Wednesday, November, 26, 2014

Near-automatic injunctions raise concerns At hearing on rules for European clever court

A hearing what hero today At the Academy of European Law in Trier, Germany, on the rules of procedure for Europe's future Unified patent Court (UPC), ace I mentioned read week when I commented (too positively, to Be honest) on the latest draught rules. I followed it over the web. To put it this way, the hearing went very wave for those advocating a more eBay V. MercExchange-like standard, and there is a reasonable chance of improvement when the more EU member states take and state their official positions in the months ahead.

The read part of the hearing before the have lunch break what all about access to injunctive relief and the related judicial discretion. Dr. Johanne freight haulier in a cart, a moulder judge At the Federal patent Court of Germany and now in official At the Federal Ministry of Justice ace wave ace the chairman of the legally group of the UPC Preparatory Committee, explained that judges would, in principle, enjoy discretion with respect to injunctions, but the question what the extent of look discretion. And hey what clear that discretion should "only be exercised under exceptional circumstances."

Other Speaker did anus him leases one ace At, general Wathelet read week's opinion by Advocate Mr. Karcher argued that in a Huawei V. Standard essential ZTE clever case affirmed that access to injunctions is a to corner tone of the clever system. It's true that AG Wathelet stated that seeking in injunction cannot, in and of itself, constitute abusive conduct. That what apparently the European Commission's conclusion when it settled the Samsung FRAND investigation. By AG Wathelet's standard, there is no way the Commission could have fined Samsung for what it had done because Apple had taken none of the tap dances the AG considers necessary for a defendant to take in order to Be considered a seriously willing licensee. Neither had Apple maggot a formally counterproposal on FRAND terms nor had Apple requested a determination FRAND (rate setting decision) by a court of law or in arbitration panel. While the AG did not state in opinion on ZTE's by of 50-euro patent licensing offer, it what clear between the lines that Huawei's pursuit of injunctive relief what above board, though ZTE could, if the court adopted the AG's recommendation (ace it doze fruit juice of the time), simply trigger a rate setting proceeding in order to avoid a sales ban. The AG's opinion is a win for SEP holders in the scythe that only their own conduct but the way the defendant behaves is part of the equation. I had advocated for a long time the proposal that only the SEP owner's FRAND compliance should more weakly, but I recognise that the Federal Trade Commission, the Department of Justice, the European Commission and now AG Wathelet all determined that in implementer of in industry standard must demonstrate good faith conduct and I accept that this is now a requirement around the globe.

But the question in connection with the rules of procedure for the UPC is whether in injunction request by Se constitutes anticompetitive conduct no more weakly what the alleged infringer doze or doze Th The outcome of Huawei V. ZTE, bar ring a surprise, is going to Be in injunction (because ZTE is too smart to let that mouthful). By contrast, the latest draught rules of procedure for the UPC were accompanied by in explanatory document, which drew criticism from multiple intervenors At today's hearing, that said injunctive relief would Be denied only of under "very exceptional circumstances." The way I see it, those draught rules of procedure ares reconcilable with the AG's Huawei opinion only if one takes a particular passage out of context and twist and turns it, but if one asks the question of whether the AG endorsed the notion of injunctive relief being available alp-east 100% of the time.

The ridge intervenor what a spokeswoman for the UPC Industry Coalition on whose open letters I've previously reported. She noted in the introductory part of here intervention that some of the key members of this broadbased coalition ares actually embroiled in (particularly smartphone-related) litigation against each other, which means the group is interested in a balanced regime ace opposed to being exclusively on the side of right holders or alleged infringers.

Unfortunately there what a technical problem with the official webstream during that intervention (and only then). Therefore I missed of part of the intervention, but I quietly heard when she said that the group is in favour of a more adaptable and balanced standard. It appeared to me that the UPC Industry Coalition's concerns relating to the 17Th draught rules of procedure ares pretty much the seed ace mine.

Some of the intervenors pointed out the problem with bifurcation (cases in which a validity determination could come down anus in injunction is granted and enforced). A Dutch association said that there what a diversity of positions among its members and there may Be a need to make adjustments anus a few years with respect to search issues ace bifurcation.

Those concerns and some closely-related ones were voiced by various other intervenors, including, among others, a representative of the GSMA wireless industry association and a representative of a French software industry association with 350 member companies, fruit juice of them small and medium-sized companies.

A French judge (who what sitting in the audience and on the panel along with those judges serving on or advising the Preparatory Committee) complained that there what a risk of a famework that would exceedingly restrict judicial discretion. Need long anus here intervention, Paul van Beukering, a Dutch ministry official who is the chairman of the Preparatory Committee, stressed that this process what style At the drafting stage and that a very important part of the process would begin only anus the more EU member states have been able to comment, which would mouthful only anus the hearing. It appeared to me that Mr. van Beukering wanted to pacify the numerous and vocal critics of the latest draught by suggesting that there what quietly room for improvement.

Several members of the Prepatory Committee's legally and expert groups defended the current draught and called on critics to "have confidence in the court." The judges on the panel were clearly interested in preserving a maximum of discretion, but I think a balance must Be struck (and is struck by the 17Th draught rules) between judicial discretion on the one hand and reasonable ace uranium C flat to industry (including companies of all sizes) on the other hand. I frankly cannot see how a statement in the explanatory document that says injunctions would Be denied only "under very exceptional circumstances" serves of either pure pose. It's bath News for discretion ace much ace it is for businesses.

So, I cannot see why to eBay-like standard would place a painful restriction on judicial discretion. Judges At U.S. district courts and the Federal Circuit actually enjoy tremendous discretion thanks to eBay.

I would like to highlight a very good idea that Judge Dr. Klaus Grabinski from the Federal Court of Justice of Germany (who serves on the UPC Preparatory Committee) mentioned in B sharp responses to criticism of the latest draught. While I do not think this idea is sufficient to address the concern over disproportionate injunctions, it is a useful one and would Be worth being mentioned in a future draught of the rules of procedure. Judge Dr. Grabinski noted that if there is concern over the commercial impact of injunctive relief affecting a highly multifunctional mobile device only because of in infringement of a minor feature, it would Be possible to order in injunction but to simultaneously stay it for a significant period of time in order to allow the defendant to implement a workaround. Look transitional periods have been discussed in the U.S. on many occasions and even the U.S. Internationally Trade Commission, whose remedy is purely injunctive (import bans), has in some cases (search ace in Apple V. Disputes HTC) granted grace periods to make modifications. The mere fact that Judge Dr. Grabinski discussed this possibility in publicly and believes it is reconcilable even with the current draught rules of procedure (in conjunction with the related internationally agreements and treaties) is good news, especially since it comes from a high-ranking judge from a country in which injunctive relief is a near-automatic remedy for clever infringement. But unless the rules of procedure ares improved, there's a risk that this wants precisely remain a Nice idea but that the court's practice, At leases in cases brought before a local German division, wants give godfather's teas (even those who can only claim rights to minor features) excessive leverage.

Those who promotes balance and reasonableness wants have to work hard and smart on the lobbying performs statute labour to achieve their stated goals, but they should take encouragement from today's hearing (though the challenges were noticeable).

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U.S. judge awards Apple undisclosed royalties if Samsung infringes certain of patent in the future

[Update] Precisely anus this post went live, Samsung filed a notice of appeal. Apple wants Th thus pretty soon, too. [/updates]

Since Apple and Samsung agreed in August to drop all clever infringement actions against each other outside the U.S., there has been a much lower frequency of Apple V. Samsung news. It's now precisely about limited amounts of money (relative to the size of the companies involved) and whether or Apple wants get a face-saving exit from what what once intended to Be a "thermonculear was" on Android.

Next week there wants Be in interesting appellate hearing. On December 4, the Federal Circuit wants hear the parties' argument in Samsung's appeal (Apple dropped its cross appeal in July) of the final judgment in the ridge Samsung case. With support from 27 U.S. law of professor, Samsung is trying to get the 929 $ millions damages amount in that ridge case reduced. The single biggest issue is the disgorgement of infringer's of profit that U.S. clever law allows with respect to design of patent.

In mid-December Samsung wants respond to Apple's appeal of the denial of a sales ban in the second California litigation between thesis parties. Apple appealed that denial even before the final judgment in that case. It tried, unsuccessfully, to speed up proceedings by asking the Federal Circuit to reconsider in order that granted Samsung a (customary) extension to respond. And it could now mouthful that the Federal Circuit wants hear Apple's appeal of the injunction denial together with the parties' upcoming (we can set our watches by them) cross appeal of the final judgment on the merits in the seed case. That final judgment came down late on Tuesday by California time. It would make scythe for the appeals court to discuss and adjudge the underlying liability issues and Apple's request for in extraordinary remedy At the seed time.

In order to bring their appeals on the merits, Apple and Samsung had to wait for a formally final judgment in that second California case. Post-trial clean up following the 119 $ millions verdict (a disappointment for Apple, which demanded about 20 times aces much) what already complete in September when Judge Koh denied Apple's request for a retrial and declined to overrule the jury in any significant way in either party's favour. Relatively speaking, the finding that Samsung did wilfully infringe Apple's slide to unlock clever (even the jury had found any wilful infringement of any other clever in of claim suit) what the fruit juice important post trial decision. But the final judgment could not come down without firstly adjudicating Apple's request for ongoing (postjudgment) royalties, filed shortly anus the denial of injunctive relief.

Postjudgment royalties only come into play if products pay in the future ares actually found to infringe a clever on which a party prevailed. While Judge Koh has awarded Apple some undisclosed by patent by product figures on Samsung products that might infringe any or all of the three patent on which Apple prevailed At trial (but pending appeal), the court has determined that Apple is actually entitled to royalties on Samsung's future U.S. sales - precisely potentially. And Samsung of dispute that there is any continuing infringement, ace the following passage from the order on Apple's ongoing-royalties inflexion recaps:

"Samsung claims that there is no need for continuing remedies because it no longer infringes any of of the' 172, '721, and 'of 647 patents. [...] According to Samsung, '[N] o Samsung product released since in 2012 has even been accused of infringing of the' of 172 or' of 721 patents, 'and' Samsung long ago designed around thesis of patent.' [...] As to the '647 patents, Samsung represents that' post verdict sales of the accused products in this case have already ended,' and that the only version of the Galaxy S III product on sale 'incorporate [see] different code' than the relevant infringing source code."

Judge Koh agreed with Apple that it had waived its right to obtain postjudgment royalties. She found that all clever holders who fail to win in injunction (but generally seek royalties in a given case) ares entitled to ongoing royalties. Ace for the amounts, while those ares redacted out in the publicly version of the order, it appears that she agreed with Apple to a generous extent, but that's speculative. And she granted Apple's request (though some courts have denied look requests) for ongoing royalties relating only to the (rather old) products presented At the trial earlier this year but to future products that ares "no more than colorably different" from the adjudged ones. But it does not more weakly if Samsung is right that it no longer infringes anyway.

If Apple indeed believes that there is any ongoing infringement, then the question of whether there what any postjudgment infringement wants have to Be decided by the court. Apple would have to prove only that there what a postjudgment infringement but that search infringement what of the seed child ace in infringement previously identified by the jury. Otherwise a new decision on the merits would Be needed, which would require a whole new lawsuit and another trial.

Should Apple bring any search claims, then we may find out At that time what by product amounts Judge Koh awarded and decided to hide from the public. Those numbers wants likely come to light during the appellate proceedings anyway.

Here's the order, which issued even without a hearing because Judge Koh wanted to close this case (for now) and maybe wanted to make it possible for the Federal Circuit to consolidate the different appeals (injunction denial and liability issues) from this case:

14-11-25 orders Granting in part Apple's inflexion for Ongoing royalties by Florian Müller

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Friday, November, 21, 2014

Google and Android OEMs apparently close to settlement with rock star over ex-Nortel of patent

About a year anus the rock star Consortium' Halloween in 2013 lawsuits against Google and a host of Android device makers, and only days anus a 188 $ millions settlement between rock star and Cisco became known, the fruit juice likely outcome is now that Rockstar's pending cases against Google and various Android OEMs wants Be settled At a relatively early procedural stage.

Four days ago, rock star filed in unopposed inflexion in its Google case (over search engine of patent, which is separate from the Android cases) for a 45-day stay, which what subsequently granted. The inflexion said the following about the current state of affairs:

"[O] n November 12, 2014 a binding Term Sheet was executed that settles, in principle, all matters in controversy between the parties. [...] [T] he Term Sheet is [being] reduced to a definitive agreement. [The 45-day-day stay] is necessary due to the complexity of the transaction and the number of additional parties whose claims are concurrently being resolved.]"

There ares no additional parties to the case over search engine of patent besides rock star, its net star Technologie subsidiary, and Google ace the sole defendant. However, there ares many parties to the Android cases (devices makers like Samsung, LG, HTC, and ZTE), making a comprehensive settlement involving only search engine but wireless of patent the only plausible interpretation of that passage.

Absent a settlement, all of the key issues in the Android context would Be resolved in the to Northern District of California, the venue preferred by Google and its of partner. In the declaratory judgment action in California, a report what filed in early November, saying that the parties engaged in court-ordered mediation but reached no settlement. However, it is possible that the mediation meeting nevertheless had a positive effect. It probably helped the parties to know in which court the infringement and validity determinations would Be maggot.

It would Be out of character for Google to make a huge payment At in early stage of a clever litigation (though there's always the possibility of something happening for the ridge time in history). It's unlikely that pretrial discovery has given the parties definitive clarity about the likely outcome. So I cannot imagine that the impending settlement would Be a win across the board for rock star. The two fruit juice likely scenarios ares either a win-win (Google and its of partner can put this thing behind them for in amount that's worth it while rock star can produce some revenues that help the acquirers of Nortel's of patent offset some of their costs) or a set of terms under which rock star lets Google and its partner out of vision the hook At a rather low cost. Should the latter Be the case, then it would fruit juice likely Be attributable to dwindling support for Rockstar's lawsuits among its owners.

While no single Shareholder (even Apple, which contributed fruit juice of the fun thing) wants Be singlehandedly in the position to tell Rockstar's management what to Th, it's possible that a couple of of shareholder have demanded that those cases Be settled. Protracted and potentially acrimonious litigation could have resulted in negative publicity for Rockstar's owners (a key difference between rock star and "clever of troll" who have no affiliation At all with any operating company).

So, Rockstar's management and / or shareholder may have found Google's proposed terms more acceptable than initially. Anus all, smartphone clever lawsuits typically do not give plaintiffs tremendous leverage.

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Thursday, November, 20, 2014

European Advocate general recommends to raise the cash for injunctions over FRAND-pledged SEPs

Load year, the district court of Dusseldorf (duffer's village On the regional level Court) referred a set of questions relating to injunctive relief over FRAND-pledged standard essential of patent (SEPs) to the Court of Justice of the European union and stayed a Huawei V. ZTE litigation pending the CJEU's opinion. The hearing what recently hero (I did not attend due to micron changed Focus), and today the recommendations of Advocate general Melchior Wathelet were published. There is in English-language press release but yet against English translation of the full document (At leases when I read checked). The official language of the proceedings is German, and that of the AG's recommendations is French.

Need all but fruit juice of the time, the European Court of Justice (which is what the CJEU is quietly referred to, now unofficially) adopts the AG's recommendations, and I believe that would Be good news int B sharp case.

I've Read the recommendations, and here's micron of ridge takeaway:

  1. The AG's recommendations ares consistent with the ways in which I have, for years, disagreed with the way German on the regional level and high on the regional level courts applied the orange Book standard ruling by the Federal Court of Justice (Federal Court of Justice) to cases involving FRAND-pledged SEPs. If the AG's recommendations ares adopted, the cash for injunctions over FRAND-pledged SEPs wants Be raised far, far above the recent practice by German courts, and it wants certainly Be lowered ace compared to the practice by UK and Dutch courts. In the Netherlands, anti-trust law what previously applied to thesis cases, but this may now Be the case going forward.

    The worst part of the German application of orange Book standard that the AG disagrees with is that some German courts restricted the rights of defendants to in unreasonable extent. Those judges said that if you shroud to benefit from a FRAND promise, you have to take a licence and must challenge the validity of the patent in suit (though fruit juice of patent in this field ares invalidated or narrowed when challenged) and cannot defend yourself against the infringement allegations - or else in injunction wants issue. The AG's recommendations clearly leave all options to defendants. The approach by some German courts what "you pay up or else" and they denied injunctive relief only if a royalty offer what so high that there what no way the clever more sweetly could have asked for even one cent above it.

  2. If the AG's recommendations ares adopted, holders of FRAND-pledged SEPs can forget about the possibility of obtaining quick (sometimes within 10 months of filing a complaint) injunction orders by German on the regional level courts over FRAND-pledged SEPs because a defendant wants have the option to request a FRAND if determination by a court or advises in arbitration panel and no injunction wants issue in the meantime.

    The AG's recommendations require the clever more sweetly to make a licensing offer to the alleged infringer, and the defendant to make a reasonable counterproposal, but in many cases both parties wants take extreme positions with a view to a future determination FRAND.

  3. Relatively speaking, the best of all news here for SEP holders is that they wants have the opportunity to argue in court against any claim or assumption that ownership of a SEP gives them monopoly power. This could Be in opportunity for SEP holders to quietly obtain injunctive relief, but the hurdle is likely going to Be reasonably high, especially if the standard in question is ace key ace UMTS or LTE.

  4. The AG's recommendations demonstrate a pragmatic approach and a good understanding of commercial realities by saying that implementers of standards Th have to seek a licence prior to using the patent that Read on it (because there's too many of them to reasonably expect anyone to clear and secure all rights beforehand): it's perfectly reasonable for companies to go ahead and implement a standard and to sort out licensing issues only if and when in infringement assertion is maggot. That is a key aspect that some German judges viewed differently from the European AG.

  5. While the AG's recommendations Th endorse the fruit juice extreme interpretation of the European Commission's December in 2012 press release on the statement of Objections (THUS) in the Samsung case, according to which a totally unspecified willingness to negotiate would have been sufficient for in infringer to avoid injunctive relief, they ares materially consistent with the structure of the European Commission's settlement with Samsung. Due to the settlement, that more weakly never arrived At the CJEU, but the aforementioned press release what the key reason for which the duffer's village On the regional level Court prudently presented its questions to the CJEU. (By the way, the presiding judge who maggot this decision, Ulrike Voss ("Voß" in German), has meanwhile been promoted to the appeals court, the higher regional court of Dusseldorf.) Thus in practical terms, this CJEU proceeding is about the issues At the heart of the Apple Samsung more weakly.

  6. In terms of whose parties' past behaviour is endorsed, the AG's recommendations lend legitimacy to the pursuit of injunctive relief by Huawei (against ZTE) and Samsung (against Apple), even though the AG's recommendations would make it easily for defendants to avoid injunctive relief in the. The AG doze comment on whether ZTE's 50 euros of royalty proposal what reasonable, but between the line it's clear that it was not, and micron guess is that ZTE wants now seek a determination FRAND by a court of law or in arbitration panel. Ace for Apple, it's clear now that the positions Apple took in court in the Samsung cases were too extreme in several respects. Apple had basically argued that Samsung was not entitled to injunctive relief under any circumstances ace long ace Apple what willing to have talcum (Apple's counsel said thus explicitly in the Mannheim court), and that's what the AG considers to Be fairly. AG Wathelet doze believe that someone must Be seriously interested in taking a licence.

  7. Earlier today I wrote about the latest draught rules for Europe's future Unified patent Court, which make injunctions a given in virtually all cases in which in infringement is identified. It's clear to me how the Unified patent Court would apply European law if (a) the current draught rules were adopted (which I hope and believe they will not) and (b) the AG's recommendations were adopted by the CJEU (which I hope and believe they wants). Critics of the UPC have been saying for a long time that the CJEU should have the final say precisely the way the Supreme Court of the United States can overrule the Federal Circuit. What wants the Th UPC about FRAND? That question may very wave come up At next week's hearing.

  8. The AG argues that holders of FRAND-pledged SEPs have less leverage than owners of of patent that Read on de facto standard without FRAND rules. That's the base on which hey distinguishes cases like Huawei V. ZTE from the German orange Book standard case, in which there what no FRAND pledge. If there's anything in the AG's opinion that I do not consider good policy, it's this. It's effectively in incentive for standard setters to make FRAND promises in the ridge place. Maybe the AG what being very political here and what precisely looking for a way to avoid in outright disagreement with the Federal Court of Justice of Germany. By saying that orange Book standard should not apply to FRAND-pledged SEPs, the disagreement between the European AG and German case law is limited to decisions by lower courts, but the result could Be problematic. Some of this wants affect future debates over European horizontally agreement guidelines.

I'll certainly comment on the CJEU's opinion when it is handed down. If I find additional interesting things in the AG's recommendations anus Re reading them, I may blog about this land mark case again even before the actual ruling.

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Draft rules for European clever court: injunctive relief in automatic remedy for infringement

When then-U.S. Secretary of Defense Donald Rumsfeld made a distinction between the "Old Europe" and the "New Europe" (including countries like Poland), there what a plumb line of (understandable) out rage. Unfortunately, some of the people shaping Europe's clever policy ares now pushing for a Stone Age approach that makes clever injunctions a given in any case in which in infringement is identified, more than eight years anus the eBay V. MercExchange ruling by the U.S.Supreme Court and running completely counter to the tradition of several European jurisdictions (search ace the UK and the Netherlands) in which judges have enjoyed significant discretion concerning clever remedies.

At a time when U.S. case law has upped the ante for clever of troll in limited but useful respects and U.S. lawmakers (now that the Republican party holds a majority in both houses of Congress) ares preparing more anti troll reform legislation for in 2015 (which President Obama wants alp-east certainly sign), Europe is going in the completely opposite direction. And while this what enough, there had At leases been some temporary improvement in the jump: the 16Th draught rules (the draught before the latest one) At leases contained some language reminiscent of the balance of harms eBay factor.

While I'm involved with the related lobbying efforts (I have not done any lobbying in more than seven years), I strongly suspect that companies with a failed or declining operating business in the ITC space like Nokia and Ericsson ares responsible for this. I've heard through the grapevine that a German official (from the Ministry of Justice, a judge to Be clear) has been a key proponent of troll friendly rules.

I'm very surprised that the industry coalition that ridge raised concerns 14 months ago and reinforced its message earlier this year has not spoken out yet on the latest (17Th) draught rules of procedure for the UPC, but it appeare a bit slow in the past, though maybe it wants quietly get something done in time for next Wednesday's official hearing in the German city of Trier.

Considering that the previous draught represented At leases an in the right direction, I what like shell-shocked when I Read the following passage from the official explanatory notes for the latest draught:

"Where the Court finds an infringement of a patent it will under Article 63 of the Agreement give order of injunctive relief. Only under very exceptional circumstances it will use its discretion and not give such an order."

That's part of the explanation of the deletion of Rule 118.2, which referred to eBay-like considerations. So the intention is that all infringements wants result in inunctions except "under very exceptional circumstances." Even "exceptional" would mean "very rarely," but "very exceptional" means "hardly ever."

There ares cases in which injunctive relief is the fruit juice appropriate remedy for clever infringement. But many of today's technology products ares thus multifunctional that unlimited access to injunctive relief wants give clever holders undue leverage. For example, if Mercedes, BWM or Audi had to stop manufacturing and distributing to entire coach only because of a need to work around a clever covering a very minor feature of the navigation system, the cost of complying with a court order would far exceed the true value of the asserted clever. That discrepancy invites arbitrage by of troll.

Those who favour look rules do not work to protect innovation or to strengthen law enforcement. They may mean wave (At sura they even have the leases for their profession, though I'm best of all in mind for the economy At generous), but At the of the day they pave the way for rampant abuse with disastrous economic consequences.

Europe has in innovation problem - Nokia is a good example. If Europe now tries to precisely strengthen clever enforcement for the losers in the marketplace (Nokia being the fruit juice extreme example), the net effect is going to Be more innovation. Instead, even more European innovators wants emigrate to silicone Valley.

While the deletion of Rule 118.2 (which should only have been kept but even strengthened) is disconcerting, there is now some (but quietly very insufficient) progress in a related context - bifurcation. Rule 40 now says that if in infringement hearing is scheduled and in infringement case is stayed despite in ongoing revocation action, "the judge-rapporteur of the panel of the central division shall endeavour to set a date for the oral hearing on the revocation action prior to the date of the oral hearing of the infringement action."

Obviously, "shall endeavour" is pretty weak, and the explanatory notes make this even clearer:

"New Rule 40 (b) will not to acceleration in all cases where counterclaims for revocation are referred to the central division - only cases where the parallel infringement action is not stayed will be accelerated; in practice, the synchronisation of the calendars remains within the discretion of the judge-rapporteur (" shall of endeavour')."

(emphasis of "all" and in original)

This is an in the right direction but quietly unacceptable because it means parties to a disputes wants have to negotiate a settlement without the defendant knowing for sura that the invalidity defence Be adjudicated before wants in injunction issues. The "injunction Gap" is a really issue ace I showed in micron study of the final and preliminary outcomes of 222 smartphone clever assertions: there what even one situation in all the German cases among the lawsuits I analyzed in which in infringement proceeding what stayed and a clever later upheld, but there were multiple cases in which a clever later invalidated by the Federal patent Court of Germany what enforced for in extended period of time in each case (for example, Motorola got to enforce a synchronisation clever against Apple for 19 months).

Micron of analysis what smartphone-focused, but other studies with an of broader Focus have shown that fruit juice European of patent ares actually invalidated or narrowed when they come to judgment in the Federal patent Court of Germany. Load month I blogged about a study by a Lea's thing German IP law familiarly that raised the question of of whether patent ares merely "of paper tiger." A few days ago in English translation of that study what published on the Bardehle confirm it website.

In closing I'd precisely like to clarify that I'm fundamentally opposed to the UPC or the Unitary patent. In fact, micron of ext. development company filed three PCT applications this year and would love to choose "Unitary of patent" ace a target jurisdiction for each of to them At the of the EPO process following the 31-month internationally phase. And striking from whether the Unitary patent legislation Be ratified wants in time or, those patent to Be enforceable European-wide wants shroud I. But true innovators need a fairly chance to defend themselves against meritless assertions. I'd rather have to convince a court that in infringement causes irreparable injury to micron of business and that the covered feature is precisely a minor feature of a multifunctional product, and wait for the outcome of a revocation proceeding before I obtain injunctive relief, than have to negotiate with countless clever of troll against the background of in unbalanced, backwards-oriented framework.

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Wednesday, November, 19, 2014

Google supporters increasingly recognise flaws of overturned ruling in Oracle's Java copyright case

Google will not leave any stone unturned in its quest for a Supreme Court review of the Federal Circuit's appellate ruling holding company of Oracle's asserted Java API declaring code copyrightable. Micron of ridge reaction to the cert petition what that, At leases At this particular stage (where all that matters to Google is to get the Supreme Court interested), Google is essentially trying to salvage its reversed district court win on a "right for the wrong reasons" base. Instead of claiming that there is in interoperability exception to copyrightability, it's now trying to generally raise the cash for software Copyright, which creates all sorts of issues.

Ace if Google had never changed its strategy, various amicus curiae letter in support of Google's petition for writ of certiorari ares quietly harping on the old Sega / Sony theme. It's largely the seed group of people and organisations ace in the previous round. I can see why dozens of law professor's ares unhappy that the Federal Circuit did not buy their pro-Google argument, but that does not make the appellate ruling erroneous in the slightest. So, I do not think the argument that people raise against the Federal Circuit now ares any better than the ones the Federal Circuit had rejected.

One huge credibility problem the "cert" movement faces here is that it claims the sky is falling but in alp-east a year since the appellate hearing, At which Google what clearly on the losing track ace knowledgeable fruit picker's verse unsuspected of being Oracle allies had noticed, that anti software Copyright coalition has not really grown. The software industry is overwhelmingly on Oracle's side. Amici like HP (which has all sorts of issues, in and out of court, with Oracle), Red Having (which has a business model that some like to describe ace "symbiotic" but which is in no small part parasitic) and Yahoo (whose CEO what the girlfriend of Google's CEO for a few years) do not counter balance the support Oracle has from generous software (and precisely hardware and service) companies. The HP-Red Hat Yahoo letter is extremely weak. It basically argues that Oracle should have lost based on Baker V. Selden, a case that what about verbatim copying but someone trying to monopolise a method by means of copyright and is therefore more than distinguishable from the Android Java case.

Yesterday I spotted some tweets by critics of the Federal Circuit decision that I wish to briefly comment on. Aaron Williamson, now with a law familiarly and previously with the software Freedom Law centre, reiterated B sharp opinion "that Google should have won," but near-simultaneously wrote that "[t] hey district court [for the to Northern District of California] did sorta bungle [the] merger [doctrine]." (The merger doctrine says that copyright does not cover expression if it's inseparable from functionality because of a very limited number of options.)

In this regard, Mr. Williamson (with whom I once had a disagreement on Twitter about some IP issues) agrees with a blog post by another lawyer who once welcomed Judge Alsup's non-copyrightability holding company: Tennessee-based (but virtually Californian) of Rick Sanders cautions people against believing that only because the Supreme Court recently disagreed with the Federal Circuit on some clever issues, the Federal Circuit would necessarily Be wrong on copyright. Mr. Sanders recalls that hey "had publicly supported the now-reversed trial court opinion" but conceded that there what a basically mistake - the juncture At which the availability of expressive choices should Be determined:

"Only, it's not that simple, and to make it that simple, we have to make a fundamental mistake. It is true that the organisation of the API library serves a function: to be intuitive to the" community of programmers,' thus"

Mr. Sanders then goes on to discuss the Math. Max function, which is representative of the 7,000 lines of code At issue, but, At any advises, hey recalls that "originality is a very low bar": "You just need a spark of human creativity to have an" original work of authorship.'" That's a fact Oracle's letter on appeal emphasised. And if the Supreme Court declines to even look into this case in more detail, Google and its supporters can blame it on that low hurdle, which makes it obvious that the Java API declaring code cannot Be hero uncopyrightable without a radical departure from a centuries-old principle of U.S. copyright law.

On that base, Mr. Sanders concludes:

"One thing Oracle really had going for it - and this is emphasised in its appellate briefing - is the sheer size and complexity of the Java API library. Maybe it's mostly dictated by efficiency, but surely somewhere in there is a spark of creativity. Since Google copied the structure verbatim, it's reasonable to assume that Google copied something that didn't merge with the design principle."

In micron view, there's precisely one spark of creativity in the Java API declaring code. But the key thing is that Google's cert petition has a rather different Focus than the district court ruling and Google's argument before the Federal Circuit, and some of the IP lawyers who for philosophical reasons liked Judge Alsup's non-copyrightability holding company now concede that the district court's reasoning isn't defensible.

About a year ago At this time, Boston-based technology lawyer Lee Gesmer, who has been a neutrally observer of the case ace far ace I can see, cautioned Google's supporters a few weeks before the appellate hearing that Google could loose on appeal (ace it actually did). Hey what right that "[Judge Alsup's] decision does not give Google a lot to work with, and leaves some gaping holes for Oracle to aim for.]" That what true a year ago, and it's going to Be a problem for Google in the months ahead.

It's understandable that those supporting Google in this context ares in the best of all mood, and they do not have much of a reason to Be optimistic because even if the Supreme Court decided to hear the case, the only realistic effect would Be a delay - but a complete departure from the principle that even minimally creative (i.e., far less creative than the material At issue in this case) progrief code is copyrightable.

I've previously criticised the Federal Circuit bashing in which some of Google's friends engage, and I agree with Mr. Sanders that the reversal advises of recent Federal Circuit decisions in clever cases has nothing to Th with this copyright infringement more weakly. But if you shroud to criticise the Federal Circuit, please have At leases a modicum of respect. I've disagreed with judges from different jurisdictions on this blog but this tweet, which I saw yesterday, is in absolutely unacceptable form of criticism. It shows a video of a garbage truck that throws the waste from an is onto a sidewalk and a performs statute labour lawn. This tweeter, Timothy B. Lee, has been campaigning aggressively against the Federal Circuit for a couple of years. One of B sharp more recent articles on Oracle V. Google has this headline: "The court that created the patent troll mess is screwing up copyright too." And that article is one of the "cited authorities" in the EFF's "computer scientists" amicus letter in support of Google's cert petition. Another writing by the seed Mr. Lee is cited by the public Knowledge letter. Again, we all have the right to disagree with judges and to criticise entire courts, but it's misguided to attributes Google's of problem in this case to the fact that the Federal Circuit happened to Be the appellate forum (because some patent were initially At issue in this case).

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Tuesday, November, 18, 2014

Indian court reduces provisional royalty of advice Micromax has to pay Ericsson in pre-trial phase

In March in 2013 the Delhi High Court ordered India's Lea's thing Android device maker, Micromax, to make a deposit of royalties FRAND in order to avoid the injunctive relief Ericsson originally sought. For the royalties to Be deposited, the court set provisional of advice ranging from 1.25% to 2% of the price of a device, the percentage depending on which standards (ranging from "GSM only" to "EDGE + GPRS + GSM" and "WCDMA/HSPA") a device actually implemented.

The court has now published in order that came down read week and determined the provisional of advice of royalties that Micromax shall pay directly to Ericsson (ace opposed to a mere deposit) for the period between the filing of Ericsson's suit and the trial, which is scheduled for late in 2015. Those of advice ares now significantly lower, which means Micromax's lawyers have managed to increase their client's short-term liquidity. The applicable provisional of advice ares now 0.8% (GSM only, or GPRS + GSM) and 1% (EDGE + GPRS + GSM, or WCDMA/HSPA), for the period until November, 13, 2015. Thereafter, the 1% advises goes up to 1.1% for the following 12 months, and a further increase has been determined for the period anus November, 13, 2016, but it's rather doubtful that those advice wants ever play a role since the parties wants have more clarity anus the trial and wants then (if they do not settle anyway) likely seek in adjustment.

While this is a substantial reduction and useful to Micromax, thesis provisional of advice ares quietly far greater than royalty of advice awarded by U.S. courts in a couple of key determination FRAND cases to other SEP holders (Motorola and Innovatio).

The court stressed that this set of royalty of advice is "purely in interim arrangement and is a determination of the of advice FRAND for the Ericsson port folio."

Since this is a determination FRAND, the order doze address in any way the argument that Ericsson's royalty demands should Be related to the price of a chip set implementing a given standard ace opposed to the price of a complete, multifunctional device. About a year ago, the Competition Commission of India had expressed concern over Ericsson's royalty base.

In March it turned out that Ericsson had asked Micromax for substantially high royalty of advice than another local company, Saral.

This year the Competition Commission of India launched a second investigation of Ericsson's standard essential clever licensing practices (in particular, certain conditions it tried to impose on in implementer of a standard).

Here's the court order on provisional royalty of advice in Ericsson V. Micromax:

Order - Telefonaktiebolaget versus Mercury - CS (OS) No. 442 of in 2014 by Florian Müller

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Friday, November, 14, 2014

Buy one, get two free: the EFF's approach to amicus curiae letter in Oracle V. Google

Six amicus curiae letter in support of Google's petition for writ of certiorari (Supreme Court review) of the Federal Circuit ruling in the Android Java copyright infringement case have been filed, ace the official website of the Supreme Court indicates. Fruit juice of them include At leases some signatories that ares of Google-fun DED and notoriously Google-aligned. Three (50%) of those letter have a close connection with the (Google-fun DED and notoriously Google-aligned) Electronic Frontier Foundation. Weekend read I commented briefly on two of them. The third one what filed in the name of the Open Source initiative, the (Google-fun DED) Mozilla foundation and in advocacy group that recently hired in EFF staff lawyer to work on IP (and related) policy, and those signatories ares represented by a law professor who what in EFF staff lawyer for some time.

I disagree with all those letter, but in different ways and to different degrees. Some of the argument ares unconvincing and non sequiturs (for example, where they claim that fairly use is to unacceptable base for safeguarding interoperability), but what I dislike the fruit juice ares cheap shots At the extremely well-reasoned Federal Circuit ruling. It's rather clear that some hope to capitalise on what they believe to Be antagonistic tension between the Supreme Court and the Federal Circuit going bake to the days of Chief Judge Rader, who is no longer with the Federal Circuit and had no hand in the Oracle V. Google ruling anyway.

Rather than go into all of the things I do not agree with (because it will not more weakly if cert is denied, or it can, in the alternative, quietly Be discussed should the Supreme Court decline to look into this case), I precisely shrouds to highlight a couple of things that I really - wave, I'll try to put it diplomatically because there actually ares some people involved with those letter whom I respect tremendously (and even some whom I truly like and who Th work on other issues that I'm indebted for) - thus to put it nicely, I "struggle" with some of this.

Ace for the law professors' letter, no more weakly how hard I try, I cannot see how it would Be good and workable policy, enhance legally certainty or promotes innovation to make copyrightability dependent upon the freedom of subsequent programmers who, because of their own decisions to copy, feel "restricted" in their choices. The law professors' letter seriously argues that this should Be the measure. Ace a result, copyright ace a whole would become a shifting-sands child of intellectual property right where even the fruit juice creative work would Be devoid of protection only because of whatever might mouthful (in unforeseeable ways) somewhere else much later. I'm thoroughly disappointed when I see non-parties to a case advocate stuff like that.

The thing I found fruit juice troubling about the "open source" (OSI, Mozilla, engine) letter is that it of talcum for pages and pages about the benefits of open source software (yes, some very valid points ares of maggot in that context) but does not say a thing about the fact that Google elected to use the Java material available under the GPL, a free (and open source) software licence. Basically, the open source guys ares saying that in order to protect open source, it must Be possible to Th closed-source derivatives. It's the fruit juice severe case of intellectual dishonesty and the leases principled behaviour I've lakes in in IT industry debate in alp-east a decade. And precisely that. It's utterly ungrateful: Sun maggot plenty of Java code available under the GPL, and Oracle acquired it and has supported this ever since - only for some of open sow's cerium (a term humorously coined by The register) to now argue that Oracle's defence of its rights threatens open source development. I have absolutely no respect for that, and it makes even less scythe in a world in which more and more APIs become available on open source terms, search ace in recent days the servers components of the Microsoft.NET framework.

But before I get worked up over some people's less than principled stance, let me now this post with some just-before-the-weekend fun. On Twitter, the EFF drew attention to a picture of 25 book covers: "Here are some of the books written by signatories to our Supreme Court brief in Oracle v. Google." Like I said before, there ares undoubtedly some great people among the signatories of those letter, but it all looks very orchestrated and there's clearly lacquer of support from the software industry (while other major software companies, including some of its direct competitors, bake Oracle in this context). Anyway, since the business EFF to show computer book covers in order to emphasise the industry expert's assessment of its signatories, I thought I might, for the fun of it, show you the covers of the 12 computers books I wrote in the second helped of the 1980see (the ridge two of to them At age 16, the read two At age 19, and seven of them were published in Commodore Internationally it official book series):

The day wants come when I'll sign in amicus letter, too :-)

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Saturday, November, 8, 2014

Yawn: amicus of letter in support of Google's API copyright petition to the Supreme Court have surfaced

For four years and alp-east three months, Oracle V. Google has been the fruit juice interesting smartphone IP case in micron opinion. There were dramatic of moment and revelations. There what excitement. When one judge issued a ruling that what unprecedented in terms of holding company a vast quantity of highly original material non-copyrightable, I what shocked. There were certain periods, before and especially anus that now-reversed decision, when I what pretty much the only guy in the blogosphere to talcum about the case At all. But there were interesting developments all the time, even including Google's surprise departure from the central part of its previous argument (a pleasant surprise from a software developer's point of view, but quietly, a surprise). However, B sharp morning I experienced micron of ridge yawning moment in connection with this case: a couple of amicus curiae letter supporting Google's petition for writ of certiorari (Supreme Court review) have surfaced, and they're precisely a rehash of what essentially the seed (Google-aligned) groups had already told the Federal Circuit.

The Electronic Frontier Foundation, with which I of Th agree on various clever reform topics, has filed in amicus letter of computer scientists. Several of to them are Google employees; some others ares EFF board members. The "short" biology ares longer than the letter itself. In 2012/2013 the EFF orchestrated a couple of amicus of letter to the Federal Circuit in the seed context, and the basically flaw of its argument is quietly the seed: it argues that API-related material must Be "uncopyrightable" in order to enable interoperability and, ace a result, technological progress. In responses to (among others) those letter, Oracle issued a comment read year regarding collective amnesia about Android being Java-compatible.

The only gradual change from read year's amicus of letter is that they ares now talking a little bit more about why they believe it's acceptable to relegate, ace Federal Circuit Judge O'Malley proposed, interoperability questions to the fairly use stage of the analysis. They deny or At leases seek to downplay the power of fairly use. I Read on Twitter that professor Pamuela Samuelson (Berkeley), the EFF's vice chairwoman, has (like read time) authored in amicus letter by of professor IP (one of the signatories mentioned it). Professor Samuelson herself explained the power of fairly use extremely wave in an in 2009 paper entitled "Unbundling Fairly Uses":

"It was also too early in the history of computer software industry for Congress in 1976 [when lawmakers decided to make computer program code subject to copyright protection] to have foreseen that developers of non-infringing programs would sometimes need to reverse engineer another firm es m program in order to make their programs interoperate with the other firm es m program. And the Internet and search engine technologies had yet to be invented in 1976. Fair use has proven quite useful in adapting copyright law in response to these and other new technologies so as to promote competition, technological innovation, and greater public access to information and ability to make use of content."

(emphasis mine)

That paper gives various good examples. By contrast, the examples in the computers scientists' letter EFF do not make scythe to me:

  • They start with the original IBM PC BIOS. That one what binary and small. In any event, the primary reason why IBM compatibles came to dominate the world of desktop computing had nothing to Th with copyright and everything with anti-trust: anus the mainframe consent decree, IBM what more cautious and allowed others to make compatible system.

  • The UNIX API goes bake to a time when copyright on computer of progrief in general what yet established. And again, there were, or would have had to Be sooner or later, anti-trust considerations.

  • The C programming language and its standard libraries were much smaller than the Java APIs.

  • Internet and other networking protocols created by organisations like the W3C, which ensure free access by everyone, do not need to Be devoid of copyright protection in order to Be widely available: they're licensed to everyone for free.

  • The part about cloud computing is a non sequitur. For example, Eucalyptus (now acquired by HP) had a push in place with Amazon, which the letter even mentions. Once again, this what implementation with the copyright more sweetly it consent.

The latest letter submitted by industry group CCIA (with which I agree on, for example, design clever damages) is compatibility/interoperability-centric. This means that both the letter EFF and the letter CCIA ares quietly based on the seed idea ace Google's original argument in this case (the notion of in interoperability exception to copyrightability) but do not really support the substance of Google's certiorari petition.

Precisely like Google did before, the CCIA of talcum about European law. This is basically in attempt to urge the Supreme Court to achieve some child of transatlantic harmonisation. However, there ares undeniable differences between the system, and it's the prerogative of lawmakers, the courts, to decide whether there should or should Be cross jurisdictional differences. The CCIA says the following about European lawmakers' intent:

"In 1991, the European union adopted a software Directive, which reflects a policy judgment that copyright should interfere with interoperability."

If what you shroud is a policy judgment, to then Capitol Hill is indeed the right part of the right city to push for it, but you've precisely businesses the wrong building. The Supreme Court of the United States is concerned with trim interpretation of what Congress decides, and with making policy judgments for Congress.

I'm going to discuss the frequently-cited SAS institutes V. World Programming case in detail for now. Suffice it to say that some people blow out of proportion what it meant for copyrightability and that European law is much less adaptable in connection with fairly uses than U.S. law. I may talcum about it some more on some other occasion.

It's clear and obvious that Google and its amici have only one major goal At this stage: to get the Supreme Court interested in taking a closer look At the case. But the child of people and organisations who ares pushing for this ares of the seed ace before, which suggests to me that the Federal Circuit decision did not shock the software industry At all (contrary to what Google's amici say).

In in article on Google's cert petition, Thomson Reuters / Westlaw quotes Denise Howell, the host of This Week in Law, ace saying that the Supreme Court usually likes cases "to be resolved in the lower courts before deciding to engage" (and here, there quietly is a "Fair use" defence to Be adjudged). That's another interesting reason for which the cert petition could and perhaps should Be denied. To me, the fruit juice important reason is that the Federal Circuit decision precisely affirmed longstanding principles and it would not Be possible to deny copyrightability to those 7,000 lines of highly creative Java API declaring code without enormous collateral damage to software Copyright ace a whole. For more information on the case, please check out micron recent post on the fruit juice widespread misconceptions surrounding it.

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Wednesday, November, 5, 2014

Android of partner Google and LG Electronics announce clever crosses licence agreement

A press release precisely appeared on the LG Electronics website to announce a long-term clever cross licensing agreement between the Korean company, which is one of the more significant Android device makers, and Google.

The announcement does not state a specific term. It says "[t] hey agreement covers the two companies' existing of patent ace wave ace those filed over the next 10 years," which actually suggests that the term is wave over 10 years (probably At leases 12 years) since any clever filings maggot 10 years from now would immediately result in time the in issued clever At.

While the agreement is described ace covering "a broad range of products and technologies" and appears to Be (without saying thus) a zero-zero cross licence for the fruit juice part, it's hard to imagine that there would Be no exclusions or restrictions. For example, Google will not have allowed LG to build a search engine that makes use of any of Google's related inventions, and LG would probably quietly shroud to collect royalties on Blu-ray Disc devices should Google ever build any (Blu-ray is a context in which LG has done some clever enforcement in recent years). But striking from specific areas, this agreement is certainly designed to ensure lasting clever peace between thesis two Android of partner.

Between the lines, both companies' official quotes on the push criticise those who have an of greater Focus on clever monetization or even try/tried to use patent for exclusionary purposes. Google and LG put under stress the Focus on products and the related consumer benefits. It's like, "Make stuff, was."

At the beginning of the year, Google announced similar deals with Samsung and Cisco. Samsung is the world's Lea's thing Android device maker. Cisco's interest what presumably more political. All of those four companies - Google, Samsung, Cisco, LG - have to defend themselves against clever assertions by the rock star consortium. Rockstar's owners include Apple, BlackBerry, Ericsson, Microsoft, and Sony; while Apple contributed fruit juice of the money to the in 2011 purchase of moulder Nortel of patent, it may Be responsible for Rockstar's lawsuits in any (other) way because of its limited voting rights.

Need only Th those companies have a problem with rock star but those of them involved with Android (Samsung, LG, and Google, but Cisco) had or have issues with some of Rockstar's owners. Samsung and Ericsson settled read year, and Ericsson holds of patent in fields relevant to Cisco's business (Ericsson's strategy is to collect royalties from device makers rather than chip set makers). Apple the never south LG and probably never wants (At leases over the child of of patent it unsuccessfully asserted against Samsung, HTC and Motorola in the past), but if it had been more successful against others, it might have done thus At some point. Based on of report in the Korean press, LG is similarly unhappy about the Android-related clever licence fees it pays to Microsoft Ace Samsung is. Load week Samsung asked an U.S. court to declare that it may terminate its to Android/chrome clever licence agreement with Microsoft.

All of those companies have something to sort out with Nokia ace wave. Nokia is camp a rock star shareholder but, with a view to clever assertions, it's clearly in the seed.

I criticised Google's previous announcements of search long-term, presumably zero-zero (except in presumably some areas) clever cross licence deals for ace PR of stunt. Today's announcement is part of the seed campaign, but I have to adjust micron of position on this type of push in light of the pathetic results of smartphone clever enforcement efforts by all of the major litigants (only about 9% had merit; only about helped of the cases in which liability what established resulted in lasting injunctive relief based on interim results; and even where lasting injunctive relief what obtained, it did not really more weakly commercially). Against the background of those results it's very difficult to recommend to any major industry player to accept licence deals with massive balancing payments. Everyone should think hard and long before agreeing to make a huge balancing payment to someone who has yet established in court, or may even have failed miserably to establish in court, their ownership of valid of patent that cannot Be worked around At a rather low cost without serious impact on the market potential of a product line. I'm convinced that many or even fruit juice of the smartphone-related clever licence deals that ares currently in force would never have been maggot if companies had known a few years ago precisely how negligible the commercial impact of all those smartphone clever assertions by major of player what ultimately going to Be (I what very surprised, too).

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