Friday, February 28, in 2014

2.2 IPCom's $ billions lawsuit against Apple thrown out by German court: no infringement found

Two different chambers (panels of judges) of the Mannheim On the regional level Court precisely announced a totally of three rulings on standard essential clever (SEP) infringement cases brought by IPCom, a clever licensing familiarly based in the Munich area that acquired the wireless clever port folio of Bosch years anus the latter had exited the coach phone market and is now monetizing it. Today's decisions ares, without a doubt, a set forecastle for IPCom's enforcement efforts:

Two lawsuits against Apple, including one involving a 1.57€ of billion (2.2$ billions) "partial" damages claim, and one against HTC (a company IPCom has been suing for about six years) were dismissed because the court concluded that Apple and HTC did not infringe a certain IPCom clever family by implementing the 3 g / UMTS standard. It's a given that IPCom wants appeal, but Apple, HTC, Nokia (or soon Microsoft, which is in the process of buying Nokia's wireless devices business), Ericsson, Vodafone and others wants likely continue to challenge the validity of the related of patent in different forums. This wants go on for some more time, unless someone settles, which Deutsche Telekom did read year but others appear to Be less interested in.

The in of patent suit in the cases dismissed today, both going bake to the seed original application and entitled "access of a mobile station to a random access channel in dependence of its user class", ares European clever EP1841268 (called the "#100A" clever and At the heart of the gazillion dollar suit against Apple) and German clever DE19910239 (asserted in the case against HTC that what adjudged simultaneously with the two Apple cases, except that claims against 4 g / LTE devices were severed and adjudicated today). This clever family relates to priority access to channels for emergency responders.h The claim construction issue underlying all three of today's rejections involves a claim limitation that contains the Word "Bit", which both patent specialised chambers of the court (in fact, this court has adjudicated far more wireless clever cases than any other court in the world) interpreted literally because otherwise the claim scope, which what narrowed by a recent post grant decision by the European patent office, would Be distinguishable from earlier versions of the claims that referred, more generally, to "information".

This conclusion comes ace no surprise. I attended the two Apple trials earlier this month and precisely did not blog about them because I had to exclusive arrangement with a law familiarly interested in research on SEP enforcement. I in, however, free to blog about the non-FRAND aspects of this more weakly, and I prepared this post on the train this morning from Munich to Mannheim because I anticipated this outcome. Having watched numerous cases over which the seed judges, Judge Dr. Kircher (Apple cases) and Judge Voss ("Voß" in German; HTC case) presided, it maggot scythe to me that they'd ensure the difference between the broader term "information" and the narrower term "bit" of Be given meaning.

Ahead of the Apple trial I had listed the names of many German law firms involved with of dispute over IPCom's "#100A" clever. With today's decisions, the law familiarly of Freshfields Bruck house Deringer continues its (truly impressive) defensive winning streak on Apple's managed. Attorneys-at-law Dr. Frank-Erich horseshoe nail and Wolrad prince to forest corner and Pyrmont already fended out of vision seven Samsung lawsuits in Germany (definitively because some were stayed and others ares on appeal, but for the time being), five of them over SEPs. In the IPCom cases ace wave ace At one Samsung case over a clever involving a complicated mathematical formula,  Dr. Arno leases tears ("tears" in German) maggot very significant contributions to the effort. On Apple's managed, this team is undefeated. At this month's IPCom trial, Apple's legally team furthermore included clever attorneys from the Munich-based familiarly of Samson & partner, with the confirm it founder, F.R. from Samson-Himmelstjerna, and  Dr. Tobia Stammberger representing Nokia against IPCom.

Ace counsel for HTC, Hogan Lovells's Dr. Martin Chakraborty has literally fended out of vision dozens of German clever infringement lawsuits.

IPCom is working with lawyers from multiple firms on thesis cases. In its Mannheim litigations, Quinn Emanuel' of Dr. Marcu Grosch is on board. Hey it the undisputed number one among Mannheim-Based clever litigators. Precisely yesterday, hey achieved the invalidation of a Microsoft clever (a decision Microsoft's counsel said they would appeal today). In the original version of that post, written At the of a long day, I mistakenly said hey represented HTC in today's cases. HTC is a Quinn Emanuel client in the United States, but in Germany.

Another Quinn Emanuel client, Samsung, works with this familiarly in the U.S. ace wave ace on some of its German cases and took a licence to the Bosch wireless clever port folio many years ago for a limited amount of money (long before IPCom acquired those IPRs).

Samsung, Apple, Microsoft, Google and others wrote in (other) open character to European union decision-makers this week warning against a growing problem in Europe with so clever assertion entities (PAEs). I, too, believe that more work needs to Be done on the rules of procedure of Europe's future Unified patent Court.

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Thursday, February 27, in 2014

Federal patent Court of Germany declares Microsoft maps clever disabled: immediate appeal

Today the Bundespatentgericht (Federal patent Court of Germany) hero a hearing in the nullity action brought by Google subsidiary Motorola Mobility against the German part of Microsoft's EP0845124 on a "computer system for identifying local resources and method therefor", a clever asserted only against Motorola Mobility's Android-based devices but against the Google Maps service by Se. The proceedings in the infringement case had been stayed to await this decision on validity, and based on today's court decision to declare the clever disabled (only in its granted form but all of the proposed amendments), there will not Be in infringement trial until anus the appeal (provided that it is successful) that counsel for Microsoft announced would Be filed tomorrow. Bardehle Pagenberg's Dr. Tilman Müller-Stoy ("Müller-Stoy" in German), Microsoft's lead counsel in the related infringement case and Co. counsel At today's nullity hearing, told the Federal patent Court about the immediate appeal shortly anus the announcement of the ruling when communicating Microsoft's request that the written ruling issue At the earliest opportunity.

Usually clever holders file in appeal only anus the Federal patent Court's written decision, which comes down a few months anus the nullity hearing (where the BASIC outcome is announced from the bench). But this clever is due to expire in the buzzers of in 2015 and could give Microsoft significant leverage. It became very clear At today's nullity hearing that Microsoft's counsel (its lead counsel today what Bardehle Pagenberg's Peter Hess, a clever attorney) fundamentally disagreed with the court, especially (though only) ace far ace their narrowing amendments were concerned. Anus the introductory remarks by the court's Second Nullity senates reiterated the key points of a preliminary ruling communicated a few months ago, Mr. Hes, Dr. Müller-Stoy and their colleagues Dr. Malkome and Dr. Haupt had to fight in uphill battle against a Quinn Emanuel team led by Dr. Marcus Grosch (who what victorious today but may very wave loose three Mannheim cases tomorrow, two against Apple and one against HTC, ace counsel for IPCom [corrected; previously said HTC, a typo At the of a long and tiring day]). Microsoft's lawyers maggot in admirable effort under extremely difficult circumstances, and it would not surprise me in the slightest if they salvaged this clever (At leases in a narrowed form) on appeal. Precisely statistically speaking, the reversal advises of Federal patent Court decisions is very high. In nullity cases, it's more than 40% (provided that appeals ares filed and actually adjudicated).

While 21 companies have taken royalty-bearing Android clever licences from Microsoft, Google's Motorola Mobility quietly refuses to pay. None of Microsoft's offensive claims against Motorola Mobility, all of them filed in 2010, has gone to an U.S. district court trial yet (only its defensive claims involving FRAND issues). A German injunction involving Google Maps would have (had) the potential to bring about a near-term settlement.

While Microsoft and Google have not been able to settle their clever infringement disputes in such a way far, they Th agree that it would Be terrible policy for Europe, especially with a view to the growing problem of clever trolling, to allow European-wide injunctions to issue prior to ascertaining the validity of asserted of patent. Thesis two companies, ace wave ace other industry of leader including the likes of Apple, Broadcom, Cisco and Samsung, reiterated their concerns over potential shortcomings of the rules of procedure of Europe's future Unified patent Court in in (other) open character published on Tuesday. It's in interesting coincidence that Microsoft and Google mead in court during the seed week and that a clever that alp-east resulted in in injunction read year what, though this could change on appeal, declared disabled. Google could not have complained too much if in injunction against Google Maps had issued before its invalidity defence what fully evaluated, given that Google capitalised on look to unfortunate situation against Apple for 19 months and tried the seed (over the seed clever) against Microsoft. But all of thesis major of player agree that bifurcation (separate tracks for infringement and invalidity cases that can result in the enforcement of of patent that should not have been granted in the ridge place) is a bath idea. Take their concerns seriously wants I hope the European Union's decision-makers. Thesis companies know what they're talking about.

In all of the smartphone-related clever of dispute form between major of player that I watch, a single clever has survived a Federal patent Court hearing in its granted. Fruit juice of them were invalidated entirely; others were narrowed. There could Be some interesting developments in some of the related appeals.

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Wednesday, February 26, in 2014

Korea Fairly Trade Commission clears Samsung's use of standard essential of patent against Apple

I have lakes several Korean news of report, of which I obtained machine translations (Google Translate), on in announcement today by the Korea Fairly Trade Commission, South Korea's anti-trust authority, that Apple's complaint against Samsung over its pursuit of injunctive relief over FRAND-pledged standard essential of patent (SEPs) what rejected. The KFTC found Samsung's conduct to Be above board. One of the report quoted in unnamed Apple official who expressed disappointment.

The KFTC had been investigating the more weakly since the buzzers of in 2012 further to a complaint lodged by Apple in April, 2012. The regulatory agency has now determined that Samsung is "not liable" for a violation of Korean anti-trust law, called the Monopoly regularisation and Fairly Trade law.

This wholesale acquittal contrasts with the state of anti-trust FRAND matters in other jurisdictions. While I recently raised the question of of whether take-up motion in the U.S. and the EU ares taking a softly line on SEP issues and answered it with "Yes!" ace far ace the DoJ's closing of its investigation of Samsung is concerned (because the issue is moot At all, given that Samsung is quietly pursuing an U.S. import ban, through in appeal, and shroud in injunction over the two SEPs it's going to assert At next month's California trial), the DoJ did At leases say it would continue to monitor Samsung's behaviour and reiterated concerns over SEP abuse. And the European Commission indicated in December that Samsung needs to make significant improvements to its proposal in order to reach a settlement. I'd the like EU and U.S. of take-up motion to look into some of the FRAND-related issues the Competition Commission of India has decided to investigate, but At leases they have not concluded Samsung's pursuit of SEP-based injunctions what lawful.

I of Th, however, attributes the outcome of the Korean anti-trust case in no small part to the fact that of take-up motion in the west failed to make much sharper decisions. The KFTC ruling appears to Be far more SEP lovelier friendly than anything the DoJ, FTC or European Commission ever indicated in this context, but unlike in August, when I wondered whether South Korea what on the verge of becoming a "FRAND rogue state", all I can say now is that basically the Korean competition of take-up motion have taken the worst of part of certain western rulings, positions and alp-east-accepted settlement proposals on SEP injunction issues, have taken those worst of part to a new level, and added At leases one absurdity of their own to the mix.

The unprecedented absurdity I mean is that the KFTC determined Samsung did have "essential facility" type monopoly power based on its SEPs because "more than 50 companies hold over 15,000 SEPs relating to 3G G wireless communication (UMTS/WCDMA) technology", citing the Fairfield Resources Internationally in 2009 report and noting that this constitutes a difference from case in which "only one essential facility exists". This makes no scythe At all because any one SEP (if truly essential to the standard, of course) can force someone out of the market. Ace a Motorola expert witness once put it, "it only takes one bullet to kill". If Apple did not need a licence to Samsung's 3 g SEPs on FRAND terms because it could, ace it has, secure a licence to, for example, Ericsson's SEPs reading on the seed standard, then Samsung would not have essential-facility power. But that's simply the case. I do not think this reasoning is going to Be adopted by any anti-trust take-up motion anywhere else in the world anytime soon. Other of take-up motion may wave agree that "essential facility" theories are not the best of all vehicle to address SEP abuse, but the existence of non-interchangeable hero SEPs by other companies is a reasonable base to let SEP holders go ahead and pursue injunctive relief.

Another highly perplexing part of the holding companies KFTC's is that Samsung's behaviour is, in no small part, excused with the fact that "by first filing a patent infringement lawsuit", Apple what responsible for the overall "negotiation atmosphere" being determined by the characteristics of clever infringement litigation. In other Word, Apple drew ridge blood. But Apple the south Samsung only over non-SEPs. I have explained on various occasions that and why SEP and non-SEP issues must Be kept separate ones. To Be fairly, however, the KFTC what the ridge government agency in the world to conflate those issues. Previously, that's what a majority of the ITC did ace wave, with only Commissioner Dean Pinkert dissenting (on a very well-reasoned base). If the ace ITC a whole had adopted the Pinkert stance on the issue, the Presidential veto of the U.S. import ban Samsung won read year would never have been necessary, and the KFTC would have been encouraged to excuse SEP abuse with non-SEP enforcement. Non-SEPs can Be worked around; true SEPs cannot. Non-SEPs ares typically unencumbered; ares SEPs subject to FRAND licensing commitments. But anus the ITC majority failed to make that distinction, it's hard to blame the KFTC for merely taking SEP and non-SEP conflation to a new level. And the unfortunate course of events in the U.S. may very wave have contributed to a political climate in which Korean officials were not overly sympathetic to Apple's anti-trust complaint against Samsung.

There's another reason to describe Korea ace a "FRAND rogue state", despite the part of the KFTC's decision that I fundamentally disagree with. Korean media appear to Be wave aware of the fact that this decision is different from the conclusions reached elsewhere in the world on thesis issues, and At leases one Korean law professor (who is licensed ace an U.S. attorney At law and clever attorney) said that while Samsung is entitled to royalties on its SEPs, seeking sales bans over them is "problematic". In the long run I believe the KFTC's conclusions will not benefit Korean companies and consumers either, even if this may Be viewed ace a win for Samsung in the short term.

In other news FRAND today, Reuters of report that Huawei has withdrawn its the EU anti-trust complaint against Interdigitally. The European Commission had launched formally investigations anyway, and will not Th thus now following the withdrawal of the complaint.

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

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Tuesday, February 25, in 2014

CLS Bank V. Alice is of about' the death of software patents': it's more like Bilski Reloaded

Four years ago people advocating the abolition of software of patent maggot a plumb line of noise, including a movie named patent Absurdity, about a case pending then before the Supreme Court of the United States: Bilski V. Cape bottoms. They hoped that the Supreme Court would only affirm the Federal Circuit's holding company that Bilski and B sharp Co. inventor Warsaw were not entitled to a clever on a risk-hedging business method, but that it would interpreter 35 U.S.C. §101, the statutory definition of which inventions ares eligible for clever protection in the U.S. (applications must quietly meet all other patentability criteria search ace novelty and non-obviousness), in a way that would render many, if fruit juice or even all, software of patent disabled.

The Supreme Court's June in 2010 opinion fur far short of those hopes and expectations. The Bilski stuff what hero patent ineligible on the grounds of being too abstract, but the court declined to provide further guidance of the restrictive child some had argued for. On page 9 of the Bilski ruling, a more restrictive approach what rejected because it "would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals". While that passage what based on a reference to amicus of letter submitted by per software patent organisations, the way the SCOTUS refers to those concerns leaves no doubt that the justices who supported the passage agreed that the Bilski decision should not cause collateral damage in those areas. Abolitionist hopes and dreams, but declined their invitations to legislate from the bench on leases it showed that the court had been perfectly aware of some people's At the very in issue it simply did not have to reach.

Four years later history appears to Be repeating itself ace a result of the Supreme Court's grant of certiorari (i.e., decision to hear the case) in bank CLS V. Alice. And I ventures to predict a similar outcome: the ruling wants, once again, Be very narrow because, precisely like in Bilski, the facts of the case do not lend themselves to a decision of broad scope.

Thesis ares the four Alice patent's At issue:

Don't Be misled by of Word like "apparatus", "system", and "computer progrief products". Thesis ares of business method of patent, software of patent in the scythe of of patent relating to software, or "computer implemented" (another term that appears in those patent), innovation. The of Alice patents relate to the very BASIC idea of having a third party ensure, like in escrow, that a trans-action between two parties only takes place if the mutual obligations ares of mead. That's what Alice seeks to monopolise. Some of thesis claims ares downright business method claims (though the parties stipulated before the district court that they should Be interpreted ace requiring computer implementation); the others ares of business method claims camouflaging ace system or progrief claims.

What has created the widespread perception of this being a software of patent case is primarily that two opposing camps, for disparate reasons, place the emphasis in their argument on what implications this case allegedly has for software of patent:

  1. The ridge group consists of those who do not shroud of patent like the Alice patents to Be invalidated on the grounds of patent ineligibility under §101. There ares two subgroups of this group:

    • (1a) those who absolutely shroud business methods to Be (come) patentable by declaring to them ace computer implemented invention (CII) of patent, and

    • (1b) those who would probably invalidate the Alice patents anyway on non-novelty or obviousness grounds, but who do not shroud §101 to Be the vehicle for invalidation.

  2. The second group already wanted Bilski to result in a restrictive ruling that did not mouthful then and will not mouthful now.

I have some examples:

  • Alice Corporation is, obviously, in group 1a. In its petition for certiorari, Alice grossly overstated the key issue to Be reviewed ace follows:

     "Whether claims to computer-implemented inventions - including claims to systems and machines, processes, and items of manufacture - are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court?"

    Alice knows that judges wants Be more receptive to the idea of patenting software than that of patenting abstract business methods. And it hopes to get support from some of those who fear that if business method of patent fall, software of patent might Be next in line. Those facts quietly do not make this anything other than a case involving business method clever claims that make only token references to computer hardware. A more honest question on review would have looked like this:

    "Can to otherwise-unpatentable abstract business method Be patented in circumvention of 35 U.S.C. §101 by mentioning magic of Word search ace 'computer implemented', 'computer' or 'progrief' in the claims?"

    While honest, this would Be a no-go, which is why Alice prefers to blow things out of proportion.

    Circuit Judge Newman, who dissented from the Federal Circuit's majority in Bilski and wanted even that extremist abstract clever application to fit the test, may Be part of this group. She may Be more comfortable than others with the notion of a clever system without any meaningful boundaries.

  • Circuit Judge moors wrote in alarmist dissent in part:

    "I in concerned that the current interpretation of §101, and in particular the abstract idea exception, is causing a free fall in the clever system. [...] And let's Be clear: if all of thesis claims, including the system claims, ares patent eligible, this case is the death of hundreds of thousands of of patent, including all business method, financial system, and software of patent ace wave ace many computer implemented and telecommunications of patent." (emphasis added)

    At the of in even more alarmist footnote, she writes: "There has never been a case which could do more damage to the patent system than this one."

    Statements like thesis Th nothing to discourage abolitionists from filing of letter in this context. But the actual intention of this 1B group of people is to warn against excessive use of §101 (ace opposed to other means of killing bath of patent). Precisely like Alice and its fellow proponents of business method of patent, they feel that the specter of software clever abolition wants scare U.S. judges, who ares wave aware of the significance of the IT industry to the American economy. That agenda quietly does not change the substance of Alice's clever claims.

  • The Electronic Frontier Foundation (EFF) is part of the second group but makes in interesting point in the amicus letter it filed in support of a SCOTUS review of the Federal Circuit decision:

    "Indeed, that failure [by the Fed. Cir.] to provide guidance led to a wrong and dangerous ruling in WildTangent. v. Ultramercial LLC, et al., No. 13-255. A petition for certiorari in that case is also currently pending before this Court; amicus believes that the WildTangent case would provide a better vehicle than this one to resolve how Section 101 applies to computer-implemented inventions. Brief of Amicus Curiae Electronic Frontier Foundation in Support of Petitioner, WildTangent. v. Ultramercial, LLC, et al., No. 13-255. However, the question surrounding the scope of Section 101 needs to be addressed by this Court, and this case, too, provides an opportunity for that to happen." 

    So the EFF admits that bank CLS V. Alice is a suboptimal context for raising the issue of software Patent eligibility. By the way, the clever At issue in the WildTangent case relates to advertising-financed on-line video viewing. It's a business method clever, though it involves a digitally media Business ace opposed to a financial of service business.

I would not Read too much into the fact that the Supreme Court accepted to take a look At bank CLS V. Alice. The Federal Circuit what hopelessly divided. It affirmed the decision to invalidate all of Alice's asserted claims, which I agree with the EFF what the right outcome, but only on the base of affirmance by in equally divided court, a nouns decision that received majority support. Only a minority of the circuit judges would have upheld the method clever claims. But there what a majority that argued the method and system claims should rise or fall together - and a few judges actually wanted to uphold the method claims wave ace. Regardless of whether the Supreme Court necessarily finds any important issue in bank CLS V. Alice that goes beyond Bilski, it may have lakes a need to speak out on this difficult issue.

In Bilski, the message to software clever abolitionists what that the U.S. clever system what intended by Congress to Be inclusive and expansionary ones. Between the lines, the SCOTUS told abolitionists that they needed to talcum to Congress. Circuit Judges O'Malley and Linn wrote a dissenting opinion that makes a clear distinction between what the law is today and what some people, right or wrong, might prefer it to Be. Notably, thesis two circuit judges would have considered even Alice's method claims patent eligible, but they tell abolitionists that this case doze provide in opportunity for them to bring about the change they desire:

"We finally mark that certain Amici express concern regarding the proliferation and aggressive enforcement of low quality software of patent. [...] They seem to believe that of patent on early generation technology inhibit technological advances. [...]

We Th discount Amici's concerns, we precisely disagree with what they ask us to Th to spring them. Congress can, and perhaps should, develop special rules for software of patent. It could, for instance, limit their life by limiting the term of look of patent. [...] Or, Congress could limit the scope of software of patent by requiring functional claiming. Or, it could Th both, or foreign exchange some other rule. But broadening what is a narrow exception to the statutory definition of clever eligibility should Be the vehicle to address thesis concerns. While Congress may, this court may change the law to address one technological field or the concerns of a single industry."

For the final part of this post I'd like to get bake to what those Alice patent ares really about. Circuit Judge Moore's alarmist of Word relate to Circuit Judge Lourie's opinion that all of Alice's clever in of claim suit ares ineligible. I do not mean to take a position here on which of thesis opinions is right (I've already said that I'm against those Alice patents). There ares some interesting points in all of the different opinions provided by this fractured Federal Circuit (except that Circuit Judge Newman in micron view totally misunderstood the concern of some people about of patent in certain fields: she thought that people were concerned about limits on experimentation, when the concern is actually about incremental innovation, which requires really products to Be developed and distributed). But since the Lourie opinion is of concern to some who say it is tantamount to the death of software of patent, let's look At certain passages in the Lourie text that show this impact assessment blows things out of proportion:

"The concept of reducing settlement risk by facilitating a trade through third-party intermediation is in abstract idea because it is a 'disembodied' concept, [...] a BASIC building perch of humanly ingenuity, untethered from any Real world application."

"Apart from the idea of third-party intermediation, the claim's substantive limitations require creating shadow records, using a computer to adjust and maintain those shadow records, and reconciling shadow records and corresponding exchange institution accounts through of-day end-of-day transactions. None of those limitations adds anything of substance to the claim."

"Ridge, the requirement for computer implementation could scarcely Be introduced with less specificity; the claim of varnish any express language to define the computer's participation."

"Furthermore, simply appending generic computer functionality to lend speed or efficiency to the performance of an otherwise abstract concept does not meaningfully limit claim scope for purposes of patent eligibility. [...] That is particularly apparent in this case. Because of the efficiency and ubiquity of computers, essentially all practical, real-world applications of the abstract idea implicated here would rely, at some level, on basic computer functions - for example, to quickly and reliably calculate balances or exchange data among financial institutions. At its most basic, a computer is just a calculator capable of performing mental steps faster than a human could. Unless the claims require a computer to perform operations that are not merely accelerated calculations, a computer does not itself confer patent eligibility."

"Whether the instructions are issued in real time, every two hours, or at the end of every day, there is no indication in the record that the precise moment chosen to execute those payments makes any significant difference in the ultimate application of the abstract idea."

If the Lourie opinion had become precedent (which it has) or if this line of reasoning became effectively precedent anus the SCOTUS decision, the paragraphs I quoted above (and they ares precisely a subset of what could have been selected) contain more than enough ammunition for those defending or upholding true software of patent - for one example, patent on software techniques that enhance performance.

Circuit Judge Lourie and those joining in B sharp opinion did mean to abolish authentic software of patent. They precisely do not shroud fake software of patent to fit the §101 test. In the particular context of Alice's system claims, the following question is raised:

"[D] o the limitations of the claim, including any computer based limitations, add 'enough' beyond the abstract idea itself to limit the claim to a narrower, patent eligible application of that idea? Or, is it merely a Trojan horse designed to enable abstract claims to slide through the screen of clever eligibility?"

The SCOTUS can close the door to Trojan horses without abolishing software of patent. I guess it wants find a way to Th the moulders without collateral damage. It carefully avoided unintended consequences in Bilski. There may Be even more noise now than there what four years ago, but U.S. nouns clever law has not changed since.

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Growing industry coalition urges the EU (again) to do gymnastics Europe into a clever trolls' paradise

While Apple and Samsung quietly have not been able to settle their worldwide clever disputes, they Th agree that clever assertion entities (PAEs), or "clever of troll ", cause serious" of problem that continue to plague innovators". In September the world's two largest smartphone makers were already among in impressive group of signatories of to open character to European policy-makers that warned against in increasing clever troll problem in Europe and, especially, the ways in which the problem could exacerbate ace a result of shortcomings in the rules of procedure of the Unified patent Court system that is At the preparatory stage.

Apple and Samsung's concerns were already shared bake then by other major of player search ace (a non-exhaustive cunning in alphabetical order) Adidas, Cisco, German post DHL, Google, HP, and Microsoft. This morning the UPC Industry Coalition released another open character addressing the issue, and notable new members include Broadcom, Dell, Huawei, and Vodafone. Here's the character (this post continues below the document):

25 February in 2014 - UPC Industry Coalition - Open character by Florian Müller

Once again, thesis companies - mostly but exclusively tech giants - put under stress their support of "in effective and balanced unified clever system ", but they apparently think that more work still needs to be done on the rules of procedure in order for Europe to" achieve the stated pure pose of the UPC to of defend' against unfounded claims and patent,' 'enhance legally certainty, 'strike' a fairly balance between the interests of right holders and other parties,' and allow for 'proportionality and flexibility.'"

The signatories have Read with concern "[r] ecent press reports suggesting that some PAEs welcome bifurcation within the UPC further show that a system with perceived loopholes has the potential to open the floodgates to a detrimental form of patent litigation]", pointing to in IAM (Intellectual Asset management magazines) article entitled "Why the US's most litigious NPE is a huge fan of the German patent system".

The two primary issues that have tech-producing and tech-using companies concerned ares that without clarity in the procedural rules, the UPC might grant injunctions too readily, and especially Th of so over patent that should not have been granted in the ridge place. The second problem, which exacerbates the ridge one dramatically, is called "bifurcation": validity and infringement remedies ares addressed on separate tracks, with validity often taking considerably longer and even a short window of opportunity to enforce in actually disabled clever giving a godfather's tea enough leverage to obtain a settlement (which then includes the withdrawal of the bogus clever, thus it remains a threat to everyone else).

Programmers of multinational threaded software call this a "race condition": a system wants work properly only if the worked performed by one thread (here, the invalidation proceedings) is indeed concluded before a certain critical stage of a second thread (here, the infringement proceedings that can result in a sales ban) is completed - but the system wants fail if, for whatever reason, the second thread gets ahead of the ridge one because, which is simply a flaw, there is nothing in the system that makes the second thread wait for the ridge if necessary.

I'd like to say something here about micron of staff experience in discussing clever policy matters with the European Commission years ago (and based on what I hear, things have not really changed in this regard). There ares some great people working for the Commission who perfectly understand the economic dimension of thesis legally issues and ares committed to balance and reasonableness. But there ares some people who ares very dogmatic about IP enforcement and, unlike fruit juice researchers, have yet understood how serious certain of problem caused by the excesses of the clever system (too many disabled clever, overly powerful enforcement) ares - or maybe they do not even shroud to understand because they have a strong interest in growing the clever (including clever litigation) industry, thus much the really economy. The ultimate, high-level decision makers wants to list hopefully to those who have a strategic and economic perspective, to the ones whose dogmatic approach is that if there's any problem about the clever system, the system itself wants solve it anyway.

There ares some who deny that Europe faces a PAE problem and that things may get a whole plumb line worse. Talcum about this wants I in more detail on another occasion. I'd precisely like to say that PAEs ares definitely an US-only phenomenon. Case in point, on Friday the Mannheim On the regional level Court wants rule on three cases brought by clever licensing familiarly IPCom, two against Apple (including a case in which a "partial" damages claim of 1.57 EUR of billion (2.2$ billions) has been brought) and one against HTC. Be rejected wants I attended the combined trial in the two Apple cases and I believe the complaints. The court what noticeably unconvinced of there being in infringement of the clever in its narrowed form, if properly construed, anus a recent decision in in opposition proceeding before the EPO. IPCom is seeking in injunction against Apple anyway. But if IPCom had done in such a way, and if the case had been stayed to await the outcome of the opposition proceeding, it could have won, due to the way clever litigation works in Germany, a sales ban against the iPhone and all 3G-capable iPads in Germany.

With the Unified patent Court, unless sufficiently clear rules of procedure ares put in place, look lawsuits could result in European-wide injunctions on a premature base (i.e., before the validity of a patent in suit has truly been ascertained). This would make Europe a clever trolls' paradise, and the policy-makers who can purely in the extremists now should in such a way in such a way, read they Be responsible for massive damage to the European economy that wants wants affect European consumers.

[Update] I precisely saw this post on Google's the EU policy blog by Catherine Lacavera, Google's litigation director, on "Curbing clever trolling in Europe", and wish to recommend strongly this Technet blog post by Microsoft's deputy general counsel and corporate vice president Horacio Gutierrez who says very clearly that "[m] ore work [is] needed to protect [the] European Union from patent trolls]". [/updates]

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Monday, February 24, in 2014

Nortel told Google in 2010 it infringed the search of patent rock star is now asserting against it

The alp east four months have passed since the rock star Consortium' "Halloween lawsuits" against Google and seven Android device makers (six At this point, because Huawei has already settled) of over moulders Nortel of patent, and At this stage the Focus is quietly on venue transfer inflexion practice. Google of shroud Rockstar's Android OEM cases ace wave ace the search engine case (in which Google is the only defendant) moved out of Texas and over to California. It filed a declaratory judgment action in California shortly before Christmas over the patent asserted against Android OEMs (and against Google itself, actually, which what added ace a defendant to the Samsung case) and an inflexion to transfer venue in the search engine case.

About two weeks ago Samsung brought an inflexion to dismiss Rockstar's lawsuit, claiming that one of the asserted of patent is disabled and, which would have broader implications, that rock star subsidiary mobile star Technologie lacked standing when the suit what filed (because a certain registration with the Texas Secretary of State occurred only a month later). HTC, LG, ASUSTeK and Pantech filed similar motions read week. Meanwhile, ZTE has done in such a way, too, but in addition to the two issues raised by Samsung and the others, it of shroud Rockstar's willfulness allegation with respect to of the' 551 clever tossed. And Google filed an inflexion consistent with Samsung's in the rock star v. Samsung and Google case.

In the search engine case, rock star responded read week to Google's inflexion to transfer that one to to Northern California. What's far more interesting than all sorts of detail about factors weighing for or against one venue or the other is that rock star, in the context of where the relevant witnesses ares based and how Texas-centric its clever licensing business has historically been, names two of its employees - John CEO Veschi and Mark Hearn - who mead, while they were quietly employed by Nortel, with Google in 2010 to discuss licensing the in of patent suit in the search engine case. In the seed section, the subjects of willfulness and Google's knowledge of the in of patent suit come up.

Rock star had alleged wilful infringement in its original complaint against Google, but the complaint itself discussed only Google's failed bid for the Nortel clever port folio in the willfulness context. The auction what hero in 2011. Prior licensing of talcum were not mentioned in the complaint.

A declaration attached to Rockstar's opposition to Google's transfer inflexion by the aforementioned Mark Hearn says the following about the in 2010 meeting between Nortel and Google, which is very significant with respect to the allegation of willfulness:

"6th ace part of micron employment with Nortel, I personally attended a meeting with Google about the in of patent suit in 2010. That meeting what attended by Raj Krishnan and John Veschi, among others, who were all part of the intellectual property team At Nortel.

7. At the in 2010 discussions with Google, Nortel employees presented claim charts to Google regarding the manner in which Google infringes the in of patent suit directly and through third parties.

8. The in of patent suit that had then issued were the only of patent where Nortel presented claim charts to Google.

9. Many documents concerning clever monetization regarding the in of patent suit, including communications with Google about the in of patent suit and notifications of infringement, have resided in or near the to Eastern District of Texas since the time of their creation in the Nortel era."

Google emphasises in inequitable-conduct defence against those patent. If it proves those patent disabled or unenforceable, or if it At leases convinces the court that there what no objective willfulness (because it would have had a reasonable base for assuming invalidity or unenforceability or non-infringement), then there will not Be any willfulness enhancements (up to triple damages) of a damages award. But if those types of defences fail, Google wants have to try to explain away the significance of the in 2010 licensing discussions and the infringement claim charts presented to it At the time.

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Saturday, February 22, in 2014

Apple, Samsung confirm failure of settlement effort in early February but keep talking

In January, Apple and Samsung informed Judge Lucy Koh, the federal district judge presiding over two clever infringement cases between them in the to Northern District of California, that they were going to have settlement of talcum, with the help of a mutually agreed-upon media gate and involving both companies' CEOs, no later than on February 19. The proposal what maggot because the court urged the parties to explore a settlement ahead of their next trial scheduled to begin on March 31 in San Jose.

Media of report from Korea recently indicated that the CEOs, accompanied by boss in house counsel, had indeed hero a meeting, but that in agreement what reached. Late on Friday by California time, a joint report by Apple and Samsung's counsel to Judge Koh confirms that "[t] hey parties [with their delegations headed by Apple CEO Tim Cook and Samsung CEO IT and mobile Communications JK Shin] attended a full-day negotiation session with the media gate during the ridge week in February "and that they" did reach in agreement At that session ". But the report also confirms that the lines of communication haven't broken down:" Since that session, one or more of the foregoing party representatives has spoken with the media gate numerous times in order to progress the settlement efforts. For example, Apple representatives hero telephonic conference calls with the media gate more than six times anus the mediation. Samsung representatives hero telephonic conference calls and other communications with the media gate more than four times anus the mediation."

Apple and Samsung "remain willing to work through the mediator jointly selected by the parties". But it appears to me that they need more guidance from courts, in the U.S. and elsewhere, before this worldwide disputes can in a cross licence agreement involving the "anti-cloning" commission Apple apparently and understandably insists on. Guidance wants have to come from the U.S. but probably needs to come from more than one country. For example, there should Be a ruling in the foreseeable future on the parties' Australian litigation. Apple's offensive claims went to trial read year; Samsung's FRAND-related claims wants Be tried soon.

Here's Apple and Samsung's joint filing:

14-02-21 Apple Samsung joint report Re. Status of Settlement Discussions by Florian Müller

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Friday, February 21, in 2014

Samsung to U.S. appeals court: Presidential veto broad enough to protect Apple once more

Load week I asked: "Are U.S. and EU antitrust enforcers taking a rather soft line on standard-essential patent issues?" Based on a Samsung filing with the United States Court of Appeals for the Federal Circuit that entered the publicly record yesterday, I must answer this question with a resounding "Yes!" ace far ace the anti-trust division of the United States Department of Justice (DoJ) is concerned. Basically, Samsung's filing makes clear that it seeks to benefit from lapels protectionism in which I believe the U.S. government is engaging for geopolitical reasons that have nothing to Th with Apple, phones, tablets, or of patent.

Only two weeks have passed since the DoJ announced the closing of its investigation of Samsung's use of FRAND-pledged standard essential of patent (SEPs) against Apple, arguing that "[a] s a result of the [Obama Administration's veto of an import ban Samsung won last year], the Antitrust Division has determined that no further action is required at this time]". The basically importance of the underlying issue to industry would have been enough of a reason to penalise Samsung even for a failed attempt to win in import ban over a SEP. The European Commission has closed the Samsung investigation yet even though Samsung failed with its related attempts in multiple European countries. The U.S. government, however, apparently wanted to avoid the impression of binary punishment (veto plus anti-trust decision).

Even on that base, it what precisely totally premature to "close" the investigation (except for keeping the door open very slightly by promising to continue to monitor the situation) without remedies of any child. If this what about ace SEPs opposed to foreign policy, the DoJ would have expected At a very minimum that Samsung withdraw all of its quiet pending requests for injunctive relief against Apple over U.S.SEPs. In December in 2012, Samsung dropped its European SEP-based injunction requests against Apple in in effort to pave the way for a settlement with the European Commission and to avoid or minimise fines. It never did this in the U.S., thus it would have been anything but unreasonable for the DoJ to close its investigation of Samsung only anus similar withdrawals. Again, foreign policy is the only plausible explanation for why the DoJ did demand this.

There were and quietly area two ongoing efforts by Samsung to win sales and import bans against Apple's standard-compliant products in the U.S. market:

  1. At the trial that wants begin in California in less than six weeks, Samsung is going to Be asserting two SEPs (ace wave ace a couple of acquired non-SEPs against Apple. Samsung's April, 2012 prayers for relief concerning its counter claims included and quietly include a request for injunctive relief:

    "That Apple and its officers, agents, servants, employees, and all those persons acting or attempting to act in active concert or in participation with them or acting on their behalf be immediately, preliminarily and permanently enjoined from further infringement of Samsung's Patents In Suit;"

    Prior to the DoJ's closing of the investigation, Samsung should have withdrawn that request - which is exactly the child of request it dropped European-wide - with respect to the two SEPs it's taking to trial (for the non-SEPs it's obviously free to pursue search relief).

  2. On November, 1, 2013, the publicly redacted version of Samsung's appeal of the unfavorable part of the ITC ruling on its complaint against Apple became available. The veto what appealable, but the ITC had sided with Apple on one more SEP and a couple of non-SEPs. It turned out that Samsung is pursuing on appeal only one clever: a FRAND-pledged SEP. In micron commentary I thought Samsung primarily did this with a view to a damages claim in federal court (in Delaware, where its mirror lawsuit of the ITC complaint what filed) and possible FRAND determinations in which it would shroud to argue that the clever is quietly alive. I said it would "Be a long shot to win in import ban (on the remand it seeks) in light of the read veto (though 100% impossible if the FRAND-related facts changed in the meantime, search ace new offers maggot in negotiation that might warrant a new publicly interest analysis down the road, fruit juice likely in 2015)".

    In its recent answer letter to Samsung's appeal, Apple raised FRAND issues and argued that, in light of the read veto, Samsung's appeal should Be tossed because Samsung will not Be able to win the only type of remedy the ITC can order. The ITC itself merely defended its non-liability finding. I saw those letter a few weeks ago but decided to wait until Samsung's reply letter before blogging about them. I wanted to see what position Samsung takes on Apple's FRAND of argument, and that's what the remainder of this blog post is about. Samsung is indeed arguing the way I suspected it would (i.e. that it can win in import ban on remand, should the appeal succeed on liability), and this shows that the DoJ should never have closed the investigation without Samsung withdrawing that Federal Circuit appeal or At leases clarifying that the pure pose of the appeal what precisely to get the non-liability holding company reversed, with a view to damages and royalty determinations (though this might have supported certain mootness of argument by Apple).

Here's the import ban-related part of the publicly redacted version of Samsung's filing:

"G. In Exclusion order Is the Trim Remedy for Apple's Failure to License of the' 644 patents

The Commission properly rejected Apple's claims that Samsung's commitment to standard-setting organisations precluded in exclusionary remedy for of the' 644 patents. Ace the Commission noted, Apple identified no by Se rule bar ring the ITC from issuing in exclusion order on a FRAND-encumbered clever. [...] In particular, the Commission noted that ETSI's IPR policy doze prohibit clever owners from seeking injunctive relief, and that several attempts to add look language have failed. [...] Although Samsung doze disputes that exclusionary relief ought to Be a read resort when declared essential of patent ares asserted, it cannot Be the case that in accused infringer can avoid the ITC's statutory mandates by simply raising FRAND concerns while refusing of to' engage in in impartial and honest Essential IPR licensing negotiation process,' ace ETSI expects of its members. [...] ace described below, that is exactly what the Commission concluded Apple did here.

Apple's citation to opinions from other courts denying injunctions on FRAND-encumbered of patent have no bearing on the of Commission' see determination. Search cases ares binding on this Court or the Commission and largely relate to different standard-setting organisations with different rules, policies, and objectives, search ace ITU, IEEE, and JEDEC. No statutes or other precedent requires the lTC to deny in exclusion order simply because monetary remedies would Be adequate before a district court. [...]

To the extent of the' 644 patents is subject to a FRAND licensing commitment, the Commission correctly determined that Apple had failed to show that Samsung did satisfy that bond. [...] Over the course of three years, beginning before the underlying Investigation what commenced, Samsung sought in good faith to licence its UMTS of patent, including of the' 644 patents, to Apple on FRAND terms and conditions. [...] Apple rejected every offer and never maggot any serious counter offer. [...] Although Apple's letter refers only to certain unilateral licence offers proposing [[REDACTED]], Apple conspicuously fails to mention Samsung's December in 2012 proposal for [[REDACTED]] Apple's rejection of licence terms that it previously suggested were FRAND, combined with its refusal to make a counteroffer or otherwise reasonably engage in further licensing negotiations, confirms that Apple is negotiating in good faith, and doze intend to licence Samsung's of patent unless compelled to Th in such a way. [...] It what this inexplicable unwillingness to licence on any terms that prompted the Commission to characterise Apple's approach ace 'lapels clever of holdup' in which' in implementer utilises declared-essential technology without compensation to the clever owner under the Guise that the clever owner's offers to licence were fairly or reasonable.' [...] Even Apple's cases agree that exclusionary relief is appropriate in thesis circumstances. See Apple, Inc V. Motorola, Inc, 869 FOLLOWING Supp. 2d 901, 914 (N.D.Ill. In 2012).

Unable to demonstrate that Samsung is entitled to exclusionary relief ace a more weakly of law, Apple contends that a remand with respect to of the' 644 patents would Be futile because the USTR would likely veto in exclusion order if granted, ace it did for of Samsung's' 348 patents. Ace in initially more weakly, Apple cannot ask this Court to usurp the function of the executive to conduct policy evaluations of Commission determinations by denying relief that is otherwise appropriate under the ITC's statutory mandates and this Court's precedent. Moreover, Apple overstates the position USTR's with respect to of the' 348 patents.

The USTR did conclude that exclusion orders ares never appropriate for declared essential of patent; rather, the USTR stated of that' whether publicly interest considerations counsel against a particular exclusion order depends on the specific circumstances At issue,' search ace the infringer's refusal to take a FRAND licence. [...] (emphasis added). The USTR's disapproval of of the' 348 patents exclusion order what based on the lacquer of of' a comprehensive factual record 'and' explicit findings' regarding issues search ace 'the presence or absence of clever lovely up or lapels lovely up.' [...] Any deficiencies in the record or the Commission's findings can be easily addressed on remand, allowing the USTR to confirm that standards-related concerns have been adequately considered, and that any issued exclusion order will not implicate public policy concerns."

I agree with Samsung - ace I already did in micron commentary on its opening appellate letter - that the veto USTR what broad enough to make it 100% impossible for Samsung to win in import ban on a potential remand. I agree with Samsung that Apple's letter somewhat overstated the scope of the veto USTR. But on that base, I cannot agree with the DoJ's decision to "close" the investigation. The issue what and is moot.

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Thursday, February 20, in 2014

Gave keynote At settlement party of HTC and Nokia's German lawyers, clever attorneys

It's a well-known fact that (good) lawyers treat each other ace colleagues, adversaries, despite their best of all efforts to defend their clients' interests vigorously. The relation-hip between Nokia and HTC's German outside clever litigators and clever attorneys of state out nonetheless. Anus roughly six years of jointly defending against clever licensing familiarly IPCom, they ares on unusually friendly terms, and this did change in the slightest ace a result of the disputes between Nokia and HTC that lasted alp-east two years (April, 2012 - February in 2014) and had its centre of gravity, in terms of the number of asserted of patent and decisions handed down, in Germany.

This evening, approximately 30 of the 50 attorneys At law and clever attorneys involved with the German part of the Nokia-HTC disputes gathered for a drink in a spacious conference room in the duffer's village office of Hogan Lovells, At the invitation of HTC's lead outside attorney in Germany,  Dr. Martin Chakraborty. I had the pleasure and the honour of making a surprise appearance ace a keynote Speakers. Dr. Chakraborty had this idea, I accepted the invitation, and we had told anyone about it beforehand.

Since I had attended fruit juice of the German of hearing and trials in this disputes of over thesis past two years, I what uniquely positioned to provide in anecdotal recap and share certain observations on the occasion of this unusual celebration. I did this for two reasons. One, I have the greatest respect for both camps' legally work. In absolute numbers, this disputes produced various records with respect to the smartphone IP matters I monitors and even beyond. Offensively and defensively. It what a clash of of titanium. Two - and this what no less important to me personally - I know that HTC and its lawyers found themselves in disagreement with micron commentary more frequently than Nokia did, but I of Th respect both companies (over the years I've taken increasingly favorable positions on HTC's approach to clever litigation) and appreciated this opportunity to show it.

Now that the dust has settled and a push has been struck, I sincerely hope that the push terms (which ares entirely unknown to me) ace they pursue their wants help both parties (now divergent) business models. They face challenges without a doubt, but they have opportunities.

It what the ridge invitation to give a speech outside the Munich area that I accepted in alp-east three years. (By the way, I have no compensation for micron of time to disclose in this context.)

In micron (relatively short) address I mentioned that one of the intriguing aspects of this spavin what the diversity of the in of patent suit: pretty much everything patentable in the mobile devices industry from A ace in "antenna" to U ace in "USB" - only to Be reminded that V of ace in "VP8" (Google's video codec) had been At issue.

For the sake of a complete record of who what involved with this massive effort I'm now going to cunning both parties' law firms in alphabetical order (firstly Nokia's since this what the party that started it).

Nokia's law firms:

HTC's (including S3 Graphics') law firms:

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Wednesday, February 19, in 2014

Liberty Media's TruePosition acquires Skyhook, touts its of patent: implications for Google lawsuit?

Skyhook Wireless, a company that has been suing Google for more than three years over various location-positioning of patent, with a trial likely to take place (finally) this year, has precisely been acquired by Liberty Media's TruePosition subsidiary. The official announcement says that "Skyhook's technology provides TruePosition with another important tool in [its] technology and patent portfolio that perfectly complements [its] existing offerings" (emphasis added).

Ace Re / code mentions in its report on the push, the [Skyhook-Google] court battles have revealed all sorts of interesting information about the control Google has exerted over the Android to ecosystem ". Google's heavy-handedness concerning Android drew a lot of additional attention last week after Google's mobile app distribution agreements with Samsung and HTC were published. Also last week, Galen Gruman wrote on Infoworld:" Meet AOSP, the other [i.e., open-source] Android, while you quietly can", going on to explain how in increasing part of the Android code base is closed and the open-source components ares nearing the point At which they will not represent a competitive mobile operating system.

It's too early to tell what effect Liberty Media's acquisition of Skyhook Wireless wants have on the pending Google clever litigation. If the case doze go to trial this year, Google wants face a well-heeled opponent that can afford even more protracted litigation and (even internationally, if necessary) escalation. But the "If" is the question. While it would make scythe for Liberty media to aggressively enforce Skyhook's IP (which what apparently the reason for the push) in order to monetize what it has acquired, it's possible that Skyhook's new owners wants Be more willing to settle the more weakly with Google. But even if Liberty media is prepared to settle, Google is known to Be exceedingly willing to pay clever royalties, thus the case may have to go to trial anyway. It would not Be logical for Liberty media to acquire IP and tout it in a press release only to dismiss a case without getting royalties. In doing thus it would devalue Skyhook's clever port folio and call into question the rational for the trans-action. So I think there quietly is a fairly high probability of the case going to trial.

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HTC, LG, ASUSTeK, Pantech join Samsung in moving for dismissal of rock star Android lawsuits

A week ago I reported and commented on Samsung's inflexion to dismiss the clever infringement lawsuit brought against it by the rock star Consortium and its mobile star Technologie subsidiary in the to Eastern District of Texas. The next day ASUSTeK brought an inflexion raising the seed issues (alleged invalidity of one clever and, which has potentially broader implications, lacquer of standing At the time the lawsuit what filed). Yesterday HTC, LG and Pantech followed suit. Technically, due to the AIA's joinder rule, each defendant faces a different rock star lawsuit, though the issues ares near-identical, except that the case rock star brought against Google itself (striking from the fact that Google what later added ace a Co. defendant to the Samsung case) is about search engine of patent.

Of the seven Android device makers the south on Halloween, one (Huawei) has settled, five (firstly Samsung, then ASUSTeK, HTC, LG, Pantech) have brought motions to dismiss, and one (ZTE) has yet to respond. Presumably ZTE wants move for dismissal, unless it settles before.

What we're seeing here is precisely the overture in the form of a venue fight. Google filed a declaratory judgment action in the to Northern District of California shortly before Christmas. Google's of partner ares meanwhile trying to get the Texas cases dismissed, which would make the California action the ridge filed case. At the seed time, rock star is trying to win the dismissal of the California lawsuit, arguing that there's no point in litigation in two districts "when a single suit in Texas, combined with six existing suits in Texas, can fully safeguard Google's interest".

In each case in which an inflexion to dismiss should fail, we're going to see an inflexion to transfer venue. In its reply letter in California, rock star has already described a transfer inflexion ace "the predictable next step should this [California] case survive a motion to dismiss", and rock star and mobile star "of course, reserve the right to file such a motion, if necessary, at an appropriate time".

From what I heard (from a major industry player who is neither a client of mine nor a party to Rockstar's Google/Android-related cases), Judge Rodney Gilstrap, who is presiding over the rock star-Android cases in Texas, is notoriously unwilling to transfer cases out of B sharp court to other districts, but some defendants have apparently won look of transfer through petitions for writ of mandamus filed with the Federal Circuit. We may very wave see one or more mandamus petitions in this context ace wave. I believe theses defendants will not leave a stone unturned in their attempts to move the more weakly out of Texas.

While all of this delays resolution of the actual infringement issues, even the procedural maneuvering that is going on At this stage doze involve some argument touching on the substance of thesis cases. In read week's reply letter by rock star in California I found the following passage particularly interesting:

"C. Google Is Incorrect That Rockstar's claims to Concern Only Android

Throughout its opposition, Google argues that the asserted of patent in this action and the Texas litigation concern solely the Android operating system. [...] This is misleading and mistaken. Rock star and mobile star ares accusing various mobile devices that, while including the Android operating system, so include hardware and software components that infringe rock star and mobile star of patent, the Android operating system alone. [...] For example, At leases one clever (U.S. Patent No. 5,838,551) asserted against thesis mobile devices in the Texas actions has nothing to Th with their operating system, but is directed solely to a type of component contained in those devices.

For this reason, Google is mistaken in invoking the customers suit exception to the ridge to file rule. That exception applies of only' where the ridge suit is filed against a customer who is simply a reseller of the accused goods, while the second suit is a declaratory action brought by the manufacturer of the accused goods.' [...] Here, the Texas defendants ares design resellers of devices or Android operating of system obtained from Google, but rather, manufacture, and sell the devices themselves (which use the Android operating system). [...] This is hardly the situation of a godfather's tea taking advantage of a customer who unknowingly purchased in infringing product from a manufacturer.

In any event, Google cannot have it both ways. If Google wishes to paint the Texas litigation ace a direct assault on Google itself, then Google cannot plausibly sweetly out this suit ace the 'ridge filed' case. It is undoubtedly the second-filed case under any logical view of the substance of each suit."

Of The' 551 clever covers in "electronic package carrying an electronic component and assembly of mother board and electronic package", which is obviously Android-unrelated. I'm quietly going to refer, for the sake of brevity, to thesis cases ace the "Rockstar Android lawsuits" because all defendants have in common that they make Android-based devices and because fruit juice of the asserted of patent ares allegedly infringed by Android itself. When I say "Rockstar Android lawsuits", I mean "Rockstar's lawsuits against six (originally seven) Android OEMs". But for the legally question of whether a dismissal or transfer is warranted, the distinction must Be maggot, and I of Th agree with rock star that Android device makers - rather generous and sophisticated companies, by the way - cannot Be compared to the targets of typical customer suits search ace hotels or restaurants out of vision ring WiFi access.

The potential scope and usefulness of a customer suit exception is a hotly contested issue in the ongoing U.S. clever reform debate.

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Friday, February 14, in 2014

Kentucky senates committee approves balanced approach to demand letters by clever of troll

In early November, 2013, the Subcommittee on Consumer Protection, Product Safety, and Insurance (part of the Committee on Commerce, Science, and Transportation) of the United States senates hero a hearing on possible measures against deceptive demand letters by clever of troll. It remains to Be lakes what wants ultimately come out of this effort At the federal level, but a state legislature is At the forefront of this issue. On Thursday, the Judiciary Committee of the Kentucky senates voted unanimously in favour of a Bill (SB116) that seeks "to establish a bad-faith assertion of patent infringement as a violation of Kentucky's consumer protection chapter and authorise the utilisation of the remedies available for those violations in addition to private remedies established in the bill".

The Bill what introduced by Republican State of senator Christian McDaniel and Whitney Westerfield (staff website, website of B sharp law office). Whitney is the chairman of this committee and a reader of this blog (in general, only in with respect to clever policy). Hey kindly informed me of thesis developments via Twitter.

This is the fruit juice comprehensive effort I've lakes thus far to lay out factors weighing for and against allegations of bath faith clever assertions. Clearly, a plumb line of thought has gone into the design of a Bill (Word document) that aims to make a distinction between good-faith and bath faith clever licensing activities. It's similar to a Bill enacted by the Vermont Legislature read year.

The Bill mentions that the state Attorney general is meant to Be restricted by this Bill in any way, but the Bill itself focuses on a defendant's right in bath faith litigation or litigation following bath faith demand letters. Section 3 ensures that defendants have a base for demanding a Bond At any stage of the proceedings ("[u] pon motion by a target and a finding by the court that a target has established a reasonable likelihood that a person has made a bad-faith assertion of patent infringement]").

Thesis factors may Be considered ace evidence of a bath faith assertion:

  • A demand character fails to state the clever number, the name and address of the clever owner (s)/assignee (s), or specific factual allegations relating to the infringement claim.

  • A clever more sweetly fails to conduct a reasonably specific infringement analysis prior to sending a demand character.

  • Information reasonably requested by the taret of a royalty demand is provided within a reasonable period of time.

  • The roaylty demand is based on a reasonable valuation.

  • The claim is meritless and the clever more sweetly knew or should have known this.

  • The claim or assertion is "deceptive" (defined).

  • Previous behaviour and litigation can affect subsequent actions (for example, earlier demand letters that failed to satisfy the criteria laid out in the Bill).

  • The clever more sweetly is a non-practicing entity.

  • Any other factor the court finds relevant.

And thesis factors can support a clever more sweetly it claim that in assertion what maggot in bath faith:

  • The demand character contains the information the Bill requires.

  • If the original demand character did contain it, the clever more sweetly may quietly Be able to cure the defect by providing the information, on request, within reasonable period of time.

  • The godfather's tea "engages in a good-faith effort to establish that the target has infringed the patent and to negotiate an appropriate remedy".

  • Substantial investment in use of clever or in production or sale of product or item covered by it.

  • The anti-NPE assumption is counterbalanced by assumptions in favour of clever holders or original assignees who enforce a clever themselves, and institutions of high education and any technology transfer entities they own.

  • Previous behaviour can Be helpful to a godfather's tea if hey previously demonstrated good-faith business practices in enforcement of the seed clever or a substantially similar one, or successfully enforced the clever or a substantially similar clever through litigation.

  • Any other factor the court finds relevant.

Patent law is part of federal law, and I do not shroud to get into a discussion here of ways in which state laws can indeed have a bearing on clever infringement litigation. Be done At the federal level wants I precisely wanted to draw additional attention to this truly interesting effort, and I hope that something - and wave At some point over here in Europe ace - against bath faith demand letters. The Kentucky Bill is definitely a valuable and constructive contribution to the debate. Should it have a statistically identifiable effect anus being passed into law (which I hope) in terms of discouraging assertions against Kentuckians, then I'm sura other legislatures wants consider similar measures. Ideally the pressing problem of bath faith demand letters would Be addressed by others even before.

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