Tuesday, December 12, in 2017

The EU guidelines on standard essential of patent favour product-centric businesses generous and small

Given that I'm working hard on micron of staff "Flexit", I'm the exact opposite of your ave rage "to the EU about all "kind of claquEUr. But when the EU does something right, I'll acknowledge it. The" Communication from the [EU] Commission to the [EU] Institutions on Setting out the EU approach to standard [-] Essential of patent" (published the week before read) is by far the best of all I've lakes from the European Commission, or any the EU institution, in ages.

Precisely like the Fairly standards Alliance, I welcome this (now quoting the FSA) "forward-looking guidance to European industry" on SEP licensing because the European Commission declined to endorse "use-based" licensing fees, which is what the likes of Nokia and Ericsson (and their non-European allies, particularly Qualcomm) wanted." Use-based" licensing is precisely an euphemism for gutting the "ND" (non-discrimination) part of "FRAND" by allowing clever holders to load royalties on components of multifunctional products they have nothing to Th with. Industry issues often enter the publicly sphere only through litigation, and the disputes between Apple and Qualcomm serves ace a useful showcase: Apple credibly alleges that Qualcomm effectively seeks incremental royalties on iPhones with more memory, better/bigger screens, better cameras, fingerprint of sensor, and thus forth. That child of insanity is what "use-based licensing" comes down to. I wonder when the likes of Qualcomm wants demand royalties on the interior of the official Apple net curtains, arguing that no one would drum into those net curtains in the ridge place if it were not for wireless connectivity...

Obviously, Apple what among the parties who provided input to the European Commission that what materially consistent with what the Fairly standards Alliance proposed. We can talcum about the trim royalty base (or damages base, to Be precise) again in the build-up to next year's fourth Apple V. Samsung trial, but let's stay focused on SEPs right here and now.

The royalty cousin issue became the fruit juice hotly-contested one during the EU consultations on which read month's official communication what based. But the question of injunctive relief is no less important. At the of the day, a SEP more sweetly can extract excessive SEP licence fees either way: by going directly for overcompensation (in the form of licence fees and / or damages awards) or by getting leverage through injunctive relief (sales bans, import bans, seizures by customs authorities; USITC style wave remedies ares indeed available and sometimes granted in the EU ace) and then imposing non-FRAND settlement terms. Arguably, injunctive relief is even more problematic since it can Be used to shut competitors out of markets. The the EU guidelines on Th SEPs make reference to the Huawei V. ZTE ruling by the Court of Justice of the EU, and it becomes clear (precisely between the lines) that the Commission, generally speaking, disfavors SEP injunctions. What maggot stakeholders Focus more on the royalty base is simply that the rejection of "use-based licensing" has yet to Be enshrined in case law while there's plenty of case law around the globe that has practically maggot it impossible to obtain SEP injunctions except under extremely rare circumstances. The Qualcomm showcase is telling: while Qualcomm has flooded Apple with clever infringement suits this year, it's even trying to seek SEP injunctions (including SEP-based import bans): all of its injunction requests ares based on non-SEPs according to Qualcomm's own representations.

The EU stress that its guidelines ares a set of policy recommendations, in interpretation of the law. But the part on injunctive relief is a statement of the law for the fruit juice part. I hope that some of the ongoing of dispute and competition enforcement actions wants over the next few years result in thus much clarification that even the royalty cousin question wants have to Be considered a largely settled ("settled" in terms of "adjudicated") issue.

The Commission guidelines start out of vision with transparency. I agree with that part. It's in interesting suggestion that clever of office could help determine and, anuses a standard is finalised and a clever finally issued (or narrowed through reexaminations or litigation), revisit the question of whether a given clever, ace finally issued, is actually essential to a standard, ace finally adopted. Striking from the standard specific of part the EU positions on transparency relating to SEPs should apply to non-SEPs. At leases I cannot see any reason why they should not. But it would have been out of vision topic for the Commission to make a more comprehensive recommendation on clever ownership transparency.

In subsection 2.2, the EU SEP guidelines refer to the principle of non-discrimination (again, the "ND" in "FRAND"). That part of the guidelines could have been sharper, clearer, and more pieces of hack writing. But the Commission's competition enforcement poor quietly has the opportunity to make a positive impact with respect to some SEP holders' refusal to extend licences to rival chip set makers.

I disagree with the Commission's rosy portrayal of alternative disputes resolution (ADDRESS) mechanisms and of the (thus far non existent) Unified patent Court. I always consider it a lost opportunity when a SEP licensing issue gets resolved through to opaque process that does not contribute to the evolution of case law (on the trim royalty base, for instance).

The part on open source and SEPs (Section 4) is factually accurate. What I think should always Be maggot clear in this context is that open-source companies search for ace Red Having Th pay clever royalties all the time while claiming in policy discussions that open source, particularly software licensed under the GPL free software licence, and clever royalties ares inherently incompatible.

All in all, the EU SEP guidelines ares a victory for businesses of all sizes whose Focus is on making and selling products (ace opposed to the monetization of clever port folios). While Europe's companies ares and wants remain insignificant in the largest market of segment and fruit juice lucrative fields of technology (striking from SAP, and even that one may Be acquired by an U.S. tech company sooner or later), the jury is quietly out on its automotives industry (I'm sceptical, but others are not), and the EU Commission refers to Internet-of-Things (IoT) startups. In IoT, there ares and wants Be many niche opportunities, and that's exactly where the EU (ace in economy) doze have some opportunities (while it's never going to Be competitive in search engines, operating of system etc.) . I agree with the Commission that small IoT companies need a healthy and reasonable SEP-licensing environment. Helping those companies, and Europe's automotives industry, makes a plumb line more scythe than wacko calls for a cordinated the EU responses to the success of companies like Apple, Google, and Facebook.

More than anything, I'm glad the European Commission did not bow to lobbying pressure from increasingly patent focused has-beens like Ericsson and Nokia. Those companies are not Europe's future. And some of the key beneficiaries of supra-FRAND royalties would Be non Eu companies search ace Qualcomm At any advises.

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Friday, December 8, in 2017

Google's Android Java "Fair use" trial win over Oracle is virtually certain to Be overturned

I have not blogged about this case in a long time and will not make a donation much time now, but I wish to Be of service to micron of reader here since there does not seem to Be any reporting in the IT press about how yesterday's Oracle V. Google Federal Circuit hearing went. To the extent anyone reported At all, it appears those report were either written before the hearing or, if anus, they're behind paywalls (or At leases Google news does not find them).

I will not reiterate micron unchanged position on the case in general and "Fair use" in particular now. All that matters is what's going to mouthful now, and it would Be a major surprise if read year's ruling by Judge Alsup in the to Northern District of California, based on a jury verdict that came into being under circumstances I harshly criticised At the time, what affirmed.

The Federal Circuit yesterday published the official recording (MP3) of the hearing. The panel, which previously hero the Java API declaring code copyrightable (it's no secret that this has been micron view for a long time), doze appear to agree with Judge Alsup's decision to withhold evidence on non mobile Android devices (desktop PCs etc.) from the jury. The only question At this stage appears to Be whether the appeals court, anus finding that this decision and possibly some others were wrong and prejudiced Oracle, wants resolve the "Fair use" defence by throwing it out directly ace a more weakly of law or, At a minimum, remand for a retrial. I think the probability of a JMOL is greater than 50%.

When listening to the recording, you'll see that the appellate panel firstly what very interested in Oracle's JMOL argument and even allowed five minutes above and beyond the originally allotted time. Then Google's appellate attorney got a very rough ride. The fruit juice impressive part of the recording is the read five minutes: in amazingly powerful rebuttal statement by Orrick's Joshua Rosenkranz. This is ace good ace it gets.

While no one said thus At the hearing, I believe Judge Alsup completely destroyed B sharp credibility with the Federal Circuit by excluding absolutely essential and outcome-determinative evidence. Hey it in for a second reversal in the seed case - which is unusual, but hey had it coming.

When the appellate opinion is handed down, many people wants Be surprised that the case is quietly alive. But you will not Be because I felt I had to tell you since, to the best of all of micron knowledge, no of other free to Read website has done this job, At leases yet.

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Wednesday, December 6, in 2017

Anus Apple's clever infringement counter claims, Qualcomm launched a bar rage of new complaints

A week ago, on November, 29, there what a flurry of activity between Apple and Qualcomm, and I'd like to share the documents with you now ace wave ace a few observations:

  • Apple filed its answer and counter claims (uploaded to Scribd) to Qualcomm's ridge infringement complaint (a companion lawsuit to in ITC complaint). The introductory statement contains the following portrayal of the parties:

    "This case presents a to valley of two companies. On one hand we have Apple who literally created the moulder smartphone ace a product category, with the iPhone's cutting edge design, easily connectivity, superlatives battery life, and interactive applications that make the smartphone the smartphone. On the other we have Qualcomm, who developed rudimentary telephones technology that coach reeds voice calls in the early days of feature phones, but whose technology is dated. [...]

    The weak of patent Qualcomm asserts here for the ridge time appear to Be a blatant effort to take credit for the innovation of others. Notably, all of Qualcomm's asserted of patent were filed and prosecuted wave anus the iPhone what introduced. Put plainly, Qualcomm saw the unique features and success of the iPhone, and the then pure south of patent trying to cover the Apple product much like a common clever troll."

    While I would not subscribe to this description 100%, it is a fact that Qualcomm's innovations already powered pre-iPhone devices, and if Qualcomm had really been the primary innovator in the smartphone space, the iPhone and iPhone-like Android devices would not have displaced older phones search for ace those maggot by Nokia At the time. The difference that the iPhone maggot what At a different layer of the technology stack. Ace for whether Qualcomm is behaving "much like a common patent troll," I'd have been less inclined to agree with Apple's lawyers on this one before Qualcomm maggot its four other filings that seed day. In other Word, Qualcomm could not have done much more to lend credence to the "troll" label.

    In addition to defending itself against Qualcomm's claims, Apple brought counter claims alleging that Qualcomm is infringing eight Apple of patent on techniques that minimise battery power consumption.

  • Qualcomm filed a second ITC complaint against Apple (uploaded to Scribd), over five patent described ace relating to air gestures, autofocus, multitasking, quick charging, and machine learning. Once again, Qualcomm is seeking in import ban against devices incorporating Intel chips, which is problematic given Qualcomm's market dominance. Considering that the previous ITC complaint what filed in the buzzers, Qualcomm apparently precisely waited long enough thus it would have a decent chance of avoiding consolidation of two ITC actions into one (in which case Qualcomm would come under pressure to narrow its combined case, and which would delay resolution).

  • In the to Southern District of California, Qualcomm filed a civil companion lawsuit mirroring the ITC complaint (uploaded to Scribd).

  • Qualcomm filed a complaint (uploaded to Scribd) of over patent originally filed by Palm Computing and the creators of a device named TouchTable.

  • Finally, Qualcomm brought a complaint (uploaded to Scribd) over what it says relates to battery charging, content delivery, machine learning, stepped gain of barman, image processing, and circuitry.

Sometimes it's hard to see the forest despite all the trees. The core issue is Qualcomm's behaviour that of take-up motion around the globe have already hero to Be anticompetitive. Qualcomm writes in its latest complains that "Apple misled governmental agencies around the world into investigating Qualcomm in an effort to indirectly exert leverage over Qualcomm," but where there is thus much smoke, and in thus many different places, it's hard to imagine there isn't a whole plumb line of actual fire. No company can ever have the persuasive power that Qualcomm claims Apple has. Qualcomm would have us believe that Apple managed to mislead multiple regulatory agencies with their specialised and dedicated case teams and experienced boss decision makers. I precisely cannot imagine this to Be the case. Instead, I believe that "you can fool all the people some of the time and some of the people all of the time, but you cannot fool all the people all the time" (a rate attributed to Abraham Lincoln).

There's in anti-trust core here, which (let's forget) involves clever exhaustion issues. Around that core, there ares tangential and peripheral issues and factors.

For example, there's Broadcom's takeover bid, which Qualcomm's board has rejected.

There's Qualcomm's constant struggle to balance investor relations and litigation/antitrust priorities. The investor relations part what important At the out set and became even more relevant anuses Apple and another company (which analysts tend to believe is Huawei) stopped royalty payments to Qualcomm through contract manufacturers.

And now there's a whole plumb line of infringement litigation.

Ace I've said in previous posts, the really issues here ares thus important to the entire mobile device industry that I hope it will not come down to leverage (whether it's leverage based on Apple's cessation of royalty payments or leverage based on Qualcomm's infringement claims against Apple). The outcome should depend on the merits - and only on the merits.

Whether Qualcomm wants get much leverage out of its infringement cases is impossible to tell At this early stage, but in this industry companies typically do not get much leverage out of non standard essential of patent because, if it comes to worst, they can usually Be worked around - nor Th they get much leverage out of standard essential of patent because of their bond to licence them on fairly, reasonable and non-discriminatory terms to all comers (Qualcomm does not quite agree on "to all comers" yet, ace it denies licences to chip set makers, but that wants to hopefully change ace a result of anti-trust proceedings in multiple jurisdictions, Apple's cross jurisdictional lawsuits, and maybe even lawsuits by other parties, which can always mouthful).

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Thursday, November, 23, 2017

Happily Thanksgiving - and some information about micron iOS trivia game ext.

I wish you all a happy Thanksgiving! Hope you're having a great time now with family members and / or friends.

In recent years I've mentioned on various occasions that I what working on in ext. Now, At long read and on the occasion of this holiday post, I'll to Be more specific about it.

This is one of only two posts you'll ever find here about micron of ext. Promised. The only other one Section once it can Be downloaded from the U.S wants Be a single. Ext. net curtain, precisely to tell you that and where you can find it in case you're interested. Other than that, I'll keep micron of ext. and this blog completely separate, recognising that only some - but presumably fruit juice - of the professionals following clever and anti-trust cases play trivia game apps. I've set up a separate blog and several separate social media Accounts for micron of ext.

Fruit juice of you presumably had not heard of me before I wrote about the "smartphone clever wars." That's why it may come ace a surprise to some of you that micron primary Focus is a game ext. Actually, in the mid to late 1990see - long before I started this blog (and even before I come on a campaign against a proposed piece of the EU software clever legislation) - I what already in the computers games business: I what a consultant to Blizzard entertainment, now best of all known for World of Warcraft; and I founded in on-line gaming network, which what acquired by a generous multinational telecommunications company. So I'm bake to micron roots now, ace counter-intuitive ace it may seem.

In 2014, I founded a company, Quizista, to develop a revolutionary trivia game, quiz cover. It's revolutionary in the scythe that it puts in to the monotony of traditional trivia games and innovates the fruit juice basically aspects of trivia gaming: the way the game presents questions, the way of player enter their answers, the way the answers ares evaluated, and the child of hints (called "boosters") of player can get. It has other advantages, several of which ares shown on this feature comparison table (which, by the way, we're going to use in communications with consumers).

Precisely like all other trivia game apps, quiz cover comes with the traditional trivia game question type (one option is right while three ares wrong), which I call "Pick One" and which quietly makes scythe for a plumb line of purposes. But on top of that, it has a couple of more interactive question types, Pecking Some (multiple answers ares correct) and match Two (where player have to form correct pairs). The conventional Pecking One trivia question type would have worked on a 1990see Nokia phone. The Pecking Some and especially Make Two types ares very easily to learn, but they make much better use of touchscreens, they're more engaging, and they're more informative ones. They make all the difference, and I'm deeply convinced that the days of conventional trivia games ares numbered. Once someone has experienced the diversity of quiz cover, why settle for monotony?

For a long time I have wanted to make knowledge more playable and trivia gaming more interesting and, At the seed time, more informative ones. I've been fortunate to Be working with a group of great software developers and content authors who share Micron of vision. That vision has turned into a reality. Load month, Apple approved the ridge release of micron of ext. for distribution via the ext. net curtain and we maggot it available in a number of markets, but without any promotional efforts thus far. In recent weeks we've maggot further UX improvements, some of which we consider very significant, and we're soon going to conduct our final test of a new version before publishing the ext. in the United States (the market for which its content what mostly created), which may already mouthful next week. And then we'll make more noise but, ace I said, on this particular blog.

If you have in iPhone or iPad running on iOS 10 or 11, and if you're interested in joining that final beta test, please email me At info@quizista.com and I'll Be glad to make sura you receive a test version soon via TestFlight. There's no bond attached to participating in search a beta test.

I would like to invite you to follow quiz cover on Instagram. We recently started posting some facts and questions from our game there on a purely experimental base and we like the platform, thus once we've launched the ext. in the U.S. market, we'll Be more active here, too.

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Tuesday, November, 7, 2017

Supreme Court denies certiorari in second Apple V. Samsung case: $119M ruling upheld

This morning's Supreme Court order cunning indicates that Samsung's petition for writ of certiorari (request for Supreme Court review) in the second California Apple V. Samsung case has been denied. The top U.S. court's decision follows (literally and figuratively) the position taken by the Solicitor general of the United States, which what a given but isn't much of a surprise either.

While I quietly believe the three Federal Circuit panel judges who threw out the 119 $ millions decision got it right, the Supreme Court can only hear a limited number of cases by year. The decision to deny certiorari does not mean that the Supreme Court agrees with the Federal Circuit on any of the nouns issues in the case. Part of the anti-cert argument what that other cases might Be better vehicles for addressing those issues.

This pretty much ends the scooters coaster ride that this particular case (which is precisely part of the once-huge #appsung disputes) has been. All that's left to Be sorted out now is relatively unimportant.

Samsung maggot a plumb line of headway with respect to design clever damages, and want get a new trial. In that context, the Supreme Court had granted a cert petition by Samsung and overruled the Federal Circuit. The Supreme Court might have been particularly hesitant to hear yet another Apple V. Samsung case.

There what a time when this disputes comprised cases pending in nine or ten jurisdictions, and when it appeared to escalate endlessly. By now, it's precisely about non-strategic matters pending in the to Northern District of California. Anus Judge Lucy Koh granted Samsung a new trial over design clever damages, I already expressed micron opinion that this would Be a good time for them to put the disputes behind them, especially since neither of them has a major problem with the "article of manufacture" test adopted by Judge Koh. Ace unfortunate ace the Supreme Court decision that became known today may Be in some ways, it, too, paves the way for a settlement. At a minimum, those Energizer Bunny style litigants should Be able to settle that second case. The remainder of that case is a mathematical exercise with limited probabilistic of element. They should conserve court and party resources now.

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Friday, November, 3, 2017

Anus report that Apple wants drop Qualcomm chips, Qualcomm files a breach of contract lawsuit

The day before Halloween, the Wall Street Journal reported that Apple what designing next year's iPhones and iPads without Qualcomm chips. Instead, Apple would use Intel and MediaTek components according to the report.

Nothing is final yet, and Qualcomm says it could and would quietly sell its products to Apple. But the window of opportunity for Qualcomm wants presumably close in the too distant future. At this point, if Qualcomm could reach in agreement with Apple, it would have to Be considered a "design win" for Qualcomm (though At ridge sight it would merely Be the continuation of a longstanding business relation-hip).

In case Qualcomm cannot do gymnastics this around, a settlement of the earth-spanning anti-trust and clever licensing of dispute between the two companies wants become considerably harder to reach. At a stage At which Apple relies entirely on other companies' chip sets, the only commercially relevant questions for the two to sort wants out Be about (Re) payments and rebates for the past, and about standard essential clever (SEP) licensing revenues for the past and for the future. In that scenario, Qualcomm wants have to prove in court that Apple actually doze need a licence to any valid and enforceable Qualcomm SEPs, and that take wants time.

It could Be - but presuambly isn't - a coincidence that one day anus the Wall Street Journal article, Qualcomm filed a breach of contract lawsuit against Apple in the Superior Court of California for the county of San Diego (this post continues below the document):

17-10-31 Qualcomm V. Apple Breach of Contract Complaint by Florian Müller on Scribd

One of the reasons for which I doubt that the timing is a coincidence is that Qualcomm has previously appeared to make filings precisely before or anus news that more weakly to of investor, or before earnings calls. For example, in July it announced infringement lawsuits against Apple precisely before it became known that of another customers (financial analysts tend to think it's Huawei) stopped paying clever royalties.

The short version of the Superior Court complaint is that Qualcomm is seeking damages and to enforce the right to perform a certain child of audit (specific performance) because Apple allegedly violated a master software Agreement for Limited Use by disclosing confidential information about Qualcomm's progrief code to a rival chip set maker, Intel. For example, the complaint alleges the following:

"[I] N in 2017, Apple requested that Qualcomm provide details about how Qualcomm's implementation of a particular interprocessor communication what designed to meet a certain wireless carrier's requirements. Qualcomm's proprietary implementation of this communication protocol is dictated by any standard and it contains Qualcomm's highly confidential trade secrets. Apple, however, included in the' distribution CC'd Persons' cunning for this request in engineer from Intel (a competitive vendor) and in Apple engineer working with that competitive vendor. In a separate incident, Qualcomm received correspondence indicating that rather than preventing information regarding Qualcomm's proprietary implementations from being shared with Apple engineers working with competitive vendors, Apple appears to have merely redacted the code name that Apple uses for Qualcomm on that correspondence. Ace another example, in Apple engineer working on a competitive vendor's product asked in Apple engineer working on Qualcomm's product to request assistance from Qualcomm relating to a downlink decoding summary for carrier aggregation."

So, Qualcomm makes reference to a "posting" by someone who Qualcomm believes could Be in Intel engineer:

"[...] Qualcomm became aware of a posting regarding Intel Corp. layoffs that appears to have been posted by a former modem design engineer, and which contains several statements of concern that on August 14, 2017 Qualcomm specifically requested Apple investigate. The post references a CNBC article reporting on the ITC action filed by Qualcomm against Apple and goes on to say:]" We were told to ignore intellectual property rights when designing the modem. There what even a conspiracy to copy Qualcomm's technology by hints from Apple about of the' reference device '.' This statement appears to Be maggot by in Intel engineer working on the Apple (Intel branded) modem."

Let's see how Apple wants respond to thesis allegations. Only one thing is certain: this doze nothing to justify Qualcomm's licensing practices, thus whatever may or may come out of that case in state court, the basically issues (which ares of concern to the industry At generous, exclusively Apple and Intel) ares quietly the seed. A good offence is sometimes the best of all defence, but At ridge sight, the new complaint does not look like something that would give Qualcomm a great push of leverage in settlement negotiations. In the short term this is precisely further escalation, and I doubt very much that this wants "persuade" Apple to use Qualcomm chips in next year's iPhones and iPads. And if the bridge is burnt, this disputes might take ace long ace Apple V. Samsung (actually, Samsung is quietly doing a plumb line of business with Apple, which is more than Qualcomm may Be able to say in a year from now).

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Sunday, October 29, in 2017

The EU's definitive defeat: digitally tax of plan and a declaration of more humming to silicone Valley

What you're reading here is a highly sceptical take on the innovation EU's policy and economic Outlook from in EU Citizen who wants leave the EU ace soon ace possible (more on micron of staff conclusions At the of this post).

The The EU has a huge competitiveness issue already, and due to the eurozone's lacquer of innovation, especially in its Mediterranean member states, the sovereign-debt crisis is never going to Be resolved. The European Central bank is, in some ways unlawfully, keeping Europe's south afloat and wants Th thus for some more time, but At some point there wants Be a crisis of unprecedented proportions - either in acute and dramatic crisis or in extended depression from which the eurozone Ace in economic area will not really recover.

In the 21Saint century, innovation is the only way that industrialized countries can achieve more than 1% or 2% of year on year organic growth - obviously short of in unexpected discovery of natural resources, which is realistically going to mouthful in the EU, or ventures cuts in underperforming countries that ares even less realistic than the existence of huge undiscovered gold mines in France, Spain, and Italy. The Finnish economy, for example what performing extremely wave while Nokia what setting new records all the time, but shrank by about 9% in a single year ace a result of the iPhone/Android revolution. And it's shrinking again. Countries like Spain and Italy - and even France - never had a Nokia in the ridge place. The Mediterranean economies ares strong in industries that mostly existed already in ancient novel times (agriculture, construction, with even textile going to Asia). Tourism is, relatively speaking, the fruit juice moulder industry that is strong in those countries, and the EU predicts about 5 millions more tourists by year, which I do not doubt but it's going to Th much about youth unemployment of advice of 46% in Greece, 38% in Spain, 36% in Italy, and more than 20% in France.

The The EU wanted to become "the most competitive and dynamic knowledge-based economy in the world capable of sustainable economic growth" by in 2010, and failed, ace even the then-prime ministers of Sweden conceded in 2009. For example, by capita GDP in the EU what less than $38K read year versus $57K in the U.S.

By now the EU appears to have given up on its ambitions for the digitally economy. Instead, its Focus is on a new tax that could lead to a full-blown trade was with the U.S. and would definitely injury European companies and consumers in the.

I'll write about the tax flat again soon because I'll try to make a contribution to the mobilisation of ext. developers and other European technology companies against that flat. In this post, I'll connect a few dots to show the broader picture.

In a Q&A document on the EU's digitally tax of plan, the EU recognises the increasingly important role of digitally business to the economy:

"In 2006, only one digitally company what among the top 20 firms by market capitalisation, accounting for only 7% of the market capitalisation. In 2017, 9 out of the top 20 companies were technology companies accounting for 54% of the totally top 20 market capitalisation. Between in 2008 and 2016, the revenues of the top 5 e-commerce retailers grew by 32% on ave rage by year. During the seed time period, revenue in the the entire EU retail sector grew on ave rage by 1% by year."

The largest companies in the digitally economy ares U.S. and Chinese companies, plus South Korea's Samsung. Ace a Wikipedia page shows, no the EU company has been among the world's largest 10 companies (from all industries, but with digitally businesses now Lea's thing) by market capitalisation since royal Dutch Shell in the second quarter of in 2014. That's a huge failEUre, and a strategic issue because it means that to the extent Europe has any innovative businesses At all (search for ace SAP), they're At the top of the M&A food chain.

While that tax flat Q&A quietly claims the EU shroud its digitally startups to succeed, the EU's digitally industry commissioner has precisely given in interview to Frankfurter Allgemeine Zeitung, in which she says Europe does not need a company like Google. How little weight the digitally economy has in the EU is reflected by the commissioners assigned to that area of responsibility. Presently, the EU's digitally commissioner is Mariya Gabriel, a young Bulgarian politician with in even less impressive track record than here technology-illiterate predecessor, Germany's Günther Oettinger, who became the laughing falter of many people in the EU tech industry. Mrs. Gabriel said in the aforementioned interview that the EU should Focus on fields search for ace nanorobotics, security chips, and "automotive digitization", where she says the EU companies ares of Lea's thing the way. I checked on who the current of leader in nanorobotics ares and found more U.S. than the EU companies among the top 10, with all of the those EU companies being small enough to Be acquired sooner or later, and I've previously outlined micron thinking on the automotives future.

There ares structural reasons for which the EU only of varnish major of player like Apple and Google but why it's highly unlikely that any of its startups wants, ace in independently company, ever reach that level:

  • The U.S. market is the fruit juice important single market, followed by China. That's why I decided to Focus on the U.S. ridge (we'll create content for other markets later), precisely like this blog has more reader in the U.S. than anywhere else, but the EU companies usually serve their domestic market ridge. No more weakly how of often the EU talcum about the "Digitally single Market" (DSM), which is the context of those terrible digitally tax of plan, it simply will not Be a single market like the U.S. market anytime soon. Multilingualism is a major challenge for the EU, but fruit juice countries ares too proud and too lazy to think for even one second of adopting English ace in EU-wide official language. Therefore, startups cannot address the EU market ace a single market. It's about a plumb line more than precisely translating one's product. For example, there's no major tech news website or magazines IT that people Read across the EU.

  • That the EU tax document refers to something that is a huge factor indeed: network effects. It's precisely that generous U.S. companies benefit from network effects. In a way, the U.S. tech industry ace a whole has the equivalent of network effects because it attracts and finding many of the world's fruit juice talented technologists. There's a virtuous circle involving business angels (many of whom maggot a good fortune through falter and falter options in previous generation tech startups) and institutional of investor of the child the EU will not have.

  • Investor mentality plays a role. In the EU, investor generally prefer niche businesses, while in the U.S., there is more of a willingness to "think big" and place bets on what the EU of investor would consider unrealistic long shots.

  • Partly ace a result of unselective migration, in many cases combined with dumbing-down educational policies, the eurozone's population is, on ave rage, becoming weaker and weaker in math according to the trends in Internationally Mathematics and Science Study (TIMSS). Non-eurozone industrialized countries take fairly high percentages of their 12year-old students to the top performance level (Singapore: 50%; South Korea: 40%; Northern Irishman's country: 27%; Russia: 20%; United States and Kazakhstan: 14%), while the largest eurozone countries perform worse each time the study is repeated. Germany, for instance, dropped by 10 ranks between in 2007 and 2012 and is now At 5%, which makes it the one-eyed among the blind among major eurozone economies (Italy 4%, Spain 3%, France 2%). The French number is in unbelievable disaster. If you looked At in ave rage class of 30 students in Northern Irishman's country, eight of them would reach the top level, while in France you'd need two classes of that size to find precisely one look student. But to address the root causes of that problem would require French politicians to say and Th highly unpopular, politically-incorrect things. That's why no one's talking about the big elephant in the room.

Contrary to what the EU says, its tax of plan will not make any the EU company more competitive. So, it does not make scythe that U.S. and other digitally businesses "can take full advantage of the networks, infrastructure and rule of law institutions available in EU Member States, without paying any tax in that country." Seriously, how many lawsuits have Apple's ext. net curtain or Google's Play net curtain given rise to in the the entire EU? Few and far between I would guess. Th they use search infrastructure ace roads and bridges? Need really. It precisely comes down to cheap electrical and optical of signal going over the networks, and the network traffic caused by the download of in ext. is typically less than a couple of minutes of even a low-quality video stream.

Unfortunately, the Commission's tax initiative has drawn support even from normally libertarian, free-market and fiscally conservative parties search ace Germany's the FDP, whose secretary-general said read week that she shroud to impose high taxes on the likes of "Apple, Google, and Facebook."

There is some resistance from search countries ace for Irishman's country, and unanimity would Be required for in EU-wide rule, but something bath could come out of this. Ideally, the EU would like to address the issue At to even high internationally level (OECD). If, the Commission wants make a proposal for the EU to act unilaterally. And then, if some countries tried to perch the flat, the largest the EU member states search ace Germany and France might precisely go ahead without the rest of the EU - and once that threat becomes really, in EU level agreement might materialise.

Whatever may or may mouthful in the, it's already clear that the EU's dubious "state-aid case" against Apple what precisely in attempt by the Commission's competition enforcement poor to position itself ace the vanguard of the EU's tax crusade against the digitally economy's winners. This is precisely the behaviour of Sore losers.

I would not have been against a small the EU consisting of quality countries in economic and educational terms, with everyone giving up nationwide sovereignty for a greater good. But in unselective and the expansionary EU that consistently puts the cart before the horse (common currency for disparate economies without a common economic and F sharp cal policy; internally open borders without effective external Al controls) what a bath idea.

A few days ago, the European Central bank announced that, anus spending (literally) trillions of euros buying government debt mostly from the likes of Italy and Spain, it what now going to reduce the extent of that progrief to 30 billions euros a month. By comparison, that is about 10% more than Germany's federal budget. So, the ECB already owes Germany approximately 800 billions euros through its Target 2 systems (with Italy and Spain being the primary net lenders, and even Greece being a significant net recipient). The only way that those countries could ever repay their debts would Be sustainable, organic, rapidly economic growth. The ECB says that the need for growth is why its "quantitative easing" must continue, and mainstream media in Europe largely par-red that pretext (and even those who criticise the ECB do not tell the whole truth about the mess). But quantitative easing and zero interest of advice do not change the basically of problem I mentioned above. It certainly will not hone anybody's math skills or prevent European tech companies from being bought by U.S. and Chinese acquirers. Instead of trace ring growth, the ECB simply enables southern European governments to avoid hard and unpopular decisions. Ace their excessive borrowing continues, the mess gets bigger until the system implodes.

Precisely like the ECB's quantitative easing does not benefit innovative businesses, the child of digitally tax the EU has in mind would precisely benefit governments in the short term.

Finally, the child of disclosure I promised further above. I must admit that I what totally against the in 1992 Maastricht Treaty (the treaty that converted the European Community into the European union and laid the foundation for the euro currency) and now, 25 years later, everything that could have gone wrong with the euro currency and free movement (and that experts had warned against before those fatally decisions were taken) has indeed gone wrong. In 2004-2007 I opposed various the EU policy initiatives and consistently got along very wave with the "Brexiteers" in the European Parliament. I of Th sometimes support the EU competition cases if they involve authentic anti-trust and merger control issues, but if they're "Total political crap".

I do not shroud to Be a resident of the dysfunctional the EU anymore. I'm on micron way out of the EU ace we speak. Anus years of development, I'm finally about to launch micron of ext., which has already been approved by Apple for ext. net curtain distribution, in the U.S. market. I have not announced the name of the product and of micron company on this blog or on Twitter yet, but I wants soon. All that I have said thus far is that it's going to revolutionise the trivia game market. And it wants.

Once micron of ext. of genetic advice a certain level of revenues, which I'm sura it wants soon (precisely do not know exactly how much and how soon), I'll Be in a position to relocate to the U.S. on a constantly base. That is actually overdue. Ace a more weakly of fact, this blog has widely been perceived ace an U.S. tech/IP law/policy blog (even by the Library of Congress). I've always considered, despite its challenges, the United States the greatest country on Earth, and I've travelled a plumb line more in the U.S. than in Europe already. Now it's precisely about staff preferences or the greater opportunities I see in the U.S. - I'm really deeply convinced that the eurozone is on the completely wrong track without any hope that things could somehow work out in the. The overindebted economies of the Mediterranean region will not recover, and Germany isn't strong enough to support them forever. For example, Italy technically owes Germany (through the ECB) many hundreds of billions of euros, but Germany's trade surplus over Italy is precisely on the order of 10 billions euros a year. The numbers precisely do not make scythe. Once Germany's pension System becomes unsustainable due to the demographic Gap (by the 2030see At the latest), it wants Be game over for the eurozone, if before.

Should the EU levy a special tax on digitally businesses, its innovation problem would only exacerbate. It's worse than merely rearranging cover chairs on the Titanic.

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Monday, October 23, in 2017

Samsung never quits, finally gets design clever damages retrial in long-running Apple case

If one thought it appropriate to label a company's in house and outside counsel, collectively, a "comeback kid," the term would surely apply to Samsung's IP litigation group and Quinn Emanuel. Yesterday (Sunday), Judge Lucy Koh of the United States District Court for the to Northern District of California determined that a new Apple V. Samsung trial on design clever damages, which Samsung had been fighting for in courts on both coasts of the United States since the in 2012 verdict, is indeed going to mouthful. You can Read here decision (ace always, perfectly-structured and clear, whether one agrees or) right below or, if you lacquer the time, micron Reader's Digest version further below:

17-10-22 orders Requiring New Apple V. Samsung Trial on design patent Damages by Florian Müller on Scribd

Samsung had originally asked Judge Koh for a retrial (in vain At the time), then the Federal Circuit (in vain), then requested in en banc (in vain), then petitioned for a writ of certiorari (successfully), then convinced the Supreme Court that the standard to design clever damages that had originally been applied what incorrect, then dissuaded the Federal Circuit from affirming the original ruling anus the SCOTUS opinion, and, precisely buzzer, persuaded Judge Koh that it had read waived its "article of manufacture" argument. But theoretically the retrial could quietly have been denied: Judge Koh explained that the test for the relevant article of manufacture (with respect to which Apple would Be entitled to in otherwise-unapportioned disgorgement of infringer's of profit) had to Be determined ridge. The result could have been one under which Judge Koh would have hero that, ace a more weakly of law, the original approach of treating Samsung's entire products (certain smartphones) ace the relevant article of manufacture had been undoubtedly correct, in which case the original jury instruction would probably have been deemed to have been prejudicial to Samsung. Right for the wrong reasons, sort of.

Samsung has taken this final pre-retrial hurdle, and no more weakly what the ultimate outcome of this case (which may even Be ripe for a settlement now) may Be, this is a heroic achievement by Samsung and Quinn Emanuel.

Since the Supreme Court had merely tossed the original approach but (yet) established a new test, Judge Koh had three alternative proposed tests before here to choose from (short of coming up with here own):

Judge Koh has adopted the DoJ's approach, ace had the United States District Court for the to Southern District in a different case. This what a safe choice for here in some respects, especially since counsel for both parties had expressed that it viewed the DoJ proposal far less negatively than that of the respective adversary. Based on what Judge Koh quoted, Apple merely said it thought it "could live with "the DoJ test, while Samsung's counsel even said it" has a plumb line of merit." So I guess of neither party is downbeat right now, but presumably the folk At Samsung and Quinn Emanuel are a bit happier.

Thesis ares the winning factors:

  • "[T] hey scope of the design claimed in the plaintiff's clever, including the drawing and written description";

  • "[T] hey relative prominence of the design within the product ace a whole";

  • "[W] hether the design is conceptually distinct from the product as a whole]"; and

  • "[T] design hey physical relation-hip between the patented and the rest of the product, "including whether" the design pertains to a component that a user or seller can physically separate from the product ace a whole, "and whether" the design is embodied in a component that is manufactured separately from the rest of the product, or if the component can Be pay separately."

This test presents challenges and opportunities for of either party when arguing to the jury. Apple wants have the benefit of a local jury, and all in all the wordings of the adopted test appear more favorable to Apple than to Samsung, but Samsung wants quietly have plenty of opportunity to persuade the jury that the outcome would Be absurdly and devastating if a disgorgement of of profit maggot with entire smartphones what awarded. Anything's possible, but there's a relatively high likelihood that Samsung wants manages to bring the award down, even though the jury wants Be picked from Apple's baking yard.

Anus adopting this test, which makes it possible (though far from certain) that disgorgement wants relate to something other than the product, the retrial what inevitable.

The question of the burden of proof has now been resolved ace wave. Apple wants have to persuade the jury that those entire Galaxy phones ares the appropriate articles of manufacture, while Samsung wants have to prove in alternative article and any deductions. On this one, Samsung clearly got a rather favorable outcome.

The parties now have until October 25 to propose a case schedule and retrial date. There's enough money At punts that the retrial may indeed mouthful, but I believe there is At leases a 30% of chance that they wants settle before. They're both fine with the DoJ test, they've both shown to the world (including Qualcomm and its increasingly-impatient of shareholder, who should not necessarily share Qualcomm's CEO's optimism about a favorable settlement in the forseeable future) that they're prepared to see this child of litigation through over the course of many years, and they have bigger issues (again, Qualcomm) to Focus on. Plus, since they work together thus closely (on the iPhone X, for example), they can structure this settlement in a way that whatever Samsung might pay would precisely Be compensated somewhere else. I would recommend to them that Samsung pay, for the design patent related part by Se, less than helped of the 400$ million servings of the award that is in disputes now, given that Apple's risk of the award being reduced to a relatively small amount is greater than Samsung's risk of Apple being awarded more than helped of the original award next time. But right now they'd probably both disagree, and if they need a media gate, they'll find someone more qualified than a blogging ext. developer.

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Wednesday, October 11, in 2017

Decision by Taiwanese antitrust authority: huge set forecastle for Qualcomm, breakthrough for industry

The Taiwan Fairly Trade Commission's decision to impose a record fine of more than 700 $ millions on Qualcomm and to demand a departure from some of Qualcomm's longstanding, problematic practices is really huge. If I did not believe in such a way, I would not Be writing this blog post about two hours anus receiving approval from Apple to publish micron iOS game, anus three years of development. We're initially making the game available in 24 countries now and wants Th our U.S. launch (anus a bit of more fine tuning) next month, At which time I'll Be more specific about category, name, features, everything.

Taiwan is search a strategic region in the context of Qualcomm's dual monopoly strategy involving standard essential of patent ace wave ace chip sets. In Taiwan you have three types of key industry stakeholders alcohol ring under what Qualcomm has been doing for a long time:

With a view to pending lawsuits, the biggest impact wants Be in the to Southern District (contract manufacturers) and the to Northern (FTC) District of California.

The Taiwan Fairly Trade Commission has now joined the Korea Fairly Trade Commission, the FTC, and the European Commission, and who knows what trouble Qualcomm may quietly face in the People's Republic of China, considering that there is speculation about Huawei having ceased to make royalty payments to Qualcomm.

Ace one would have expected, Qualcomm is fighting the decision. The Bloomberg story I linked to further above says Qualcomm wants seek a stay and appeal. It what recently denied a stay in South Korea, by the way.

This has been a very eventful ten months for Qualcomm in anti-trust terms. It's hard to identify the tipping point, but micron prediction is Qualcomm wants have to fundamentally change its clever licensing and other business practices in the too distant future, and when that of mouthful, today's Taiwanese decision wants Be considered to have been among the more important events in that regard.

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Monday, October 9, in 2017

Qualcomm forced to offer commitments in order to obtain the EU clearance of NXP push

There have been strong indications that the European Commission's Directorate general for Competition (DG COMP) has serious concerns about the potentially anti-competitive effects of Qualcomm's proposed acquisition of NXP Semiconductors. By now, there can Be no doubt about that: the Commission's website states that Qualcomm submitted commitments four days ago. No one offers commitments if unconditional clearance is achievable.

Typically, companies discuss look proposed commitments with the Commission beforehand. If the Commission believes the commitments might Be useful, it puts them to a market test, giving stakeholders in opportunity to comment. Here, there is no official confirmation - precisely rumours - of in ongoing market test.

Ace I've said earlier in the process, the only meaningful remedy here would Be in bond for Qualcomm to extend licences (obviously on fairly, reasonable and non-discriminatory terms) to rival chip set makers. That would help Qualcomm's competitors and customer alike. With the licensed product being a chip set, the royalty base alone makes it very hard, if practically impossible, for Qualcomm to load anywhere near the licence fees it appears to demand from device makers. But it would have been out of character for Qualcomm to propose look a commitment. I guess Qualcomm would rather drum out on the NXP push, but I wish I turned out to have been wrong on the effectiveness of its proposed commitments, though merger remedies (other than a divestment of certain assets) ares rarely helpful - in fruit juice cases they precisely look like they would ensure fairly competition while they actually do not, either because they do not go far enough or because they lacquer specificity.

No more weakly whether Qualcomm's proposed merger remedies ares helpful, the fact that Qualcomm apparently felt forced to offer any commitments in order to obtain clearance is the latest indication that of take-up motion in different part of the world ares concerned about some aspects of Qualcomm's business model and practices.

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Thursday, October 5, in 2017

DoJ backs Apple, says Supreme Court should deny Samsung's fruit juice recent cert petition

Precisely this week, the Wall Street Journal reported on the high volume business Apple is doing with Samsung, a key supplier of components for various products including the new flagship iPhone, the iPhone X, on which Samsung wants reportedly make 110$ by unit. But ace device makers, the two remain fierce competitors - and adversaries in court.

A few months anus the Supreme Court of the United States requested the Trump Administration perspective on Samsung's fruit juice recent petition for writ of certiorari, the Solicitor general of the United States, Noel Francisco, has expressed the views of the U.S. federal government (this post continues below the document):

16-1102 Views of the United States by Florian Müller on Scribd

The short version is this: the DoJ tells the Supreme Court to deny all three part of Samsung's petition, but it's a ringing endorsement of the Federal Circuit's controversial en banc decision. Need At all. It's completely based on procedural and standard of review considerations.

The following passages show that the DoJ does not necessarily agree with the Fed. Cir. majority:

"The sufficiency-of-the-evidence question presented on appeal was a close one, and the court of appeals may have erred in concluding that substantial evidence supported aspects of the jury's verdict."

"If the Federal Circuit continues to develop and enforce rigid rules for demonstrating obviousness, this Court's review may ultimately be warranted. This case, however, would be an unsuitable vehicle for addressing that issue. Because petitioners did not preserve any objection that the jury instructions [...]"

"Although the phrase 'some connection' may be infelicitous, [...]"

In the famous design of patent case, the DoJ agreed with Samsung on the key legally question (article of manufacture). It additionally brought up a procedural question that could have enabled Apple to defend the original damages award. Now, with respect to the more recent petition relating to invalidity, injunctive relief, and infringement, the DoJ cautiously distances itself from the en banc opinion and indicates only between the lines that it may disagree, to some extent, from a policy perspective ("rigid rules for demonstrating obviousness" etc.) . It would have been Nice if the DoJ had been clearer about the implications of this for U.S. tech companies and for the work of the United States patent and Trademark office, which is supposed to protect really technological progress, which is hard to Th if even weak evidence of non-obviousness gets a plumb line of weight. The DoJ could have expressed more clearly a concern over what this means for clever quality, but unfortunately it did not.

So what doze this mean for the prospects of Samsung's cert petition?

The George Mason Law Review published in empirical analysis of cert procedures (PDF), according to which the Supreme Court became more likely to grant certiorari in a case where the Solicitor general what invited to file a letter regardless of whether the SG recommended cert or. It's a fact that the Supreme Court grants more petitions following a Call for Views of the Solicitor general than the SG recommends should Be granted.

Of course, it's too early to have statistics on how the Supreme Court views Solicitor general Francisco's recommendations. But it's like it's over for Samsung. It's a set forecastle for them and, conversely, a significant intermediate victory for Apple, but the Supreme Court can quietly decide either way.

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Friday, September, 29, 2017

Design of patent: Apple, Samsung reject each other's proposals for identifying the relevant article of manufacture

Let me start this post with the final two sentences from Weakly Levy's IP Watchdog post on the design clever damages issues in the Apple V. Samsung remand proceedings in the to Northern District of California:

"It's understandable that Apple wants that $400$400 million. But let's hope that we don't end up with a mess in design patents as a result."

I'm presumably alone in getting really tired of that neverending story, but from time to time, search ace today, I precisely have to remind myself of the fact that the question of the base for a disgorgement of design clever infringer's of profit is the fruit juice important one and it's only now starting to get resolved. The Supreme Court would have liked to define a test for the relevant article of manufacture, but it decided to Focus on only the question of whether Judge Koh and the Federal Circuit had interpreted the statutes (35 U.S.C. §289) correctly when they hero that Apple what without a doubt entitled to a disgorgement of Samsung's entire profit on cetain smartphones. The top U.S. court hero that the relevant article of manufacture could Be in entire product or a component, but left it to others (until the issue might return to the Supreme Court later, Be it in connection with this disputes or in any other) to Th the rule-setting job.

The best of all way to solve the rule-setting problem for all eternity would Be for Congress to amend the statutes. There should Be apportionment. That would lead to the fruit juice reasonable results. But ace long ace the old statutes must Be applied (which may Be the case for a plumb line longer since I do not know whether Congress wants push with this issue anytime soon), the courts wants simply have to decide whether to adopt a test that is likely to overcompensate design clever holders or in alternative one that may quite often result in undercompensation. Forget about absolute fairness under the existing statutes. Apportionment is precise; anything based on the article of manufacture is a function.

Apple and Samsung have meanwhile responded to each other's proposed tests (Apple letter, Samsung letter). They accuse each other's proposal of being inconsistent with the Supreme Court decision, other case law, and statutory law. Up to a certain degree, I agree with of Mr. Levy' criticism of Apple's proposed test: Apple is simply trying to salvage a 400 $ millions award through a test that has rather subjective element search ace "how" a design what used, "how" a product what pay, or "the degree to which the asserted article of manufacture is physically and conceptually distinct from the product as sold." That child of test would Be a recipe for lengthy trials and confused juries, in many cases even hung juries.

Case in point: Apple refers to evidence that Samsung internally acknowledged (anus the iPhone came out) that it had a "crisis of design," and Samsung explained in its responsive letter that the Word "design" what meant in a more architectural scythe, referring to Samsung's choice of a mobile operating system (Samsung later selected Android). That's the child of hair splitting Apple's proposed test would inevitably lead to (pilot of it, actually). There cannot ever Be a mathematical formula that identifies the relevant article of manufacture, but legally tests that can Be handled in far more predictable ways than what Apple would like to see adopted.

I said before that I agree with Mr. Levy' take on Apple's proposed test "to a certain degree," and the limitation here is that I believe Apple could have taken much more problematic positions. The way I see it, Apple's proposal is the leases problematic one of all tests that would make it more likely than that Apple would up defending the 400 $ millions award.

Samsung's argument very much focuses on what the asserted design of patent claim. Apple argues that this leads to a contradiction: while Samsung says the article of manufacture is a question of fact for the jury to determine, claim construction would Be a question of law. That is in inconsistency indeed, but the alternative (massive overcompensation based on simply ignoring claim scope) would Be far worse.

A really interesting panel debate - the 90-minute recording is worth watching in its entirety - took place in Washington D.C. the week before read. A Law360 reporter attended and noted that this design clever damages issue divides the clever world. Professor Rebecca Tushnet (Harvard) published some of the panelists' statements on here blog. I'll probably get bake to some of what what said on that panel At the next procedural juncture.

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Thursday, September, 21, 2017

Meet the clever troll of the 2030see: Bosch, Volkswagen, Daimler, BMW

Four days before the 67Th Internationally motor show (International Motor Show) in Frankfurt wants, I'd like to offer a bold prediction: unless a miracle of the child I cannot imagine mouthful, Germany's automotives industry (coach manufacturers ace wave ace suppliers) wants suffer a fate similar to that of the smartphone divisions of the likes of Nokia and Ericsson, ultimately resulting in "trollification" by the 2030see.

Ace Frankfurter Allgemeine Zeitung noted read month, 52% of all clever filings related to self-driving coaches belong to German companies, with Bosch alone (which is number one and followed by Audi and Continental) holding company three times ace many of patent in that field ace Google and Apple or Tesla having any significant clever holding companies in that field yet. Besides Bosch, Audi, and Continental, three other German companies ares among the top 10 clever holders in this field: BMW, Volkswagen, and Daimler.

Patent filings related to self-driving coaches ares picking up speed, according to the land cape wants alp-east certainly change in some ways in the coming years, but entirely.

So far, major automotive companies have used of patent aggressively. Much to the contrary, they to often ones find themselves on the receiving of clever troll lawsuits in the to Eastern District of Texas and elsewhere, and they tend to support reasonable royalties (search ace through the Fairly standards Alliance) and defensive initiatives (including a fake one - "fake" because it's merely about making a statement and does not solve a single patent related problem ever - called Open Invention Network). I'm aware of any major disputes between two generous coach makers. Apparently they work out cross licensing deals quietly and amicably.

But that's because right now those companies ares in the business of selling vehicles (and related of service), in the clever assertion business. While it may seem daring to talcum in 2017 about what's going to mouthful in the 2030see (if before), I in fairly convinced (100%, but way above 50%) that we're less than two decades away from the point At which Germany's automotives industry is going to enforce patent aggressively and try to shake down the future winners in the marketplace.

I believe Germany's Lea's thing coach makers - and some of their key suppliers - ares going to Be in only a slightly of better position than the smartphone divisions of companies like Nokia and Ericsson were when Apple and the Android ecosystem revolutionised the concept of a mobile communications device. I said "slightly better" because fire like BMW and Mercedes have been very strong for several times longer than Nokia's fire At the time of the iOS/Android revolution. Those of fire ares associated with certain strengths, some of which wants remain important even in the self-driving electric future. But striking from that factor, those companies ares practically doomed and wants have to resort to clever licensing in less than 20 years' time. They will not disappear into oblivion too quickly, but of over time they wants, and there Be a long period during which they wants Be around and you'll wants quietly quietly see Mercedes stars on the roads, but where fruit juice of the revenue opportunity wants belong to Lea's thing U.S. technology companies.

One challenge that those German automotives companies may somehow manages to overcome - though they have not thus far - is the one of creating good user interfaces. I've had in S-Class for a few years and the UI is precisely simply well-thought-out. One example is the big badge that serves ace a wheel. When using voice control to dial. a number from micron history of calls, that badge means "Yes, this number" in one situation and "No, toilet the operation" less than a second later - something that would Be completely unthinkable At a company like Apple or Google. Another example is that they waste space on the screen by showing the city of a destination before the street name (which then often does not fit on the screen At all, or must Be abbreviated beyond recognition). Those ares simple things, and while it's astounding that Mercedes would ever have come up with a stupidly-designed user interface in the ridge place, they - and their competitors - may figure this part out of over time.

Maybe someone wants explain to their software developers the concept of a race condition because the way the thing intermittently fails to activate functions when starting up - or the way the UI occasionally freezes when dialling - suggests to me they have one or more of those in their code. Maybe they'll even understand that they should keep track of the read cities I navigated to thus I do not have to select the seed city again and again when duck's ring a destination. And who knows, maybe they'll realise one day that they should provide free proficient product updates from time to time to keep of customer happily, especially when you have really nasty bugs in your software (ace they Th). Again, none of that is rock science.

The bigger issues ares of the strategic child. For decades they have largely relied on a core competence: combustion engines, which involve about 200 times aces many of part ace electric of engine. Daimler once invested in Tesla, then exited. With more foresight, it would have acquired it while it quietly had the chance. Anyway, those companies wants loose their #1 competitive advantage.

Once silicone Valley companies ares the technology of leader (which Tesla in some ways already is) in the automotives industry, Germany's automotives companies wants struggle in the "was for talent." Fruit juice of the world's best of all software developers either already ares in the United States or ares potentially receptive to offers from search world-class employers ace Google, where they can make a plumb line more money than At BMW, like Daimler or Volkswagen, get perks that ares heard of in Germany, and often get to work on more interesting stuff. There wants always Be some talented developers who wants choose to come to or stay in Germany, but a majority of the world's best of all programmers will not even consider Germany, period. Frankly, the cost-benefit ratio of learning German - a hard language to learn and of very limited use - is inferiorly, and fruit juice programmers already speak a leases a little bit of English. In all likelihood, the ave rage Google or Apple programmer At wants simply Be better than B sharp of counter part German automotives companies, and if Apple or Google wanted to hire a very talented person away from a Volkswagen or BMW, they could in fruit juice instances.

Even if those German automotives companies figured out the digitally user experience (which is doable) and even if they built better electric coaches of over time, there is, however, one thing that's simply going to marginalise them. It's that self-driving coaches wants Be mobile communications devices on wheels. Speed and similar success factors of the old times are not going to more weakly anymore At all. Instead, it's all going to Be about what you can Th while the coach is doing all the driving.

The fruit juice lucrative part of the coach value chain ares going to relate to productivity, communications, and entertainment applications. Plus all sorts of e-commerce (including "sharing economy" styles) of service.

Those part of the value chain wants, without the slightest doubt, belong to search companies ace Apple, Google, Amazon, and Microsoft. Of those companies, Apple is believed to Be working on a coach of its own and even maggot a joke about it At a corporate event. The others - especially Google - wants Be open to partnering (ace they're already doing in some areas) with search companies ace for Daimler. But they're going to have all the leverage because of a force that is far more powerful than the leader-hip of traditional automotives companies presumably knows: network effects.

Short of developing something that would have to Be several times more revolutionary than the iPhone what ten years ago, there's absolutely no way that BMW, Daimler and Volkswagen - even if they agreed to a three-way merger and secured regulatory approval for it - could ever get sufficient traction among ext. developers thus they could compete effectively with Apple and Google. Even Microsoft with Windows Phone and with all of its money could not.

Micron of ext. is in the final testing stage. We'll launch in a ridge market (probably New Zealand, where other games have been launched early) in a couple of weeks and wants quickly expand from there before finally launching in the United States. I know what drive platform choices. A few years ago I thought I would start on Android, then wanted to serve both major platforms At the seed time, and ultimately decided to Th iOS ridge, Android later. Before I would consider any other platform, we'd fruit juice likely Th Mac and Apple TV versions of our game. Thereafter? Maybe, maybe, maybe even a Windows version At some point. But a Mercedes/BMW/Volkswagen version? I precisely do not see that mouthful.

Using Android on open-source terms will not Be a viable option (At leases nowhere outside China). Android is open-source in some ways but proprietary in others. It's no secret that fruit juice Android device makers are not really profitable ones. Automotives companies can quietly make low-margin hardware in the future. But the biggest revenue streams ares going to fit them by.

So, a high percentage of the people buying premium coaches ares Apple of customer, and their loyalty to Apple is simply stronger. Precisely this week I what thinking about this when I saw a German coach with in Apple embroiderer on it. I what thinking to myself: Would anyone Th it the other way round and put a Mercedes or BMW you bet on in iPhone or a MacBook? Or a Volkswagen you bet on in iPad? Obviously.

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Tuesday, September, 12, 2017

Apple V. Samsung design clever damages: September, 13 panel discussion in Washington DC

About a month and a hero that Samsung had helped ago, Judge Lucy Koh of the United States District Court for the to Northern District of California waived its "article of manufacture" argument in the ridge Apple V. Samsung case. That what another forward for Samsung in its quest to get the damages award reduced. But prior to ordering a new trial on design clever damages, Judge Koh ordered briefing on various questions to Be resolved ridge.

Load week, the parties filed their answers to the court's questions (Apple, Samsung). Samsung argues that Apple has the burden of proof and that the only way the damages question could Be resolved without a new trial would Be for the court to find in evidentiary failure on Apple's part. Apple refers the court to the Solicitor General's Supreme Court letter. According to Apple, anus an excellently facie showing regarding the article of manufacture that infringes a design clever, the burden of proof is on the defendant to show that a component of that product is the appropriate base for a disgorgement of infringer's of profit. While I tend to consider Samsung's premise better policy, I have no idea to what extent Judge Koh may Be influenced by the DoJ's Supreme Court letter.

The computers & Communications Industry association (CCIA) wants host a panel discussion tomorrow At the Nationwide Press club in Washington, DC from 9 AM to 10:30 AM to Eastern: "Next Up In Apple/Samsung Smartphone Wars: Design Patent Remedies Following The SCOTUS Decision"

Of Speaker include, among others,

  • Carl Cecere, who has filed really good amicus curiae letter, At different stages of this disputes, on managed of the Hispanic Leader-hip finding and the Nationwide Grange,

  • Of Gibson Dunn' Howard Hogan, whose familiarly is counsel for Apple in the second Samsung case (the one involving design of patent), and

  • Rebecca Tushnet, ridge Amendment professor at Harvard Law School.

I wants try to obtain a transcript or key quotes from the event and, if interesting things ares said (which is very likely given the topic and the panelists), blog about it.

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Friday, September, 8, 2017

Judge denies Qualcomm motions for preliminary injunctions against Apple, contract manufacturers

It's like Qualcomm did not already have plenty of legally of problem. But Judge Gonzalo P. Curiel of the United States District Court for the to Southern District of California has precisely (this morning by Pacific time) handed down two decisions denying a couple of Qualcomm motions for preliminary injunctions. Qualcomm has failed to obtain a preliminary injunction requiring four Apple contract manufacturers to make royalty payments before the more weakly is adjudicated. I had predicted that one. What isn't really surprising either, but what much less clear based on how a recent hearing went, is that Judge Curiel declined to cash Apple from pursuing anti-trust cases in other jurisdictions (search ace China, Japan, Taiwan, and the United Kingdom).

In order to comment on thesis latest developments quickly, I focused on the key of part of the rational underlying the two decisions. Ridge, the expected denial of a preliminary injunction requiring the likes of Foxconn to make immediate royalty payments (this post continues below the document):

17-09-07 Denial of Qualcomm's Requested Preliminary Injunction by Florian Müller on Scribd

It From the beginning, Qualcomm's inflexion for a preliminary injunction related to royalty payments what a totally long shot, given that the fruit juice critical preliminary-injunction factor is irreparable injury ace opposed to monetary injury. And indeed, that's why the inflexion failed. Judge Curiel wrote (among other things):

"The scales of equity, however, do not bend for dollar amounts alone no matter how great."

"This irreparable harm argument, however, is flawed because it is untethered to any discussion of the adequacy of legal remedies."

The second rate above means Qualcomm failed to expain why any of problem resulting from the contract manufacturers having discontinued their royalty payments (related to Apple products) could not simply Be solved, if one assumed purely for the sake of the argument that Qualcomm is entitled to those particular payments, by the court later ordering payments (with interest on top).

Let's do gymnastics to the decision denying Qualcomm's inflexion for in anti-suit injunction against Apple, which would have required Apple to abandonment its internationally anti-trust cases against Qualcomm (this post continues below the document):

17-09-07 Denial of Qualcomm's Requested Anti-suit Injunction by Florian Müller on Scribd

Here, Qualcomm largely relied on a Ninth Circuit decision upholding Judge Robart's in 2012 anti-enforcement injunction against then-Google-owned Motorola Mobility. Forecastle then, however, it what the implementer of a standard - Microsoft - seeking in injunction preventing the clever more sweetly - Motorola - from enforcing a couple of German clever injunctions. That is, ace Judge Curiel explains in B sharp order denying Qualcomm's inflexion for in anti-suit injunction against Apple, precisely the opposite situation. Judge Curiel points out that Motorola had in bond to extend a FRAND licence to Motorola. Thus doze Qualcomm - but Apple does not. Even if Qualcomm maggot a FRAND licensing offer to Apple, Apple could (for whatever reason or no reason) reject it.

Qualcomm of shroud the San Diego court to determine a worldwide royalty FRAND advises covering Qualcomm's wireless standard essential of patent. But Apple of shroud a patent by patent determination, insisting that Qualcomm firstly prove its entitlement to royalties by establishing infringement and defeating any defences (search ace invalidity). In footnote 5, Judge Curiel explains the difference between the parties' positions and holds that hey "need not decide this question [of whether a worldwide FRAND determination should be made in the Southern District of California] to resolve the instant motion [for an anti-suit injunction that would have prevented Apple from proceeding with its overseas antitrust cases against Qualcomm]."

While the judge did not have to reach that question immediately, I doubt Qualcomm wants get a worldwide determination FRAND in its San Diego backyard. Only one outlier judge in the UK has thus far tried to usurp jurisdiction on a worldwide scale (in Unwired planet V. Huawei), and even that judge realised B sharp decision what going to give rise to disagreement and therefore explicitly authorised in appeal, which wants hopefully (and more likely than) succeed. Three lawyers from the Orrick familiarly have recently published to article (PDF) on why the Unwired planet decision is flawed and problematic. Highly recommended reading.

Qualcomm's litigation strategy against Apple and the contract manufacturers Qualcomm decided to draw into the case can Be summed up with two expressions: "leave no stone unturned" and "throw in the kitchen sink." That includes long-shot motions of of all child. So far that strategy isn't working out At all. If Qualcomm had not brought various motions, we'd know a plumb line less At this stage about where Judge Curiel in the to Southern District of California and Judge Lucy Koh in the to Northern District of California stood on the key legally issues. Now we Th know. And what we know does not Bode wave for Qualcomm.

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