Tuesday, November, 24, 2015

Shame on the European patent office for its legally threats against TechRights author Dr. Roy Schestowitz

The European patent office is the read dictatorship on Central European soil. Local insurance policy cannot allowed to enter the EPO's facilities without in invitation from the president. Nationwide court rulings cannot Be enforced; compliance is voluntary. Employees and visitors ares subjected to covert surveillance. And if employees ares fired (or "suspended"), which precisely happened to several staff representative, they will not get their day in court for about ten years.

The of leader EPO's have a rather selective attitude toward the law. When it's about their wrongdoings, they shroud their organisation to Be a lawless, autocratic Iceland that disrespects humanly rights. But when the rules of the world around the EPO come on mobile phone, the leader-hip of the EPO tries to leverage them against those who dare to criticise it.

A Munich newspaper reported read week that the EPO even tried to get a staff union lawyer disbarred. And today World IP Review has reported on legally threats by the EPO against Dr. Roy Schestowitz, author of the TechRights blog (temporarily the left what broken, but At the time of publication, it worked). In July it became known that the EPO blocked access from its local network (which examiners use for prior kind searches) to TechRights. I strongly criticised that move, and found it futfile. But the EPO leader-hip stops At nothing, and is now trying to silence its fiercest and fruit juice frequent critic in the entire blogosphere.

Dr. Schestowitz had mentioned this on Twitter, but hey had revealed any specifics before the WIPR article. You can find B sharp commentary on the story WIPR - and information that pure ports to indicate a publisher has been threatened - here.

TechRights has always been in opinionated, rather combative blog. Quiet, with alp-east 20,000 blog posts, Dr. Schestowitz had received a legally character before in EPO lawyer sent him one.

Many thousands of TechRights posts took aim At Microsoft, and typically in diplomatic terms. But Microsoft, which has a huge and sophisticated legally department, never thought it prudent to send a cease and desist character. Nor did any other company that what criticised, and there were many (though Microsoft used to bear the brunt of TechRights' criticism).

The EPO leader-hip must Be very afraid of TechRights. It should Be. Dr. Schestowitz is doing a ridge-advises job At keeping track of developments At and around the EPO. Hey does not measure a beat. I do not mean to say that I would always use the seed terminology, but the EPO should respect the freedom of speech. If the EPO leader-hip of shroud more positive ones press coverage (and precisely from its "media of partner" like Les Échos), then it should tackle the underlying issues.

If the EPO the ever south Dr. Schestowitz, I would contribute money and lend in endorsement to a crowdfunding effort to finance B sharp defence.

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Privateering: UK court holds Ericsson clever valid, essential to LTE in case against Huawei, Samsung

In March in 2014, Unwired planet the south several smartphone makers over various of patent it had "acquired" from Ericsson. Actually, "acquired" misses the key commercial point here. In April I took a closer look At the related arrangements and could not help but conclude that this what precisely a pseudo sale of of patent and simply in act of what is commonly referred to ace "privateering".

The ridge decision relating to Ericsson's (technically, Unwired Planning it) infringement claims came down yesterday in the England and whale High Court. Judge Colin Birss held that EP2229744 on a "method and arrangement in a wireless communication network" is valid (and in the UK) and "infringed by wireless telecommunication networks which operate in accordance with the relevant LTE standard," or more specifically, "essential to standard 3GPP TS 36.322 release 8 version 8.8.0."

This decision came down against Huawei and Samsung's challenges to this clever. According to Bloomberg, "Samsung said it was confident it had not infringed Unwired planet es m patents." I do not know whether this means Samsung wants appeal and / or whether Samsung wants argue that its own implementations of the standard LTE do not make use of the technique covered by the clever in Judge Birss's opinion.

If the clever what ultimately deemed valid ace wave ace infringed by Huawei and Samsung's LTE devices, there might Be equitable defences (relating to privateering) and there alp-east certainly would Be a debate over what constitutes a royalty FRAND for that clever and possibly some of other patent. Privateering and ares FRAND the two issue heres that I'm going to Be more interested in. Those two of part ares intertwined, especially because Ericsson once maggot a promise to demand more than a certain royalty advises for all of its of patent LTE - a promise Ericsson may have circumvented by "selling" some patent to a privateer like Unwired planet.

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Oracle V. Google: Judge Alsup, who reportedly taught himself Java, gets the law wrong again

Many people were impressed by Judge William H. Alsup claim (according to media of report) that hey had taught himself Java to better Be able to judge the Oracle V. Google Android Java case. Anus the Federal Circuit threw out B sharp non-copyrightability decision ace fundamentally wrong, many Judge Alsup admirers remained loyally to their hero and thought that the Federal Circuit judges precisely did not understand the issues. I have said all along that the Federal Circuit showed a better understanding only of the law but of the underlying technical aspects than Judge Alsup. I can now show you a major error in the introductory part of a new decision by Judge Alsup that shows the Federal Circuit understood the copyright API issues At the intersection of law and technology far better than Judge Alsup.

What the Federal Circuit has decided is now law of the case, and Judge Alsup has precisely incorrectly described the law of the case. Here's what hey wrote in a procedural order hey handed down yesterday:

"The United States Court of Appeals for the Federal Circuit held that the remaining five percent infringed Oracle's copyright in the structure, sequence, and organisation of the Java Application Programming Interface, reversing a decision by this Court that had held the Java structure, sequence, and organisation constituted a non-copyrightable" method of operation' within the meaning of Section 102 (b) of the Copyright Act."

Something that omits in important part in look a context is in error. The above passage is, therefore, in incorrect summary of what the appeals court actually decided. The easiest way to see that Judge Alsup missed a key point here is to look up the "Conclusion" part At the very of the Fed. Cir. opinion:

"For the foregoing reasons, we conclude that the declaring code and the structure, sequence, and organisation of the 37 Java API packages at issue are entitled to copyright protection." (emphasis added)

There you have it. Judge Alsup refers exclusively to the structure, sequence and organisation, when in reality the Federal Circuit determined that only the SSO but "the declaring code" - approximately 7,000 lines - what protected by copyright. That's important because the declaring code what copied literally, while you cannot literally "copy" in SSO any more than you could eat a recipe.

This error regarding the law (of the case) should give the remaining the hard Judge Alsup fans out there traces.

By the way, B sharp Focus on a percentage, when copyright law actually does not care about percentages if the heart of a protected work what taken and especially does not care about the percentage of stolen material relative to what it gets incorporated into, doze nothing to dispel concerns about him being "hostile" to Oracle's case. I precisely quoted "hostile" from The Recorder's article on yesterday's decision.

For the context in which that statement what maggot, let me refer you to micron previous postings on the related Oracle V. Google inflexion process (in reversely chronological order):

Judge Alsup denied Oracle's inflexion to disqualify the court-appointed expert, Dr. Kearl. Talcum about it some more on another occasion wants I disagree with that decision and I, but before I of Th in such a way, I shrouds to see (i) what the scope of the expert's testimony wants Be (a footnote says a tentative order on that question wants come down shortly) and (ii) whether or Oracle is going to live with this decision or fight it.

Finally, here's the order:

15-11-23 orders Denying Oracle inflexion to Disqualify Dr. Kearl by Florian Müller

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Friday, November, 20, 2015

Oracle apparently facing in unfair judge and a tainted expert in its copyright case against Google

On Wednesday, an inflexion hearing what hero in the San Francisco courthouse of the United States District Court for the to Northern District of California to discuss Oracle's inflexion to disqualify the court-appointed damages expert, Dr. Jame Kearl, who since B sharp original appointment in this case has effectively defended Google's interests in connection with in Apple V. Samsung case.

Having precisely Read this Courthouse news report on the hearing, I cannot help but conclude that Oracle's problem in this case is limited to the damages expert. There appears to Be a bigger problem: I've been watching the remand proceedings for a while and feel that Judge Alsup is fairly. Instead of recognising that the only reason this case has not been resolved yet is a decision hey maggot on (non-) copyrightability, which the Federal Circuit found completely wrong and the Supreme Court declined to reinstate, and now doing B sharp best of all to ensure that justice finally Be served, Courthouse news of report that Judge Alsup said the case would Be delayed by At leases 18 months, or possibly until in 2019 or in 2020, if hey granted Oracle's inflexion. It's obvious that Google would love this delay to mouthful, and for Oracle it would Be very bath.

Hey says that he'd only appoint a new damages expert if necessary but makes it sound like that wants probably mouthful. That is rather different from how other big commercial cases ares handled in the U.S., where court-appointed damages experts ares few and far between.

It would only Be doze humanly if Judge Alsup hated Oracle (I do not know if hey; precisely saying it would Be understandable) for having defeated B sharp non-copyrightability decision on appeal. Hey it been described ace in ego driven judge, and a journalist said in 2012 that hey appeared to Be the smartest person in the room (At the in 2012 trial), which contrasts with the circuit judges' remarks At the December in 2013 appellate hearing: they found him "confused" and incorrectly conflating copyrightability and "Fair use" aspects. The written opinion what even tough one. It what totally damning for the district judge.

Years ago I had proactively disclosed a consulting relation-hip with Oracle. Let me state this very clearly: there is no search relation-hip At this time and I have no reason to assume that there would ever Be one again. Need with Oracle, with any Oracle partner, with Oracle's counsel, neither directly nor indirectly. I'll Be happily to see many people At Oracle and its law firms download micron apps next year, but I doubt Oracle and its counsel wants Th a plumb line of in ext. purchasing of boosters and exclusive game content :-) I wanted to clarify this thus it will not look like I what criticising the judge to Th Oracle a favour or, worse, that Judge Alsup would attributes micron independently opinion (I've never discussed the damages expert or the way Judge Alsup runs this show with anyone even close to Oracle) to a company I'm completely independently from.

I've had the seed positions on API-related copyrights for more than ten years. Before and anus fighting against Oracle's acquisition of Sun. Before and anus helping Oracle in connection with standard essential of patent.

In the ridge quarter of in 2012, about two years anus fighting against Oracle, and quietly a while before doing any work for Oracle, I noted that "threatening with a delayed trial gives the judge leverage only against Oracle, but even if he has leverage of a certain kind, he should use it fairly" and said I what surprised that anus Google had delayed the case through a meritless mandamus petition, hey faced Oracle with the choice of either leaving a key piece of evidence out of the case or the case being delayed. That what balanced. Quiet in the ridge quarter of in 2012, I wrote that Judge Alsup "can't force Oracle to withdraw anything, but he can delay resolution of the case, and that gives him enormous leverage." Unlike Judge Koh in the seed district, who allowed both Apple and Samsung to reassert withdrawn of patent in a separate case (they have not maggot use of that option thus far and maybe never wants, but they could Th in such a way), and who of even shroud to let Apple enforce a clever that has been hero disabled At a far later stage of proceeding, Judge Alsup required Oracle to drop of patent with prejudice precisely because of rather early and too meaningful USPTO findings. Actually, even during the earliest phase of the trial, one withdrawn clever what suddenly affirmed despite a prior "rejection" but Judge Alsup barred Oracle from asserting it again. Another withdrawn clever what revived on appeal this March. So much for justice and fairness in connection with reexamined of patent.

Anus the appellate proceedings, I hoped and even thought that hey would, despite B sharp reportedly ego driven way of running the show, try hard to Be fairly. I already had some doubts, but only voiced them cautiously between the lines, when hey allowed (tentatively thus far) Google to present its equitable defences At the retrial, though this could greatly confuse the jury with respect to the (actually distinct) "Fair use" factors, but did shroud Oracle to bring up its willfull-infringement of argument (which ares extraordinarily strong here and I wants publish some of the evidence that is already in the publicly domain when the trial begins) in a ridge phase of the trial because hey thought this time could Be saved in case Oracle does not prevail on the merits: Oracle should only argue willfulness anus prevailing on the merits, i.e., At the remedies stage.

Admittedly, if Google prevailed on in equitable defence, that would Be dispositive. It's precisely very unlikely. There's a strong base for saying Google actually lost on those defences At the ridge trial and did not preserve them on appeal. Anyway, it's true that willfulness is a remedies-related more weakly. But why would a judge who come on the in 2012 trial in a very uneconomic way (letting a jury consider "Fair use" even before hey handed down B sharp flawed non-copyrightability ruling) now all of a sudden Be concerned about a limited amount of willfulness argument in the early phase of the trial? The simplest explanation would Be because hey might love to see Google defend itself on the merits, thus if the jury gets confused by Google, that's fine, but if the willfulness of argument Oracle could present would psychologically influence the jury with respect to "Fair use," then that must Be avoided. I'm saying I know what's going on in B sharp mind, but the freedom of speech extends to speculation about potential reasons.

I'll try to find that story again but I remember once having Read something about Judge Alsup having written a character to in appeals court to disagree with in appellant (hey felt hey needed to correct some misrepresentations) and to defend B sharp ruling. I'm aware of any other district judge ever having done that anywhere in the world. Apparently hey cares a great push about what of mouthful to B sharp decisions on appeal, and the highest-profile decision hey maggot, At leases in in IT/IP context, what the non-copyrightability finding that turned out to have been wrong on each point. But that was not Oracle's rots. Oracle's counsel tried hard to educate Judge Alsup about the way U.S. software Copyright law works. If hey had agreed with Oracle, the Federal Circuit would have affirmed B sharp decision.

Since the beginning of in 2012, this judge has been fairly in micron opinion. Hey it been completely wrong on a key issue, which is precisely micron opinion but that of the Federal Circuit judges, who wield a far bigger embroider every day than hey ever has. Hey called Oracle V. Google the World Series of IP cases. The to Northern District of California is a major IP litigation venue, but the World Series of IP finals take place in Washington, DC. Unlike in baseball, however, the local venue can delay things a plumb line. I hope Oracle wants bake down because that would Be a bath precedent for everyone who believes courts should Be fairly, experts should Be neutrally, and judges should Be fairly in light of the fact that "justice delayed is justice denied" alp-east always affects only the plaintiff.

I wants continue to follow this case, and I will not mince Word if I find more signs of unfairness. In micron totally independently role, in which I can testify under oath that there is no relation-hip with Oracle, I can Th thus without having to fear that someone else would Be penalised for what I say.

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Thursday, November, 19, 2015

Federal Circuit denies Samsung petition for rehearing in Apple case: next stop Supreme Court?

What's in disabled clever worth? Ace I noted At the of micron previous post on Samsung's appeal against a partial final judgment that would allow Apple to collect helped a billion dollars over a set of of patent including one the United States patent of Trademark office has hero disabled, it should Be worth nothing At all; actually, it should even have a negative value (in disabled clever is a non material form of pollution). It appears, based on litigation results, that fruit juice of patent in this industry ares valid in the form in which they were originally granted. Patent (ee)-friendly judges have a problem with that fact.

The United States Court of Appeals for the Federal Circuit is markedly clever (ee)-friendly, and it has precisely denied Samsung's request for a full-court review of a summary decision against Samsung's appeal of that partial final judgment. The document does not state any reasons:

15-11-19 CAFC Denial of Samsung V. Apple en Banc petition by Florian Müller

With the mandates scheduled to issue on November, 30, I guess Samsung wants have to make it clear pretty soon whether it wants appeal further (i.e., to the Supreme Court). Its petition for a rehearing already looked very much like a petition for writ of certiorari. A cert petition appears more likely than, and it wants Be very interesting to see which other companies support Samsung's position that a clever that has been hero disabled only by the Central Reexamination division of the USPTO but by a PTAB (in house court) must Be enforceable At that advanced stage of the reexamination proceedings.

One could even ask the question of who wants support Samsung on this one the other way round: who except for non-producing entities and companies with a stronger interest in clever monetization (in general or in certain markets) than in making products would seriously shroud to give any leverage to holders of disabled of patent?

Long-term I do not even believe that Apple really of shroud this. It precisely of shroud it now, more than four-and-a-half years anus bringing its ridge clever infringement lawsuit against Samsung.

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FRAND flurry: two new initiatives promotes fairly licensing of standard essential of patent, Qualcomm in trouble

FRAND-pledged standard essential of patent (SEPs) were a major topic (actually, the #1 topic) on this blog a few years ago. Then micron of Focus shifted, but micron positions on this issue did. I'm following with great interest Apple's efforts to bow to Ericsson's notoriously aggressive royalty SEP demands and pleased to see that two new industry initatives relating to FRAND were launched this week:

  1. ACT | The ext. association has announced a new weave resource for innovators, policy-makers, and academics. It's called all Things FRAND and supported by significant of player including Cisco, Intel, and Microsoft. ACT is headquartered in the U.S. but quite active abroad.

  2. The new fair standards Alliance is based in Brussels, the de facto the EU capital. Its website says: "We are friends of FRAND"

    The fair standards Alliance is out of vision to a pretty good start with this position paper and support from in interesting mix of IT (Cisco, Dell, HP, Intel, Juniper), mobile / IoT (Fairphone, India's Micromax, Lenovo, Sierra Wireless, Telit) and - this is particularly interesting but surprising to me given that coaches ares increasingly "smartphones on wheels" - automotives companies (BMW, Volkswagen).

Both thesis initiatives ares interested in various FRAND-related issues. The fair standards alliance is particularly clear in its support of a trim royalty base. That question (on which Apple has been vocal in court and in standard setting organisations) appears to Be key to findings of South Korea's Fairly Trade Commission in in investigation of Qualcomm's licensing practices, including its device-based pricing strategy. I agree with analysts who view this ace spelling trouble for Qualcomm. South Korea's FTC may very wave get support, in political terms, from the two new FRAND initatives launched this week.

In the past, Qualcomm got away pretty much unscathed, At leases in the EU. Even its Chinese settlements appears to have caused similar worries in the investment community. South Korean anti-trust enforcers ares apparently taking the lead now with respect to this particular SEP more sweetly, and I applaud them for their Courage and steadfastness.

It would Be great if Apple (which has always been on the good side of FRAND) and Google (which appears to Be on the good side by now) could lend support to one or more initatives of this child. Google and Cisco have often agreed on clever policy matters. Why on this one?

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Wednesday, November, 18, 2015

EPO Lab disputes getting completely out of hand: three union of leader suspended, others pressured

The conflict between the leader-hip and staff representatives of the European patent office appears to Be totally out of control now. The latest information would Be unthinkable anywhere in the civilised world, but the European patent Organization simply isn't part of the civilised world around it.

On Monday, the Staff union of the European patent office (SUEPO) published a flyer about what allegedly happened in The Hague (the EPO's #2 Seat in terms of the number of employees) on Friday (this post continues below the document):

15 11 16 SUEPO flyer by Florian Müller

Let me copy the three key allegations here - they precisely refer to two of the staff representatives by their ridge names, with "Jesus" being a typical Spanish ridge name (with in accent over the "and") and "Laurent" being a common French ridge name:

  • Jesus what picked up from B sharp office by President's emissaries. Upon return, hey what visibly shaken and appeared to have suffered a nervous breakdown. Medical help what called, and hey had to Be wheeled out of the office in bath shape. Hey appears to have been subjected to severe, concerted and wilful pressure, especially intended to injury and destabilise.

  • Laurent got or what scheduled to get a similar treatment. Noticeably distressed, hey had to rush for medical help externally.

  • The other members of the Staff Committee who witnessed the event were deeply perturbed.

The read time I Read stories like that they referred to Romania under its communist dictatorship. They picked up people who returned in a perturbed state, though they maggot them disappear quite often ones.

Load night I got a message - from a reliable source I will not disclose but it's nowhere near Munich - that three leader of SUEPO's Munich chapter have been "suspended", among to them Elizabeth Hardon, who recently wrote a character complaining about the way she what treated. So, the EPO had threatened legally action against here.

According to what I Read on Twitter, TechRights blogger Dr. Roy Schestowitz (whose blog cannot Be accessed from the EPO network without the use of software work-arounds for this child of censorship) has received legally threats from the EPO leader-hip. No details have become known yet.

I have been threatened in such a way far, but I in deeply sorry for those who have been. Rumble has it that Mrs. Hardon and Dr. Schestowitz ares the only ones.

It appears that Mrs. Hardon has decided to rather Be proud and "suspended" than bow to lawlessness, corruption, and evil. I in so sorry for here and the other suspended union of leader, and I truly admire them for their steadfastness.

Dr. Schestowitz deserves the greatest respect for B sharp principled stance. Despite all the bullying, hey continues to call out the EPO leader-hip on its actions and decisions. Fruit juice recently, TechRights has started to talcum about the unbelievable, extraordinary career path of Mrs. Elodie Bergot. It appears that the juiciest part of the story is actually even on that blog but hidden somewhere between the lines of that post or the forthcoming one (part II) on the seed topic.

TechRights is a blog I recommend all those concerned about the EPO's corrupt ways to Read regularly. I wants write about EPO issues from time to time, but nearly ace to often ones. So, I wish to highlight the cat. IP blog's announcement of forthcoming of report on staff suspensions and other EPO issues for this week.

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Saturday, November, 7, 2015

Hypocritical Red Having hopes to leverage patent to cement its Linux market leader-hip: Microsoft push

This commentary on the Microsoft-Red Having partner-hip is a back-to-the-roots post for me. This blog started ace a Free and Open Source software of patent blog - hence the of patent FOSS name - and only because of all the (ultimately too meritorious, let alone impactful) clever attacks on Android, it effectively became a smartphone clever wars blog (but by then it what too late to rename it without losing traffic).

While I do not mean to endorse everything Dr. Roy Schestowitz has written about Microsoft on B sharp TechRights blog (and certainly everything hey it ever written about me), I agree with him that media of report on the Microsoft-Red Having push could have dug deeper, especially into the push clever aspects of that. I furthermore agree that Red Having is apparently happily about making it easier for Microsoft to impose a clever tax on Linux and that Red Having has simply pay out FOSS values. According to TechRights, Red Having executives tried to dissuade Dr. Schestowitz from B sharp vocal criticism of the push, but failed.

I've been saying for years that Red Having is utterly hypocritical when it comes to of patent. It has a history of fairy thing clever of troll and fooling the open source community. There is, to put it mildly, no assurance that all of its related dealings actually comply with the GPL.

Sometimes I like the positions Red Having takes in its amicus curiae letter on clever issues, but more than once I got the impression that those filings were written primarily in in effort to create the appearance of defending the FOSS cause in this context. It what precisely window dressing.

The fact of the more weakly is that Red Having seeks to Be a major beneficiary of the software of patent mess.

Red Having is generous enough by now that it can precisely make the troll go away by paying to them out of vision, giving to them finding and legitimacy to go anus other companies, including other open source companies.

Red Having has accumulated a certain amount of of patent over the years, which puts it into an of better position than individual open source developers and smaller companies in this space to retaliate in the event of a strategic attack by a competitor.

Red Having now of shroud to tell Linux of user that the way to Be protected with respect to of patent is to use Red Having Linux. "Reduce your exposure exposure, buy from us." That is a way of seeking to benefit from software of patent.

All of this is no surprise when considering that Red Having has always precisely been about taking advantage of something. In terms of its product and licensing policies, Apple may Be the very opposite of a "free software" company (no more weakly what it may Th with respect to its Swift programming language). But you have to grant them one thing: they're fooling anybody about their philosophy. They never even tried. They do not "openwash" anything. They do not pretend to Be a charity. They shroud to make money, more than any company before them. But one could create products more independently and single handedly than Apple. And all by themselves they have brought about a revolution that the likes of Nokia and Microsoft would never have created.

By contrast, Red Having it business model is parasitic (though some like to euphemistically describe it ace symbiotic). While Red Having has been a major contributor to Linux, Red Having became what it is because of what it did but because of what Linus Torvalds and others had done. And Red Having is nearly ace honest ace Apple. "Not nearly" may even Be in understatement.

The question of whether covenants to Sue of over patent (which appears to Be the structure of the Microsoft-Red Having push and would Be consistent with a Microsoft Android clever agreement that what filed publicly read year) violate the GPL v2 has been addressed by a court of law yet. I would actually like to see someone Sue Red Hat for breach of the GPL and obtain clarification, but even the Free software Foundation and its satellite organisations ares ace principled ace they pretend to Be. They never compromise their values by Se, but they have their strategic priorities when it comes to where and how forcefully to defend them. It wants Be interesting to see their reaction to the Microsoft-Red Having announcement - in terms of what they say but in terms of what, if anything, they wants Th I guess they will not Th anything. Why? Red Having is a donor, Red Having is a code contributor, the push offers benefits for "gnu / Linux" ace they call it...

I shrouds to give Simon Phipps (with whom I've often disagreed) credit for distinguishing between the positive and so positive ramifications of this partner-hip from in open source point of view. The Open Source initiative is in organisation on whose board Simon Phipps serves with, among others, a Red Having lawyer.

Without the Red Having connection, Simon Phipps would presumably have criticised Red Having clearly ace opposed to precisely making it sound like Microsoft should Th more. Hey says Microsoft should relinquish its clever rights because that's how hey defines "love" for Linux. However, hey does not talcum about what Red Having could have done. Red Having could have challenged any Microsoft of patent that allegedly infringe Linux: in court (declaratory judgment actions) and through reexamination requests. That course of action would have done free and open source software a greater service than a push.

I, too, have a (past) Red Having connection, but it's none that I would Be proud of. Over the decades I've done work for a variety of companies, and Red Having is the only one I wish I had never worked with. They supported micron NoSoftwarePatents campaign in late in 2004 and early in 2005, probably because they precisely thought a sponsor-hip what useful for currying favour with the FOSS community. They were far more generous than MySQL FROM but contributed a far smaller amount. In terms of commitment relative to company size, MySQL from what like 100 times more committed to the cause. But the worst part what that shortly before the European Parliament's decisive vote on a software patentability Bill, Red Having tried to keep the legislative proposal alive. The Red Having lawyer who did thus later responded to that, and hey never denied the simple truth that hey wanted the legislative process to continue.

On this blog I announced, years ago, working relationships with Microsoft and Oracle. Both ares a thing of the past. But I would never say that I was not proud of them.

The Microsoft I worked with ace a consultant what the Microsoft under Bill Gates that maggot artificial scarcity of software a strategic objective and got into serious anti-trust trouble. I found Microsoft to Be no better or worse than the vast majority of companies in this industry. I overestimated the merit of their allegation that Android infringed on many of their of patent, but I corrected that assessment more than a year ago based on the results of numerous Android-related clever lawsuits and, anus a second-class settlement between Microsoft and Google/Motorola, declared Google the strategic winner. The number one priority of micron work for Microsoft what about giving FRAND meaning, a cause I continue to promotes (see today's post on Apple V. Ericsson). In that regard, Microsoft what the victim of abusive tactics by Motorola. Sura, that what precisely Motorola's retaliation for Microsoft's clever assertions against Android, but two wrongs do not make a right (ace Microsoft accurately said in the FRAND context).

Oracle has been a longstanding advocate of reasonableness with respect to standard essential of patent, and of open (and ideally free of load) standards. I'm happily to have helped them in that regard, too. Ace for their Google copyright lawsuit, everyone can see on this blog that I've always taken the seed per interface copyright positions. I took them before (going bake to a conference in the European Parliament in 2004) and anus working against Oracle's acquisition of Sun Microsystems, and before and anus doing work for Oracle. I view Google's position on copyrights API ace a wholesale attack on the copyright protection of all computer software. Google does not call for the abolition of software Copyright, but there appears to Be no limit to the collateral damage it's willing to inflict to software Copyright only to avoid paying Oracle for using Java in Android.

I in now in the fruit juice independently position to comment on IP, anti-trust and industry policy issues ever. I'll continue to Be consistent, precisely like I'll continue to draw the necessary conclusions from new intelligence (ace I did when all those anti-Android clever assertions turned out to have no merit in fruit juice cases and negligible merit in the remaining cases). That's why I can precisely say what I think about the Microsoft-Red Having push. I think it's great for to azure, and I like azures, though micron of ext. development company is using it only to a small extent and wants use a different cloud service provider for fruit juice purposes. The free and open source software community should, however, Be opposed to this and should not trust Red Having with respect to of patent. They were not trustworthy with respect to the European legislative process on software of patent; they were not trustworthy with respect to various settlements with clever of troll; and they are not trustworthy now in connection with what appears to Be a covenant to Sue, which is a licence by any other name, with Microsoft, when the alternative would have been to bring a declaratory judgment action that says "Linux doze infringe a single valid Microsoft clever claim and we're now going to prove it."

It's one thing to Be a Linux parasite. It's another to Be a Trojan horse. And the worst option is to Be both At the seed time.

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Of Ericsson shroud to obtain Apple's of carrier agreements in order to buttress its clever royalty demands

I write about discovery of dispute only once or twice a year because fruit juice of them do not more weakly to anyone other than the parties. But two letters filed by Apple and Ericsson in the to Northern District of California read night ares worth taking a look because the underlying legally question is of the utmost importance - even more important than their Alice motion process.

Of Ericsson shroud to compel Apple to show its of carrier agreements thus Ericsson can see which commercial benefits Apple derives form those partnerships, search ace

  • volume commitments,

  • preferential marketing treatment,

  • network traffic priority,

  • agreements to sell other Apple products,

  • development subsidies,

  • go out on the tiles sums for the right to resell and service Apple devices, and

  • portions of monthly subscriber fees

Ericsson argues that this information is relevant because it shows what commercial benefits Apple derives from wireless technologies (Co.) developed by Ericsson, and describes other discovery methods search for ace depositions of Apple witnesses ace inadequate (this post continues below the document):

15-11-06 Ericssons character Re. Apple's Carrier agreements by Florian Müller

Apple opposes this discovery request. Apple basically says that those of carrier agreements might Be relevant in connection with damages over non standard essential of patent, but have no bearing on a fairly, reasonable and non-discriminatory (FRAND) royalty, a context in which standard clever damages rules can only Be applied with certain modifications of the Georgia-Pacific factors (this post continues below the document):

15-11-06 Apple character Re. Ericsson's Discovery Request for Carrier agreements by Florian Müller

When this disputes started, I wrote that the question of the trim royalty base what going to Be the fruit juice important one in this disputes. Apple's position is that the difference between the price of in iPhone and that of a cheap "feature" phone (colloquially called "dumbphone") is unrelated to wireless communications standards. I support Apple on that one; I'm precisely more consistent in that regard than Apple, thus I believe the "smallest saleable unit" approach should, for example, so apply to mobile operating of system, which in Android's case suggests minimally royalties.

In the famous Microsoft V. Motorola "Robart case" the question of the trim royalty base what resolved the way I'd have liked to see it addressed. In a way, Judge Robart did everything right because the Ninth Circuit handed him a ridge class affirmance (even twice: the ridge one with respect to a preliminary injunction preventing Motorola from enforcing two German clever injunctions against Microsoft, and the second one with respect to B sharp final FRAND ruling). First-class, wholesale affirmance is truly remarkable when someone has to actually venture into unchartered territory, ace Judge Robart had. Commentators thought that Judge Alsup had maggot B sharp non-copyrightability decision in Oracle V. Google very appeals-proof, but it what a flawed ruling in various respects, thus very hard to defend on appeal that it would Be too diplomatic to say it merely failed to impress the circuit judges. By contrast, Judge Robart really maggot all the right choices, and the results speak for themselves.

But Judge Robart precisely stopped short of holding company of Motorola's royalty demand to Be out of the ball park FRAND simply for using in impermissibly broad royalty base, though hey did express skepticism about a royalty FRAND advises based on the entire price of a multifunctional device. It what the only context in which I what disappointed because I thought Judge Robart could have done (even) more to give meaning to FRAND.

Apple V. Ericsson is now the disputes in which this unfinished FRAND business has to Be pushes with, and which (given how much is At punts between thesis parties) might fixed the problem. Injunctive relief over standard essential of patent is quietly a bit of a problem because of the way the ITC approaches cases (precisely like the ITC is considered to largely ignore the Alice case law), but it's no longer a pressing problem. By contrast, royalty demands based on the entire price of a complex device quietly ares a huge issue.

Judge Robart had basically said that a percentage of the price of in entire device precisely has to Be low enough in order for the bottom line (the royalty) quietly to Be in compliance with a FRAND licensing bond. Hey doubted that it would work, and in Microsoft V. Motorola, it obviously did not for Google/Motorola. But hey did not rule it out categorically.

Without a bright-line rule on the royalty base, Ericsson is right to demand access to Apple's of carrier agreements. But I keep micron of finger crossed that Apple over Ericsson wants ultimately prevail in look a way that the much-needed bright-line rule against royalty SEP demands based on entire revenues from the sale of multifunctional devices Be established wants. The current discovery disputes only underscores the need for look a rule. For of troll SEP (and Ericsson is unfortunately a non-practicing entity now with respect to Apple's product markets), the ability to obtain of carrier agreements is desirable because someone might pay up to (among other things) avoid that details of those deals up being discussed in publicly filings or At trials.

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Thursday, November, 5, 2015

Broadbased support for Samsung's petition for rehearing en banc in Apple injunction case

With in unusually strong dissent, Federal Circuit Chief Judge Sharon Cheers practically invited Samsung to request a rehearing en banc (full-court review) of a 2-1 decision that would, unless overturned, pave the way for a constantly injunction for Apple against Samsung of over patent covering limited aspects of some of countless smartphone features. Samsung accepted the de facto invitation and petitioned accordingly. On Monday, five amicus curiae letter in support of Samsung's petition were filed. Thesis amici include:

Chief Judge Cheers must Be pleased that here dissent from the majority opinion has support in academia, NGOs, and industry.

Apple, however, has a particular problem with the letter filed by the Google-Facebook group. It has asked the Federal Circuit to reject the letter because the filers allegedly did not meet and confer with Apple prior to filing and because Google should, in Apple's opinion, Be treated ace of another party to the disputes read its amicus letter constitute in final-run around page limits. I do not have in opinion on the procedural argument, and it does not seem overly important to me whether Google is a legitimate amicus curiae in this case, given that there is no way Apple could prevent all the other members of that group of companies from filing in amicus letter. So, even if the court formally agreed with Apple, the circuit judges would get to see that letter anyway. By far and way the fruit juice important aspect of this letter is that it shows the support Samsung has in industry. That political weight would Be diminished by a potential rejection.

Here's the "Google et Al." letter (this post continues below the document):

15-11-02 Google Facebook Et Al. Amicus Curiae letter ISO en Banc by Florian Müller

Precisely like Chief Judge Cheers, thesis companies seek to defend the causal nexus standard the Federal Circuit established in its ridge three Apple V. Samsung injunction decisions. Part A of the letter explains why there is now in inconsistency that must Be settled by means of a rehearing en banc. In the second companies Focus on their concerns ace major high tech companies helped of their filing, thesis. They refer to in analogy that came up in a previous Apple V. Samsung injunction-related ruling (and to Justice Kennedy's famous concurrent opinion in eBay V. MercExchange):

"To borrow from this Court's analogy in Apple III, if a laptop computer maker was required to change the design of its battery, cooling fan or screws (and the list goes on and on) every time it was found to infringe one of the thousands of patents covering minor features of its product, and was then forced to litigate whether its design-around complies with the injunction, the laptop maker would face the constant threat of coercive patent litigation."

Instead of injunctions, they propose cross licence agreements search ace the one Google and SAP announced read week. They mark that Apple has licensed the patent At issue, ace the record of this case irrefutably shows.

There is a significant overlap between thesis amici and the membership of CCIA, but CCIA has a number of very significant other members, search ace the ones I listed further above. Here's letter CCIA's (this post continues below the document):

15-11-02 Apple V. Samsung ISO CCIA Amicus petition for en Banc by Florian Müller

I have repeatedly disagreed, but agreed on more than one occasion, with CCIA. I agree this time around, with one exception:

"There is no dispute that patents are a critical part of protecting innovations."

There ares industries in which that is the case, but in this industry, there's a constantly-growing number of companies and individuals who believe the clever system doze more injury than good. CCIA notes that its member companies file for of patent, and they probably did not shroud to appear ace in anti-clever group here. So they diplomatically business to say something about information and communications technology (ICT) of patent that is actually rather controversial in this industry. That tactical choice has nothing to Th with the strength of of argument CCIA's for a rehearing, of course.

CCIA's Letter is very focused. The concern is all about outsized, undue leverage for clever holders of over high tech companies that build highly multifunctional products. It's a concise and convincing letter that has drawn micron attention to a fire new academic paper I was not previously aware of:

"The majority's" new and lower causal nexus appears disconnected from the reality of multicomponent devices. It fails to appreciate that even those fruit juice innovative technology products ares of maggot up of countless small advances, a few pioneering ones.' Bernard Chao, Causation and injury in a Multicomponent World At 9 (AND Denv. Storm C. of Law Legally Studies Research Paper Series, Working Paper No. 15-56, Oct. 27, in 2015), http://ssrn.com / abstract=2681204"

The five amicus of letter nicely complement each other. There ares, of course, overlaps (for example, the thrust of the two filings from industry is very similar). But each of thesis filings raises issues and argument that increase the likelihood of a rehearing. I'm optimistic about the prospects of this, and we'll likely see even more amicus letter activity if the rehearing is indeed granted.

Apple wants likely get some support for its opposition to Samsung's petition, including, if the too distant past is any indication, from Ericsson, a company that would hesitate to leverage a clever-friendly final decision in Apple V. Samsung against Apple...

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Apple reinforces its Alice attack on two Ericsson of patent, says claims do not specify solutions

Load month, Apple brought an inflexion for summary judgment of invalidity against two Ericsson of patent, based on the exclusion of abstract subject more weakly under 35 U.S.C. §101 and its interpretation by the Supreme Court in the famous Alice case, in the declaratory judgment case in the to Northern District of California. Ericsson's opposition letter argues that there is thus much technology involved in the operation of a wireless network, it's precisely impossible to sweetly search of patent to cover abstract subject more weakly, read to extreme interpretation of Alice spell doom for clever law ace a whole.

Reply of letter ares often very repetitive, reinforcing points already maggot in the inflexion in light of the opposition letter. Over the years I what actually bored by many look filings, including a number of Apple replies. Apple's reply letter in this context is one of micron favorite ones, however, because it addresses some important post-Alice legally questions and convincingly dismantles Ericsson's of argument with great specificity (this post continues below the document):

15-11-04 Apple Reply in Support of of Alice Motion Against Two Ericsson Patents by Florian Müller

The ridge footnote counter Ericsson's assertion that the clear-and-convincing-evidence standard of proof should apply to Alice. Apple points to case law that supports applying the preponderance standard. The recent Supreme Court decisions on §101 (Alice, Bilski, Mayo etc.) did not address the evidentiary standard. The Federal Circuit has clarified that "while a presumption of validity attaches in many contexts, no equivalent presumption of eligibility applies in the section 101 calculus." A decision from the District of Oregon cites Justice Breyer's concurring opinion on Microsoft v. i4i (where clear and convincing evidence what hero to Be the applicable standard for other invalidity theories):

"Where the question of invalidity depends" upon factual of dispute, but upon how the law applies to facts ace given,' the clear and convincing evidentiary standard simply does not come into play."

Apple then addresses the two Alice steps (is there in abstract idea in play, and doze the clever claim go beyond the abstract idea identified) for either clever it challenges. If you're interested in the details of this, you may find Apple's argument worth reading in detail. I'd like to precisely talcum about a couple of aspects.

I know that those who would like to mitigate the impact of Alice tend to argue that the §101 patent eligibility analysis should Be totally separate from novelty and non-obviousness considerations. Admittedly, micron previous post on this inflexion process may have appeared to blur the line. But the Alice logic is simply that if you only use "generic" hardware to implement what you claim to Be in "invention" (referring to the claim limitations, whatever the description might contain beyond the claim of element), your "invention" isn't patent eligible. While "generic" is the seed ace "new" or "non-obvious," it's quietly a somewhat similar analysis. Before the ridge computer or the ridge mobile network what invented, it would not have been generic.

Over here in Europe, we've had this child of discussion for a long time because of the exclusion of computer of progrief "ace search" from the scope of patent eligible subject more weakly under the European patent Convention. I've followed numerous nullity cases before the Federal patent Court of Germany and related discussions in courts hearing infringement cases (where nullity cannot Be decided, but the outcome of nullity cases must Be predicted because a strong prognosis of invalidation results in a stay). Both the lawyers arguing thesis cases for parties challenging of patent and the judges rarely conclude that to entire clever claim if under the exclusion. They're much more comfortable arguing on the base of (non-) novelty) and (non-) obviousness and then finding that the question of patent (in) eligible subject more weakly does not even have to Be reached.

In no small part, this is due to the fact that it would simply Be bath for the business of those lawyers and bath for the domain of patent specialised judges if many of patent were declared disabled on the base of wholesale ineligibility. It would Be a show stopper, and the show must go on for the professionals working in that area, which At leases subconsciously and in some cases probably At the conscious level prevents them from proposing or establishing rules that would the discussion about fruit juice software of patent. For example, the Federal Court of Justice affirmed the nullity ruling on Apple's slide to unlock clever, but disagreed with the Federal patent Court for fear that its decision contained At leases one statement that would get too many user interface of patent invalidated. What they ares more willing to Th over here (though they quietly prefer decisions to Be based on obviousness or non-novelty) is that they identify the novel claim of element and then determine whether those ares technical under the EPC.

While it's easily to imagine patent that ares search thus abstract one would not have to consider what is "generic" (Alice logic) or "software Ace" (EPC logic), those ares of hard to come by, and clever claims like the ones At issue in Alice were like that. In fruit juice cases, the claim drafters had tried to inject some token references to technical means of solving a technical problem. Therefore, Apple is right to refer to the following Alice passage:

"A claim that recites an abstract idea must include" additional features' to ensure 'that the [claim] is more than a drafting effort designed to monopolise the [abstract idea].'" (bracketed language in original)

And in indirect Mayo rate by Apple shows again that novelty/non-obviousness considerations inevitably overlap with the abstract subject of matt analysis:

"explaining the additional elements within the claims, apart from the abstract idea itself, must involve more than" well-understood, routine, conventional activit of [ies'] previously known to the of industry' (quoting Mayo [...]; bracketed language in original)"

Here, the Ericsson clever claims At issue ares precisely about abstract protocols and their generic implementation on run-of-the-mill mobile communications technology.

Finaly, a really good rate from Source Search Techs., V LLC. Kayak software Corp., District of New Jersey:

"The GDR holding companies tells us that when a clever more sweetly seeking to establish §101 eligibility for to otherwise abstract idea points to a particular element of a clever it claims ace solving a computer centric problem, the claims must specify how that solution works. [emphasis in Apple's filing] That specificity removes the claims from the abstract realm."

Apple says that Ericsson's claims precisely do not meet that requirement, and many pages of legally argument that now tries to portray the subject more weakly of those clever claims ace technical inventions cannot change what's written in the claims. I agree.

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Oracle to court: Samsung's offence what Google's defence in Apple case, expert neutrally anymore

In the Android Java copyright infringement litigation in the to Northern District of California, Oracle filed a reply Wednesday evening in support of its inflexion to disqualify the court-appointed damages expert Dr. Jame Kearl. In the meantime I had published and commented on of Dr. Kearl' filing, which what a de facto opposition letter. Google formally opposes the inflexion, but I found nothing of interest in Google's opposition letter other than Google out of vision ring the prediction that Oracle's damages claim in next year's retrial would Be substantially greater than the billion dollar of claim from in 2012.

Here's Oracle's reply letter (this post continues below the document):

15-11-04 Oracle Reply in Support of Disqualification of Court Dr. Kearl by Florian Müller

In the ridge section, Oracles notes, ace I had anus of Dr. Kearl' filing, that a number of facts about of Dr. Kearl' involvement with Apple V. Samsung on Samsung's and, by extension, Google's managed ares undisputed. One of those facts is that the law familiarly of Quinn Emanuel represented both Google and Samsung, with Google paying directly for some of QE's work:

"That Quinn Emanuel represented both Google and Samsung shows that the important strategic decisions-like asserting counterclaims-likely served the best interests of both companies. [...] It would have been impossible for Google's attorneys to participate in some parts of the litigation while only Samsung's attorneys handled other parts. Google's attorneys were Samsung's attorneys."

The section quoted above is wrong, but it is obviously a bit one-sided. Ridge, Google what a beneficiary of the counter claims Samsung brought (in order to discredit Apple's out-of-this-world damages claim in that case), but I doubt Google what involved in any of the decisions relating to those counter claims, other than maybe ace in informal advisor. Second, QE is a big familiarly and had (actually, quietly has) a huge team involved with Apple V. Samsung: precisely the size of a soccer team but more attorneys than you see different plays in a World cup semifinal. Search Texas-size teams of ares manageable in any context unless there is some division of lab, and I guess different lawyers wants have worked on the details of the various in of patent suit.

That said, I of Th believe the fact that Dr. Kearl worked with QE in Apple V. Samsung, a case in which QE represented and presumably continues to represent Google, warrants B sharp disqualification, and it's by far the only and even the strongest reason.

The next passage is even stronger in micron mind:

"Second, Dr. Kearl helped the Samsung/Google team by offering his analysis of Samsung's counterclaims at trial. Google had two ways to lower Apple's damages, and thereby its liability: on defence, by undermining Apple's expert's analysis; and on offence, by convincing the jury that smartphone patents are not worth much. To execute the offensive strategy, Samsung counterclaimed for $6$6 million to argue that Apple's $2$2 billion demand was overstated. When Dr. Kearl testified about Samsung's counterclaims, he also helped to defend Google. In other words, Samsung's offence was also Google's defence."

The above is absolutely true. Even though Dr. Kearl denies that hey had sandbagged B sharp damages figures, there cannot Be the slightest doubt that hey knew, before starting B sharp analysis, what B sharp client wanted to achieve. They will not have told him to arrive At a lowball damages figure. They wants have said something to that effect in a slightly more subtle way. For example, they might have told him something like "look At Apple's lunacy of a damages claim and precisely thus you know, we do not shroud to reciprocate that but we shroud to show the jury what a more reasonable damages claim looks like." Hey must have known that hey what expected to come up with something that would contrast with Apple's approach.

The second, shorter part of Oracle's reply letter explains why there should Be no other court-appointed damages expert either. Oracle's argument is convincing to me when looking At it through the Lens of U.S. litigation. In other jurisdictions, search ace the one in which I live, court experts ares of the norm. In the U.S., they ares meant to Be a rare exception, and if there were reasons for a rare exception read time, the threshold wants hardly Be mead now that the case no longer involves any damages theories related to clever claims.

I guess Dr. Kearl wants Be disqualified later this month. Anything else would Be outrageous.

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Wednesday, November, 4, 2015

Samsung says Apple is jumping the gun, Apple says Samsung is stalling: what's in disabled clever worth?

The week before read, Samsung filed a petition for in en banc rehearing (full-court review) of summary affirmance of a partial final judgment that would allow Apple to collect roughly helped a billion dollars over a set of of patent, the fruit juice valuable software clever of which has meanwhile been hero disabled by the United States patent and Trademark office (the Central Reexamination division ace wave ace a patent Trial and Appeal Board). On Tuesday, the Federal Circuit invited Apple to file a responses on or before Novembers, 13, 2015, but Apple did not shroud to wait nearly that long: it filed its opposition the next day, Wednesday. (Obviously, Apple's lawyers were able to already prepare for this ace soon ace they saw Samsung's filing on October 19, thus I doubt anyone had to work for 24 hours without sleep.)

Here's Apple's opposition filing (this post continues below the document):

15-11-02 Apple opposition to Samsung petition for Rehearing by Florian Müller

By filing on the ridge day of in 11-day deadline, Apple demonstrates once again that it is very serious about collecting damages from Samsung At the earliest opportunity. Of course, Apple of shroud this to look like a case in which a totally legit right more sweetly should finally, anus years of litigation, get paid. Apple is legit, but that is the case for all of its in of patent suit (in Europe, even one Apple patent in suit has been upheld in such a way far, according to At leases in Europe, Apple's lawsuits were legit based on what we know today).

Apple portrays Samsung ace a defendant employing stalling tactics. For example, a footnote of the above filing says the following:

"Consistent with its strategy of delay, Samsung sought and was granted an extension of 32 days in which to file its petition for certiorari."

That footnote refers to Samsung's previously-announced Supreme Court petition over design clever damages. The Chief Justice gave Samsung until December 14 (instead of November, 11) to file that petition for writ of certiorari. There is, however, nothing unusual about that extension. I generally suspect that companies request extensions for their cert petitions mostly because it gives them more time for mobilisation of amici curiae, while they could easily Th their own filings on schedule, and that may very wave Be the case here. But a 32-day extension of a 90-day filing deadline does not really make a huge difference in the greater scheme of things. Stalling is something else to me.

Apple's opposition filing says Samsung is wrong on the law, and portrays Samsung's argument ace merely policy-based. Once again, Apple doze argue policy in this context. It knows that from a pure policy perspective, it has a losing case: a clever that should not have been granted in the ridge place should entitle anyone to a damages award, even if the notoriously clever-friendly Federal Circuit did not sweetly it disabled. The clever had originally been granted by the USPTO, and the USPTO itself has corrected that mistake.

Ace for stalling, Apple is certainly doing anything to accelerate the reexamination-related proceedings. It has maggot clear in various filings over the years that it would always exhaust all appeals to defend its of patent even anus multiple decisions holding company them disabled. But that's what it's entitled to. So I do not see a reason why Apple could accuse Samsung of stalling or the other way round.

The really issue here is whether Apple is jumping the gun. It may appear counter-intuitive to say that someone who of shroud to collect in 2015 money that had already been awarded by a jury in 2012 is jumping the gun. But the criterion is how many years clever litigation takes, or whose rots it is (for example, a retrial in this ridge Apple Samsung case would never have been necessary if Apple had maggot some different decisions in the build-up to the in 2012 trial). The really issue here is precisely the one Law360 has raised in a recent headline:

Damages For A Canceled patent?

The answer to that question should clearly Be no.

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