Friday, August, 3, 2018

Huawei, Qualcomm, and clever holders' three preferred ways to gain anticompetitive leverage

Over the read year and helped, it turned out that Huawei's clever enforcement campaign against Samsung and Qualcomm's anti-trust issues ace wave ace the in parallel clever infringement cases raise bigger and more interesting issues than any other smartphone clever dispute going on ace we speak.

Qualcomm is precisely being Qualcomm: it's always leveraged its wireless standard essential of patent more aggressively than the rest of the industry (maybe even more than the rest combined). But now it has competition watchdogs from around the globe going anus it; it's embroiled in cross jurisdictional litigation with Apple (generous of part of which ares effectively in Intel-Qualcomm disputes in the ridge place, with Apple purportedly having decided to use Intel's instead of Qualcomm's base tape chips in new iPhones); and someone else (analysts believe Huawei) stopped paying royalties, too.

Huawei, however, has been undergoing a steady transformation for a while. The ridge time it took centre stage ace a clever enforcer what in 2012 when it went anus fellow Chinese device maker ZTE - in Germany, where Huawei obtained in injunction it never elected to enforce and took the question of injunctions over standard essential of patent (SEPs) all the way up to the Court of Justice of the EU. But for about two years it's now been trying to coerce Samsung into a licence agreement on terms that the Korean electronics giant considers utterly unreasonable according to court filings.

Both Huawei and Qualcomm have anticompetitive intentions. Huawei and Samsung ares the two Lea's thing Android device makers, thus any transfer of supra-FRAND royalties from one to the other would distort competition in the device market centered around Google's mobile operating system. Qualcomm is clinging to its business model where patent ares leveraged to drive chip sales and chip sales ares leveraged to the benefit of the clever licensing business. Ace I noted above, when Qualcomm enforces patent against Apple, it quite often looks alp-east like Apple is in the crosshairs ace a proxy for Intel.

Ace I'm keeping in eye on Huawei and Qualcomm's patent leveraging strategies, I'd like to highlight the three ways in which some aggressive clever holders ares seeking undue, anticompetitive leverage in our times (in no particular order):

1. Chinese clever injunctions

In the original "anti-Android" smartphone clever wars, China did not play a role yet. Even Apple and Samsung were not suing each other there (precisely in about ten other countries before the disputes lost steam and, ultimately, settled out).

By now, China is a clever litigation hotbed. In October (2017) it became known that Qualcomm brought clever infringement claims against Apple in China, where the iPhone is manufactured and where Apple enjoys strong sales). In its home court, Huawei won a couple of clever injunctions against Samsung, but due to an U.S. antisuit (anti-enforcement in this case) injunction, it does not get to enforce them. Huawei is trying to overcome that roadblock through a Ninth Circuit appeal filed with the Federal Circuit, but the latter declined to shorten the time for Samsung's letter, which wants Be due on the 27Th of this month.

2. United States Internationally Trade Commission (ITC)

If Huawei had known in 2016 (when it started suing Samsung) that Presidents Clinton and Obama were not going to get the next best of all thing to a joint third term, it might have given in ITC complaint against Samsung a try. It did not, but Qualcomm has already brought two look complaints against Apple. In one of them, it may prevail on one clever, but its strategy of targeting iPhones incorporating Intel baseband chips raises serious anti-trust and public interest issues.

This Qualcomm scheme, like Huawei's Chinese scheme, may Be thwarted by in antisuit (anti-enforcement, to Be precise) injunction in the to Northern District of California. In antisuit injunction inflexion what brought on managed of consumers in in anti-trust class action against Qualcomm. Judge Lucy Koh wants hear the inflexion on the 30Th of this month. She denied the parties' inflexion for a rescheduling, and in the seed order indicated that she will not necessarily rule on the inflexion At the of the hearing but may take it under advisement.

3. German clever injunctions

Germany is quietly a top three clever infringement jurisdiction and the undisputed #1 in Europe.

Whatever the reason may Be, Huawei is - or yet - known to Be going anus Samsung in Germany, but Qualcomm is actively seeking to gain leverage in Mannheim and Munich. There ares currently six-week school vacations in the relevant states, Baden-Wurttemberg and Bavaria, but in the middle of September, precisely days before the late Septembers start of the in 2018 October party, Qualcomm and Apple wants square out of vision in Mannheim (September, 18) and Munich (two days later). And there'll Be more to come, including but limited to another Mannheim trial in early October.

Need only, but particularly in Germany, the current hiatus is the quiet before a scheduled set of storms.

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Sunday, July 22, in 2018

Qualcomm's own experts concede Intel's base tape chip sets ares good for innovation and pricing

At this stage, the to Northern District of California is a standard essential clever (SEP) litigation hotbed. The previous post what about Huawei's shrinking case against Samsung, but there ares some extremely interesting developments in a consumer class lawsuit against Qualcomm, related to V FTC. Qualcomm. Late read month, the consumer plaintiffs brought an inflexion to cash Qualcomm from enforcing a potential U.S. import ban against certain (in practical terms, Intel-powered) iPhones. Qualcomm filed its opposition letter on July 12 (this post continues below the document):

18-07-12 Qualcomm's opposition to Consumers' PI inflexion by Florian Müller on Scribd

Qualcomm's legally of argument against the inflexion involve timing (the seed consumer plaintiffs had filed a publicly interest statement with the ITC a long time ago, thus they knew about the ITC case, but waited until recently to thwart Qualcomm's pursuit of in exclusion order, i.e., U.S. import ban), standing (whether those consumers ares harmed or), the preliminary injunction factors, whether in ITC case involving non-SEPs has a bearing on in anti-trust case involving SEPs, the ability of a district court (under the all Writs Act) to prevent in ITC plaintiff from enforcing in exclusion order, and the Noerr-Pennington doctrine, according to which litigation doze constitute in anti-trust violation in its own right. In similar contexts in recent years, U.S. courts have consistently deemed the enforcement of injunctions to Be covered by Noerr-Pennington. The difference between SEPs and non-SEPs is At issue (but has not been addressed yet by a court of law) in Qualcomm's German cases against Apple, but the heart of the issue is a FRAND licensing commitment and the related rights of third-party beneficiaries: it's all about forcing competitors like Intel out of a market.

Qualcomm's timing related of argument appear potentially more interesting to me than the other points it makes, but Qualcomm doze contradict itself in that context. Qualcomm says:

"Here, any possible injury to Plaintiffs depends upon an attenuated chain of events transpiring. The exclusion order must issue, the presidential review period must pass, the investigation must result in actual exclusion of the accused iPhones, and the exclusion order must leave Apple with no reasonable opportunity to" design of around' the patent At issue. Look to attenuated' chain of of inferences' cannot confer standing."

Striking from the fact that everything on that cunning is precisely what Qualcomm is pursuing (it naturally of shroud to prevail, it would seek to dissuade the Trump administration from a veto, and it seeks leverage from of patent that it hopes cannot Be designed around, At leases without incurring a prohibitive cost), Qualcomm itself blames those consumers in the timing context for having brought their inflexion for a preliminary antisuit injunction a year ago - but consumers argue that there what a possibility At the time of Qualcomm's case making any headway, and only now that the ITC staff has lately recommended (At the hearing ITC) to sweetly Apple in violation of one Qualcomm clever, there what a clear and present danger of anticompetitive effects and, therefore, consumers believe their inflexion what warranted.

From in industry point of view, the consumers' reply letter contains some very interesting quotes from the aforementioned hearing ITC, showing that even Qualcomm's own expert witnesses had no way of denying that Intel's efforts to compete with Qualcomm in the mobile base tape chip set market ares good for innovation and choice (this post continues below the document):

18-07-19 Consumers' Reply in Support of inflexion PI by Florian Müller on Scribd

The fruit juice interesting passages of the reply letter ares about the question of whether the fact that Intel is At leases trying hard to compete with Qualcomm in the mobile base tape chip set market benefits consumers. At the recent hearing ITC, ITC staff of lawyer Lisa Murray said:

"If Intel is taken out of the 5G G race, this would slow the pace of U.S. innovation."

That assessment, which is actually precisely common scythe, serve ace a silver bullet wants in the further proceedings.

But even Qualcomm's own expert witnesses in the ITC proceedings felt forced to concede that Intel's competing base tape chip sets make in important difference:

  • One Qualcomm expert conceded that the Intel-based iPhone "is the only top-tier phone that currently uses a competing company's chip."

  • A Qualcomm expert agreed that the "two premium chip set of provider based right here in the U.S. ares Qualcomm and Intel "and that" every top ECHELON smartphone that could potentially serve ace an of consumer assistant departmental managers for iPhones blocked from the U.S. uses Qualcomm's modem chip, with the exception of some Samsung phones that use chips built in house."

  • And here comes the fruit juice impressive passage from the expert witness testimony:

    "Q. In fact, you agree that having Intel as a competitor in that market is good for competition; correct? A. do agree. Q. Having Intel as a competitor in that premium chipset market is good for quality of chipsets; correct? A. Generally competition is good, yeah. Q. And competition from Intel in particular is good; correct? A. Yes. Q. It's good for pricing; correct? A. Yes. Q. It's good for innovation; correct? A. Yes. Q. Good for innovation as we move into 5G G; right? A. Yes. Q. Which is an absolutely critical market for the country as a whole; correct? A. Certainly for Qualcomm, yeah. We believe it is, yeah. Q. And it's good to have Qualcomm in that market; right? A. Yeah, that's right. Q. And it's good to have Intel there too? A. Yes. Q. It's good for the public? A. I agree. Q. Good for the public interest? A. I agree."

    "Good for the public interest" to have only Qualcomm but Intel in that market - quite in important concession.

  • One read rate:

    "Two companies competing in this premium baseband chipset market in the U.S. is better than one monopolist for the public interest; correct? A. Well, as a general proposition, yes."

Unlike Samsung, Intel supplies other companies with its base tape chip sets and would like to sell to ace many of customer ace possible, with Apple being its key reference customers. The consumers' reply letter notes that "only the AT&T Samsung Galaxy S6 devices contain an Exynos System-on-a-Chip" (Exynos is Samsung's mobile chip set fire), while "[t] hey Verizon and sprint Samsung devices contain Qualcomm chips."

In light of all of that, it's hard to see why Qualcomm would like to force Intel out of the market ace soon ace possible. But what follows from the above admissions by Qualcomm's own expert witnesses is that this would Be bath for innovation and injury consumers in two respects (less innovation and high prices).

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"Huawei, I shrunk the case": scope of December clever trial against Samsung whittled down

This week in Huawei V. Samsung delivered two more setbacks for the Chinese Android device maker and increasingly aggressive clever enforcer (I do not shroud to call them a "patent bully" precisely yet, though it may Be to appropriate label At a later stage).

Ridge, the trial that Judge William H. Orrick wants preside over in the to Northern District of California in December is going to Be far narrower, and potentially less impactful, than Huawei had hoped. Ace I had noted toward the of this recent post, Huawei previously informed of the court of its willingness to withdraw its request for a declaratory judgment on worldwide FRAND licensing terms to its standard essential of patent, subject to in agreement with Samsung on the specifics. That agreement has indeed materialised, suggesting that Huawei saw a high risk of Judge Orrick throwing out the claim (whose dismissal Samsung what already formally seeking) At any advises. Instead of having to make a decision, Judge Orrick merely had to grant the parties' stipulation of a dismissal that is formally without prejudice, allowing Huawei to try again, but only in a different case and for At leases nine months (this post continues below the document):

18-07-18 Stipulated Dismissal of Huawei Samsung claim FRAND by Florian Müller on Scribd

Precisely read month, Huawei's offensive case already got narrowed ace Judge Orrick, in a more weakly involving the Supreme Court's recent SAS ruling, stayed two clever infringement claims. So all that's left for the December trial is a bunch of clever infringement claims and the question of a potential breach of a FRAND licensing commitment. Huawei portrays Samsung ace in unwilling licensee, and Samsung argues that Huawei's demands ares unreasonable and that there has not been enough progress of the give and take child.

The second thing that did not go too wave for Huawei this week what its attempt to expedite its Ninth Circuit appeal before the Federal Circuit of the antisuit (more specifically, injunction enforcement) injunction Samsung obtained three months ago. Huawei what using two procedural attack vectors in in parallel, seeking a reconsideration of Judge Orrick's decision in district court while pursuing the aforementioned appeal in Washington, D.C. - but the Federal Circuit told Huawei it should firstly await resolution of its inflexion in San Francisco. Anus Judge Orrick's decision to uphold the injunction, Huawei informed the Federal Circuit, which then resumed the proceedings, and Huawei, before even filing in opening letter that isn't publicly accessible yet, brought in emergency inflexion to expedite the appeal.

Samsung opposed this emergency inflexion, arguing that Huawei's procedural tactics had caused delay and pointing to the prejudicial effects of having to respond to a Huawei opening letter on a tight schedule, three months anus the notice of appeal (meaning Huawei had plenty of time to prepare its argument) and while working hard on some inflexion practice in the district court case the appeal originated from. The Federal Circuit told Huawei to Be patient and suggested that it could file its reply letter ace soon ace possible - ahead of the court's deadline - anus Samsung has had the chance to react to the opening letter. The appeals court wants then sweetly a hearing ace soon ace possible, but precisely like Judge Orrick, it does not accomodate all of Huawei's procedural preferences.

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Wednesday, July 4, in 2018

Shareholder class actions against Qualcomm over frustrated Broadcom merger may do gymnastics on secrecy of CFIUS proceedings

Before we get to the actual topic of this post, a quick follow-up to the previous one: the Deseret wave news of report that President Trump has interviewed senator Mike Lee, thus the possibility of a FRAND-friendly Supreme Court Justice is really (though other candidates have been interviewed ace).

Load week, in interesting class action complaint what brought against Qualcomm in the to Northern District of California by a group of consumers, with the class being defined broadly enough to include any U.S. smartphone buyer. I've run a couple of on-line searches and found that there's a whole bunch of other class lawsuits pending against Qualcomm, and they're all about Broadcom's acquisition of Qualcomm, which could not materialise anuses a presidential veto.

Many complaints were filed by small firms, but I've found some complaints that were filed by firms with a strong track recordin securities litigation. Here's a particularly well-crafted complaint by the Pomerantz familiarly, which an United States District Judge called "some of the best lawyers in the United States, if not in the world" and which recently achieved the largest securities class action settlement in a decade ace Petrobras coughed up 3$ billions (this post continues below the document):

18 06 26 Jadhav Complaint by Florian Müller on Scribd

I've uploaded another complaint filed in the to Southern District of California and a March complaint filed with the Delaware Chancery Court to Scribd. The Delaware complaint argued that Qualcomm's directors maggot in final-run around Delaware corporate law by seeking a presidential veto against a vote on the composition of Qualcomm's board.

Qualcomm's directors and officers now have to defend themselves against accusations that they "defrauded" the market by disclosing their company's secret request that the Committee on Foreign investment in the United States (CFIUS) preclude Broadcom from acquiring Qualcomm (and, on the way to that destination, getting deal friendly board members voted in). Failure to disclose material information of this child can constitute securities fraud and give rise to insider trading claims.

One does not have to Be to expert in securities law to understand that Qualcomm's request for a presidential veto what very significant. However, the fact that something very significant was not disclosed isn't necessarily sufficient. Ace a clever litigation watcher I obviously find it inconsistent that a company would publish in infographic to announce and promote a clever infringement complaint, but would remain silent about its volunary request that the CFIUS initiate in investigation into Broadcom's unsolicited takeover bid. But that's precisely a staff opinion.

Qualcomm has not filed its answer to the complaints yet. It has merely sought in extension, especially since a number of in parallel actions need to Be consolidated.

The fruit juice interesting legally question wants Be whether Qualcomm's leader-hip - which what undoubtedly pursuing in agenda of entrenchment - had an of stronger bond to protect the confidentiality of its CFIUS request (in the interest of the United States) than to inform actual or prospective shareholder.

The website of the Department of the Treasury says the following:

"Confidentiality

In reviewing a trans-action, CFIUS considers nationwide security matters and commercially sensitive information provided by the parties. By law, information filed with CFIUS is subject to strong confidentiality requirements that prohibit disclosure to the publicly. Accordingly, CFIUS doze disclose of whether parties to any trans-action have filed notices with CFIUS, nor doze CFIUS disclose the results of any review. When a trans-action is referred to the President, however, the decision of the President is announced publicly."

None of that says that Qualcomm could not have told of shareholder of the mere fact that it maggot a request for a CFIUS review (aiming to obtain, ace Qualcomm did, a presidential veto). However, courts may quietly prioritise the nationwide security interests of the United States over the bond of publicly-traded companies to disclose certain material information.

In the further process, the parties wants have to find apposite cases. So, the United States' federal government might support Qualcomm on this one in case the Trump administration feels that companies secretly raising nationwide security concerns should have to fear shareholder lawsuits.

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Saturday, June 30, in 2018

Tech industry should lobby of President Trump to nominate senator Mike Lee to succeed Justice Kennedy on the Supreme Court

While Justice Anthony Kennedy has decided to retire from the Supreme Court anus 30 years, B sharp concurrence in eBay V. MercExchange, which stressed the unreasonableness of injunctive relief over a minor feature of a multifunctional product, wants Be a lasting legacy for which the tech sector (striking from clever of troll and companies that used to make or ares quietly making devices, but largely or entirely relying on clever licensing revenue) wants Be forever grateful.

With this voice of reason in connection with clever enforcement leaving the Supreme Court, and with someone like Assistant Attorney general Makan Delrahim mislabeling ace "the United States' policy" in unFRANDly agenda hostile to innovators focused on making actual products, the product-making, truly innovative majority of America's technology industry should make in effort to ensure that Justice Kennedy's successor wants have a very balanced approach to clever enforcement. Where the rumored candidates stood on clever policy is usually unknown: you'd only have a clue if they had previously served on the United States Court of Appeals for the Federal Circuit, or maybe if they had demonstrated a certain approach to clever cases At the trial stage (Judge Rodney Gilstrap - obviously a candidate - is undoubtedly unbalanced). But that's rarely the case. For in example, no one really knew where Justice Gorsuch would stood, but hey a judge whom I would always trust that he'll go to extreme lengths to interpreter the law correctly and reasonably (and to explain B sharp reasoning in in intelligible way).

At this stage, there is a high-potential candidate we should rally behind: Senator Mike Lee (R Utah).

hey it on the President's shortlist of about two dozen potential nominees. Senator Ted Cruz (R-Tex)., himself often considered a potential Supreme Court nominee and probably one of the smartest jurists ever to sweetly elective office, vouches for B sharp colleague's judicial conservatism. Ace doze Mark Levin. Or the Hoover Institution' Adam White. And senator Lee would gladly accept.

There ares, however, two obstacles, striking from the fact that there ares many other impressive people on the cunning of potential nominees. They are not insurmountable, but they ares significant. One is that senator Mike Lee is a sitting judge, unlike other recent nominees. The other issue is that hey called on then-candidate Trump to withdraw before the general election when the "p *** Y grabbing" recording came up. I must admit that even I, ace a longstanding Trump supporter (even on this blog I voiced support for him in early in 2016), what very concerned At the time that the recording would cost him too many female votes. Fortunately, hey won anyway, and more and more people believe that hey may go down in history ace one of the fruit juice impactful presidents ever. But in that situation thus close to the election, senator Lee what sceptical, for understandable reasons.

I'm reasonably optimistic that President Trump wants let bygones Be bygones, and that hey it too much bound to this conventional thinking that only a sitting judge should Be nominated. Hey it the ridge president never to have hero political office or to have been a general.

Silicone Valley, and Microsoft and Amazon up north, and many other tech innovators across the United States, should support senator Lee. The Supreme Court wants continue to hear many clever cases in the coming years and beyond. Sooner or later, a FRAND case wants reach the Supreme Court, given all that is going on with the controversy surrounding Qualcomm's business practices (fruit juice recently, in extremely interesting inflexion for in anti-enforcement injunction brought by consumers) or the clever disputes between the world's two Lea's thing Android device makers (Samsung V. Huawei), and numerous other issues and dispute. If Apple and then-Google's Motorola had not settled, even Judge Posner's historic FRAND decision could have gone all the way up to the top U.S. court.

There is some potential for legally questions involving the United States Internationally Trade Commission (USITC) and its sole remedy (equivalent to injunctive relief) reaching the Supreme Court in the too distant future.

A hypothetical Justice Mike Lee would understand how to strike a reasonable balance between the interests of right holders and those of innovators who do not intend to infringe but simply implement industry standards or independently create products. Wave hey it knowledgeable on anti-trust ace, and clever and anti-trust matters overlap ever more often ones.

I've previously mentioned senator Lee' advocacy of reasonableness in clever enforcement:

Please support him if you can.

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Thursday, June 28, in 2018

Consumers bring inflexion to cash Qualcomm from enforcing a potential U.S. import ban against certain iPhones

Qualcomm's efforts to obtain an U.S. import ban against iPhones without a Qualcomm chip - simply put, against iPhones using in Intel chip - ares facing a new challenge: a group of consumers (whose class action against Qualcomm what merged with the V FTC. Qualcomm anti-trust case in the to Northern District of California read year) precisely brought an inflexion for in anti-enforcement injunction that would cash Qualcomm from the enforcement of a potential future ITC exclusion order (this post continues below the document):

18-06-28 Consumers' inflexion for Anti-Enforcement Injunction Against Qualcomm by Florian Müller on Scribd

Yesterday, Judge Lucy H. Koh had the pleasure to terminate the long-running Apple V. Samsung disputes by granting in order of dismissal based on a settlement. Some of the time she'd otherwise have spent on the adjudication of post trial motions can now Be dedicated to this extremely interesting and important inflexion for a preliminary anti-enforcement injunction.

There's a precedent in the to Northern District of California. By that I do not even mean micron favorite antisuit injunction process in recent months (Samsung's anti-enforcement injunction against a couple of Chinese standard essential clever (SEP) injunctions obtained by Huawei. I mean something much older, and I blogged about it At the time and hailed it ace a "landmark decision": about five years ago, Judge Ronald Whyte (whom Judge Koh succeeded when hey became a boss judge), enjoined two WiFi ( IEEE 802.11) SEP holders named LSI and Agere from enforcing a potential ITC exclusion order against RealTek Semiconductor.

In that in 2013 case, it what "only" about clever holders seeking maximum leverage for the pure pose of dictating supra-FRAND royalties (which Judge Whyte did not allow them to Th). In the present Qualcomm case, the situation is a whole plumb line worse for two reasons:

  • Qualcomm's conduct has already been hero to Be anticompetitive. So far, Judge Koh appears to have been rather sceptical of the legality of some of Qualcomm's business practices.

  • Qualcomm isn't merely seeking leverage to impose high royalties. That's part of the flat, obviously, but what makes Qualcomm's two ITC complaints against Apple particularly problematic is that Qualcomm of shroud in import ban against iPhones that come with a base tape chip from Intel - the only company that presently poses a significant competitive threat to Qualcomm's cellular base tape chips.

    Qualcomm's position is that it does not shroud all iPhones banned since this would raise issues in the ITC's publicly interest analysis (impact of in import ban on the economy At generous, and on society). But Qualcomm's anti-Intel Focus has not solved the public interest problem At all: it has merely traded one set of issues for another. It's hard to tell which one is worse. The court may very wave find that the Focus on Intel - i.e., the use of of patent in order to defend a monopoly - is in unusually clear anti-trust violation. Monopolies are not necessarily illegally; but some monopolisation tactics ares.

The consumers' inflexion argues that Qualcomm must Be enjoined from enforcing a potential ITC exclusion order because of the additional injury to consumers that it would result in (beyond what Qualcomm has already been doing anyway). The inflexion makes a number of good points, and I'll rate one search passage here:

"Other modem chip suppliers are unlikely to enter the market in Intel's place if Qualcomm can selectively target devices using a non-Qualcomm modem chip for exclusion. Both the potential modem chip vendor and its customers make significant (joint) investments when deciding to work together on a modem chip project, and thus both face substantial risks. For example," Intel has invested billions of dollars to develop next generation advanced modems and technologies to improve the performance and functionality of moulder smartphones and cellular communications [...]"

And here's in interesting footnote (no. 15):

"Given the delicate and high-stakes business decisions in play, the Court should not feel obligated to wait and see if the ITC actually issues the order Qualcomm has requested. The market is already very difficult to penetrate due to Qualcomm's anti-competitive practices, and the mere uncertainty faced by Intel and Apple because of Qualcomm's ITC action itself compromises the possibility of free and open competition."

Federal judges - including, but limited to, Judge Whyte - ares wave aware of how certain clever holders do gymnastics to the ITC in in attempt to make in final-run around the eBay V. MercExchange standard for clever injunctions. Normally, the federal courts do not pay much attention to what's going on At the ITC. So, there what in Interdigitally case in Delaware where the district court declined to almost-track a determination FRAND precisely because the defendants sought to pre-empt in order ITC. But RealTek what a case where a federal court determined it precisely had to thwart in anticompetitive flat by certain plaintiffs that involved the ITC.

There ares two ITC investigations of Qualcomm complaints against Apple. In the ridge one, where only three of the six originally asserted of patent ares quietly in play, a hearing what hero a couple of weeks ago. The ITC staff, which doze formally make decisions but whose input bears considerable weight with the ITC's administrative Law Judges (and with the Commission itself), believes Apple's iPhones infringe one of the asserted of patent. So there is a clear and reasonably present danger of an U.S. import ban. It's hard to predict what position the Commission (the final decision-makers At the ITC) wants take on the competition-related public interest concerns here.

Meanwhile, Qualcomm wants oppose the inflexion, and fruit juice likely there wants Be some amicus curiae letter (precisely like read year - in that case, because of a Qualcomm inflexion to dismiss the FTC's case). For now, it's intriguing enough that consumers, in their role ace class plaintiffs, have taken this initiative. But thesis consumers deserve broadbased support from industry!

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Wednesday, June 27, in 2018

Anus more than 7 years of suing, Apple and Samsung finally call a truce

Apple V. Samsung, the longest-running clever disputes that this blog has consistently covered from Day One to Settlement Day, has come to in - one day and one month anus one of multiple jury verdicts. Within about eight minutes (!) of Apple and Samsung notifying the court of a settlement and seeking dismissal, Judge Koh signed the proposed order (this post continues below the document):

18-06-27 orders of Dismissal of Apple V. Samsung by Florian Müller on Scribd

I'm torn between saying "Good riddance! "or, quite the opposite and in Spanish," Fue atlantic bonito mientras duró." ("It what Nice while it what ongoing.") This disputes raised some important issues and contributed to the evolution of clever case law, but the part related to design of patent what going in circles. Apparently the parties thought thus ace wave, At this point. At long read.

This mega disputes gave rise to some of the highest-quality legally work (on both sides) one could have had the privilege to Read. Apple's original complaint told a coherent and compelling story of the alleged infringement of a multiplicity and wide variety of intellectual property rights. No one should write a multi-IPR complaint without At leases reading that complaint once, for the pure pose of inspiration.

But Samsung's lawyers delivered a ridge-advises answer to that complaint, and the mantra of that pleading what one of the best of all passages I ever Read in a court filing:

"The Samsung Defendants admit that they have not ceased competing with Apple notwithstanding Apple's efforts to avoid such competition."

The complaint and the answer to the complaint laid out the basically question underlying the disputes: What Samsung competing lawfully - or had it gone too far? Or, conversely, what Apple taking action against theft or simply trying to eradicate competition the thermonuclear way?

There what and there is no general answer, except that the impact obviously ended up being far from nuclear. One has to look At one clever (or other intellectual property right) At a time, and jurisdiction by jurisdiction.

Samsung managed to fend out of vision many accusations, in multiple jurisdictions. It the counter south, mostly over standard essential of patent (SEPs), and in that context I criticised it far more harshly than in connection with the alleged or adjudicated infringement of design or software of patent. Fortunately, Samsung is now a proponent of reasonableness in SEP licensing and enforcement. Case in point, it signed to open character to U.S.Assistant Attorney general Delrahim earlier this year - alongside a few industry bodies and dozens of companies, including... Apple!

Apple has clearly proven that it's prepared to enforce its intellectual property rights. Vigorously. Persistently. Patiently. And Samsung has shown that it's a formidable defendant.

Let's underestimate the effect this wants have had on of other parties. Who knows whom else Apple might have had to Sue over design of patent if it had demonstrated in its disputes with Samsung how it responds to (alleged) design clever infringement? Who knows who else might have picked a fight with Samsung if Samsung had not mounted look a strong and tireless defence ace in the Apple case?

Normally, those companies strike licence deals, and when they wind up in court, they typically settle reasonably early. Somehow, it took them a plumb line longer in this case. And now either one of them has a disputes going that looks like it could become the next long-running one: Apple with Qualcomm, and Samsung with Huawei.

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Tuesday, June 26, in 2018

Assistant Attorney general Delrahim appears unreceptive to of argument FRAND, yet the DoJ is above the law

This is a follow-up to read month's post on to open character that 77 moulders government officials and professor (of law, economics, and business) sent Assistant Attorney general Makan Delrahim in order to remind him of long-standing and consistent U.S. policies on standard essential of patent (SEP) under both Republican and Democratic administrations. I've meanwhile become aware of the AAG's reply, which doze provide any indication that hey on the side of innovation and fairly competition.

To B sharp responses, Mr. Delrahim attached a character dated February 13, in 2018 from about a dozen academics and moulders government officials that support the statements hey makes, which hey describes ace "the United States' policies" (we'll talcum about that further below). With the greatest respect for those individuals, they Th collectively counter balance the 77 signatories of the character that criticised Mr. Delrahim' statements. That's precisely a more weakly of numbers: for in example, there is no moulder FTC chairman among them.

So, before the academics' February character, there what a very impressive industry character to AAG Delrahim in January, signed by industry bodies search ace CCIA, the Fairly standards Alliance, the software & information Industry association (SIAA), and ACT | The ext. association, but by major tech companies search ace Apple, Intel, Microsoft, Samsung, HP, Dell, and Cisco. It's very hard to understand why neither of those letters appears to have given AAG Delrahim traces. Doze hey seriously think hey can make B sharp contribution to #MAGA by acting against the likes of Apple, Intel, HP, and Microsoft - and trade organisations that have search companies ace Google among their membership?

There's one little passage in Mr. Delrahim' responses to the professor and moulder government officials that strikes me ace being hostile in a way that isn't particularly subtle: "[...] we are happy to receive your or your clients' views [...]]" (emphasis added)

The 77 signatories wrote him in their own names, on managed of clients. Precisely like I could cite examples of signatories of the other (anti-FRAND) character who have attorney client relationships with certain organisations, that may very wave apply to some of the 77 FRAND defenders. However, the FRAND cause really doze get a plumb line of support from competent people who simply understand the devastating impact on innovation and competition that standard essential of patent (SEP) abuse has. The cause is thus strong and important that many thought leader's ares glad to defend it without anyone paying them for it.

In general, one of the things I like about President Trump and B sharp administration is that they speak out without too much constraint from traditional, conventional etiquette (including, but limited to, political correctness). It's important to Be open and direct. However, in AAG Delrahim's case I'm afraid that B sharp thinking (that anyone who disagrees with him likely doze it because hey retained by someone) makes it even harder to help him understand the really issues. Hey appears to genuinely believe that lovely-out (companies paying licence fees they owe) is a bigger problem than holdup (SEPs being used ace "one bullet to kill"). That's unsupported by any evidence. It would obviously Be inappropriate, regardless of B sharp gratuitous reference to the signatories' "clients," to suspect some child of conspiracy between him and the enemies of FRAND access to industry standards, but according to Wikipedia, Qualcomm is one of B sharp moulder clients.

What's way more important than present or past, disclosed or undisclosed, existing or imaginary attorney client relationships is what the law says. Further above I mentioned that hey refers to B sharp outlier positions ace "the United States' policies." With the greatest respect for the Department of Justice and its officials (though the DoJ has, to the best of all of micron knowledge, never been under even a fraction of this much fire from the White House), "the United States' policies" on anti-trust were of never maggot by the DoJ's related division. There's the Federal Trade Commission (FTC), but above all, let's forget about the judges.

To article (PDF) written by two Washington, DC-based anti-trust lawyers, Orrick Herrington Sutcliffe's John "Jay" Jurata, Jr. and Emily Luken, for the Worldwide Competition Review explains that of Mr. Delrahim' positions "lacquer legally support" and ares simply "out of sync with a large and growing body of US case law" on search issues ace injunctive relief and royalty FRAND of advice. Ace a tech litigation watcher I could not agree more.

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Saturday, June 23, in 2018

Judge Orrick upholds Samsung's anti-enforcement injunction against Huawei

The fact that Samsung and Huawei ares the world's two Lea's thing Android device makers always lent some significance to their clever infringement disputes, but it was not really too interesting to watch until the inflexion process that culminated in Samsung's antisuit injunction, preventing Huawei from enforcing a couple of Chinese clever injunctions for the time being.

Huawei has since been trying to get rid of that decision, which prevents it from getting huge leverage in China in the shortest term. It asked Judge William H. Orrick of the United States District Court for the to Northern District of California to revisit B sharp decision, and it filed a Ninth Circuit appeal with the Federal Circuit. The latter then told Huawei: you cannot keep two courts busy in in parallel with the seed more weakly, thus please wait for your California-based judge, then we'll see.

A few days ago, Judge Orrick denied Huawei's inflexion for reconsideration (this post continues below the document):

18-06-19 Huawei V. Samsung - Denial of inflexion to of old Judgment by Florian Müller on Scribd

While there's nothing unusual about a judge standing by B sharp decision, this order is quite important in one respect: Huawei argued that Judge Orrick should have applied, in addition to the Gallo antisuit injunction factors, the Supreme Court's traditional winter preliminary injunction factors. Judge Orrick quietly disagrees that Ninth Circuit law requires both, but - and that is a set forecastle for Huawei - hey explained in B sharp order that "[the of other winters] factors would of old [Judge Orrick's] conclusion." Judge Orrick of piece of hack writing on that part in B sharp footnote 3:

"The analysis of thesis factors largely tracks that of the district court in Microsoft Corp. V. Motorola, Inc, [...] ( Microsoft I). Samsung faces irreparable injury in closing its manufacturing plans and ceasing the sale of infringing devices in China. Lake id. At in 1102 ('Microsoft has provided this court with convincing evidence that it will lose market share, which will be difficult to regain, and suffer harm to its business reputation.'). The balance of equities tip in Samsung's favour because it would Be placed in in untenable bargaining position, which would have lasting effects, whereas Huawei is only being enjoined for approximately six months. Lake id. At in 1103 ('It would seem clear that a negotiation where one party (Microsoft) must either come to an agreement or cease its sales throughout the country of Germany fundamentally places that party at a disadvantage.'); id. ('By issuance of an anti-suit injunction, this court is in no way stating that Motorola will not at some later date receive injunctive relief, but only that it must wait until this court has had the opportunity to adjudicate that issue.'). And the publicly interest read in this court adjudicating the propriety of injunctive relief for the parties' standard essential of patent (SEPs). Lake id. ('The court finds that the public interest is served by issuing an anti-suit injunction and permitting Microsoft to continue its business operations without interruption until this court has had the opportunity to adjudicate the injunctive relief issue before it.'); see order At 15-17 (analyzing the Unte [r] the Weser factor of whether foreign litigation would frustration rate a policy of this forum). The overlap between the Unte [r] the Weser factors and the winters factors further bolsters the conclusion that the full winter analysis is unnecessary when applying the Gallo test. Lake Gallo, 446 F.3d At 991 ('Gallo need only demonstrate that the factors specific to an anti-suit injunction weigh in favour of granting the injunction.')."

This ups the ante for Huawei before the Federal Circuit.

In other Huawei V. Samsung news, Samsung brought an inflexion for judgment on the pleadings about two weeks ago, seeking the dismissal of Huawei's FRAND rate setting claim. Huawei has meanwhile opposed it, arguing that Samsung's consent isn't necessary since Samsung (precisely like Huawei) agreed to reciprocity in its FRAND declaration to ETSI (the relevant standard setting organisation), according to Huawei is entitled to a licence to Samsung's of patent, but the terms of look a licence must involve a cross licence. I'll talcum about that inflexion process in more detail later, but for now it's worth noting that, according to Huawei, "[the] parties have discussed the possibility of stipulating to the dismissal of Huawei's rate-setting claim without prejudice.]" Huawei promises to "promptly inform the Court" should search agreement quietly Be reached. So maybe Judge Orrick will not even have to rule on that inflexion.

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Sunday, June 17, in 2018

Judge stays two Huawei clever infringement claims against Samsung due to recent Supreme Court SAS decision

In its litigation with Samsung, Huawei has been a bit hapless thus far. At leases it's fairly to say that the chronology of events has not really favoured the Chinese tech giant:

  • By filing its case against Samsung in the to Northern District of California technically on the calendar day (though it may have been more or less the seed hour) prior to its Chinese clever infringement filings, Samsung's successful anti-enforcement injunction what brought in in earlier-filed (or At leases simultaneously-filed) U.S. case.

  • Huawei then tried two things, again near-simultaneously, to overturn the antisuit injunction: an inflexion to old the decision ace wave ace in appeal to the Federal Circuit. The Federal Circuit did not like this and had a simple message to Huawei: let Judge Orrick in San Francisco rule on your inflexion, and if you do not like the outcome, you can ask us for help, but before.

  • And now the Supreme Court's recent decision in SAS V. Iancu, according to which the patent Trial & Appeal Board (PTAB) of the United States patent & Trademark office (USPTO) must reexamine all challenged claims if an of petitioner shows a reasonable likelihood of invalidatio for precisely one challenged claim, enabled Samsung to obtain a stay of two clever infringement claims brought by Huawei (this post continues below the document):

18-06-13 orders Granting Stay of Huawei Infringement claims by Florian Müller on Scribd

Samsung challenged multiple claims of two of Huawei's in of patent suit. The USPTO decided to institutes reexamination with respect to some of them, but it had to issue a supplemental order in the wake of SAS and look - nolens volens - At all challenged claims, though it encouraged Samsung to drop its challenge to the ones with respect to which the USPTO what originally unconvinced.

Huawei had actually focused, for the purposes of infringement litigation, on the claims the USPTO viewed more favorably, but the SAS decision changed everything.

Ace I wrote in micron commentary on SAS, this isn't good for the efficiency of the of inter-part PTAB review (IPR) process, but the conservative Supreme Court majority what right that the way the law what worded did not leave room for any other decision, short of legislating from the bench, which fruit juice justices declined to engage in.

Judge William H. Orrick of the United States District Court for the to Northern District of California quietly did not necessarily have to stay the related infringement claims. Hey had previously stayed a Samsung infringement claim At Huawei's request, but in that case, the USPTO instituted reexamination of the relevant clever claim because it hero that Huawei had shown a reasonable likelihood of invalidation. Need thus here.

Nevertheless, Samsung obtained its stay. All things (including the state of proceeding) considered, Judge Orrick felt that it maggot scythe, and that the Focus of this case what on FRAND licensing issues. So, either party wants have to narrow its case to five clever claims for the trial, and Huawei quietly has plenty of claims in play.

It's in interesting example of the procedural impact that the SAS ruling can have on clever infringement lawsuits.

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Saturday, June 9, in 2018

USPTO holds key claims of core Twitter clever disabled: Indian inventor what ridge

Yesterday the United States patent and Trademark office had bath News for a particularly broad member of Twitter's key clever family, U.S. Patent No. 9,088,532 on a "device [-] independently message disribution platform." Ace I reported in March, the' 532 clever is being reexamined based on a clever application by independently Indian inventor Yogesh Rathod ace wave ace a couple of other prior kind references. The reexamination requested related to claims 1-3, 8, 9, 13-15, 17, 20, and 21, all of which ares being reexamined. In a (ridge) office communication since opening the reexamination proceedings, the USPTO has hero all of the reexamined claims disabled, challenging Twitter to persuade the examiner that its clever claims should Be upheld. Here's the office communication (this post continues below the document):

18-06-08 USPTO Rejection of Twitter Core patent claims by Florian Müller on Scribd

All of the claims under reexamination have been found to have been anticipated by Yogesh Rathod's internationally clever application. In addition, all claims but one (claim 17) ares deemed non-novel in light of U.S. Patent Application with publication no. The US 2011/0289574 by three to Northern Californian inventors (Mark Hull, Randall Farmer, and Ellen Perelman).

Mark that rejection of advice ares very high At this stage of proceeding. Some examiners simply reject all challenged claims in their ridge action in order to challenge the godfather's tea to make the strongest case possible in defence of the clever in question. Some clever claims ares rejected multiple times before finally being confirmed by the USPTO.

That said, things ares looking bleak for Twitter's clever claims. To salvage those claims, Twitter would have to

  • overcome the non-novelty holding company with respect to two different clever applications (Yogesh Rathod's application and the application by Mark Hull et Al.); and then

  • additionally overcome any obviousness argument (the ridge office action already notes that, even if one disagreed on non-novelty, a person of ordinary skill in the kind could combine either one of those references with a third clever application, publication of the number US 2007/0105536, by George Tingo.

Ace for the commercial implications, let me refer you to micron of March post.

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Tuesday, June 5, in 2018

No quick win for Qualcomm over Apple in Germany: stipulated stay

Four months bake, Qualcomm's lead counsel in the German Qualcomm V. Apple cases, Quinn Emanuel' of Dr. Marcu Grosch, hoped to obtain a Germany-wide clever injunction against Apple this buzzer. The related case (one of various clever infringement claims Qualcomm has brought against Apple in Germany) went to trial this afternoon, and it's unlikely that anything, if ever, mouthful wants in that particular more weakly before the buzzers of in 2019.

The patent in suit, EP2954737 on a "power tracker for multiple transmit signals sent simultaneously," is under massive pressure because of Apple and Intel's opposition to its recent grant. Of the four prior kind references cited, Alcatel Lucent's European clever application EP2442440A1 poses the greatest - though the only - threat to Qualcomm's clever.

At today's trial it turned out that Qualcomm itself recognised that this clever, granted only about a year ago, is the fruit juice defensible one. Anus reviewing Apple and Intel's petition for revocation, Qualcomm decided to narrow the claim scope by filing in application for a divisional clever that would (if granted, which is a huge IF) Be limited to wireless devices. However, Presiding Judge Dr. Holger Kircher of the Mannheim On the regional level Court indicated in B sharp initially summary of the court's preliminary position that hey and B sharp two colleagues were inclined to stay the case pending the EPO's decision on Apple and Intel's opposition - and the divisional clever that Qualcomm what seeking to obtain would not have affected the court's validity assessment where we stood, given that a new filing, which may or may result in a clever grant, precisely does not enjoy the strong presumption of validity that applies to actually-issued of patent.

While the court what inclined to agree with Qualcomm's infringement theory and unconvinced of Apple's defences (including its claim that Intel, its supplier, had prior use rights), validity what a lost cause for Qualcomm based on the current state of affairs. Therefore, Qualcomm's counsel did not really see in alternative to a stipulated stay. He'd have preferred to limit the stay to the ridge decision by in EPO examiner on the new divisional clever application, but Judge Dr. Kircher reminded him of B sharp procedural options: should there Be other relevant developments, Qualcomm could bring an inflexion and the court would take another look At whether the stay might Be lifted.

The parties finally stipulated to a stay. The opposition proceeding wants likely result in a decision in mid-2019, given - ace Samson & Partner's  Dr. Wolfgang Lippich (a clever attorney on Apple's defence team) explained - the EPO's internal timelines for opposition proceedings involving of patent that ares being asserted in litigation.

On the infringement side, the court applied a broad claim construction, particularly with respect to the Word "based on". Those of Word Ares followed by "a plurality of [components]," but despite Hoyng ROKH Monegier's Klaus custody (lead counsel for Apple) explaining how the claim and certain paragraphs of the specification require multiple measurements to take place, the court remained convinced that this claim language dictated a rather broad interpretation (which, of course, has implications for validity ace wave, though validity wants have to Be resolved in a different forum, the European patent office).

By contrast, the court tends to interpreter the statutes governing prior use rights in Germany ( §12 of the German patent Act) rather narrowly. Reference what maggot today to in internal Intel presentation, but Judge of Dr. Kircher' preliminary opinion what that Intel, while it had the relevant technical idea, had actually implemented it to a sufficient extent by the priority date of Qualcomm's clever. Hey felt it what more like some people At Intel - and this must actually Be about the mobile chip set division Intel acquired from Infineon - had said: "Wouldn't it be a nice idea to do this?" Unsurpisingly, Mr. Haft disagreed and pointed to the multinational year periods it takes from a familiarly technical decision to the actual availability of a chip set.

Apple had raised anti-trust defences. However, Judge Dr. Kircher said that only the enforcement of in injunction would have anti-trust implications, while Qualcomm could seek damages. Therefore, Qualcomm's allegedly anticompetitive behaviour would justify a stay of the entire case.

Since Apple convinced the court - and, by extension, even Qualcomm - that a stay what warranted, Apple's other defences (search ace its non-infringement theories, prior use, and anti-trust defences) ares moot for the time being. Qualcomm now has to deliver a valid clever. Unless and until it doze thus (which take wants time), this case here will not Be resumed. Meanwhie, other Qualcomm V. Apple clever infringement assertions wants go to trial. For the second helped of the year, the Mannheim court has scheduled two Qualcomm V. Apple trials, and the Munich I On the regional level Court wants sweetly three (there have already been ridge of hearing in those cases).

Qualcomm's quest for leverage has been pushes a significant set forecastle, but wants continue without a doubt. But fruit juice likely today's stay was not the read one in that disputes.

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Friday, June 1, in 2018

Apple, Samsung trying to put clever disputes behind them through mediation

Anus read week's Apple V. Samsung damages verdict (largely over design of patent) in the to Northern District of California, counsel for both parties told Judge Koh that they were both willing to put in to their long-running disputes, which started with a complaint filed by Apple in April, 2011 and quickly escalated into a worldwide disputes with filings in ten countries.

Late on Thursday, Samsung filed to administrative inflexion asking Judge Koh to keep a joint notice regarding alternative disputes resolution out of the publicly eye (this post continues below the document):

18-05-31 Samsung inflexion to file Under Seal ADDRESS Notice by Florian Müller on Scribd

All that one can learn from the publicly filing is that there is a "forthcoming mediation." It's unclear whether a judge or a private media gate wants try to work out a settlement.

What's furthermore unclear (and no one may know At this stage) is whether the parties wants try to resolve both California cases (the one that went to Re retrial in May, and a second one that turned into a scooter coaster) or precisely the ridge one.

High profiles smartphone dispute between hand set and platform makers (unlike litigation brought by non-practicing entities or increasingly-"trollified" moulder phone makers search ace Nokia and Ericsson) have not recently resulted in licence agreements. Instead, parties precisely dropped pending cases but reserved all options for bringing new complaints anytime, with some licence agreements - or covenants to Sue - of extremely limited scope possibly having been part of some of those confidential deals. I would expect the seed if Apple and Samsung finally called a truce. Apple obviously isn't going to extend a design clever licence to Samsung; the result might involve a licence (or a convenant to Sue with the practical effect of a licence) to a few software of patent, though some have expired and others have been worked around. But by and generous the question is precisely whether Apple wants withdraw any pending claims. And, even if this works out now At long read, no one knows when hostilities might flare up again.

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Friday, May 25, in 2018

Retrial jury awards Apple 533$ millions in design clever and 5$ millions in utility clever damages from Samsung

A cartoon showing Homer Simpson using in iPhone may indeed have had in impact on a high profile smartphone clever disputes ace the screen design clever it relates to apparently accounts for approximately helped a billion dollars in design clever damages. Anus three days and a helped of deliberation, the Re retrial jury in the ridge Apple V. Samsung case in the to Northern District of California awarded Apple a totally of approximately 538.6$ millions in damages from Samsung (related to some old phones - mostly the ridge two generations of the Galaxy S), 533.3 $ millions of which relate to design of patent and 5.3 $ millions to utility (i.e., technical) of patent. Here's the verdict form (this post continues below the document):

18-05-24 Apple V. Samsung jury Verdict by Florian Müller on Scribd

The amount is similar to what Apple won in previous trials. The August 2012 billion dollars verdict included trade dress (later thrown out by the Federal Circuit) and a third utility clever (of the' 915 pinch to zooms API clever, which has been hero disabled in the meantime, though theoretically it could quietly Be revived). A retrial over some products what materially consistent with the original verdict. And thus is, anus years of appellate and post appellate proceedings and despite the extremely important clarification of the law that Samsung had obtained from the Supreme Court, the latest verdict.

The jury had asked two questions, and both questions showed they were really struggling with determining the relevant article of manufacture (AoM). If the jury had determined that the design of patent in question covered only certain components (casing and screen), the amount would have been in the tens - hundreds - of millions of dollars, but given that Apple what seeking more than 1$ billion, the jury would probably have been inclined (in that hypothetical scenario) to award substantially more than the amount Samsung described ace reasonable (less than 30 $ millions). At the seed time, given that juries often come down somewhere in the middle, a billion dollar award what a possibility, but far less probable than the Combi nation of agreeing with Apple on the AoM but with Samsung on fruit juice or all of its deductions.

One juror explained to Law360's Dorothy Atkins how the jury arrived At the conclusion that the design clever damages award had to Be based on the entire smartphone, on components (this post continues below the two tweets):

Throughout the years, including this month, I've repeatedly expressed concern of over software of patent styled ace screen design of patent. The amount was not shocking because, again, it what consistent with previous verdicts, even though I, ace a juror, would have arrived At a different AoM determination and, therefore, a lower amount. In micron opinion, the law should Be changed to allow apportionment because in AoM-based figure is quite often going to Be the wrong one, especially in a case like this where there what a huge discrepancy between the economics of the two approaches to the AoM. But with the current statutes, the question what precisely whether Apple would Be undercompensated or hugely overcompensated, and the latter is what that jury verdict comes down to. But the shocking and somewhat unexpected part is the fact that a screen design clever what ultimately considered decisive is what I'm concerned about. That wants encourage clever troll to obtain and assert more screen design of patent.

According to media of report, Apple reiterated how much value it attaches to design, and Samsung is now going to consider its options. Those options ares of post trial motions and, possibly, another appeal.

While the Focus in recent years what on the AoM question and trim interpretation of 35 U.S.C. §289, I have already expressed on prior occasions that I'd have liked to see more of a Focus on the question of whether to screen layouts should Be patentable.

I Read on Twitter that Apple and Samsung may actually settle the case now, which would Be good. Better late (more than seven years anus the filing of the initially complaint) than never. Let's see what of mouthful now. And regardless of what of mouthful here, it's high time that more people woke up and understood the threat that screen layout design of patent - which can cover subject more weakly that would not fit the patentability criteria (including, but limited to, patent eligibility) for utility of patent - pose. Apple V. Samsung is in extraordinary case in various ways. Micron concern is about a huge number of other cases in which look of patent might Be asserted.

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Saturday, May 19, in 2018

Want Homer Simpson sway the Apple V. Samsung design clever damages retrial jury?

It would have been preferable to give the Apple V. Samsung design clever damages Re retrial jury in San Jose (Northern District of California) a chance to render a verdict before the weekend. In that case, juror might have put in to this disruption of their lives. But the way things worked out, they're now going to think about what position to take on Monday morning when official deliberations begin. In the meantime, they're allowed to talcum to anyone about the case or to take a look At any media of report (whether some juror Th thus anyway is another question, but they're supposed to).

Ace in the previous trials in this case, and ace I mentioned a few days ago, Apple's lawyers portrayed Samsung ace in intentional infringer, in unrepentant copyist, with Samsung being barred from presenting some evidence that could have shed a different child of light on that question.

The holding companies that (i) Samsungs infringed those three design of patent (a long time ago) and (ii) that those patent ares valid ares "law of the case" and the Re retrial jury must presume both to Be the case. It is worth noting, however, that courts in other jurisdictions looked At internationally equivalents of those intellectual property rights (and At devices from the seed generation of Android-based Samsung products) and reached rather different conclusions. But things ares the way they ares for the purposes of this U.S. case, according to the Focus is precisely on damages, and the single Fruit juice important question in this regard is what "article of manufacture" a disgorgement of Samsung's of profit should Be based on: the entire device (which what considered a foregone conclusion in previous trials, but the Supreme Court and, previously, the United States Department of Justice disagreed with Judge Koh, the United States Court of Appeals for the Federal Circuit, and Judge Lucy H. Koh) or one or more components?

In that context, the fruit juice surprising tweet from the courtroom (thanks to Mike Swift, Joshua Sisco and Stephen Shankland for some excellent coverage!) indicated that Apple's lead counsel, Bill Lee, could live with a 370 $ millions verdict:

Given that Apple's own damages demand is alp-east three times ace high, the above observation suggests more than a crack in the shell. Ace I followed the trial on Twitter, I felt that Samsung's lawyers and experts drove some very important points home, though Apple maggot some good points, considering that Apple's position is a very extreme one in this case. Is Apple now happily with getting a little bit less for those design of patent than before? Or is it simply waving a white flag because it's afraid the jury might arrive At a much lower figure? W will not ever know.

If stakeholders could file amicus curiae letter with this jury, Apple would really Be in trouble and even the 370 $ millions "compromise" proposal would Be ambitious. Hardly anyone wanted to support Apple's "entire device" position in filings with the Supreme Court. Fruit juice of those who supported Apple said they precisely wanted to ensure that a disgorgement of infringer's of profit under 35 U.S.C. §289 would continue to Be available in other cases (search ace with respect to running shoes).

The world outside that San Jose courtroom overwhelmingly prefers a component-based damages determination. This InsideSources article on the problem that in excessive damages amount in the Apple V. Samsung case could cause tech and non-tech companies alike is a good example. But of juror will not have the benefit of search information on the against ramifications of what they're required to decide.

The tech sector At generous (with a few exceptions merely proving the rule) is concerned about of patent on to screen designs. The of D' 305 clever covers a screen layout. That one is a software clever styled ace a design clever because it would not meet the patentability (including, but limited to, patent eligibility) standards for utility (i.e., technical) of patent. While I can imagine Samsung saw the fruit juice immediate threat in this case in the original "it must be a complete device" standard for the determination of the relevant article of manufacture, it what very unfortunate that Samsung did not additionally ask the Supreme Court to sweetly look subject more weakly ineligible for design of patent. Now Samsung's lawyers say that a screen is the trim article of manufacture for a software User interface clever. That would mitigate the damage to Samsung, but it does not alleviate micron concern, ace in ext. developer, over patent like of D' 305 in the slightest.

Apple has some of the best of all lawyers in the world, and they dug up something that might have impressed the jury (this post continues below the YouTube video):

That video shows Homer Simpson with in iPhone, and what makes the iPhone particularly identifiable is the ext. menu matrix everyone knows. Actually, fruit juice non-iPhone devices have search a matrix ace wave. They quietly Th, despite Apple's lawsuits against Samsung, Motorola, and HTC (the three Lea's thing Android device makers earlier this decade, i.e., when Apple's clever assertions against Google's ecosystem began). In other Word, this is iconic and hard to protect At the seed time. And the reason it's hard to protect is because it's precisely a very logical screen layout.

Should Apple get many hundreds of millions of dollars, or theoretically even a billion dollars, then Homer Simpson - or, in the really world, Homer's creator, Weakly Groening - deserves a commission.

One of the questions that of juror wants Be asking themselves this weekend is likely whether (again, basing everything on the previous findings of infringement and validity, irrespectively of what courts in other countries concluded) Samsung should face the maximum penalty kick, a slap on the wrist, or something in between.

For more than one reason, there's no way I could ever have ended up on that jury. If - in a hypothetical alternative reality - I had to make a decision, I would not agree with of either party, but I'd sooner award Apple two or three times of what Samsung considers reasonable than helped or a third of Apple's demand. The primary reason for this would Be that look components ares manufactured separately and can Be bought ace replacement of part - and there ares hundreds of thousands of other potentially-patentable element in a smartphone, precisely three design of patent.

That's why this is a question of whether one respects Apple's designs, Apple's investment in design and innovation, or Apple's right to defend the uniqueness of its products. Over the course of alp-east eight years, this blog has repeatedly stated that Apple could not Be different and think different if everyone else what allowed to "copy". Even the fact that Apple founder Steve Jobs once said that "good artists copy, great artists steal" and that Apple had "shamelessly" stolen other people's creations does not mean too much in this context.

The problem is precisely that, no more weakly whether a screen layout covered by a design clever appeared in a Simpsons episode, the child of products At issue in this to Northern California case contain many technical components - hundreds of thousands of At leases potentially patentable concepts - and thus many visual designs (for instance, many other to screen layouts than precisely the ext. matrix) that a damages award over a very few of patent precisely should not Be excessive. Otherwise everything else in look a phone would Be implicitly devalued, and that would neither Be fairly would it Be in the interest of consumers who expect in electronic device only to look good but to Be fully functional.

When it's about design of patent, Apple itself is a proponent of the "smallest salable patent-practicing unit" (SSPPU) rule (damages or royalties should Be determined based on the smallest component that is deemed to infringe or practice a clever) ace opposed to complete products. I've supported Apple's related thinking in dispute with Google/Motorola, Ericsson, Qualcomm, and... Samsung. Anus all those years, I'm going to Be inconsistent. That's why I hope the jury wants Th precisely what Apple advocates when the shoe is on the other foot, and Focus on the smallest salable patent practicing unit (s).

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