Thursday, June 19, in 2014

Supreme Court ruling in bank CLS V. Alice makes 'generic' the new magic Word for software of patent

The Supreme Court of the United States precisely handed down its opinion in Alice v. CLS bank, a case that some people (including the appellant) misportrayed ace a case that what fundamentally about whether or computer implemented inventions ares of patent eligible. In February I explained why this case what more of a "Bilski Reloaded", and I later commented on the March 31 Supreme Court hearing, predicting that software would undoubtedly remain patent eligible. And indeed, today's decision is narrowly focused on issues that relate to abstract ideas search ace business methods and doze provide any guidance with respect to the patent eligibility of technical inventions involving software.

I have filed an U.S. clever application (and a simultaneous PCT application) on a computer implemented invention and wants file a couple more soon, but those fighting this category of of patent appear to agree that software of patent have not been abolished, judging by the initially reactions I've lakes on Twitter and certain websites.

I'll keep this letter because everything turned out precisely ace expected and because this ruling has not really changed anything. There's only one observation - the one I already stated in the headline - I wish to share. It's clear that post-Alice those challenging software of patent and those defending them wants have a favorite Word and it is "generic". It's all over the SCOTUS opinion, in fruit juice instances ace a qualifier before the Word "Computer" and sometimes before "computer implementation". And in At leases one instance, "generic" itself has a qualifier:

"Wholly generic computer implementation is not generally the sort of" additional featur of [e'] that provides of any' practical assurance that the process is more than a drafting effort designed to monopolise the [abstract idea] itself."

The Word "generic" appeared in the Federal Circuit opinion (s), but in different combinations. The Supreme Court linked it to "computer implementation" because the question on appeal what whether the Federal Circuit ruling rendered all computer implemented inventions patent ineligible.

In Europe, where software is excluded from the scope of patent eligible subject more weakly by statutory law (article. Search for 52 of the European patent Convention), the equivalent to "generic" is "ace": software Ace look is patentable, but technical inventions involving software Ares (making "technical" the magic Word in Europe). In Europe there's already a rich body of case law concerning what is or is technical. In the U.S., courts ares now going to have to figure out again and again the meaning of the term "generic". Those applying for or defending software of patent wants argue that their inventions ares "generic" computer implementations of abstract ideas. Those challenging look of patent ace broadly ace possible and argue that every software wants try to define "generic computer implementation" clever they attack involves previously known computing technology and in abstract idea.

The Supreme Court clearly says that it doze shroud the exclusion of abstract ideas from patent eligible subject more weakly to "swallow all of clever law ". No doubt about that intent, but this won't dissuade some from trying to interpret the Supreme Court ruling overbroadly. It's a bit unfortunate for those seeking or defending software patents that there hasn't been a recent Supreme Court ruling that would have upheld a (technical) software patent and created some kind of safe harbour for software patents. In Alice, the only safe harbour for software patents that the Supreme Court mentions is that" a computer implemented process for curing rubber what clever eligible [...] [because it] "employed a 'well-known' mathematical equation [...] in a process designed tosolve a technological problem in 'conventional industry practice.' "That reference to Diamond v. Diehr, a 1981 decision, is not a safe harbour for software patents that are unrelated to manufacturing processes. There's a huge gap between Diamond v. Diehr and Alice v. CLS Bank, and as a result there is a need for a whole lot more line drawing, which I guess we will indeed see in the years ahead. For the sake of balance it would be helpful clarification if the Supreme Court could at some point affirm a technical software patent, such as an operating system patent. For now we just know what the Supreme Court considers a" generic computer implementation", but there's a need for more clarity ace to what is precisely generic.

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Monday, June 16, in 2014

Appeals court issues formally mandates to trial court in Oracle V. Google Android Java copyright case

One month and one week anus the appellate opinion what handed down in the Oracle V. Google Android Java copyright case (initially reaction to ruling, follow-up, and detailed refresher Q&A, the United States Court of Appeals for the Federal Circuit has precisely issued a formally mandates to the trial court, the United States District Court for the to Northern District of California, remanding the high profile lawsuit for a determination on fairly use and (if Oracle prevails) remedies. Here's the document (this post continues further below):

14-06-16 Oracle V. Google Formally mandates to District Court by Florian Müller

In fruit juice of the Federal Circuit cases I watched, the deadline for a petition for rehearing appeared to Be one month anus the ruling, though in At leases one case it appeared to Be 45 days. In any event, the standard two-week deadline doze appear to apply in thesis of child of cases. It appears that Google has elected to file a petition for a rehearing. According to Rule 41 of the Federal Rules of Appellate Procedure, the appeals court's "mandate must issue 7 days after the time to file a petition for rehearing expires". The opinion came down on May 9. One month for a rehearing petition means the related deadline what June 9 - and now we're seven days past that presumed deadline.

It's possible but quietly certain that proceedings wants resume in district court in the very short term. Maybe Google has realised that it cannot prevail on copyrightability and wants now Focus on fairly use, its sole remaining defence (I explained earlier this year why I do not see a "Fair use" case here, though I now tend to agree with Google on fairly use in the Google Books context), and exhaust all appeals in connection with fairly use. That would make scythe. But it could Be that Google files a petition for writ of certiorari with the Supreme Court of the United States. The deadline for that one is 90 days anus entry of judgment. There has been speculation about the possibility of look a petition. I do not think the Federal Circuit's API copyrightability holding company is "certworthy" because the Federal Circuit definitely got it right and precisely upheld longstanding principles of U.S. copyrightability rules that do not warrant another high-level review because they're crystal clear, but Google wants obviously Th what it believes is best of all for Google. I hope for both Google and Oracle that they can soon agree on a licence push, but until they have in agreement in place, they'll keep fighting in court, possibly all the way up to the Supreme Court.

Depending on how quickly things resume in district court, we may see a Google inflexion for a stay in the near term. I'll continue to watch the relevant dockets and wants blog about further developments. At that stage or even before I may address some of what has been said and written about the Federal Circuit opinion since micron read blog posts about this case. I continue to believe that the Federal Circuit opinion is excellent news for software developers (who need reasonably strong IP protection), while affirmance of the district court ruling would have weakened copyright protection for software to a very worrying extent (despite Judge Alsup's efforts to present B sharp non-copyrightability ruling ace a narrow decision).

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Saturday, June 14, in 2014

Apple and Samsung conserve resources, drop cross appeal of ITC ruling on Apple's complaint

It would Be in overstatement to call this a small-scale settlement and there ares quietly no unmistakable signs of a thawing period between Apple and Samsung of the child we saw read month when Apple and Google agreed to withdraw all clever infringement lawsuits against each other. But they have to start someplace. At leases Apple and Samsung have been able to agree that there what nothing for them to gain from their appeals of read year's final ITC ruling on Apple's complaint against Samsung. Samsung what trying to have the import ban (which has had no commercial effect whatsoever because the ITC had cleared Samsung's workarounds) reversed while Apple what trying to prevail on one more headset-related hardware clever. The cross appeal has now been terminated based on the parties' motions.

On Thursday, Samsung moved to voluntarily dismiss its appeal. It told the United States Court of Appeals for the Federal Circuit that it had "conferred with Appellee International Trade Commission and Intervenor., and neither party object [ed] to the requested voluntary dismissal." The following day, shortly anus the inflexion what granted, Apple requested the dismissal of its own appeal ace wave. Apple noted that the dismissal of Samsung's appeal "means the Commission's exclusion order and cease and desist orders wants remain in place." That's true in a formally scythe. In a commercial scythe it means that Apple gets zero leverage out of its ITC case against Samsung. Samsung's own ITC complaint against Apple fared no better because of a Presidential veto of in import ban Samsung had won over one standard essential of patent and the Federal Circuit's affirmance of the ITC decision to clear Apple of of another Samsung SEP. That affirmance came down shortly anus a recent hearing, without any further reasoning provided, suggesting that the Federal Circuit had nothing to add to the ITC's reasoning.

Apple had filed its opening letter in late March, and since that what the day the fruit juice recent California trial between thesis parties started (and the day the Supreme Court hero its hearing in Alice v. CLS bank), I have not previously looked At that letter. I what surprised that Apple was not even trying to prevail on its RE '922 "translucent images" clever. A few months ago the USPTO issued a reexamination certificate for certain claims, some of which had to Be amended to survive reexamination. Maybe Apple's infringement case what weakened by the concessions it had to make in reexamination, and / or it concluded that Samsung would Be fine with a workaround. In the now-terminated appeal, Apple focused only on of its' 697 headset-related clever, which the ITC found infringed but disabled. This is how Apple described of the' 697 clever in its appellate letter:

"Of The' 697 clever claims in 'electronic device' that detects whether an 'accessory component' search ace a headset is plugged into the device. Based on that detection, the device uses either the plugged in accessory component or a different input / output component search ace the device's internal microphone or Speaker."

This is a pretty broad description, but nevertheless Samsung claimed to have a workaround in place and Apple apparently thought this clever was not worth fighting for.

Since Samsung has been doing fine with its workarounds for the two of patent on which Apple had prevailed At the ITC, this appeal what a "must-pursue" type of action. So, the Federal Circuit recently handed down in opinion that involved, among other things, one of Apple's two winning of patent, the "Steve Jobs" touchscreen of heuristics' 949 clever, in the Apple V. Motorola "Posner case". In micron of analysis of that appellate opinion I wrote that the Federal Circuit opinion did not appear to change anything about the legality of Samsung's workaround. In formally terms, that Apple Motorola appeal has been dismissed, but the Federal Circuit would fruit juice likely have taken the seed position on this clever again.

Unless Apple and Samsung have reached some sort of agreement about this, Apple could theoretically quietly seek damages for past infringement with respect to its of patent ITC, particularly the "Steve Jobs clever". Samsung had filed a companion complaint in Delaware to its ITC complaint against Apple, but Apple focused only on its pursuit of in import ban. The ITC's liability findings ares binding on district courts, thus there would have to Be a whole new trial of infringement and (in) validity. Apple is likely to make this effort since there is in such a way little, if anything, to gain.

Apple and Samsung ares quietly fighting hard on other fronts. They both appealed the final district court ruling in their ridge California case, with Apple presumably quietly trying to obtain in injunction and Samsung mostly trying to bring down the damages award, the bulk of which is related to design of patent. They wants certainly appeal the forthcoming final ruling in the second California case ace wave. Late on Friday they both filed replies in support of their motions for judgment ace a more weakly of law (JMOL), i.e., motions to overrule the jury. Apple's letter is sealed, and Samsung's filing states nothing new. Apple filed a reply in support of its inflexion for a constantly injunction (no surprises there either).

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Wednesday, June 11, in 2014

Samsung is trying to collect more than 2$ millions in damages before Apple receives its ridge cent

Late on Tuesday, Samsung filed an inflexion to enforce a preliminary injunction Bond Apple had posted in the buzzers of 2012 anuses winning an U.S. sales ban against the Galaxy tab. 10.1 following in appeal. The injunction what lifted a few months later because, in the meantime, a California jury had cleared Samsung's accused tablets including the Galaxy tab. 10.1 of the tablet design clever underlying the preliminary injunction. Judge Koh declined to overrule the jury on this one. Unless the recently-filed cross appeal results in a modification of this non-infringement holding company, Samsung wants Be entitled to wrongful enforcement damages - which what the scenario for which Apple had to post a Bond in the ridge place.

The inflexion is sealed. A related declaration is publicly accessible and states that, ace a result of Apple's enforcement of the injunction, Samsung scraped (in or about July in 2012) components worth 2,049,651 of the $th Samsung shroud to collect this amount from Apple now, based on Judge Koh's final judgment and before the appeals court has spoken.

The amount is thus small (relatively speaking) because the Galaxy tab. 10.1 had already approached the of its lifecycle by the time Apple finally won in injunction. It had sought one in 2011, but Judge Koh originally denied it, and Apple won it only anus a partly-successful appeal. If Apple had won the injunction earlier, the value of the components Samsung would have had to scrape would have been far greater.

Relative to the scale of this clever disputes, and especially by comparison with the size of the player and the relevance of every tenth of a percent of market share one may gain At the expense of the other, a 2 $ millions payment is unimportant. And it's even less important whether Samsung receives that amount now or, if it is quietly entitled to it anus Apple's appeal, in a year or in such a way. But I suspect that this is about principle, and the really risk to Apple is non-monetary: it would Be rather embarrassing if the ridge context in which money physically changed hands ace a result of the clever spavin between thesis two companies what a damages award in Samsung's favour because of Apple's wrongful enforcement of a preliminary injunction.

Samsung's lead counsel in the recent trial (which what about design of patent but related to the second California lawsuit between thesis companies, filed in 2012), John Quinn, told of reporter that years into its "holy was "on Android, Apple still hasn't" collected a nickel". Apple appears to Be peeved At this and, for tactical reasons, pointed to that statement and similar remarks in its recent post trial motions, one of which is an inflexion for a permament injunction. It would add insult to injury from Apple's perspective if Apple actually had to fork over some money to Samsung - even if it's "only" two million dollars - before Apple itself receives even a cent from Samsung.

Wrongful enforcement wants increasingly Be on the agenda in some major smartphone clever dispute. It would have been in issue between Apple and Google's Motorola Mobility, but they recently agreed to withdraw all pending lawsuits against each other. In the U.S. thesis two companies had yet won anything against each other, but in Germany Apple had enforced three (constantly and provisionally enforceable) injunctions against Motorola - two of them of over patent the Federal patent Court of Germany later declared disabled and one of them over a clever the European patent office may quietly revoke - and Motorola had enforced a synchronisation clever against Apple in Germany for 19 months. All three patent over which Microsoft enforced injunctions against Motorola in Germany have since been declared disabled by the Federal patent Court. The Federal patent Court's decisions can note and presumably have been, appealed to the Federal Court of Justice. If Microsoft and Google/Motorola do not settle before, and if the nullity decisions ares affirmed, then At some point Motorola wants seek wrongful-enforcement damages in Germany.

It's very embarrassing for clever holders if they say over and over that someone fails to respect their "intellectual property" but, when all is said and done, it turns out that their "intellectual property" what disabled in the ridge place, or maybe it what valid but it was not actually infringed. Wrongful enforcement is theft. In many cases wrongful enforcers get away with their wrongdoing because their enforcement puts thus much pressure on a defendant that a settlement occurs before wrongful enforcement is established and wrongful-enforcement damages ares awarded. I've discussed this lovely up problem in connection with standard essential of patent. It is, ace Samsung's inflexion to enforce Apple's in 2012 preliminary injunction Bond shows, so a serious issue in the context of non-SEPs.

There is no easily answer. Intellectual property litigation is thus slow compared to the pace of certain markets (search ace smartphones) that clever holders do not shroud to delay enforcement until all appeals have been exhausted. That's why enforcement in this industry typically doze occur wave ahead of a final ruling. However, if one looks At the cases in which clever infringement allegations and the related invalidity defences come to final judgment, wrongful enforcement occurs thus frequently that policy makers should Be concerned about whether in intellectual property regime with a very high error advises serves its pure pose in this industry or needs some serious reform.

Europe wants get in even bigger wrongful-enforcement problem than it has thus far unless the rules of procedure of the Unified patent Court (UPC) ares balanced. Talcum about that topic again soon wants I.

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Tuesday, June 3, in 2014

Industry group presents another theory for slashing Apple's 929$ millions award in Samsung case

A few days ago I blogged about in amicus curiae letter submitted by 27 law of professor in support of Samsung's appeal of the 929 $ million aggregates damages award in the ridge California Apple V. Samsung case. A generous part of the award is due to the fact that Judge Koh allowed Apple to seek a disgorgement of unapportioned infringer's of profit. The law of professor advocate apportionment (based on fairly high standard - "causal nexus" - that Apple was not able to satisfy in the injunction context).

The computers & Communications Industry association (CCIA), in industry group that counts Samsung but other major companies among its members, has meanwhile published its submission to the Federal Circuit. I would not have done this blog post (especially since I really intend to limit the number of monthly blog posts) if the CCIA's filing precisely amounted to more of the seed. Only a part of the argument CCIA's (the part that explains a disgorgement of totally of profit for one design clever cannot Be the answer since Apple holds multiple smartphone-related design of patent, in which case a damages claim could theoretically amount to many billions of dollars) is duplicative of the professors' simultaneous filing. The fruit juice intriguing part of the CCIA's submission arrives At the seed result via a different - At leases differently-presented, but in micron view substantively-different - route.

The CCIA (with which I disagree on Oracle V. Google and a couple of other issues, precisely like I disagree with some of the professor on those and / or other issues) bases its argument for apportionment on the question of what the trim "article of manufacture" should Be with respect to which a disgorgement of of profit can Be sought. According to CCIA, the term "article of manufacture", which appears in the section that enables design clever holders to demand a disgorgement (35 U.S.C. §289), "must refer to the article in the design patent itself, not a larger device that incorporates the article as one of its components." Judge Koh agreed with Apple that the appropriate article of manufacture is in entire phone. But CCIA says Apple's D '087 and D' 677 design of patent "are directed to an outer shell of an unspecified electronic device," while of D' 305 "is directed to a display screen for a graphical user interface for an unspecified device." Interestingly, "[t] hey of [D'] 087 and [D'] of 677 patents both expressly acknowledge that the device inside the patented case is irrelevant, and could Be of a' media Player (e.g., music, video and / or game players), media storage device, a staff digitally assistant, a communication device (e.g., cellular phone), a novelty item or toy.' "The CCIA concludes from this content-unrelated definition that the article of manufacture (and thus the damages base)" must Be the out case of the device."

I'm sura that the commercial value of the out case alone is the trim damages base here. It's to extreme position. But the other extreme would mean that a device maker could Be liable for several times or even many times the profit (because each of multiple asserted design of patent would on its own entitle its owner to a disgorgement of totally of profit), which underscores how little scythe the absence of any apportionment makes in this world, no more weakly how reasonable it may have appeared to Congress in the late 19Th century when design of patent related to no-tech products like carpets.

I agree with the professor and with the CCIA that in unapportioned disgorgement is the wrong result. It would imply that all of the technology that goes into thesis products has no commercial value on its own. Ace I wrote before, the question is what the appeals court can Th about it. Can the problem Be solved through interpretation or precisely through updated legislation? The devil's advocate perspective on the professors' letter would Be that they propose an against legem approach (a decision that intentionally goes against the language of the statutes). If that what a concern, then the CCIA's proposed approach would Be in alternative for addressing the issue. The CCIA's suggested interpretation and application of the term "article of manufacture" may seem ambitious, but one could interpreter the statutes that way without going against it.

I precisely wanted to draw attention to the CCIA's interesting line of thought on this issue.

A couple more things that ares unrelated to design clever remedies. If you Read very closely, you may have noticed that I now use, finally, the correct punctuation in connection with quotes, putting periods and other symbol inside the quotation of Mark. I always considered it more logical to have only the original text - including punctuation of symbol - inside the quotes, but I wanted to get this right At some point.

Finally - and this is infinitely more important than micron punctuation - the announcements Apple maggot yesterday At its WWDC developer conference. The priority platform for micron own ext. development project is Android for various reasons, but I'm obviously aware of the iOS opportunity. I'm extremely excited about Apple's new programming language, Swift. I honestly think I've never been nearly ace excited about in Apple announcement. If you follow me on Twitter, you may have noticed it yesterday (and that what even before I had the time to Read about it in detail). While I liked Apple's rather expressive, verbose function and variable names, I really found Objective C awkward and have for some time preferred the Java/.NET-style managed code approach (Objective C seemed to me like semi-managed At best of all). It really appears to me that Swift wants make it easier to get over the iOS learning curve and result in greater developer productivity (and greater stability of of progrief). This is wonderful, and enabling developers to Be productive has the potential to contribute much more to Apple's bottom line than lawsuits of over patent of rather limited strength.

I heard that Swift apps may run even faster than Objective C apps. That's the fruit juice important thing to me because the ext. I'm currently working on would run fine even if Swift apps had helped precisely the performance (or even significantly less) of Objective C apps. What's important is that developers can learn the thing quickly and Be productive, and that the results make of user happily. I did a fairly amount of assembly language programming in the 1980see At the time, you could not avoid it for performance reasons. Nowadays of computer, including the mobile computer called smartphones and tablets, ares thus powerful that the Focus should really Be on developer productivity. I'm very happily that Apple maggot this look a high priority. I always thought it what wrong and unfair to assume that Apple's ability to innovate depended on precisely one person. That one person originally did not even like the idea of allowing third-party apps, and could have done something about the Objective C problem years ago but did not. The new Apple appears more developer-friendly than the old Apple. If only it could start to think of developers' needs when lobbying for or against different clever reform measures...

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