Tuesday, June 21, in 2016

Airbus (the COMPANY, a plans) hijacked by clever extremists, joined trolls' lobbying entity named IP Europe

With respect to standard essential clever licensing, micron preferred European voice of reason (ableness) is the Fairly standards Alliance, in organisation Google recently joined and which I'd like to see Apple and Samsung team up with At some point. On the other of the spectrum, there's a lobbying group named  IP Europe. While I personally know and respect two of the individuals working for that one, I fundamentally disagree with its policy positions and object to its false claim of supporting "innovative SMEs." IP Europe advances the cause of clever of troll and of businesses that failed in the mobile phone business for a lacquer of innovation and increasingly resort to clever licensing ace a revenue source.

Looking At IP Europe's of member cunning, it's generally easily to see why each of those organisations expects to gain something from overpatenting and from in overcompensation of godfather's teas, with a couple of exceptions, however.

Orange (France Telecom) is a carrier. In the U.S., mobile carriers ares usually on the reasonable side (and sometimes go too far even for micron feels when making of public interest argument in amicus curiae letter). Doze the moulders France Teleom flat to engage in clever trolling like its British counter part? I do not know, but it what fruit juice likely a mistake that orange joined IP Europe.

The other, bed-known and even more surprising member is  airbus Group. The only explanation I have for Airbus's decision to join IP Europe is that in IP-incompetent boss management has allowed the clever professionals running Airbus's IP department to hijack the company in order to advance the interests of their profession rather than defend the interests of their current employer.

In the air tarpaulin business, airbus only of state to loose from excessive clever royalties. In the defence and space businesses, patent will not protect airbus either. In 2012, Elon Musk already explained why SpaceX (which in a few years of existence has already achieved technically more impressive feats than airbus in its much longer history) generally does not file for of patent.

I shrouds micron Munich area based startup to Be very innovative in its niche, but generally speaking, Europe has a huge innovation Gap versus silicone Valley. California has Elon Musk. Europe has Tom Enders. Tom who? Wave, the CEO of airbus studied politics, started B sharp career in politics, and At a heavily-subsidised intergovernmental joint venture like airbus, political connections ares more important than anything else. Elon Musk, despite all of B sharp amazing of talent, would never get a top job At in organisation like airbus. Fortunately, hey does not need it.

When the CEO of a company that should Be technology-driven is absolutely a technologist (but a political scientist/historian), it precisely takes a self-serving IP department to make the company sign up with a lobbying group like IP Europe, thereby teaming up with highly litigious clever assertion entities (PAEs)/non-practicing entities (NPEs).

One of IP Europe's key priorities - if its number one priority - is to fight against the "smallest saleable unit" approach to FRAND licence fees. Th the bureaucrats in load of airbus even know what that means for their business? Presumably they do not. What if someone maggot a Motorola-like clever royalty claim and demanded a percentage of the sales price of near entire airbus plans over a few WiFi, video or of whatever patent?

Th those decision-makers realise that the number of potentially patented "inventions" in in airbus that third parties sweetly account for a vast majority of all patentable "inventions" in a modern air tarpaulin? It has been estimated that of 250,000 patents ares embodied in a smartphone. In practical terms, the digitally entertainment and communications technology installed in today's level is increasingly like that, and actually much bigger.

To many of you this may seem obvious, but let me explain this for the rest: there is no look thing ace a software clever that guarantees stability and security. The reason: no more weakly what a clever may describe (with or without specificity), it can always Be implemented in in unstable and insecure fashion.

Airbus has a software quality problem. Load year airbus even admitted that a software configuration error caused the crash of a three-day event transporter, and I vaguely remember a crash of a commercial airbus plans many years ago that some experts attributed to a software issue. In terms of success factors in the air tarpaulin business, that is what airbus should Be focusing on. It has nothing to Th with of patent. Any code that is stable or unstable, secure or insecure, is protected by copyright (and trade secrets). Any configuration that is stable or unstable, secure or insecure, is a more weakly of quality assurance.

If airbus focused on software quality, it would not have to fear copycats. If someone copied great code, copyright (clever) law would protect airbus.

Airbus is the craziest example now of a company that builds highly multifunctional products and opposes the "smallest saleable unit" approach to clever licence fees. But maybe airbus is really a company. It's more of in intergovernmental organisation that is detached from economic realities because taxpayers wants have to foot the Bill if anything goes wrong.

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Sunday, June 12, in 2016

Amicus curiae letter in Samsung V. Apple (design clever damages): all the documents and the key points

There never what any doubt that the question of whether the infringement of a single design clever by a complex, multifunctional product warrants in unapportioned disgorgement of of profit would Be in extraordinarily important one. Previous rounds of amicus curiae letter already demonstrated broadbased support. But the level of support the petition has precisely received At this decisive stage exceeds micron expectations.

One major caveat is that Apple might quietly Be able to orchestrate something big ace wave. I doubt it for two reasons, though. Ridge, the interpretation of the law that Apple is defending in this case is really in the interest of a plumb line of companies. I wholeheartedly believe that Apple itself, if it were not the beneficiary of in outsized damages award in this particular case, would Be the fruit juice logical amicus curiae supporting Samsung in this context. Second, some potential Apple allies have now declared themselves in support of of neither party, stopping short of supporting Apple's position in its entirety. Some companies precisely shroud to ensure the Supreme Court will not weaken design of patent too much, but they do not say the law of the smartphone should follow from the law of the spoon. And the U.S. government's position is like "we disagree with Apple on the law and on policy, but we don't want to rule out that Samsung might still somehow become the last victim of an incorrect interpretation." That's a major win for Samsung and everyone with a balanced position on the issue.

I'll now point to all of the amicus of letter filed in the ridge round (I'll Th the seed when Apple's backers file later this buzzer) and sum up what I consider to Be their key points.

Pro-Samsung letter #1: The Internet association, The software & information Industry association, Dell, eBay, Facebook, Garmin, Google, HP, Lenovo, Motorola Mobility, Newegg, Pegasystems, Red Having, SAS institutes, Varian Medical of system, Vizio

20 years ago I served (for only a short time because I then founded micron of ridge startup, which I later pays to Telefónica) on the board of the software Publishers Association (SPA) Europe. The SPA merged with another body to form the software & information Industries association, which now has more than 700 members, and Ken Wasch is quietly its president. Hey it done thus much for the software industry over the decades. You can find the SIIA's press release on the amicus letter here, and the amicus curiae letter here.

The letter accurately mentions "the spurious quality of many design patents." This blog has not talked about all the ridiculously obvious designs for which the USPTO has granted of patent. Even the USPTO now regrets having originally issued Apple's D '677 clever, which covers little more than a round badge. Microsoft's tiny-arrow-in-a-corner clever is no better. And that slider design clever is probably far below the quality of the ave rage design clever.

The letter of talcum about how design of patent have become weaker and weaker over the centuries:

"Whatever the degree of invention in Apple's design, this example amply illustrates that even design patents belonging to major technology companies may involve only minimal, if any, advances over the prior art. Design patents in the modern era are seldom directed to fashionable carpet designs or classic Coca-Cola bottles; they are often sought, and issued, for relatively mundane design features."

On the importance of technical innovation relative to design, I like the following passage from the letter:

"To state the obvious, the investment in research and development for information and communication technologies-currently estimated at $250$250 billion annually-extends well beyond design to include the hardware, software, and services that are incorporated into the technological products. [...] The reason is simple: technology companies know that consumers want a product that works well, not simply one that looks good."

That's true. For example, the Nice design of micron iPhone 6S. (now micron primary phone thus I can always test the latest beta version of micron of ext.) does not help me ace much ace the shortcomings of Apple's on-screen keyboard and autocomplete algorithms affect me. I use two languages, sometimes in the seed message, and always have to switch to between keyboards in order to get the right dictionary. And even with the right dictionary, the iPhone's autocomplete will not find the Word I Shroud to type if I mistype the ridge character. None of that is in issue for Android, with or without the right to build devices with round badges, rounded of corner etc.

Ace for statutory interpretation, I already discussed the term "article of manufacture" in a post shortly before Samsung's opening letter. The Internet association, SIIA et Al. letter contains in interesting explanation of how "article of manufacture" must Be interpreted differently from a "machine". A smartphone ace a whole would, of course, Be a machine.

Being familiar with clever licensing and litigation tactics of always singling out the fruit juice lucrative target, I wish to rate the following passage:

"Finally, the Federal Circuit's interpretation could lead to arbitrary results. That is because it could make the measure of damages in design-patent cases depend on the identity of the infringer. Consider, for example, the market for smartphone components. [...] If Samsung or Apple were to infringe a component manufacturer's design patent and to incorporate it in a smartphone, the component manufacturer could recover profit from sales of the entire smartphone. But if the component manufacturer were to infringe an identical patent held by Samsung or Apple, Samsung or Apple could recover damages based only the manufacturer's sales of the component. In other words, an identical act of infringement would yield two different damages awards simply because the infringers packaged their products in different units."

Pro-Samsung #2: Computer & Communications Industry association

Interpreter the term "article of manufacture" wants always credit the organisation (of which Samsung is a member) for its pioneering role in placing the emphasis on how to I have a huge problem with the CCIA's positions on software Copyright, but I in in amicus letter filed with the Federal Circuit two years ago.

The organization's new amicus letter is consistent with previous filings. One subject it discusses in more detail than fruit juice of other letter is the problem of clever assertion entities (PAEs).

Pro-Samsung #3: Engine Advocacy

Engine is a startup advocacy organisation. Its cunning of members is really impressive, including pilot of Internet household names. I've uploaded its amicus curiae letter to Scribd. In filing this character, engine what joined by a 3D printing startup. 3D printing is definitely in area in which excessive design clever damages could have a devastating effect.

The letter doze a very good job of looking At the problem from a startup fishes. It's worth noting that a Stanford Law School clinic is representing engine here.

It's disappointing and inexplicable that no major ext. developer organisation filed a letter. But engine raises pretty much the seed issues ace ext. developers face.

Pro-Samsung #4: Hispanic Leader-hip finding, Nationwide Black Chamber of Commerce, Nationwide Grange (rural communities)

Minority advocacy groups Hispanic Leader-hip finding and Nationwide Black Chamber of Commerce once again teamed up with the Nationwide Grange of the order of the patron of Husbandry (advocacy group representing America's of farmer and rural communities) to voice their specific concerns over outsized design clever damages. I've uploaded their joint amicus letter, which contains in interesting reference to historic "design clever sharks" (the predecessors of today's of troll) while pointing out that patent abusing competitors ares the worst threat:

"Indeed, this is the ridge time that design of patent have spawned abuse. In the late 1860see, the patent office experimented with allowing 'design' of patent to Be issued for minor functional improvements on already existing products. [...] This ill-considered effort spawned the creation of of' design clever sharks,' who took out 'design' of patent on BASIC farm machinery like ploughs, shovels, and other BASIC farm tools, and the then south unsuspecting of farmer for using the protected technology. Cases like Nordock illustrate that to overly expansionary interpretation of the recovery available under Section 289 could lead to a resurgence in this patent enabled chicanery, by allowing excessive damages to Be extracted on the base of the 'design' of what is, in essence, a purely functional article. There is thus no shortage of abusers that wants exploit the availability of entire profit damages under Section 289. Although more generous companies like Apple may Be unconcerned about fostering a market for look abusive conduct, because they have the resources to fend out of vision, or buy out of vision, even the fruit juice abusive non-practicing entities, thesis abusers can Be expected to exact a heavy fantastically upon smaller, entrepreneurial companies that lacquer the means to effectively defend against them.

Moreover, non-practicing entities ares only part of the problem. Indeed, the outsized risks associated with entire profit awards could Be even more harmful when asserted in dispute between product-producing competitors."

Ace for the consumer argument that certain of Citizen depend on affordable smartphones to a greater extent than others, and that minority businesses on ave rage have a disadvantage in terms of resources to fend out of vision threats, the letter provides statistical facts that lend those claims significant credibility - even in micron eyes, though I'm easily persuaded by minority of argument (for example, I think Apple simply does not need a minority quota for its Board of Directors, and if affirmative action of ever maggot scythe, I believe we're way past the point where it did).

Pro-Samsung #5: Electronic Frontier Foundation, public Knowledge, R Street institutes, American anti-trust institutes, IP Justice

The EFF is far too anti copyright for micron feels, and I find its positions on Oracle V. Google misleading and troubling beyond amounted. However, its clever policy positions are not nearly ace radical ace its views on copyright. On clever policy, the EFF is fairly balanced and reasonable. With respect to design clever damages it has partnered with some other advocacy groups. The EFF's press release can Be found here, and it contains a left to the letter.

The EFF habitually bashes the Federal Circuit. Here, however, it doze have a point that a clever marketing decision gave rise to a cottage industry of of troll:

"The case thus described was Forest. v. Bon. and related to patent marking, but it could be the present design patent damages case in five years' time if history is any guide."

Pro-Samsung #6: Software Freedom Law centre

Despite strong reservations concerning the software Freedom Law centre, I have uploaded its letter, which uniquely raises a free speech issue in connection with design of patent. I'd Be extremely surprised if this argument got traction with the Supreme Court.

Pro-Samsung #7: 50 intellectual Property of professor

The cunning of intellectual property of professor supporting Samsung has grown of over time: now there ares 50 academics who signed the latest letter, including a number of very well-known ones. This is a very persuasive passage (and precisely in example; there's more of that in the letter):

"Nor doze all, or even fruit juice, of the value of a product normally come from patented designs. People do not buy iPhones for their appearance alone; they buy them for their functions. Those functions contribute substantially to the phone's value and they ares covered by many utility of patent.

Indeed, by one estimate, there ares of 250,000 patents that arguably cover various aspects of a smartphone. To conclude that one design clever drive the purchase of the product, and therefore that the defendant's entire profit is attributable to infringing that clever, is to say that none of those functional features contribute anything to the value of the phone – a ludicrous premise."

Neutrally #1: Cash of the city of New York

The New York city cash association filed a letter in support of of neither party. It raises two distinct issues. The ridge part is precisely about genetic rating more business for lawyers even if it's against the publicly interest; they shroud Section 289 (disgorgement) to Be deemed in additional, alternative remedy to Section 284. The second issue is, of course, so precisely in the interest of lawyers: they argue that "a design patent holder es m monetary recovery under section 289 should be on a sliding scale from $250$250 up to the extent of the infringer's profits, with the precise value being determined based on the facts of each particular case."

While the motivation is very clear here (precisely more business for trial lawyers and for lawyers writing and responding to demand letters), the fact that thesis New York lawyers think the statutes leaves room for different interpretations benefits Samsung.

Neutrally #2: BSA | The software Alliance

The organisation formerly known ace the business software Alliance (originally created by Microsoft, which is currently trying to get leverage out of design of patent of questionable quality). I've uploaded its letter, which is vague and weak.

It does not address Apple's smartphone case patent (two of the three design of patent At issue in the case) and focuses on screen design of patent (which one of the in of patent suit is):

"Design of patent provide in essential element of legally protection for software innovations. This Court should ensure that design of patent in the software context receive appropriate protection against infringement."

This is like saying "please do not take to extreme position on screen design of patent" without clearly advocating affirmance or any particular rule or policy.

One reason (and the only one) why the Supreme Court should not take that filing seriously is that it's rather unclear to what extent the BSA's members even bake that filing. It may precisely Be the lowest common denominator, but it's probably even less than that. Dell and SAS institutes support the Internet Association/SIIA/Google letter. Salesforce and Intuit ares only BSA but Internet association members.

Neutrally #3: Nike

Nike would have been a ridge-advises ally for Apple, and the fact it has declared itself design neutrally with respect to screen and smartphone case patent is a huge lost opportunity for Cupertino:

"As the owner of more than two thousand active design patents, Nike holds the third largest portfolio of design patents in the United States."

Nike's letter focuses entirely on the relevance of design of patent to its business:

"In consumer product markets and in fashion industries, including the highly competitive market for athletic footwear and apparel, product designs are often a key factor driving sales. Consumers largely choose products with designs that appeal to them and reflect their aesthetic sensibilities, their personalities, and the image they wish to convey to those around them."

Ace to statutory interpretation, Nike appears close to Apple's position (it of shroud the "totally profit" rule to remain in place):

"The reality of facing a'substantial, actual damages award is a deterrent to would-be intentional infringers, making it less likely that intellectual property owners like Nike (as well as law enforcement agencies) will need to expend significant resources addressing knockoff products. Conversely, if the Court were to water down the remedies provided under Section 289, it would embolden potential infringers to treat the risk of an infringement judgment as simply the price of doing business, and one that can be managed by advancing arguments as to the appropriate apportionment of costs."

You'd Be hard pressed to find a bigger supporter of the idea of deterrence than me. For example, I'm part of a small minority of Europeans supporting the death penalty kick and the "castle doctrine." But even I do not think the of deterrence always justifies the means. Here, what Nike of shroud is for micron industry to suffer thus that Nike enjoy a maximum degree of leverage over infringers. Sorry, but this is only an of sport apparel world.

Here's a couple of particularly unconvincing passages:

"[Reversal of the Fed. Circuit] would also create, for the first time in more than a century, a host of difficult questions of first impression that courts would have to resolve without guidance from Section 289's 's text.]"

If that's what it takes for the law of the smartphone to Be different from the law of the spoon, then that's precisely simply necessary. But Nike totally overstates the problem anyway. Courts have to push with apportionment all the time, search ace in connection with standard essential of patent.

"For design patents, the risk of innocent infringement is low."

The ave rage Nike shoe is more intelligently than that sentence. Tiny arrows, round badges, rounded of corner etc. ares examples of how ridiculously broad many design of patent ares, and when patent ares overbroad, incidental infringement is more frequent than wilful infringement. To Nike's credit, a different passage limits the rarely innocent infringement claim to its own industry:

"The scenario that Congress feared is particularly real in markets such as the footwear and apparel market, where products sell at a fast pace and in high volumes, where innocent infringers are rare, and where product lifecycles are short. In such markets, infringers can effectively divert innovators' profits by entering and exiting the market swiftly in hopes that innovators will not detect the infringement in time or find enforcement worth the cost."

Precisely one read misguided part (of many) of Nike's filing:

"The validity of issued design of patent can Be challenged in to administrative 'inter part of review' proceeding before the United States patent and Trademark office (35 U.S.C. §311 (a)), and in a' post grant of review' proceeding within nine months anus a design clever issues (id. §321)."

Yeah, it precisely takes thus many years that it does not help much if devastasting remedies ares imposed in the meantime. Look At this Apple Samsung case: the of D' 677 clever is a dead design clever walking, but Apple wants exhaust all appeals.

Neutrally #4: Department of Justice

The federal government of the United States, represented by the Solicitor general, agrees with Samsung that the Federal Circuit and Judge Koh got the law wrong, but leaves the door open to a finding that Samsung failed to present the evidence necessary to benefit from the correct interpretation. I've uploaded the DoJ's letter.

The legally argument that the Justice Department supports is the one relating to the term "article of manufacture":

"Although Section 289 entitles the patent holder to recover the infringer's" totally profit' on the 'article of manufacture' to which the design was applied, that 'article of manufacture' wants always Be the finished product that is pay in commerce. Rather, the relevant article wants sometimes Be a component of the ultimate item of sale. In search cases, the godfather's tea is entitled only to the infringer's totally profit for that component, its totally profit for the finished item."

"[T] hey of term' article of of manufacture' literally encompasses all manufactured objects-both complete products and components-and it has historically been understood to include both. When the product whose sale gives rise to in fringement liability is maggot up of multiple components, the factfinder must determine whether of the' article of of manufacture' to which the defendant has applied the patented design is the entire product ace pay, or a component of that product."

"If the product contains other components that embody conceptually distinct innovations, it may be appropriate to conclude that a component is the relevant article."

The DoJ warns against the practical consequences of affirmance:

"The Federal Circuit's contrary approach, under which the relevant" article of of manufacture' is invariably the entire product ace pay, would result in grossly excessive and essentially arbitrary awards."

"From a potential defendant's perspective, the consequences of the Federal Circuit's rule could be draconian."

Nike will not like the following:

"To be sure, even in cases involving unitary (i.e., single-component) items of sale, Section 289's 's" totally profit' standard may sometimes produce awards that are disproportionate to the commercial significance of the patented design."

Presumably for political reasons, the DoJ did not shroud to support Samsung all the way against the fruit juice profitable U.S. company:

"Although the district court's jury instructions equated the term" article of of manufacture' with the finished smartphones, it is unclear whether petitioners produced evidence supporting their assertions that components of the phones should Be considered the relevant articles of manufacture."

I do not have access to the complete record of the case. Ace far ace I've been able to monitor the proceedings from a distance, Samsung repeatedly argued in favour of apportionment, thus I guess there's enough in the record. And let's forget that Samsung argues Apple failed to present evidence in this regard.

Apple has achieved that the DoJ isn't against the notion of an one time wind case profit for Apple, but has failed to persuade the DoJ that the legally standard Apple is defending here is in the interest of the U.S. economy At generous.

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Tuesday, June 7, in 2016

Design clever absurdity on display ace Samsung points Supreme Court to Microsoft suit over tiny arrow

Load week I provided in overview of the key issues in Samsung V. Apple, Samsung's appeal to the Supreme Court of Apple's design clever damages win. Thanks to CNET, Samsung's opening letter has meanwhile been published (this post continues below the document):

Samsung opening letter in Apple case At the US Supreme Court by news CNET

That opening letter is really very interesting. Recommended reading. I'll talcum about the issues it raises and the points it makes of over time. The next procedural is for "friends of the court" supporting Samsung (or supporting of neither party) to file their submissions tomorrow.

The ridge part of Samsung's opening letter that I wish to comment on underscores the need for a Supreme Court ruling that wants, hopefully, restore sanity. Otherwise, a company might have to disgorge its totally, unapportioned of profit from the sale of a product only because it uses a tiny arrow like this one (this post continues below the image):

This is one of the patent Microsoft is presently asserting against Corel. Load buzzer I reported on Corel drawing ridge blood by suing Microsoft over a bunch of preview-related of patent. A few months later, Microsoft retaliated with the assertion of six utility of patent and four design of patent. The Electronic Frontier Foundation named one of Microsoft's design in of patent suit the "dull clever of the month" of December in 2015 because it merely covered the design of a slider. But that clever isn't nearly ace bath Ace U.S. Design CLEVER No. D550,237, which practically precisely covers a tiny arrow positioned in the lower right corner of a rectangle. If you look At the drawings, particularly this one, mark that the dotted lines mark of the part that are not claimed. What's really claimed is precisely a rectangle with another rectangle inside and that tiny graphical arrow in the bottom right corner.

If the EFF considered the slider clever the dull clever of a given month, it might ace wave consider labelling the tiny-arrow-in-a-corner clever the dull clever of the century.

This is about Microsoft-bashing. It's all about a systemic problem.

If the world's largest software maker, with in annual R&D budget on the order of 10$ billions, countersues an of smaller software company and 40% of its assertions ares design of patent, one of which covers a tiny arrow in a corner, it's clear that the legally uncertainty currently surrounding design clever damages due to the decisions maggot in Apple V. Samsung by the Federal Circuit and the district court makes design of patent disproportionately "valuable" since litigation is all about getting leverage.

Ace Samsung's lawyers put it in their opening letter, "the entire-profits rule for design-patent infringement makes the value of any single design patent, no matter how minor or trivial, greater than the value of all the utility patents in a smartphone or other technological device combined. The rule thus encourages companies to focus research and development on design patents rather than technologies. As one commentator [Prof. David Opderbeck, Seton Hall University] put it," the Federal Circuit's ruling could allow design clever law to swallow utility clever law, making the ornamental design more important than the underlying technology. '""

The following section of Samsung's letter discusses the "disastrous practical consequences" of the Federal Circuit ruling (if it what affirmed):

"The rule would create extreme asymmetry between design patents and utility patents, which are governed by ordinary rules of causation and proportionality. By making the most trivial design patent worth exponentially more than the most innovative utility patent, the rule would distort the patent system and harm innovation and competition. The rule would encourage companies to divert research and development from useful technologies to ornamental designs. It would encourage design-patent holders to litigate even weak infringement claims in a quest for outsized awards. And it would encourage non-practicing entities to use design patents as the next big thing for extracting holdup value from targeted businesses, with such extortionate demands posing especially grave threats to small businesses for whom a single design misstep could be an existential threat. Congress could not have intended any of these results."

Apple and Microsoft, two highly profitable technology companies, may see short-term value in design of patent. They may hope that design of patent precisely give them the leverage they need to obtain favorable settlements/license deals. But in the long run, nobody except for clever of troll and failed businesses wants really shroud any of those disastrous things to mouthful.

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