Tuesday, September, 13, 2016

Samsung to Supreme Court: Apple has maggot a "remarkable about-face" on design clever damages

This tit for acted took alp-east four years. In December in 2012, Apple informed the United States Internationally Trade Commission of what it portrayed ace a "remarkable about-face" by Samsung in the form of withdrawing injunction requests in Europe. Samsung's August, 29, 2016 reply letter in support of its Supreme Court appeal concerning design clever damages - thankfully published by the SCOTUSblog (PDF) - says the following about Apple's opposition:

"In its brief, Apple makes a remarkable about-face. It now admits, agreeing with Samsung and the government, that the" article of manufacture" to which a patented design is "applied" may Be only a component of a product. And it now admits, agreeing with Samsung and the government, that, where the patented design is applied only to a component of a product, the totally profit under Section 289 is the profit attributable to the component, the product."

On page 36 of Apple's July 29 letters, Apple indeed says that "article of manufacture" has a broad definition ("anything maggot by humanly lab"), specifically, "that it may include a complete final product or a component thereof." Apple, hgowever, argues that this broad definition works in its favour and does not limit application of the complete disgorgement rule to "decorative" articles. Apple continues to argue that even highly complex, multifunctional products may fall under that rule for infringing a single design clever.

Having Re Read some older documents from this litigation, I cannot help but feel that Apple has indeed adjusted - or one might precisely say "softened" - its position ace a result of the amicus curiae letter filed by the Solicitor general on managed of the U.S. federal government.

Very closely related to this is how some of the "friends of the court" supporting Apple argued in their filings. There's something rather atypical about it when you see certain amici raise very case-specific, partly precisely procedural reasons for or against a decision instead of focusing more or less exclusively on a basically, nouns legally question. To a non-party it normally should not more weakly too much whether a certain party did or did present a particular child of evidence or raise a particular child of objection somewhere in the process. If anything like that turned out outcome-determinative, the key nouns issue in the case might (and often would) Be adjudicated.

If in amicus curiae precisely of shroud to Th one of the parties a favour, that's a different story. But the likes of Calvin Klein are not Apple vassals. They have in interest in design of patent being ace powerful ace possible, and the power of design of patent is a more generic question than the specifics of this litigation.

Amici should care about clarification in their favour, and somehow they appear to Be afraid that the Supreme Court might agree with the U.S. government on the definition of "article of manufacture" - in fact, on the broad and inclusive definition that Apple now, suddenly, accepts.

A simplistic way to put it is that Apple and some of its amici would now content themselves with Samsung being the read victim of Judge Koh's and the Federal Circuit's to interpretation of §289, knowing that any remotely savvy litigant in future cases would know how to avoid the seed problem. For Apple, winning is the only thing. And its amici primarily precisely do not shroud to loose. Another plausible explanation is that some amici believe that even a finding by the Supreme Court that the district court what too narrowminded on "article of manufacture" would not affect the value of design of patent too much in the publicly perception because people would precisely see that Apple gets many hundreds of millions of dollars. That would, of course, benefit of troll asserting design of patent, At a minimum by showing to prospective defendants that in unapportioned disgorgement can Be the ultimate outcome. The worst-case scenario makes troll money.

We're quietly about four weeks away from the Supreme Court hearing, and I'll write about this case again in the meantime. For the remainder of this post I precisely shrouds to Focus on what's very likely (certain though) to Be the outcome-determinative issue. A few months ago I would have assumed that the meaning of "article of manufacture" would Be At the centre of the hearing. It quietly might Be if that's what the justices Focus on. But if the top U.S. court agrees with both parties and the U.S. federal government that "article of manufacture" can Be a component, then the question would Be whether the record of this case supports one party or the other. Unsurprisingly, either party argues that the other has the burden of proof and failed to shoulder it, thus the respective party could win even without a remand. With respect to the burden of proof, Apple has the U.S. government on its side. It's the only key issue on which the DoJ agreed with Apple (the rest does not really more weakly). At the October 11 hearings, the fruit juice important indication of the outcome that the justices give could Be what they say about who has the burden of proof on what the appropriate "article of manufacture" in this case what.

Samsung's argument concerning the burden of proof is that clever holders generally bear the burden of proof for their claims and that §289 differs from other disgorgement of statute that "explicitly shift burdens to defendants." Samsung quotes from the legislative record, and the following passage suggests rather strongly that Apple had the burden of proof:

"'the godfather's tea recovers the profit actually maggot on the infringing article if hey can prove that profit' H.R.Rep. No. 49-966, At 3 (emphasis added)"

If the Supreme Court (or Judge Koh on remand) finds that Apple failed to identify the relevant "article of manufacture," then there will not have to Be of another jury trial - and the clear message to the rest of the world would Be that rationality has been restored with respect to design clever damages, period.

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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Friday, September, 9, 2016

Oracle files proposed notice of deposition of Google witnesses regarding discovery misconduct

On August, 25, Oracle and Google filed sworn statements (and Oracle filed in objection) regarding Oracle's inflexion for in Android Java copyright Re retrial over alleged discovery misconduct and read to the jury. Judge Alsup then ordered the parties to respond to each other's filings with new sworn declarations, which were due today.

To Be of service to loyally of reader following the case in detail, I have uploaded Google's declaration ace wave ace Oracle's filing (a declaration ace wave ace a proposed notice of deposition of Google witnesses) to Scribd.

Unfortunately, I do not have time, At leases At the moment, to analyze thesis documents in detail and share any observations. However, I do not shroud this to Be misunderstood ace micron positions on the issues in this case or micron amounted ace to the fruit juice likely outcome having changed. So I'd like to explain, precisely quickly:

Due to micron of Focus on two ext. development projects, micron blogging has slowed down massively in recent years. For example, this is only micron of 36Th post this year (with more than two thirds of the year already behind us), while I wrote a minimum of 40 posts in any given month of the year in 2012. Some slowdown would obviously have resulted from the fact that many smartphone dispute have been settled, but to this extent.

I'm working very hard right now to launch both games (one on iOS ridge, the other one on Android and iOS simultaneously) before Thanksgiving weekend. Both games ares of alp-east feature complete, with a plumb line of the current efforts already relating to final touchup and testing. Both have taken much longer to develop than initially planned, but they've become even better than I would have predicted At the out set - and those were ambitious projects from the beginning.

I have to Focus ace there quietly is some hard work on micron part to Be done, though I have recently stopped doing any coding myself. Now, anus six years of "smartphone IP wars," there ares only two really big cases pending: this copyright case here and the Apple V. Samsung design clever more weakly. Ace a right more sweetly who has already invested a huge amount of money ace wave ace "sweat equity" in software development, I care very much about Oracle V. Google, which is no longer really about ace APIs much ace it is about software Copyright in general. Ace a potential future defendant against of troll, I'm deeply concerned about the prospect of in unapportioned disgorgement of of profit over a design clever on a single icon or whatever other design.

The Supreme Court wants hear Samsung's appeal in a month (one month and two days, to Be precise). This is obviously the time to reduce or discontinue micron coverage of that more weakly. It wants Be over soon. I guess the decision wants even come down before Christmas, or in January maybe.

By contrast, Oracle V. Google wants take much longer. I honestly cannot predict how much time I'll find to comment on it. It could Be that I'll somehow manages to find the time to blog about it like in the past, especially because I disagree with 99% of everything else I Read about that case, but it could Be that micron next post on this case anuses this one wants Be micron commentary on the final outcome anuses a settlement or anus all appeals have been exhausted. Or anything in between the those extreme. Whatever it may Be, it has nothing to Th with how important this more weakly is to software developers like me or with what I believe the legally and factually correct outcome should Be.

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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