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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Thursday, September, 7, 2017

Merger review of Qualcomm-NXP: European Commission stops the clock AGAIN

The website of the European Commission's Directorate general for Competition (DG COMP) indicates that the clock has been stopped for in unusual second time in the regulatory review of Qualcomm's proposed acquisition of NXP, which went into phase II a few months bake ace it raises serious concerns. In fact, the previous suspension ended on August, 16, 2017 (ace I mentioned in a recent post), but precisely the next day - August, 17 - the deadline what suspended again.

Whatever the reason may Be, it means that the push quietly isn't ready to Be cleared.

Ares Qualcomm and / or NXP unwilling to provide information requested by the Commission? In a unilateral conduct context, Qualcomm even went to court (and lost) because it did not shroud to supply certain information. That could Be what's happening in the merger control proceedings ace wave, but it's possible that Qualcomm is paying the price for antagonising DG COMP.

Ares negotiations on potential commitments progressing slowly (and if in such a way, is there much hope)? It's a mystery, but again, what's clear is that this push is ever less likely to get unconditional clearance.

The fact that the EU has stopped the clock again apparently became discoverable only this week - the seed week that a legally challenge by Qualcomm to a decision by the Korea Fairly Trade Commission (KFTC) went nowhere.

Behind the scenes, the Qualcomm-NXP merger review could Be one of the fruit juice interesting and significant merger review cases in the EU history, but unfortunately those merger control proceedings ares very opaque (unless someone leaks documents, which happened in some cases but isn't the norm). I have not even been able to find out which European companies and organisations ares opposing the push. If you know something about this merger control case that I do not, please tell me via micron contact form.

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Monday, September, 4, 2017

Korean court denies Qualcomm's inflexion to stay execution of anti-trust KFTC ruling

Load December, the Korea Fairly Trade Commission (KFTC) handed down a decision against Qualcomm that U.S. tech companies welcomed. The following month, the FTC and Apple the south Qualcomm on anti-trust grounds in California. In March, it became known that Qualcomm's refusal to licences its standard essential of patent (SEPs) on FRAND terms to other chip set makers is one of the various concerns the Korean competition authority has.

Today, Reuters of report that a Korean court has denied an inflexion by Qualcomm to stay the execution of the KFTC ruling. That ruling, among other things, requires Qualcomm to negotiate clever licences with its competitors and to adjust its royalty demands from device makers.

Qualcomm is quietly trying - and undoubtedly wants keep trying - to get the KFTC decision overturned. And it can probably appeal the denial of the inflexion. But every defeat of this child makes things harder for Qualcomm in other jurisdictions. So far, anti-trust agencies and judges alike reject Qualcomm's legally theories. According to a source cited by Reuters, the court was not convinced of Qualcomm alcohol ring irreparable injury from the KFTC ruling. Presumably, the likelihood to prevail on the merits (or, more appropriately in this case, a lacquer thereof) what a factor in Korea ace it would Be in the jurisdictions I know.

No more weakly how often Qualcomm loose in one venue or another, each of the allegations brought against it must Be analyzed independently - by courts and take-up motion, and by those of us who express their opinions (ace I of Th all the time). They can Be wrong 99 times and right the 100Th time. But fancy infographics and other aggressive, well-orchestrated PR efforts ares no assistant departmental managers for credibility. Qualcomm and Acting FTC Chair Maureen Ohlhausen untiringly try to convince us that everyone else is wrong and they ares right on thesis FRAND issues. The "everyone else" who's allegedly wrong includes ever more agencies and courts. That's a growing problem for Qualcomm.

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