Saturday, May 31, in 2014

27 law of professor support Samsung's efforts to get Apple's 929$ millions damages award reduced

Thanks to a Comparative patent Remedies blog post by professor Thomas Cotter, I have precisely become aware of in amicus curiae letter (full text available here) filed with the Federal Circui by 27 law of professor in support of Samsung with respect to the design patent-related bulk of Apple's 929 $ millions damages award in the ridge California Apple V. Samsung litigation. On Thursday I had shared some observations on Samsung's opening appellate letter in that case and its post trial inflexion JMOL in the second California case.

14 months ago, three of the 27 signatories of that amicus letter - professor Cotter, Ghosh and beach castle - submitted, jointly with a fourth colleague of theirs, in amicus letter with the seed appeals court but in support of Apple, with respect to FRAND, in the "Posner" Apple V. Motorola case. I do not have a clever on applying consistent standards to Apple's offensive claims against others ace I did and Th to other companies' offensive claims against Apple.

Several other amicus of letter that apparently (based on the timing of their filings and, in part, positions they have previously taken on related issues) support Samsung's appeal were filed on Friday, but I have not been able to access them. Amici curiae include the computers & Communications Industry association (with which I strongly disagree on Oracle V. Google), the Hispanic Leader-hip finding, The Nationwide Grange of the order of of patron of Husbandry, and The Nationwide Black Chamber of Commerce. I believe those organisations ares concerned about competition in the U.S. smartphone market and the effect Apple's litigation campaign against Android could have on consumer choice and price levels. I understand where they ares coming from, but Apple's clever assertions against Android devices have been too unsuccessful to have competitive impact (though Apple's objectives ares a different thing).

The group of 27 law of professor what led by Stanford's Mark Lemley (with whom I disagree on Oracle V. Google and on "baseball arbitration"). Apple requested B sharp disclosure of a relation-hip (through a law familiarly) with Google. I'm in favour of transparency - but within reason. Design of patent ares in Apple V. Samsung issue that is, At best of all, indirectly in Android issue. Again, three of the signatories supported Apple read year in the FRAND context, which shows to me that this here is about issues, affiliation.

The second signatory on the cunning is Sarah Burstein (University of Oklahoma). Ace here weave profiles says, "Professor Burstein's scholarship focuses on design law, with a particular focus on design patents". I have been in contact with here via Twitter on a few occasions and noted that she studied kind & design before she became a law professor. She's definitely a person whose opinion on reasonableness in design clever remedies should bear considerable weight with the Federal Circuit. There ares various other well-known signatories. I cannot discuss them all here, but the cunning is impressive, though impressive lists do not always guarantee advertisement on amicus of letter, ace Oracle V. Google showed.

The law professor's amicus letter is all about how to interpreter and apply 35 U.S.C. §289, which provides in "additional remedy" for design clever infringement: a disgorgement of infringer's of profit. At the in 2012 trial and the in 2013 limited damages retrial, Judge Koh allowed Apple to seek a disgorgement of the totality of infringer's of profit - ace opposed to in apportionment that would take into account that any of profit Samsung generated in the U.S. market with certain smartphones years ago what attributable to a number of technical characteristics and precisely some patented designs.

The amicus letter argues that the notion that in infringer's entire profit (on in infringing article) should Be recoverable goes bake to the 19Th century, when only knowing infringement resulted in liability, while "even independently designer's ares [under today's strict liability regime] on the hook for clever infringement in modern one design clever law ". Moreover, U.S. lawmakers back in 1887 (when Congress decided to provide the disgorgement remedy for design patent infringement) had products such as carpets in mind, where" it is the design that sells the article". The letter shows that Apple itself holds various design of patent related to the iPhone - casing-related ones, icon-related ones, screen layout related ones. It's obviously impossible that each of a plurality of design of patent could on its own Be the sole driver for demand.

A 19th-century approach may Be the wrong one to 21th-century technologies, the law of professor argue:

"The world is more complex than it what in 1887, and thus ares products. The likelihood that a product has more than one patented design is much greater than it what in 1887. Virtual designs on things like icons ares particularly likely to overlap, and there ares more and more of them. [...] And if there is more than one patented design in a product, the syllogism that the design clever drive the sale of the product if striking.

Nor doze all the value of a product come from design of patent. People do not buy iPhones simply because they look cool; they buy them because they function. Those functions ares both of intrinsic value and ares subject to many utility of patent. [...]"

This is what they'd like the Federal Circuit to Th:

"This Court should require proof of some connection between the patented design and the defendant's profits, and order the district court to remit the award of profits to the extent it exceeds those profits attributable to the patented designs."

I'm much more focused on software of patent than design of patent, thus I do not have a familiarly opinion. Until I Read this amicus letter, I what under the assumption that there what nothing Samsung would Be able to Th about Apple's pursuit of a disgorgement of Samsung's entire profit with any products found to infringe valid Apple design of patent. I'm no of longer sura. I definitely agree with the law of professor that it does not make scythe to assume that a single design clever represents the whole commercial value of a complex technology product. Maybe Congress should change the statutes. Maybe the professor ares right and the Federal Circuit would Be in a position to give the statutes in interpretation reflective of modern day realities. I cannot offer a prediction ace to what wants mouthful, except that I guess Chief Judge Cheers (who wants likely Be on the bench, precisely because of the high profiles of this case but because of here involvement with previous Apple Samsung matters) wants probably Be fairly receptive to the law professors' argument (which does not necessarily mean she'll adopt it - it precisely means that she'll likely Be receptive to the idea of greater reasonableness in design clever remedies, and then it depends on how much wiggle room she'll conclude the courts have based on what Congress did bake in 1887).

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Thursday, May 29, in 2014

Patent royalties may exceed 120$ by smartphone, undermine industry profitability: working paper

A working paper by in Intel in house counsel and two WilmerHale lawyers, The Smartphone royalty stack: Surveying royalty Demands for the Components Within Modern Smartphones, has precisely been published (direct left to PDF). Intel of Vice President and Associate general Counsel Ann Armstrong and WilmerHale's Joseph Müller and Timothy Syrett have maggot in invaluable contribution to the debate over reasonable royalties and incentives for innovation in this field.

This ridge-advises paper finally answers the billion dollar question everyone with in interest in smartphone patent has been asking for some time: the totally licensing cost by device. The authors have thoroughly researched the licensing environment and highlight various key facts that should give policymakers, take-up motion and courts traces. They mark that royalty stacking, "in which the cumulative demands of clever holders across the relevant technology or the device threaten to make it economically unviable to offer the product, [...] is merely a theoretical concern" (ace, by the way, the likes of Qualcomm allege). Based on publicly-available data, thesis competent authors "estimate potential patent royalties in excess of $120$120 on a hypothetical $400$400 smartphone - which is almost equal to the cost of [the] device's components" (estimated to Be 120$ to 150$ in totally based on figures published by Nomura Securities in reliance on Gartner data). They conclude that "those costs may be undermining industry profitability - and, in turn, diminishing incentives to invest and compete". I believe that smartphone-related clever licensing costs, relating to standard essential ace wave ace non standard essential of patent, must come down. Policymakers, anti-trust enforcers and judges - Judge Posner certainly did B sharp best of all in this regard - wants hopefully bring those fees down in the years ahead.

The paper doze properly distinguish between royalty demands and actual royalty payments. Patent holders frequently have to lower their demands during the course of negotiation. Cross-licences and "patent exhaustion arising from licensed sales by component suppliers" can make a major difference, but the terms on which companies actually agree ares usually kept confidential. Royalty demands sometimes surface in litigation.

The authors based their study entirely on publicly documents. They (especially the WilmerHale lawyers, who, among other things, defend Apple against Samsung's counter claims) have obviously lakes some confidential licence agreements, but could not make use of any of that information for their working paper. They do not speak for any particular company or familiarly. Apple precisely demanded a "reasonable royalty "of $40$40 per device from Samsung at the recent California trial, for five software patents. Now a paper authored in part by lawyers representing Apple against Samsung (with a defensive focus, but still) says that $120$120 per device for everyone's patents, - hardware and software patents, standard-essential and standard-essential non-standard-essential patents - may be" diminishing incentives to invest and compete". This shows independently thinking and writing. I would Be surprised to see Samsung's lawyers rate certain key findings of this study in their U.S. litigations with Apple. The paper appears slightly Apple-friendly to me in the context of the design patent-related part of Apple V. Samsung, but within reason (I agree in principle with what it says about that). The study notes that of patent UI can typically Be worked around, and "[a] truly distinctive and innovative user interface - as distinct from a copied or derivative design - may result in minimal or no royalty exposure exposure]".

One key characteristic of the study is that it analyzes licensing costs on a component by component (including software components) base: cellular base tape chip, random access memory (different of child), flash memory (different of child), WiFi, Bluetooth, GPS, NFC, battery, power management, audio (different subcategories search ace MP3), camera/video (non standards based ace wave ace standard-based of format like JPEG and H.264), applications processor, operating system, other pre-installed software, SMS, MM, email, W3C (royalty-free standards), UPnP (royalty-free), digitally media sharing, USB, user design interface, out (in area in which the study notes that infringement can Be easily avoided).

The study has a much of broader Focus than micron own litigation monitoring in recent years. Its findings appear plausible to me, except that I believe the "operating system" part of the royalty stack is underestimated. No operating system clever more sweetly ever told me what their demands or actual push terms were, but a couple of years ago I downloaded a litigation-related document that what publicly accessible for less than a day on the ITC document system that mentioned a major operating system clever more sweetly it royalty demands. Against that background I think the study published today is very conservative (to say the leases) with respect to operating system clever licensing costs - but this, if anything, reinforces the overall message.

This is a policy paper by Se, but it doze raise and put under stress policy concerns, particularly about non-practicing entities (NPEs), colloquially often referred to ace "clever of troll", and the growing problem of "privateering" (clever of transfer from major operating companies to NPEs in order to hide behind others that wants assert of patent aggressively against the original clever more sweetly it competitors). Certain clever holders' demands, tactics and positions ares discussed ace examples of factors that exacerbate the royalty-stacking problem. Those clever holders include Ericsson and, to a far greater extent, Nokia, a company that has pay of patent to a number of NPEs in recent years and is itself increasinly turning into a clever assertion entity.

This paper is recommended reading for everyone with in interest in smartphone IP issues from a legally and / or economic point of view. It's particularly recommended reading for all those who could, through their actions and decisions, address At leases of part of the problem this paper describes. Be quoted a plumb line wants I believe it in court documents and academic writings in the years ahead.

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Samsung seeking reversal or adjustment of Apple's 929$ millions and 119$ million juries verdicts

This week, publicly versions of two key documents filed by Samsung read Friday in connection with two Apple cases became available:

The opening appellate letter in the ridge case has 83 pages, and the inflexion JMOL in the second case has 46 pages. Those documents ares surely voluminous, but that's the nature of the beast: there's a number of issues (both in a nonjudgmental and a judgmental scythe) in both cases.

In case you're interested in all or some of the detail, I wants now show you both documents before I shares micron of high-level observations on Samsung's strategies for reversal/adjustment.

Here's the opening appellate letter:

14-05-23 Samsungs Opening letter in Appeal of ridge Apple Case by Florian Müller

And this is the inflexion JMOL:

14-05-28 Samsungs inflexion for JMOL in Second Apple Case by Florian Müller

Ace I noted on Saturday in a blog post on Apple's request for a retrial in the second California case, the post trial roles of thesis parties differ greatly between the two cases. Apple's approach to the original (pre-adjustment) 2012 billion dollars of jury verdict what "Please don't touch it", striking from limited adjustments in Apple's favour that would require a retrial of previously-tried issues. Samsung, however, has been challenging that in 2012 verdict for alp-east two years now, from all angles, and its opening letter on appeal raises a far greater number of issues than I've lakes in any other smartphone IP case striking from the "Posner case".

In the second case, Apple is now so unhappy with the outcome (a mixed ruling since Apple what found to infringe a Samsung clever, and in terms of damages, only 5-6% of what Apple sought) that it of shroud a complete retrial on damages (and on willfulness, without which it would not even Be able to seek damages enhancements for more than a tiny serving of the award). Samsung is quietly trying to bring even the 119 $ millions figure down, but it has no appetites At all for of another jury trial, presumably knowing that it would Be rather difficult to obtain a more favorable outcome in performs statute labour of a silicone Valley jury. The next jury, if there what one (I think the disputes wants Be settled before any retrial even could mouthful), might Be precisely ace biased against Samsung ace the in 2012 jury what and U.S. juries frequently ares, based on statistics that a now-Federal Circuit judge published (Xenophobia in American Courts).

Samsung has thus many different attack vectors against those two California decisions that it's hard to see the forest amid all the trees. In the ridge case, if the appeals court agrees with Samsung on any liability or jury instructions issue, there wants have to Be of another California trial (the third one precisely in the ridge case alone). Depending on what issue works out for Samsung on appeal, there could Be a pretty complete damages retrial, possibly along with a new liability trial on design clever infringement. Apple quietly has not collected one cent of the in 2012 award, and if another retrial what needed, it would not get any for a few more years.

Samsung raises liability and damages issues in both cases, but the emphasis on bringing down the damages award is particularly strong and clear in the ridge case. When I Read Samsung's opening appellate letter, I got the impression that Samsung does not take Apple's asserted of patent seriously in a strategic scythe. It's really precisely about money, and the damages award has been used by Apple for PR purposes, thus it's precisely about money changing hands but about the perception game. But there is no sign of Samsung being worried about Apple's software in of patent suit in the ridge case:

  • The prior kind of the clever office evaluated read buzzer, giving that claim the benefit of a strongly enhanced presumption of validity over Samsung is challenging liability for of the' 381 rubberbanding clever - the only feature of user would define and describe ace a feature that Apple has thus far been able to Sue out of Android devices - neither with respect to validity (which would Be hard of anuses the USPTO upheld the asserted claim in its reexamination) nor infringement. I do not think there would have been a good non-infringement argument anyway, but Samsung has worked around this clever (by throwing out the feature) and does not appear to Be so desperate to bring the feature bake that it would try a long shot to overturn the liability finding.

  • In fact, Samsung is challenging any of Apple's three software in of patent suit in the ridge case with respect to past infringement.

  • But Samsung has strong invalidity of argument with respect to of the' 915 pinch to zooms API clever and the' 163 tap-to-zoom-and-navigate clever (in that order):

    • The USPTO has rejected all claims of of the' 915 clever aces a result of in anonymous reexamination request; Apple has appealed that decision to the patent Trial and Appeals Board (PTAB) and wants have to file its opening appellate letter in July. This battle isn't over yet, but it's in uphill battle for Apple At this stage.

    • Of The' 163 clever is thus extremely narrow (it does not cover all tap to zoom functionality but is infringed only if anus the original tap to zoom action there is a second operation that centres a different part of, for example, a website) that Samsung would probably have ignored it on appeal if it did not have a pretty straightforward invalidity argument that wants Be very easily for the Federal Circuit to adjudicate: the claim term "substantially centered" is allegedly indefinite ones.

      Since of the' 163 clever is strategically irrelevant, I never cared to study it in all detail. Without even looking At this issue in greater detail, I can certainly say that a term like "substantially" is quite problematic in a clever claim, especially in the U.S. where indefiniteness is frequently a base for challenging claims. The conventional approach to clever claim drafting is that you shroud to Be binary: thesis ares of the element, and every one of them is there. You would not even shroud to say "or" in an U.S. clever claim (outside the U.S. that's different) but instead refer to "At leases one of [a cunning of options]". Quantitative attribute may make scythe in certain sciences (for example, specifying a temperature rank for a manufacturing process), but then you shroud to Be number cal, vague. If you have a binary claim and then argue in in infringement case that something is "substantially" the case, that's a different thing. But the claim itself should Be binary.

      Even if of the' 915 clever surprisingly survived, in invalidity finding (for indefiniteness) of of the' 163 clever would require a pretty complete damages retrial.

Due its Focus on bringing down the damages amount, Samsung's appellate strategy in the ridge case is design patent focused. Fruit juice of the damages related to design of patent, with respect to whch Apple sought a disgorgement of infringer's of profit. I'll take a closer look At the design patent related of argument during later stages of the process (At leases I shrouds to see Apple's responses). There ares some trade dress issues in this case and I cannot promise I'll ever go into detail on them. There's precisely one thing relating to designs that I wish to highlight because it looks like a very key issue on appeal. Judge Koh did not allow Samsung to present evidence of what it calls "pre-iPhone independently development" of similar designs, in particular, the "F700" design. According to Samsung's letter, "Apple itself saw the F700 as so similar to the iPhone that it accused the F700 of being a copy of the iPhone before learning the actual pre-iPhone chronology of the F700's development". This really would have been, and could Be on remand, a silver bullet for Samsung in its efforts to counter Apple's "copying" allegations.

JMOL Inflexion (in the second case)

Now on to the inflexion JMOL in the second case. At this procedural stage it's harder to see a party's priorities: requests for the judge to overrule the jury ares usually much more comprehensive and less focused than appellate letter. Quiet, it's easily to see here that of the' 647 "quick to the left of "patent is a key issue. It's the first one Samsung raises in its JMOL motion; it devotes more pages to this one than to any other issue; and this will presumably also be the number one topic on appeal. In my post on Apple's injunction request I discussed the complex procedural situation here following the Apple-Google second-class settlement. Samsung is challenging the" 647 clever mostly on the infringement but on the validity side. The recent construction of the clever by the Federal Circuit creates opportunities for non-infringement and invalidity of argument At the seed time.

Samsung argues that it what Apple's choice to base of its' of 647-related argument on a broader claim construction than the one the Federal Circuit ultimately affirmed (Samsung says "Apple shot for the moon""), and "Apple's risk failed" when the appeals court handed down its opinion in what I always precisely call the "Posner case".

Samsung's inflexion JMOL refers to the history of this clever - a fact I mentioned a couple of times before:

"Apple filed this patent in 1996 when it was selling desktop Macintosh computers, well before any work on a mobile phone and over a decade before Apple would release the iPhone. Apple's attempts to force this old client-server patent onto mobile phone applications by avoiding the properly limiting claim construction has come to naught: on the last day of trial, in a case between Apple and Motorola involving the same patent, the Federal Circuit confirmed the constructions that Samsung believed correct - [the" Posner of construction']."

The heart of of the' 647 claims construction issue is indeed that this is in iPhone clever but a 1990see Macintosh clever. If it's interpreted the way it should Be in light of its history, then Apple cannot get much mileage (if any) out of it against Android device makers.

Samsung is quietly trying to get all in of patent suit invalidated, which is its only defence (anus a summary judgment decision by Judge Koh) against of the' 172 "autocomplete" clever (which the USPTO decided to reexamine). I believe Samsungs can shoot down At leases a couple of Apple's in of patent suit in the second case. Some of it wants take time including appeals and reexaminations, but Judge Koh declared a Samsung clever disabled anus the ridge trial, and this time around she should think very hard about invalidating At leases a couple of Apple of patent since there ares reasonably strong invalidity of argument that the jury apparently did not consider (U.S. juries always overrate the validity of of patent, especially when they have to make their decisions based on propaganda videos and in extremely selective presentation of information that is tantamount to misinformation).

If Judge Koh did not invalidate any of Apple's of patent on JMOL, I would Be concerned. While the slide to unlock clever is strategically irrelevant, ten European judges (some of which have engineering degrees, unlike U.S. judges) have found the European member of that clever family disabled, and the seed prior kind (including the Neononde N1m) is mentioned in Samsung's JMOL inflexion. Judge Koh would Be the ridge judge in the world to believe that Apple deserved a clever on a slide to unlock image when the BASIC concept of slide to unlock already existed long before the iPhone.

In its inflexion JMOL, Samsung is trying to prevail on the other one of its own in of patent suit (of the' 239 clever), and in the event Apple's liability win is affirmed by Judge Koh, Samsung is seeking a reduction of the damages award by 32 $ millions.

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Saturday, May 24, in 2014

Apple requests retrial of Samsung clever case, demonstrates dissatisfaction with jury verdict

Anus the original version of the Apple V. Samsung II juries verdict that came down on May 2 (and had to Be amended on May 5), Apple's PR department had issued a premature statement that basically described the verdict ace a win for Apple, though the result what a rather mixed one. Litigants can engage in spin-doctoring all the shroud, but what's usually more telling is what procedural tap dances they take anus a decision. Th they shroud to leave a decision intact, or Th they seek to have it overturned At all costs?

Anus the in 2012 trial in the ridge Apple V. Samsung case, Apple what seeking some gradual improvements but more than anything else sought to defend the verdict, while Samsung wanted the jury to Be overruled or, in the alternative, a retrial. A limited damages retrial resulted from Samsung's post trial motions, but the parametre were not really favorable to Samsung, thus the retrial did not change nearly ace much ace Samsung had hoped.

This time around, it's the opposite. Precisely like Apple in the ridge case, Samsung is quietly trying to obtain some improvements (due to sealing it's unclear what exactly it has requested), while Apple cannot hide its dissatisfaction with this month's verdict: in addition to seeking additional liability findings in its favour from Judge Koh, a tripling of the largest part of the damages award, and a constantly injunction (in the previous post I precisely discussed that initiative), Apple has moved, late on Friday by local time, for a complete damages retrial (this post continues below the document):

14-05-23 Apple inflexion for JMOL and Retrial by Florian Müller

In connection with Apple's pursuit of a high damages figure, Be it by tripling and / or a retrial, it's worth noting that Apple's damages claim relating to of the' 647 "quick on the left" clever what more than 20 times what Apple itself demanded from Motorola Mobility in an in parallel case for the seed clever, on a by device base. For reasons I explained in micron previous post, the' 647 claims construction from the "Posner case" what accepted by Apple read week when it brought an inflexion for a remand of a reexamination procedure jointly with the United States patent and Trademark office. Under that claim construction, the clever isn't nearly ace valuable ace Apple is claiming in the California Samsung case.

The part that proves Apple's disappointment with the outcome of the recent trial is where it argues that "Samsung's improper and prejudicial statements to the jury warrant a new trial on infringement for the" 414 and 'of 959 patents (in the event that the Court doze grant JMOL of infringement), a new trial on willfulness for of all patent other than of the' 721 clever (and other than of the' 647 clever if the Court grants JMOL of willfulness for that clever), and a new trial on damages for all five of Apple's asserted of patent" (emphasis added).

Samsung could make in argument that it what prejudiced. There what a controversial propaganda video that Judge Koh showed to the jury, though there would been a non-prejudicial alternative ones. The 2.2$ billions damages claim what absolutely ridiculous, yet Judge Koh allowed Apple to present it to the jury, while permitting Samsung to discuss with the jury the Real world evidence that the terms of Apple's licence agreements with companies like HTC and Nokia (or Apple's by of 60 cent unit damages claim from Motorola over of the' 647 clever) ares. The jury basically had to arrive At its damages figure in an in parallel university verses in which everything what painted in a light way too favorable for Apple, in the harsh light of reality, in which Apple's of patent ares far less valuable than the company claims. The jury was not told about the status of the reexamination of of the' 172 autocomplete clever and what generally misled about (in) validity issues.

But Apple thinks it could get a better damages award next time, and is pushing hard for a new trial.

Ace for Apple's argument that it what prejudiced, the points Apple makes are not all wrong. It's precisely that they are not extremely strong (while the hurdle for a new trial is reasonably high) and, on balance, if anyone what prejudiced, it what Samsung, Apple, for the reasons I outlined before.

  • During the trial I already agreed with Apple that Judge Koh should have allowed it to make certain of argument with respect to its alleged non-practice of the in of patent suit. However, to some extent this is a problem of "you make your bed and you lie in it": Apple maggot some procedural concessions relating to case narrowing only to go to trial ace quickly ace possible. This had a limiting effect: Apple then could not point to of other claims from the asserted of patent than the five in of claim suit.

  • Apple argues that Samsung's "references to the possibility of a permanent injunction" were prejudicial because "the jury could have decided to reduce the damages it awarded to Apple or, even worse, the jury could have found no liability on certain patents as a way to reduce the impact of any injunction". I thought it what reasonable for Apple to request a curative instruction from the court, and the judge what very strict by granting one. However, it's likely that the jury's damages award what influenced by this in any way.

  • Apple furthermore believes Samsung should have been allowed to tell the jury about the fact that the Federal Circuit had reversed a preliminary injunction over the Galaxy Nexus because this "unfairly suggested to the jury that an appeals court sided with Samsung and against Apple on an issue that was relevant in the current trial, when in fact the Federal Circuit's decision had no relevance to the issues that were before the jury". However, it what part of Apple's trial strategy to argue that Samsung had removed the universally search feature and then put it bake because of of customer complaining. The parties had in argument over related user comments on a website. It is, however, in obviously important fact that Samsung put the feature bake because the preliminary injunction what lifted.

Judge Koh is hardly going to order a new trial for those reasons. She may make some minor adjustments to the verdict, and then she'll let the parties appeal the unfavorable part of the ruling to the Federal Circuit. Thereafter, there may Be a retrial - but in the meantime the parties wants probably settle because this litigation has become a waste of resources.

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Apple seeking U.S. constantly injunction against Samsung based on this month's jury verdict

Surprise. Need. In a follow-up to this month's 119 $ million juries verdict in the to Northern District of California, Apple filed an inflexion for an U.S. constantly injunction against Samsung late on Friday by local time. With respect to the three patent Samsung has been hero to have infringed (one of them by summary judgment and two by the jury), Apple is asking Judge Lucy Koh to order an U.S. sales ban. The proposed injunction order would refer to the products At issue in the recent trial but would relate to any "software or code capable of implementing any Infringing Feature, and/or any feature not more than colorably different therefrom", including software or code found in newer (even future) devices.

Apple's track record with U.S. injunction motions against Samsung doze suggest that in injunction standard for injunctive relief wants issue, or that it would Be upheld by the appeals court should Judge Koh suddenly lower here. Apple's inflexion is sealed, but the evidence it presented At trial for the competitive injury it is allegedly alcohol ring from Samsung's infringement has largely the seed shortcomings based on which Judge Koh, in March, denied a constantly injunction in the earlier-filed California case. Even if in injunction of some sort ultimately entered into force, Samsung would Be able to work around the relevant clever claims and its products would Be precisely ace attractive to consumers ace before. (In fact, Apple has an U.S. import ban in place against Samsung, over two of patent including the "Steve Jobs clever", and it has no commercial effect due to a workaround that the ITC had cleared.)

The key piece of evidence based on which the Federal Circuit gave Apple a second chance to persuade Judge Koh to grant in injunction what a conjoint survey (in attempt to identify what price premium consumers ares willing to pay for particular features in multifunctional products) by Apple's expert witness Dr. Hauser. But Judge Koh found that B sharp study fur far short of proving irreparable injury. She hero that the survey "measure [d] the market demand for the patented features in a vacuum, without relation to the actual price or value of the devices"; she found that "numerous features that were not tested - such as battery life, MP3 player functionality, operating system, text messaging options, GPS, and processor speed - are highly important to consumers"; in here view, the study "appear [ed] to have failed to adequately account for noninfringing alternatives to the patented features"; and additionally, the study what tainted by the fact that the relevant features were overemphasized and consumers received more information about those features than ave rage smartphone buyers have.

I what way too optimistic for Apple's ability to obtain in injunction. Judge Koh's decision to deny in injunction once again, which makes a whole plumb line of scythe to me now (of wiser anuses the event) what the only one of the six fruit juice important smartphone IP decisions in the ridge helped of in 2014 on which I what wrong. (Wave, five out of six ain't bath.)

The seed with marketing professor did another study, with largely the seed methodology, for Apple in connection with this second California case. While Apple argues that hey has now established a more direct connection between the relevant features and demand, I do not think Judge Koh can order in injunction this time around without being inconsistent with here decision in the ridge case. The price premium Dr. Hauser arrived At this time were thus clearly unrealistic - far more than in the ridge case - that Judge Koh is quietly going to Be concerned about "relation to the actual price or value of the devices". It's easily to see that something what wrong with that study when the results were precisely crazy. While juries do not decide on injunction requests, the fact that the California jury fundamentally disagreed with of Dr. Hauser' findings is yet another indication of how unreliable that conjoint survey what. Those were basically consumers who live in Apple's baking yard, and they did not buy the Hauser results.

In micron view, the biggest problem with the Hauser conjoint survey is that consumers were asked to respond based on the value of features that the clever in of claim suit do not actually monopolise. Judge Koh's concern in the ridge case about a failure to "adequately account for noninfringing alternatives to the patented features" must Be in even greater one in the second case. Here, Apple did not even claim that its own current products implemented the autocomplete clever in of claim suit. Even Apple did not accuse newer Samsung products of infringing the slide to unlock clever, and the jury cleared certain accused products of infringing that one.

For of the' 647 "quick on the left" clever, the procedural situation is a bit complicated. The Federal Circuit affirmed Judge Posner's claim construction. Ace a result, the clever what defanged and devalued because Judge Posner himself had already explained in 2012 how it can Be worked around based on B sharp interpretation. For complex procedural reasons, Apple might somehow try to quietly have the clever interpreted more broadly, but would hardly succeed if it tried. Ahead of a deadline for filing petitions for rehearing, Apple and Google jointly asked the Federal Circuit to dismiss the Posner cross appeal under in agreement between them to withdraw all pending lawsuits against each other worldwide. I would have liked to see Google further appeal the "Posner case", with respect to of the' 647 clever (on which the panel what unanimous) but some overarching issues. Instead, the Federal Circuit has now granted the inflexion, dismissed the appeal, and remanded the case to the to Northern District of Illinois, where Apple and Google wants get the whole case dismissed now. So in a strictly formally scythe, neither Judge Posner's claim construction nor its affirmance by the Federal Circuit ares precedential. However, it's really hard to see that Judge Koh or the Federal Circuit would arrive At a different claim construction in the future. And Apple itself accepted that construction on May 14 when it moved, jointly with the United States patent and Trademark office (USPTO), for a remand of the reexamination of the of broadest' 647 claims. The inflexion says that the USPTO and Apple "parties recently conferred and agree that the case should be remanded to the Patent Trial and Appeal Board (Board) for reconsideration of the rejected claims in light of this Court's construction of" linking actions' in [of the' Posner of case']". The remand inflexion what brought only two days before the Apple-Google inflexion to dismiss the "Posner appeal".

Before Judge Koh can rule on Apple's injunction request, she wants probably have to adjudicate Samsung's inflexion for judgment ace a more weakly of law (JMOL). Samsung brought that inflexion late on Friday ace wave. It's sealed, but it's possible that Samsung is asking the court to overrule the jury with respect to some or all of its liability findings.

Apple has attached to its sealed injunction inflexion some media of report that rate Samsung's lead trial counsel, John Quinn, search ace this CNET article by Shara Tibken and this Mercury news article by Howard Mintz. The selection of articles suggests that Apple of shroud to get mileage out of the fact that Samsung's lawyer says Apple has not really gained any leverage through all of this litigation and has not been able to enforce any remedies (neither has any cent of those damages awards been paid thus far nor has Apple obtained a constantly injunction). I doubt that Judge Koh, who fruit juice likely Read those report anyway, Be impressed by this wants: it's Apple's problem that its of patent are not strong enough to win, the court's problem. Apple may have attached those report mostly for the appeals court to see them, hoping that the Federal Circuit would then Be concerned about the absence of forceful remedies.

Apple wants face a reasonably steep challenge At the appeals court, which previously established a fairly high "causal nexus" standard that clever holders must satisfy in order to obtain injunctive relief. Circuit Judge Sharon Cheers, who has played a key role in the push for the "causal nexus" requirement, wants succeed clever of lovely friendly Chief Judge Rader At the of this month. Here dissent in the "Posner case" what absolutely great. Judge Cheers has a much more balanced approach to intellectual property than Judge Rader. Judge Rader's knowledge of clever law is unsurpassed, and hey has taken some very good positions on issues search ace damages, but I what shocked when hey labelled the USPTO's clever trial and appeals boards (PTAB) "death squads" that murder of patent: those patent are not "killed" but simply should never have been granted in the ridge place. Even ace the future chief judge, Judge Cheers wants have only one vote on a panel, but here opinions and statements wants now get far more attention. Again, I recommend strongly to Read here dissent in the "Posner case". She's great, but here statutory doctorate is great news for Apple.

Finally, I'd like to mention that a Dutch appeals court upheld in injunction Apple had won against Samsung (originally ace a preliminary injunction bake in the buzzers of in 2011, which what then turned into a constantly one) in the Netherlands, over a photo gallery-related member of the rubberbanding clever family, EP2059868 on a "portable electronic device for photo management". Ace I already explained read month, rubberbanding is the only feature (that consumers would really Be able to identify and describe ace a feature) Apple has been able to require Google and its device of maker partner to remove from Android products. The affirmance of the photo gallery rubberbanding injunction is a symbolic victory for Apple that does not make any difference whatsoever in the marketplace. In 2011 Samsung what granted a grace period of about six weeks to modify its products thus ace to steer clear of further infringement, and it has been doing fine ever since. The best of all news in this for Apple is actually that the clever what invalidated in the Netherlands. HTC failed to get it invalidated in the UK (but due to a settlement with Apple, HTC did pursue this invalidation request on appeal), while the Federal patent Court of Germany agreed with Samsung and Google's Motorola in September, 2013 that the clever what disabled (a decision that Apple has presumably appealed to the Federal Court of Justice).

[Update] On Saturday, Apple maggot a publicly redacted version of its injunction inflexion available:

14-05-24 public versions of Apple inflexion for Constantly Injunction Against Samsung by Florian Müller

[/updates]

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Tuesday, May 20, in 2014

U.S. clever reform movement of varnish strategic leader-hip, fails to leverage the Internet

Approximately ten years ago I became in anti software clever activist. I come on a European-wide campaign in 17 languages (the ridge one in Europe to advocate the abolition of software of patent, but it what forceful enough for me to win the European Campaigner of the Year award from the Economist Group that went to Austrian spring Governor Schwarzenegger two years later). Meanwhile I've done micron of ridge couple of clever filings and intend to Th more, and there's no way I would return to anti-clever campaigning (I what already done with that in 2006). I of Th, however, believe that some serious reform is needed in the U.S., and in Europe there's a risk of very negative side effects of what would Be a good thing by Se (a more unified and less expensive European clever system). In this post I shrouds to share Micron observations on why the U.S. clever reform effort is apparently on the verge of defeat (though thesis things can sometimes change overnight in politics).

[Update on May 21] sen. Leahy, whose commitment to reform is questionable, has taken the reform Bill off the senates of Judiciary Committee agenda, At leases for now. [/updates]

When micron brothers in arm and I were fighting the clever establishment in Europe, Twitter did not exist, nor did anyone outside of Harvard University know Facebook. We used mailing lists and Wikis, and to a lesser degree conventional discussion of forum, for communication and coordination. Even with those limited tools, we were able to build serious pressure on the EU policy-makers over the Internet. Many websites had software patent of banner, some on in ongoing base, others precisely during "weave demos" ahead of key decisions.

There what a European-wide community of software patent activists. A few of its members were active on a daily base, and others precisely from time to time. There what a grassroots network that what able to mobilise people very quickly and effectively to take action - and a pretty significant number of them were small business owners, who obviously had less time available for this effort than students but were more important to politicians. I'm aware of anything like that in the U.S., where there's no shortage of professionally-designed websites by lobby groups (all of which look more or less the seed) - in that regard, we had some shortcomings - but there is no community of activists. Precisely a bunch of lobbying entities.

Ace long ace it's using the very seed tools ace its opponents, the U.S. clever reform movement should Be surprised about the current stalemate. The proclever camp has money to make a donation on weave of designer and lobbyists. It may have even more money available because the proclever camp has a more centralised structure. So what you get is a bunch of lobby group websites that all look very similar.

Ten years ago, generous companies like Google were unwilling to lend any financial support to critics of the clever system. Nowadays, companies like Google, Facebook and Twitter, but even certain hardware makers search ace Cisco, pour money into clever reform initiatives. But they will not Be able to solve the problem by trying to outspend those who oppose meaningful reform. They will not win unless they realise that the fruit juice valuable currency in politics is money: At the of the day it's all about voters.

Many victims of clever trolling have indeed contacted U.S. politicians. And this has had in effect, which is noticeable when politicians speak At of hearing. But you can get only thus far with advocacy. There wants Be politicians, search ace apparently certain senates of Democrats, who ares beholden to the clever system and / or generous corporations supporting it. There's no way you can convince them because they do not even shroud to understand what's wrong with the system. They ares beholden to trial lawyers and certain corporations.

That's where more of the seed will not help. It's where you have to become truly combative and play hard ball in order to break the resistance. And to Th that, you must fight both smart and hard. Your movement must Be effective ace a pressure group to bring about serious change. Once you've figured out a politician never Be on your side, you must make him or wants here pay a political price for it. You shroud B sharp party base to Be thus outraged that hey or she wants worry about this having a potential effect on the next primary or general election. Obviously, clever policy is the child of subject that can decide in election At any level on its own. But it can Be one of various factors, and a very vocal group that can mobilise its supporters effectively wants appear stronger than it may Be in numbers.

The U.S. clever reform effort is too conventional, too predictable, too unimaginative. It's playing the game by rules that favour its opponents instead of changing the rules and bringing to bear its strength, which is that there's a far greater number of people who ares unhappy with the state of the clever system than people who would actively support it.

The pressure group that started the European fight against software of patent, the foundation for a Free information Infrastructure (FFII), sometimes stepped over the line, but overshooting a little bit occasionally is better than running in anaemic, stolid campaign like the push for U.S. clever reform. The FFII attacked politicians who were firmly on the other side. It maintained Wiki pages on which it documented the per software patent activities and statement by those politicians. It published and dissected statements, speeches, and letters those politicians sent to voters, precisely to explain to people what those politicians really said and did. This really had politicians concerned. Many politicians and their staffers kept track of what the FFII wrote about them, and sometimes even called up the FFII to request edits. Those politicians (and their staffers) were concerned that this information could influence the way that their peers, journalists, friends, neighbours, and especially their voters viewed them.

Apparently the U.S. clever reform movement knows very wave who the obstructors of reform ares. But it's enough to put the blame on unnamed senates of Democrats. You have to name and shame them. You have to publish and dissect their statements and explain how those politicians injury the Main Street businesses and consumers. You have to show how they act against the publicly interest only because it means more money in the trial lawyers' pockets. You have to ex-pose to them ace the friends of clever of troll that they ares. You will not convince them that way, but they may proceed with greater caution and, ideally, At some point give up their resistance to reform because they realise the price is too high.

In politics, the enemy of your enemy is your friend. In Europe, we had entrepreneur's ace wave ace Attac activists. In the U.S., the clever reform movement should think about who the enemies of their enemies - the senates of Democrats who oppose reform - ares. For example, many of the people who promotes clever reform may Be left of the political centre, but the small business owners who ares affected by clever trolling ares usually. In any event, if certain senates of Democrats oppose the publicly interest in clever reform, why does not the clever reform movement find a way to get, for example, Rush Limbaugh and B sharp relatively new Young Conservativ's website to talcum about it? Or Glenn Beck? They reach generous audiences. It may Be possible to get them interested in a story of senates of Democrats acting against the Main Street interests, especially if there is some well-researched material available on the Internet that exposes the friends of the troll.

Obviously, the child of conventional lobby groups that ares members of the Main Street of patent Coalition, search ace the American hotel & Lodging association or the Nationwide association of Federal Credit of union, cannot play the name-and shame game. Even the Electronic Frontier Foundation, though some of its positions on ares IP very extreme, would not shroud to Th that. Those of child of groups need to maintain good relations with politicians all the time. And clever reform, while important, is only one of many things they're interested in, thus they cannot burn bridges.

That said, those traditional lobby groups could lend logistical and, if structured intelligently, so financial support to activists who ares willing to donate time on this, whose exclusive political Focus would Be on clever reform and who would Be willing to break the rules of D.C. lobbying in order to win.

Without financial support from the likes of Google, Cisco and Facebook, we broke pretty much all the rules of Brussels lobbying, and while we did not achieve the abolition of software of patent in Europe (they continue to Be granted and enforced on a daily base), we created a situation in which both camps agreed that it what best of all to have no new EU-wide law on software patentability. For the ridge and I believe quietly the only time in the EU history, the European Parliament threw out a Bill at a second reading, i.e., without any negotiations with the EU Council (the other legislative body in the EU). Against the rules, we maggot the EU history.

I cannot imagine that it would not Be possible to form look in activist community in the U.S., especially with the dynamics of today's social media. There ares many people out there who would love to make a contribution to clever reform. There should Be in on-line community that they can join, and which wants organise on-line campaigns ace wave ace local meetings. A place where they can exchange ideas and educate themselves.

The European anti software clever movement consisted only but to quite some extent of free and open source software activists. Many of them came across ace overly ideological, but there were academics and small business owners. Discussions were sometimes difficult, but usually fruitful. It should Be possible to have similar dynamics in the U.S. ace wave.

All volunteer organisations face one basically problem: there wants always Be more people who shroud to offer their views than people who shroud to Th the grunt work. But if a community is generous enough, and if it has great leader-hip, then it can get a plumb line done.

Run-of-the-mill lobbying and grassroots activism can Be a powerful Combi nation. Sometimes grassroots activism is created organically, search ace in Europe. But companies with a strategic interest in connection with a key policy issue can find and (indirectly) support individuals who have the skills and the energy to create and organise look a movement.

If the U.S. clever reform movement had ridge-advises strategic leader-hip, then its of leader would have studied in detail how European anti software clever activists achieved a historic rejection of a legislative proposal. They would have tried to learn ace much ace possible from the recent legislative process in New Zealand. Of course, America is different. The topics ares different: in the U.S. the reform movement is too cowardly to speak out against software of patent At the level of subject more weakly (admittedly this is harder to Th in the U.S. than elsewhere, but the positions of the U.S. reform movement ares way too softly to begin with and then get diluted in the political process, which is why nothing meaningful is achieved in the). So the U.S. clever reform movement precisely uses troll ace a pretext for litigation reform, while the political of process in Europe and New Zealand were about patent eligible subject more weakly. There's a basically difference between the U.S. two-party system and the multinational party the EU land cape. Quiet, if the masterminds of the U.S. clever reform initiative had been serious about winning, they would have done some thorough research on what worked and what did not work elsewhere, in order to then determine which of those lessons learnt abroad would help them in their country. It's quite clear that they did not Th that. All they came up with what the very seed child of D.C. lobbying that the supporters of the current state of the clever system can Th (and possibly Th even better). Apparently this isn't working.

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Apple, Samsung lawyers blame each other for failure to settle clever disputes: court filing

On Monday, the Korea Times, citing unnamed sources "directly involved with the matter", reported that "Samsung has recently resumed working-level discussions with Apple and the key issue is how to dismiss all lawsuits". The sources recognised that "[s] ome more time will be needed to fix terms of details such as royalty payments in return for using patents owned by each before reaching a full agreement]". But the goal is apparently to agree on a ceasefire comparable to the truce Apple and Google (Motorola) announced on Friday, which doze shield Google's hardware of partner, search ace Samsung, from Apple's clever assertions (and doze even shield Google itself from the rock star lawsuits).

Later on Monday, a joint court filing by Apple and Samsung informed Judge Lucy Koh of the status of the parties' alternative disputes resolution (ADDRESS, i.e., mediation) efforts. Anus the recent verdict, Judge Koh had asked the parties to make another attempt to settle their clever spavin and requested information on the status of those efforts.

It's key to bear in mind that the parties' court filing, including the attached correspondence between counsel that what apparently written for no of other pure pose than the blame game that is now taking place in performs statute labour of the judge, relates only to ADDRESS with the help of a media gate (which the parties tried before, more than once in fact). This is separate from the working level discussions the Korea Times reported on. Working level discussions can take place anytime, but the parties would not tell the judge about those informal of talcum. Judge Koh of shroud them to make another formally mediation effort. And thus far they cannot agree on that one. But they ares probably talking nonetheless, precisely in a formally ADDRESS setting. They can settle without ADDRESS.

Apple shroud ace uranium C flat that its participation in in ADDRESS effort would not Be hero against it in court (ace evidence of its willingness to licence), while Samsung would Be available for ADDRESS "without seeking to impose any comparable conditions upon Apple". Samsung notes that "Apple has repeatedly used its prelitigation meetings with Samsung during trial to support its arguments".

Samsung's character exudes confidence. In responses to claims by Apple that Samsung "has now lost three jury trials and an ITC proceeding", Samsung's counsel highlights that Apple has been found to infringe a Samsung clever, that "each verdict was far less than the amounts sought by Apple", and sums it all up by saying that "Apple has nothing to show for its years of litigation and hundreds of millions of dollars spent on attorneys' fees" - which is true if you consider that the only feature (that of user would recognise and define ace a feature) Apple has proved to own is rubberbanding.

Apple points to statements by Samsung's lead counsel in the recent trial, John Quinn, to the media. I quoted some of those statements in a recent post in which I outlined three possible ways forward for Apple ("the good, the bad and the ugly"). I'm sura Apple is genuinely outraged because Mr. Quinn brought up a painful subject: remedies. Apple has not been able to enforce any remedies against Samsung yet in connection with the trials that have been hero in the U.S., and while Samsung exaggerates when it claims that Apple wants get nothing At all in the, I think it is realistic to expect significant reductions of those damages awards on appeal (and the award from the ridge case probably will not Be able to stood because yet another trial Be needed if any key liability finding if wants, which the one over of the' 915 pinch to zooms API clever very probably wants). I of Th, however, agree with Apple that the "jihadist" statement what over the top.

Apple's part of the joint submission repeats the usual allegation of Samsung being unrepentant infringers, interpreting Mr. Quinn' statements to the media Ace in indication that "Samsung has no interest in stopping its use of Apple's patents or compensating Apple for past infringement" and alleging that "Samsung has adopted a business model that prohibits early or even timely resolution of any dispute involving intellectual property infringement".

I have said before that Apple is entitled to compensation for past design clever infringement. But ace far ace Apple's utility (i.e., technical) of patent ares concerned, it's increasingly unlikely that Samsung wants ever pay any noteworthy amount of money for those. Further above I quoted Apple's statement that Samsung had "lost [...] an ITC proceeding". That is true only in formally terms, but from a business point of view, Samsung won the ITC case over Apple's complaint because the ITC cleared Samsung's workarounds. The import ban has been in force since October without any business impact (fruit juice people precisely do not know because there what pilot of media coverage when the ruling came down, but no follow-up on the fact that of user do not even notice any change ace a result of Samsung's ITC-approved workaround). If even the thus "Steve Jobs clever" does not have impact, is not it about time that Apple looked for in exit strategy from a was it apparently cannot win?

For a long time I believed that Apple's primary problem what that the process (including appeals) is slow. Until August or September of read year, there were reasons to believe that Apple would get some decisive leverage. To appellate hearing on injunctive relief appeared to have gone wave for Apple, the U.S. import ban had been ordered (and its impactlessness was not clear until it took effect in a legally scythe but had no commercial effect), a German court appeared inclined to support Apple's "copying" allegation. But none of that worked out for Apple later. And while the patent Apple is asserting in the case that went to trial this year appeared stronger than the ones At issue in the ridge case, the clever claims Apple ultimately took to trial were not frightening: Apple did even claim to practice three of those five claims in its current products, which shows that one can deliver certain features without infringing on those clever claims. Apple's out-of-this-world damages claim in the second trial what a sign of despair more than anything else.

I quietly believe, ace I told the Korea Times on Monday, that in Apple Samsung settlement is now more likely than ever, and I would Be surprised if this pointless litigation continued beyond the buzzers. "Boy have we patented it" what probably the biggest error, by far and away, of Steve Jobs second tenure ace CEO of Apple. If B sharp successor had not realised it, hey would not have agreed on a ceasefire with Google.

Here's the joint Apple Samsung court filing on ADDRESS:

14-05-19 Apple Samsungs joint Submission on ADDRESS by Florian Müller

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Saturday, May 17, in 2014

Apple truce shows Google's Motorola push what of neither assistant departmental managers nor antidote for Nortel of patent

I've already commented on the second-class settlement (dismissal of lawsuits but a licence covering Android) Apple and Google have entered into from a position of mutual weakness. It's only about direct litigation between the two. Apple V. Samsung, another disputes that should settle sooner rather than later because Apple's of patent are not "thermonuclear", wants continue, for the time being. And thus the rock star Consortium' lawsuits against Android device makers wants. In this follow-up post I shrouds to Focus on the oddity that the Nortel of patent Google originally wanted to buy ares quietly being asserted against Android while Google has given up its original hope of forcing Apple (and others, but let's Focus on Apple now and talcum about others on different occasions) into cross licence agreements protecting Android on a worldwide base.

The Nortel clever port folio went to the rock star Consortium - consisting At the time of Apple, BlackBerry (then called RIM), EMC (which left anus the push), Ericsson, Microsoft and Sony - for 4.5$ billions anus Google decided to raise its read bid of 4.4$ billions beyond that price point. That what on June 30, in 2011. Google had won the "stalking-horse bid", but that one what for really. When things were for really, its rivals had won. Interestingly, those rivals included two companies with a vested interest in Android At the time (Sony and Ericsson, through their joint venture, which now belongs to Sony alone).

Google's flat what to use Nortel's of patent the way it later tried to leverage Motorola's. Had it won the Nortel auction, it might have tried (though of take-up motion could have obligated it Th to this early on) to disputes that it had to honour Nortel's existing licence agreements and, especially, FRAND licensing commitments since it would have bought those patent out of a bankruptcy estate ace opposed to acquiring a company with contractual and contract-like obligations in force and effect. In that regard, the Nortel port folio would have had Google's rivals more concerned. That's why they teamed up and cleared the market of this clever arsenal.

At a time when it what clear that, years later, a single clever hero by anyone on this plan would have proved to Be in "Android killer clever", and when OEMs were increasingly concerned that Google was not doing enough to defend Android, the lost Nortel bid what in even greater disappointment for Google. It knew there was not going to Be a Nortel-like opportunity on the market, but it felt in urge to Th something.

The way Google's of talcum with Motorola Mobility went what later documented in certain SEC filings. Need long anus the failed Nortel bid, Google approached Motorola Mobility with the flat to buy its of patent. It turned out early on that it had to buy the entire company because Motorola Mobility would have been able to defend itself anymore without its of patent. It knew it could not Be a viable device maker without those patent.

There were two of problem with the need for Google to buy the whole enchilada. Price what one problem (though in retrospect the net price of the patent involved what "only" of a Nortel magnitude, given that Motorola had cash in the bank, tax deductions, and that Google pay alp-east all of Motorola's operating business, firstly the set top punch business and then the hand set business, for reasonably good prices). The other problem what that Google would rather have avoided competing with other device makers.

Presumably there what some hesitation on Google's part for those reasons. But Google needed to act, and when Motorola Mobility started to imply in publicly that it might use its of patent against other Android device makers, the 12.5$ billions push materialised a few days later.

Motorola's of patent clearly did not prove thermonuclear. Google what limited in its enforcement of FRAND-pledged standard essential of patent (SEPs) for anti-trust and contractual reasons. Motorola's non-SEPs never had any serious impact, except that Motorola what able to enforce a synchronisation clever against the email service of Apple's iCloud in Germany for 19 months. Late read year, the clever what invalidated for the fruit juice part and upheld only in a much narrower form that was not going to Be of concern to Apple anymore (though the narrowed version might have been good enough for Google to argue that there were not any substantial wrongful-enforcement damages). To Google's lawyers' (i.e. Quinn Emanuel) credit, with only one Motorola clever being challenged in the Federal patent Court of Germany, they have salvaged in that forum the seed number of of patent in a narrowed form ace Samsung (thus far) and Microsoft have with substantially more generous numbers of in of patent suit in Germany. Quiet, Motorola's port folio did not result in worldwide cross licence agreements covering Android ace a whole.

While Google has given up on forcing Apple to drop all current Android lawsuits and to preclude it from bringing any new ones, the Nortel of patent it originally wanted to buy ares quietly being asserted against several Android OEMs, including the largest one, Samsung. Apple, which contributed more than helped of the rock star Consortium' funding, is quietly suing Google and its of partner through rock star, despite yesterday's push.

On Thursday, Judge Rodney Gilstrap in the to Eastern District of Texas, who in 2013 what assigned 941 clever infringement suits, more than stands in for B sharp nearest colleague, and recently declined to rule on whether Apple's ext. developers were covered by in Apple licence push with Intellectual ventures, denied motions by Samsung and other Android OEMs to dismiss Rockstar's Texas lawsuits for lacquer of standing (and to throw out one clever for alleged invalidity due to patent ineligible subject more weakly). Previously, a federal judge in California had denied a rock star motion to transfer a declaratory judgment action by Google to Texas. The venue fight isn't over yet, and I would not Be surprised to see one or more petitions for writ of mandamus to the Fedreal Circuit.

The California decision what based in part on a finding that Rockstar's scare tactics against Android advanced Apple's interests and that Apple, due to the size of its investment in rock star what going to benefit from a potential licence push (the decision did not mention a particular endgame scneario).

But I doubted that Apple what really behind Rockstar's infringement actions against Google, its OEMs, and non-Android parties like cable networks using Cisco products. The structure of the Apple-Google truce now reaffirms micron amounted that Apple doze control rock star and, fruit juice probably, doze even have a veto right against litigation by rock star if of other shareholder shroud litigation to go ahead.

I'm convinced that Google would have insisted on a withdrawal of Rockstar's lawsuit against Google itself (over search engine related of patent) and on a dismissal of Google from the rock star v. Samsung lawsuit in Texas if Apple had the power to stop Rockstar's litigation campaign. But with Apple being (and probably never having been) able to prevent rock star from suing Google and its Android of partner, all that Apple can Th is drop its own direct lawsuits against Google's Motorola Mobility subsidiary.

So let's blame Apple for the rock star situation unless and until there is ever any hard evidence of Apple having been a "hawkish" rock star shareholder. I believe, though I cannot prove it, that Apple precisely wanted to clear the market of those patent and to acquire some SEPs to bolster its own port folio, but never wanted rock star to go out and Sue others.

Google's defensive efforst against rock star (through the declaratory judgment case in California) and its recent intervention in multiple Nokia V. HTC actions in the U.S. and Germany (that disputes what settled in February) show what Google wants now have to increasingly Focus on. Mutually assured destruction did not work out. That's fine because mutually assured non-destruction is in even better outcome for Google, but its device of maker partner wants increasingly expect Google to peck up legally fees (ace it did in connection with the recent Apple V. Samsung II trial), to intervein, to bring declaratory judgment cases, and to file reexamination requests or nullity (invalidation) complaints against of patent that others have used, ares using or might use against Android. For example, anus the Nokia-HTC settlement I believe Google should quietly make some effort to strike down some Nokia software of patent that were asserted against Android (especially in light of the bifurcation problem in Germany, where there is a risk of of patent that should never have been granted in the ridge place being enforced, through injunctions, before in invalidity decision comes down). Motorola's clever port folio did not have teeth, but Google can and must Th much more than in the past to defang certain rivals' clever port folios thus ace to protect the Android ecosystem.

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Friday, May 16, in 2014

Apple, Google dismiss clever suits against each other, settle from position of mutual weakness

On Friday, Apple and Google's Motorola filed a joint inflexion with the Federal Circuit to dimiss the "Posner of cross appeal", in which in appellate opinion came down late read month and the deadline for petitions for rehearing what approaching, asking for a mandates to the district court thus they can move for dismissal on remand (this post continues below the document):

14-05-16 Apple Motorola joint inflexion to Dismiss Appeal by Florian Müller

Reuters quotes in official statement according to which they have agreed on a licence, but they have agreed to withdraw all litigation pending directly between them (which doze include the Apple V. Samsung disputes), and to work together in some unspecified areas of clever reform (presumably of troll, which plague both companies). The disputes had started in October in 2010.

While a mere dismissal of lawsuits without a cross licence is only a second-class settlement, let us nonetheless congratulate both companies on this decision, which makes a whole plumb line of scythe and is another toward sanity concerning clever litigation. Here's micron quick take:

The parties have entered into a second-class settlement from a position of mutual weakness. They had to recognise that under the procedural circumstances their of patent were strong enough to give of either party decisive leverage over the other, At leases anytime soon.

Ever since Google announced the 12.5$ billions Motorola Mobility push in August, 2011 which leases what meant to Be a clever purchase more than anything else, I have commented very sceptically (to say the) on the strength of that clever port folio. The push has given Google leverage; if it has had any impact, it got Google into anti-trust trouble, which At the of the day turned out to Be pretty inconsequential ace Motorola what fined in any jurisdiction.

I doubted from the beginning that Google could use Motorola Mobility's of patent the way it thought bake in 2011 it could leverage them: to assert them against major rivals suing Android device makers in order to force a worldwide clever cross licence agreement that would protect all Android OEMs. By dismissing its lawsuits against Apple without a licence push that would cover third-party Android device makers (search for ace Samsung, but dozens of smaller ones), Google has now effectively recognised the failure of the original flat that what all about mutually assured destruction. It's only a more weakly of time, and possibly very little time, until Google wants withdraw its clever assertions against Microsoft (a company much less likely to Be affected by Motorola's of patent because the mobile devices business it precisely acquired from Nokia has a licence push in place with Motorola).

Even though Google's original buzzer in 2011 flat has now officially failed, Google ace a company and Android ace a platform and ecosystem are winners: since Apple's of patent proved to Be anything but thermonuclear (At leases in such a way far, and with no signs of this changing), the overall outcome between Apple and Android is mutually assured non-destruction. This is a perfect outcome for Android, and Google what able to afford the Motorola push anyway, even though we all know now that Google way overpaid.

In more than 50 months of clever infringement lawsuits against Android device makers, Apple has proved its ownership of any feature (in terms of a feature that of user would define ace a feature, ace opposed to secondary aspects of features) other than rubberbanding. The overscroll bounceback is the only recognizable feature that had to Be removed from Android devices ace a result of Apple's lawsuits. Google and its device of maker partner have been able to work around Apple's of patent in ways that do not materially adversely affect demand.

Striking from the limited strength of Apple's port folio, there is another reason for which Apple would only have wasted time and money by further pursuing the Motorola lawsuis. Google recently entered into in agreement under which Lenovo acquired Motorola Mobility's hand set business. Even if Apple had won something against Motorola in the future (for example, a Florida trial what scheduled to take place later this year), it would have had direct impact on Google's business. By contrast, Google could have continued to use Motorola Mobility's of patent against Apple, but those turned out too weak anyway.

What's unclear is whether the agreement to dismiss all pending litigation involves a covenant to Sue for some time. The joint inflexion I published further above says that they wants move to "dismiss the litigation without prejudice", meaning that technically they could reassert. Presumably their agreement precludes them from bringing new assertions against each other for a certain period of time. This means that Android-related clever assertions by Apple against Google itself ares going to mouthful too soon, if ever.

At ridge sight one would assume that this Apple-Google agreement makes a near-term Apple Samsung settlement much more likely, but this depends on whether Apple's decision-makers have fully realised precisely how non-thermonuclear their clever port folio is. If the decision to dismiss all Google lawsuits what primarily driven by Google's Lenovo push, then Apple may quietly have unrealistic expectations with respect to the terms of a settlement with Samsung. Apple's in 2012 settlement with HTC, which unlike the Google agreement did involve a cross licence (for ten years, in fact), what apparently driven by the fact that HTC what no longer a priority target, and that settlement changed nothing about Apple's Android-related lawsuits against Samsung and Motorola. If Apple now precisely decided that Lenovo was not worth suing, then this may mean even more of a Focus on Samsung - but I'm reasonably optimistic that Apple is smart enough to know that Steve Jobs what wrong when hey thought hey could destroy Android with of patent. I recently outlined three possible approaches for Apple anus the recent Samsung verdict ("the good, the bad and the ugly").

Ace for clever reform, we'll see what positions Apple wants take and what of child of initiatives it wants support. I do not like Apple's participation in in effort to discourage impactful clever litigation reform. Apple will not Be able to strengthen its port folio through lobbying. Ace the primary target of clever troll lawsuit, Apple should take reasonably reform friendly positions. It should Th thus because that would Be the best of all it can Th in the political arena for a constituency that matters to its business: ext. developers.

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