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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