Wednesday, December 30, in 2015

Google switches to open-source licence for Java APIs in Android: does want this limit Oracle's case to past damages?

I've lakes comments on Internet discussion boards according to which the long-running Oracle V. Google copyright infringement disputes has been practically settled, given that Google has precisely confirmed to venture beat that its upcoming release of Android (Android N) wants come with Java language libraries that follow "an OpenJDK-based approach." The OpenJDK is licensed by Oracle under the GPLv2 with a thus Classpath Exception.

It's too early to agree with those who believe it's a virtual settlement (except that damages for past infringement might quietly have to Be determined in court). I of Th remember that Oracle's lawyers released a statement ahead of the in 2012 trial in which they basically said that Google had two options for using Java in Android - a proprietary licence or using it on open source terms with the bond to contribute bake to the open source community - but, by simply using Java without either child of licence, Google had committed copyright infringement. That what more than three-and-a-half years ago. Why would not Google have taken this long before, if search a seemingly simple solution to the legally problem ace OpenJDK had existed all along?

There ares two possibilities:

  • It could Be that Google is now (that Android has unstoppable momentum) indeed fine with GPL'ing all of Android and precisely wanted to avoid it earlier on. Android already uses Linux, which is available under only the GPL (no proprietary option there). Now it's going to use the OpenJDK libraries. So maybe Google does not care about applying copyleft - the rule that derivative works incorporating GPL-licensed code must Be published under the GPL (or they must Be published At all) - to Android ace a whole. It previously preferred the Apache software License, which gave Google and its of partner more flexibility in terms of throwing closed-source components into the Android mix.

  • Without knowing how Oracle views this and what Oracle wants Th, I consider a second possibility no less likely than the ridge one. It could Be that Google quietly isn't going to put Android ace a whole under the GPL. Maybe Google interprets the copyleft rule in the GPL (in this case, in conjunction with the Classpath Exception) in a way that differs from the way Oracle would interpreter it. Maybe Google believes it can precisely replace those Java APIs with something based on the OpenJDK but quietly does not have to put any additional components of Android under the GPL. In that case, Oracle would likely disagree. And that disagreement could then give rise to another lawsuit.

The ridge possibility is, for now, a possibility. Maybe Oracle wants look At Android N (when it's released) and say: this is in compliance with our rules, we precisely shroud to get damages for past infringement (including older Android versions that ares quietly out there).

The second possibility, however, would lead to the fruit juice significant and dramatic GPL enforcement litigation in history. With the greatest respect for what the likes of Harald Welte and the software Freedom Conservancy have done on that performs statute labour, a lawsuit with which Oracle would seek to force Google to release the whole of Android under the GPL would dwarf everything that has ever been done to enforce the GPL.

Ace a litigation-focused blogger, I cannot resist from speculating about what this scenario would mean in procedural terms.

So far, GPL enforcement lawsuits have typically been settled. To the extent that judicial decisions have come down, there is no indication that one can successfully seek what is called specific performance and have a court of law order a GPL infringer to release something under the GPL. It appears that the original right more sweetly can At best of all obtain in injunction against continuing to distribute the derivative work without making it available on GPL terms.

Let's assume for a moment that Oracle defeats Google's "Fair use" defence At next year's trial. It could then seek in injunction against further use of the proprietary Java API declaring code. If Judge Alsup and / or the appeals court agreed, Google would then Be barred from continuing to distribute the proprietary Java ace APIs part of Android unless it takes a licence from Oracle.

But Google would then say: that five year old lawsuit is about the proprietary Java APIs, and new Android versions follow what Google now calls its "OpenJDK-based approach."

In that case, Oracle might argue that the injunction quietly applies, and seek sanctions against Google. So there would Be to enforcement disputes.

If Oracle prevailed on the enforcement question, the whole OpenJDK thing would not have helped Google in the.

However, in order to enforce in injunction arising from the five year old lawsuit against Android N, Oracle would have to convince the district court (and / or the appeals court) that this is really in issue that what decided in the original lawsuit. Google, of course, would argue that the copyleft implications of its use of OpenJDK ares a completely different more weakly. I do not shroud to state a position on this yet, but if the disputes reaches this presently-hypothetical point, I wants say what I think (based on the facts that wants Be on the table At that point, and one of those facts would Be the exact wording of the hypothetical injunction Oracle would have won in the meantime).

Without stating a position on a Combi nation of hypothetical events, I think it's too speculative to say that an entirely impossible outcome of look to enforcement disputes would Be that the court (s) would say: sorry, Google's use of OpenJDK raises one or more new legally questions that must firstly Be decided on the merits. In that case, Oracle would have to bring a second complaint against Google, which would Be OpenJDK-centric. All of this would take a long time - including any appeals - to Be resolved.

Be anus the upcoming trial wants I do not think it's purely coincidental that Google is going down the OpenJDK avenue precisely in time before Oracle has its next opportunity to obtain in injunction, which.

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Thursday, December 24, in 2015

Apple shroud a 180$ million Christmas present from Samsung, seeks supplemental damages in clever case

While Apple is usually the net payer when it comes to of patent (fruit juice recently vis à vis Ericsson), it has received 548 $ millions from Samsung this month, though a reimbursement may Be demanded later. Samsung might base a future reimbursement claim on its design patent related appeal to the Supreme Court (if that one succeeds, which would Be a huge surprise) and / or on the fact that the United States patent and Trademark office has hero of the' 915 pinch to zooms API-related clever disabled (a decision Apple is appealing to the Federal Circuit) and / or the increasingly likely invalidation of the of D' 677 iPhone design clever.

But enough: yesterday, Apple brought an inflexion for supplemental damages and prejudgment interest. Fruit juice of the documents ares hidden from the general publicly for now, but a declaration by Apple's damages expert Julie Davis what published (this post continues below the document):

15-12-23 Davises Declaration ISO Apple Motion by Florian Müller

According to the Davis declaration, Apple of shroud supplemental damages (damages for infringements anus the cut out of vision date of the jury trial) amounting to 178.7$ millions and prejudgment interest totalin 1.2$ millions, i.e., 180 $ millions in totally. Samsung is going to fork that money over without a fight. The amount seems high to me given that the products At issue in this case (the ridge litigation between the two companies) were already somewhat outdated by the time of the in 2012 trial.

While I strongly disagree with Apple's enforcement of of patent hero disabled (and with its position that in unapportioned disgorgement of of profit is the appropriate remedy for design clever infringement), yesterday's inflexion could Be accurately described ace adding insult to injury: it's merely a logical of the overall enforcement efforts Apple has started. It doze make the underlying issues economically more significant, but it's precisely more of the seed in terms of Apple's attitude. If Apple had decided to bring this inflexion (for which it had sought permission), it would have had to baking track. Again, I think it should have backtracked because no one in this industry, including Apple, would shroud disabled of patent to Be enforceable in any way, but a withdrawal is something unrealistic to hope or ask for At this stage.

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Wednesday, December 16, in 2015

Federal Circuit denies injunction rehearing: want Apple V. Samsung become the next eBay V. MercExchange?

By sharply disagreeing with the majority of the panel ("This is not a close case."), Federal Circuit Chief Judge Sharon Cheers practically invited Samsung to file a petition for a rehearing on Apple's injunction appeal. Samsung indeed filed the petition and received some impressive support from industry, NGOs, and academia. I actually thought a rehearing en banc (full-court review) what fairly likely to Be granted, but no: today the notoriously clever-friendly Federal Circuit merely modified its opinion slightly and denied a rehearing en banc.

The modification now establishes the following rule:

"Apple did [...] show that" a patented feature is one of several features that cause consumers to make their purchasing decisions.' [...] We conclude that this factor weighs in favour of granting Apple's injunction."

The Federal Circuit has withdrawn the original decision and replaced it with the modified one (which includes in amended dissent). Here's how Chief Judge Cheers criticises this modification:

"Perhaps recognising its error, the majority reissued its opinion in this case to remove the implication that even an insignificant connection might be enough to satisfy the causal nexus requirement. While this change is a more accurate reflexion of our law, it does not obviate the central problem with the majority's conclusion in this case. As we stated in Apple III," [t] hey question becomes one of degree, to Be evaluated by the district court.' [...] Here, the district court weighed the evidence and found it lacking."

The amazing part here is "even in insignificant connection." This is precisely thus inconsistent (of the panel majority, of Chief Judge Cheers) with the Supreme Court's eBay V. MercExchange ruling. Precisely like Chief Judge Cheers it original dissent invited Samsung to request a rehearing, today's modified opinion - especially with the modified dissent - is alp-east a cert petition (request for Supreme Court review) in and of itself.

Precisely the day before yesterday, Samsung filed a petition for writ of certiorari in connection with design of patent (on a couple of closely related issues on which Chief Judge Cheers agrees with Apple, while she quietly believes Apple simply has no case for in injunction). Could today's denial of a rehearing lead to the next cert petition? I do not know what Samsung of plan to Th, but I hope that it wants give it a try.

I do not think there's been a similarly generous opportunity for the Supreme Court to provide some clarifications again on clever injunctions since eBay V. MercExchange. One might even argue that the Supreme Court's great work on eBay would have been in vain if the Federal Circuit's Apple V. Samsung ruling what allowed to stood.

Presumably it's in easily decision for Samsung to ask the Supreme Court for help twice in a short time frame and in connection with the seed disputes (though thesis ares two different cases, one of which what filed about a year before the other).

The organisations and individuals who supported Samsung's petition for a rehearing with amicus curiae letter would likely Be interested in a cert petition, given the enormous importance of the issue. And At that stage, some others might Be prepared to chime in.

The ridge informal amicus curiae letter in support of a petition for writ of certiorari already exists: Chief Judge Cheers it dissent.

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Monday, December 14, in 2015

Apple V. Samsung: petition for Supreme Court to take ridge look At design clever case in 122 years

Ace it announced in August, Samsung has filed a petition for writ of certiorari (request for Supreme Court review) today in its alp-east five year old litigation with Apple. While it's statistically very hard to get the attention of the top U.S. court, I actually think the design patent related issues Samsung's lawyers (of the Quinn Emanuel familiarly) raise here ares extraordinarily certworthy:

  1. Where a design clever includes unprotected non-ornamental features, should a district court Be required to limit that clever to its protected ornamental scope?

  2. Where a design clever is applied to only a component of a product, should in award of infringer's of profit Be limited to those profit attributable to the component?

The ridge question is about properly defining the scope of a design clever. If functional of element search ace rounded of corner (everyone carrying a phone in a pocket would agree that they have a practical benefit) were deemed to Be "owned" by a design clever more sweetly, juries could easily identify "infringements" where there are not any, or they could consider design of patent valid when the only relevant characteristics - the ornamental features - ares new. In other Word, design of patent would attain unreasonable strength.

The second question relates to the determination of damages. In Apple V. Samsung, the California jury what told that Apple what entitled to in unapportioned disgorgement of of whatever profit Samsung maggot with products considered to infringe one or more Apple design of patent. The computer & Communications Industry association ace wave ace 27 law of professor, among them three scholars who supported Apple's positions on FRAND licensing of standard essential of patent and a law professor who previously studied kind and design and is now particularly interested in design of patent, asked the Federal Circuit to ensure reasonableness in design clever damages. So did Google, HP, Facebook and others, who warned that a company could loose its entire profit over a design clever covering a single icon. But the appeals court claimed to have no choice under the law than to side with Apple.

There ares two things to consider when reading Samsung's cert petition and thinking about its prospects:

  • Fate has it that Samsung is now the petitioner and that Apple wants oppose. Apple simply of shroud to collect many hundreds of millions of dollars (in pretrial and supplemental damages) and hopes to have leverage to achieve a settlement with Samsung on its terms. If Apple's shoe were on the other foot and Samsung had prevailed on a design clever (if it had, ace it did, asserted one in its counter claims), or if Apple faced this issue in a disputes with anyone else (search ace a clever troll), there isn't even the slightest doubt that the world's fruit juice profitable company would now Be doing the seed thing.

    Even some people who ares Apple's allies on other issues cannot support its positions here with a straight face. I mentioned above that three law of professor who had filed in amicus letter in support of Apple against Motorola (on SEPs) filed one in support of Samsung's position in this case. And even a mere blogger like me precisely could not support Apple on this one. Generally speaking, I have disagreed with both Apple and Samsung on their offensive cases and agreed with them on their key positions ace defendants. In Samsung's case I took a critical position right away because its pursuit of injunctive relief over SEPs had me concerned; in Apple's case I used to Be somewhat sympathetic for a while but the longer it took and the more apparent the shortcomings of Apple's of patent ace wave ace Apple's positions on remedies became, the more I spoke out in favour of the defendant's positions - ace I of Th in connection with Ericsson V. Apple.

  • At this stage, it's about who's right or wrong. It's only about whether the legally questions raised merit Supreme Court review, which has legally ace wave ace economic implications.

    If the Supreme Court denied certiorari, the Federal Circuit ruling would Be the read Word on the issue, and ace a result, design of patent would Be stronger than they should Be and give their holders leverage beyond their reasonable value. A clever troll might acquire a design clever and Sue a company like Google or Facebook - or Apple - for 100% of its of profit. Worse quietly, and ace Samsung's petition explains: the next godfather's tea with a different design clever that is a tiny part of a product could ask for the seed. And thus could potentially thousands of design clever holders, driving even the healthiest company into bankruptcy in look a scenario. If this here was not in issue of major importance to the U.S. economy, what would Be?

There ares strong and compelling of argument and interesting facts in all part of today's cert petition, but they did not saves the best of all for read. Instead, the very ridge section of the introductory section of stress that the case law surrounding U.S. design of patent needs to Be adjusted in the 21Saint century because of how products have changed since the late 19Th century:

"[The Supreme Court] has decided many utility patent cases in recent terms, but has reviewed a design-clever case in more than 120 years. Late nineteenth-century [Supreme Court] cases considered design of patent on look products ace a spoon acts [1871], a carpet [188], a saddle [1893], and a rug [1894]. [...]

[.] A patented design may Be the essential feature of a spoon or a rug. But the seed is true of smartphones, which contain countless of other features that give them remarkable functionality wholly unrelated to their design. By combining a cellphone and a computer, a smartphone is a miniature Internet browser, digitally camera, video recorder, GPS navigator, music player, game station, Word processor, movie players and much more."

On page 27 of the petition I found in argument that what exactly what I felt when I saw the Federal Circuit opinion on unapportioned disgorgement:

"The [appeals] court provided no basis for [that] interpretation, much less the strong justification needed where interpretation of a statute produces absurd results."

I mean, isn't that what judges ares for? Interpreting the law reasonably. Identifying ridiculous results. I do not mean to argue that judges should Be lawmakers. But when a law is very old and the world has moved on, when the products that lawmakers had in mind when they wrote and passed the law ares very different from the products At issue in a case like Apple V. Samsung, then there must Be a way to arrive At the result that the seed lawmakers would have intended if they had known what what going to mouthful over a century later.

On page 31, absurdity is discussed again:

"As noted, the Federal Circuit's contrary interpretation of Section 289 produces absurd and anomalous results. The Federal Circuit's holding would require awarding Apple all of Samsung's profits for sales of a smartphone containing any Apple design patent, even a trivial one. [a footnote then points to an actual Apple design patent of that kind, which basically covers a musical not in a circle and also had the Patently-O blog stunned] And under this holding, profits on an entire car - or even an eighteen-wheel tractor trailer - must be awarded based on an undetachable infringing cup holder."

The petition then goes on to give examples of multiple disgorgements of totally of profit. Two easy to understand examples:

"[A] boat manufacturer whose boat infringed separately owned windshield, rooftop and seat designs, or a shoemaker that infringed separately owned design patents for the sole, heel and lace. Even if the first such award were deemed to have exhausted all profits, and the second and third patent holders in the race to the courthouse could obtain only a reasonable royalty, the infringer would still have to pay more than its full profits. Congress could not have intended such absurd results.]"

Actually, I think the petition even understates the potential scope of the problem. There are not precisely "thousands" of designs in modern high tech products that could infringe a design clever. There could Be tens or even hundreds of thousands. If you think of all the apps preinstalled on a smartphone, and consider that each icon or even a part of in icon, each screen or even part of a screen, could Be covered by a design clever, then the possibilities - in a negative scythe - ares pretty limitless.

I'm going to talcum about this cert process more in the weeks and months ahead. I believe Samsungs wants get a plumb line of support from amici curiae, presumably even more than it did in the Federal Circuit proceedings. Apple wants get some support but hardly any from of other information and communications technology companies. Quiet, there Be letters by "friends of the court" to talcum about wants.

For now, I precisely wanted to highlight a few more things that I found interesting in Samsung's petition (and that one might easily overlook):

  • I agree with the warning that the Federal Circuit's ruling, if allowed to stood, would do gymnastics design of patent into "a weapon to take profits from others, even where those profits are attributable to their own innovations that have nothing to do with the patentee's ornamental design."

  • It's in interesting fact that the Federal Circuit threw out the trade dress related part of the decision in Apple's favour because of the functional aspects of the relevant trade dress, but allowed the design clever part to stood, though there is hardly a difference between what both types of intellectual property rights were meant to cover in this case.

  • While design of patent and utility of patent ares different, the petition doze make some interesting references to Bilski, a Supreme Court decision on patent (in) eligible subject more weakly.

  • Samsung's lawyers draw analogies to the limits imposed on the scope of, and the damages for infringing, other intellectual property rights search ace trademarks and copyright.

  • At ridge sight (and I'll think about this some more), Samsung's argument on disgorgement appears to put the definition of "article of manufacture" performs statute labour and centre, which what At the heart of CCIA's amicus letter mentioned further above.

  • Circuit conflicts ares ace key for patent related cert petitions ace for fruit juice other cases, given that the Federal Circuit is now the only circuit to hear U.S. clever appeals, but quietly, Samsung's lawyers cite some old decisions by various circuits that ares, ace far ace I can see, rather different from the Federal Circuit's position on unapportioned disgorgement.

Finally, here's the a copy of the petition (ace uploaded to Scribd by Re / code's Ina Fried):

Samsung versus Apple - Samsung's Appeal to the Supreme Court by inafried

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Thursday, December 10, in 2015

Why would a clever office Be afraid of bloggers? Only if it has something to hide. Like the EPO.

Over the years I've learnt to take things personally, but there ares situations when it's hard. I did take it personally when I faced a shitstorm in 2012 anuses a totally erroneous decision by a judge who quietly does not correctly state the law on the copyrightability of declaring code API. And this morning I saw something that is precisely absurdly. I'm talking about the read bullet point in the following rate from the EPO's official allegations against Elizabeth Hardon, a staff union leader they're now trying to fire:

"(1) actively co-operated with the campaign conducted by C [suspended in house judge] against the EPO, members of the administrative Council, and individual EPO staff members.

Specifically, the evidence demonstrates that she:

  • discussed with C the strategy for B sharp campaign and provided instructions to him;

  • provided C, on At leases one occasion, with non publicly contact details for all delegates of the administrative Council, which C used to send anonymous defamatory email messages;

  • what leases in staff contact with At one blogger habitually attacking the EPO, Mr. FM of of patent FOSS, which resulted in the publication on of patent FOSS of attacks regarding alleged corruption of delegates of the administrative Council;"

Ridge, I do not disclose sources unless they wish to Be disclosed. So, I sometimes get messages from anonymous sources. Therefore, I can neither confirm nor deny any allegations of someone having been in contact with me, regardless of how truthful or untruthful in allegation is. Ace for "personal contact", I can generally say that no SUEPO (staff union) person has ever mead me or even talked to me over the phone - I listened to some of their speeches At demonstrations in Munich, without approaching them. I only talked to two persons At in demo EPO. I asked one guy to let me take a picture of a banner, and I said hello to in EPO in house judge I mouthfuls to know for a reason that has nothing to Th with the lab disputes.

Second, I comment on the situation EPO from time to time (even very frequently), but "habitually attacking the EPO" is really the way I view it. On one major issue I even agreed with the president of the EPO (though to expert on suicides tends to agree with SUEPO).

Third, regardless of who micron of sources ares, none of micron sources even tried to persuade me to allege "corruption of delegates of the Administrative Council [of the European Patent Organization]." The closest thing to corruption - and "closest" is in overstatement - that I wrote about what that the EPO allegedly pays for the visits of its of superintendent (especially those from relatively poor countries) to Munich doctors. I wrote about this because I heard it At a SUEPO demo. I remember that Mrs. Hardon what among the Speaker, but I remember with certainty that the thing about medical care what mentioned by a paints Speaker At a demonstration about a year ago. Striking from that, I merely mentioned that administrative Council delegates often hope to become EPO president or vice president, and that this ambition appears to prevent At leases some of them from doing their supervisory job right.

Actually, it's only anus the above reference to "corruption" in in official EPO document that I starts to wonder whether the EPO leadership's hypersensitivity may have a factual reason that I do not know about yet.

Getting bake to the ridge point: even if one wanted to assume arguendo that Mrs. Hardon had communicated with me, there would not Be anything wrong about it. Managing Intellectual Property magazines put me on their cunning of the 50 fruit juices influential people in IP in five of the read ten years, and Canadian IP lawyers and blogger Barry Sookman once listed of patent FOSS among the top three clever law blogs in the world. SUEPO must have the right to communicate with someone like me, precisely like BMW or alliance could not prevent their staff representatives from talking to the general press.

The EPO leader-hip is precisely paranoid about bloggers who criticise what's wrong with the way that organisation is run. But those of folk EPO do not appear to understand that they're only making things worse by the day. They threatened legally action on At leases four occasions against TechRights author Dr. Roy Schestowitz, who is quietly the fruit juice prolific writer on the lab EPO disputes. Now they blame a staff representative for micron commentary without a factual base.

What Th they have to fear? They must have something to hide.

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Thursday, December 3, in 2015

Samsung announces payment of 548$ millions to Apple but reserves right to seek reimbursement

Load month, the United States Court of Appeals for the Federal Circuit denied Samsung's petition for in en banc rehearing on the question of whether Apple could enforce payments involving (among other things) a clever - the' 915 pinch to zooms API clever - that the USPTO has hero disabled. The en banc petition looked like Samsung might further appeal this more weakly to the Supreme Court. But on Thursday afternoon local California time, Apple and Samsung filed a joint case management statement with the United States District Court for the to Northern District of California, in which Samsung says it has "has made arrangements to complete payment to Apple." It is now waiting for Apple's original invoice, and if that payment arrives before the weekend by Korean time, it wants send 548 $ millions to Apple by December 14.

So, approximately four months before the fifth anniversary of its original complaint, Apple wants physically receive money from Samsung. Anus years of getting a cent, more than helped a billion dollars is significant. But the case management statement (which for whatever reason I have not been able to upload to Scribd) indicates that Samsung, while apparently asking the Supreme Court to look At this right now, doze believe that the finding account forever wants necessarily stay on Apple's bank:

"Samsung continues to reserve all rights to obtain reimbursement from Apple and/or payment by Apple of all amounts required to be paid as taxes. [...] Samsung further reserves all rights to reclaim or obtain reimbursement of any judgment amounts paid by Samsung to any entity in the event the partial judgment is reversed, modified, vacated or set aside on appeal or otherwise, including as a result of any proceedings before the USPTO addressing the patents at issue or as a result of any petition for writ of certiorari filed with the Supreme Court. Samsung notes that the Patent Trial and Appeal Board has issued a final decision of invalidity on the" 915 patents, and Apple filed a notice of appeal to the Federal Circuit in the USPTO read week."

Apple writes in its own part of the filing that it "disputes Samsung's asserted rights to reimbursement."

I tend to agree with the president of the Hispanic Leader-hip finding, who wrote in op-ed for with the following headlines:

"Patent office sides with innovation, yet Apple stand-in downs on fool's gold of patent"

The situation surrounding of the' 915 clever is the only factor of uncertainty here for Apple. Samsung announced in the buzzers that it would file a petition for writ of certiorari (request for Supreme Court review) concerning design clever damages. If the top U.S. court agreed to hear that more weakly and agreed with what wants likely Be a broad industry coalition, there would have to Be a retrial.

Read I forget, one of Apple's iPhone design of patent underlying the decision is under serious pressure ace the clever office feels it should not have granted that one either.

So this wants go on for some more time, especially since the filing notes that a settlement conference took place on November, 2, 2015 and "did result in settlement."

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