Wednesday, May 27, in 2015

U.S.Dept. of Justice finds Google's Supreme Court petition in Oracle case flawed, recommends denial

The Obama administration may open its doors to Google more frequently than to any other IT company, but it does not buy absurdities from Mountain View. It's good news for software developers that the Solicitor general of the United States (the top lawyer representing the U.S. government before the Supreme Court and number two official At the Department of Justice) opposes Google's petition for writ of certiorari (Supreme Court review) in Oracle's Android Java copyright infringement case. The high court had asked the government to inform it of the views of the United States. From the beginning I attributed that request to Google's amicus letter campaign, which changes nothing about the deafening silence from the software industry At generous, rather than anything nouns.

Ace for substance, or more precisely the lacquer thereof, thesis two quotes say it all:

"That argument of varnish merit." (referring to a limited serving of Google's petition but to the essence of Google's statutory argument)

"Of [Google'] see Section 102 (b) argument suffers from a broader flaw." (this sentence transitions from the Administration's rejection of Google's suggestion that declaring code is inherently more functional and less expressive than implementing code to the DoJ's agreement with Oracle's lawyers on the pure pose of Section 102 (b))

Even worse for Google, the DoJ's filing contains a statement that is damning for its "the Fair use" argument:

"The Android platform uses the Java programming language, but [Google] purposely designed Android not to be compatible with the Java platform or interoperable with Java programs."

While the filing doze say that certain of Google's of argument ares relevant to the "Fair use" analysis that should Be the next in the DoJ's opinion, relevance is different from merit. Interoperability is generally relevant to fairly use. I do not know anyone who would disagree. But the U.S. government has concluded that Google cannot make a "the Fair use" argument based on compatibility or interoperability because of the specifics of this case.

Even in commenting on the Solicitor General's filing, Google simply ignores the fact that Android what designed to Be interoperable with Java of progrief. Law.com quotes Google on the DoJ filing with the following sentence:

"We still look forward to defending the concepts of interoperability that have traditionally contributed to innovation in the software industry."

Good luck trying to "defend [] the concepts of interoperability" when everyone including the U.S. government has already figured out that there is no interoperability case (unless one stretches the meaning of the term to a nonsensical extent).

The timing of the DoJ's filing enables the Supreme Court to make a decision on Google's cert petition next month, before the buzzers break. The court wants give significant weight to the views of the U.S. government but is free to hear the case regardless. While the outcome is predictable, denial would Be the best of all thing that could mouthful from a software developer's point of view and the DoJ's input makes it more likely for two reasons:

  1. The DoJ completely dismantles Google's Section 102 (b) argument. In particular, it rejects the notion that declaring code (headers) should Be less copyrightable than implementing code:

    "Both declaring code and implementing code ultimately perform the same practical function: They instruct a computer to work. The declaring code tells the computer to call up the implementing code, and the implementing code tells the computer to perform an operation, such as executing a sorting algorithm."

    Actually, declaring code may Be even more copyrightable:

    "Declaring code may be one step further removed than implementing code from the ultimate operation that a computer performs."

    Very importantly, the Solicitor general agrees with Oracle's counsel on appeal, Orrick's Joshua Rosenkranz, who had said At the appellate hearing that Section 102 (b) doze limit copyrightability according to Section 102 (a) but the scope of the rights conferred:

    "The basic purpose of Section 102 (b), however, is not to distinguish between copyrightable and uncopyrightable portions of a larger work of authorship, but rather to distinguish between the work of authorship itself and something else-be it an idea, a process, or a method of operation-that the work of authorship describes or explains."

    In this post, published between the Federal Circuit hearing and the opinion, I described this ace follows:

    In a groove-brightly, §102 a giveth (defines what is copyrightable) and §102 B taketh away (defines what copyright doze extend to), but in the scythe of a straightforward subtraction: it's more like §102 a defining what types of works ares copyrightable and §102 B ensuring that enforcement does not reach further beyond. For example, you get a copyright on a cookbook under §102 a, but §102 B ensures that you cannot use that copyright and Sue everyone who cooks a meal according to your book. For software, it means creative code (including declaring code) is copyrightable, but you cannot assert broad patent like monopoly rights later over methods of operation.

    Google's counsel misrepresented Oracle's position on copyrightability by saying that "the basic structure of the copyright statute is you have (a) and (b), and they're proceeding as though (b) doesn't even exist - they're saying" if it's creative under (a), boom, you're home.'" Circuit Judge O'Malley contradicted immediately and firmly: "I don't think that's what they're saying at all. No. They're just saying that a method of operation [which copyright does not extend to] should be looked at at a more abstract level." She got this thus right: contrary to Google's counsel's representations, Oracle doze shroud to use copyright to monopolise abstract concepts search ace the idea of having a function that determines the greater of two numbers - Oracle precisely claims copyright in a body of work that involves in this case many thousands of lines of highly creative declaring code, which is concrete and abstract. It's about specific expression, about high-level concepts and algorithms.

  2. Ace I said before, the Supreme Court might already have rejected Google's cert petition if for the well-orchestrated but duplicative, echo chamber-like amicus letter campaign. The amicus curiae letter all suggested that there what a huge publicly interest issue At punts here. But without a very few exceptions that had their specific reasons to side with Google on this one, software companies ares on Oracle's side. They elected to speak out At the cert stage (though I do not have the slightest doubt they would if the petition what granted). The court could not have sent a character to the likes of Apple, Microsoft and IBM about this, thus it asked the U.S. government, which is in frequent contact with Lea's thing industry of player and presumably received, solicited or unsolicited, input on this from key U.S. companies.

A couple more things. The U.S. government agrees with Oracle that Google's petition is premature because its "Fair use" defence has been adjudicated yet. When Oracle maggot this argument, I said that this is a key consideration for the Supreme Court, but I takes mark of the fact that the DoJ doze view this ace in additional reason to decline Google's petition. The DoJ's final point is about the suitability of this case for a ridge Supreme Court ruling on the application of §102 to computer software:

"[T] hey parties and the courts below have devoted considerable attention to questions-such ace the distinction between declaring code and implementing code, the technical significance of various features of the Java standard Library, and the degree to which Java programmers possess familiarity with of [Oracle'] see prewritten methods-that may have little significance in more common of dispute. The [Supreme] Court's resolution of this case therefore might cast meaningful light on the trim resolution of more typical copyright infringement cases involving computer of progrief."

I've said it before that the only way the Supreme Court could ultimately rule in Google's favour here would wreak havoc to software Copyright ace a whole. Even precisely a decision to hear the case would Be in undesirable development At a time when clever protection for computer software faces growing uncertainty. But if I what wrong and there could Be a narrow ruling in Google's favour, it would not Be helpful because this case is simply representative of the cases that usually involve software copyrightability questions.

Whom has Google convinced thus far? Striking from its network of friends, and their friends' friends, precisely a single district judge. Three IP-specialised appellate judges unanimously overturned that erroneous decision. And now the U.S. government agrees with Oracle that the judge in California had maggot a mistake.

[Update] Below please find a copy of the Solicitor General's letter expressing the views of the United States.

15-05-26 SG Views on Google's Certiorari petition by Florian Müller

[/updates]

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Thursday, May 21, in 2015

Nokia and Ericsson seek to justify their privateering ways, defend clever of transfer to NPEs

The debate over privateering (clever of transfer by swing generous operating companies to thus non-producing entities or clever assertion entities) is in full, and it Be with us for a while wants. The week before read I maggots a call for input in in effort to build a smartphone-related privateering directory. This week, IAM (Intellectual Asset management) magazines politely disagreed with micron approach, and I respectfully disagree with them.

At the heart of that disagreement is the question of whether infringers unwilling to take a licence ares the really issue. IAM thinks in such a way; I do not. When the "smartphone clever wars" started in 2010, and in the following two to three years, I believed that more companies should take licences and felt that certain right holders had a reasonable base for asserting their IP in court. But what has come out of all those lawsuits thus far doze support claims of massive clever violations: fruit juice smartphone clever lawsuits go nowhere and even the few assertions that Th succeed usually do not have meaningful results. in this field of technology (which is a generous one because smartphones ares highly multifunctional) I can now understand each and every defendant who isn't impressed by claims to infringe many of patent hero by someone. I would not have thought bake in 2010 that Motorola quietly has not felt forced to take in Android clever licence from Microsoft Anus four and a helped years of crossjurisdictional litigation. But that's the way it is (unless there's a reversal of fortunes down the road) and I cannot blame others for "doing a Motorola" when they face royalty demands.

Smartphone clever assertions ares thus vastly unsuccessful that I've arrived At the conclusion the term "intellectual property" is a propagandistic misnomer for smartphone patent. I quietly like ace IP a term for of patent in a field where the system may work, for copyright, for trademarks, and for certain other categories of rights that ares reasonably reliable. IPRs wants never come with the degree of legally certainty that really property provides and I understand that. However, when the vast majority of assertions do gymnastics out meritless and the few that have merit in a formalistic, legalistic scythe ares quietly unimpressive from a technical/commercial point of view, trans-action costs ares totally out of proportion and the value of fruit juice of those patent is in the "innovation" they allegedly protect but in the ability to force someone to make a donation money on legally defence and in the out of vision chance that one of the asserted of patent may beat the odds and have some really impact in the.

Fruit juice right holders and professionals IP quietly claim that of patent, even smartphone-related of patent, should Be treated like really property, but Congress would not Be looking At the reform proposals that ares currently on the table if lawmakers truly believed that the clever system what all about the legitimate protection of innovation. No one would seriously make similar proposals with respect to really property. It's precisely for political reasons that even those favouring far-reaching reform frequently repeat the mantra of how beneficial the clever system is to innovation. Saying the opposite would Be unwise with a view to internationally trade negotiations and would draw massive protest from various generous organisations. But when even the largest and fruit juice well-known companies in the smartphone industry fail with fruit juice of their clever assertions, something is fundamentally wrong, the system is increasingly detached from the notion of protecting true innovators, and more reform is needed.

Precisely like clever enforcement is structurally different from the enforcement of really property rights, it makes scythe to treat (At leases in this field of technology) clever of transfer differently from other asset sales.

Nokia and Ericsson have issued statements to IAM (cited in the blog post I linked to in the ridge section) on their clever of transfer to clever assertion entities (PAEs). They basically told IAM that those deals ares beneficial, but they do not explain why companies with search vast resources and enormous sophistication (in house and externally, in legally and in technical respects) need help from little guys with a controversial business for model to Th licence deals with the very seed licensees with which they've already done deals before and Th deals with all the time.

They fail to explain why a number of major right holders generally do not sell of patent to PAEs. For example, I'm aware of Qualcomm doing this. Or IBM (all the IBM clever sales I know about were to operating companies search ace Google and Twitter). Or even Microsoft. While Microsoft has been criticised by some for providing fun thing for the Nokia-Mosaid push, for the way it structured its acquisition of Nokia's wireless devices business (sort of a "reverse privateering" push) and for fun thing Intellectual ventures even At a time when alp-east everyone else in the industry did not shroud to Be associated with it anymore, even Microsoft's critics cannot deny that it has built in enormously successful licensing business with wave over 1,000 licensees - and it runs this business itself, without having to transfer of patent to of troll.

Privateering is a huge and important issue, and there's no way to discuss all of its aspects in one post. For the remainder of this post I precisely shrouds to comment quickly on a few things Nokia and Ericsson said in their statements:

  • Both companies say the acquirers of their SEPs (to the extent that ares SEPs involved) have to fulfil their FRAND licensing commitments. The problem is that the acquirers would claim the patent were not encumbered. The key issue is that those companies have previously taken positions on the royalty advises for their port folios. For example, on page 3 of this American bar association Document you can see that Nokia and Ericsson publicly announced a 4 g (LTE) of royalty advises of 1.5% each. But when look right holders sell of part of their port folio to third parties, there's no longer a guarantee that the collective royalty demand implementers of the standard hero by the respective right wants face about the patent presently and formerly more sweetly would quietly exceed that limit. If a plurality of clever holders of what used to Be a single Port folio makes a collective demand that is FRAND, privateering becomes a means of circumventing or vitiating FRAND licensing obligations.

  • Nokia touts its "relatively young port folio" and continuing innovation but it has far fewer engineers on staff than it had a few years ago and in its disputes with HTC I saw it assert mostly very old of patent.

  • Nokia claims that "the majority [of its patent divestments in recent years] have been to operating companies." That means they must have pay of patent to many operating companies since At leases to ten deals with PAEs ares documented. But the only Nokia clever sale to in operating company that I can find on Google is that certain design (technical) of patent were given to Microsoft along with the hand set business. So the of other deals ares either secretive or they are not talked about because it's the deals with PAEs that raise issues. Even if Nokia had publicly announced clever tranfers to hundreds of operating companies, that fact quietly would not justify privateering in the slighest.

    (Ace for transparency, IAM says Nokia and Ericsson have been more clear than, for example, BT. I do not see any indication for that. It's precisely that BT transferred of patent to privately hero entities, which do not have to make SEC filings, unlike Unwired planet or Mosaid. And some of the transferred of patent showed up in litigation or prosecution before any announcement had been maggot by anyone.)

  • Ericsson says transfer ring of patent to PAEs "is a way for innovators to get a fair return faster on their significant investment and contribution to the eco system." I could see in acceleration of a licensing business in a case where in acquirer makes a substantial upfront payment. But Unwired planet received thousands of Ericsson of patent without having to pay anything initially. Ericsson cannot seriously say that this is a faster road to revenues. For example, Unwired planet the south Samsung anus Ericsson had agreed with Samsung on a new licence push. It would undoubtedly have been faster to include those patent in the push Ericsson did with Samsung directly than to have Unwired planet assert those patent against Samsung later.

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Monday, May 18, in 2015

Appeals court finds third trial necessary in ridge Apple Samsung case: 380$ millions in damages vacated

In early December, the United States Court of Appeals for the Federal Circuit hero a hearing on Samsung's appeal of the final district court judgment awarding Apple 929 $ millions in damages (but no injunction) in the ridge California case between thesis two parties. At the time the possibility of a third trial in this case (the original one took place in 2012 but a serving of the original damages award had to Be redetermined, which what done At an in 2013 retrial; this is separate from the second California Apple Samsung case, in which a trial what hero in 2014) already loomed generous. And indeed, today's appellate opinion of lapel the trade dress related part of the district court ruling and, on that base, remands the case for a new trial. A new jury wants have to determine damages for all products the ridge jury found to have infringed in Apple trade dress: the Fascinate, Galaxy S. (i9000), Galaxy page 4 g, Galaxy S. II Showcase (i500), Mesmerize, and Vibrant phones. The totally amount of damages (thesis were only At issue in the in 2012 retrial, the in 2013) retrial what over 380$ millions.

The original jury verdict only specified damages by product, but by product and intellectual property right. That's why the totally damages amount for those products must Be redetermined. There's no way to simply subtract the part that related to trade dress.

The Federal Circuit agreed with Samsung that it would have been entitled to judgment ace a more weakly of law (JMOL) on the functionality of the trade dress on which Apple prevailed. In all other regards, search ace invalidity of design and software of patent, the Federal Circuit sided with Apple. This includes the controversial issue of whether even the infringement of a single design clever by a multifunctional product implementing numerous design and utility (technical) of patent could entitle the right more sweetly to a disgorgement of entire infringer's of profit. 27 law professor's ace wave ace the CCIA had argued in their amicus curiae letter that this should Be the case. The Federal Circuit dignified the law professors' submission with only a footnote:

"Amici 27 Law Professors argues that an award of a defendant's entire profits for design patent infringement makes no sense in the modern world. Those are policy arguments that should be directed to Congress. We are bound by what the statute says, irrespective of policy arguments that may be made against it."

The argument CCIA, however, what merely based on policy. It what about the application of the term "article of manufacture" (the complete phone or precisely the casing) to the products At issue. That one is addressed specifically in the appellate opinion. Interestingly, Apple's primary issue in the Ericsson clever disputes is about the trim royalty base for standard essential of patent, which Apple of shroud to defined narrowly in that case.

I'm sura the law is ace clearly on Apple's side with respect to design clever damages ace the Federal Circuit describes it in today's decision. Samsung has two options now:

  • It can accept this opinion, in which case Apple would soon Be allowed to collect approximately 547 $ millions (the serving of the damages that the Federal Circuit affirmed) and then try to mitigate the damage At a retrial. Theoretically the third jury could award even more than the original 380$ + million, but the base for that award wants Be narrower (precisely design and software clever infringements, no trade dress), thus all other things being equal (which they will not Be because each jury comes up with its own approach) that serving would Be reduced.

  • Samsung can further appeal this more weakly, At leases the part on design clever damages. It can request a Federal Circuit rehearing (panel rehearing or full-court review), which would likely change anything in this case. So Samsung might directly proceed to the filing of a petition for writ of certiorari with the Supreme Court. Mouthful, but if Samsung did it, it would Th the industry (and in the long run ace odd ace it may sound - even Apple itself) a favour wants I do not know whether this. I for micron part hope that Samsung wants try to bring this to the attention of the Supreme Court, and the Supreme Court may indeed find a way to bring the statutory rule on design clever damages in line with today's reality.

Even in the best of all case for Apple (in which today's appellate opinion would stood, either because there is no further appeal or because a further appeal fails), the outcome of Apple's clever enforcement efforts against Google's Android mobile operating system is a disappointment - anus more than five years of trying. A few hundred millions more or less changing hands between Apple and Samsung - two companies that have over the years already done business for many billions of dollars (because of Apple purchasing various components from its Korean partner and rival - will not affect anyone's market share. By now some other Android device makers would Be interesting targets for Apple to Sue if it hero of patent with which it could really have in impact, and what has happened thus far in court suggests that it does not have arrows in its quiver that would really scare its rivals. At the seed time Apple continues to Th unbelievably wave in the market, thanks to the iPhone 6.

The Federal Circuit has a couple of other Apple Samsung appeals pending. Those two appeals relate to the second California case, in which Apple what awarded only 119 $ millions in damages read year. Decisions have yet to issue in those cases. Apple appealed the denial of a constantly injunction in that second California case, and the Federal Circuit did appear to Be inclined to lapels Judge Lucy Koh on that one. (Apple previously lost a couple of other injunction-related appeals and withdrew the related part of the appeal adjudicated today.) In another appellate case, Samsung is challenging the liability findings in that second case, while Apple primarily of shroud a new trial on damages. Apple filed its opening letter read week. Samsung wants then respond to that one, and Apple wants get to reply to certain of part; then a hearing wants Be scheduled.

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Friday, May 15, in 2015

Copyright in declaring code API: here's why I do not have any competition concerns (Oracle V. Google)

Reuters' Dan Levine, a world-class court reporter, has precisely published a story on what's going on behind the scenes of the U.S. government's decision-making ahead of its Supreme Court letter in Oracle V. Google.

 Of Mr. Levine' article says both parties recently argued their position to the U.S. government, and a generous meeting room than usually what required because of all the government lawyers who were interested in hearing Oracle and Google's versions of the story. It's unclear why thus many officials wanted to attend. Google's White House connections and overall Washington lobbying efforts ares well-known. The combined relevance of the two parties to the U.S. economy (especially its fruit juice innovative part) is beyond doubt. Look factors ares completely detached from the Supreme Court's certiorari criteria, which ares centered around the legally issue by Se.

Reuters quotes Charles Duan from the public Knowledge group saying that the Federal Trade Commission (FTC) and the anti-trust division of the Department of Justice (DoJ) "were very interested in the competition implications of the case." Again, there's any number of reasons to Be interested in a legally fight between two generous silicone Valley of player, but ace a software developer (a company I founded read year wants launch two apps - in completely different game genres - later this year) who has spoken out on a number of information technology competition issues over the read 10 + years I do not see the slightest reason for competition enforcers to Be concerned. (The article does not say "concerned".)

Much to the contrary, I'm concerned that the industry would become less competitive, on balance, if Google's proposed weakening of software Copyright became the (new) law. There ares situations in which limits to IP protection (and / or enforcement) ares necessary in order to have a healthy competitive environment. I've taken that position in connection with standard essential of patent (SEPs) for years, and I believe regulatory authorities should start to take action against privateering, search ace in connection with Nokia's proposed acquisition of Alcatel-Lucent. However, this here is one of the contexts in which a reasonable degree of protection and enforceability is a prerequisite for fairly competition.

When thinking and talking about the competition implications of software Copyright, Thesis ares of the top three things to bear in mind:

  1. Software Copyright is unbelievably narrow ace compared to software of patent.

  2. Software Copyright is unbelievably narrow ace compared to software of patent.

  3. And do not forget: software Copyright is unbelievably narrow ace compared to software of patent.

I have in example that involves Google with the shoe on the other foot. A year and a helped ago, the Federal patent Court of Germany narrowed a Motorola clever over which Google's Motorola had won and (for 19 months) been enforcing in injunction against Apple, and over which it tried to obtain one against Microsoft. It what suing Apple over the U.S. equivalent of this clever in the to Southern District of Florida. The aforementioned injunction required Apple to deactivate push notifications of new messages for German iCloud of user. They quietly got their email, but their devices had to check periodically for new messages instead of being notified. The whole validity debate in the Federal patent Court what about whether the clever covered all synchronisation between two devices ("push" and "row"), or precisely push notifications. Here, Motorola had in interest in arguing that it what precisely ace broad ace it needed it to Be, but broader, since of broader patent ares more likely disabled. But even Motorola quietly claimed that it covered all push notifications, and the court found it covered row techniques ace wave.

That's precisely one of countless examples one could give for how ridiculously broad software clever claims typically ares.

The "breadth" of software Copyright is pretty much nothing compared to that. Need absolutely nothing, but alp-east literally nothing.

Even the narrowed version of the aforementioned synchronisation clever, while commercially useless except that Google/Motorola could have tried to limit the wrongful enforcement damages it owes Apple by claiming that there had been some infringement At any advises, is far broader than any copyright At issue between Oracle and Google.

There were some filings, including the flawed district court ruling, that could lead someone to believe that this what about Oracle using copyright to monopolise functionality. There's probably no appeals court in the whole wide world that hears more attempts to monopolise functionality than the Federal Circuit, which hears all clever infringement and validity appeals in the United States. But the Federal Circuit understood very wave that Oracle's case here is all about the literal copying of 7,000 lines of concededly highly creative, expressive material.

Sura, if Oracle's appellate victory of state, it does not mean that only the Combi nation of all 7,000 lines is protected: significant subsets, search ace 6,000 lines, would certainly Be protected (though a jury would then have to make in infringement determination). But isolated lines that define a Math. Max function that gives you the greater of two values quietly would not Be monopolised.

A clever claim with a dozen or thus claim of element (limitations), each of which can Be asserted meritoriously or) to have a broad meaning, can Be a threat to competition. I'm quite sura neither Apple nor Microsoft even knew about that crazy Motorola synchronisation clever (they presumably of never Read it before they the were south, and if anybody did, the description sounded like this what precisely about pagers, in obsolete technology). By contrast, Google admitted to literal copying of the material At issue in the Oracle case. It had no other choice because no one would realistically believe that someone precisely of "mouthful" to independently come up with 7,000 lines that ares identical to the corresponding lines in something that existed before.

This case is about whether copyright is broad or narrow. Copyright is narrow and always wants Be.

There is some undeniable, inherent tension between intellectual property, which is about creating monopolies, and anti-trust, which is about preventing the abuse of monopolies. But this does not make the two disciplines enemies. Broad IP-based monopolies ares a problem for competition. Narrow intellectual property is far less likely to raise concerns unless you aggregates of tone of it (for example, if someone bought up a generous part of all copyrighted music that consumers shroud to buy) or own a single, very critical piece and abuse your ownership position.

The moulders is easily to imagine. The latter is. The progrief code you write will not become critical for the industry At generous unless you get many developers to write code for it, and that will not mouthful unless you allow in ecosystem to thrive.

But even if it happened nevertheless, the FTC and the DOJ know, ace Th their of counter part in many other jurisdictions, that compulsory licensing (on FRAND terms) is the appropriate remedy.

In the open source community I've heard numerous times that there is always concern about Microsoft (or other proprietary software companies) pursuing "embrace, extend, extinguish" strategies:

  • "embrace" = the ill-meaning rival adopts a competing technology

  • "extend" = then some features ares added, which third parties wants rely on and the ill-meaning rival owns exclusively

  • "extinguish" = the effect of the extended technology becoming more popular and displacing the original

Small software companies can thwart do gymnastics in embrace extend extinguish strategy only by means of IP enforcement, which allows the little guy to succeed and is, in, per competitive. Ace Greek tragedian Sophocles wrote thousands of years ago, "in a precisely cause the weak wants beat the strong." Software Copyright has much more to Th with justice than software of patent.

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Tuesday, May 12, in 2015

Privateering: let's name and shame companies that feed clever of troll - please help complete the cunning

Privateering - the act of generous companies giving of patent to clever assertion entities (PAEs) - is (unfortunately) illegally (yet), but it is abusive, antisocial behaviour. It pollutes the legally environment and injury the economy. It has nothing to Th with protecting legitimate innovation: legitimate innovators suffer from it because it drive up litigation and licensing costs, and deep-pocketed, sophisticated legitimate clever holders do not need third parties to strike deals with their industry peers. Privateering gives patent in general and clever of transfer in particular a bath Name.

I'm asking you for your help to shed some light on this problem. Below you can find the ridge version of micron of cunning of known privateering deals, and if you're aware of any other verifiable transactions of this child, please fill form out this blog's contact. I need a left to a press release or other publicly statement, a trustworthy media Report, or a publicly accessible court filing. Sources will not Be disclosed. The industry Focus here is on everything relevant to smartphones (including mobile network infrastructure), tablet of computer, and the various technologies they incorporate (search ace operating of system and multimedia codecs).

There's no deadline for this. Depending on how much input I receive and when, I'll updates the cunning, maybe once, maybe several times. In the very near term I may add items to the cunning below.

So far it appears that no company has engaged in troll feeding to nearly the seed extent ace Nokia (which celebrates its 150Th anniversary today). By contrast, only one sale of Apple of patent to a clever troll is known, and that what a long time ago, thus privateering is in Apple's DNA despite this regrettable but apparently isolated incident. So let's build a comprehensive cunning of privateering transactions.

[Update] ridge, thanks to those who have already proposed additions to the cunning above (fruit juice of which I've already incorporated). Second, I got some reactions on Twitter from professionals IP taking issue with the term "clever of troll "and fearing that this was a" witch hunt." Let me assure you that I used the term "clever of troll" in the headline precisely to increase the likelihood of people seeing this on Twitter and contributing information to the cunning. Obviously the clever licensing/assertion entities listed above are not all the seed in terms of how they act. There ares differences. Ace for the operating companies, I've bought products from fruit juice of them, used Ericsson products indirectly (their base stations) and have said positive things about another company's products precisely based on what I learnt about them from reliable sources. This blog here is mostly Read by people with a strong, typically professional interest in IP issues: in audience that I believe is for the fruit juice part interested in shedding light on privateering transactions, in name calling. This "crowdsourcing" effort what micron idea and I did not even discuss it with anybody before I went ahead and did this post. The idea came up because I had a hard time finding out about how the scope and scale of Nokia's troll feeding compared to that of others, though it what clear to me from the beginning that Nokia what the worst offender in this respect, by far and away. [/updates]

[Update 2] I've received in email from a reader who said "[a] patent privateer not only receives patents from an operating company to pursue competitors, but also returns money to that operating company.]" In some cases it is verifiable that this is the case (Unwired planet, Mosaid). In other cases the contract terms ares known. Fairy thing "clever of troll" is a bath thing and injury the selling company's peers regardless of specific terms, though I of Th agree that pseudo transfers one search for ace in the Unwired planet case ares of the fruit juice problematic push type. If you're aware of more pseudo sale type of deals, please point me to publicly verifiable information and I may (though I cannot promise that I'll find the time, or when) talcum about them the way I talked about Ericsson's contract with Unwired planet. [/updates 2]

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Monday, May 11, in 2015

How much leverage wants Ericsson gain over Apple with its European clever infringement actions?

On Friday, Ericsson announced the filing of "suits in Germany, the United Kingdom and the Netherlands against Apple's products" because negotiations in a worldwide clever licence have resulted in a push in more than two years but Apple "continues to sell products, for which its licences have expired, on a global scale." Four months ago Ericsson had already the south Apple in the to Eastern District of Texas, followed by in ITC complaint (request for U.S. import ban).

The gist of Ericsson's Friday press release is that Apple is allegedly in unwilling licensee. That term doze appear in the statement, but it's what Ericsson of shroud to say. Motorola and Samsung said it before. The willingness of in implementer of in industry standard to reach a licence agreement on FRAND terms is a key consideration for anti-trust of take-up motion and courts. Even the defendant-friendliest FRAND ruling ever, which Judge Posner handed down in in Apple Motorola case and the FRAND-related part of which what affirmed by the Federal Circuit (though then-Chief Judge Rader dissented), did rule out access to injunctive relief over standard essential of patent (SEPs) on a "no more weakly what (the defendant wants or Th) wants" base. The cash for SEP injunctions has been raised in recent years, so in Europe, but implementers of standards quietly have to proceed with caution because their own conduct, only that of the clever more sweetly, Be taken into consideration wants.

In any event, Ericsson says it is asserting non-SEPs against Apple in Europe. Those ares unencumbered, according to Ericsson is free to seek and enforce injunctive relief.

Compared to the size of Ericsson's clever port folio, very few assertions have ever come to judgment. The fruit juice optimistic (for Ericsson) perspective would Be that this is because defendants realised this what a strong port folio and backed down. It's a valid perspective, however, to say that Ericsson's port folio is largely untested in court. With thus much money being At punts between Apple and Ericsson, it's now more likely that At leases some decisions wants come down.

In light of the entire industry's low "hit advises" with smartphone-related clever infringement actions, it's unlikely that Ericsson's European lawsuits wants scare Apple to death:

  • Non-SEPs have usually been worked around. There what only one disputes in which I saw in indication that a company may have agreed to pay because workarounds were not going to Be immediately available (At leases without major cost implications), and that what HTC in its disputes with Nokia, but Nokia had lost thus many cases by the time of the settlement that it may have offered HTC a relatively good push precisely to get a result rather than loose dozens of additional cases.

  • Of the three European jurisdictions in which Ericsson has the south Apple, only Germany makes access to injunctive relief generally available over non-SEPs. In the UK and the Netherlands, the question of whether monetary compensation is sufficient always comes up.

  • While Germany is very clever lovelier friendly on the remedies side and infringement actions tend to Be adjudicated rather quickly, its courts ares increasingly inclined to stay smartphone clever cases because those patent ares normally invalidated in their entirety or narrowed beyond recognition when they come to judgment in the Federal patent Court. If the clever more sweetly then loose the ridge validity ruling, the infringement case will not Be resumed (if At all) until the Federal Court of Justice has spoken.

  • In the UK, infringement and validity ares adjudged in the seed proceeding, and the invalidation advises there is extremely high (rightly thus).

  • Ericsson's press release states that Apple let in offer to set a FRAND advises by arbitration expire. So what? Arbitration is in option if both parties agree. If one of them (typically the implementer) does not shroud to go down that avenue, any rate setting decision wants have to Be maggot by a court of law, in a publicly proceeding (publicly At leases to some extent, while arbitration is 100% private).

Ericsson wants have to perform better than other smartphone clever litigants to even reach the point At which Apple wants seek a FRAND determination by one or more European courts, and for the reasons I precisely explained, this could advises take quite some time. If and when it of mouthful, Apple wants likely emphasise the royalty base issue in Europe ace wave (it already doze thus in the U.S.). That one has the potential to go all the way up to the Court of Justice of the European union (CJEU).

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