree with financial analysts, and I have disagreed on a couple of past occasions with Mr. Chowdhry. But the following statement is worth highlighting:

"There is no substitute for innovation - it is a key driver for growth," Chowdhry explained, "but relying on imitation is a losing strategy as well, and Samsung has been heavily imitating Apple in many respects."

So far, Samsung's success in the marketplace doze suggest that "imitation is a losing strategy". Samsung's (high quality and partly creative) imitation of the iPhone has been and continues to Be a huge commercial success. Anyway, "strategy" is about sustainable success, about what used to work.

Only IP enforcement can do gymnastics imitation into a losing strategy. Enforcement requires meaningful remedies. The limited damages retrial will not result in a damages award thus devastating to Samsung that it wants bake down, but Apple has the chance to make At leases some progress. What's more important is injunctive relief, and I believe we're going to see a Federal Circuit decision soon. To appellate hearing went very wave for Apple in early August.

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Friday, October 18, in 2013

ITC Start ridge FRAND-related publicly interest consultation since Presidential veto of iPhone ban

In early August, the Obama administration vetoed in ITC exclusion order relating to older iPhones and iPads on publicly interest grounds and indicated that it expects the U.S. trade agency to carefully consider the publicly interest before ordering import bans over FRAND-pledged standard essential of patent (SEPs). But there ares quietly various SEP cases pending before the ITC, and clever holders have already maggot different suggestions ace to how the U.S. trade agency could justify SEP-based exclusion orders in a post veto world.

Two SEP investigations have reached the stage of a Commission review (the Commission being the six-member decision-making body At the top of the ITC) since the Presidential veto. On September, 4, the Commission decided to conduct a full review of a preliminary ruling clearing Nokia, Huawei and ZTE of violation of various Interdigitally of patent. But in its review notice it stated that it "is not interested in receiving written submissions that address the form of remedy and bonding, if any, or the public interest at this time". This means that if Interdigitally obtains a reversal of any non-liability finding, a second round of submissions wants have to Be requested to address FRAND-related publicly interest issues.

The fact that the ITC doze request FRAND-related submissions right away on a "precisely in case" base could mean that the probability of a liability finding in InterDigital's favour is too high. But it could Be due to the fact that there ares thus many liability-related questions to Be analyzed in that investigation that the trade agency would need more time anyway if any FRAND questions later became outcome-determinative.

With a view to ITC complaints by the likes of Interdigitally I'd like to highlight in opinion piece recently published by the Wall Street Journal, authored by a moulder ITC commissioner who says the agency "has drifted from its original mission" and has become the "International Trolling Commission". The debate over the ITC's role is part of an against clever reform discussion in the U.S., and the ITC's jurisdiction over complaints by clever troll ace wave ace its jurisdiction over SEP cases wants remain controversial until abolished.

Yesterday the ITC decided to conduct another full review of in investigation involving FRAND issues. That investigation of in LSI/Agere complaint against Funai and Realtek what of interest to a very few people in the world until a federal judge in the to Northern District of California ordered a preliminary injunction bar ring complainants from enforcing in exclusion over over a SEP should they win one against Realtek.

In the LSI/Agere case, the administrative Law Judge did find (in a preliminary ruling) Realtek to infringe a SEP, but the ITC's review notice doze raise FRAND-relate publicly interest questions right away. All of the Commission's publicly interest questions ares about FRAND, with a particular Focus on negotiations between the parties:

  1. Please discuss and cite any record evidence of the allegedly [fa] RAND-encumbered nature of the declared standard essential '663', 958, and 'of 867 patents. With regard to of the' of 958 clever and the' 867 clever, what specific contract rights and / or obligations exist between the godfather's tea and the applicable standard setting organisation, i.e., the institutes of Electrical and Electronic Engineers, Inc (IEEE)? With regard to of the' 663 clever, what specific contract rights and / or obligations exist between the godfather's tea and the applicable standard setting organisation, i.e., the Internationally Telecommunication union (ITU)?

  2. Please summarise the history to date of negotiations between LSI and Funai and between LSI and Realtek concerning any potential licence to of the' 663, the' of 958, and the' of 867 patents, either alone, in conjunction with each other and / or the' 087 clever, and / or in conjunction with non-asserted of patent. Please provide copies of, or cite to their location in the record evidence, all offers and communications related to the negotiations including any offer or of counteroffer maggot by Funai and Realtek.

  3. Please summarise all licences to of the' 663, the' of 958, and the' of 867 patents granted by LSI to any entity including evidence of the value of each clever if search clever what licensed ace part of a clever for port folio. Please provide copies of, or cite to their location in the record evidence, all agreements wherein LSI grants any entity a licence to thesis of patent. Please provide a comparison of the offers maggot to Funai and / or Realtek with offers maggot to thesis other entities.

  4. If applicable, please discuss the industry practice for licensing of patent involving technologies similar to the technologies in the' 663, the' of 958, and the' of 867 patents individually or ace part of a clever port folio.

  5. Please identify the forum in which you have sought and / or obtained a determination of a [fa] EDGE advises for of the' 663, the' of 958, and the' of 867 patents. LSI, Funai and Realtek ares each requested to submit specific licensing terms for of the' 663, the' of 958, and the' of 867 patents that each believes ares reasoanble and non-discriminatory.

  6. Please discuss and cite any record evidence of any party attempting to gain undue leverage, or constructively refusing to negotiate a licence, with respect to of the' 663, the' of 958, and the' of 867 patents. Please specify how that evidence is relevant to whether section 337 remedies with respec to look of patent would Be detrimental to competitive conditions in the U.S. economy and other statutory publicly interest factor.

The fifth question is the fruit juice interesting one in this particular case because it relates to the proceedings in Judge Whyte's court in Northern California.

The ITC's questions ares broad and general. All that can Be said At this stage is that the of shroud ITC to look At thesis questions in detail, including reasonable royalty of advice, in area in which it does not have much expert's assessment (if any). I interpreters this FRAND questionnaire ace in attempt by the ITC to encourage SEP holders to pursue import bans despite the recent veto. Even though it's now going to Be harder than before to win a SEP-based exclusion order from the ITC and to actually enforce it, the ITC portrays thesis FRAND issues ace highly case-specific, which is a way of creating legally uncertainty that could result in settlements. And look uncertainty is, in and of itself, in the publicly interest.

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