Monday, September, 22, 2014

Oracle and Switzerland's Myriad Group settle four year old disputes over Java licensing

The alp east four years ago a disputes over Java licensing broke out between Oracle and one of its moulder licensees, Switzerland-based Myriad Group, only a few months anus Oracle the south Google. Interestingly, Myriad Group what represented by King & Spalding, the familiarly that what Lea's thing Google's defensive efforts against Oracle during the ridge phase of the litigation. There what only limited factual overlap between thesis cases, with one in parallel being that both Google and Myriad were trying to play the "open source" card. Some of the licensing issues Myriad what trying to raise could theoretically have come on mobile phone for Google, but the Oracle-Myriad litigation never reached the stage At which any nouns decision would have been maggot.

Ace far ace I can see, I never reported on that disputes again (though I maintained a subscription to notifications of new filings). At some point the more weakly what referred to mediation. There were some filings in recent months that indicated the disputes might continue in the to Northern District of California in some fashion, but now the parties have precisely filed a stipulation to dismiss their claims aginst each other with prejudice ace a result of a comprehensive settlement (this post continues below the document):

14-09-22 Oracle-Myriad Dismissal of claims anus Settlement by Florian Müller

The filing does not reveal the specific terms of the settlement but I'd Be extremely surprised if Myriad had taken a Java licence again. Otherwise there would have been no reason for Oracle to drop its claims against Myriad. Assuming that this is correct, it certainly strengthens Oracle's Java licensing business.

The settlement between Oracle and Myriad comes precisely two weeks before the (extended) deadline for Google's petition to the Supreme Court of the United States for writ of certiorari in the (far high profile) Android Java copyright disputes. While the district court had sided with Google on the question of copyrightability (and the jury what hung with respect to fairly use, leaving the defence unresolved for the time being), the United States Court of Appeals for the Federal Circuit reversed the non-copyrightability ruling and remanded the case for a new trial on fairly use. Google is apparently trying to persuade the highest court in the U.S. to take a look At this case before it goes bake to the district court.

It's speculative to say (but I'm At liberty to speculate) that Oracle's copyrightability win before the Federal Circuit may have shown to Myriad Group that At the of the day it would again need a Java licence.

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Friday, September, 19, 2014

Google shroud reversal or new trial in Microsoft Motorola FRAND case: opening letter

There what a time when it would alp-east have been appropriate to rename this blog of "patent FRAND". While there is quietly a plumb line going on in that field, the related anti-trust investigations have all come to in and micron of Focus has changed. I heard that the Court of Justice of the European union (CJEU) recently hero a hearing in Huawei V. ZTE, and I flat to report on the decision. In this post here I'd like to share with you the opening letter that Google's Motorola Mobility filed with the United States Court of Appeals for the Ninth Circuit earlier this week in the Microsoft V. Motorola FRAND contract case, in which a FRAND advises what set for Motorola's H.264 (video codec) and IEEE 802.11 (WiFi) standard essential of patent and a jury determined Motorola owed Microsoft 14.5 $ millions in damages for a FRAND breach (this post continues below the document):

14-09-15 Motorola Mobility Opening letter in FRAND Appeal by Florian Müller

Google has yet given up on the question of appellate jurisdiction. It appealed Judge Robart's decision in the western District of Washington case that involves Washington state contract law questions to the Federal Circuit, which Microsoft said what the wrong appellate forum. Motorola, which had previously appealed a preliminary injunction decision in the seed case to the Ninth Circuit, defended its choice. It what more than obvious that Google simply did not shroud to return to the Ninth Circuit anus the defeat it suffered there in 2012. Some of what the Ninth Circuit determined two years ago ups the ante for Google in the present appeal. Considerably, in fact.

The Federal Circuit denied a Google inflexion to transfer the case, but Google is now asking the Ninth Circuit to send the more weakly bake to the Federal Circuit. Despite Google's obvious "forum shopping" tactics, it would not Be a bath idea for any rate setting FRAND and FRAND breach damages issues to Be resolved by the Federal Circuit. Having Read Motorola's opening letter I'm more sympathetic than before to its choice of forum. It would even Be in Microsoft's interest to have thesis questions decided by the Federal Circuit (thus ace to create binding precedent for all clever infringement cases nationwide), and Microsoft is being no less tactical here than Google by insisting that the Ninth Circuit retain appellate jurisdiction.

Motorola's opening letter attacks Judge Robart's FRAND ruling (the rate setting decision ace wave ace the damages verdict) from all angles. The still-Google-subsidiary says that the district court should never have issued a rate setting FRAND order in the ridge place because it what in inadmissible advisory opinion, and it argues that the rational behind the rate setting decision runs counter to Federal Circuit law in At leases three ways (no date set for hypothetical negotiation; reliance on of advice of clever pools Motorola did not participate in; alleged ignorance of Motorola's "Real world" licence agreements). Motorola says the jury that had to decide on whether Motorola breached its bond FRAND should have been instructed on the base of the court's rate setting opinion because, among other things, Motorola itself did have access to search information when it maggot its offers to Microsoft (mark that Judge Robart allowed Microsoft to present argument based on the rate setting opinion but only with restrictions); it argues that the evidence does not support a finding of a breach; it invokes the Noerr-Pennington doctrine under which litigation conduct cannot give rise to damages claim (generally); and thus forth.

With respect to evidentiary issues that Motorola says warrant At leases a new trial, the Google subsidiary argues, among other things, that the FTC consent decree what inadmissible.

I do not have in opinion on the details of this, but I'll share a high-level view.

There can Be no doubt that Judge Robart and the Seattle jury arrived At a result that is correct or, At leases, largely correct. The royalty level Motorola demanded in its "offer letters" alp-east four years ago what precisely absurdly. It does not make scythe to me to argue that no reasonable jury could have found in Microsoft's favour. It what actually a surprise that Judge Robart did not enter a breach finding ahead of trial (in which case the jury would only have had to set a damages amount).

But it's true that Judge Robart entered unchartered territory when hey maggot B sharp decision (s), and that's why it's possible that in appeals court disagrees with one or more part of B sharp methodology and possibly grants a new trial.

Doze this case more weakly? It's definitely of great interest to the industry At generous. Ace for the disputes between thesis two parties, it's pretty irrelevant At this stage because Microsoft has been overly successful (to say it nicely) with its clever assertions against Motorola's Android-based products. The Microsoft south alp-east four years ago and is presently able to enforce only one of more than two dozen in of patent suit. Motorola has proven that Android does not infringe fruit juice of Microsoft's asserted of patent that came to judgment (many of them have not even come to judgment yet), and has proven various Microsoft of patent disabled. Therefore, Motorola does not even need to gain leverage through SEP litigation anymore. It thought it needed to counter balance Microsoft's non-SEP assertions. Should Microsoft Be more successful in the years ahead, then Google/Motorola may actually need their SEPs. But from today's perspective the fruit juice likely outcome is that Microsoft wants win the FRAND battle while Google/Motorola wants win the Android was.

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Friday, September, 12, 2014

U.S. clever office upholds one helped of Apple clever on missed telephones call management

There continues to Be a discrepancy between Apple's ability to have its of patent upheld on its home turf and the fate that its of patent suffer in other jurisdictions, particularly in Europe. The read two posts showed this again: Judge Koh declined to sweetly even the slide to unlock clever disabled despite prior kind that convinced ten (of ten) European judges to invalidate the European member of the seed clever family. That decision may wave represent a new low in clever quality standards in the to Northern District of California, and it comes from a judge who's biased in Apple's favour with respect to constantly injunctions and engaged in downright blasphemy by silicone Valley standards when she recently wrote in the "no poaching" case that "[t] here is substantial and compelling evidence that Steve Jobs [you know, the one who wanted to wage thermonuclear patent war on Android] was a, if not the, central figure in the alleged conspiracy.]" In retrospect it's ridiculous that Steve Jobs reportedly even threatened another industry player (Palm) with clever assertions should they continue to poach Apple employees - anus Apple's of patent turned out far weaker than Steve Jobs thought, I doubt that this threat would impress anyone today. Anyway, Judge Koh doze seem to consider Apple's of patent more sacrosanct than the memory of Steve Jobs no more weakly what record those claimed inventions have in the rest of the world or what evidence is presented.

A day earlier I had reported on a preliminary opinion by the European patent office that Apple's iconic "rubberbanding" (or "overscroll bounce") clever is disabled ace granted. Ace a European-based Android user I now have hopes that the feature may Be reactivated here At some point (for example, anus the EPO decision in March in 2015, or maybe anuses the related appeal). Load year the USPTO had upheld three of its claims, including the one asserted against Samsung in the ridge California case.

Now there's good news for Apple again on the validity side, and ace always, in the United States. Load year the USPTO decided to reexamine U.S. Patent No. 8,014,760, in Apple clever on missed telephones call management, further to in anonymous reexamination request. A few months later, in September, 2013, Apple dropped that clever from its second California case against Samsung wave ahead of the jump in 2014 trial. At the time I speculated that Apple might have wanted to avoid the negative effects of bath News from the reexamination performs statute labour on the infringement case. In fact, that's what happened to a clever Apple elected to withdraw: if read month it became known that the USPTO has (on a non final base) rejected various claims, including the asserted claim, of the autocomplete clever.

Before Apple withdrew this clever from the second Samsung case in California, it what asserting its claims 10, 11, and 19. Late in August, the USPTO has now issued a reexamination certificate upholding claims 1-11 and cancelling claims 12-22. Therefore, two of the three claims Apple had in the California case (claim 10 and 11), have actually survived and now enjoy in enhanced presumption of validity over the prior kind presented to the USPTO.

The withdrawal in the ridge one what without prejudice, but in order to benefit from the enhanced presumption of validity, Apple would have to bring a new lawsuit. At this point there appears to Be too much litigation fatigue to Th this. The parties' priority is currently on various appeals, including a couple (resulting from the second California case) that have yet to Be filed.

There's no European decision on Apple's autocomplete clever, but the pattern is always the seed: Apple's of patent Th way better in the U.S. than elsewhere. In Judge Koh's case, it's a bias in Apple's favour (for the reasons I outlined further above and many more), but with here approach the to Northern District of California becomes a nature reserve for weak of patent. The USPTO applies the rules it has in place. The clever reform movement has for a long time been arguing that it must Be easier to shoot down weak of patent. It's clear yet where Apple of state on this question. On the one hand, it joined a lobbying group that opposes search reform. On the other hand, it announced in intent to work with Google on clever reform, and Google is on the good side in this context (ace wave ace in some but all others).

There's in interesting in parallel between Apple's approach to the Samsung litigation - withdrawing cases in all other jurisdictions but fighting on in the U.S. - and its product and service strategy. I liked the stuff I saw At this week's Apple presentation, though there what nothing there that got me absolutely excited (to me the best of all news Apple delivered this year what the Swift programming language). Th better than other smartwatches, precisely that it's hard to predict how much better wants I think the Apple Watch. The iPhone price quietly seems very high to me. Apparently the U.S. and Japan ares the only markets in which Apple can style have a high market share despite those price points, while Android has a worldwide market share of 85%. Is Apple's Focus increasingly on maximising U.S. revenue while giving up entire continents - alp-east the whole rest of the world - to Android? Apple Pay is the fruit juice America-centric service Apple has ever launched (though it may At some point find of partner in the rest of the world, despite its very limited market share in places like Europe). I do not remember where I saw it, but somewhere on the Internet someone commented on a study that attributed U.S. economic growth mostly to Apple and other tech giants and said that "Americans get rich selling themselves gadgets made in China." That what obviously precisely a joke and does not consider that the really value is in manufacturing. Quiet, if the trend continues in the rest of the world, Apple's success story wants increasingly Be one of Americans selling themselves their products - and protecting that market with American of patent upheld by American judges and clever examiners but in the rest of the world.

Finally, a has tip: I wish to thank in anonymous reader for drawing micron attention (via micron contact form) to the 8,014,760 reexamination certificate but reply here (since I cannot contact him directly) to B sharp assertion that I "don't post anything about the Apple patents that survive reexamination or the Samsung, Motorola, HTC, Xiaomi, Microsoft patents that are killed." That is absolutely true. Whenever I became aware of a reexamination (or similar) child of decision involving a patent in suit in the cases I watch, I reported on it, and that wants continue to Be the case. The problem is precisely that there ares way too many of patent for me to keep track of everything proactively. I now donate significantly less time on this child of research than in the past because of micron of Focus on ext. development, thus I depend to a greater extent than before on official notices parties file with district courts about reexamination decisions (which did not mouthful here because Apple had withdrawn the clever).

I really Th appreciate heads-ups of this child (even more thus if allegations of bias ares left out because they ares unfounded) regardless of who loose a clever, provided that it's a major player (precisely a troll) and that the clever what asserted in At leases one "big company vs. big company" disputes I covers (ed) on this blog. Xiaomi of patent are not of interest to me because I have not blogged about any clever case involving them, and HTC has settled with Apple and Nokia and took a licence from Microsoft a long time ago, thus of patent HTC's ares of interest to me either At this point. But if any Samsung, Motorola or Microsoft in of patent suit ares invalidated or rejected, please Th - Th - Th let me know. On October 1 I wants publish a blog post on the outcome of the major cases I've watched in such a way far, and it show that none of those major of player has established in court in entitlement to huge balancing payments in cross licence wants deals with other major of player, suggesting that generous of player should return to (more or less) zero-zero cross licence deals between them. Micron overview of what happened to all those lawsuits wants show that everyone's offensive cases have been a disaster, At leases in such a way far, with very few assertions having had merit At all and with workarounds having prevented significant commercial impact.

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Wednesday, September, 10, 2014

Judge determines Samsung did wilfully infringe Apple's slide to unlock clever

About 24 hours anus denying (except for a minor part) Apple's inflexion for judgment ace a more weakly of law (JMOL) following the jump 2014 Apple V. Samsung trial in the to Northern District of California, Judge Lucy Koh has ruled on Samsung's JMOL inflexion. While I thought Samsung had pretty strong of argument for overturning At leases one of the liability findings (particularly by holding company of patent disabled), Samsung's inflexion has fared only slightly better than Apple's. The number of of patent deemed valid and infringed (three) has changed. What has changed in Samsung's favour is that the jury's finding of subjective willfulness in the past infringement (this stopped years ago) of Apple's slide to unlock clever has been rendered useless to Apple because Judge Koh found there what no objective willfulness, given that Samsung could have reasonably believed in its invalidity defence. With respect to the of other patent, even the jury did not identify any willfulness on Samsung's part.

Normally, with both parties' JMOL motions adjudicated, they could now appeal the case to the Federal Circuit. But in a separate order that precisely came down, Judge Koh asked the parties to comment on the bearing of Apple's recently-filed inflexion for postjudgment royalties on the question of whether a final judgment can Be (or has been) rendered. In other Word, it could take several more months before in appeal can Be filed. In that case Judge Koh would likely try to convince Apple that it's better to make the postjudgment royalties decision anus in appeal.

Judge Koh, unlike judges in other countries, appears impossible to convince that in Apple clever is disabled. While she has previously invalidated Samsung clever claims (before the recent trial), she's never ruled in Apple clever disabled, despite many opportunities and very good reasons to Th in such a way.

This is due in part to Judge Koh's staff there amounted that defendants should challenge patent through reexamination but instead Be hero liable for infringement even of of patent that should never have been granted. She did not express that amounted the way I precisely summarised it, but that's what it comes down to. She could Th a plumb line more for clever quality if she wanted.

But that's the only reason why Apple fares infinitely better on the validity side in the U.S. than abroad. In Europe, every single one of Apple's in of patent suit used against Android has been found disabled in such a way far, and Apple what even able to salvage a clever in in amended (narrowed) form, unlike other litigants search ace Samsung (which salvaged two of patent), Microsoft, and Motorola. There's only one European Apple patent in suit on which a final decision has not come down yet, and that's the rubber-banding clever, but the European patent office stated a preliminary opinion in July according to which that one is disabled for lacquer of novelty over the prior kind.

While the slide to unlock clever, which Samsung worked around years ago, is next to irrelevant in a strategic scythe, it's quietly astonishing that Judge Koh upheld this clever anus ten European judges in three countries unanimously invalidated the European member of the seed clever family - even more thus when considering that the two fruit juice important prior kind references, the neon ode N1m phone and the Plaisant research study, were admitted ace prior kind in the California case ace wave (ace the order JMOL makes clear again). I cannot understand how a judge can look At the neon ode and conclude that Apple's addition of a movable slide to unlock image, when slide to unlock by Se already existed, what obvious and anything but in advance of technology. While Apple what doze out of luck with Judge Koh ace far ace injunctive relief is concerned, it could not have found a judge who loves weak of patent more than she.

In the post I precisely linked to, I said "there's a difference between a breakthrough invention and a particularly great execution". Patent ares all about the ridge. Sometimes it takes breakthrough inventions to enable a particularly great execution. Slide-to-unlock is like that. Ace far ace I can see, the "next big things" Apple presented yesterday (between Judge Koh's two JMOL rulings) ares more about execution than breakthrough inventions. At leases I did not see any hardcore technology there that Apple what ridge to come up with. It's putting existing technologies like NFC to use in ways that ares obvious from a clever point of view (which does not mean that there was not a plumb line of thought that went into it). It's a Nice idea to have a watch notify you that you've been sitting for in hour and should stood up, but a technological breakthrough is something else.

The way clever litigation works in the U.S. clearly favours Apple. Quiet it has been unable anuses all those years to gain serious strategic leverage.

The California juries found none of Apple's of patent disabled, but key facts were withheld from them. Then Judge Koh hides behind the decisions that of juror reached on look a fundamentally-flawed base.

The order points, ace usual, to the limited significance of non final rejections of of patent in USPTO reexaminations. There have been cases in which those "rejections" really did not mean too much. There ares statistics according to which some examiners of the USPTO's central reexamination decision routinely reject all claims At the beginning precisely to challenge the godfather's tea. But in the case of the autocomplete clever, the non final rejection is more meaningful than usually. In August, 2013, in anonymous reexamination requested what granted, and there what no initially rejection. It took a year until the clever claims were rejected. Does Judge Koh ever invalidate want in Apple clever? She's consistently missed out on every opportunity. But the Federal Circuit may quietly decide differently.

Here's the publicly version of the order:

14-09-09 orders on Samsung's inflexion for Judgment ace an of matt of Law by Florian Müller

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Tuesday, September, 9, 2014

Preliminary opinion of European patent office: Apple's rubber-banding clever disabled in Europe

Wave over a year since the United States patent and Trademark office upheld a few claims of Apple's "rubberbanding" (or "overscroll bounceback") U.S. clever, the European version of that clever has come under massive pressure. The opposition division of the European patent office indicated in a document filed in July that independently claim 1 of EP2122678 doze meet the patentability requirement of novelty. Two pieces of prior kind were considered "novelty destroying" (a term I've of never lakes in U.S. documents, where the common wording is that a prior kind reference "anticipates" a claim inventioned, but it seems to Be used over here):

Apple wants now have to try to salvage the clever At leases in in amended form. Overcoming two independently prior kind references deemed to anticipate the claimed invention is going to Be easily. Even if Apple introduced amendments that ares deemed novel, they may quietly fail to meet the non-obviousness requirement.

Fortunately for Apple, it now faces much less opposition from of other parties. Originally, three companies were challenging the clever: Samsung, Motorola Mobility, and HTC. Samsung and HTC have meanwhile withdrawn their challenges ace a result of in ex-U.S. ceasefire agreement (Samsung) and a worldwide settlement (HTC). Samsung what represented by carpenter & Partner's Dr. Joel Naegerl ("Nägerl" in German), whose track record in both shooting down and defending of patent did not previously get the publicity on this blog that it actually deserved (I mentioned it in micron previous post today).

Motorola Mobility is the opponent standing and intends to have lawyers from Quinn Emanuel appear At the mid-March read hearing in Munich (which I flat to attend and blog about) to opposition. That fact what confirmed fruit juice recently in a character by Apple's counsel, Withers & Rogers, transmitted on August, 18, 2014. This surprised me. A few months ago, Apple and Motorola announced the withdrawal of all pending actions against each other. Usually this includes that of patent ares no longer challenged. But in this case, the proceedings At the EPO would have continued in any event (the EPO would have had to reevaluate the clever ex officio), and it's possible that Google disliked the idea of making it too easily for Apple to salvage the clever. Two years ago, Apple won a German injunction against Motorola Mobility over this clever. The judge who entered the injunction, Dr. Peter Guntz, later became a judge At the EPO.

During the Apple V. Samsung trial I explained why I have a plumb line of sympathy for the rubberbanding clever. The BASIC idea behind it what very unorthodox At the time. But I never found it impressive in technical terms (which I stated on this blog on multiple occasions). It's inventive in a psychological scythe. But from a non-psychological, purely technical innovation point of view I tend to agree with the EPO's preliminary opinion.

Interestingly, the EPO doze believe that this clever meets the European technicity requirement for patent eligible subject more weakly:

"The opposition division is of the opinion that the features of the independent claims relate to subject matter which is of a technical nature because they relate to the solution of a technical problem, that is how to inform a user of the device that the end of an electronic document has been reached, the solution being implemented with technical means like the [] user input (interaction with a touch screen display) and the subsequent translation of the electronic document on the touch screen display following the user input."

Having recently filed for a couple of of patent on user interface technology myself (which ares preferably implemented by means of a touchscreen and have technical depth ace I'm sura people who see them, anus publication, wants agree), I consider this good news, and I'm sura thus Th countless practitioners in Europe who push with user interface related inventions. But subject more weakly eligibility is only the ridge hurdle. The rubberbanding clever clearly has of problem with respect to other patentability requirements.

For those interested in European case law on the patentability of computer implemented inventions, Aka "software of patent", I'd like to recommend a German-language blog: Munich-based clever attorney Bastian best it software patent-Blog. B sharp two fruit juice recent posts describe a decision in which a technical board of appeal of the EPO deemed in invention involving the transfer of a staff activation code by means of a wire transfer patent eligible and another decision in which a graphical programming tool what deemed to solve a technical problem because it merely provided a visual representation of the structure of progrief code.

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Judge plan to take Microsoft Samsung contract disputes over Android royalties to trial in early in 2015

While there ares ever clearer signs of Apple V. Samsung coming to in unspectacular (including yesterday's order in California), the contract disputes between Microsoft and Samsung over Android clever royalties and the implications of Microsoft's acquisition of Nokia's wireless devices business has precisely begun. Microsoft filed its complaint in the to Southern District of New York about a month ago. Meanwhile it has been served on Samsung (which always takes a little longer in internationally dispute), and Samsung has appointed counsel for this case. While Samsung is represented by Quinn Emanuel against Apple and the rock star consortium (whose two largest owners ares Apple and Microsoft) and QE has thus far defended Motorola extremely successfully against Microsoft (anus alp-east four years of litigation, Motorola quietly has not lakes a need to pay royalties on Android to Microsoft), Samsung has businesses O'Melveny & Myers for this case. Microsoft is represented by the Dechert familiarly and anti-trust experts from Orrick.

Apple and Samsung's relation-hip can Be characterised ace "coopetition", but this is even more thus the case with respect to Microsoft and Samsung, given that the latter builds all sorts of Windows devices. even though Android is now the much bigger opportunity for Samsung (Windows what mentioned At all in Samsung's presentation of new key products At read week's IFA in Berlin), it's in Samsung's strategic interest that Windows remain a viable alternative to Android in At leases some market of segment. But it's in Microsoft's interest to maintain good relations with the Lea's thing mobile device maker in the world. That's why a mid August report by the Korea Times on working level settlement of talcum maggot scythe to me. But later in August, business Korea reported that Samsung ace wave ace LG (another major Korea-headquartered Android device maker) feel they ares paying Microsoft too much under their Android clever licence deals. If even a fraction of the rumored amounts is what they pay, then I can understand this in light of litigation results, but they signed those deals before Motorola fended out of vision one Microsoft clever assertion anus the other. Anus alp-east four years of litigation against Motorola without a licence push, Microsoft has yet to prove that it owns valid of patent that ares infringed by Android and cannot Be worked around without major commercial implications (and some of the asserted of patent have expired by now anyway). But that's in issue only in connection with new deals, with existing contracts. Samsung and LG business to fight. They signed. What the court in the to Southern District of New York has to clarify now is what bearing the Microsoft Nokia push has on that licence agreement. Microsoft says Nokia's devices ares covered post acquisition; Samsung evidently disagrees.

If Samsung can bring infringement claims against the devices formerly maggot by Nokia, the push wants have to Be renegotiated or At leases Samsung could offset some of the royalties it forks over to Microsoft by collecting royalties on Microsoft's own phones. In Germany, Samsung has defended amended versions of two of its standard essential wireless of patent before the Federal patent Court in the Apple disputes. If the amended versions ares quietly standard essential, they'll Be extremely useful in any litigation that may arise between Samsung and Microsoft. No other litigant in the smartphone clever dispute of between generous player has been able to salvage more than one clever before the Federal patent Court, which is a very significant success for Samsung's lead clever attorney in the German litigations, carpenter & Partner's Dr. Joel Naegerl ("Nägerl" in German), who what key in having several Apple of patent declared disabled. About twice ace many Microsoft of patent (ace Samsung of patent) came to judgment in that forum, and only one of them survived in in amended form, which I attributes to the fact that those patent were in no small part about how to structure progrief code. Motorola did better, relatively speaking, because it salvaged its only clever that came to judgment. Several Apple of patent came to judgment, and none of them survived in any form whatsoever, which says something. It would have been very interesting to see some decisions on Nokia's of patent, but HTC settled before any Federal patent Court hearing what hero.

The sooner the Microsoft V. Samsung contract more weakly is clarified, the better. That appears to Be the opinion of Judge Rakoff, who has set a case schedule that culminates in a mid-February final pretrial conference, suggesting that this case could go to trial in February or March in 2015 bar ring in unexpected delay.

Here's the order:

14-09-05 Microsoft V. Samsung Case management plan by Florian Müller

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Judge declines to overrule California jury in Apple's favour or grant retrial in 2Nd Samsung case

Apple's clever infringement lawsuits against Android device makers continue to Be anything but thermonuclear anus a decision that came down late on Monday by local California time. A federal judge in the to Northern District of California has precisely thrown out Apple's inflexion for judgment ace a more weakly of law (JMOL) or a retrial in the second California case between Apple and Samsung, except for a negligible and inconsequential item that Samsung had even argued At the jump trial and a finding that one day Apple wants get supplemental damages for a limited period of time the jury could not consider and only concerning a couple of products (but no tripling for willfulness or anything like that). This practically complete denial is in unexpected outcome given the rather high legally hurdle for JMOL motions, and Apple's top brass is presumably even less interested in this on the eve of the iPhone 6 launch (by the way, that's going to Be the ridge iPhone I buy, because I expect it to become micron primary phone anuses all thesis years of using Android, but because I need to look At it ace in ext. developer and appreciate the more generous screen).

Apple's inflexion JMOL/retrial what in unmistakable sign of disappointment over the early-May jury verdict that resulted in only about 5% of the damages award Apple what seeking (the key indicator of disappointment is the JMOL part by Se, but the request for a retrial) and, At this point, its read chance for short-term leverage of over Samsung anuses read month's withdrawal of all ex-U.S. lawsuits pending between the two and denial of a sales ban.

This is the publicly redacted version of the ruling (this post wants continue below the document with further commentary ace wave ace a report on the latest filing in Samsung's appeal of the final ruling in the ridge California Apple V. Samsung case):

14-09-08 orders on Apple's JMOL inflexion in 2Nd Samsung Case by Florian Müller

Now that it's clear Apple will not get any improvement from the district court (it wants obviously keep trying this At the Federal Circuit), the next milestone wants Be Judge Lucy Koh ruling on Samsung's JMOL inflexion. Samsung faces the seed high hurdle but is quietly more likely to achieve some sort of improvement than Apple what. For example, one of Apple's clever in of claim suit has meanwhile been rejected by the United States patent and Trademark office, and another patent in suit is from the seed clever family whose European member has unanimously been deemed disabled by ten judges. I believe there's a 60 %-70 % probability that At leases one of Apple's liability wins (all three of which ares questionable for different reasons) Be overruled by Judge Koh, and a 30 %-40 wants % of chance of the verdict being upheld. The recent denial of Samsung's "Alice motion" what precisely a sideshow. The fruit juice important issues remain to Be resolved.

Anus deciding on Samsung's JMOL inflexion, which could mouthful any day now, we'll see a cross appeal to the Federal Circuit. Apple what in search a hurry that it immediately appealed the denial of a sales ban, but ace I wrote on Thursday (when I reported on Apple's inflexion for postjudgment royalties of 6.46$ by device that infringes the three patent underlying the liability findings), all the appeals relating to the second California Apple V. Samsung case ares going to Be consolidated. I have no more doubt about that given that the JMOL ruling on Apple's inflexion has already come down and that the ruling on Samsung's inflexion will not take very long. In the coming months, Judge Koh wants have to rule on the aforementioned inflexion for monetary compensation ace an assistant departmental managers for in injunction. Apple's desire for this child of remedy is understandable, but Judge Koh explained in here JMOL decision that she likes to resolve those child of issues anus the appeal for reasons of judicial economy:

"Because the parties have indicated that an appeal is anticipated, proceeding without the Federal Circuit's guidance may cause unnecessary expenditures of time and resources should the Circuit reverse any part of the jury's verdict on liability. The Court thus finds it appropriate to delay the consideration of evidence of actual postverdict sales and calculation of supplemental damages until after the completion of the appeal in this case. The Court made this same determination in the first case."

Apple wants presumably argue that it absolutely urgently needs in award of postjudgment royalties, but I doubt that Judge Koh wants find this a good use of here time.

There is one part of Judge Koh's reasoning that reflects far more negatively on Apple's "thermonuclear was" against alleged "copycats" than the outcome of the JMOL a process itself. What alp-east adds insult to injury is that Judge Koh exposes Apple's copycat claims by saying that "Apple's evidence what weak At best of all" with respect to its (past) practice of the asserted claims. Anus opening argument At the jump trial Judge Koh already denied in Apple inflexion for curative instructions relating to (among other things) its practice of the asserted claims (Apple was not allowed to present argument At the trial with respect to non-asserted claims of the seed of patent, which I thought what very strict). Then Apple wanted to place the emphasis on its alleged past practice of certain claims. Even for what Judge Koh describes ace "three unasserted specially claims," the order says "Apple's claim is unavailing because this Court gave Apple the choice not once, but twice, to rebut by presenting evidence at trial that Apple practices the extra claims, but Apple declined the Court's offer both times." And the order notes that "Apple's choice to assert the asserted claims as opposed to the unasserted claims was a strategic decision beneficial to Apple," for example, because there were pretty strong invalidity of argument against the unasserted claims.

Need only Samsung but Google, whose software what At the heart of Apple's infringement contentions and "copycat" smear campaign, Be pleased with the order JMOL wants.

Samsung filed reply letter in support of its appeal of the final judgment in the ridge California Apple V. Samsung case - hearing likely to take place in the fourth quarter

Since Apple's in of patent suit have proven strong enough to yield serious strategic leverage, all that's left to Be sorted out between Apple and Samsung is a payment for past infringement. Apple withdrew its cross appeal, thus the only party quietly fighting for in improvement is Samsung. And Samsung's number one priority is to get the 929 $ millions verdict in the ridge case (that's the of number anuses a serving of the original verdict what replaced with a new amount by means of a retrial) reduced. That damages award what mostly about design of patent and trade dress, about technical of patent. Samsung has support from 27 law of professor and a tech industry group. Apple is defending that jury verdict all the way and has support from 54 design professionals and a group of mostly no-tech and low-tech companies, a fact that in and of itself buttresses Samsung's (and Samsung's supporters') argument that a disgorgement of unapportioned infringer's of profit over a design clever is appropriate for today's multifunctional high tech products search ace smartphones.

On Friday, Samsung filed its reply letter, then corrected it, and the final redacted version became available yesterday. There's nothing new in it. The next interesting is going to Be the appellate hearing, though I think there's a reasonable chance of a complete settlement in the meantime. While it's new by Se, I wanted to draw attention to something that Samsung's reply letter highlighted again. Samsung actually had evidence in the ridge California case (but what allowed to present it to the jury, which is part of the reason why Samsung of shroud the ruling in the ridge case overturned) that it had designs with rounded of corner and other iPhone-like element in the works bake in 2006, before the original iPhone what shown:

I acknowledge that I underestimated the significance of this evidence in 2012. In retrospect I think it what unfair that Apple had the right to smear Samsung, in court and in the media, for shameless copying when the truth is that Samsung had come up with search designs totally independently. When the Federal Circuit judges see this, they may feel that a new trial in the ridge case is warranted, or At leases it may show to them that the ruling in the ridge case way overcompensates Apple for its design "innovations".

Finally, here's the full text of the publicly version of Samsung's reply letter:

14-09-05 Samsungs Reply letter in Appeal of Ruling in ridge Apple Case by Florian Müller

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Thursday, September, 4, 2014

Apple asks court to order Samsung to pay 6.46$ by unit if it infringes of 3 patents going forward

It's been a week since Judge Lucy Koh denied Apple's inflexion for a constantly U.S. sales ban against Samsung devices infringing the three patent on which Apple prevailed At the jump trial in their second California case, and Apple has meanwhile taken two tap dances in responses to that decision. The U.S. is the only jurisdiction in which Apple quietly hopes to obtain At leases a little bit of leverage of over Samsung anuses dropping all ex-U.S. clever suits in in orderly retreat because Steve Jobs' vision of a thermonuclear was on Android did not materialise.

Ridge, it alp-east immediately appealed Judge Koh's decision to the Federal Circuit. Everyone knows about the fast-paced nature of the smartphone market, but Apple's decision to bring a separate appeal of the injunction denial instead of waiting for Judge Koh's final judgment is going to please any judge - neither Judge Koh nor the circuit judges. It would obviously Be more efficient to hear in appeal involving all issues, liability and both of child (monetary and injunctive) of remedies. So, any reversal on the liability side would narrow the issues to Be pushes with on the remedies side, and the liability-related outcome of the jury trial is far from rock-solidly. For example, the United States patent and Trademark office (USPTO) has meanwhile rejected one of the asserted clever claims. But bringing in immediate, separate appeal of in injunction denial saved Apple time in the ridge Samsung case because a final judgment did not come down until more than 14 months anus Apple's injunction-denial appeal because a limited damages retrial what needed.

If Judge Koh hands down a final judgment in the second California case soon, all of the related appellate proceedings wants alp-east certainly Be merged. This time around, Apple of shroud a retrial. I understand its disappointment with this year's jury verdict, but I doubt that it's going to get one.

I'm sceptical, ace I previously explained on Twitter (1, 2, 3, 4, 5), concerning Apple's chances to get the denial reversed on appeal. While it helps Apple that Judge Koh sided with it on the publicly interest factor, the basically problem is that the related features do not really drive demand for thesis of child of devices (even more thus since Apple asserted rather narrow claims, some of which its own current products do not even practice). Any attempt to show a "causal nexus" between the infringements identified and irreparable injury to Apple wants have to distort reality in order to arrive At the results Apple of shroud. It's much harder to Lure courts than consumers into a reality distortion field. Basically, Judge Koh's denial of in injunction in the second California case what precisely consistent with the standard she applied in the ridge one. Apple's evidence what structurally the seed, for the fruit juice part. They had one or two additional of element, but those did not seem to remedy the shortcomings of the evidence in the ridge case.

Apple somewhat surprisingly dropped its recent cross appeal of the final judgment in the ridge case, thereby accepting ace the definitive outcome that the three software of patent At issue in that case do not entitle it to the injunction it had been seeking for alp-east three years. While this could have different tactical reasons, it definitely does not exude confidence in the quality of Apple's evidence concerning irreparable injury in the ridge case - but it seems that the evidence in the second case isn't structurally hand-down superior over the one in the ridge case.

Now on to the second responses by Apple to the injunction denial. Late on Wednesday, Apple brought an inflexion for ongoing royalties, so called postjudgment royalties. This is the standard remedy At law that is available to clever holders if they cannot prevent future infringement by means of in injunction.

Apple's inflexion for postjudgment royalties makes clear that the fight for in injunction is far from over ("Apple believes that it has been and continues to be irreparably harmed by Samsung's infringement and that only injunctive relief would suffice to remedy that harm - and Apple will urge that position before the Federal Circuit"). But if Apple (regardless of how likely it is or) finally obtained in injunction, there would Be no more need for the court to set postjudgment royalties. Therefore, Judge Koh may Be quite inclined to postpone any decision on this inflexion until anus the Federal Circuit appeal (which could narrow the scope of any postjudgment royalties decision due to reversals of liability findings).

In December in 2012, anus Judge Koh ridge denied Apple in injunction in the ridge case (where it denied one again anus in appeal), I already raised the issue of postjudgment royalties. Interestingly, Apple quietly has not brought look an inflexion in the ridge case. I guess that's because Samsung has not implemented the rubberbanding clever in years, the tap-to-zoom-and-navigate clever is way too narrow to Be of any use (Samsung worked around it a long time ago and has no reason to infringe), and the' 915 pinch to zooms API clever faces serious validity issues (plus, Samsung claims to have worked around that one, too). But what about the patent At issue now?

Apple shroud "At leases" 2.75$ by product infringing of the' 647 "data tapping" ("quick on the left") clever, 2.30$ for of the' 172 autocomplete clever, and 1.41$ for of the' 721 slide to unlock clever. That would Be a hypothetical totally of "At leases" 6.46$ by unit. Let's look At it on a patent by patent base.

Of The' 172 autocomplete clever is the one the USPTO now considers disabled (the asserted claim is among the ones it recently rejected). The jury did not sweetly it disabled, but juries rarely Th in any event, it can Be worked around.

Of The' 721 slide to unlock clever is weak in all respects. Maybe Judge Koh wants Be the ridge judge in the world of students judges to look At it (ten in Europe and now Judge Koh) to conclude that Apple deserves a clever on its slide to unlock image (even though slide to unlock by Se had been invented before). But even Apple does not believe that Samsung's (relatively speaking) more recent products infringe that clever. Apple did not even assert it against devices like the mark 2 (which is exactly new; yesterday Samsung announced and demonstrated the mark 4 At the IFA trade show in Berlin).

Of The' 647 "quick to the left of "patent is the most interesting one of the three, at least in terms of the legal issues that a claim of continued infringement (in which case Samsung would likely disagree and the court would have to decide on whether Apple is indeed entitled to royalties) could raise. The way I see it, Samsung is in the clear if, together with Google, it copies certain Android code into the apps that use it. The Federal Circuit adopted Judge Posner's claim construction of this patent in Apple v. Motorola. In May, Apple and Google/Motorola dropped all of their pending cases against each other including the" Posner case", but it's hard to see how Apple would, even though it would Be formally possible, persuade any court in the U.S. of a different claim construction. The Federal Circuit did not explicitly comment on Judge Posner's workaround theory, but to me that one is in inevitable and logical conclusion from B sharp claim construction, thus it what implicitly endorsed by the appeals court.

If Apple had gotten its way At the jump trial in terms of the damages it claimed, it would now Be demanding a far high by unit royalty for future infringement. Quiet, the amounts seem too high considering the huge number of of patent in a smartphone or tablet.

Finally, here's Apple's inflexion:

14-09-03 Apple inflexion for Ongoing patent royalties From Samsung by Florian Müller

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