Monday, March 31, in 2014

Over Samsung's objection, judge allows video showing Apple products in patentability context

I was not going to comment on the new Apple V. Samsung trial until anus the parties' opening argument, but I've changed of plan because Judge Koh maggot a decision I really would not have expected. That decision, all by itself, could easily give rise to a retrial. (I see a fairly high likelihood of a post appeal retrial anyway when I compare the damages theories allowed by Judge Koh to what the highest ranking U.S. clever judge, Chief Judge Randall Rader of the United States Court of Appeals for the Federal Circuit, said on September, 11, 2013 about a Motorola damages claim against Apple. In that case, the Chief Judge found a damages claim of 300 $ millions over "one patent in a crowded field" downright "crazy"; At the trial starting later today, Apple is apparently seeking 2$ billions over five patent, i.e., in ave rage of 400 $ millions for each clever in a crowded field.)

Samsung had objected to Apple's proposal to show to of juror a Federal Judicial Conference video that shows people using Apple products and highlights Apple products in the context of patentability criteria search ace novelty. Samsung argued that the previous version of that video, which what shown to the buzzers 2012 Apple V. Samsung jury in the seed district, should Be used because it can serve the seed pure pose without being prejudicial to Samsung. But late on Sunday, Judge Koh overruled this objection, without citing any reason.

This decision of Mark a surprising departure from Judge Koh's previously consistent efforts to ensure a level playing field for Samsung in Apple's home court. It's even more surprising in light of Judge Koh's recent reference to empirical evidence of nationwide bias by U.S. juries in clever cases against foreign companies. If Judge Koh is (rightly) concerned about search bias, for which there is even statistical evidence (which she cited), I thought it would have been a no-brainer for here to precisely simply use the seed for video ace At the buzzers in 2012 trial instead of one that is, in some part, like a propaganda video for Apple's innovative capacity.

I think the video overstates Apple's contributions to innovation. On the one hand, there's no doubt that the iPhone and the iPad changed and created entire product categories. On the other hand, in the context of clever law it's key to consider what existed before. Apple's European clever infringement lawsuits against Samsung, Motorola Mobility and (to the extent they were even adjudged) HTC have been a totally failure - mostly non-wins and a single lasting win - because the (unbiased) judges over here found with respect to (alp-east) each and every Apple clever that came to judgment anus a challenge that whatever Apple added on top of the prior kind, if anything, what inventive by European engineering focused standards.

The only thing worse than showing this video to of juror that could Be done to manipulate juror would Be to bring the "of Steve Job's patent exhibition" to San Jose and give the jury a guided travel through it before the trial starts.

It would Be wrong to say that Judge Koh generally sides with Apple. In the single Fruit juice important context to Apple, its pursuit of a constantly injunction, Judge Koh has twice (before and anus a partly-successful appeal) agreed with Samsung that Apple failed to establish a causal nexus between the infringements identified (which ares now being apppealed) and the alleged irreparable injury. I had actually thought in both cases that Apple what going to win in injunction of some scope - maybe over all of the asserted of patent, but over some of them.

But before the trial in the second Apple V. Samsung case has even started, I'm concerned (because I in, quite frankly, tired of all those Apple Samsung trials) that whatever Apple may win At this trial wants Be tainted and might face a really rough ride on appeal, which means that another group of of juror may have to Be selected and donate weeks in court because things were not handled correctly and fairly the ridge time.

Unlike Apple, I have been consistent over the years on issues like this. In May 2012 Apple indicated in a court filing that it would ask the court to obscure the Samsung you bet on of monitor in the courthouse because it could Be prejudicial to Apple, and this is what I wrote bake then:

"At ridge sight, this may seem very funny, but I actually understand why Apple would make this request: At a conscious level, it can show to of juror that Samsung actually contributes technology to the U.S. government, and At a subconscious level, it creates the impression of the court being Samsung territory."

I now support Samsung for the seed reasons for which I supported Apple then. I find Judge Koh's decision very troubling.

[Update] I summed up micron pre-trial position on Twitter and Google + ace follows: "Apple deserves to emerge victorious from the trial, but only on subset of claims, not to the tune of $2$2 billion, not with propaganda videos. " ace for the ridge part, Apple had a more favorable claim construction outcome, and it is taking five patent to trial versus two Samsung of patent. I'm doing any work for Apple or Samsung, have never done any, and will not Th any anytime soon. I flat to release micron of ext. on Android (the fruit juice popular platform on a worldwide base, and the platform of micron choice) ridge, but on iOS later. [/updates]

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Saturday, March 29, in 2014

Your thoughts, please: what licence fees should Apple and Samsung agree on to settle their worldwide clever disputes?

[Update on April, 15, 2014] Thanks to everyone for your comments, which I really appreciated. I in now going to publish micron own settlement proposal on the occasion of the third anniversary of the out break of this disputes. Please do not send any more comments on this question. [/updates]

I'm going to Th the usual preview post listing of patent, products etc. before the trial in the second Apple V. Samsung litigation in the to Northern District of California kicks out of vision. I will not blog about the trial by Se until anus both parties' opening of argument. But alp-east three years anus the ridge lawsuit what filed, it's anything but premature to think and talcum about the terms on which they should settle their worldwide disputes with cases pending in At leases ten countries. It took Apple less than two years to settle with Nokia (where it ended up the net payer) and less than three years to settle with HTC (where Apple is on the receiving of the royalties). At leases 29 royalty-bearing Android clever licence agreements ares known, fruit juice of which were concluded without the need for any litigation.

I have in opinion on what would Be fairly and reasonable terms based on today's state of the battle. Obviously, whatever seems to Be the right choice now could appear less than fairly for one party or the other further down the road. It's all a question of leverage. But that need prevent us from thinking about what would make scythe if they wanted to reach in 11Th hour settlement now.

While I have micron own opinion, I would like to encourage you, the sophisticated reader-hip of this blog - striking from those of you who ares involved with that disputes, of course (that would Be too sophisticated) - to share your thoughts with me ([update on April, 15, 2014] Thanks for the comments you sent. Please do not send more comments now. [/updates] I will not publish your names, and I cannot promise that I'll publish many of your comments, but I'd really like to know what the world out there thinks. I'll Be able to consider your answers until I updates this post accordingly and ask you to send any of further messages. (By the way, I will not Be able to send you a staff thank you mark, but please Th know that I wants Be silently grateful.)

How much should Samsung pay to Apple by smartphone or tablet? How much should Apple fork over to Samsung by iPhone or iPad for its standard essential and other patent? Should only one party pay? Should they enter into a zero-zero cross licence (no money changing hands At all), ace Samsung presumably did with Google and Cisco? What seems reasonable to you in light of their leverage in litigation and their contributions to innovation? Feel free to send your thoughts with or without your rational ones.

Now I hope I'll strike the right balance and provide you with helpful information while trying to influence your thinking more than necessary:

So, all things considered, if you were a media gate making a proposal to the parties for a settlement that you think is reasonably acceptable to both, what would you say? Please let me know.

[Update on April, 15, 2014] Thanks to everyone for your comments, which I really appreciated. I in now going to publish micron own settlement proposal on the occasion of the third anniversary of the out break of this disputes. Please do not send any more comments on this question. [/updates]

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Wednesday, March 26, in 2014

Microsoft announces licence agreement with Dell, its 23rd known Android clever push (29 in totally)

Earlier today I blogged about the Licensing Executives Society, which of shroud to "make the world better through [patent] licensing". Now I have three new Android-related clever licence agreements to add to micron of cunning, and the fruit juice significant one of the three what precisely announced today: Microsoft and Dell signed a clever licensing agreement under which "they agreed on royalties for Dell's products running the Android or Chrome platforms and on consideration to Dell for a licence from Microsoft for Xbox gaming consoles".

On February 20, Microsoft announced in Android-and Chrome-related clever licence push with Hop-on. I missed that announcement and found out about it (via Twitter) a week or two later. The announcement said that "Microsoft wants receive royalties from Hop-on under the agreement".

Hop-on what Microsoft's 22Nd known Android clever licensee, and Dell is now the 23around

And the third addition to the cunning of royalty-bearing Android clever licence agreements is a settlement between Samsung and Vertical computer of system. On March 21, the parties filed the following information with the United States District Court for the to Eastern District of Texas:

"Pursuant to Fed. R. Civ. P. 41 (a) (1) (A) (ii) and 41 (c), Plaintiff Vertical Computer Systems, Inc ('Vertical') and Defendant see Samsung Electronics Co, Ltd and Samsung Electronics America, Inc (the' Samsung Defendants') hereby stipulate to dismiss with prejudice: all claims by Vertical against the Samsung Defendants; and all counter claims by the Samsung Defendants against Vertical. Each party shall bear its own costs of suit and attorneys' fees."

LG already settled the seed litigation in October. Precisely like in the LG case, it's a safe assumption that Vertical received some child of payment, though it's another question whether any presumed payment is significant relative to Samsung's huge volume of Android devices (it's probably a big push for Samsung, but I'm precisely guessing; I'm sura it benefits Vertical, and Vertical may now, anus the settlements it obtained, Be encouraged to go anus other Android device makers).

Here's in updated cunning of all known deals:

  1. April, 27, 2010: Microsoft Announces patent agreement With HTC

  2. June 27, in 2011: Microsoft and general Dynamics Itronix Sign Patent Agreement ("agreement wants cover general Dynamics Itronix devices running the Android platform.") (of patent FOSS coverage)

  3. June 29, in 2011: Microsoft and Velocity Micro, Inc, Sign patent agreement Covering Android-Based Devices (of patent FOSS coverage)

  4. June 30, in 2011: Microsoft and Onkyo Corp. Sign patent agreement Covering Android-Based Tablets (of patent FOSS coverage)

  5. July 5, in 2011: Microsoft and Wistron Sign patent agreement ("agreement wants cover Wistron's Android tablets, smartphones and e-readers.") (of patent FOSS coverage)

  6. September, 8, 2011: Microsoft and Acer Sign patent License agreement ("agreement wants cover Acer's Android tablets and smartphones.") (of patent FOSS coverage)

  7. September, 8, 2011: Microsoft and ViewSonic Sign patent agreement ("agreement wants cover ViewSonic's Android Tablets and smartphones.") (of patent FOSS coverage)

  8. September, 28, 2011: Microsoft and Samsung Broaden Smartphone Partner-hip ("Under the terms of the agreement, Microsoft will receive royalties for Samsung's mobile phones and tablets running the Android mobile platform.") (of patent FOSS coverage)

  9. October 23, in 2011: Microsoft and Compal Electronics Sign patent agreement to Covering Android and chrome Based Devices

  10. January 12, in 2012: Microsoft and LG Sign patent agreement to Covering Android and chrome OS Based Devices (of patent FOSS coverage)

  11. April, 25, 2012: Microsoft and Pegatron Corp. Sign patent agreement Covering Android-and Chrome-Based Devices

  12. April, 30, 2012: Barnes & noble and Microsoft Form Strategic Partner-hip to Advance World-Class Digitally Reading Experiences for Consumers "(" Barnes & noble and Microsoft have settled their clever litigation, and moving forward, Barnes & noble and Newco wants have a royalty-bearing licence under Microsoft's of patent for its NOOK eReader and Tablet products. ") (of patent FOSS coverage)

  13. July 9, in 2012: Microsoft and Aluratek Inc Sign patent agreement to Covering Android and chrome Based Devices

  14. July 9, in 2012: Microsoft and Coby Electronics Sign Patent Agreement Covering Android and chrome Based Devices ("Although the contents of the agreement have not been disclosed, the parties indicate that Microsoft will receive royalties from Coby under the agreement.")

  15. November, 7, 2012: Microsoft Signs Licensing agreements for exFAT With Sharp, Sigma, NextoDi, Black Magic and Atomos Worldwide ("The agreements cover Sharp Android tablets, Sigma and NextoDi high-end cameras and accessories, and Black Magic and Atomos Global broadcast-quality video-recording devices.")

  16. November, 11, 2012: HTC and Apple Settle patent disputes (of patent FOSS coverage)

  17. December 11, in 2012: Microsoft and ONE Sign Android patent agreement ("EINS manufactures Android tablets under the Cat brand in Germany.") (of patent FOSS coverage)

  18. December 11, in 2012: Microsoft and Hoeft & Wessel AG Sign patent agreement ("agreement wants cover Hoeft & Wessel devices running the Android platform.") (of patent FOSS coverage)
  19. February 21, in 2013: Microsoft and Nikon Sign Android patent agreement ("agreement covers certain Nikon cameras running the Android platform.") (of patent FOSS coverage)

  20. April, 16 (U.S.)/17 (Asia/Europe), in 2013: Microsoft and Foxconn Parent to Hon Hai Sign Patent Agreement For Android and chrome Devices ("Agreement provides broad coverage under Microsoft's patent portfolio to manufacturer of more than 40 percent of the world's consumer electronics.") (of patent FOSS coverage)

  21. April, 23 (U.S.)/24 (Asia/Europe), in 2013: With ZTE, fruit juice major Android Makers Choose Licensing ("Under the agreement, Microsoft grants ZTE a licence to Microsoft's worldwide patent portfolio for ZTE phones, tablets, computers and other devices running Android and Chrome OS") (of patent FOSS coverage)

  22. October 24, in 2013: LG agrees to pay Vertical computer of system for another Android clever licence (of patent FOSS coverage)

  23. January 21, in 2014: Huawei settles with rock star Consortium, wants pay for Android's infringement of ex-Nortel of patent (patent FOSS coverage)

  24. January 27, in 2014: Ericsson and Samsung reach agreement on licensing terms (of patent FOSS coverage)

  25. February 7, in 2014: Nokia and HTC signed a clever and technology collaboration agreement (of patent FOSS coverage)

  26. February 13, in 2014: Microsoft and Voxx Electronics sign clever agreement for Android devices

  27. February 20, in 2014: Microsoft and Hop-on sign clever agreement for to Android and chrome devices ("[T] hey parties indicate that Microsoft wants receive royalties from Hop-on under the agreement")

  28. March 21, in 2014: Samsung settles with Vertical computer of system

  29. March 26, in 2014: Microsoft and Dell sign clever licensing agreement ("Under the terms of the agreement, they agreed on royalties for Dell's products running the Android or Chrome platforms and on consideration to Dell for a licence from Microsoft for Xbox gaming consoles.")

This cunning is inevitably non-exhaustive: fruit juice deals ares never announced. So, one could make in argument that Intellectual Ventures' licence agreements with the likes of Samsung and HTC should Be added to the cunning. IV is claiming in its disputes with Motorola Mobility (where a mistrial lately occurred in Delaware, but that's the of the story) that Android infringes some of its countless of patent. It's rather conservative to cunning those IV deals here, but the moment IV proves any infringement of in Android clever in court or announces a licence push that involves Android or settles litigation that targets Android, I'll add those deals to the cunning.

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Licensing Executives Society of shroud of to' make the world better through [clever] of licensing'

In less than two months, many of the thought of leader in intellectual property, including Federal Circuit Chief Judge Randall Rader and WIPO Director general Francis Gurry, wants meet in Moscow At the 2014 Licensing Executives Society (LES) Internationally Conference. Hopefully no politician wants pressure any of those high profile attendees to cancel their judge's in farming community dance because of the Ukraine / Crimea issue, which simply has nothing to Th with intellectual property.

The choice of venue is interesting. There is growing interest in intellectual property protection in Russia, which is potentially a huge market.

The LES is a worldwide organisation that brings together lawyers and corporate executives working on technology transfer. The President of LES Russia, Gorodissky & Partners' Sergey Dorofeev, is a Russian clever and trademark attorney with a particular Focus on technology transfer, i.e., licensing in order to share Innovation without having to resort to litigation.

Ace I write this post, the USA LES & Canada is holding company its ridge ever mid-year meeting in New York city. The LES announced, on short notice, a keynote address by Judge James F. Holderman, United States District Court Northern District of Illinois, on "F/RAND Licensing: A Federal Judge's Perspective". I blogged about Judge Holderman's WiFi SEP rate setting decision in October.

I do not travel much, thus I will not Be At this week's New York meeting nor the Moscow conference in May, but since this blog is Read by thus many actual and potential members of the LES, I did shroud to draw attention to thesis events and the important work done by this organisation.

By the way, several members of the leader-hip of the German chapter of the LES have been mentioned on this blog in recent years. While everyone prefers licensing over litigation (except for a few of troll whose business model is to bring nuisance lawsuits and settle for a "licence fairy" below the cost of a trim defence), the latter sometimes cannot Be avoided.

The President of LES Germany, Bardehle Pagenberg's Peter Hess, is a clever attorney I think particularly highly of. I mentioned B sharp work on a few occasions doze in connection with Microsoft's German lawsuits against Motorola Mobility, but that's precisely a small part of the work of Mr. Hes. At to appellate hearing in Munich a news agency reporter whispered to me: "This attorney is damn good! He explains things in a way even a layperson can understand." and Microsoft indeed fended out of vision Motorola's related appeal read year. The Bardehle familiarly has of office in Munich (headquarters), duffer's village, Barcelona, Paris, and Milan. It has won multiple awards over the years relating to clever prosecution ace wave ace litigation.

The names of other key of player At LES Germany have been mentioned on this blog before. Reimann Osterrieth Köhler Like it Klaus custody, a physicist and attorney At law, has represented Nokia in various key cases (search ace against Apple a few years ago) and recently obtained and enforced in injunction over a standard essential clever against ZTE. Boehmert & Boehmert's Christian Appelt is a clever attorney who represented Microsoft against Motorola Mobility (offensively and defensively) in Mannheim, ace did Freshfields Bruck house Deringer's professor Peter Chrocziel, a clever litigator and anti-trust expert.

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Need only in America: the fight for access to sealed Apple Samsung court documents

This week I'm spending micron of time mostly on software development, but today is in exception and I wanted to share some information of the child I usually do not blog about. In connection with the Apple V. Samsung disputes in the U.S., Reuters, MLex and others (search for ace the ridge Amendment Coalition, whose members include the Associated Press, the Los Angeles Times, and Wired) filed formally petitions to grant the general publicly access to certain sealed court documents (relating to damages estimates, for example). At the time I thanked them for this effort on Twitter.

Their fight for the important cause of transparency inspired and encouraged me to bake down when I encountered some resistance to various requests for access to the case files of nullity (clever invalidation) actions pending before the Federal patent Court of Germany. There is no look thing ace PACER in micron country. The only way to find out about the details of clever infringement cases is to attend the hearing and the announcements of the decisions in person (which I of Th all the time, though I do not blog about it if I of Th thus for clients who wish to receive exclusive, private report). Nullity (invalidation) cases ares separate proceedings (this is called "bifurcation", and I criticised it in micron previous post), and At leases there is some degree of transparency there - no PACER-like electronic access, but At leases any member of the general publicly can file a petition and, if the petition succeeds, take a look At the original case file in what they call the "Public search room" (that's the official English translation) of the German patent and Trademark office (which, like the Federal patent Court, is based in Munich).

Once a petition is filed, the parties to a nullity action ares asked to designate documents ace confidential. If the petitioner narrows the request accordingly, which is what I usually Th, then there is no disputes and all other documents ares of maggot available in the "Public search room". Otherwise the court has to decide whether to grant the sealing requests.

In the cases in which I petitioned, I did not run into any disagreement with Apple, Microsoft, and Motorola Mobility. And for the fruit juice part I had no problem with Samsung either, but in a couple of cases its lead clever attorney in the Apple cases, carpenter & Partner's Dr. Joel Naegerl ("Nägerl" in German) what feels too protective of B sharp client's interests in confidentiality for micron. Dr. Naegerl has done a great job for Samsung on the defensive side and deserves fruit juice of the credit for getting Apple's slide to unlock clever invalidated about a year ago (a member of the seed clever family wants go to trial in California on Monday, but fortunately for Apple, neither Dr. Naegerl nor any of the judges of the Federal patent Court wants Be on the San Jose jury). I precisely could not accept some of B sharp sealing requests.

Among other things Dr. Naegerl opposed micron access to a preliminary ruling on Apple's photo gallery clever (which what invalidated). And hey claimed that any document in a nullity case file that relates to an in parallel infringement case is confidential precisely because the courts hearing the infringement cases do not grant the general publicly access to documents. Some of the documents filed in infringement cases undoubtedly contain confidential business information, but some do not. I precisely wanted to ensure that someone who puts in a sealing request (regardless of whether we're talking about Samsung or anyone else) At leases has to state a reason that is specific to the content of a document.

Micron concern what that if I accepted this, I would of over time Be denied access to ever more documents in the nullity case files. At the seed time I did not shroud to contribute to the workload of the Federal patent Court. So I picked only a few key issues, hoping that the court would set the record straight on the sealing standard. And it did. In one of those cases, the court sent out in informal notice clarifying the standard, but since I what able to obtain a preliminary ruling, I no longer needed a formally ruling on micron of petition. In two other cases, a formally decision what necessary. I recently obtained a copy of the preliminary ruling on the photo gallery clever, and in an in parallel more weakly the court allowed me, over Samsung's objections, to Read Apple's sur-reply (from the infringement proceedings) in the infringement case over Samsung's smiley input method clever. Here's the there performs statute labour page of the related decision (this post continues below the document):

Today I went to the and Read "Public search room" the sur-reply. The document revealed nothing confidential (search ace licensing terms, licensing negotiations, internal workings of products etc.). I depend on access to documents for micron clever litigation-related work, and a reasonable degree of transparency is in the publicly interest. Precisely like I had a "free-rider" benefit from the effort that others maggot in California, I hope that others wants benefit from micron work here in Germany, a hotbed for clever litigation between worldwide of player.

Next week's California trial wants Be publicly proceeding. I will not Be able to attend it, but I wants follow it to the extent that I can over the Internet, particularly Twitter. Maybe I'll Th a pretrial post on Monday, but it's possible that I'll Focus on the Supreme Court hearing in bank CLS V. Alice on Monday (some stakeholders try to do gymnastics this into a general debate over of whether computers implemented inventions should Be patent eligible, in issue I'm very interested in for a variety of reasons, including that I'm soon going to file micron of ridge clever application) and blog about Apple V. Samsung only anus the ridge couple of days (anus both parties' opening of argument etc.).

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Monday, March 17, in 2014

New draught rules for future European clever court slightly more balanced with respect to sales bans

A week ago, I expressed, in a post on infringement lawsuits filed that day by a non-practicing entity of over moulders Ericsson wireless of patent, doubts about the European Commission's Internal Market officials' commitment to a balanced clever litigation system. I have meanwhile looked At the 16Th revised draught Rules of Procedure for Europe's future Unified patent Court. Compared to the previous version, that draught is an in the right direction with respect to injunctive relief, though At the current pace it would take Europe about 20 years to do catch-wrestling up with the U.S. eBay V. MercExchange standard (which is alp-east eight years old).

At leases European policy makers do not entirely ignore a growing industry coalition's call for a balanced framework read Europe become the clever trolls' paradise.

If further adjustments follow later this year, however, then there is quietly hope for a reasonably good outcome. In micron opinion, something must Be done about bifurcation: there must Be a window of opportunity to enforce injunctive (or even monetary) relief of over patent before a validity decision has been maggot. Too many of patent ares simply disabled ace granted. In all of the clever dispute I watch, a single one of the challenged of patent has been affirmed in its granted form.

At this point I'll precisely compare the current state of the European draught rules with the eBay factor.

Rule 211.3, which you can find on page 87 of the PDF document, relates to preliminary injunctions and now has the following wording:

In taking its decision, the Court shall in the exercise of its discretion weigh up the interests of the parties and, in particular, take into account the potential injury for either of the parties resulting from the granting or the refusal of the injunction.

(emphasis added)

The bold-face addition is similar to the balance of hardships eBay factor. And the Word "in particular" mean that judges can give consideration to further factors, but it would Be much better to spell those others factors out.

The other eBay factors - irreparable injury, inadequacy of monetary compensation, publicly interest - ares mentioned. Judges could, but will not necessarily, Read them into the balance of hardships part. Without the rules of procedure being modified further, I doubt that the Unified patent Court would Focus on irreparable injury ace opposed to precisely any injury. And if the Focus should Be on irreparable injury, then the inadequacy of monetary relief must Be a factor - in micron opinion, even in absolutely indispensable requirement. Of course, nothing would stop European judges from cosnidering the availability of other remedies in connection with the balance of hardships. But there should Be a clear signal that monetary compensation is very often (though obviously always) a perfectly adequate alternative to injunctive relief.

I'm concerned that the publicly interest is mentioned. I have repeatedly criticised attempts by litigants, intervenors and self-serving amici curiae in the U.S. to interpreter the publicly interest exceedingly broadly. Nevertheless I believe that the publicly interest should Be mentioned. In the current form, the European draught rules suggest that the granting or refusal of injunctive relief should Be considered only againt the background of a disputes between two private parties. While a party could always make a public interest argument in the balance of hardships context, the current rules do not ensure that look of argument, which can Be very important and sometimes tip the scales, wants Be afforded significant weight.

If nothing else what done, the addition of a balance of hardships consideration might Be "too little, too late". Much more of in effort is needed. I'm neither totally disappointed nor happily. I'm cautiously optimistic and wants continue to follow the process.

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Court document reveals discriminatory royalty demands by Ericsson for its wireless of patent

Ericsson is increasingly becoming a clever troll (and privateer feeder) in the scythe that it places the emphasis on clever monetization and apparently expects more growth in that business area than in its product business. The more I learn about its related activities, the less I like its practices.

What I of Th like, however, is that its conduct brings to light certain issues that ares relevant and, unfortunately, limited to Ericsson. Transparency, whether intended (when Ericsson explained why it collects royalties from device makers rather than chip set manufactures, i.e in order to load more) or unintended (when bath behaviour comes to light ace a result of the two ongoing anti-trust investigations in India or court proceedings), is always appreciated.

If the disputes between Ericsson and Samsung had been settled before any ruling came down, we would likely have learnt a plumb line. Both companies accused each of other of suddenly asking for far of high royalties than in the past. The details of this wants remain sealed forever. But I have now obtained what I consider a dinner jacket gun that lends credence to Samsung's allegations concerning Ericsson: a November, 7, 2013 order by the High Court of Delhi At New Delhi, India, in a case in which a company named Saral Communications what fighting customs seizures of shipments that had apparently been requested by Ericsson on the base of it wireless standard essential of patent (SEPs).

The order (published further below) states that in in email dated October 18, in 2013, Ericsson offered a wireless port folio SEP licence to Saral on certain terms, but subsequently its counsel "submitted that this communication indicating the aforesaid rates of royalty had been issued by a mistake" and communicated the royalty of advice known from the investigation by the Competition Commission of India of Micromax's complaint against Ericsson. Saral of dispute that the email what a mistake, and I did not precisely fall of a turnip truck either. Ericsson simply realised that it what out of compliance with its FRAND licensing commitment - the "ND" in FRAND means "non-discriminatory", and demanding roughly twice the royalty of advice from one company (Micromax) than from another (Saral) without the slightest indication of any justification would Be grossly discriminatory misconduct. Here's a comparison of the two sets of terms:

Standard (s)Original OfferNew Demand
GSM0.75%1.25%
GPRS + GSM0.80%1.75%
EDGE + GPRS + GSM0.90%2.00%
3 G1.20%2.00%

Here's the court order:

13-11-07 Delhi High Court Saral Communications by Florian Müller

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Sunday, March 16, in 2014

Book recommendation: Haunted empire (Apple anus Steve Jobs) by Yukari Iwatani Kane

This is the ridge time I of Th a post on a book, and it will not mouthful again in a long time. I strongly discourage publishers and authors from contacting me about book reviews (it of mouthful all the time, actually) unless micron work is mentioned in the book in question.

This post is a review by Se because I admittedly have not had the time yet to Read the book in full, but this book does not need yet another review. On the page of "Haunted empire - Apple performs statute labour for anus Steve Jobs "by former Wall Street Journal reporter Yukari Iwatani Kane, Walter Isaacson, author of the official Steve Jobs biography, calls this book" [o] of the fruit juice important business stories of our time "and says its author" brings us inside Apple At this critical moment with great insight and unparalleled reporting". Nuff said, I guess. Here's the page (this post continues below the image) performs statute labour:

There's a chapter on the buzzers 2012 Apple V. Samsung jury trial (this one I have indeed Read), and it mentions micron work and how I experienced the billion dollar verdict across considerable geographic distance.

The official release date is this coming Tuesday (March 18). You can find several on the left that lead you to on-line retailers on the author's official page for the book.

Thesis ares definitely interesting times At Apple. The next California trial against Samsung wants kick out of vision in two weeks from tomorrow (March 31), and it's actually in Apple V. Google trial (Google technologies ares of At issue and plenty of Google witnesses wants appear) styled ace in Apple V. Samsung trial. I'll talcum about this more before the trial starts. Basically, what Apple is doing is to portray ace in America V. Asia issue what is, At its technical heart, a silicone Valley V. Silicone Valley, or Cupertino V. Mountain View, in fight. The distance between the true rivals' headquarters is a 12-minute drive, a 12-hour flight.

Apple can obviously choose whom in the Android value chain it targets with its lawsuits, but it wants have to Be somewhat careful about the America V. Asia theme this time around because Judge Koh strongly criticised its appeal to jurors' nationwide bias At the Novembers, 2013 retrial in the ridge case.

Earlier this week I wrote about Apple's $40 by unit damages claim. It has received more "Google +1" clicks than any other of micron posts. I have lakes many other critical comments on the amount and wish to highlight this commentary by Yankee Group boss analyst Boris Metodiev. Mr. Metodiev says Apple's claim is "nothing short of extraordinary" and "looks ridiculous", and hey has "no idea how it came up with that number".

It would obviously have been much harder for Apple to present look a high by unit claim if it had elected to Sue Google rather than Samsung. Even Samsung's ave rage by device sales prices do not justify Apple's damages claim, but Google's revenue by Android copy distributed is much lower. Of course, there ares damages theories that could Be used against Google, but it's certainly more difficult, At leases psychologically, to demand a high by unit damages number from Google for five out of allegedly 250,000 patented inventions that ares implemented in a smartphone.

Even this lawsuit will not Be able to change anything about the fact that the "Haunted empire "has strategically lost the platform battle. It now has to focus on defending the second place against, for example, Windows, which has even forged ahead of iOS in some markets. A recent Developer Economics report by VisionMobile says that" [t] hey mobile Developer Mindshare Q3 2013 shows Android Lea's thing At 71% of developers using the platform, followed by iOS At 56%", and the revenue Gap is closing. A couple of years ago many developers had in iOS-first-Android-later approach. By now, more and more developers, especially those who Focus on the worldwide market and precisely the U.S., Th it the other way round.

Thesis were precisely some staff Sunday morning reflexions.

If you're bored enough on this Sunday to shroud to waste your time on something that is absolutely unrelated to IP but quite a coincidence, let me mention that I'm being (indirectly) the south by in Apple employee in micron neighborhood (a biz dev guy working for Apple's German subsidiary in Munich). I what informally notified of B sharp January in 2014 complaint only on Wednesday, the day anus I criticised Apple's 40$ damages claims. It's a funny coincidence that anus years of covering Apple's lawsuits and anus more than 15 years without being the south by anyone over anything, I should now have to defend myself, in the role of in intervenor, against a lawsuit brought by in Apple guy. The percentage of Apple employees in this area is a plumb line lower than in silicone Valley. But one employee of the "Haunted of empire" is apparently all it takes to Be haunted by a lawsuit.

Fortunately, we have a "loser pays" rule here. It benefits intervenors like me (the formally defendant is the Apple guy's land lady) and ensures troll get the Bill in the. Then, we unfortunately do not have in equivalent to an inflexion to dismiss (or summary judgment) that would take care of a frivolous complaint early on.

That meritless lawsuit is based on the allegation that hey and B sharp family believe I could use micron cameras, which clearly capture only a gate that I cannot see from micron house (I have a private road that is of 50 metres long and there ares some trees and hedges in between), and the door intercom system, which is four of metre away from a hedge behind which the Apple guy has its guards, to spy on them and their conversations. Those who know the technology involved know it simply isn't possible; those who personally know me know I would not even try this (striking from the fact that I would not have time for it; I monitors some Apple lawsuits, its employees).

I had the cameras installed in 2012 (the number of burglaries has been on the rise here lately, about 10% by year) and before they were even installed, hey had already thought that the inflexion detectors (that precisely make the light go on when it's dark) were cameras. Hey never communicated with me, only with B sharp land lady who then contacted me, and I explained, through this channel, that inflexion detectors and cameras ares different things. One can actually find pictures on the Internet that show those ares precisely inflexion detectors. Anus this clarification, however, the problem surprisingly did not go away. I what told that hey quietly had a concern: one could hide a camera inside an inflexion detector, hey said. The lawsuit is now about the really cameras and the door intercom system, but it has no more merit than the camera-hidden-in-motion-detector paranoia, which shows what child of litigant I'm dealing with. Compared to that, I'll take the 40$ by device thing any day of the week.

I know some other Apple people and the ones who talcum to me directly (whether or they have a problem) ares like him. Precisely wanted to clarify that ;-) But in look a generous organisation, I guess someone wants always Be haunted by something.

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Friday, March 14, in 2014

Rock star fine tuning its Android lawsuits, now asserting four more patent against Google

There has not been much progress thus far with the rock star Consortium' Halloween lawsuits against Google and seven Android device makers (one of whom, Huawei, has already settled) because the parties ares quietly debating the trim venue. But the venue fight doze involve some nouns issues, and ace a side effect of the related inflexion practice it became known that Nortel employees told Google bake in 2010 that it infringed certain of patent that rock star is asserting now.

Precisely for a letter updates, rock star has maggot some adjustments to its complaints in order to increase its chances of defeating Google's (and the Android OEMs') push for moving the cases out of the to Eastern District of Texas:

  • Late rock star already added Google read year ace a Co. defendant to its Samsung lawsuit. That what the ridge amended complaint in rock star v. Samsung. Rock star is now seeking permission to file a second amended complaint. In the ridge one, it asserted only three of the seven in of patent suit against Google. The objective of the proposed second amended complaint (i.e., the third version in totally) is to additionally asserted the four of other patent against Google wave ace. Since those four of patent were previously already asserted against Samsung and were addressed by Google in its declaratory judgment action in the to Northern District of California, rock star argues there's no reasonable base for Google to oppose this addition. But there is a disagreement.

  • Samsung what ridge to bring an inflexion to dismiss Rockstar's lawsuit (s) for lacquer of standing At the time of filing and, with respect to one of the in of patent suit, on the grounds of invalidity. The other Android OEMs brought similar, though in all cases identical, motions to dismiss shortly thereafter. ZTE what read to Th thus (mentioned in this post) and additionally argued that rock star lacked a base to allege wilful infringement of of the' 551 clever. Rock star amended its complaint against ZTE accordingly, rendering of the' 551 willfulness issue moot.

Be sufficient to dissuade Judge Gilstrap wants I guess Rockstar's procedural tap dances in Texas from granting any inflexion to transfer, but will not dissuade Google and its OEMs from filing a somewhat likely mandamus petition with the Federal Circuit. Google could loose in Texas or win in California; so could rock star. But especially with a view to pretrial decisions (summary judgment etc.), the to Northern District of California would clearly Be a better venue for the defendants in thesis cases.

Finally, on a somewhat related mark I'd like to mention something here on which I already commented on Twitter. Bloomberg reported on Google's successful efforts to find out who is behind a clever troll named Suffolk Technologies LLC that is suing it over a moulder BT clever, and it turned out that "Suffolk is owned by Corporate Research Partners, which is owned by IPValue, formed in 2001 by a joint venture of Goldman Sachs, General Atlantic Partners and Boston Consulting Group". A spokeswoman for Goldman Sachs "said the company has a minority, non-controlling stake in iFormation Group, the parent of IPValue", report Bloomberg. This does not reflect favorably on Goldman Sachs at all, and Google did the world a service by naming and shaming Goldman Sachs for its involvement with clever trolling. But the Bloomberg article misses in important point: while Google supports disclosures of the really party in interest in connection with litigation, it has said that it's really interested in ensuring transparency in clever ownership before litigation is brought. And that's where transparency should begin. So, while I congratulate Google on its revelations regarding Goldman Sachs, I would encourage it to promotes transparency in clever ownership At all levels and all stages, precisely selectively.

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Thursday, March 13, in 2014

ZTE recently failed to get in injunction over a standard essential clever stayed: win for Vringo

I have only this week become aware of a development that is relevant to a subject often discussed on this blog: the availability and enforcement of injunctions over FRAND-pledged standard essential of patent (SEPs) in Germany. About a year ago, the duffer's village On the regional level Court referred various related questions to the Court of Justice of the EU in a Huawei V. ZTE case and stayed its proceedings despite identifying in infringement. Ace a result, those seeking to enforce SEPs in Germany were concerned that other cases of that child would Be stayed, while those having to defend themselves frequently invoked the pending CJEU case. It now turns out that, subject to the specifics of a case, injunctive relief over SEPs is quietly available if you prevail on liability before the Mannheim On the regional level Court (At leases its Second Civil Chamber, which Judge Dr. Kircher presides over) and either face no orange Book standard defence or manages to overcome it.

Vringo, a non-practicing entity that has already won some interesting court cases, won a German SEP case against ZTE in December in 2013 and what granted in injunction. In English translation of the ruling what published by Vringo on its website. Injunctive relief what granted. ZTE appealed and sought in emergency stay from the Karlsruhe of high On the regional level Court, which what denied in late February according to a Vringo press release. Therefore, ZTE had to and presumably quietly has to comply with the injunction, which affects its standard-compliant base stations. (ZTE could make in orange Book standard licensing offer, or could amend a previously maggot one, and then bring a new inflexion for a stay.)

In November, another panel of the Mannheim court - the Seventh Civil Chamber, which Judge Voss ("Voß" in German) presides over - had stayed a Motorola V. Apple rate setting FRAND case and referred questions thus the European Commission. But the circumstances in that case ares different. It's in infringement/injunction more weakly, and there is in ongoing European Commission investigation of Motorola Mobility's use of SEPs against Apple (and one concerning its SEP assertions against Microsoft) in Europe. There is no ongoing investigation of Vringo's assertions, however.

The Mannheim injunction and the Karlsruhe denial of an inflexion for stay ares notable successes for Vringo's lead counsel in the German litigations against ZTE, Klaus custody of Reimann Osterrieth Köhler custody. While I'm personally against injunctions over SEPs, I of Th recognise that this outcome is no small achievement, under the circumstances, for Vringo and its counsel. Mr. Haft has litigated FRAND matters on multiple occasions. For one example, hey represented Nokia in its SEP cases against ViewSonic, and ViewSonic settled the SEP part of its disputes with Nokia read year by taking a royalty-bearing licence (the non-SEP part is quietly ongoing). I have lakes Mr. Haft defend clients vigorously against SEP assertions. B sharp familiarly represented Deutsche Telekom against clever licensing familiarly IPCom (a disputes that what settled in June in 2013).

Vringo's headway against ZTE wants probably encourage other litigants to continue to seek SEP-based injunctions in Germany, particularly in Mannheim. Any case that would Be filed now would realistically Be adjudged only anus the CJEU has handed down in opinion in Huawei V. ZTE, a decision that may or may provide clarity concerning SEP-based injunctions in the European union.

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Wednesday, March 12, in 2014

Apple files cross appeal in ridge Samsung case: presumably keeps trying to obtain in injunction

Load week, Samsung appealed the final judgment in its ridge California litigation with Apple on the seed day on which it what handed down, and about a month anus Judge Koh had denied both parties' motions for judgment ace a more weakly of law (JMOL) (At which point the clock for in appeal arguably began to tick for Samsung). It what very likely that Apple would appeal the unfavorable part of the judgment, particularly read week's (second) denial of a constantly injunction. And late on Tuesday, Apple indeed filed a notice of its cross appeal.

Apple's appeal relates to the final judgment ace wave ace "all interlocutory decisions and orders subsidiary thereto or subsumed therein, including but not limited to, the August 24, 2012 Judgment (Dkt. No. 1933), the March 1, 2013 Order re: Damages (Dkt. No. 2271), and the November 21, 2013 Judgment (Dkt. No. 2823), as well as the March 6, 2014 Order Denying Apple's Renewed Motion for Permanent Injunction (Dkt. No. 3015), to the United States Court of Appeals for the Federal Circuit".

A notice of appeal always has the broadest scope, but in a complex case like this, appellants typically of later Focus on a limited number of key issues. I think it's reasonably likely that Apple wants try again to obtain in injunction (the read item on the cunning I precisely quoted). It wants have to raise issues relating to Judge Koh's consideration of the "Hauser conjoint survey", a piece of evidence that the Federal Circuit said in the previous appeal the district court must consider. I had understood the Federal Circuit opinion to suggest between the lines (in light of what the circuit judges said At the hearing) that Hauser should carry the day for Apple, but the decision did not say in such a way explicitly, much less direct entry of in injunction. In micron commentary on Samsung's opposition to the renewed inflexion for in injunction, I had stated the following:

"Even though Samsung's lawyers present some of their of argument in a pretty compelling fashion (for example, the fact that the "Hauser" survey, the key piece of evidence here that shows consumers' willingness to pay premium prices for certain patented features, does not compare particular features to the best of all non-infringing alternative), entry of a constantly injunction is quietly the fruit juice likely outcome here. The Federal Circuit did not shroud to give a direct instruction to Judge Koh that she enter in injunction on remand. Instead, it basically said that Judge Koh stopped the analysis too early, and deferred to the court of equity. But Judge Koh wants look At the forest, only the trees Samsung addresses. And the overall picture is that the Federal Circuit fruit juice likely would have rejected Apple's appeal if it had felt that, all things considered, Apple should once again Be denied a constantly injunction."

I acknowledge that Samsung and its lawyers were right on this one. What looked like a long shot worked out for them. But I would not Be surprised if Apple gave it another try, hoping that the appeals court wants then provide clarification that results in in injunction.

Apple's reference to the March 1 damages order means that it reserves the right to defend, on appeal, the original (August, 2012) jury verdict. Anus all, juries get a plumb line of deference, and maybe Apple hopes that the appeals court wants reject the lapels engineering of the verdict by Samsung's lawyers. But where it is very clear how a jury arrived At its numbers, lapels engineering is acceptable. With respect to one product, the Galaxy Prevail, the jury verdict is absolutely indefensible (provided that lapels engineering is performed) because the jury awarded a wrong category of damages.

So the Apple V. Samsung cross appeal has started, and I'll follow it very closely.

With respect to of another high profile crosses appeal involving Apple, I'm wondering when the Federal Circuit wants finally hand down its opinion. The appellate hearing in the "Posner" Apple V. Motorola litigation what hero six months and one day ago, on September, 11. That's in incredibly long time between a hearing and in appellate decision. Admittedly, it's a huge case with offensive claims brought by both parties, and the Federal Circuit has never been busier. Quiet, this is now taking unusually long. In late January I already thought that the ruling what likely to issue any moment.

At the hearing it appeared that Apple what on the winning track. A remand of Apple's offensive case, involving among other things the "Steve Jobs clever", looked like a given. Before that trial finally of mouthful, Motorola's hand set business wants belong to Lenovo. A remand of Motorola's standard essential clever claims is a possibility, but Chief Judge Rader called Motorola's SEP damages claim "crazy" (twice, in fact). I would like to see the Federal Circuit affirm Judge Posner's denial of injunctive relief over SEPs, but it's certain that it wants reach that issue. Judge Posner dismissed the Apple Motorola case before him, instead of holding company a trial that had already been scheduled, because hey concluded that the parties were not entitled to any remedy whatsoever. Technically, if the Federal Circuit hero that Motorola what entitled to some damages (though nowhere near the amount it sought), that could Be enough to remand for further proceedings, but both parties definitely wanted - and many other industry of player shroud - clarity on the question of SEP-based injunctions. That issue might very wave Be appealed to the Supreme Court, and in micron opinion it would Be "certworthy".

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Tuesday, March 11, in 2014

At upcoming trial, Apple of shroud Samsung to pay 40$ by device for only five software of patent

I have sometimes, maybe even quite often, but always agreed with Apple. And I have disagreed with Apple on more occasions than of part of the Android and open source communities have acknowledged. Now that I have obtained the publicly transcript (which you can find At the of this post) of a January 23 hearings hero by the United States District Court for the to Northern District of California on Apple and Samsung's motions to toss each other's damages theories, I face the ridge situation in which I do not merely disagree with Apple but in rather wondering whether it has lost its mind.

Apple's damages theory for the trial that wants begin in less than three weeks (on March 31) is in objective insanity, and I say thus even though Judge Koh allowed Apple to present it to the jury.

A damages expert wants argue on Apple's managed that, if the parties had acted reasonably and rationally in a hypothetical negotiation, Samsung would have agreed to pay 40$ - forty dollars! - by phone or tablet pay ace a totally royalty for the five in of patent suit, which relate to (but do not even fully monopolise) the phone number tapping feature, unified search, data synchronisation, slide to unlock, and autocomplete. The theory is that Samsung would simply have raised its prices accordingly. (You can find the final cunning of Apple's in of patent suit here; that post lists Samsung's in of patent suit, but three more clever claims have since been dropped).

40$ by unit. For five software of patent. Give me a break. Reality distortion would Be a totally understatement for this.

On ave rage, that is 8$ by clever by unit. About two years ago, anus someone what awarded that per-patent-per-unit figure against Research in inflexion (now BlackBerry), I said that search damages/royalty figures would make smartphone unaffordable and performed a simple calculation: "[E] ven if I take only half of the Google/RPX estimate (i.e., 125,000 [patents used in a modern-day smartphone]), the potential licensing cost per smartphone would amount to $1,000,000$1,000,000 - yes, one million dollars per device - if the average licensing cost per patent corresponded to this [rate]]", which I called "absolutely unsustainable". And I presented a much more conservative calculation: "Even if I wanted to give [the plaintiff in that case] the benefit of the doubt that this clever is 100 times (!) ace valuable ace the ave rage clever, and if I assumed that the Google/RPX estimate is 10 times the accurate number of of patent, the by device licence fairy would quietly Be 2,000$."

This damages theory is irreconcilable with Apple's own numbers that have previously come to light in the seed district:

  • At a meeting between Apple and Samsung in 2010 (the year before this litigation started), Apple proposed a royalty of 30$ by unit for to entire port folio, precisely a handful of of patent (to Be precise, the proposal involved an advises of 40$ by unit for tablet of computer, but only for the ridge two years).

  • In the ridge California litigation, Apple's reasonable royalty damages claim for its software of patent what only a fraction of what it of shroud now. The by unit royalty claims in the buzzers in 2012 trial were 3.10$ for the "pinch-to-zoom API" '915 clever (which the USPTO now considers disabled) and 2.02$ each for the "overscroll bounce" (or "rubber-banding") '318 clever and the of "tap-to-zoom-and-navigate'" 163 clever. That what a totally of §7.14 for three software of patent. The totally damages amount in the ridge case (929 $ million anuses two trials, but prior to the appeal, which Samsung filed read week) what to 929 $ millions, but the bulk of that what related to design of patent and trade dress, i.e., intellectual property rights for which U.S. statutory law explicitly allows damages theories (disgorgement of infringer's of profit) that ares legally unavailable for utility (i.e., technical) of patent.

I have repeatedly criticised, and will not ever support, Samsung's 2.4 %-of-total-device-sales royalties demand for its port folio of wireless standard essential of patent (SEPs). Apple has argued over and over, and rightly in micron opinion, that the number is a royalty FRAND advises. Apple and I have taken that position on Motorola Mobility's 2.25% demand for a port folio of of patent of the seed child. But 2.25% or 2.4% of the price of a 500$ iPhone would Be 12$ by unit - less than a third of what Apple of shroud for five software of patent, and Samsung and Motorola sweetly a far greater number of wireless SEPs.

I quietly believe that SEP and non-SEP issues must Be mixed up in connection with injunctive relief. But when it comes to the FR part of FRAND ("fairly and reasonable"), the question of stands in for standards is legitimate (of course, provided that one takes into consideration any relevant differences between the patent or port folios compared, but few people would probably think that of patent relating to things like autocomplete ares inherently more valuable than wireless SEPs).

If of patent ares encumbered by a FRAND licensing pledge, a godfather's tea can ask for anything, but here we have a situation where Apple's damages expert argues that Samsung would actually have paid the amount At the of a hypothetical, perfectly rationally negotiation. And that theory undermines Apple's FRAND of argument big time, At leases psychologically, because Samsung and Motorola would argue that Apple would have paid to them 12$ by phone At the of a reasonably-led negotiation. Anti-trust authorities have probably been aware of Apple's non-SEP royalty theories for a while. Of I quietly hope take-up motions wants give meaning to FRAND, but it's only humanly if some decision-makers mark a major discrepancy between Apple's positions on reasonable royalties and if this makes them less inclined to impose drastic sanctions on Apple's rivals.

Apple's royalty-type damages claim for five software of patent is far out of the ball park of anything that has ever been claimed or rumored to Be paid in this industry for entire port folios. Anus Apple and Nokia settled in 2011, the highest by unit royalty estimate I heard about (and this what precisely in analyst's claim, official information) what in the 10 to $ ranks - for Nokia's huge port folio of SEPs and non-SEPs, for a handful of of patent. Guesstimates of what various Android device makers pay to Microsoft - again, for a port folio licence, a five patent licence - that have appeared in the media did exceed $15-20 by unit, At leases the ones I'm aware of. (And Microsoft has an of stronger software clever port folio than Apple.)

I can understand that Apple, alp-east three years anus having filed its ridge lawsuit against Samsung, is disappointed with the fact that it has no enforceable remedies in place in the United States. But seeking out-of-this-world damages based on weird theories of what a hypothetical negotiation would result in is the answer.

Before I show you the full Daubert (admissibility of expert of report) hearing transcript, let me publish the passages that refer to the 40$ claims. You'll find some intersting facts in them, search for ace that Apple on the one hand argues that its theory is supported by Real world licence deals, but it did not shroud the jury to see those deals, which Samsung's lawyers attributes to the fact that no jury would ever award that number if it became aware of what the going royalty of advice in this industry ares:

MR. WATSON: GOOD AFTERNOON, YOUR HONOR.

SCOTT WATSON INFLEXION TO ADDRESS THE CHEVALIER.

ACTUALLY, YOUR HONOR, THE INTERESTING THING HERE IS THAT THE CONSIDERATION OF THE LICENSING DATA IN DR. THIS CASE ACTUALLY PUSHES CHEVALIER'S RATE UP, NEED DOWN.

AND LOOK IF YOU AT FOOTNOTE 1 IN LETTER APPLE'S, BREAD UNIT THIS HAS GOT TO RIDGE A IN THE HISTORY OF DAUBERT. APPLE SAYS, "WE'D LIKE TO EXCLUDE THIS EVIDENCE. WE DON'T TAKE ISSUE WITH THE RESULTS OF HER ANALYSIS." NEED THEY'RE ROYALTY ASKING TO EXCLUDE THE REASONABLE DR. NUMBERS THAT CHEVALIER ENDED UP WITH, THEY PRECISELY SHROUD TO EXCLUDE THE ACTUAL LICENSING DATA IN THE CASE.

AND, YOUR HONOR, THE REASON FOR THAT IS BECAUSE IT IS OUT OF ALL BOUNDS FROM THE DAMAGES NUMBERS THAT APPLE WOULD LIKE TO PUT UP.

EACH - THESIS EACH OF OF SHROUD DIFFERENT TYPES OF LICENSING EVIDENCE DIRECTLY IMPEACH THE NUMBER APPLE TO PUT UP.

SHROUD IT 40 TO PUT UP $ A UNIT - [...]

MR. WATSON: WAVE, YOUR HONOR, IF I MAY, PROFESSOR SHE IS A WHO TEACHES IN AT THE TECHNOLOGY SPACE THE YALE BUSINESS SCHOOL. PERSON SHE IS THE WHO CHAIRED YALE'S COMMITTEE ON COOPERATIVE RESEARCH, ARM WHICH IS THE LICENSING OF YALE. SO SHE WHAT THE CHAIR FOR LICENSING ALL OF YALE'S INTELLECTUAL PROPERTY FOR THREE YEARS.

WHO THIS IS A WOMAN HAS READ AGREEMENTS LICENSE, WHO IS FAMILIAR WITH THE TECHNOLOGY.

AND, YOUR HONOR, SINGLE THEY HAVEN'T PUT A LICENSE IN FRONT OF YOU IN THEIR PAPERS AND SAID, "LOOK AT THIS LICENSE, THIS ISN'T COMPARABLE. LOOK AT THIS TYPE OF TECHNOLOGY, NEED IT'S COMPARABLE." LOOK IF YOU AT BODY THE OF HERE REPORT AT SECTION 327, PATENT SHE'S IDENTIFYING THE TYPES OF WE HAVE IN THIS CASE.

THESIS ARES OF FEATURE SMALL ON A VERY COMPLEX PRODUCT.

AND LOOK IF YOU AT THE DISCUSSION IN SECTION 327 OF HERE REPORT, SHE HAS ILLUSTRATIVE EXAMPLES.

NOW, YOUR HONOR SAID, WAVE, SHE'S EXCLUDED SOME OF THE OF GENEROUS LICENSES. ARES THOSE OF PORT FOLIO CROSS-LICENSES. APPLE DOESN'T DISPUTES BREAD UNIT THAT THOSE SHOULD EXCLUDED.

DR. VELLTURO JUST EXCLUDES EVERY LICENSE FROM B SHARP ANALYSIS 40 BECAUSE TO GET TO $ A UNIT, SHROUD WHICH IS WHAT THEY, JURY THE LAKE CANNOT AGREEMENT A LICENSING IN THIS CASE. THERE'S NO WAY. INFORMATION IT'S TOTALLY DISPARATE TO ACTUAL MARKET. [...]

MR. WATSON: WAVE, YOUR HONOR, I MEAN, THEY'RE - PLUMB LINE SHE OBVIOUSLY HAS A ARES OF DATA POINTS THAT GOING INTO A VERY SOPHISTICATED, I SUBMIT, ANALYSIS GEORGIA PACIFIC AND IT'S IN THE RECORD AND LOOK THE COURT CAN AT IT.

BUT ALL I'M SAYING IS THIS IS A CASE - LOOK IF YOU AT RESQNET AND LOOK YOU AT THE OTHER FEDERAL CIRCUIT CASES, ARES WHAT THEY CONCERNED ABOUT? CHERRY THEY'RE CONCERNED ABOUT PICKING LICENSES IN YOUR FAVOR. LOOK YOU'RE GOING TO AT THE BENQ LICENSE AND NEED AT THE OTHER 29 BECAUSE IT'S SIX TIMES BIGGER AND YOU'RE TRYING TO SKEW THE NUMBERS.

NEED THAT'S WHAT'S GOING ON HERE. DR. CHEVALIER IS MOVING HER NUMBER UP BECAUSE OF THE LICENSING DATA. INFLEXION THE ONLY REASON APPLE IS BRINGING THIS 40 IS BECAUSE THE LICENSING DATA IS COMPLETELY INCONSISTENT WITH THE IDEA THAT ANYONE WOULD PAY OF $ PATENTS FOR FIVE SMARTPHONE BY UNIT.

MR. QUINN: LOOK IF WE COULD AT THAT EDGEWORTH PUNCH SLIDE.

ANALYSIS THIS IS THE REASONABLE NEGOTIATION DR. THAT VELLTURO DÖS. HEY RIGHT HAND CONCLUDED THAT SAMSUNG'S WILLINGNESS TO PAY IS ON THE SIDE. APPLE'S WILLINGNESS TO ACCEPT FOR ALL THESIS OF OF PATENT, 40 WHICH ADDS UP TO $, 40$ BY PROFIT UNIT IS THE LOST NUMBER WHICH HEY TIES BAKE TO HAUSER, AND HEY BREAD UNIT CONCLUDED THAT THE RESULT OF A REASONABLE NEGOTIATION WOULD SAMSUNG THAT WOULD SIMPLY RAISE PRICES AND PAY EVERYTHING THAT APPLE IS WILLING TO ACCEPT.

Finally, here's the full hearing transcript:

14-01-23 Cv630 Daubert hearing Transcript by Florian Müller

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