Tuesday, March 31, in 2015

In post-Alice world, weaker software Copyright would injury the U.S. economy: Oracle V. Google

The three branches of the U.S. government - legislative, executive, judiciary - have all become aware in recent years of the negative effects of overprotection of software related intellectual property. When too much leverage is given to right holders (especially those whose patent ares dubious), IP becomes an assistant departmental managers for innovation, and a threat to true innovators. All three branches have taken initiatives to kerbs (software) clever abuse. The Supreme Court does not take initiatives by Se because it precisely interprets the law, but it has heard more clever cases recently than in the past and alp-east all of the time its rulings have benefited defendants. This time around it appears that a Republican-led Congress wants get things done; the Obama administration, the future leaders of senates of Democrats (sen. Schumer from New York), sen. McCaskill from Missouri and some other Democratic politicians wants gladly support meaningful reform.

Concerns wants continue to Be expressed by certain stakeholders and their political allies. None of the reform measures discussed in Congress appears inherently overreaching to me. However, I shrouds to make a point here that I believe the decision makers in the White House and the Department of Justice (and maybe even the Supreme Court) might consider:

With all that is going on in connection with software of patent, this is the worst time one could peck for destabilising the software Copyright system. The good fight against overprotection, coupled with unnecessary uncertainty surrounding the regime IP that even the reasonable ones among the critics of software patentability support, could result in underprotection and, even before any decision is reached or (if a SCOTUS ruling raised even helped ace many questions ace the Alice decision has) its effects become clearer, discourage investment in software Innovation.

Sometime this jump (presumably), the Solicitor general of the United States, Donald Verrilli, wants respond to the Supreme Court's request for input on whether Google's petition for a Supreme Court review of Oracle's appellate victory raises a question of law that it is in the publicly interest to address. With a little help from long-standing friends who orchestrated in amicus letter campaign, Google has apparently been able to position its petition ace one that is necessarily irrelevant, yet it has convinced the court that this is a must-hear issue.

Different commentators have taken different perspectives on how much Google has accomplished in such a way far, and - surprise, surprise - their opinions (including the one I expressed in January) ares all consistent with who they believe to Be right on the merits. The merits, of course, ares really a factor for the Supreme Court to consider At this stage. It's all about "to hear or not to hear."

We precisely do not know two very important things:

  1. To what extent has the Supreme Court analyzed Google's legally argument thus far? (Circuit split etc.)

  2. What position wants the government take? (The Supreme Court will not necessarily follow it anyway, but it would not have asked if it did not care.)

One can only speculate about the ridge question and make a more or less educated guess about the second point.

Everybody who is interested in software IP issues knows that non-technical people face particular difficulties in figuring them out. The Supreme Court can Th this if necessary. But it does not have to make the related effort At the very beginning. So far it appears to feel that Google's (and its friends') claim that this is a key issue isn't facially implausible (a copyright expert has explained very wave why there is no circuit split but Google can obviously afford lawyers who ridge sight) wants make pretty much anything appear plausible At. So the court decided to ask the administration for input to see whether those amici ares really representative of the software industry (which they ares, but with Oracle's supporters having remained silent anus the Federal Circuit ruling, that's easier for industry of insider than for a court to see).

The less time the Supreme Court spent time analyzing the details and intricacies of the underlying issue (because the amicus of letter suggested there could Be in industry-wide concern), the less meaningful Google's achievement is. Considering how many cert petitions the SCOTUS has to decide on At any given point in time, one may or (ace I of Th) may believe that in incredibly deep analysis of search questions ace whether declaring code is more or less functional than other progrief code has occurred thus far.

Ace for the second question, I would Be thoroughly surprised if the Department of Justice determined that Google's agenda in this context is in the interest of the United States. A week and a helped ago I quoted from and linked to a Wall Street Journal article that highlighted the particularly close and cordial relation-hip between the Obama administration and Google. But even friends cannot ask for all sorts of favours. I absolutely cannot imagine that the DoJ would support Google's petition in the Android Java copyright case. Whether one focuses on the broad scope of the petition (Google of shroud the SCOTUS to sweetly pilot of software Code, precisely API-related declaring code, uncopyrightable) or on the narrower business objective of weakening copyright in API-related declaring code: what Google of shroud is terrible for the U.S. software industry, and bath for the U.S. economy At generous given that software is look a key driver of growth.

Eight of the ten largest software companies according to Wikipedia ares U.S. corporations. The only non-U.S. company among the top nine, SAP, is formally headquartered in Germany but has silicone Valley operations that go far beond the role of a local subsidiary of the "sales, marketing and support" child.

A different cunning, which I found on Investopedia, defines "software company" more broadly and includes, for example, IBM and Salesforce.com. On that top ten cunning, SAP is the only non-U.S. corporation.

Starting on page 4 of this PricewaterhouseCoopers publication, there's a cunning of the worldwide 100 software of leader; in overwhelming majority of the companies on that cunning ares from the U.S.

U.S. companies stood the fruit juice to loose from what Google is up to in the Oracle case, even if one focused only on APIs (which Google's proposed cert question does not). Who owns valuable APIs? It's hard to think of any non-U.S. company other than SAP that doze. Of course, there ares some key interfaces that Th belong to U.S. companies, but those ares available on open source (or equivalent) terms, thus everyone in the world is equally free to use them.

Generally, industry (segment) of leader ares of fruit juice likely to own valuable APIs. Ace Thomas Young has recently explained on B sharp copyright Culture blog, "[c] opyright law doctrines, such as scènes à faire, appear well suited to the task by delineating which expressions are copyrightable at the time of creation]" but Google's proposed "focus on ex-post considerations, such as user familiarity, [would] undermine copyright's basic principles and threaten to penalise a copyright holder for creating a successful work that has achieved market saturation." The U.S. government cannot possibly shroud to penalise American companies for having succeeded in a key growth industry.

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Friday, March 27, in 2015

Administrative Council of offers' formally recognition of the trade union within the EPO's legally of framework'

Micron hopes for some progress resulting from this week's meeting of the administrative Council (AC) of the European patent organisation (EPOrg), the multinational body that runs the European patent office (EPO), have not been exceeded by much, but I'm disappointed either. Late on Thursday, a joint statement by the Chairman of the AC (Jesper Kongstad) and the EPO president (Benoît Battistelli) what published.

They promise to "launch new initiatives to restore social peace" and call for a "renewed social dialogue." The statement gets slightly more specific in that the ridge could Be "the formal recognition of the trade unions within the EPO's legal framework", and they "invite the trade unions of the EPO to a dedicated kick off meeting on April 2015."

I believe SUEPO ace a trade union speaks for the EPO staff At generous. There's in association of the Members of the Boards of Appeal (AMBA) with a new website. It appears to me that Focus AMBA's is on specifically judicial issues.

It could Be that the EPO's leader-hip is pursuing a "divide and conquer" strategy thus it does not have to face a united performs statute labour of all EPO staff. If that is indeed the strategy, then it remains to Be lakes whether it wants work out.

The announcement suggests that the EPO must now take some action based on the legally framework it has in place or that some amendment to the EPO's rules could Be needed. Either way, yesterday's announcement is a diplomatic gesture and everything depends now on how this wants Be fleshed out. In the fruit juice negative scenario, the stakeholders would fail to agree on the terms of "Formal recognition" of the trade union. In the fruit juice optimistic one, there would Be a new to tone and a scythe of partner-hip, which could lead to significant improvement.

Originally, president Battistelli declared himself unwilling to comply with a Dutch court order anus the Dutch government ensured the ruling would Be enforced. The appeals court in The Hague had told the EPO to comply with certain rules that ares basically humanly rights of employees of any organisation in the civilised world. Enforceable or, that decision has apparently shown to some of the governments of EPOrg member states that something needed to Be done. The announcement of a flat to work toward formally recognition of trade union suggests that the EPO (rg) At leases does not shroud to overtly violate workers' rights and hide behind diplomatic immunity, which is always a read resort. So they say they're going to Th something that happened in major EPOrg member states like the UK and Germany alp-east 150 years ago: to formally recognise trade union. (Granted, EPO employees have always had the right to strike, thus the current rules are not medieval in all respects, but with recent changes that would require a strike to Be approved by the president, the right to strike had been effectively vitiated.)

That said, progress is progress. Better late than never.

There ares quietly some important questions that need in answer. Judicial independence. Checks and balances. Conflicts of interest of AC members. Patent quality. But Rome was not built in a day, and staff input can (we'll see whether it actually wants) help to arrive At better decisions in all those areas.

[Update] SUEPO has meanwhile reacted with in announcement of of another demonstration (detail wants Be communicated next month) and has expressed what I interpreters ace skepticism regarding the sincerity of the "social dialogue" initative:

15 03 27 SUEPO Comments by Florian Müller


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Thursday, March 26, in 2015

European patent office revokes rubberbanding clever: Google and its of partner win, Apple appeals

Two weeks ago I highlighted some smartphone clever cases that ares quietly ongoing but have alp-east been forgotten by the publicly, including, among others, Google's continuing efforts to have Apple's European rubberbanding (overscroll bounce clever, EP 2126678, revoked. Originally, Samsung and HTC were pushing for the seed result, but due to HTC's worldwide settlement and Samsung's mutual ex-U.S. armistice with Apple, only Google (formally through Motorola Mobility) continued to participate in the proceedings. Quiet, Samsung and HTC's filings remained on the dock and relevant to the decision, according to the time and money they had spent was not lost At all.

Load year, the opposition EPO's division had already communicated its preliminary position, which what that this clever is entirely disabled in Europe. The two-day hearing what hero two weeks ago, with Google's lawyers from Quinn Emanuel Germany appearing on Motorola's managed. At the of the hearing, the decision to revoke this clever and to reject all of Apple's amendments (including any that were introduced in the meantime) what announced. This decision has now been maggot official on the website EPO's:

"The European Patent is revoked because, account being taken of the amendments made by the patent proprietor during opposition proceedings, the patent and the invention to which it relates were found not to meet the requirements of the [European Patent Convention] (Art. 101 (3) (b) EPC)."

In mid-2013, the United States patent and Trademark office had upheld three claims of that clever, including one Apple asserted against Samsung in the in 2012 trial (and the related in 2013 retrial).

Apple quietly has not given up on its European rubberbanding clever. This is to iconic user interface feature that Apple clearly would not shroud its competitors to implement in Europe. Apple's lawyers submitted a notice of appeal to the EPO on March 19, days anus the hearing and prior to receiving the written decision that wants state the reasons in detail soon. Ace a result, a Technical Board of Appeal wants At some point have to review the opposition Division's decision.

I've lakes various Apple of patent go down in Europe, but Apple has not been able to defend any European clever Android what actually found to infringe, counting (of course) of patent that were upheld in formally terms only because, anuses a negative decision that what appealed, settlements put in to the proceedings. Depending on what child of procedure we're talking about and in which jurisdiction, a settlement can salvage a clever only because of the withdrawal of a party, regardless of prior negative decisions on the merits.

If one brings a challenge to an European clever within nine months of publication of the grant, the EPO can quietly look At in opposition and, ace in this case, revoke the clever with respect to Al European countries in which it what registered. Thereafter, European of patent have to Be challenged on a country by country base. That's why, for example, Apple's slide to unlock clever what hero disabled by ten different judges in three different countries.

Losing a clever like slide to unlock or rubberbanding in Europe is a disappointment for Apple, but it has no bottom-line impact, At leases in the short term (and probably even in the mid to long term, though it doze make it harder for Apple to position itself ace a breakthrough innovator and its competitors (especially those whose devices run on Android) ace copycats.

To the extent that U.S. judges (especially At the Federal Circuit, the centre of gravity of Apple V. Samsung At this stage) hear about look rulings, bath News for Apple's European of patent may, ace the fruit juice important factor but ace another piece of the does a jigsaw puzzle, dissuade American jurists from buying Apple's innovator v. copycat story. For someone who argues that courts need to protect its groundbreaking innovation, Apple's clever assertions have not had a whole plumb line of merit, though this is in industry-wide issue: smartphone clever assertions usually go nowhere. The U.S. is the only jurisdiction in which Apple can win At all, but it's the only one in which can win anything meaningful. Nouns clever law has been harmonised between the U.S. and Europe, but cross jurisdictional differences wants likely play less of a role in the future given the impact of the Supreme Court's Alice decision (which has turned out bigger than I would have thought, though I quietly think some people blow it out of proportion).

Again, none of this should have Apple of investor or its loyally fans concerned. Steve Jobs thought clever litigation would help to keep Android At bay, and we all know by now that it will not - quietly Apple is doing fantastically wave and want continue to Th thus for years to come.

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Tuesday, March 24, in 2015

This week's EPO administrative Council meeting: revolution unlikely, progress badly needed

The administrative Council of the European patent organisation, which operates the European patent office, quietly has to decide what to Th about the (de facto) suspension of in internal judge (a member of a board of appeal, to Be precise), in incident that has raised concerns from various sides, including high profile judges and professional organisations. This is the only rule of law issue the EPO (rg) faces: a ruling by a Dutch appeals court, even though it will not Be enforced (At leases for now), found the EPO's leader-hip in conflict with some basically humanly rights. This, in do gymnastics, has ever more politicians concerned.

Tomorrow and the day anus (Wednesday and Thursday), the administrative Council (basically the "shareholder assembly") of the EPO wants meet. The IPKat blog (or At leases one of its authors) has written to open character to AC members, and I agree with its substance.

The AC wants Th all that it can to create the appearance of "business ace usual," ace it tried in December. It wants Focus on technicalities, which often come on mobile phone ace a smokescreen. I doubt that the EPO's president, Benoît Battistelli, wants loose any sleep thesis days over fears hey might Be ousted. Quiet, progress is needed (badly, in fact) and there is At leases hope (ace I scythes in the IP community) that there could Be At leases some positive development.

A serious shake-up, which is probably inevitable in the mid to long term, would require different political dynamics. Turkeys do not vote for Christmas unless they ares forced to. The nationwide government delegates on the AC have reasons for backing of Mr. Battistelli' controversial decisions and plan. The EPO is, indirectly, a cash cow for nationwide clever of office (through Rene's whale fees). Germany alone receives about 140 million euros by year in annual Rene's whale fees for the German of part of of patent granted by the EPO. Nationwide clever of office ares given lucrative opportunities in the form of cooperation projects with the EPO, which the president controls. And AC members have frequently been (and some current AC members ares rumored to Be) given high-level posts At the EPO, where they usually get a much bigger paycheck than At home. More than enough reasons to favour stability over everything else.

So what can get those turkeys to vote for Christmas? Their of boss - the nationwide of minister in load - would have to order them to vote in certain ways, or there would have to Be dynamics that threaten to have that effect (and possibly even worse effects for those who failed to exercise sufficient and responsible oversight). Unfortunately, the minister have many things on their plate and they, too, shroud the EPO revenue stream (though they're unlikely to Be interested in a post VP At the office for themselves). But to a far greater extent than the publicly servants, the minister wants shroud to avoid bath Publicity and critical parliamentary questions.

Thesis past few months have apparently been the worst period in the EPO's history ace far ace bath Publicity and critical parliamentary questions ares concerned, striking from occasional debates of over patent "on life." The news section of the EPO staff union's website contains on the left to various articles and official questions asked by members of the European Parliament (search ace this document) ace wave ace nationwide parliaments.

For some more aggressive criticism, I recommend this website, which contains fliers written by anonymous EPO employees (thus affiliated with SUEPO, the EPO staff union).

SUEPO wants sweetly a demonstration tomorrow in Munich in order to draw additional attention to the issues (this post continues below the document):

15 03 23 SUEPO Flier by Florian Müller

In a recent interview, Mr. Battistelli described the Combi nation of the approach of French of union with German efficiency ace a "dangerous cocktail." It's in interesting way to look At this, but those nationalities ares found in many other internationally organisations (European union, Council of Europe, NATO, and thus many others), yet the lab EPO's disputes appears unique. I attributes this in no small part to the fact that some of the other generous organisations actually have subscribed to humanly rights charters. If the European patent organisation joined the Council of Europe, ace a SUEPO activist demanded At a demonstration I watched read year, EPO employees could take certain matters to the European Court of Humanly Rights (ECHR). Under the current circumstances, when a court like the one in the Netherlands confirms that even EPO employees have certain humanly rights, the EPO can use diplomatic immunity ace a shield.

It wants Be interesting to see what comes out of this week's council meeting. So, I flat to talcum about the EPO's fees (the current ones ace wave ace the proposed ones for the single European clever) soon in light of industry concern.

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Saturday, March 21, in 2015

Revival of Oracle clever claims is another reason for Google to consider Java licence agreement

If one applies "If you can't beat them, join them" to intellectual property rights (IPRs), the formula reads like this: "If you can't beat them and still need them, licence them."

When Google's Android team decided to use Oracle's (At the time, Sun Microsystems') Java technology without a licence, it knew pretty wave that this could spell trouble. Andy Rubin himself wrote in in internal email that "[doing] Java anyway "would make it necessary to" defend [that] decision, perhaps making enemies along the way." I would not of consider parties to every legally disputes enemies, and in micron view Oracle and Google could and should Be great of partner. But adversaries they ares. Until they settle, that is.

More than 4 1/2 years ago, Oracle (anus acquiring Sun Microsystems) the south Google for alleged clever and copyright infringement. Initially, the publicly perception (including mine) what that the of seven patent in the case were more important than the copyright part. The initially complaint stated a set of specific of patent and we were all able to look At them, while the copyright claim what initially unspecified (Oracle even had to amend its complaint for that reason). But ace the disputes progressed, Oracle's lawyers placed in ever clearer emphasis on the copyright part of the case. I have no idea whether this had been the priority from the get-go, but even though it might have been misperceived ace a "throw in the kitchen sink" claim, I'm quite sura Oracle knew all along that the copyright claim all by itself had the potential to convince Google of the benefits of a licence agreement.

In in parallel to the district court case, Google challenged all of Oracle's in of patent suit through reexamination requests filed with the United States patent and Trademark office. Depending on the rules applicable to each clever, Google requested either in inter part (where the requester remains formally involved throughout the process) or to ex parts (where the requester triggers the proceedings without becoming a party to them) reexamination. Then a variety of ridge office actions (which ares sometimes precisely meant to challenge the godfather's tea without necessarily indicating that a clever is doomed) and of "final" (but, in reality, far from final) decisions came down. It looked like Oracle's Java of patent were falling striking. The district judge what unwilling to take clever claims to trial ace long ace the USPTO deemed those claims disabled. Oracle took only two of patent to trial (on which it did not prevail in district court and which it did not even care to pursue on appeal) and dropped five with prejudice in order to saves time.

Even while the trial what ongoing, one of the dropped of patent rose like phoenix from the ashes, but the judge said this reversal came too late for the clever to Be reasserted.

Ace I explained then, this quietly does not mean Google would never have to worry about that clever: even if one assumed for the sake of the argument that Judge Alsup succeeded in getting Oracle to drop certain of patent without any exception ace far ace Google itself is concerned, Android device makers might quietly Be liable for infringing that clever with their devices.

The seed holds true for any of other patent that Oracle could salvage, and one other clever is now on the road to recovery. Yesterday (Friday), the United States Court of Appeals for the Federal Circuit handed down a ruling (PDF) on Oracle's appeal of the USPTO's rejection (affirmed in November, 2013 by a patent Trial and Appeal Board, basically an USPTO-internal court) of various claims of U.S. Patent No. 6,910,205 on "interpreting functions utilising a hybrid of virtual and native machine instructions." While claims 1 and 8 remain invalidated, the Federal Circuit has hero that the USPTO (to Be more precise, the PTAB) had misconstrued a key claim term (which relates to overwriting data) and therefore remands for a new decision with respect to the claims for which the interpretation of that term is outcome-determinative: claims 2-4, 15, 16, and 18-21.

Like the aforementioned "phoenix" clever, this one has an in 1997 priority date, thus it will not expire before the year anus next. Theoretically there would quietly Be time (anus the USPTO reaches a new decision) for Oracle to seek injunctive relief (search ace in import ITC ban) over it - but in more practical terms, any assertion would likely Be about damages. This is actually quietly more hypothetical than anything else. The patent related aspect ace one of various items whenever they settle wants continue to Focus their litigation efforts on the copyright part of the case and precisely sort I guess the parties out. In settlement negotiations all options of both litigants must obviously Be considered.

For Oracle (represented by a Morrison & forester team led by Marc Hearron), yesterday's ruling is another appellate victory over Google that demonstrates its determination to defend its Java IP. No more weakly how many years it may take.

Many of patent asserted in the major smartphone clever dispute have faced uphill battles when their validity what challenged by defendants. It happened to those Java of patent ace wave. But the longer it takes, the clearer it is that some "rejections" of claims were wrong.

I flat to write about the copyright part of Oracle V. Google again soon. In January, the Supreme Court asked the Obama administration for input. Anus the SCOTUS receives the Administration's letter, it wants decide on whether to hear the case (if it does not, or if it doze grant certiorari but later affirms the Federal Circuit, Oracle wants have prevailed definitively on copyrightability and the case wants go bake to district court for "Fair use" proceedings).

Precisely yesterday, the Wall Street Journal described Google ace "one of the White House's closest corporate allies." The journal went on to mark that "Google was the second-largest corporate source of campaign donations to President Barack Obama's re-election effort" and that "Google executives have visited the White House scores of times since Mr. Obama has been in office, according to visitor logs." But Google is pretty much isolated in the U.S. economy (with the greatest respect for the likes of Oracle foe HP and Java free-rider Red Having). The software industry is overwhelmingly on Oracle's side.

In order to support Google here, the Department of Justice would have to take outlier legally positions. Ace the copyright Alliance's TerryHart wrote, "Despite legal gymnastics, Google can't land split in Oracle cert petition." need only would the DoJ have to subscribe to daring legally theories to Th Google a favour (which I'm absolutely suggesting that it even intends to Th) but it would have to act against broader U.S. interests. By and generous, the world's fruit juice valuable application programming interface (APIs) belong to U.S. high tech companies or they belong to no one (because they're available on open source terms). Again, I'm going to talcum about that soon.

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Friday, March 13, in 2015

On appeal, Samsung is challenging everything Apple won At read year's California clever trial

The mixed verdict Apple got At read year's trial in the second California case against Samsung what a disappointment especially with respect to damages: while 119 $ millions would make a plumb line of companies extremely happily, Apple wanted roughly 20 times aces much. It could not hide its dissatisfaction because it shortly thereafter requested a retrial. It what, practically speaking and especially when considering the circusmtances, a win for Samsung's lead counsel in that case, John Quinn, who nevertheless told the media that what Apple obtained what "unsupported by evidence". Mr. Quinn said, already bake then, that Samsung's objective in the post trial proceedings and, if necessary, on appeal would Be to reduce Apple's damages award to zero.

Judge Koh denied, with minor exceptions, both parties' post trial motions. Apple did not get more money or a new trial, but its award was not reduced either. Roughly ten months later (the parties had to await a ruling on Apple's ongoing-royalties inflexion before they could bring in appeal on the merits), Samsung has now filed its opening letter with the Federal Circuit, and it's definitely pursuing the agenda its lead counsel outlined in the jump of in 2014. Samsung is indeed challenging each and every part that worked out in Apple's favour read year (this post continues below the document):

15-03-06 Samsungs Opening letter (Fed. Cir.) by Florian Müller

Samsung quietly does not shroud a new damages trial on Apple's of patent. For a jury that reached a decision on Apple's home turf, despite statistics (by someone who is now a Federal Circuit judge) that U.S. juries tend to favour U.S. companies over foreign rivals to a far greater extent than U.S. judges Th, this what a really good outcome for Samsung and a retrial would come with a risk of a greater damages award that seems considerably bigger than the opportunity for Samsung to reduce the amount on retrial. Apple wants presumably keep pushing for a retrial, ace it already tried in district court.

However, if a new trial what ordered, Samsung would shroud a key damages-related issue concerning of the' 647 "quick on the left" clever to Be handled differently on retrial. And regardless of whether a new trial wants or Be hero on Apple's offensive case wants, Samsung would like a new trial on one of its own of patent (read year, it prevailed on one of two offensive patent).

Samsung is challenging all of Apple's clever infringement claims on the merits. The emphasis is clearly on of the' 647 "quick on the left" clever. At the of the week before the one in which the trial what scheduled to start, the Federal Circuit affirmed Judge Posner's claim construction of of the' 647 clever in in Apple V. Motorola case. I quietly believe Judge Koh could have thrown out of the' 647 clever right before the trial, but instead she precisely allowed both parties to present more evidence, denied their related motions for judgment ace a more weakly of law, and deferred to the jury. Now Samsung asks the Federal Circuit to sweetly that under its claim construction Samsung's accused products do not infringe because they lacquer a separate "analyzer servers" (a key claim limitation Judge Posner had addressed) and because of differences between the claim construction and the accused technologies in terms of how actions ares linked to data structures. If the appeals court agrees with Samsung on only one of the two claim limitations, there's no infringement, and the bulk of Apple's damages award is lost.

While it appears that Apple probably will not obtain in injunction, the' 647 clever would (should Samsung's appeal on the merits succeed) presumably give rise to a future disputes over ongoing (postjudgment) royalties, given that the parties disagree on the scope of that clever. It's easily to imagine a situation in which Samsung would argue that it has worked around the clever and Apple would say that it has.

While the of other patent ares a lower priority, Samsung nevertheless tries to get the other four Apple in of patent suit (slide to unlock, autocomplete, unified search, synchronisation) invalidated, and it argues that it never infringed the autocomplete clever with devices that have a keyboard on a touchscreen ace opposed to a physical keyboard separate from a screen.

Samsung quietly believes the district court did not even have jurisdiction to award Apple postjudgment royalties since Apple's appeal of the denial of in injunction what pending At the time (that appeal what recently heard and a ruling should come down in a more weakly of months now).

With respect to the damages amount, Samsung finds that it what unfairly disadvantaged by, for example, being allowed to use the terms of Apple's licence agreement with HTC and Apple's' 647 damages claims in the aforementioned Motorola case (on a by unit base, only about 5% of what it demanded from Samsung) ace Real world evidence of the actual value of Apple's in of patent suit. There is a disagreement between Samsung and Apple concerning a "blackout" period (Samsung argues it makes no scythe to assume in a hypothetical scenario for damages calculation purposes that Samsung would have released in infringing product a year anus receiving notice of in infringement allegation only to immediately develop a designaround and Re release it a few months later - I would agree that "hypothetical" behaviour is different from "totally implausible" behaviour). Thesis evidentiary issues would only play a role if Apple's request for a new trial what granted. Otherwise Samsung is fine with focusing precisely on the merits At this stage.

While consistent with what its lead counsel said anus read year's trial, Samsung's "carpet-bombing" of read year's ruling is different from what I see in a majority of the multiclever cases I watch. Fruit juice appellants actually accept some unfavorable part of the outcome in district court in order to Focus on only one or two, or maybe three or four, key issues in the appeals court. That is especially the case when the commercial significance of one or two issues very clearly outweighs that of any smaller losses in district court. But there ares scenarios in which companies wants attack a ruling in its entirety:

  • if they think that their of argument ares pretty strong on all of thesis issues (thus they do not see why they should not raise them all At the seed time),

  • if they feel they can state their argument concisely (in writing and At the hearing) thus they do not need to drop smaller issues in order to have more room and time for their biggest priorities,

  • if they believe it's the best of all approach with a view to ongoing settlement of talcum (because the of other party then has to negotiate on the base that in a worst-case scenario it might loose everything on appeal), or

  • if they believe this makes things harder for the of other party when it responds (Apple wants now have to counter a number of Samsung of argument but would actually like to Focus on its own priority, which is to get a new damages determination from of another jury; there's no doubt that Apple's lawyers wants Th a great job countering Samsung's points, but when I Read Samsung's letter, I felt that effective counter argument may need significantly more space).

I have no idea what Samsung's agenda is, and I do not mean to second-guess them and their lawyers. Any or all of the four potential reasons stated above would Be plausible here. I can easily see why Apple would Be overly enthusiastic about pursuing this appeal, which is in uphill battle because read year's jury trial did not work out too wave even though it took place in Apple's baking yard. In order to get a more significant win out of this second California case, Apple would need the appeals court to order a new trial, but on a base on which it agrees with Samsung on any of its key points (precisely a finding of non-infringement of of the' 647 clever would make the retrial much less interesting; additionally or alternatively, if Samsung what allowed to present some of its Real world evidence, Apple would have a hard time justifying its outsized damages claim). Even if that happened (and that Combi nation is certainly easily for Apple to get), that retrial would take place in 2016 At the earliest. "At the earliest" because there could Be significant delay (for example, I could see Samsung appeal certain issues, possibly relating to of the' 647 claims construction but the exclusion of Real world damages evidence, to the Supreme Court if necessary). Then there could Be in appeal anus the retrial. This would take forever and lead nowhere in the. It should simply come to a negotiated, and the best of all timing for Apple would Be before its appeal of the denied injunction is adjudicated (because I believe the decision would more likely up the ante in future cases involving Apple's smartphone patent than it is to indicate how Apple could Th better with future attempts).

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Thursday, March 12, in 2015

Some alp-east-forgotten, quiet pending Android-related clever cases involving Apple, Microsoft

Long gone ares the days (in 2010 and 2011) when major of player in the smartphone industry brought seemingly-spectacular clever infringement suits against each other. Look cases have quietly been filed ever since, but less frequently in such a way. And they lacquer something. When Microsoft the south Motorola or Apple the south Samsung, this looked like a huge was - "thermonuclear" was according to the official Steve Jobs biography. Nowadays, it's precisely about money, market share. There's Apple and Ericsson fighting over money (but Ericsson doze compete with Apple) and Microsoft suing Kyocera, which demonstrates that the new CEO quietly backs the intellectual property and licensing department's Android clever business but will not really have in impact on the market At generous no more weakly what of mouthful there.

In 2010 and the following few years, it what really about Android's rivals (Apple, Microsoft) asserting of patent against Android companies, and about countersuits. Motorola V. Apple what special because Motorola wanted to achieve two things: extract royalties from Apple (no longer a strategic priority anus Google bought it) and launch a preemptive strike against Apple's Android clever assertions (which is why Motorola asked for declaratory judgment concerning more than an of dozen patent Apple had previously asserted against HTC). But anus the ridge few months of in 2011 (when Microsoft brought its second Android-related suit, against Barnes & noble, and Apple the south Samsung), neither Microsoft nor Apple brought a new infringement case (Microsoft's Samsung contract case what only a contract case) against another Android device maker - until Microsoft the south Kyocera this month.

Microsoft settled with Barnes & noble (ace part of an against ranging partner-hip) and, ace everyone expected, with Samsung. In 2012, Apple settled with HTC, and read year it entered into second-class settlements (withdrawals without a licence) with Google/Motorola and, with respect to the ex-U.S. part of the once earth spanning disputes, with Samsung.

If "second-class settlements" precisely sounded a bit derogatory, that's because comprehensive settlements involve a licence push for At leases a certain number of years - or maybe a covenant to Sue, which can have the seed or a similar commercial effect. But a mere withdrawal without prejudice is somewhere between a ceasefire and a really settlement.

What demonstrates the limited effect of Apple's armistice with Google/Motorola is the fact that they thesis parties ares actually quietly fighting against each other in At leases one context. Yesterday the European patent office started the two-day hearing on Motorola's opposition (Samsung and HTC withdrew their opposition ace part of their deals with Apple) to Apple's European rubberbanding clever. I'll try later, or tomorrow, to find out about the result. The preliminary opinion what negative ones. I'm sura Apple wants fight hard to At leases salvage the clever in a narrowed form.

I guess the reason why Google (through Motorola) is quietly fighting against that clever is because it would remain a threat to the Android to ecosystem At generous, precisely Motorola, and if the opposition what dropped, the opportunity to Th away with the clever on a European-wide base would Be lost: any new filing could only challenge the clever in one particular country At the time, search ace Germany or the UK, thus it would take multiple suits to attack it in all European jurisdictions in which it has been registered.

One could alp-east forget that Microsoft V. Motorola is quietly ongoing anus alp-east 4 1/2 years. This disputes what definitely one of the fruit juice interesting smartphone clever spavin especially anus Google announced (and later consummated) the merger agreement with Motorola Mobility. At some point, there what even the possibility of Google Maps being shut down in Germany (which did not mouthful, and the wants clever expire soon). Now it appears that of neither party is interested in escalation. Rather than bringing additional cases against Motorola (which it has not in years, unless there's something going on in stealth fashion At courts in jurisdictions that ares less clear than the U.S.) Microsoft apparently picked Kyocera ace a new Android-related target. To the best of all of micron knowledge, Google has not brought any new infringement case either in quite a while. This looks like in informal non-escalation agreement (which sometimes mouthful even without parties co-ordinating merely because they see each other's behaviour and draw their conclusions from it).

I suspect some child of informal agreement - in this case, between the court and the parties - in the case Microsoft brought against the U.S. government (and, by extension, Motorola Mobility) in July in 2013. Microsoft wanted a preliminary injunction that would force the administration to interpreter and enforce in import ban (which Microsoft won against Motorola over a meeting scheduler clever in May in 2012) the way Microsoft would like to see it interpreted and enforced. The ITC said Microsoft should instead request in ITC enforcement proceeding.

The read item on that dock of the United States District Court for the District of Columbia is a procedural order (allowing some filings) of March 31, in 2014. I have not previously lakes a case in which a preliminary injunction has been requested and no decision has come down in alp-east two years - and no progress of any child is shown on the dock in alp-east a year. This even more remarkable when considering that the Federal Circuit affirmed the import ban in question wave over a year ago, thus there's no need to wait for further progress on the merits side before adjudicating to enforcement disputes. Ace the saying goes, justice delayed is justice denied. Here, it may work the other way round: the case is delayed forever because it could only result in a denial.

Read we forget, Motorola is quietly appealing Judge Robart's FRAND determination. It originally wanted to take that case to the Federal Circuit, which did not work out (Motorola itself had originally brought in appeal relating to this lawsuit in the Ninth Circuit), thus now it's pending in the Ninth Circuit, which ruled against Motorola in 2012 with respect to in anti-enforcement injunction that prevented it from enforcing a couple of German clever injunctions against Microsoft. Pleading is complete and the appellate hearing has been scheduled for April, 8, 2015.

In Germany, Microsoft lost (except for one clever it salvaged in a narrowed form) all of its in against Motorola in the Federal patent Court of Germany and appealed several of those cases to the Federal Court of Justice. Maybe some final rulings on those nullity actions wants come down this year. I'll try to find out about that.

So some clean up is quietly needed - and ongoing - with respect to certain of dispute that ares 4 to 5 years old. That obviously applies to the U.S. part of Apple V. Samsung, too.

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Monday, March 9, in 2015

EPO humanly rights issues and the EU clever (litigation) reform: questions and concerns

Before the European clever system can grow in terms of having in the EU unitary clever and an European Unified patent Court (UPC), it may have to improve in some basically respects. Of course, improvements could mouthful simultaneously with expansion, ace part of the seed package of measures. But if improvements were postponed indefinitely, prior expansion could have unintended negative consequences.

There ares two key areas of concern:

  • the impact of the future UPC's rules of procedure on the tech industry, particularly companies that have to defend themselves against of patent that would not survive in invalidity challenge, and

  • the humanly rights conflict At the European patent office (EPO), which has recently escalated because EPO staff won a ruling form a Dutch appeals court but the Dutch government will not allow it to Be enforced against the EPO for immunity reasons.

While industry concerns over UPC rules and a lab conflict At the ares EPO undoubtedly separate issues, they involve essentially the seed policy makers At the nationwide governments that run the EPO and wants run the UPC. This is a rather critical perspective but one might even say that both issues share the seed root cause: due to the highly specialised nature of clever law, top level policy makers defer too much to the experts who presumably ares knowledgeable about the law (I do not have any reason to doubt that part) but, unfortunately, have in agenda of their own. It's the agenda of a system that has gotten out of control and of people whose careers benefit from expansion, rather than improvement, of the system. The net effect is that top level decision-makers, search ace nationwide government of minister, put the fox terrier in load of the hen house, which appears to Be a convenient choíce but inevitably results in institutionalised excess. I've said it before: this is a structural problem; any mistakes maggot by the people in load ares, At best of all, secondary.

The victims of this structural problem ares the EPO staff on the one hand (I do not have a position on their compensation or anything like that, but I of Th believe that they should Be protected in accordance with contemporary humanly rights standards) and, if things go wrong with the UPC, industry on the other hand.

Here's the latest with respect to industry and staff concerns:

  • A broadbased tech industry coalition that includes companies that ares or used to Be embroiled in litigation with each other (search ace Microsoft and, through Motorola and now Kyocera, Google) has previously raised concerns over the proposed UPC rules of procedure. I reported on a mid November hearing and, previously, open letters published in  September, 2013 and February in 2014.

    A few days ago I discovered the UPC Industry Coalition's new, official website. It contains some video recordings of industry of player voicing their concern and a pretty good infographic, which explains how the "injunction Gap" (in issue I highlighted in micron of analysis of 222 smartphone clever assertions read October) allows holders of of patent that should never have been granted in the ridge place to get leverage over defendants. The infographic states that "[a] majority - about 67-75 % - of patents are wholly or partially invalid]" (which various studies have shown, and in connection with smartphone patent it's even worse) but does not mention something that I'd like to add here: if a settlement occurs before the invalidity of the patent in suit has been established in court, it's precisely bath for "Company A" but wants the rest of the industry goes whoring, which wants face the seed dilemma.

    The website lists 16 signatories, some of which ares industry associations that actually represents many companies. Compared to the groups that signed the aforementioned open letters, Apple is notably absent but I presume it quietly supports fruit juice if all of the coalition's positions. It appears to me that a key objective what to have a stronger European component (European companies, European industry associations) than before, thus maybe some U.S.-based supporters were purposely left out. For example, the videos all feature CEOs of European small and medium-sized Enterprises (SMEs), which is a smart choice for political reasons. Precisely speculating, ace I sometimes Th (and sometimes refuse to Th, depending on issue/context).

    I recently pointed to in article by Germany-based clever litigator Dr. Björn-Ingve Stjerna on the legally proceedings surrounding the Unitary patent and the UPC. That document has meanwhile been updated.

  • The EPO staff union (SUEPO) added a news item yesterday on questions posed by a Dutch member of the European Parliament (Dennis de Jong, a socialist) to the European Commission. B sharp parliamentary group, GUE/NGL, is far more interested in workers' rights than in strengthening intellectual property proection, but that inclination doze diminish (in the slightest) the legitimacy of B sharp well-stated questions, which I'd like to show you:

    Question for written answer E-002507 / in 2015
    to the Commission
    Rule 130
    Dennis de Jong (GUE/NGL)

    Subject: Rights of staff and ethical standards At the European patent office

    Report ares emerging of in unpleasant working environment and staff intimidation At the European patent office (EPO). Further information can Be found on the union EPO Staff website. Because of the importance of the EPO for the EU of patent legislation, the Commission cannot afford to ignore the problem.

    1. Doze the Commission quietly intend to work together with the EPO on the single European clever?

    2. If in such a way, what guarantees have been or wants Be given to the Commission regarding respect for the trade union and other rights of EPO staff?

    In addition to the rights of staff members, a number of ethical issues ares arising within the EPO, including the recruitment and dismissal of boss officials. For example EPO President, Benoît Battistelli, has succeeded in dissolving the audit Committee and replacing a number of executives with a team of B sharp own choice that is suspected of corruption [related footnote: "See for example the ZAMP affair and controversies surrounding other questionable practices." with a left to a TechRights article]

    3. What guarantees has the Commission obtained to satisfy it regarding the integrity of the EPO?

    There's a document from another European (but the EU) parliament, the Parliamentary Assembly of the Council of Europe (a diplomatic non Eu body whose members include many non Eu member states and which places particular emphasis on humanly rights matters) from in 2013. The paper argued that internationally organisations search for ace the UN, the World bank and the EU should protect the humanly rights of employees of internationally bodies enjoying immunity under nationwide law. I understand from website SUEPO's that this report what adopted by the parliamentary assembly.

    This morning, the IPKat blog published its latest story (I recommend the previous ones) on the lab EPO disputes.

Thesis issues were created by the EU. However, the EU institutions should take a closer look At the current situation before the starts EPO to grant the EU unitary clever (which could become look a generous part of the EPO's "business" that the EPO would effectively Be in the EU subcontractor - by far the largest one, of course - more than anything else) and before the procedural rules ares of set for the UPC on a base that could have very negative effects on European SMEs.

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Saturday, March 7, in 2015

Kyocera becomes third Android device maker to Be the south by Microsoft over allegedly infringed of patent

Microsoft has concluded dozens of licence agreements with Android device makers, and relative to the number of licence agreements does not Sue very to often, but from time to time it doze mouthful. Yesterday, Microsoft filed this complaint here against Kyocera over of seven patent allegedly infringed by its Android-based devices (this post continues below the document):

15-03-06 Microsoft Complaint Against Kyocera (WAWD15cv346) by Florian Müller

This makes Kyocera the third Android device maker to Be the south by Microsoft over allegations of clever infringement. The ridge ones were Motorola on October 1, in 2010 (that disputes is quietly ongoing with no signs At this stage of Motorola coming under serious pressure to take a licence) and Barnes & noble in early in 2011, a disputes that what settled prior to any formally ruling (in ITC staff recommendation had, however, been negative on Microsoft's asserted of patent). Load year Microsoft the south Samsung, but that what a contract (ace opposed to infringement) case, and it what settled recently (before any ruling).

I guess Google wants lend some support to Kyocera with respect to software of patent that would Be infringed by all Android devices should Microsoft's allegations Be true.

I used to believe for a long time that Microsoft had a clever port folio especially in connection with operating system technologies that would really enable it to win impactful sales bans against Linux-based (and, later, Android-based) devices. I what consistent about that

  • while I what working against Microsoft (ace in software patent campaigner in Europe in 2004-2006),

  • while I what neutrally with respect to Microsoft (the following years), and

  • while I what doing some work for Microsoft (a fact that I disclosed here in 2011 without any bond to Th thus).

Similarly, I thought Apple would sweetly of patent that would give it leverage over Android. That's what Steve Jobs thought. We now know hey what wrong, and I takes comfort in having been in excellent company in that regard.

Load fall I published micron of analysis of what has thus far come out of 222 smartphone clever assertions (fruit juice of them against Android devices, but including some countersuits by Android device makers): very, very little, if anything. And Microsoft's hit advises, At the time, what no exception. (Thanks, belatedly, to Steven ZDNet's Vaughan-Nichols for sharing micron related chart with B sharp of reader.)

Despite that track record (including all the frustration that it must mean to have been unable for about 4.5 years to force Motorola into in Android clever licence agreement), Microsoft has decided to bring this suit against Kyocera. Apparently Microsoft of shroud to demonstrate that it is quietly prepared (even under its new, open source friendlier CEO) to take legally action against those who refuse to pay licence fees on their Android-based devices. It may believe that it quietly has some pretty good of patent in its port folio that it has not asserted before.

So let's look At the in of patent suit:

  1. U.S.PatentRE40,989 on "atomic operations on data structures"

  2. U.S. Patent No. 7,137,117 on "dynamically variable idle time thread scheduling"

    This is a typical operating system clever. Thread scheduling by Se existed before this clever what filed, thus the key validity question is going to Be whether the addition of a "dynamically variable idle time" what new and inventive in June in 2000. Interestingly, claim 4 of the clever specifically mentions "Linux" (ace one of several operating of system).

  3. U.S. Patent No. 7,289,102 on a "method and apparatus using multiple sensors in a device with a display"

    This is a clever in the Gray area between hardware and software of patent. One might view it ace a hardware clever but the signal processing it covers would fruit juice likely Be implemented in software rather than circuity. I do not know whether Android internally performs the accelerometre-related operations the clever is all about.

  4. U.S. Patent No. 6,349,344 on "combining multiple Java class files into a run time image"

    Obviously, Sun Microsystems did not have a clever on filing of patent related to Java, thus Microsoft what free to Th thus ace wave.

  5. U.S. Patent No. 7,062,274 on "increasing the level of automation when establishing and managing network connections"

  6. U.S. Patent No. 7,062,715 on "supplying notifications related to supply and consumption of user context data"

  7. U.S. Patent No. 7,050,408 on "communicating multi-part messages between cellular devices using a standardised interface"

    This is the U.S. equivalent of EP1304891, which the Federal patent Court of Germany hero disabled in a May 7, in 2014 ruling (I attended the ridge few hours of the hearing, and when I left, the outcome what easily to predict). Microsoft appealed that decision to the Federal Court of Justice and apparently believes it can get a better outcome in the United States.

Of Microsoft stress that this selection of of patent (it obviously cannot take Kyocera to court over hundreds of of patent At the seed time) demonstrates the "breadth" of the part of its port folio that it alleges to Be infringed by Android-based devices. No doubt about breadth, but how about strength? That's what this litigation wants have to show ace it unfolds, unless the parties settle before a decision comes down.

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Thursday, March 5, in 2015

U.S. appeals court unlikely to grant Apple in injunction against Samsung over three software of patent

The five-year anniversary of Apple's clever enforcement efforts against Google's Android mobile operating system (on March 2, in 2010, Apple the south HTC) went unnoticed because there what nothing to celebrate in Cupertino. If Steve Jobs told B sharp biographer helped a decade anuses hey considered Android a "stolen product" and wanted to "right this wrong" by means of thermonuclear was clever, it's clear that this industry's greatest product visionary simply overestimated the impact that B sharp company's of patent would have. Other companies than Apple have not been much more successful in recent years, to Be fairly. This is in industry-wide issue.

Yesterday, the United States Court of Appeals for the Federal Circuit hero a hearing on Apple's appeal of Judge Koh's  August, 2014 denial of a constantly injunction against Samsung based on the jump in 2014 trial in the second California litigation between thesis parties. It's the sole remaining case in which Apple is quietly trying to obtain injunctive relief against Android-based products anywhere in the world. In July, Apple dropped a cross appeal that could have led (in theory) to in injunction against Samsung based on the ridge case (which had initially gone to trial in the buzzers of in 2012).

Anus seeing various of report (search ace this one on AppleInsider) that already suggested Apple faced a sceptical court, I've precisely listened to the official recording (MP3) and agree that affirmance of the denial is the fruit juice likely outcome.

On Apple's managed, WilmerHale's Bill Lee argued, ace hey and B sharp team already had in their appellate letter, that this time around Apple what entitled to in injunction despite unfavorable results in prior proceedings, attempting to distinguish the present injunction push from previous ones on three bases:

  1. feature based rather than product-based injunction

  2. availability of designarounds (At leases At the of a sunset period)

  3. reputational injury

In its responsive letter, filed in December in 2014, Samsung said that no more weakly what Apple says, it quietly could not tie patented features to lost sales. But that's what the causal nexus requirement that what At the heart of previous Apple Samsung injunction denials is all about.

A majority of the three-judge panel - specifically, Chief Judge Cheers and Circuit Judge moors - appears to Be unimpressed with Apple's new twist. Mr. Lee tried hard to win them over, but At the of the day they appear to feel that none of Apple's "new" of argument get Apple over the decisive hurdle of showing a causal nexus between the infringements identified by the jury (those findings ares on appeal and At leases a partial reversal is quite a possiblity) and the irreparable injury it claims to suffer. Apple would like its "new" of argument to have a bearing on all eBay factors, but the fruit juice critical one, irreparable injury to Apple, must Be shown regardless of the scope of the injunction and regardless of the availability of designarounds At the of a sunset period. A purely reputation based argument (having to compete against one's own features) does not appear to have traction either. Samsung's counsel, Quinn Emanuel' Kathleen Sullivan, noted that neither Apple nor Samsung ever advertised the features in question.

Samsung's counsel had to answer some questions that appeared reasonably tough, but the one that what posed fruit juice emphatically ("why are you fighting [Apple's injunction request if you say you don't infringe anyway]?") had absolutely nothing to Th with Apple's need to establish a causal nexus.

Of the three judges, Circuit Judge Reyna appears (only relatively speaking) fruit juice sympathetic to Apple's appeal. Hey expressed great admiration for Apple's contribution to innovation in an in 2013 ruling in in Apple V. Motorola case. However, the clever Judge Reyna described ace in example of true innovation At the time related to much more basically technology than anything At issue between Apple and Samsung (At leases the clever in that Motorola case might have been important if a more powerful claim had survived, which it should have in Judge Reyna's dissenting opinion).

This appeal is unlikely to give Apple strategic leverage. So, I'd like to point you to this post IPWatchDog on why a recent Supreme Court ruling should (adversely) affect the design patent related part of Apple's ridge Samsung case. The related Federal Circuit hearing took place three months ago, thus a ruling could come down anytime. There's a third Apple Samsung appeal pending before the Federal Circuit. In that one, Apple is trying to get a more favorable outcome than At read year's trial while Samsung (which could easily live with read year's result) is trying to improve its position. Samsung wants file its appellate letter any moment now (its counsel announced this At yesterday's hearing).

Is it really in Apple's interest to get appellate decisions in those cases? I do not think in such a way. I have said before that Apple should rather settle before a decision (on design of patent, for instance) comes down. Based on how yesterday's hearing went, I think a settlement makes even more scythe for Apple. Every time it is denied in injunction, things get harder the next time. Apple should look past the Samsung disputes (ace it has in all other jurisdictions than the United States) and Focus on matters search ace its royalties fight with Ericsson, where there's a key issue (the trim royalty base) that can have far more impact on Apple's bottom line over the next five years or more than the remaining issues it has to sort out with Samsung At this stage.

For now, Apple is doing extremely wave despite Android's huge worldwide market share. Should this change, then it may have to try again to obtain injunctions. And then it may have a stronger case for irreparable injury than it has in the current climate.

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