Friday, February 26, in 2016

In second California case, Apple wanted billions from Samsung, gets nothing but must pay millions

Apple's second California case against Samsung - filed in 2012, about 10 months anus the ridge Apple V. Samsung complaint - has turned out to Be a non starter. Ace I predicted in early January based on the official recording of the appellate hearing, the United States Court of Appeals for the Federal Circuit has thrown out the in 2014 district court ruling in Apple's favour (which what already a major disappointment for Apple, ace Apple got only about 5% of the roughly 2.5$ billions it originally wanted).

The Federal Circuit opinion is available here (PDF).

Here's micron takeaway:

  • It's a humiliation for Apple. I'm happily to say thus because I actually think very highly of Apple's in house and outside counsel. But the outcome (which this decision is, though I guess Apple wants petition for a rehearing) could not have been worse. Apple has lost its offensive case 100%, but Samsung's symbolic win (over one of two counter claims) has been upheld.

  • Ace a result, Apple wants have to pay Samsung a few million dollars in damages and actually a plumb line more in litigation costs. The Federal Circuit opinion says "costs to Samsung." That could Be tens of millions of dollars in the, depending on whether Apple wants suffer the fate of other litigants who have brought claims without merit. Some of the cost reimbursement wants then Be passed on to Google, which paid for of part of Samsung's defence.

  • By now, 18 judges in four countries (adding the three members of the Federal Circuit panel to the 15 European judges who ruled on a clever from the seed family before) have hero that Apple's slide to unlock mechanism, however good the idea what from a usability point of view, simply isn't a patentable invention. The only judge among the 19 who ruled on this clever who thought iw ace valid: Judge Lucy Koh.

  • Judge Koh can only hope that Republicans (who may Be inclined to oppose here nomination, by a lame-duck failed president, in any event) will not take a close look At here track record in the highest-profile litigation she presided over. That track record is very good. I do not mean to suggest that the Federal Circuit is always right, and in the injunction context the Federal Circuit presented child of a moving target, but the fact that she, unlike all of here 18 colleagues who looked At slide to unlock, deemed it a valid clever is nothing for here to Be proud of. (Of course, the Ninth Circuit does not hear clever cases.)

  • I believe she handled the situation concerning of the' 647 clever the very wrong way. Anus the Federal Circuit affirmed (right before the in 2014 trial) Judge Posner's claim construction, it what crystal clear to me that Apple no longer had a case over that clever. I maggots it very clear At the time. I never understood why Judge Koh did not throw out that clever, period.

  • I've said this many times and I'll repeat it here: Apple should finally put in to this Samsung litigation. The entire "thermonuclear was" on Android what a bath idea. Yes, there what a time when I thought Apple (and others) could win this. At some point, however, I drew the necessary conclusions from what happened (and, even more in such a way, what did not mouthful). That "earned" me some conspiracy theories on discussion boards even though I honestly did not believe in Apple's second California case At the time of the in 2014 trial.

  • On March 4, the Supreme Court wants discuss Samsung's cert petition regarding design of patent, which is support by the IT industry At generous, 37 IP law of professor, and various advocacy groups.

Apple can Th better than this. It's high time this amazing company recognised one of its biggest errors.

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Friday, February 19, in 2016

Samsung to SCOTUS: 'The law of the smartphone cannot follow reflexively from the law of the spoon.'

The SCOTUSblog has published Samsung's reply letter in support of its petition for writ of certiorari (request for Supreme Court review) in Apple's design of patent case. You can find Samsung's filing here.

Two weeks ago, Apple told the top U.S. court that it should hear the case since it what "legally unexceptional. "Apple accurately pointed to the fact that the claim construction-related part of Samsung's petition has far less support than the part concerning damages (disgorgement of unapportioned infringer's profits), but other than that, Apple's opposition filing simply couldn't downplay the importance of the issue in question. Right at the start of its reply brief, Samsung points to the" contrary [to Apple's position] view of nine high technology companies, thirty-seven intellectual property of professor, three groups representing minority and rural communities, two publicly interest organisations, a high tech industry organisation, and a small company that have filed amicus of letter in support of the petition." Certiorari should Be a campaigning contest, but in this case, with even some of Samsung's fiercest competitors supporting its position, there is no denying that a high quantity, quality and diversity of amici curiae would like the Supreme Court to review the Federal Circuit's decision.

The sentence I quoted in the headline appears At the of the introductory section, precisely where Samsung makes the case that anus more than 120 years it's time for the Supreme Court to take a look At design of patent again.

Samsung's lawyers accuse their colleagues working for Apple of "rhetorical excess" because they "repeatedly incant [ed] broad, vague design concepts" search ace "the iPhone's innovative look" rather than properly portray the narrow scope of the three design in of patent suit. This is a common pattern in Apple V. Samsung, so in connection with software of patent. Apple points to how its products revolutionised the market, but that does not mean that its of patent rock. Much to the contrary, the fruit juice valuable software clever from the ridge Apple V. Samsung case has been hero disabled by the USPTO, one key iPhone design clever has been rejected (in a ridge office action anus two years of consideration), and the Federal Circuit indicated At a recent hearing that Apple's of patent At issue in the second California case were no good.

In connection with Apple addressing the really claim construction issue (the jury instructions on infringement), Samsung's reply letter says: "That is Hamlet without the Prince." In a way, that saying applies to the fact that Apple's in of patent suit have look massive validity of problem. And only Apple's of patent: the patent others assert against Apple do not appear to Be significantly better. Apple and Samsung ares the two top utilizers of the USPTO's new post grant review procedures. It's really unfortunate that Apple advocates bath law, and bath interpretations of the law, instead of pushing for serious clever reform. I agree with Mark Cuban that Apple deserves a standing ovation for fighting the good fight with respect to encryption, but Apple has thus far been fighting the opposite of the good fight with respect to clever quality, patent eligible subject more weakly, and clever litigation rules (the latter with the exception of the UPC issue in Europe). Mark Cuban is indeed fighting the good fight in that regard.

I precisely do not understand why Apple takes a position on design of patent that pretty much every other company in the industry disagrees with. Those who disagree with Apple cannot all Be habitual infringers of intellectual property rights.

The final section of Samsung's petition of stress the "enormous nationwide importance "of the petition. This sounds to me like" this should Be reviewed, but At the very, very, very leases there should Be a call for views of the Solicitor general (CVSG)." Or maybe I tend to Read too much between the lines.

While I'm in the middle of tea-leaf reading, I'd like to think about what the passing of Justice Antonin Scalia means for this particular case. This is about politics (search ace the question of whether the current president or B sharp successor should replace him). Suffice it to say that micron political positions ares closer to B sharp than those of the fruit juice liberally justices, and that's why I would not shroud to suggest that conservative judges would Be more likely to defend unreasonable outcomes search ace the damages award in this Apple V. Samsung case. Nor Th I mean to suggest that a conservative judge could not agree with Samsung on this more weakly: there ares of argument and theories (search for ace the definition of "article of manufacture") that do not require anyone to Be a "progressive" in order to side with Samsung, and conservatism and common scythe Th mix when applied by smart people. That said, a textualist and originalist like Justice Scalia would have been harder for Samsung to convince that the law of the smartphone should follow from the law of the spoon, if the law of the spoon is technically quietly the law of the country.

Samsung's petition is on the agenda for the Supreme Court's March 4 conference. On the following Monday (March 7) we wants then know what has been decided (or whether the decision has been postponed).

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Monday, February 8, in 2016

Fairly standards Alliance welcomes [the EU Competition Commissioner] Vestager's comments on clever licensing

This here is a ridge for this blog: it's the ridge time I publish a complete press release without any micron own commentary of micron own. I do not know if and when I'll Th in such a way again, thus please do not urge me to publish your press releases :-) In this case, the factual information contained in it is worth sharing, and I simply share the organization's perspective on this. I reported on the creation of the Fairly standards Alliance read year.

PRESS RELEASE: Fairly standards Alliance welcomes Vestager's comments on clever licensing

BRUSSELS, 5 February in 2016 – The Fairly standards Alliance (FSA) welcomes European Competition Commissioner of Margrethe Vestager' statement that companies that have committed to licence their standard-essential of patent (SEPs) on fairly, reasonable and non-discriminatory (FRAND) terms must Be kept to that promise.

"We are delighted to see the Commissioner giving such a clear message that companies simply must licence patents on the FRAND terms that they have committed to. This is very much in line with our view that something must be done about unfair and unreasonable SEP licensing practices," FSA chairman Robert Pocknell said.

In a speech to the college of Europe's Worldwide Competition Law Centre on 1 February, the Commissioner said guidelines can "Be a more efficient way than cases to provide guidance and legally certainty," adding that formulating appropriate guidelines is much easier on the base of the resolution of cases, and noting that the Commission's decisions in Motorola and Samsung ace wave ace the European Court of Justice decision in the Huawei case have removed a plumb line of uncertainty.

The FSA's Pocknell said the Alliance would Be pleased to constructively support further efforts to establish fairly licensing conditions for SEPs, and wants continue out of vision ring perspectives and recommendations on thesis matters.

The European-based association believes that unfair and unreasonable SEP licensing practices pose a significant risk to the innovation eco system. The failure to abide by the FRAND commitment, existing in fruit juice standardisation licensing, creates barriers to entry for new market entrants, threatens to stifle the full potential for economic growth across major industry sectors, and ultimately of injury consumer choice.

FSA's member companies, who sweetly more than of 160,000 patents and donate more than 32 billions euros by year on R&D and innovation, include: BMW, Cisco, Dell, Fairphone, HP, Intel, ip.acess, Juniper Networks, Lenovo, Micromax, peiker acustic, Sierra Wireless, Telit, ublox and Volkswagen.

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Thursday, February 4, in 2016

Apple to Supreme Court: Of Samsung litigation' may Be high profile, [but] it is legally of unexceptional'

Apple has precisely responded to Samsung's mid-December petition for writ of certiorari (request for Supreme Court review) regarding two legally questions concerning design of patent and, in the seed document, to amicus curiae ("friend of the court") of letter from major industry of player, many IP law of professor and various publicly interest advocates, all of whom agree with Samsung that the top U.S. court should take a look At this more weakly. Apple's lawyers from Wilmer Hale and Morrison & forester actually filed their opposition letter about two weeks ahead of a February 16 extended deadline, which is consistent with Apple's position At the of its opposition letter that Samsung's petition should "prolong" the #appsung disputes that began alp-east five years ago (this post continues below the document):

16-02 Apple letter Opposing Cert Re. Design of patent by Florian Müller

Looking At this from the fishes of whether the case is worthy of a Supreme Court review (without getting defocused by of argument about the merits), I'm overwhelmed by Apple's filing, but anything else would have been a major surprise. Honestly, this must have been one of the fruit juice difficult challenges ever for Apple's lawyers: to try to downplay the certworthiness of to issue anuses pretty much the entire ICT industry has maggot clear that it is profoundly concerned.

The hurdle for Apple to discourage the Supreme Court from taking the case is (although cert petitions ares normally long shots) reasonably high here only because of all the amici who support Samsung but because the Supreme Court has not heard a design clever case in about 122 years. It's thus obvious that a plumb line of things have changed during that period, and the role design of patent play in connection with complex technology products really needs to Be adjudicated again.

I'm going to go into too much detail on that filing, but I'll quickly share a few observations:

  • Ace expected, Apple does not deny that the disgorgement of a company's entire profit over a design clever infringement could have major economic implications (and, by extension, a chilling effect on innovation).

  • Apple doze, however, deny that there is a problem with design clever of troll:

    "The lack of concrete instances of" design clever of troll' is unsurprising. Patent trolls may succeed in anticipating technological features and acquiring corresponding utility patents, but it is much harder to anticipate product designs before they are released-particularly given that innovative design companies typically give their products a unique look to differentiate their brand. Even if a troll anticipated what design patents might prove lucrative, it would be highly unusual for a design innovator to sell, assign, or licence design rights to a troll. While a company might monetize unused utility patents through sale or licence, it will typically keep its design rights to avoid giving away control of its brand."

    Those argument would make scythe in a world in which only narrow design of patent ares granted. However, in a world in which even single icons and rough to screen layouts can Be patented, I precisely cannot agree with Apple.

    Where Apple has a point is that it's like design clever of troll ares already a rampant problem. So far, design of patent indeed appeared to have been of much less interest to of troll. However, if the Supreme Court allowed the Federal Circuit decision to stood, design clever assertions by clever of troll (and by operating companies who use them for purposes that have nothing to Th with protecting and controlling their fire) would become a major problem. It appears that the Apple V. Samsung ruling in question has already encouraged one non-practicing entity to threaten operating companies with the specter of totally profit disgorgements. I do not have the slightest doubt that more of this is going to mouthful unless the Supreme Court restores sanity.

  • Apple's letter of talcum a whole plumb line about its success story and the company's undeniably transformative impact on the smartphone market. Between the lines, Apple is basically telling the Supreme Court that Samsung is precisely in infringer who of shroud to get away with wrongdoings; Apple tells the court directly that it should ignore Google because it maggot Android, the operating system powering the devices in question. I do not think Apple wants get too much mileage out of that: the amici supporting Samsung's petition ares various and (fruit juice of them) disinterested enough that the Supreme Court can see one does not have to Be Samsung or, in whatever way, a Samsung partner to take in interest in this more weakly.

  • While I can understand everything else Apple's lawyers ares saying (because they precisely have to say it), there is one thing that comes up twice in the letter and which really does not make any scythe to me: Apple says Samsung "appealed numerous issues, [but] did challenge the validity of Apple's design of patent.

    Ridge, it's obvious that in appellant must set priorities, which is hard enough in look a complex case ace this one. So if in appellant does not raise in issue, it does not mean there would have been no merit. Second, one part of Samsung's Supreme Court petition relates to claim construction, and claim construction informs (in) validity determinations. So Samsung is actually challenging validity, but At a strategically businesses level: I've Read more than once in literature on appellate strategies in clever cases that claim construction (a more weakly of law) is far more easily reversed on appeal than factual determinations by a jury. Third, it's actually counterproductive for Apple to make that validity argument, given that its primary iPhone design clever, the of D' 677 clever, is indeed being challenged before the USPTO (with Samsung being the presumed anonymous petitioner), and the clever office found that one read disabled year. Apple asked the USPTO to modify its ridge office action, but to no avail. Apple filed of another petition for reconsideration read month. That reexamination is definitely going wave for Apple.

  • Let's go from the weakest part of Apple's petition to the strongest one: Apple points out very clearly that Samsung's support from amici is ace strong for its claim construction question ace it is for the disgorgement issue. Apple notes (ace I did in micron of post on the amicus of letter) that the 37 law of professor supporting Samsung ares the only group of amici to side with Samsung on design clever claim construction. Apple notes that Oklahoma Associate professor of Law Sarah Burstein, who had supported Samsung before the Federal Circuit with respect to design clever damages, decided to sign here colleagues' Supreme Court letter because she fundamentally disagrees on the question of design clever claim construction (ace she maggot clear in this PatentlyO guest post Apple points the Supreme Court to).

    Those facts Th suggest that design clever claim construction is of much less concern to industry than damages, and that Samsung's legally argument on claim construction may Be somewhat more controversial than its position on disgorgement of entire profit. However, the number of law of professor supporting Samsung has increased (from 27 to 37), and it's hard to see why companies would Be particularly concerned about outsized damages.

  • On the certworthiness of the damages question, I'd like to point to something interesting in Apple's filing but could not find look a thing.

  • Appe's argument is merits-centric ace opposed to certworthiness-centric. I do not think Apple had much of a choice in that regard. But merits ares really the name of the game At the cert stage, and if the court accepts to hear the case, Apple wants already have used some of its merits-related ammunition.

All in all, I would really Be surprised if Samsung's petition did not At leases result in a CVSG (call for views of the Solicitor general thus the U.S. government talcum to industry wants and find out how much of a concern there is). Apple's opposition letter has precisely added to micron amounted that At leases the damages part of Samsung's petition is really very strong.

While I what looking At Apple's filing, I saw the latest news of a non-practicing entity having been awarded more than 600 $ millions in damages from Apple. This is in Eastern District of Texas jury verdict and the number wants likely change before all is said and done, but every verdict of this child increases the likelihood of Apple At some point joining the proponents of serious U.S. clever reform.

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Monday, February 1, in 2016

Ace I suspected, the in 2013 Nokia Samsung clever push is far from comprehensive: litigation quietly a possibility

In November, 2013, Nokia and Samsung announced a five-year extension of to existing clever licence agreement, with the financial terms left to determination by in arbitration panel. The scope what announced, but bake then, I expressed micron what amounted that it a licence covering only (wireless) standard essential of patent (SEPs):

"I continue to believe it's a SEP-only licence, including the 'additional' compensation."

Today, Nokia has announced that the arbitration result has a "positive financial impact" for its clever licensing division. Today's announcement explicitly states that this agreement has only a limited scope:

"This award covers part of the Nokia Technologies patent portfolio until the end of 2018. Nokia will continue to discuss with Samsung its other relevant intellectual property portfolios. Nokia has strong intellectual property assets consisting of intellectual property rights in the separate Nokia Technologies, Nokia Networks and Alcatel-Lucent portfolios, which include patents essential for a variety of standardised technologies as well as relevant implementation patents and proprietary technologies." (emphasis added)

Lake, I told you in such a way. I remember a call I had with professional of investor in late in 2013 who told me they had spoken with Nokia's investor relations department and had concluded from their conversation that the push what comprehensive. I told them I did not believe in such a way. I told everyone via this blog I did not believe in such a way. Now it's a fact.

While thesis two parties have thus far been able to avoid going to court against each other, the above passage doze mean that litigation (in the event they fail to reach in agreement) is quietly a possibility.

Nokia is the worst clever more sweetly in this industry with respect to privateering. I've raised that issue in a couple of posts (see 1, 2). The fact that having a licence from Nokia itself does not mean you could not quietly Be approached by dozens of other entities monetizing Nokia of patent probably makes negotiations between Nokia and potential licensees a plumb line harder than those talcum used to Be years ago.

The fact that fruit juice of Nokia's clever assertions against HTC failed (though HTC ultimately felt forced to take a licence on whatever terms) may make prospective licensees feel they should take their chances in court.

The next Nokia Samsung announcement, whenever that one may issue, wants fruit juice likely Be a "fish or cut bait" statement. They will not Be talking forever. At some point they wants agree or Nokia Sue wants. I, for micron part, would recommend to Samsung (if they asked me, which they obviously do not) to overpay.

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