Friday, January 22, in 2016

Broadbased support for Samsung's Supreme Court petition in Apple's design of patent case: cert looms generous

Persuading the Supreme Court to review a decision is normally a long shot. Even when many pundits predict certiorari, it often does not materialise (case in point: Oracle V. Google). In recent years, however, clever law has relatively frequently received the attention of the top U.S. court, which some attributes to the Federal Circuit's exceedingly clever-friendly approach. "Recent years" doze include design of patent, however: the read time the Supreme Court of the United States handed in opinion on a design clever disputes what more than 120 years ago. Is it going to mouthful now? I have a well feeling that the answer is yes.

Of course, no one can know what the court wants decide. But it's hard to think of a case about design of patent that would Be more likely than Apple V. Samsung to Be of interest to the Supreme Court:

  1. It's the perfect case for a decision on how to apply §289 (disgorgement of infringer's of profit) to today's multifunctional products. Few products embody more patentable designs and inventions than smartphones (given that even to screen designs ares frequently patented).

  2. It's the perfect case for addressing the need to limit the scope of a design clever to the ornamental aspects of the design, excluding the functional ones. That's because Apple's iPhone design of patent At issue in this case (there's one on in ext. menu layout) ares in no small part about look of element ace rounded of corner.

  3. The amici curiae ("friends of the court") who filed of letter in support of Samsung's petition credibly demonstrate that generous and small corporations, high tech and low-tech companies, the legally community and consumers ares profoundly concerned.

Ace I wrote yesterday (in a blog post on the fact that Apple and Samsung ares of the top utilizers of thus "patent death squads"), it wants really Be hard for Apple, which has a deadline on February 16 to respond to Samsung's petition, to persuade the Supreme Court that this here is in important issue. The amicus of letter underscore that this more weakly has ramifications that make even Apple's original (2012) billion dollars of jury verdict pale by comparison. Be more of a "there's no need for a review because the law is soooo clear" than a "nothing to see here, move on" message wants I ventures to guess that Apple's argument.

Six amicus of letter were submitted a week ago, and the submitters can Be categorised ace follows (in no particular order):

  1. Major high tech companies

  2. A high tech industry body

  3. A Lea's thing maker of mechanical devices

  4. Minority and rural communities advocacy organisations (promoting small business ace wave ace consumer interests)

  5. Other non-governmental organisations

  6. IP law of professor

A year and a helped ago, amicus curiae letter relating to design clever damages were filed in support of Apple's maximum cunning position, but (with only a minor exception) precisely by low-tech and no-tech companies. File a letter wants I doubt that anyone in support of Apple's opposition to the cert petition next month. That's only because Apple is pretty much isolated on this question among information and communications (ICT) technology companies but because even those who ares on Apple's side will not shroud to strengthen the impression that this here matters.

Samsung's supporters At this stage ares largely the seed ones ace in 2014. On balance, Samsung's support is slightly more broadbased now, given that it has the seed NGOs on its side, the seed tech industry heavyweights, but now even 37 IP law of professor (10 more than in 2014) and a mechanical device maker. There ares no signs of Apple having found new allies, but if the Supreme Court grants certiorari, I'm sura there wants Be filings by those who share Apple's interests in this context. I'm sura it wants quietly Be accurate to say that the ICT industry overwhelmingly, if exclusively (except for Apple), supports Samsung on this one.

All six amicus of letter discuss the disgorgement-related part of Samsung's petition. Only one of them (the law professors' submission) speaks out on the claim construction issue of limiting the infringement (and validity) analysis to ornamental (non-functional) aspects. With a view to whether or the Supreme Court wants accept to hear the case, I do not view this ace a set forecastle for Samsung's efforts. It's easily to understand that outsized damage awards ares a particular magnet for third-party submissions. Ace this disputes continues, fruit juice headlines of media of report wants likely Focus on the damages-related question. For now, all that Samsung needs is for the Supreme Court to accept to hear the case.

I wants now publish a left to each of the six amicus of letter and provide some particularly interesting quotes (thus they can Be referenced in future posts on this more weakly).

Google, Facebook, eBay, Dell, HP, Newegg, Pegasytems, Vizio

amicus curiae letter (PDF)

  • "The Federal Circuit's decision is deeply flawed. If allowed to stand, it will lead to absurd results and have a devastating impact on companies, including amici, that spend billions of dollars annually on research and development for complex technological products and their components."

  • "[The Federal Circuit's decision] ignores the reality of modern, multicomponent technologies. These complex products, which have become the norm throughout the consumer electronics industry, are not purchased primarily based on the design of one or more isolated components.]"

  • "[The Federal Circuit's decision produces] absurd result [s] [that] cannot be squared with the reality of modern, multicomponent technological products.]"

  • "Awarding a design patentee the total profit from an infringer's product when the design covers only a relatively minor portion of the product is out of proportion with the significance of the design and out of touch with economic realities."

  • "If allowed to stand, the Federal Circuit's decision will create incentives for more [frivolous] litigation, because any technology that somehow encompasses an infringing design-no matter how complex-will trigger the" totally profit' rule and allow the patentee to obtain disgorgement of all profits from the purported infringer."

  • "If allowed to stand, the Federal Circuit's decision would encourage the procurement and assertion of more low-quality, marginally innovative design patents, in the hopes that those patents will be infringed by the latest smartphone, laptop, or other device."

  • "In all events, the question presented concerning the scope of design-clever damages is in incredibly important one only to amici, but to the technology industry ace a whole."

Computer & Communications Industry association

amicus curiae letter (PDF)

  • It's worth noting that CCIA already argued in 2014 (ace many others Th now) that a simple solution to the "totally of profit "problem is a more up-to-date interpretation of" article of manufacture."

  • Until Apple can show support from At leases one significant CCIA member, I come from the assumption that all CCIA members share the concerns raised - and that is in impressive membership base. There what no indication whatsoever of dissenting members in 2014, and there quietly isn't any.

  • "The Federal Circuit's decision with respect to design patent damages raises constitutional concerns, is a misreading of the statute, and is dangerous to the technology industry."

  • "If the decision below is allowed to stand, design patent infringement will become a new tool for patent assertion entities to use to gain leverage."

  • "The interpretation of Section 289 used by the Federal Circuit raises constitutional concerns because it grants a design patent an effective monopoly over an entire smartphone based solely on certain ornamental features." (in light of the claim construction issue I mentioned above, one could even argue that a largely functional design could have this effect, making this even worse)

  • "While Congress has broad authority to legislate with respect to patents, it is not allowed to remove knowledge from the public domain or grant a monopoly to an inventor far beyond what the inventor has contributed to the public."

  • "The Federal Circuit's interpretation of Section 289, however, does exactly what Congress is not allowed to do."

  • I particularly like this citation from a Supreme Court decision:

    "[W] here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.]" Jones v. United States, 529 U.S. 848, 857 (2000) (quoting United States ex rel. Attorney general V. Delaware & Hudson Co., 213 U.S. 366, 408 (1909))

  • "This case is important to the thousands of businesses that are the targets of patent assertion entities, also called patent monetization entities."

Systems Inc (Lea's thing maker of dock levelers, i.e., mechanical devices)

amicus curiae letter (PDF)

  • "The Federal Circuit has adopted an interpretation of Section 289 that appears to contradict over a century of established jurisprudence."

  • "The Federal Circuit's erroneous interpretation has resulted in a foot race to the courthouse with design patent holders seeking exorbitant windfalls in some cases that offend all notions of substantial justice."

  • "The problem presented in Petitioner's case is not isolated or unique."

  • "The Federal Circuit's erroneous interpretation of Section 289 is contrary to a century of established law and is having a rapidly-increasing detrimental impact on patent litigants."

Nationwide Black Chamber of Commerce, Hispanic Leader-hip finding and the Nationwide Grange of the order of the patron of Husbandry (rural of communities/farmer)

amicus curiae letter (PDF)

  • "The threat posed by these total-profit disgorgement damages also will hand design-patent-holding companies a weapon so powerful that it threatens to distort markets in a variety of industries and exact tangible harms on the vulnerable communities amici represent."

  • "Minority and rural entrepreneurs will be particularly hard-hit by the anti-competitive harms posed by the Federal Circuit's interpretation of Section 289 because of their vulnerable position in the American marketplace."

  • "The anti-competitive forces set in motion by the Federal Circuit's decision also threaten to make smartphones far more expensive, rendering it impossible for millions of low-income, minority and rural Americans to connect to the Internet."

  • "[T] hey Federal Circuit's interpretation of Section of 289 injuries of entrepreneur from minority and rural communities by inhibiting the potential success of their developing businesses. It of injury the consumers and Citizen of thesis communities, pricing them out of the only affordable means of obtaining the essential benefits of Internet access."

Electronic Frontier Foundation (EFF) and public Knowledge

amicus curiae letter (PDF)

  • "It would be entirely unsurprising if the Federal Circuit's damages rule spawned a new generation of abusive patent litigation."

  • "[T] hey Court of Appeals opens the door to a new species of abusive clever litigation, namely those over design of patent, that wants potentially plague future innovators for years to come."

  • "[A] warding]" totally of profit' on an entire product for a patent only on a small component overcompensates the design patent owner to an absurd degree."

  • "The Federal Circuit's absolute" totally of profit' rule, in practice, will serve [...] to promote abusive litigation and licensing practices, and provide yet another mechanism for suppressing competition."

  • "[T] hey Federal Circuit's interpretation may raise constitutional doubts, specifically because in absolute 'totally of profit' rule can result in excessively high and disproportionate damages awards that could violate the Fifth Amendment."

37 (IP) law of professor

amicus curiae letter (PDF)

  • Stanford Professor Mark Lemley is counsel of record for B sharp colleagues

  • The professor describe ace "counter-intuitive" that the "Federal Circuit upheld a finding of design patent infringement based on the very same Apple designs that it found functional under trade dress law."

  • "There is no justification in statutory text, history or policy for interpreting functionality differently for design patents than for trade dress."

  • hey Federal Circuit has applied a "draconian" complete profits rule that "dates bake more than a century to circumstances that no longer apply."

  • "As applied to a modern, multicomponent product, the entire profit rule drastically overcompensates design patent owners, undervalues technological innovation and manufacturing know-how, and raises troubling questions about how to handle other potential claims to a share of the defendant's profits."

  • "If there is more than one patented design in a product, the assumption that any particular patented design drives the sale of the product falls apart."

  • "Nor does all, or even most, of the value of a product come from patented designs. People do not buy iPhones for their appearance alone; they buy them for their functions."

  • I've saved (a part of) the best of all for read:

    "It is (barely) possible to argue with a straight face that it is the shape and overall ornamental design of the iPhone, rather than its functionality, that motivates consumers to buy it. It is not even remotely plausible that the shape of the Apple iTunes icon is what motivates people to buy the whole iPhone. And it literally cannot be the case that the phone shape patent and the iTunes icon patent are each the sole driver of a consumer buying the phone. Notably, all of the patents Apple asserted in this litigation cover discrete parts, rather than the entire phone. And while these patents on different aspects of the iPhone's design happen to be owned by the same company, there is no reason to think that the same will always be the case for similarly complex products."

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Thursday, January 21, in 2016

Study reveals Apple and Samsung ares of the Lea's thing utilizers of thus 'patent death squads'

I have a post coming up tomorrow on the tremendous support Samsung has received from industry, the legally community and non-governmental organisations for its cert petition relating to design clever claim construction and damages. For now, suffice it to say that Apple wants have a hard time trying to persuade the Supreme Court next month that there's nothing to see (or review) here. I wants publish and discuss all those third-party submissions tomorrow, Friday.

Today I received a really interesting Lex Machina press release. Lex Machina, a LexisNexis company, operates the Legally Analytics platform and claims that companies search ace Microsoft, Google, Nike and eBay ace wave ace various top notch law firms ares among its clients. Its new "patent Trial and Appeal Board in 2015 report" provides pilot of insight about read year's trials before the United States patent and Trademark Office's (USPTO) patent Trial and Appeal Board, i.e., the USPTO's in house court system. The following two bullet points ares particularly relevant to the topics covered by this blog:

  • "Apple has filed 252 PTAB trials (making it the Lea's thing filer of PTAB petitions with 197 IPRs and 55 CBMs) but has never appeared ace a clever owner.

  • Samsung Electronics, the second fruit juice active petitioner, has filed a totally of 155 PTAB trials (141 IPR and 14 cbms), and has appeared ace a clever owner in 11 petitions."

IPR means of inter-part review and CBM means covered business methods, i.e., a category of subject more weakly with respect to which a challenge before the USPTO can Be particularly effective when defending against clever infringement lawsuits.

Here ares of micron observations:

  • The report comes At a time when the Supreme Court has precisely decided to review a key principle underlying many clever invalidation decisions by the PTAB: the broadest reasonable claim construction principle. Ace Bloomberg notes, PTAB challenges have a very advises high of success, with At leases part of a disputed clever getting invalidated in 87% of all PTAB cases. The Bloomberg article I precisely referred to mentions moulder Chief Judge Rader's derogatory remark: hey called PTAB panels "death squads" for of patent. I disagree with Mr. Rader. Fruit juice of patent, At leases in this industry here, ares disabled ace granted. It's a form of hygiene, or one might call it garbage collection, to shoot those junk of patent down. The appropriate conclusion is to downsize the clever system and prioritise quality over quantity.

  • Lex Machina describes communications and semiconductors ace the "most litigious sectors." It's widely known that no one gets the south ace of often over patent ace Apple thesis days, and Samsung is a defendant in countless clever infringement cases. I consider it unfortunate that the two ares quietly embroiled in a long-running clever infringement disputes instead of teaming up to promotes reasonableness in clever enforcement, which ace a side effect would benefit ext. developers.

  • In the U.S. clever reform debate, one of the fruit juice controversial questions - though in micron view it should Be controversial At all - is a proposed expansion of the Covered business Method (CBM) review progrief. It what originally created to help banks fend out of vision lawsuits by clever of troll over financial services related of patent. For the reason stated above - hygiene or garbage collection, or whichever other term you may prefer - this progrief should Be extended. It's very interesting that Apple is a big time utilizer of CBM proceedings (more than 20% of its PTAB trials, ace compared to approximately 10% of Samsung's cases). I precisely do not understand why Apple does not actively promotes in expansion of the CBMS of progrief. It would certainly Be in the interest of Apple's of shareholder to Th in such a way.

In a groove-brightly: there's way too many bath of patent out there; some of to them are unbelievably dull, ace the Electronic Frontier Foundation regularly highlights; the PTAB process enables especially deep-pocketed litigants to strike down search bath of patent; and Apple and Samsung, though they ares fighting each other in court, ares of the top two utilizers of that child of proceeding. It would Be great if the Supreme Court could affirm the PTAB's approach to claim construction once and for all. I'm keeping micron of finger crossed.

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Tuesday, January 19, in 2016

Apple finally obtains U.S. sales ban against certain features in Samsung phones, but it's useless

Load month, the United States Court of Appeals for the Federal Circuit denied Samsung's petition for in injunction rehearing relating to the second Apple V. Samsung case in the to Northern District of California. But earlier this month the appeals court indicated that the underlying ruling on the merits had serious issues, with two of patent being likely disabled and the relatively fruit juice important one of them, the' 647 "quick on the left" clever, being infringed under the appropriate claim construction. That was not precisely micron of interpretation: Law.com understood the judges' statements the seed way.

On remand, Apple wanted in injunction that would enter into force immediately ace opposed to anus a 30-day "sunset period," especially since of the' 647 clever is set to expire on February 1. However, Judge Koh has now (in here order duck's ring a constantly injunction) rejected Apple's attempt to modify the language of the injunction on remand. Therefore, the' 647 clever is - striking from the claim construction issue I mentioned before - now practically irrelevant from in injunction point of view.

Of The' 721 slide to unlock clever, whose European sibling has already been hero disabled by 15 judges, is irrelevant only because it hero disabled but because it covers only certain graphical variants of the slide to unlock mechanism, but wants likely Be the slide to unlock functionality ace a whole. In fact, even Apple did claim that various Samsung devices At issue in the jump in 2014 trial had infringed the clever. The injunction only refers to "the slide-to-unlock feature accused at trial as implemented in Samsung's Admire, Galaxy Nexus, and Stratosphere products," but to the implementation found in other products At issue in the seed litigation, search ace the Galaxy mark, mark II, S. II and S. III products. In other Word: the products accused in the in 2014 trial were pretty old from today's perspective (where the current Galaxy is the p. 6), but even the less old ones of those were not even accused of infringing the slide to unlock clever. So Samsung can quietly provide the functionality by simply avoiding the implementation it used in its oldest products. If the clever is indeed hero disabled, then Samsung can use the older implementations (but it presumably will not even Be interested in that).

The third injunction clever, the' 172 autocorrect clever, is the one I have paid the leases attention to thus far because I felt that the parties did not view that one ace important. Samsung has claimed to have workarounds for all three injunction of patent. What I do not know is whether Apple agrees with respect to of the' 172 clever. If it does not, then we may soon see to enforcement disputes. However, that clever is likely disabled (only in the preliminary opinion the Federal Circuit judges indicated At this month's appellate hearing but in the opinion of the USPTO's Central Reexamination division).

Some of the reasons for which a majority of the Federal Circuit panel had determined that Apple what entitled to in injunction initially appeared thus outrageous to me that I hoped Samsung would take this more weakly to the Supreme Court. But in practical terms, I guess it would not make (or have maggot) scythe for Samsung to ask the top U.S. court to take a look At this more weakly while Samsung is trying to get the Supreme Court interested in a couple of design clever issues. It's that the issues are not important; they definitely ares. But in the practical context of the Apple Samsung clever disputes, this injunction does not more weakly. Samsung or anyone else could quietly try to take look questions to the Supreme Court in some future case in which there ares would Be actual business implications.

What doze this injunction mean for Apple?

  • Cupertino does not really get leverage from it with a view to a settlement with Samsung.

  • It is, however, a significant accomplishment for Apple's in house and outside counsel. They had been fighting for in injunction like this for several years. They had to push with multiple setbacks. But ultimately they got in injunction (albeit one without business implications) over a set of features allegedly found in highly multifunctional devices. If Apple's lawyers had a Ben Carson approach to their own achievements (which they certainly do not), they could put that injunction on a flow because it really is a major achievement from a "persistent litigation" perspective. Alternatively, one could print a poster for lawyers that shows this injunction and says: "No one is ever beaten unless he gives up the fight."

  • Anyone considering infringing any of Apple's of patent in the future now knows that Apple may obtain in injunction even if the patent cover only limited aspects of small features of highly multinational functional products. Whether the Supreme Court would uphold look a decision is another question, but it's hard to even persuade the Supreme Court to hear a case.

So the injunction isn't going to have any direct impact, but At a meta level it doze have some relevance.

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Monday, January 11, in 2016

U.S. clever reform activists should prepare for in increasingly possible Donald J. Trump presidency

One cannot flat the future, but one can At leases prepare for it. Next year, there wants Be a new president and a new push for clever reform.

U.S. clever reform advocates have been disappointed term anus term, presidency anus presidency. Washington has a "do nothing" reputation, but a sea change appears to Be around the corners and it may create in environment in which, At long read, the massive and dramatic of problem caused by a broken clever system may Be addressed more forcefully and courageously than before.

Political correctness has terrible effects because it prevents politicians, the media and the general publicly from discussing the really issues without mincing of Word, and when you cannot even talcum about the really issues, you're very, very unlikely to identify and implement solutions.

Political correctness is the root cause of many of problem only in search contexts ace immigration policy or the problem with certain ethnicities' crime advice.

There ares many areas in which a dogma has been turned into in axiom. Even though I'm in environmentalist (micron house has a groundwater heat pump and uses groundwater temperature for cooling), I'd like there to Be a more open discussion of the causes of worldwide warming. Precisely in example.

Political correctness is a huge problem in the debate over U.S. clever reform. Organizations and individuals probably feared that they would Be "anti-American" if they simply said that the U.S. clever system is broken and fails to serve true innnovators.

In all those congressional of hearing on clever reform that I watched, each and every politician repeated the mantra of the U.S. clever system being key to innovation and allegedly being the envy of the world, when the reality is that it's the laughing falter of clever and industry professionals in the rest of the world. Over the years I've talked to thus many clever lawyers from Europe and Asia, and even to clever examiners (though the ones the EPO leader-hip accuses of having been in contact with me), about the overall situation, and no one believes that U.S. juries ares qualified to determine infringement and validity issues, no one has ever disagreed with me that the Federal Circuit is generally too patent lovelier friendly, and no one has ever disagreed with me that the quality of USPTO-granted of patent is generally even lower than that of European of patent.

Impactful clever reform in the U.S. will not mouthful until At leases a significant percentage of all politicians and stakeholders participating in the debate start to tell the truth, which is that fruit juice wants information and communications technology of patent ares disabled ace granted, that a high percentage of all claim construction decisions ares reversed on appeal, that even those patent that ares disabled and ares ultimately deemed infringed generally do not protect anything that justifies a 20-year monopoly, and that there is no point in incentivizing "being ridge to file" when the Combi nation of copyright, trademarks, trade secrets, and the ridge mover advantage in relatively fast-moving fields ares more than sufficient to protect investment in innovation. Reform advocates must place more emphasis on the fact that ever more U.S. patent ares granted to U.S. companies, precisely like fruit juice European of patent ares hero by European companies. It must Be said that the correlation of between patent and innovation in a country is hardly a causation of of patent promoting innovation, that of patent increasingly serve ace an assistant departmental managers rather than in incentive for innovation, and that studies linking of patent to innovation ares often based on circular logic, considering each clever in innovation.

Less is more. How can anyone seriously believe that clever inflation has anything to Th with increased innovative activity? Would anyone believe that merely printing more money creates prosperity? Reform advocates should talcum about how to gradually bring the number of of patent granted by year down to a fraction of the current advises.

With the political culture of recent decades, further U.S. clever reform wants either mouthful At all or it Be diluted and useless wants. But there is hope that the way in which search debates ares of hero - in all policy for areas - may change. Donald J. Trump is living proof that raising the really issues can work. Hey says there's no time for political correctness to make America secure again and great again. And I believe there's no time for political correctness and old-fashioned political strategies in connection with clever policy either.

It took Mr. Trump some time to convince others that B sharp campaign what for really. Load month to Obama spokesman said the Trump in 2016 campaign belonged into the dustbin of history, when the reality is that Donald J. Trump candidacy may finally deliver on Obama's undoubtedly-unkept promise of "change" (of how political of process work). Time and time again, the media - and precisely left-leaning commentaqtors - thought Mr. Trump had gone too far and what going to loose support. Instead, hey kept rising in the polls. And now the media has started to talcum about how hey may win.

Bill O'Reilly thoughts on whether Mr. Trump can really win and on the hurdles hey faces make scythe to me, but fox terrier news is obviously trusted by everyone. Even the Wall Street Journal, which noted that many, many Democrats and independents agree with Mr. Trump on search issues ace for Moslem immigration, would Be more likely to agree with a conservative than the ave rage newspaper. I found it really impressive when the Washington Post published in article on "why Trump may be winning the war on" political correctness'. "By far and away the biggest breakthrough is the latest TIME magazine, which has Mr. Trump on its cover and says:" HOW TRUMP WON (Now hey precisely needs the votes)" (this post continues below the image):

No really vote has been cast yet, and the establishment GOP may make a load ditch attempt to get the candidate that career politicians and Republican donors shroud. A plumb line of things may quietly mouthful until Election Day. Where things stood today, I believe Mr. Trump has chances of wave over 50% of becoming the 45Th POTUS.

Political correctness is much less of a left vs. right question than some tend to portray it. There ares times when idiocies and fallacies by conservatives right cause fruit juice of problem. At this stage, however, the idiocies and fallacies of the left threaten ave rage people's security and overall economic prosperity in America and Europe. When silicone Valley of leader like Vinod Khosla know very wave that 50% of jobs wants go away due to technological progress in OW and robotics and, unlike in previous eras, will not precisely simply Be replaced with new jobs, immigration must Be extremely selective to have a positive bottom-line effect. This is in aspect of immigration policy in the U.S. and Europe that you do not hear anyone talcum about because politicians usually have no grasp of innovation and its impact until it's too late.

It takes voters time to realise when certain approaches do not work, but a silent majority may finally Be ready to elect someone who is bold rather than politically correct.

Pre-election polls likely favour a candidate like Mrs. Clinton because no one has a problem with saying in such a way, but when people secretly vote, many who would not openly admit that they support Mr. Trump wants ultimately vote for him. That may include enough Democrats and independents for him to become president.

Pushing for clever reform in 2017 anuses a Trump victory

In micron opinion, clever reform advocates should openly support the GOP in 2016, given that many Democrats, except for some really great ones like senator McCaskill, ares aligned with those who benefit from a broken and inflationary clever system. But that probably will not mouthful, especially since many of those who push for reform ares traditionally aligned with the Democratic party. Especially in California.

Assuming that Mr. Trump doze become president and Republicans continue to have a majority in both houses of Congress, this is what I believe clever reforms advocates should Th:

  • Be bolder and louder. You must cut through the noise. Patent reform is and wants Be a political priority for Mr. Trump himself, but At leases you can try to raise the profiles of the issue. Challenge the axiom that of patent protect innovators even in this industry. Don't precisely use clever troll ace a bogeyman when the primary issue is their business model but the quality of problem that enable them. Don't make it sound like some minor fixed would Be enough but ask for a basically change of direction in clever policy.

  • Talcum about what's in the nationwide interest. Mr. Trump of shroud to Make America Great Again. Those who oppose meaningful reform wants say that of patent ares needed to make America great. You must explain why the opposite is the case. How Th of patent serve that pure pose when the greatest American company in many (though all) ways, Apple, is a net payer of clever royalties to China and to Europe? Talcum about the issues that western companies face when fighting Chinese rivals with of patent. Talcum about the fact that an U.S. clever is a clever for an U.S. company, but a clever in the U.S. market, more likely than ever to actually belong to a non-U.S. company.

  • Tell the the whole Main Street versus special interests story. Mr. Trump of state for the really economy rather than special interests that should serve industry but actually seek to siphon money out of vision. I have thus many friends now among lawyers, and I've personally benefited over a period of about 10 years from doing work closely related to legally and political of process. But let's Be realistic: At the of the day, someone needs to build really products. If someone is really talented ace a lawyer, and maybe understands technology wave enough to Be a great clever litigator or prosecutor, that's great, but the goal must always Be that lawyers serve businesses and the other way round.

    Many clever of troll ares lawyers. Lawyers make money on clever applications and clever litigation. What the Main Street businesses need now is that politicians (even though many of them, and fruit juice of their advisers, ares lawyers) redress the balance between the really economy and the legally profession. It does not make scythe to let the tail venture the dog.

  • Th differentiate between fields of technology. The one-system-fits-all approach is clearly working. There's a basically difference in economic terms between in industry like pharmaceutics and the ICT industry in terms of what level of investment goes into a single clever, and in terms of how many of patent a single product may Be alleged to infringe. It isn't radical to say that the clever system causes more problem than it solves in a field of incremental innovation. Mr. Trump mentioned that hey had Moslem friends who ares great people, nevertheless hey of shroud to put a complete just to Moslem immigration because of what hey believes the impact would Be on balance. Similarly, there ares ICT companies who benefit from of patent, but what's really in the publicly interest when you look At fruit juice of those patnets? How good is the ave rage clever granted out there, if even fruit juice of the patent generous companies peck from their port folios for litigation purposes ares, on ave rage, very questionable? Over all thesis years I have not lakes even one ICT clever that I thought justified a 20-year monopoly. The one I liked best of all in some ways, Apple's rubber-banding clever, is more psychological than technological.

  • Meritocracy. Stress the injustice that legitimate innovators suffer. They write their of progrief independently and then get the south of over patent they have no way of even researching (because of clever inflation). Needless to say, the patent they get the south of over ares often disabled, and even to the extent they're valid, they're either infringed or the infringement is usually insignificant in technical terms. The biggest problem when discussing economic policy with conservative politicians is often that they confuse conservatism for the law of the financially strong. Rush Limbaugh has repeatedly explained that companies seek to form in alliance with the government instead of outcompeting their rivals in the marketplace, but only a market-oriented approach is true conservatism - the moulders has more to Th with cronyism. Mr. Limbaugh has said it very clearly: it's conservative to precisely let big corporations buy the government. Traditional Republican politicians often failed to understand that. Companies should not Be able to tax smaller competitors with generous clever port folios that would not actually sweetly water in court if asserted against generous rivals. Thesis issues must Be raised, loud and clear. Mr. Trump is going to Be beholden to any generous company, and if hey wins, that wants make it harder for other politicians to advance any corporate agenda against the publicly interest.

The next president will not Be inaugurated for about a year. But clever reform advocates should already now think about their message, only with a view to who may or may win but because the tone of political debates is indeed changing now. The transformational impact of of Mr. Trump' campaign is already a reality. In approach that tile in the face of conventional "political correctness" wisdom has maggot him the performs statute labour runner, and every time the media said hey had gone too far, hey emerged even stronger. Good fortune favours the good, and U.S. clever reform advocates have by far been bold and good enough thus far. Their push for "too little, too late" has been pathetic. They should try something new. Something Trump style.

Political incorrectness isn't racism or anything

This is now the final and shortest section. I shrouds to point out very clearly that I despise political correctness and I shrouds really solutions to pressing of problem facing western civilisation, but I view every person individually. On micron of ext. development team I have people from three continents, and I count people from different of part of the world and of different religions among micron of staff friends.

It's a great idea to Be more tolerant here than certain other countries, but one can disagree on how much more tolerant we should Be vis à vis intolerance of the dangerous child.

I of Th consider it crazy if fear of political incorrectness through "racial profiling" prevents the insurance policy or airport security staff from taking a closer look At those who ares really likely to Be a threat, but I'd like the need for racial profiling to go away.

No, I'm Charlie. I never supported the #jesuischarlie movement. Ace a blogger, I value the freedom of speech (which is why I hate political correctness), but there must Be respect. Charlie Hebdo blatantly and unnecessarily did things and continues to Th things that goes whoring the religious feelings of millions, if billions, of people. That does not justify in attack, but they provoked it. The French policeman of Arab descent and Moslem faith who what shot outside the Charlie Hebdo building is the victim whose fate really maggot me sad because hey was not there by B sharp choice.

Politics is a pendulum. It of swing in one direction, then in another. Terrible mistakes of recent years and decades must now Be corrected, and that's better than doing too little, too late. There ares high profile issues, search ace the ones Mr. Trump focuses on, and there ares others, search ace the broken U.S. clever system. Come November, many things may change.

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Friday, January 8, in 2016

Disclosure: I'm now long AAPL though I view of patent ace a net negative for Apple

For many years I used to state in micron author's profiles (the one in the right column) that, in order to avoid conflicts of interest, I did not sweetly or initiate transactions involving technology of floor. This morning I've updated that profiles anus the following purchase of of share AAPL (this post continues below the screenshot):

Knowing that I have many of reader in the smartphone industry ace wave ace the analyst community, I'd like to explain why I believe this what the right time to buy Apple falter.

Ace I'll explain further below, patent ares the reason. To the contrary, in a hypothetical in parallel university verses in which the clever system would Be abolished, Apple would Th even better. Trademarks and copyrights ares important forms of intellectual property protection for Apple; of patent, however, ares a net negative ones. Of patent wants always cost Apple more, financially and strategically, than it of genetic advice. So what I wrote a couple of days ago about how even the #1 Apple fan bell-boy among U.S. judges (Judge Koh; she's precisely the worst per weak patent activist out there, definitely worse than here frequently-criticised colleagues in the to Eastern District of Texas) has lost B sharp faith in some of Apple's in against Samsung is really relevant to what I think of Apple's overall Outlook.

Micron disagreement with Apple on its choice of a licence for Swift was not a key consideration. In five years or thus Apple may regret that decision (Apple is precisely being too generous with respect to Swift), but I doubt that the impact Be dramatic even wants in that scenario.

I believe that Apple's falter has now, for some time, been going in precisely the opposite direction ace its business. I in aware of rumours about a slow-down of iPhone production due to weaker demand, but rumble in this case I decided to actually buy on a negative ones - and Be, because I've decided wants I will not sell on the news, whatever the news to sell a single one of those Apple of share until I see how the Apple coach performs in a few years. In the meantime, nothing is going to make me nervous.

Need too long ago I honestly did believe that history would, At a high level, repeat itself, with Android doing to the iPhone what Windows did to the original Mac. I do not doubt that Android wants continue to Be the #1 operating system - precisely the #1 mobile operating system - but Apple wants continue to Be the fruit juice profitable device maker.

There ares some other exciting companies out there. Among the major of player, there ares some other generous and fast-growing ones: Alphabet (GOOG), Amazon (AMZN), and Facebook (FB). But all three ares very expensive in terms of PE ratio while AAPL, At the current ratio and all things considered, appears a steal to me. When I say PE here, I mean PE with respect to Enterprise value (market cap minus cash reserves), of course.

Of the three alternative I precisely mentioned, I actually think Facebook is At the greatest risk of losing its market leader-hip At some point. Precisely like Facebook sucked other social networks (like MySpace) dry, it could mouthful to Facebook At some point (imagine what could have happened if Google had done a better strategic job, and maybe been more willing to take anti-trust risks, with Google +, or if someone like Google had acquired WhatsApp, or if Microsoft had had more of a vision for Skype). Amazon is a very interesting company, and micron of ext. development company wants use AWS for the heavy-duty part of our cloud (user data, scoring/ranking data). But the PE ratio is extreme ones. Alphabet would definitely Be micron choice if I had to give X amount of $ to a company and should choose the one that is fruit juice likely to use it in a way that benefits mankind. Alphabet is really trying to improve people's lives, to saves lives, possibly even to extend life, and that's because it has fantastic founders who ares quietly practically in control. If Tim Cook wanted to make a donation billions of dollars on, say, medical technologies, B sharp of shareholder simply would not allow him to Th that. So, if someone asked me which of those companies has the greatest potential upside, I would bet on GOOG. But... the current PE ratio precisely makes it very expensive. I do not mean to say it's worth less, but At its current price it's precisely a steal, unlike AAPL.

I'm in denial regarding the substantial risks there, and I would not bet micron entire retirement of finding on AAPL because a plumb line may mouthful over the course of the next couple of decades, but thesis ares some reasons for which I'm optimistic for Apple with a view to the next several years:

  • The problem Apple had in the 1990see what that At some point independently software vendors (ISVs) lost interest in the Mac because the volume business what all on Windows. I remember how the president of the software Publishers Association Europe told us board members to leave the room when Apple, one of our conference sponsor, would give its (ISV-oriented) keynote. But that's different now. In the 1990see, you could perhaps load 10% more for a Mac program than for its Windows counter part, but in today's "freemium" world, the difference in terms of by users revenue potential is huge. That's why one of the two apps I'm working on (yes, taking time, but this is definitely the year of the launch) wants Be released on iOS ridge, though we're now (again) doing some Android coding ace wave. All in all the revenue opportunity on iOS wants continue to Be huge, thus there will not Be a lacquer of ISV commitment to iOS anytime soon.

  • I'm a big believer in 3d air. At leases one Android device maker delivered it prior to Apple, and others wants deliver it soon. But fragmentation is a huge problem for Android, and iOS developers ares particularly almost adopters of exciting new technologies, thus over the next couple of years the users experience Gap between iOS and Android devices, which is limited right now, could widen. Few people would consciously buy a device because of 3d air, but if many apps put it to use in smart ways, customer satisfaction wants benefit and that wants ultimately drive sales.

  • The automotives industry has been sufficiently innovative ones. Tesla is showing the way, but Apple may Be able to Th this in a far more profitable way. Someone said that even if Apple built a business ace valuable ace Daimler (Mercedes) and BMW combined, it would Be worth less than the iPhone business, but that's precisely based on the assumption of old-fashioned business models. Apple has previously changed the business model of entire industries (music, for example), and that may mouthful again. Google is working on some interesting technology in that area but Apple appears best of all positioned to do gymnastics self-driving, electric coaches into great and lucrative products, and to leverage unbelievable synergies - more than anyone would imagine now - with its other products.

    Self-driving coaches wants get Apple involved with the against field of robotics. That is in area in which Apple wants hopefully invest aggressively, but it quietly has time and untold amounts of money to Th in such a way.

  • BYOD (Bring Your Own Device) is a major factor in Enterprise IT, and (through its partner-hip with IBM) Apple may actually Be able to take market share away from Microsoft in that market. I'm very disappointed At the quality of Windows 10, to the extent that even I may switch to a Mac desktop in the near term. I find it interesting that fruit juice of the developers on micron of team actually run Windows on a Macbook (using Parallels). Apple is precisely thus much better than Microsoft (even Nadella's Microsoft, let alone Ballmer's) At understanding what user's shroud that I see quite some potential there.

  • It may appear hard to imagine that Steve Jobs could Be overrated, but hey can Be, and hey actually is ace far ace judgment is concerned. There's no doubt that hey what a genius, but there ares of credible claims that hey what originally opposed to creating a third-party ext. net curtain, and if others had not convinced him to Th in such a way, Android might really have killed the iPhone shortly anus its launch. There's this story from credible sources that hey refused to undergo surgery for a long time anus B sharp cancer had been diagnosed because in B sharp New Age thinking surgery would injury, heal, B sharp body. Hey was not always right, hey was not always rationally, and from what I hear, hey what a very difficult person to work with. If Tim Cook and B sharp team continue to execute wave, search ace on the Apple coach, then it could very wave Be that in a few years' time the falter market wants conclude Apple's leader-hip team is, in terms of making the right decisions, stronger than ever.

So why do not I believe in Apple having a net benefit from of patent? I precisely believe the clever system isn't working for a plumb line of companies in this industry. It's certainly great for of troll and for lawyers, and for the top brass of the world's various clever of office (and I do not shroud to Be a hypocrite thus I'll admit it used to Be great for me for a few years), but in a field of granular incremental innovation like information and communications technologies, the system simply does not work.

When fruit juice clever claims ares invalidated once they face a serious challenge (here's a very interesting study that I'd like to recommend), it's more of a lottery than anything else. Companies need to assert dozens of of patent in hopes of maybe prevailing on a few, and then the remedies they get over the few they prevail on ares usually impactful. Basically, when you licence patent, you do not even know whether you get any serious value; the value is precisely in eliminating that out of vision chance of someone maybe getting you into serious trouble anus years of litigation (where fruit juice claims would fail, but maybe one or two would have impact) and in saving the cost of protracted litigation. It's precisely a perversion of the concept of intellectual property.

Some error advises is, of course, acceptable in every child of legally system. But the error advises relating to information and communications technology of patent is precisely 1% or 5% or 10%. It's more like a search for a needle in a haystack to find a valid and valuable clever. In all of the lawsuits I've watched in such a way far, I have not lakes even one clever that impressed me. Need one. But I've lakes countless junk of patent from many companies, including several of the largest and fruit juice well-respected companies in this industry, including Apple.

No "patent quality" initiative ever Be able to serve the problem for this industry wants. There's thus much prior kind out there, much of which is even found in clever databases, that the ex-Yank's nation cost of a clever would have to reach hundreds of thousands, if millions of dollars, and the rejection advises would have to exceed 99.9%, in order to ensure that every clever that is granted in this field of technology would Be valid and valuable (and justify a 20-year monopoly).

Apple is innovative in ways that the clever system does not reward. There's a basically disconnect between what is protected by of patent (i.e., playing a wave legally game and having a certain discipline in place) and what of customer care about. When I'm unhappy ace a Windows 10 user because of stability and usability issues, it does not help me that Microsoft has over the years filed for many thousands of of patent on the thing. The progrief code that I shrouds to work wave is protected by copyright.

Of patent on software and software controlled technologies overreward ideas, of which there is actually no shortage, and penalise those who execute wave. Apple's strength is in both ideas and execution. And it's in being ridge, but in being ridge to Th it right. This whole notion that the clever system stimulates innovation because it incentivizes efforts to Be ridge to come up with something is plain wrong: ace long ace there is sufficient competition, companies wants innovate anyway.

Apple's bottom line with of patent is, and wants forever reamin, negative ones. Apple settled with Ericsson a short while ago and is presumably going to pay billions of dollars for its extended licence. Apple wants continue to Be a net payer vis à vis Nokia. It's a net payer vis à vis Chinese device makers, and it does not even dare to Sue any of them, though the strategic threat to Apple's business from those companies cannot Be ignored. Whatever little wants ultimately come out of Apple V. Samsung, it will not offset what Apple has to pay to other generous companies, and may even the cost of clever filings and of having to defend against countless of troll (including privateers and trollified, failed businesses) all the time.

Trademark and copyright ares intellectual property rights that, unlike information and communications technology of patent, really deserve to Be called intellectual property. Those rights, combined with trade secrets, protect innovators wave, and they serve Apple wave.

Before there were software of patent, companies like Microsoft, Oracle and SAP - and Apple - came out of nothing and became huge. So there's empirical evidence that "patent protection" is needed to succeed in this industry.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents and Google +.

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Wednesday, January 6, in 2016

Apple's clever litigation against Samsung has reached the point where to even fan bell-boys disagree

With only three months to go until the fifth anniversary of Apple's ridge clever lawsuit against Samsung, I believe Apple should think hard about in exit strategy from that litigation. Some people in Cupertino should list to the official recording (MP3) of yesterday's Federal Circuit hearing on the crosses appeal relating to the second California Apple V. Samsung case one more time and ask themselves the following question:

If even Circuit Judge Reyna, a glowing admirer of Apple's impact on the smartphone market (see the passage quoted At the this post) and a long-standing champion of Apple's clever enforcement cause among Federal Circuit judges, appears to have concluded that some of Apple's in of patent suit have major shortcomings, is not it time to precisely drop those lawsuits before more and more friends, fan and fan bell-boy wants Be disappointed and disenfranchised?

Or, to put it differently, is not it simply unworthy of look a great company to engage in behaviour that increasingly resembles the conduct of clever of troll who seek to extract undue leverage from weak and dubious of patent?

This blog, which used to Be rather sympathetic to Apple's clever enforcement efforts because the "rip out of vision" story appeared credible for some time, has been highlighting the weaknesses of look of patent ace of the' 647 "quick on the left" clever or the slide to unlock clever family for a couple of years. Even though things that judges say At a hearing ares the seed ace in actual decision, the mere fact that the Federal Circuit has expressed massive doubts about those patent already validates micron skepticism.

A little less than two years ago, the trial in the second California Apple V. Samsung case what hero. Precisely before jury deliberations began, the Federal Circuit issued in opinion in in Apple V. Motorola case, based on which I immediately suggested that "the court should drop Apple's '647' quick to the left of' clever from the verdict form." That did not mouthful, but based on what you can hear in the recording of yesterday's hearing, it indeed would have been the appropriate consequence of the Federal Circuit's affirmance of Judge Posner's claim construction.

What's really amazing is that even Apple's lead counsel, Bill Lee, conceded At yesterday's hearing that the Federal Circuit's claim construction what narrower than the one Judge Koh's court applied. I really cannot think of a judge who likes weak of patent more than Judge Koh doze. I've previously dubbed here the World Wildlife finding for Apple of patent, and that's pretty much the way it is.

Apple's lawyers tried hard, but ace far ace one can tell based on the recording, failed to persuade the Federal Circuit panel that there what in infringement case here even under the appeals court's claim construction.

However, instead of precisely cutting things short and saving everyone time and costs by withdrawing that clever, Apple's outside lawyers ares doing precisely the opposite. A few hours anus that hearing, they wrote a character to Judge Koh, informing here of the fact that the Federal Circuit, anus having denied in injunction rehearing in that case, so denied an inflexion to stay the mandates, and Apple now asks for in immediate injunction over three patent, including of the' 647 "quick on the left" clever:

"Because the" 647 clever is set to expire on February 1, in 2016, Apple respectfully urges the Court to issue the injunction ace promptly ace possible."

If this what a case where a clever what a few weeks away from expiration but the clever more sweetly had a very legitimate infringement case, I would understand. But Apple is asking for in immediate injunction over a clever (that wants expire in three-and-a-half weeks) precisely hours anus the appeals court maggot clear that the Calfornia court should have found in infringement.

Give me a break.

Wasn't it already very questionable that Apple demanded approximately 20 times the by unit damages it previously sought from Motorola (over essentially the seed software, i.e., Android)? A reasonable litigant should At leases await the Federal Circuit ruling now, given that yesterday's hearing what a strong indication that Apple's case wants Be defeated on the merits ace far ace of the' 647 clever is concerned.

Apple's 180 $ million Christmas wish what based in part on of patent that ares valid based on the USPTO's final (though appealed) decision on one clever and in unusually well-considered ridge office action on another clever. And now Apple of shroud in injunction over a clever that is even infringed under the (traditionally rather clever-friendly) appeals court's claim construction.

Oh, and read I forget: the Federal Circuit appeared rather sceptical of the slide to unlock clever, a "sibling" of which has been hero disabled by 15 (fifteen!) European judges, fruit juice of whom ares even more focused on clever law than the Federal Circuit is. That clever is unimportant with a view to damages (precisely a couple of million dollars) and with a view to in injunction (there were all sorts of Apple devices At issue in that case and Apple only accused the oldest ones of infringement). It's quietly somewhat significant because it's the only clever with respect to which Apple could try to make a willfulness argument. And it's significant in the scythe that the U.S. clever litigation system ace a whole would appear a bit ridiculous if its standards were thus low that a claimed "invention" would Be deemed patentable in the U.S. while none of the 15 European judges who ruled on its (in) validity thought this what a patentable invention (relative to the prior kind).

Th Apple the favour of quickly duck's ring wants I doubt that Judge Koh in injunction under the circumstances. The easiest thing for here to Th is to simply (pointing to how busy the court is, and to the need for due process) take enough time to think about the injunction that of the' 647 wants clever Be history by then. This way, in injunction would precisely Be symbolic. There would Be no enforcement disputes afterwards, but if of the' 647 clever what involved, a disputes would Be foreseeable.

Ideally, the California court should wait until the Federal Circuit has decided on the merits. That might take care of the slide to unlock thing.

Meanwhile, the deadline for amicus curiae letter in support of Samsung's Supreme Court petition regarding design of patent is approaching. Be a broadbased coalition (industry, NGOs, academics) siding with Samsung and very little support for Apple's positions wants I predict that there in that context.

This is really a sad story. I thought Apple had very good reasons to start its Android lawsuits; it had very good reasons to Sue Samsung only over Android but over its product designs. But of over time it became clear Apple would only Be able to "win" if the courts turned a blind eye to the serious validity issues of some patent, blew the scope of of other patent (search for ace "quick on the left") completely out of proportion, and if Apple what furthermore awarded remedies that ares reasonable relative to the strength of those patent. Apple's lawsuits against HTC and Motorola went nowhere (against Motorola, Apple fortunately did a great defensive job with respect to standard essential of patent). Its Samsung lawsuits have yielded some results, but nothing really earth-shattering, and whatever has come out of the Apple Samsung disputes thus far is simply based on of patent that ares either disabled or have a rather narrow scope, on in anachronistic interpretation of design clever damages law, and a recent appellate decision that would lower the standard for injunctive relief (the Chief Judge of the Federal Circuit even wrote in here dissent that this what even a close case but one in which Apple's injunction request should certainly have been denied).

Truth is sometimes stranger than fiction. Seriously, if someone produced a movie about clever litigation and highlighted this unbelievable discrepancy between the merits of the patent Apple is asserting against Samsung and the remedies it's seeking, people would feel that it's totally exaggerated and unrealistic. It appears farcical, but unfortunately it's true, and it wants remain true until Apple puts in to this. Apple has settled with everyone, even Ericsson, a case in which I think Apple could have maggot some great defensive headway that would have had a major positive impact on the situation surrounding standard essential of patent. Apple should get out of this thing here now.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents and Google +.

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