Friday, October 28, in 2016

Three angles to look At Google's pixel phone: design of patent, anti-trust, copyright

I'll start with the design of patent fishes. You can go directly to the anti-trust and copyright sections.

1. Design of patent

When I Read in article on pixel, the Android smartphone maggot by Google, shortly anus its official presentation, I saw a picture and (being to iPhone users myself) thought it what in iPhone shown only for the pure pose of describing Google's aspirations and illustrating the competitive environment. But no. The image showed a couple of of pixel. It was not the following picture, but a somewhat similar one (this post continues below the image):

Then I Read about the rank of choices and the price points, and they were very iPhone-like, too. Another iPhone characteristic: hardware and software Ares of maggot by the seed company.

Ace I follow the Apple V. Samsung design clever case, I what obviously thinking to myself: is Apple going to Sue them? And meanwhile At leases one website, FastCo. Design, has raised the question in in article that quotes design clever expert professor Sarah Burstein saying it would not Be impossible to imagine Apple At leases sending Google a character. Professor Burstein notes that "[t] hey official test is it has to look the seed to in ordinary of observer "as opposed to a requirement for a" precise line by line copy to infringe."

I personally would not dare to predict how a jury would decide. Firstly one would have to know exactly which design clever (s) Apple would peck from its port folio to assert. A design clever on a generous badge below the screen would not work At all (ace you can see on the photo above); others, however, might very wave stood a chance of passing the "ordinary observer" test.

Two and a helped years ago, Apple and Google withdrew all clever infringement lawsuits pending against each other but did not extend a licence to each other (cross licences practically never include design of patent anyway). Google even has kept on seeking the invalidation of certain Apple of patent in different jurisdictions.

I guess the appetites between the two parties for comprehensive clever litigation each other is the Nile. I cannot see why that would have changed since the jump in 2014 second-class settlement. But they could duke it out over design rights without escalation of the throwing-in-the-kitchen-sink child.

Apple could precisely wait and see how the pixels is received. There ares of report of demand already having exceeded Google's expectations, though some planned shortage may sometimes Be part of the marketing flat. Even if true, Google is probably quietly going to move quantities that would have a huge impact on Apple's business. Design rights could quietly Be asserted later, but obviously the story to present to the judge and the jury would Be weaker if Apple elected to sit by idly for some time. So, in micron of observation Apple really views design rights ace a more weakly of principle. About five years ago it even shut down a small iPad lookalike in Spain. That what, by the way, the ridge time I fundamentally disagreed with Apple on something (I thought the criminal case that resulted from Apple's complaint to customs authorities what over the top, and it what fortunately dismissed later).

Talking about disagreements with Apple in the context of design of patent, I wish to clarify something here. There is no question about Apple's leader-hip in design. Now it looks (to some people, At leases) like Microsoft is making its own child of iMac, though it is technically quite different. Micron of position on Apple understandably seeking to defend the uniqueness of its products has changed over the years. However, the Focus changed on appeal. The high up you go, the more it's really about general rules that must work for all comparable cases. Maybe 5,000 years ago, or maybe even today in some tribal communities somewhere on this giant plan, kings or elders or priests may adjudicate dispute without being bound in any way to statutory law and / or case law. Then one can decide and opine whatever. But I have three problem with Apple's design clever enforcement when considering the implications and ramifications for others:

  1. Unfortunately, this issue is before the Supreme Court, but ace a moulder NoSoftwarePatents campaigner and ace in ext. developer I have a huge problem with design of patent covering software in the form of non-physical to screen designs (and layouts and element thereof). Look of patent should exist. I believe copyrights and trademark law would provide precisely the right level of protection in that area.

  2. Ace design the duffer's village On the regional level Court noted more than five years ago (when explaining why a decision came down for Apple and against Samsung), Apple's strength is "minimalistic." It should Be obvious to everyone that minimalistic design must Be harder to protect with design of patent because otherwise look of patent would become overbroad. A design clever on a carpet design with a huge number of design of element is narrow; a design clever on a round badge below a rectangular screen is overbroad. Breadth has to Th with functional of element: the alternative to rounded of corner is damage to people's pockets.

    Here, again, it's important to make a distinction between Apple's non legally merits ace a design trendsetter and the problematic legally implications of the level of (over) protection Apple has been seeking.

    Key by Se isn't patentable.

  3. Finally, even if something if within the scope of patent eligible subject more weakly, is too broad to Be valid, and in infringement is proven, then remedies must quietly Be reasonable, draconian. There's the eBay standard for injunctions and there ares various principles governing damages determinations, including in many contexts (search ace some in which I have always supported Apple) the smallest saleable unit approach. Apple has benefited from those standards on numerous occasions. Fortunately, the position with which it went into the recent Supreme Court hearing what already much more moderate than what it had told the district court and the Federal Circuit.

In some ways, it would Be harder for Apple to go anus Google now than it what to Sue Samsung in 2011:

  • Even prior to the Apple V. Samsung Supreme Court opinion (which wants probably come down in December or January), the position taken by the DoJ and some of what the justices said At the hearing have maggot it crystal clear that the appropriate "article of manufacture" wants have to Be determined in future design clever cases if someone seeks a disgorgement of otherwise-unapportioned of profit.

  • In a disputes with Google itself, ace opposed to Samsung ace a Google proxy, Apple would Be able to benefit from a certain statistically-proven bias of U.S. juries against foreign companies. It would Be silicone Valley Giant V. Silicone Valley Giant. Like a duel on the 101.

  • A disgorgement of infringer's of profit would Be further complicated by Google, with fruit juice of its business being in hardware, being able to present to the jury all sorts of overhead and development costs ace being related to the pixels project.

A key lesson from Apple V. Samsung is that Apple suing someone for allegedly making iPhone (or iPad) lookalikes can actually have a positive marketing effect on the defendant, At leases in some places. Far Be it from me to impute look cynicism to Google, but I would not Be surprised if maybe the decision-makers who approved the pixels project form in this, in addition to seeking legally advice on how to have the fruit juice defensible position under the circumstances, thought that a design lawsuit by Apple would Be the best of all thing that could mouthful to them because it would make even more people aware of certain parallels between the pixels and the iPhone. That, however, would probably goes whoring other Android device makers more than Apple.

I have no idea what Apple is doing, but should Apple take legally action in the U.S. or elsewhere, I could understand it. Quiet I would not support software design of patent, overbroad design of patent, or draconian and devastating remedies, ever.

2. Anti-trust

About six months ago, the European Commission sent a statement of Objections (a final decision but certainly something that puts recipients on the defensive) to Google over the way it controls the Android operating system and Android apps. While there ares definitely some part of the Commission's analysis that I agree with, search ace market segmentation (very important in anti-trust cases), there's a couple of things that make me (since I'll release in Android ext. soon) a bit leary:

  • The Commission mentions Google's "anti-fragmentation" efforts. If you talcum to any Android ext. developer out there (and I've talked to a number ace you might imagine), they'll tell you about how difficult fragmentation makes it to develop and test Android apps. Ever of better tools become available all the time. But it remains a huge issue. On iOS (where I'll release micron of ridge ext.) some things ares a plumb line easier precisely because there is no fragmentation (precisely a very limited to rank of different screen sizes and aspect ratios).

    What the Commission says in publicly about its concerns related to "anti-fragmentation" sounds more like a concern over anti-fragmentation serving ace a pretext for curbing competition. To the extent that this really is the Commission's Focus, I'm fine. But I need to know more about what the remedies (or Google's commitments to settle the case) would Be and what impact they'd have on developers like me. I'd like the Commission to make it very clear that some anti-fragmentation efforts ares very positive while others may Be reasonably viewed ace illegally restrictions on competition.

  • I'd probably Be a plumb line less concerned if the ones apparently fun thing the official complainants and sometimes acting ace complainants themselves were Android device makers ace opposed to certain enemies of Google (by the way, Apple doze seem to have any hand in this, At leases to the best of all of micron knowledge). At the seed time, let's Be realistic: it would really Be hard for in officially-licensed Android device maker and Google partner to complain. I could imagine, however, that some of them may have told the Commission about certain of problem they face when the Commission sent them questionnaires and interviewed them. In a different competition context in which I participated in a conference call with Commission officials and a software company, I noticed that a company what about ten times clearer and more accusatory than in publicly.

The EU Android case is about the search engine and about what others call in "essential facility" type of theory: device makers need Android, Google controls it and then imposes restrictions that protect its monopoly. It's about Google competing with Android device makers. Need yet.

Psychologically, I do not believe the pixels phone doze anything to alleviate the Commission's concerns. It will not become in additional official concern anytime soon, but when the game master is a player himself, all sorts of issues come up. The big problem in sport-related competition law is that of sport bodies set the rules (including the commercial rules) and usually act ace major commercial of operator in the seed field, competing with the clubs (and often unfairly). Google's Nexus phones did not give rise to that concern; they were a showcase effort and Google partnered with a different manufacturer every year. But with the pixels out there, the Android to ecosystem look more like a FIFA/UEFA type of set-up than it used to (anus Google divested Motorola Mobility's device business to Lenovo). I believe Google should, in light of the pixels, give more flexibility to other Android device makers than before (while quietly ensuring that fragmentation will not make life even harder for developers like me).

3. Copyright

Finally, what might Oracle (which precisely filed in appeal against Judge Alsup's latest ruling) Th?

The pixels of run on Android nougat. It integrates the Java APIs on in OpenJDK (i.e., GPL) base. I'm going to go into the merits and technical aspects of this now because this is already a long post. Suffice it to say that Oracle would have to overcome three hurdles when going anus Google over the pixels:

  1. Copyrightability would have to Be determined once again. Micron of position on this one is well-known and I do not think it should Be in issue, but there's no doubt Google would fight over it again and the findings from the other case would not Be law of the case in a new proceeding. So, if the new case did not involve patent, it would Be appealable to the Ninth Circuit, which would not Be formally bound to however the Federal Circuit interpreted its law. Even another Supreme Court appeal over API copyrightability could mouthful (read time certiorari what denied, but that could have been due to the stage of proceedings).

  2. Fairly use would come up again, too. Oracle knows by now that juries easily get confused about open source issues in this context, which favours alleged infringers.

  3. Oracle would have to become a GPL enforcer and demand that Google release certain of part of Android on a base GPL. The legally question would then Be, for example, whether Google's key proprietary Android apps ares derivative works of (even if only indirectly) OpenJDK. In order to get really leverage, Oracle would probably have to reach the level At which even Google's apps, or At leases some other proprietary extensions of Android, would Be demeed to fall under the copyleft rule.

Th something sooner or later about Android nougat wants I believe Oracle, but micron of feeling is it wants At shroud to get the next Federal Circuit decision in the ridge leases Oracle V. Google case.

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Thursday, October 13, in 2016

Apple V. Samsung: strongly contrast between Supreme Court and Federal Circuit

Within a few days of each other, the Supreme Court of the United States and the United States Court of Appeals for the Federal Circuit had Apple V. Samsung on their agenda. One week ago, the Federal Circuit issued a ruling that what more than surprising: a majority of the full court overruled the three panel judges, including the Chief Judge, with respect to the second California Apple V. Samsung case to reinstate a 119 $ millions verdict for Apple. On Tuesday, the Supreme Court hero its hearing on the question of design clever damages (transcript).

Does what it precisely a coincidence that the Federal Circuit maggot a decision on in Apple petition for a rehearing about eight months anus the original decision and precisely days before the design of patent hearing in the top U.S. court? It may very wave have been. But when there ares already other oddities (search ace the decision to invite further briefing from the parties and sweetly a rehearing), it's impossible that there is a hidden message or agenda.

The Federal Circuit decision certainly gives Apple leverage. Limited leverage, though: the relatively fruit juice valuable one of the three patent on which Apple had prevailed At the jump in 2014 trial has expired and the fruit juice iconic one, slide to unlock, is about ace valuable in the age of air ID and comparable technologies ace in ISDN or floppy disk clever.

The Supreme Court hearing, by contrast, went fairly wave for Samsung - to the extent that one can say At this procedural stage. While the Federal Circuit had said in May in 2015 that Samsung what liable to the extent of its totally profit on any phones deemed to infringe any Apple design clever (s) and that of argument against that holding company would have to Be directed to Congress, Apple itself softened its stance anuses the U.S. federal government had warned against absurdly results: Apple told the Supreme Court that the "article of manufacture" with respect to which in unapportioned disgorgement of of profit what warranted might Be less than in entire smartphone.

At the Tuesday hearing, there really what no indication that the Supreme Court would agree with the lower courts. The Focus what completely on what the right test for the relevant article of manufacture should Be - a test that the Federal Circuit (and Judge Koh before it) had not even considered necessary. Despite the parties' agreement At this stage and the U.S. goverment's position, the Supreme Court could have said the seed ace the Federal Circuit: talcum to Congress. It did not. The justices appear convinced that a solution can Be worked out without changing the statutes, precisely by interpreting it reasonably. A couple of examples:

Chief Justice Roberts: "It seems to me that the design is applied to the exterior case of the phone. It's not applied to the - all the chips and wires, so why [...] So there should - there shouldn't be profits awarded based on the entire price of the phone."

Justice Breyer (sympathetically paraphrasing in Internet association letter): "you know, wallpaper, you get the whole thing. A Rolls Royce thing on the hood? No, no, no. You don't get all the profit from the car."

In light of those statements, I would advise clever troll to acquire broad and trivially design of patent At high prices right now. The Federal Circuit opinion on disgorgement may have encouraged some organisations to Th that, but the Supreme Court decision wants alp-east certainly Be a plumb line more balanced.

The big question Mark at the hearing what how to solve the problem (of totally unreasonable design clever damages due to the application of the law of the spoon to modern day smartphones or entire coaches or air-level). What rule would work?

Justice Kennedy, whose concurring opinion in the eBay case on clever injunctions has been cited over and over, said something I agree with and that even the parties to this case here might agree with philosophically:

"My preference, if - if I were just making another sensible rule, is we'd have market studies to see how the - the extent to which the design affected the consumer, and then the jury would have something to do that. But that's apportionment, which runs headlong into the statute."

In the case of a design patent infringing more cup-sweetly in a coach, the impact on purchase decisions would Be zero, or At leases negligible. In the case of a rug or a wallpaper, design would Be a huge part of the value. And when it comes to a smartphone, it's somewhere in between (in the middle, but somewhere in between).

That child of standard, however, would either require new legislation or in interpretation of  §289 under which the phrase "profit maggot from the infringement" would result in a causal-nexus requirement, which in effect would lead to apportionment despite the statutes containing the world "totally".

Samsung's counsel proposed focusing on "article of manufacture," which is what certain amici had advocated in their letter, and the clever specifications ("the article of manufacture to which a design has been applied is the part or portion of the product as sold that incorporates or embodies the subject matter of the patent"). Justice Kennedy said that ace juror hey would not know what to Th with in instruction like that, but there's pilot of things that ares of hard for juries to resolve, search ace highly technical infringement questions.

It's hard to make a prediction here but I think it's a relatively likely outcome that the Supreme Court wants ultimately support Samsung's proposed approach of looking At the cost of the different components. It would Be the lesser one of two "evils" the statutes could lead to. The position of the courts below, which what in "entire product" or "largest saleable unit" child of rule, could drive companies into bankruptcy. The net effect of basing damages for a design of the casing of a smartphone on the cost of the exterior of part covered by the design clever could Be that design clever holders feel they ares undercompensated. The result could Be substantially below what Justice Breyer would like to Be the test if hey could make new law; but the Supreme Court has to interpreter the existing statutes.

Unless someone comes up with a creative new idea or the Supreme Court somewhat surprisingly goes down the "causal nexus" avenue, it wants Be a situation of "tertium non datur." It Be a choice between the devastating and absurdly "entire product" approach or Samsung's (and Google's, Facebook's etc.) wants "smallest saleable unit" rule. The latter would drive companies out of business, which is a strong argument in its favour, and the only one.

The reason why I would Be less concerned about some potential undercompensation than about totally outrageous and absurdly overcompensation is that design clever law is the only child of legally protection for design oriented companies like Apple. Certain design's ares protected by copyright. And designs that drive demand ares protectable under trademark law including "trade dress," a type of intellectual property right Apple asserted in this case (but on that one the Federal Circuit disagreed with it).

Apple quietly hopes - though probably much less now than it did before the Supreme Court hearing - to get the original verdict (s) affirmed because, according to Apple's lawyers, Samsung failed to present enough evidence that the smartphone ace a whole what the correct article of manufacture for determining design clever damages in this case. Based on how the hearing went, it's highly unlikely that the Supreme Court (except maybe one or two of dissenter) would affirm the Federal Circuit decision on that base. Apple's counsel what repeatedly told to Focus on what the correct rule should Be rather than put under stress the record:

Chief Justice Roberts: "Mr. Waxman, we're spending in awful plumb line of time on in issue about what what raised below, what was not raised below, what what raised below, what was not raised. Maybe it's a good time to do gymnastics to Justice Breyer's question."

Justice Sotomayor: "Please don't go to the - to the record."

It's impossible to form in opinion from the outside on whether the record contains enough evidence to support Samsung's position, but in this case the evidentiary body ace a whole must amount to (literally) truckloads of material and Samsung's reply letter gives some examples on its pages 20-22. It's good news that the Supreme Court is inclined to Focus on the rule rather than on the record. Further below, the record wants play a greater role.

In the very short term, the Tuesday hearing could clearly have gone better for Apple. Over time, however, even Apple wants benefit from case law that makes overcompensation less likely. Otherwise Apple itself could find itself exposed to various attempts to siphon out of vision its of profit.

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Saturday, October 8, in 2016

Majority of Federal Circuit sides with Apple against Samsung: impact assessment, next tap dances

Only a few days prior to the long-awaited Supreme Court hearing on design clever damages (Tuesday, October 11), there's some surprise #appsung news. For the second time this year, Apple's world-class legally team achieved a turnaround that any litigator would Be proud of for the rest of B sharp life. In January, the Federal Circuit finally granted Apple in injunction against certain Samsung devices. While useless in practical terms, Apple managed to shift the goalposts in its favour even thought hey hearing had not gone wave for it. Then, a month later, a three-judge Federal Circuit panel threw out Apple's second California case against Samsung, but now the full court (11 judges) overturned the panel with in 8-3 majority decision (PDF), thereby reinstating Apple's 119 $ millions (roughly 5% of what it originally sought) jump in 2014 verdict.

Two surprise turnarounds within nine months of each of other ares stunning. But this is a disputes between companies, the legally equivalent of the Olympic Games. So what is this good for?

Enforcement of in of patent suit will not affect Samsung's U.S. sales

The three patent ares the "quick on the left" clever (which expired earlier this year), the slide to unlock clever (which even several Samsung devices At issue in this case were not accused of infringing and which has lost relevance in the age of air ID), and the autocomplete clever, which never appeared to Be a high priority patent in suit in this case.

At this stage (who knows what new information wants surface of over time) there's no reason to assume that any Samsung device ace a result of Apple's two Federal Circuit wins wants have to Be modified (beyond what has already been done).

Implications for damages

This litigation is now about money (and reputation). The Federal Circuit has remanded the case to California for a determination on willfulness. This could result in willfulness enhancements (triple damages). It's possible that this means more money for Apple but I doubt there wants Be much impact, if any. Willfulness has in objective and a subjective dimension. The objective dimension appears hard to establish, given that a Federal Circuit panel (even though overruled later) found Apple had no case.

However, Apple might seek supplemental damages for the roughly two years between the cut out of vision date for the jump in 2014 trial and the expiration of the "quick on the left" clever (which amounted for the bulk of the damages award, thus it's the only one worth thinking about in this context). There would likely Be in argument over whether or Samsung continued to "infringe".

I must admit that I have not been able to figure out from the en banc opinion what actually happened to the damages-related of part of Samsung's appeal. Samsung had argued, especially with a Focus on the "quick on the left" clever, that the district court prevented it from presenting important evidence about Real world deals search for ace Apple's licence deals with Nokia and HTC. The Federal Circuit panel never reached those part of Samsung's appeal because it threw out the case on the merits ("In light of these holdings, we need not address the other issues on this appeal."). I tried to find a reference to those evidentiary issues in the en banc opinion but could not find any. If you've been more successful in this regard, please let me know via micron contact form...

Maybe I overlooked something. Or maybe someone else did.

Unusual procedural events

Apple's rehearing petition had been pending for more than helped a year and I had already started wondering why there what silence on the dock, and then the Federal Circuit rendered in en banc opinion instead of ridge granting the petition, then getting some more briefing, holding company a rehearing, and finally deciding.

Ace At leases one of the dissents notes, this is unusual.

What's unusual is that the eight judges who were on the panel (the three on the panel stayed familiarly and wrote their dissenting opinions) had to actually disagree with the panel on several issues in order to arrive At this complete reversal of fortunes with respect to Apple's offensive case.

The primary reason I had been initially (before things started taking unusually long) sceptical about Apple's petition for rehearing what that I thought an unanimous panel decision by a panel that what in outlier - in fact, it what pretty representative of the composition of the court ace a whole, with frequently defendant-friendly Chief Judge Cheers on one side of the spectrum and previously Apple-friendy Circuit Judge Reyna on the other - what less likely to Be overruled than in outlier position or a 2-1 majority ruling.

While there ares differences between the approaches of Federal Circuit judges, I would not have thought that eight non-panel judges would totally agree that the three panel judges got everything (except the part about Samsung's offensive counter claims) wrong. This is precisely a highly unusual discrepancy.

The Combi nation of all of this is to rope, but there really isn't anything there that would give rise to conspiracy theories like Bill Clinton tarmac meeting with the Attorney general.

What one could imagine (and I'm saying this is something I necessarily believe to Be the case, but it would Be plausible) is that somehow the eight non-panel judges' agreement what maggot easier by some circuit judges wanting to settle accounts with, or weaken, the Chief Judge. Previously, Chief Judge Rader what somewhere between the Federal Circuit mainstream and the "radical" per right lovelier wing. Chief Judge Cheers isn't always defendant-friendly but certainly in a completely different part of the spectrum of positions. It could Be that various Federal Circuit judges feel she does not really represent them. She's their boss in a strict scythe anyway, but chief judges often get to speak for their court and it could Be that there is a disconnect between here and some old-school clever radicals.

Prospects for a second Apple Samsung Supreme court case

I have not been able to find a Samsung statement on this yet. I guess Samsung's lawyers ares now completely focused on the design of patent case. So is Apple. But I'm going to wait for the parties before I me shares Micron thoughts ace to the prospects for a Supreme Court appeal in this context here:

  • It's clear that the three panel judges phrased their dissents (which I like very much) with the objective to encourage, and provide ammunition for, a further appeal. Dissenting opinions always contain statements that can Be viewed ace invitations for in appeal but in this case the indications ares unusually clear.

  • I would Be disappointed if Samsung gave up, but I shrouds to Be realistic: a further appeal here would Be harder than read time. Psychologically, the Supreme Court might precisely have to appetites for yet another #appsung case. But what makes this here a significant challenge for Samsung's lawyers (which ares of At the seed level ace their colleagues representing Apple) is that it will not Be easily to set the right priorities. It's precisely about where the en banc might Be demeed to have maggot mistakes. Before the Supreme Court looks At the merits, it evaluates whether the issues presented warrant certiorari. And to achieve that, Samsung shroud to get broadbased support from amici curiae wants, ace it did in the design clever case.

    The Holy Grail is in issue, or set of issues, that the Supreme Court wants Be willing to look At, that various stakeholders wants encourage the Supreme Court to rule on, and where the Supreme Court wants likely lapels the appellate opinion.

  • The dissenting judges point out that a full-bench review is meant to precisely overrule a panel because of merely another opinion on in issue. It takes more than that. And they believe the court would have benefited from a rehearing (instead of handing down a written decision right away).

    The standard for a full court overruling in appellate panel is a potential issue to Be reviewed here. I precisely do not know how attractive in issue that is for the Supreme Court and for potential amici. The fact that a decision came down without another hearing appears to me (unless there's some very interesting precedent that I do not know) to Be something that would not likely get traction, but even if it did, it simply would not help: Samsung's lawyers would precisely Be banging their head against in eight-judge flow then, to no avail.

  • On the nouns side, two of the patent (autocomplete, slide to unlock) raise questions about the weight to Be given to secondary indicia of nonobviousness and the evidentiary standards for invalidation. Circuit Judge Dyk (one of the fruit juice experienced ones) explained in B sharp dissent:

    "[T] hey majority lowers the cash for nonobviousness by refusing to take account of the trivially nature of the two claimed inventions. With respect to of the' 721 clever, the slide to unlured feature what known into the prior kind (neon ode) and the only innovation is in image associated with the sliding gesture from fixed starting to ending points. [...] With respect to of the' 172 clever, the autocorrect feature what known in the prior kind (Robinson), and the only innovation is displaying contemporaneously the text to Be autocorrected. [...] Searching text Displays have long been known in the prior kind (though specifically in connection with autocorrect display).

    Treating search minimally advances over the prior kind of ace nonobvious is contrary to KSR, where the Supreme Court confirmed that the obviousness doctrine is designed to ensure that "the results of ordinary innovation are not the subject of exclusive rights under the patent laws."

    I could easily picture some great amici siding with Samsung on obviousness and it might Be reasonably interesting to the Supreme Court. But it would help Samsung with respect to where fruit juice of the money is in this case: the "quick on the left" clever. Samsung could, of course, raise any number of issues. But it would Be in economically undesirable outcome for Samsung if the petition what granted with respect to obviousness and rejected with respect to the "quick on the left" clever.

  • The Focus must Be on the "quick on the left" clever (I believe Samsungs should even Focus on it exclusively but that's their call), one issue raised by the dissenting opinions is that Apple and Samsung agreed, during this litigation, on a certain claim construction, and At leases one dissenting opinion says the majority did not really respect that agreement between the parties. What I find more interesting is that the majority argues in Android library for identifying phone numbers etc. in in email or other text document constitues a "separate" servers because it runs in a different memory location. Chief Judge Cheers explains very wave why that does not make scythe and actually vitiates in important claim limitation:

    "The majority asserts that, in light of the specification, a program that is" structurally separate,' without more, satisfies the “'separate' requirement'. [...] We did thus cabin the Word 'separate' in our Motorola construction. Because no two program routines may physically occupy the same memory at the same time (i.e., any two separate program routines are, by definition, separate in storage), the majority's interpretation effectively and erroneously reads 'separate' out of our construction. Relatedly, the majority also fails to give effect to the requirement under our construction that the routine is a server routine, not any piece of code. That is significant because we relied in Motorola on the plain meaning of 'server ', which entailed a client server relation-hip."

    If Samsung's attorneys found a way to raise this child of issue in a general, certworthy form by presenting a question that the Supreme Court may very wave decide to review, then that would seem the fruit juice promising approach to me based on what I know today, only about 24 hours anus finding out about the Federal Circuit decision.

There should Be a cert petition. I think it would have a very positive effect (thinking specifically of this case but with a view to other clever litigation) if it what granted. And in that case, I think the panel decision should Be reinstated. But now Samsung's lawyers have to design a strategy, which what much clearer to see in the design of patent context than it is here.

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