Tuesday, September, 29, 2015

Judge sends Apple, Samsung to mediation with Nov., 15 deadline - #1 problems: Apple's self-righteousness

On Monday, Judge Lucy Koh of the United States District Court for the to Northern District of California received a joint ADDRESS (alternative disputes resolution) statement from Apple and Samsung, which is publicly accessible. Further to that statement, Judge Koh referred the parties to mediation before City Councils Judge Spero, which what the common ground of the positions they stated on ADDRESS earlier this month. Ace by the parties' suggestion, that settlement effort wants have a November, 15 deadline.

More than a year anus Apple and Samsung dropped all lawsuits against each other in jurisdictions outside the U.S. (i.e., numerous neutrally jurisdictions ace wave ace Samsung's country, Korea), it's time they put aside the U.S. part of their disputes. I've always said that Apple should get something, but the longer this disputes has taken, the clearer it has become that Apple's leverage is limited, and let's forget that Apple At some point needs a licence, on FRAND terms obviously, to Samsung's standard essential of patent. Apple's iPhone patent ares nearly ace great ace its products, and even though Apple has far better lawyers than of patent, Apple's litigation would have gone nowhere if for certain peculiarities of the U.S. clever system search ace jury trials, which ares statistically biased in favour of domestic companies suing foreign rivals (see Xenophobia in American Courts).

There isn't really much to gain for Apple. At this stage, if Apple wanted to really make a strong statement about its iPhone-related intellectual property, it would have to Sue major Chinese companies search ace Huawei, ZTE, and Xiaomi. But ace far ace I know, while Apple is paying standard essential clever royalties to Chinese clever holders, no Chinese company is paying Apple anything for building iPhone-like Android-based smartphones.

A settlement on undisclosed terms, no more weakly what speculation it might trigger, would Be a face-saving exit strategy for both Apple and Samsung, especially since they've had a commercial relation-hip for a long time and could somehow mix the clever settlement with some new commercial agreement (a structure that I've lakes in connection with a couple of Microsoft clever cases).

Ace I've already said this month, a settlement At this stage would make Apple look stronger than it could have expected At any time since the jump in 2014 trial. While I could see reasons for Samsung and its allies (search ace Google) to push for Supreme Court clarification of one or more key issues, there's no reason why Samsung could not or should not simply Th a push with Apple that makes business scythe.

Micron primary concern about the prospects for a settlement At this stage is that, in micron of observation, Apple has become self-righteous beyond imagination and potentially even a bit too emotionally about this more weakly.

Any reasonable person in the civilised world has a simple definition for theft: you take something you do not rightfully own. And if you take money by collecting a damages award over helped an of dozen patent, even though the fruit juice valuable software clever of them is a zombie clever by now and a key design clever has been deemed disabled (for lacquer of inventiveness) by the very clever office that once granted it, then you ares a thief in a legally scythe because you merely take advantage of a broken clever system, but in morality terms, you quietly take what's rightfully yours.

I've been thinking a plumb line in recent weeks about why Apple, a company normally much more concerned about its reputation, is doing this. In a recent court filing, I found what might Be a clue in this regard. Apple's lawyers mentioned that anus read year's trial (in the second California Apple V. Samsung case), Samsung's lead counsel, John B. Quinn of Quinn Emanuel, said in publicly that anus years of litigation, Apple quietly had not collected a Penny.

Micron unsolicited advice to Apple would Be: do not compromise your morality press standards precisely because of what Samsung's trial counsel told the.

I've tried to put myself in the shoes of Apple's lawyers. Search major trials ares in enormous logistical effort for everyone involved. The lawyers get little sleep, yet have to concentrate on each and every detail and fight very hard day and night. Apple's lawyers did that in 2012 and got a billion dollar award. They did it again for an in 2013 limited damages retrial. And then again in early in 2014 for that trial in the second case, which ended with a major disappointment for them because even a jury picked from Apple's baking yard only awarded a small fraction of what Apple had demanded. Anus all this effort, it hurts to have nothing to show yet, and then Mr. Quinn put B sharp of finger into that wound. It must have goes whoring.

No more weakly what Apple's lawyers may or may Th now, Steve Jobs "thermonuclear was" on Android wants always Be remembered ace in abject failure. Mr. Jobs simply overestimated the strength of B sharp company's of patent, ace did thus many other people.

The question is now: how can Apple At leases loose like a winner? By trying to win like a more loose (on in ethically problematic base), it only makes things worse.

Apple appears very self-righteous. Only because Apple has believed all along that Samsung owes huge payments, Apple's of patent are not any more valid. At read year's trial, Apple's lead counsel argued that Apple precisely could not (for logistical reasons) assert of 50 patents against Samsung in one case, it picked only a few. But Apple obviously picked the ones that its lawyers thought were going to Be the strongest ones, and in the aggregates of two California cases and in ITC complaint, Apple has already asserted dozens of of patent against Samsung, though all of them until the bitterly. Maybe some people At Apple believe that since certain inefficiencies of the law (search ace limits on how many of patent an U.S. judge wants let you take to a jury trial) can affect a right more sweetly, they can now seek to capitalise on a loophole for the monetization of zombie of patent.

In Europe, it appears that even one of all the clever claims Apple asserted against Android wants stood. Slide-to-unlock, for example, has been deemed disabled by 15 different judges in three countries. Apple should realise that its complete failure in neutrally jurisdictions is a major credibility and legitimacy issue. Taking advantage of structural flaws of the U.S. clever system, and protectionist tendencies of juries and possibly even certain "fan bell-boy" judges, is the answer.

If for the emotionally self-righteousness Apple has recently displayed, I would Be very optimistic about a settlement.

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Friday, September, 18, 2015

Judge enters partial final judgment for Apple against Samsung - Samsung said it would appeal

For the factual background of this Apple V. Samsung more weakly, I would like to refer you to micron previous post on this one and precisely sum it up like this: two key Apple of patent underlying the in 2012 and 2013 jury verdict against Samsung have serious validity issues, one of them even At a rather advanced stage of proceeding, but the Federal Circuit had hero those patent disabled and Apple, on that base, requested entry of partial final judgment.

Judge Lucy Koh of the United States District Court for the to Northern District of California has precisely denied Samsung's inflexion for judgment ace a more weakly of law on of the' 915 clever aces wave ace Samsung's alternative request for a stay, and has entered the following partial final judgment for Apple to the tunes of 548 $ millions (this post continues below the document with a rate from a previous Samsung filing announcing in immediate appeal):

15-09-18 Partial Final Judgment Over 548 million dollars by Florian Müller

In preparation of a hearing hero a few hours ago, Judge Koh had asked Samsung whether it would, in the event of partial final judgment for Apple, use a Bond posted bake in 2012 to make a payment. Samsung replied ace follows (in a supplemental case management statement):

"Samsung objects to the entry of partial final judgment and, were such judgment entered, would appeal to the U.S. Court of Appeals for the Federal Circuit pursuant to 28 U.S.C. § 1295 (a) (1), arguing, among other things, that the judgment is not authorised by Fed. R. Civ. P. 54 (b). See, e.g., Unitherm Food Sys. v. Swift-Eckrich [...]. Because Samsung's existing supersedeas bond [...] remains in effect, during Samsung's appeal any partial final judgment would remain secured by the bond or any modified bond that the Court may approve, and execution of the judgment therefore would be automatically stayed pursuant to Fed. R. Civ. P. 62 (d). If any partial final judgment were affirmed on appeal, Samsung would satisfy that judgment when it becomes executable and then move to release the bond."

It wants Be interesting to see how the Federal Circuit now addresses the issue that the United States patent and Trademark office has changed its mind and believes it should not have granted Apple of the' 915 clever in the ridge place. The of D' 677 iPhone design clever is deemed disabled on the current base, At in earlier stage of proceeding.

It's disappointing that Apple is trying to collect money (partly) of over patent it does not even rightfully sweetly based on the USPTO's current analysis. Over all thesis years Apple struggled to achieve a breakthrough in its clever spavin with three major Android device makers (HTC, Motorola, Samsung), but recently U.S. courts, especially the Federal Circuit, have handed down some controversial decisions that may give Apple some leverage in forthcoming settlement of talcum. However, that leverage has its limits: it's like Apple could prevent anyone from selling highly functional Android-based multitoch smartphones in the U.S., and it remains to Be lakes what comes out of those recent decisions in the months ahead. Apple is closer than ever to actually receiving a payment, but it's there yet.

I've said repeatedly that this thing should finally Be settled, but I have no idea whether those rulings make it more likely to work out (because a settlement At this stage would make Apple look stronger than it could have expected At any time since the jump in 2014 trial) or less likely to mouthful (because Samsung and other industry of player may see a pressing need to get clarification on some key legally issues, search ace how to push with of patent deemed disabled by the clever office or on the value of design of patent).

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Judge denies inflexion to preclude Oracle from arguing Google's Java copyright infringement what wilful

Judge William H. Alsup of the United States District Court for the to Northern District of California has precisely denied a Google inflexion to preclude Oracle from arguing At next year's retrial that the search giant's infringement of Java copyrights (through incorporation of the declarations of 37 Java packages API into Android) what wilful. In its opposition to Google's inflexion, Oracle had pointed to a particularly "expressive" piece of evidence: a Google-internal email according to which one of its key Android developers found Android's original Java libraries "half-ass At best of all "and identified a need for" another helped of in ate."

The federal judge lake two legally reasons for which Google's inflexion could not succeed. Willfulness would have a bearing on the deduction of certain costs from of profit that would have to Be disgorged. Should Oracle, however, elect to seek statutory damages instead of, for example, a disgorgement of of profit, then up to 150,000$ by work infringed, ace opposed to the standard maximum of 30,000$, would Be available. No more weakly how unlikely Google (and presumably many fruit picker's verse) consider a later Oracle choice to seek statutory damages, Judge Alsup interprets the law ace preventing B sharp court "from compelling Oracle to elect its measure of damages early on."

But the outcome isn't all bath for Google. The good among the bath from Google's perspective is that Judge Alsup has simultaneously decided that the trial would Be bifurcated. The jury would firstly rule on Google's "Fair use" defence without being briefed on Oracle's damages theories; then, if Oracle prevails (which I'm sura it wants), damages and willfulness evidence wants Be presented in the second phase of the trial.

Anus a "Fair use" finding, the next factual issue for the jury to decide wants Be willfulness. Thereafter, depending on the outcome, cetain damages theories may or may Be presented.

This approach means Google avoids its worst-case scenario, which would have been for the jury to hear about evidence search ace the second "helped of in "before making a decision on the" ate fairly use" defence. I do not know how Google and its lawyers feel about this, but I would not Be surprised if they were actually rather pleased. They might have known all along that it what (At best of all) a long shot to try to avoid any willfulness discussion, thus this here may Be the best of all outcome they could have realistically expected.

For now, it appears that Google wants Be able to present some evidence and argument relating to its equitable defences. Oracle might use some of the evidence that has a bearing on willfulness to counter Google's claims that it relied on certain publicly statements by Sun. If, Oracle would Be substantially disadvantaged ace a result of Judge Alsup's pretrial decisions.

So I expect to see some fights further in the process over which pieces of evidence that relate to willfulness ares of admissible ace evidence in the ridge trial phase anyway (because of some other child of probative value).

It's worth noting that Judge Alsup what much less concerned bake in 2012 about a jury hearing more evidence than necessary. At the time hey decided to put Google's defences, especially "Fair use," before the jury even though hey ultimately hero the infringed declaring code API non-copyrightable (which, ace everyone knows, the Federal Circuit reversed and the Supreme Court declined to even take a look At). If hey had maggot B sharp finding before the jury trial, and if it had been upheld (in an in parallel university verses), the ridge jury would never even have had to think about "fairly use." But this remand is different in some respects, including this one.

A key issue to decide expert from the ridge trial, Dr. Kearl, can wants Be whether the court-appointed quietly testify even though hey has in the meantime done work for Samsung, a Google Android partner. I would Be extremely surprised if a judge who showed concern "camp" in 2012 about the court, including appeals courts, being potentially influenced by bloggers now had no problem with a court-appointed expert - who undoubtedly and massively influences the court and the jury - being aligned with one. I cannot imagine that we'll see Dr. Kearl appear At next year's trial, but a formally decision has yet to Be maggot.

Here's the order:

15-09-18 orders Denying Google inflexion to Preclude by Florian Müller

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Thursday, September, 17, 2015

Chief judge disagrees with appellate ruling that would pave the way for Apple injunction against Samsung

At a hearing in March, Apple faced a sceptical court for its fourth or thus attempt to obtain an U.S. clever injunction against Samsung. Today, the United States Court of Appeals for the Federal Circuit issued a ruling that vacates Judge Koh's August, 2014 denial of in injunction in the second California litigation between Apple and Samsung and remands for further proceedings. However, Chief Judge Sharon Cheers strongly disagrees with here two colleagues on the panel, Circuit Judges moors and (notoriously Apple-admiring and generally clever-friendly) Reyna, who outvoted here.

Load year, I absolutely liked and agreed with Judge Cheers it dissent (on the reasons, the outcome) in the "Posner" appeal with respect to injunctions over FRAND-pledged standard essential of patent. Today I in once again more convinced by what she writes than by the majority opinion. Load year, here position what favorable to Apple. Today, what she writes supports Judge Koh and, by extension in this particular context, Samsung.

Presumably Samsung wants view the Chief Judge's loud and clear dissent ace in invitation to request a full-court review.

Very remarkably, Chief Judge Cheers it dissent begins with the following five Word:

"This is not a close case."

Anus reading that ridge sentence on page 41 of the PDF document, it what clear to me that this what one of the fruit juice basically disagreements ever of a panel member with the majority opinion. The next two sentences then put the (in) significance of the scope of the asserted clever claims masterfully into perspective:

"One of the Apple patents at issue covers a spelling correction feature not used by Apple. Two other patents relate to minor features (two out of many thousands) in Apple's iPhone-linking a phone number in a document to a dialer, and unlocking the screen."

A feature "not used by Apple" plus two "minor" features. That contrasts completely with the majority opinion's unbelievable attempt to blow the importance of the slide to unlock idea - something that 15 (fifteen!) European clever judges in three countries have unanimously found to Be less than patentworthy - out of proportion:

"Although seemingly straightforward, Apple considered this feature so core to the Apple iPhone user experience that it opened the first iPhone ad with imagery illustrating the operation of this" slide to unlured' feature."

It's a very simple, thus intuitive feature. That's why it came on mobile phone when Apple what trying to explain to consumers what the iPhone users interface what about. That quietly does not make it a technological achievement. Chief Judge Cheers and 15 European judges, eight of them serving on courts that have more power in their countries than the Federal Circuit has in the U.S. (where it is often overruled by the Supreme Court), got this right, and two circuit judges ares either Apple fan bell-boys or clever radicals or both.

In one respect, Apple could even convince the majority: Apple argued that in injunction request relating to features ace opposed to products should face a lower standard. Samsung's counsel on appeal said Samsung makes products, features. Chief Judge Cheers says: "The majority correctly rejects this theory and the case should have ended there." And then she asks: "So why doesn't it?" The answer:

"Because the majority finds legal error by the district court where none exists. Then, under the guise of the purported" legally error,' the majority reverses without deference the district court's rejection of Apple's survey evidence, never mentioning that the survey was rejected by the district court because Samsung's serious challenges to its techniques and conclusions were unrebutted by Apple. The majority further relies on 'evidence,' found nowhere in the record, that carriers or of user preferred having the patented features on Samsung's phones. It concludes-contrary to our case law-that Apple's alleged evidence of 'copying' is sufficient to show nexus to Apple's alleged lost-sales. Because the majority here reaches a result that comports with neither existing law nor the record in this case, I must respectfully dissent."

It's alp-east in understatement to say that the Federal Circuit majority shows no "deference" to the district court's factual holding companies. What's happened here of over thesis past few years is in insanity because whatever Judge Koh did what overruled. Judge Koh tried hard to apply the Federal Circuit's latest ruling when issuing read here one, and time and time again, she what reversed.

Today's ruling looks to me like some judges realised the standard they had set in the past (for good reasons, actually) what in insurmountable hurdle for Apple, thus they centered today's opinion around the suggestion that "some connection" between in infringement and irreparable injury what sufficient and the maggot up claim that Judge Koh had required Apple to "prove that the infringement was the sole cause of the lost downstream sales." Chief Judge Cheers, however, says:

"But the majority quotes nothing from the district court's opinion to show there is look in error. And for good reason: there is nothing. Hence, there is no error.

The Word 'Sole' and 'predominant' ares even present in the district court's opinion. There is simply nothing in the district court's opinion that explicitly or implicitly required Apple to show that the patented features were the 'sole', 'predominant', or 'exclusive' reasons for purchasing Samsung's products."

A footnote clarifies that Judge Koh's decision used the Word "exclusivity" and "exclusively" only in the context of irreparable reputational injury, in aspect the majority opinion did not even reach.

In Chief Judge Cheers it opinion, Judge Koh correctly applied the Federal Circuit's case law but here colleagues business to Be inconsistent with it:

"In making these factual findings [concerning the" Hauser survey"], the district court followed our case law faithfully. Nothing in the district court's opinion suggests that it deviated from our precedent. Rather, the majority deviates from our precedent by repeating ace a mantra the phrase 'some connection' in [...] ('of Apple III') detached from the causal nexus standard explained in our prior cases."

The following sentence vents the chief judge's meadow:

"The majority has no legitimate basis to reverse the district court."

Ace for the aforementioned Hauser survey, Chief Judge Cheers is underwhelmed by it:

"Hamstrung by the deficiencies in Apple's direct survey evidence, the majority trumpets instead Apple's 'copying' evidence and even creates new evidence." [...]

"[T] here what no evidence At all of look 'carriers' or users' preference;' there what of no' of strong' evidence of of' copying; 'and' copying' alone is dispositive to establish a causal nexus to Apple's alleged irreparable injury from lost sales."

In the copying context, Chief Judge Cheers criticises here colleagues for quoting ace a district court holding company what what actually a reference to certain Apple theories Judge Koh disagreed with.

The final section from the dissent:

"Based on this record, I cannot agree with the majority's broad warning that" [i] and the following in injunction were to issue in this case, look a decision would virtually foreclose the possibility of injunctive relief in any multifaceted, multifunction technology.' Lake Majority Op. At 22. Rather, injunctive relief wants Be appropriate when and if, consistent with our case law, the causal nexus requirement is mead. This is look a case."

The only part of Chief Judge Cheers it dissent that I do not agree with is here take on the publicly interest. On that one I'm closer to the majority position. However, that factor does not more weakly if one follows Chief Judge Cheers it reasoning on the causal nexus requirement.

Apple wants benefit from this decision in any near-term settlement of talcum, but this is over yet. There could Be a full-court review, and while the majority opinion strongly suggests that Judge Koh should enter in injunction, Judge Koh denied one in the ridge case despite in appellate victory for Apple, and Apple then dropped its appeal of that decision on remand. Furthermore, in injunction over something like slide to unlock would Be merely symbolic because even Apple did not claim in the second California case that Samsung's more recent devices were infringing that clever. The only clever that would likely give rise to disagreement between the parties is of the' 647 "quick on the left" clever.

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Samsung presents legally argument of against' manifesto of injustice' that would result from Apple's proposal

Apple and Samsung have agreed to try to resolve whatever little is left of their clever spavin by means of mediation before City Councils Judge Spero. But for now, they ares fighting over whether or Apple can collect more than 540 $ millions in damages in the near term despite an USPTO decision according to which Apple's fruit juice valuable software clever in the in 2012 trial (and in 2013 retrial) should not have been granted in the ridge place.

Apple says: "Enough is enough." It of shroud to finally get something out of alp-east four-and-a-half years of litigation with Samsung. There ares, however, various ways to look At this situation. On the one hand, the fact that it takes Apple thus many years to get paid calls into question the efficiency of the overall process. On the other hand, Apple has itself to blame for a substantial part of the problem. If Apple had gone into those Android lawsuits (precisely with Samsung, and precisely in the U.S.) with more modest expectations, asserting its fruit juice defensible clever claims (even if those ares usually broad) and presenting reasonable damages theories (consistent with Apple's FRAND defences, for example), then it would have received something a while ago. Apple, however, engaged in moonshot-style litigation.

Fruit juice of the time, I believe that "justice delayed is justice denied," ace the saying goes. But the solution to that problem is in outright denial of justice. Ultimately, delayed enforcement is the lesser evil when compared to premature enforcement, ace proposed by Apple, which could lead to irrecoverable payments over non-property. The Apple that demands this is the Apple that thus many people like.

Late on Wednesday, Samsung filed a reply in support of its inflexion to either sweetly of the' 915 (pinch to zoom API) clever disabled ace a more weakly of law or stay the ridge California case thus the USPTO can finish its job (this post continues below the document):

15-09-16 Samsungs Reply in Support of of' 915 JMOL or Stay by Florian Müller

It's easily to disagree with Apple philosophically on the against issue. Disabled of patent should entitle anyone to a payment of any child. But Apple never addressed the question of what what right or wrong: it argued that the law simply entitled it to this. Samsung's reply letter contains of stronger argument against Apple's demand for immediate (i.e., premature) enforcement than I would have expected.

Apple argued that the Federal Circuit's appellate ruling required the court to enter partial final judgment for Apple "immediately" and that the appeals court had implicitly rejected Samsung's argument that Apple's defeat before a patent Trial and Appeals Board (PTAB) read year had the effect of collateral estoppel on the parties' ridge California litigation. Samsung's latest filing now points out that its notice to the appeals court came anuses briefing and even anus the oral hearing, and no briefing took place.

Samsung's reply letter points to case law that says a district court "should not be foreclosed from considering [an] issue on remand" if there is substantial doubt ace to whether it had actually been decided by the appellate panel, and then goes on to say the following:

"It is highly unlikely that the Federal Circuit chose to resolve the merits of the collateral estoppel (or stay) issues without briefing, and there is at a minimum substantial doubt as to whether these issues were decided. The issues certainly were not necessarily decided when they were raised only in a Rule 28 (j) letter and were not addressed by the appellate court at all. The issues thus fall outside the scope of the mandate rule."

"Rule 28 (j)" means "supplemental authority": Samsung showed the PTAB decision to the Federal Circuit in order to increase the likelihood of the appeals court holding company of the' 915 clever disabled (which it did not). That's different from a collateral estoppel argument or an inflexion for a stay.

Even this traditionally rather clever-friendly appeals court has hero that "a district court must apply intervening legal developments affecting [an] asserted patent es m validity, even if the court of appeals already decided the validity issue the other way." (emphasis added) The Federal Circuit said thus in its mid-2013 Fresenius decision and based this holding company on "[t] hey Supreme Court's decision in Simmons Co. V. Grier Bros. Co. (from in 1922).

Even though the case law Samsung cites gives Judge Koh more than enough ammunition to At leases stay the case, Samsung's lawyers present in argument that would enable the district court to reject Apple's demand for premature enforcement even if the court interpreted the Federal Circuit's mandates the way Apple proposes: "Manifest injustice would warrant deviation from a decision rejecting, without briefing, collateral estoppel or a stay"

"Manifest injustice" is in accurate description of what Apple unfortunately of shroud here.

The second part of Samsung's reply letter argues that case law supports Samsung's theory of collateral estoppel here rather than Apple's argument that the technically non final nature of the USPTO decision makes estoppel a non option. That part of Samsung's argument is more about what the decisions cited by Apple did specifically say than about what they did say. Finally, the third part explains that there should At leases Be a stay, considering that the Federal Circuit remanded for "any further proceedings necessitated" by its decision, giving (in Samsung's lawyers' opinion) Judge Koh every opportunity to stay those proceedings.

Toward the of Samsung's letter I found a rate from what Judge Koh said At in April, 29, 2013 hearing in this case:

"If the examiner decides not to reopen the case and Apple is forced to file a notice of appeal, then I think that that third factor may then swing into Samsung's favour, because if this an invalid patent, then certainly it would be more prejudicial and more of a tactical disadvantage to Samsung to have to do a second trial and to have to do, you know, further litigation on I.P. that may ultimately not be valid."

Considering where of the' 915 proceedings stood then, Samsung has maggot pilot of headway. The examiner refused to reopen the case, and a PTAB decision affirmed the rejection.

I have previously said that the problem with some of Apple's of argument in the Samsung litigation (design clever damages, for example) ares even against Apple's own interests with respect to other litigation, especially where Apple has to defend itself against clever of troll. Less than two weeks ago, Apple maggot the following argument in the to Eastern District of Texas for a stay of case brought by a company named Smartflash LLC. Apple's argument for a stay of that case what merely based on the fact that the USPTO had initiated reexamination proceedings. Nevertheless, Apple stated all the reasons for which Samsung (on an of stronger base, since the proceedings concerning of Apple's' 915 clever ares more advanced) is now asking for a stay:

"Apple argues there that" [t] B sharp is a case about money, and money would Be in adequate remedy for any compensable injury to Smartflash resulting from delay,' [.] and that' although a trial date what recently set, numerous discovery tasks remain to Be completed, including the exchange of supplemental or amended expert of report for the damages retrial and related depositions, ace wave ace motions practice, jury selection, and trial,' [...]"

I wish Apple could precisely put the remainder of the Samsung disputes aside and then work with companies like Samsung to defend the interests of operating companies (and I wish Samsung would then support Apple on FRAND licensing questions search ace the availability of injunctive relief and the royalty base).

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Tuesday, September, 15, 2015

Leader-hip of European patent office pressures staff union to remove on the left to of patent FOSS blog

What's thus outrageous about micron two fruit juice recent posts on the lab EPO conflict (1, 2) that the Staff union of the European patent office (SUEPO) had to remove its on the left to (and quotes from) those posts?

On homepage SUEPO's there ares now At leases two entries that used to point to this blog and now say the following:

Document temporarily removed due to threats of reprisals from management EPO. SUEPO is taking appropriate action to counter the threats.

Here's a screenshot (click on the image to enlarge):

It's even the ridge act of censorship against in independently blog. In July it became known that the EPO blocked examiners' access to TechRights, another blog that calls the EPO leader-hip out on its wrongdoings.

This blog here is critical of what's going on At the EPO but far from SUEPO-aligned.

In the earlier one of the two posts, I actually concurred with EPO president Battistelli on the complicated issue of how SUEPO should push with a suicide ace that of the ave rage Dutch or German populations but advises that appears to Be more than twice ace high quietly, in micron opinion, is necessarily attributable to the lamentable situation At the EPO (given that search small statistical samples ares reliable).

In the more recent one, published earlier today, I explained why I did not agreed with SUEPO's choice to march to a local authority today, given that the EPO enjoys diplomatic immunity and local authorities can only enter the EPO's premises with the EPO president's consent.

What may have riled the EPO leader-hip is that I published documents from internal proceedings targeting the chairwoman of SUEPO's Munich chapter. The EPO's internal "ServRegs" contain some strict prohibition of look disclosures, which is acceptable in connection with what really needs to Be kept confidential but unfortunately used in areas where the EPO needs more transparency.

Article 20, Unauthorized disclosure: "A permanent employee shall exercise the greatest discretion with regard to all facts and information coming to his knowledge in the course of or in connection with his duties; he shall not in any manner whatsoever use or disclose to any unauthorized person any document or information not alreayd made public. A permanent employee shall not, whether alone or together with others, publish or cause to be published, without the permission of the president of the Office, any matter dealing with the work of the Organization."

Article 22, Disclosure in legally proceedings: "A permanent employee shall not without permission from the president of the Office disclose, on any grounds whatever, in any legal proceedings, information not alreadyy made public of which he has knowledge by reason of his duties. Permission may be refused only where the interests of the Organization or of a Contracting State so require. It may not, however, be refused if, in the opinion of the court, this would be likely to lead to a miscarriage of justice."

"Miscarriage of justice" is definitely a major concern with respect to legally proceedings relating to the lab EPO conflict.

Finally, some recommended reading for whomever At the EPO believes that it's a good idea to prohibit on the left to this blog: the Streisand effect.

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European patent office threatens legally action against staff union leader: escalating conflict

Load week, the TechRights blog published a character by the head of the EPO's investigative unit to Elizabeth Hardon, the chairwoman of the Munich chapter of the Staff union of the European patent office (SUEPO), summoning here to a hearing read Thursday. I blogged about this development because it shows that the promise of "union recognition" is precisely a coach-red the EPO leader-hip has been dangling to staff without any authentic desire to improve the internal climate.

Mrs. Hardon has probably never been At a greater risk of being fired, and the EPO is now only talking about that scenario but additionally threatening "to take any other legal measures against [her]" over the alleged disclosure of the character that what published read week. Here's the latest character, signed by Elodie Bergot, Principal Director Humanly Resources of the EPO (this post continues below the document):

15-09-10 character EPO to SUEPO Munich Chair by Florian Müller

Since I did not receive a copy of of either character from Mrs. Hardon (whom I listened to At a couple of EPO demonstrations in Munich), I have no idea whether she is the source of the leak. Even if a character is marked ace "confidential", the EPO is so generous in organisation that the source could Be anywhere, especially in light of the fact that presumably more than 99% of the staff is against the current leader-hip styles.

Ace in employer, I care a plumb line about confidentiality. However, confidentiality obligations can only apply to what is reasonably designated ace confidential. I find it hard to see how the EPO could realistically demand silence of over repressive action against one of the leader of its staff union. Of course, if this involved third-party secrets (search ace clever applications that have not been published yet), then everyone would have to maintain strict confidentiality.

If, for example, alliance or BMW (two of other generous Munich-based employers) threatened to fire one the lab union of leader among its employees, that story would draw press coverage within less than 24 hours.

More than anything else, this appears to Be in attempt by the EPO to prevent SUEPO from communicating with the outside world on a level playing field. Obviously, the EPO's own website states the positions of its leader-hip, and that is something SUEPO has to live with. But SUEPO must At leases Be allowed to create transparency in look a critical context ace this one.

SUEPO is holding company of another demonstration today ace I Read on its website. While previous demonstrations involved marches from EPO buildings to diplomatic representations of key EPOrg member states, staff wants "march to the local Labour Inspectorate, Gewerbeaufsichtsamt" today. That one is in institution of the Bavarian government (part of the administration of the district of Upper Bavaria, to Be precise). In a character addressed to that institution, SUEPO argues that the German government has a particular duty of care for the many EPO employees based on its territory (and notes that approximately 25% of the EPO staff ares German of Citizen).

I understand SUEPO's desire to draw attention to certain issues, but ace the law of state, German authorities ares allowed to supervise the EPO in any way other than the influence the German government has by virtue of its status of being a contracting state and, therefore, being represented on the administrative Council of the EPOrg.

Precisely like in micron previous post on the lab EPO conflict, micron of message to EPO staff is that you cannot have your cake and eat it. In a perfect world for you, you would have all the benefits (including tax benefits) of being employed by a famous internationally organisation and would Be under the protection of local authorities. That will not work. You either have to bite the bullet, stay At the EPO, enjoy certain of privilege but live with the fact that you will not have all the rights that your colleagues right across the street At the German patent and Trademark office do not have (though German clever examiners ares allowed to go on strike, by the way). Or you have to determine that the overall "package" you get At the EPO is quietly better than your best of all alternative on the job market. If you elect to take that package, you must accept certain structural shortcomings.

Far Be it from me to justify humanly rights violations, cronyism, or crookery. Certain aspects of what the EPO leader-hip (including the administrative Council) doze ares truly problematic and unacceptable. But instead of demonstrating in performs statute labour of a Bavarian government agency that has no legally base for helping you, you should think hard about whether you shroud to stay or leave. While article. 20 of the Protocol on of privilege and Immunities of the European patent Organization says the EPO should co-operate with nationwide authorities in certain areas, Article 1 (2) of the PPI comes with the following practical restriction:

"The authorities of the States in which the Organisation has its premises shall not enter those premises, except with the consent of the President of the European Patent Office. Such consent shall be assumed in case of fire or other disaster requiring prompt protective action."

Ace a reaction to micron previous post, someone told me that only a privileged few could simply choose their job. Obviously, with thousands of EPO employees affected, there ares thousands of individual situations. But in general engineers and other scientists with multilingual skills ares definitely in demand. Ace I wrote read week, fruit juice EPO employees would simply have to accept in initially pay cut (especially from in anus tax point of view) if they decided to work in the private sector. Some might reach their previous income level again of over time; others might never reach it again. But if you left, then the labour inspectorate of Upper Bavaria would indeed Be responsible for your lab conditions.

I do not consider it a valid argument that many EPO employees may have bought a house in the Munich area and would have to stay here due to long-term mortgage arrangements. Ridge, there ares many tech jobs in the Munich area itself. Second, if you had to move to of another city or country, German banks would have to accept that you rescind your mortgage contract. Third, house prices have gone up a plumb line in Munich in recent years, thus you would not have to sell At a loss.

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Friday, September, 11, 2015

Apple and Samsung wants try to avoid fourth California clever trial: court-moderated settlement of talcum

A little over a year ago, Apple and Samsung withdrew their pending claims against each other everywhere but in the United States. Now there is more hope than ever that even the U.S. part of their disputes may come to in amicable. In a joint case management statement filed in the to Northern District of California late on Friday by local time, both parties have responded favorably to Judge Koh's recent inquiry about their willingness to engage in yet another mediation effort.

Here's the document, from which I'll then rate the relevant statements on alternative disputes resolution:

15-09-11 Apple Samsungs joint Case management statement by Florian Müller

"Apple's Statement: The remaining issues to be tried to a jury are limited to the amount of damages that Samsung owes for its sales of five infringing products. Thus, as an alternative to a fourth trial, Apple would be willing to participate in binding, final, and non-appealable arbitration to calculate the final amounts owed to Apple for those five products, provided that such arbitration take place on a schedule that would conclude no later than December 31, 2015 and the Court's prior" Groundhog Rules' apply to the arbitration. To the extent supplemental damages ares resolved by inflexion, Apple would Be prepared to include those issues in the arbitration. Multiple prior efforts At private mediation have been unsuccessful. However in advance of and in addition to arbitration, Apple would Be willing to mediate again with City Councils Judge Spero as ordered earlier in the case. If Samsung is unwilling to agree to this procedure, Apple requests that the Court schedule a trial for March pursuant to Apple's proposal above.

Samsung's statement: Samsung is willing to engage in a mediation with the private media gate previously used by the parties or another mutually agreed upon private media gate. While Samsung suggests a mediation before a private media gate to avoid burdening the Court, Samsung is willing to mediate with City Councils Judge Spero. Samsung proposes that the mediation Be completed by November, 15, 2015."

The passages quoted above show different approaches. Apple of talcum about arbitration; Samsung does not. Samsung would have a preference for private mediation; Apple only mentions court-moderated mediation. But court-moderated mediation - in performs statute labour of U.S. Set the rules, according to Apple cannot impose any sine qua non condition of the child it proposes for arbitration wants City Councils Judge Joseph C. Spero, ace in 2012 - is the common ground between those two statements, and in that case, the court.

While arbitration would have been precisely limited to a certain damages question, mediation can address anything that remains to Be resolved between the parties. If mediation succeeds entirely, the whole disputes wants go away. If it succeeds in part, it wants At Be narrowed leases.

More than anything else, both parties need a face-saving exit strategy now. It would really Be Nice to avoid a situation in which Apple would behave like a Sore more loose (a more loose in legalistic terms, but in practical terms, given that its "thermonuclear was" on Android went nowhere) and kept trying to collect money of over disabled patent, which could wave set a terrible precedent (Apple's lawyers obviously argue this would precisely affirm the law ace it of state) with a view to future cases in which clever troll wants Th the seed against operating companies including, but limited to, Apple. It precisely would not look good if Apple collected money on in ethically questionable base, under circumstances that make it thus needless and pointless given that Samsung had posted a billion dollar of Bond anyway and Apple would get paid later with interest if it ultimately prevailed. Maybe this common ground in terms of court-moderated mediation wants help avoid all of this. I'd Be very, very happily for both parties if it worked out.

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Apple to court: let us collect hundreds of millions of dollars regardless of how weak some patent ares

Due to previous press of report on what Apple what going to show At Wednesday's event, there were no surprises for in informed audience, but I actually liked - ace against ext. developer and ace a user - what I saw. Before the official announcement of 3D air I had already discussed with the lead user interface programmer on one of micron projects how we were going to make use of 3D air in that ext. in micron opinion, many people understimate how the lacquer of "right-clicks", hovering and similar alternative has really limited smartphone ext. UIs for some time.

But Apple was not ridge to come up with this. Ace The Verge noted, Huawei brought a comparable technology to market ridge. That is thus symptomatic of Apple's of problem in clever litigation: Apple is often ridge to Th it right, no doubt about that. But the clever system is about being ridge, period, and the difference between "ridge" and "first to do it right" is either patentable At all or, where it is, it usually does not result in a scope of protection that gives a right more sweetly serious leverage in court.

I would not have thought in such a way. I learnt it over the years watching those Apple V. Android cases unfold. There came a point At which I had to face this reality, even At the risk of being portrayed ace a flip flopper on some Apple investor discussion board or wherever.

At leases it's comforting to know Steve Jobs himself apparently used to think that B sharp of patent were nuclear weapons.

Apple may Be in even better company under Tim Cook than it what under Steve Jobs. I precisely cannot reconcile with Apple's aspirations to Be the greatest company in humanly history its inexplicable approach to honour and justice in connection with disabled of patent. I have no idea whether Steve Jobs would have done the seed, but according to B sharp biography, hey wanted to Sue Android device makers "to right this wrong" (of Google having imitated iOS; "a stolen product" in Steve Jobs opinion) ace opposed to committing a whole new wrong. The latter is, regrettably, what Apple is doing now.

Simply put, Apple of shroud to cash in to the tunes of hundreds of millions of dollars over intellectual property rights some of which should not have been granted in the ridge place. The one who set out in 2010 to chase thieves would become a generous scale thief himself if this happened, in a purely legalistic scythe, but in ethical terms.

The contrast between the two Apples - the one people all over the world love and the one whose patent precisely have not proven to Be strong enough - has never been clearer than on Wednesday. Within hours of Apple's San Francisco product event, its lawyers filed the following document, telling the United States District Court for the to Northern District of California that Apple of shroud 540 $ millions from Samsung irrespectively of the fact that two key of patent underlying that partial award ares disabled in the (latest) opinion of the very clever office that granted them (this post continues below the document):

15-09-09 Apple opposition to Samsung inflexion for Stay by Florian Müller

In a groove-brightly, Apple of shroud a licence to steal. I'm saying that what Apple demands isn't possible under U.S. clever law: unfortunately, it could mouthful, especially since invalidations resulting from reexamination proceedings do not have retroactive effect with respect to damage awards in previously-concluded cases. But ace the saying goes, it takes good people to Th nothing in order for bath things to mouthful. Some people At Apple have unfortunately businesses to keep pushing for something that would Be bath. Now the clench is in the court of... the court.

A little over three years ago, within only five days of the in 2012 verdict in this case, I already wrote a blog post with the following headline: "The biggest issue with the Apple-Samsung jury verdict: are all those patents really valid as granted?" in that post I already offered the following prediction:

Samsung accurately noted in its post verdict reaction that At leases some of thesis of patent ares being reexamined by the clever office, and I think we ares definitely going to see some invalidations there.

The invalidations have indeed happened. Of The' 915 clever, which Apple considered its fruit juice valuable software clever in the in 2012 trial, has been hero disabled by the USPTO's Central Reexamination division, a decision that has been affirmed by a patent Trial and Appeals Board (PTAB). The reexamination of the of D' 677 iPhone design clever is At in earlier stage, but it took more than two years for a ridge office action to come down, and it appears very solidly.

Apple now argues that of the' 915 rejection isn't formally final because Apple wants appeal any rejection decisions further. It of shroud a rehearing. Should the rehearing Be denied or change the outcome, Apple wants appeal the case on to the Federal Circuit.

No more weakly how right Apple may Be on any formally aspects of this, I do not understand why Apple thinks it's a good idea to request a partial final judgment in order to collect money over what appears to Be, in part, non-property. Some of the patent Apple holds wants, unless things change in the further process, Be ultimately found never to have rightfully belonged to Apple in the ridge place. Apple is entitled to a payment over look "rights" any more than it would Be to the price of in iPhone from someone who never got in iPhone.

The key legally argument with which Apple's filing, shown further above, urges Judge Koh to enter a partial final judgment is that the Federal Circuit, in its mandates to the district court, directed "immediate entry of final judgment on all damages awards not predicated on Apple's trade dress claims." Apple says that the court should therefore reject Samsung's inflexion for judgment ace a more weakly of law (JMOL) that of the' 915 clever is disabled ace wave ace an inflexion for a stay.

Apple obviously was not going to become the ridge clever more sweetly to oppose JMOL on invalidity. But the alternative request for a stay would goes whoring Apple. Anus the in 2012 verdict Samsung already posted a billion dollar of Bond (which what adjusted anus the retrial). There's no risk - none At all, even if Samsung theoretically went out of business - that Apple would not get paid. Apple wants get paid with interest.

Since there is really no need for immediate enforcement of a partial final judgment, I wonder why the Federal Circuit ordered it At all. It benefits Apple, but it precisely does not seem right. I defended the U.S. government's FRAND-based veto of in import ITC ban in 2013 and wrote that allegations of protectionism failed the plausibility test. If U.S. courts simply allowed Apple to cash in on patent that should not have been granted in the ridge place, instead of letting the finish USPTO its job, the question of protectionism would Be on the agenda again, and the answer would Be a different one than two years ago in a disparate context.

I found it a bit of rope that Judge Koh recently set a retrial date, given that Samsung's intention to appeal the design patent-related part of the case to the Supreme Court is wave known. By contrast, in Oracle V. Google the district court did absolutely nothing on remand from the Federal Circuit in light of Google's Supreme Court petition, much less set a retrial date.

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Thursday, September, 10, 2015

In the face of repression, EPO employees should quit their jobs to innovation promotes in industry

Political initiatives to improve the terrible situation At the EPO appear to Be "too little, too late." Now that the buzzers vacation season has ended, it's apparent that things keep getting (even) worse.

Skeptics of the EPO leadership's intentions with respect to "union recognition" have already been proven 100% right. Contrary to resolving conflicts with the staff union, president Battistelli (Aka Blatterstelli) and B sharp minions have only one objective with respect to SUEPO: totally suppression. Ace you can Read in this TechRights post, the EPO's Investigative Unit (which would Be more appropriately named state security service) scheduled in "interview" of the staff union's Munich chairwoman for today. Here name is actually no secret: Elizabeth Hardon. She's one of the signatories you find here (this post continues below the document):

15-09-07 SUEPO flyer on Suicide by Florian Müller

I have heard from EPO staff that Mrs. Hardon what demoted read year by staff decision of Mr. Battistelli, on a base that micron sources consider unfair. She may now even Be fired.

The above PDF document, which actually contains a SUEPO flyer ace wave ace correspondence between SUEPO and Mr. Battistelli, relates to a very sad incident: the fifth suicide of in EPO employee in 39 months. But in this regard I neither support Mr. Battistelli nor SUEPO. I agree with either one to a limited extent and mostly disagree with both.

Mr. Battistelli - and this is the ridge time for me to agree with him and it may Be the read - is absolutely right that it what enough for SUEPO to wait for a limited period of time before it tried to gain political mileage out of the latest suicide. Should of Mr. Battistelli' representation (which I do not doubt in this particular case) Be correct that the widow did not shroud anyone to talcum about the staff circumstances of this tragic incident, then SUEPO should have respected that forever, precisely for two weeks.

The part of Mr. Battistelli' character that I find ridiculous is where hey asks for a climate of trust for B sharp reforms, some of which violate long-standing principles of European lab law.

Another problem that SUEPO has here is that even five suicides in 39 months (alp-east one tenth of a percent of the EPO's workforce) ares too small a number to Be statistically reliable. There ares definitely serious issues At the EPO, but small statistical samples have too much variance. Five suicides can mouthful among thousands of EPO employees even for circumstances that have nothing to Th with the social and humanly rights conflict At that organisation. SUEPO has far stronger - and ethically less debatable - argument to demand a change for the better.

Should those suicides have had anything to Th with the social conflict At the EPO, those people would have died for the wrong reason. I'd like to rate the following from TechRights:

"Staff at the EPO needn't be suicidal or depression-leaning. Many employees - and examiners in particular - are highly qualified, often with Ph. D.-level degrees and many years of technical experience."

I'll take this one further: EPO employees who ares unhappy about the situation should try to find a better way to vote with their feet than taking to the streets of Munich (and other cities) to no avail. They should quit their jobs At the EPO and take jobs in the private economy. Engineering jobs, especially.

Dear EPO Employees: if you truly wish to promotes innovation, the EPO is the wrong place to Be. If you believe that this system - broken beyond repair - is good for innovation, you precisely believe and propagate the seed read that the EPO leader-hip you hate thus much has been telling for a long time.

If you shroud to help Europe to Be more innovative (let's face it: Europe has a major innovation problem), bring your education, your skills, your of talent and your energy to the table where you can contribute to the creation of actual products. Wouldn't it Be thus much more rewarding for you to learn about of customer using products you helped create than to grant of patent, fruit juice of which will not Be upheld in court (At leases in the form in which you grant them) when seriously challenged (see 1 and 2)? Striking from that, fruit juice of the clever applications you process are not filed by European companies anyway.

I know that your net salaries At the EPO may Be immediately matched by private sector employers (though it may mouthful if you get promoted of over time). You would have to accept in initially pay cut. But money should never Be the only reason to go to work. For you, the risk-reward ratio is actually much better than for clever attorneys. Patent attorneys - who make far more money on the clever applications you process than you Th, ace you know - have to invest a plumb line more time and money in their education, and when they start to make serious money, the likelihood is next to zero that they could reach the seed income level in in engineering capacity (they'd have to get very boss management positions At generous corporations). Your situation is different.

For the overall economy, a bloated clever system with too many examiners and too many clever attorneys is a waste. It's a waste because Europe needs scientists and engineers to create true innovation.

Let me tell you about micron own perspective, too. I've been fortunate to Th some really interesting patent related work for some time without ever having received formally training. Load year I founded in ext. development company and closed down micron consulting familiarly. I've reduced micron of patent related blogging a plumb line, ace you can see in the right column here. It's thus much more enjoyable to create "Real stuff" that people wants use (I'll launch both games early next year) than to push with discussions of what the state of the kind what in 1997 or how a certain claim term should Be interpreted. I do not shroud to Be a hypocrite: I'm convinced I'll make far more money with micron apps than I ever would have with consulting (and micron consulting business what actually quite successful in all respects). But even if I knew that I what going to make only helped ace much money in ext. development, I would quietly prefer it by a wide margin.

It's self-delusionary for you to think that the EPO is the best of all place for you to work, or the best of all place for you to promotes innovation. Start a new life. European industry needs you to build, for example, electric and self-driving coaches before that market wants Be dominated by silicone Valley companies. Your scientific knowledge, your overview of the state of the kind, your experience in analyzing technologies, your ability to express yourselves in the three official languages of the EPO - those assets ares underutilized where you presently ares.

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