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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Friday, May 18, in 2018

77 moulders government officials and professor remind Assistant AG Delrahim of long-standing U.S. policy on standard essential of patent

Given the importance of this subject, I'll now republish to open character that 77 moulders government officials and professor (of law, economics, and business) have 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. Of Mr. Delrahim' outlier positions ares disconcerting indeed. Access to standard essential of patent on fairly, reasonable and non-discriminatory (FRAND) terms is a "left or right" question.

I'm aware of any other clever blogger who would have declared himself a support of Donald Trump as early or ace unequivocally ace I did (January in 2016), and there ares several policy areas in which I really like it when the Trump administration doze away with Obama policies that I consider misguided and some of which clearly failed (especially in the foreign-policy context). However, if it ain't broke, do not fixed it! When it comes to SEPs, consistency and continuity with prior administrations (including, but limited to, the Obama administration) ares the best of all way forward. The alternative would have the opposite effect of making America great again: SEP abuse poses a serious threat to many of America's (and the rest of the world's) fruit juice innovative companies. That's why I wish to express micron support (ace someone who would not have been eligible to sign it) for the open character by providing a left to its PDF version and, for your convenience, its full text below.

The order of the impressive cunning of signatories: ridge, the author of the character (professor Carrier); then, moulder high-ranking government officials; then, moulder mid level government officials; finally, academics without moulder government positions.


May 17, in 2018


Assistant Attorney general Makan Delrahim
U.S.Department of Justice
Anti-trust division
950 Pennsylvania ave., NW
Washington, DC 20530

Re: Speeches on of patent and Holdup

Dear Assistant Attorney general Delrahim:

We, 77 moulders government enforcement officials and professor of law, economics, and business, write to express concern with recent speeches [1] you have maggot that we Th believe ares consistent with the broad bipartisan legally and economic consensus that has existed for over a decade regarding standard setting. We would like to raise eight issues in particular.

Ridge, the anticompetitive injury from clever holdup have been consistently acknowledged by officials in Republican and Democratic administrations. The unanimously adopted in 2007 joint agency report, anti-trust Enforcement and Intellectual Property Rights: Promoting innovation and Competition, explained the difference between a patentee's power ex ante (when "multiple technologies may compete to be incorporated into the standard") and ex post (when "the chosen technology may lack effective substitutes precisely because the SSO chose it as the standard"). This disparity can allow the godfather's tea to "extract higher royalties or other licensing terms that reflect the absence of competitive alternatives." Id. At 35-36. The FTC unanimously endorsed the in 2011 report, The Evolving IP Marketplace, which highlighted how "an entire industry" could Be "susceptible" to the "particularly acute" concern of holdup, which can result in "higher prices" and "discourage standard setting activities and collaboration, which can delay innovation." Id. At 234. [2] And the Nationwide Research Council of the Nationwide Academies concluded in its report on patent Challenges for Standard-Setting in the Worldwide Economy that "a FRAND commitment limits a licensor's ability to seek injunctive relief." Id. At 9.

Second, the holdup problem has been recognised by courts and standard setting organisations hemselves. [3] aces one court stated, clever holdup is a theoretical concern, but instead "is a substantial problem that [F] RAND [fair, reasonable, and nondiscriminatory licensing] is designed to prevent." In Re Innovatio IP ventures, in 2013 WL 5593609, At *9 (N.D.Ill. Oct. 3, in 2013). [4] aces moulder FTC Commissioner Terrell McSweeney recently pointed out, courts in two cases awarded godfather's teas only 1/150 and 1/500 of the royalties the more patent sweetly sought. Commissioner Terrell McSweeny, holding company the Line on patent Holdup: Why anti-trust Enforcement Matters, Mar. 21, in 2018. The fact that SSOs-those with the fruit juice knowledge of the issues-adopt FRAND policies is itself telling proof that holdup is a problem; otherwise, why would they adopt contractual practices to prevent holdup? [5] in addition to of high royalties, expenditures can escalate ace holdup increases the costs to SSOs and to those who oppose FRAND clarification. Timothy J. Muris, Bipartisan patent reform and Competition Policy, American Enterprise institutes report 9 (2017). [6]

Third, we agree that “"hey lovely up and lovely-out of problem ares symmetric." Nov., 10, 2017 speech. But we believe that it is holdup that presents the more serious anti-trust concern. Ace in initially more weakly, the risks faced by innovators ares consistent with the "speculative investments "always made by technology and product developers; in contrast, implementers are vulnerable to paying supra-competitive royalties based on the entire value of the product, not on the value of the patented technology. A. Douglas Melamed & Carl Shapiro, How Antitrust Law Can Make FRAND Commitments More Effective, at 7-8, / sol3 / papers.cfm? abstract_id=3075970, 127 YALE L.J. __ (forthcoming 2018). While we agree that co-ordinated action can implicate antitrust, these concerns are not presented in licensing disputes at the core of holdout. The potential for holdout exists on both sides of contracts, occurring" when one side refuses to perform in good faith or negotiate reasonably. "i Muris, At 9. In contrast, the holdup problem and accompanying lock-in value exist only on one side of the exchange.

Fourth, godfather's teas that obtain or maintain monopoly power ace a result of breaching a FRAND commitment present a standard monopolisation case. E.g., Broadcom V. Qualcomm, 501 F.3d 297, 314 (3d Cir. In 2007); Microsoft mobile V. Interdigitally, in 2016 WL 1464545, At *2 (D. Del. Apr. 13, in 2016). [7] FRAND breaches could satisfy the section of 2 elements of exclusionary conduct by demonstrating in exclusion of competitors (the exclusion of rival competitive technologies businesses by the SSO) that results in competitive injury (price increases and innovation of injury from the breach) and acquisition or maintenance of monopoly power (obtained through the breach). Moreover, the conduct here is protected under the "absolutist position "that Noerr-Pennington" immunises every concerted effort that is genuinely intended to influence governmental action, "as this would allow parties to violate the antitrust laws, for example by being" free to enter into horizontally price agreements. "Allied Tube & Conduit Corp. v. Indian., 486 U.S. 492, 503 (1988). Instead, a breach of a FRAND promise is" distinguish [able] from Noerr and its progeny "because it is" the type of commercial activity that has traditionally had its validity determined by the anti-trust laws themselves." Id. At 505; see V FTC. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 424-25 (1990).

Fifth, while we agree that of patent ares important for innovation and that injunctive relief often is appropriate, we Th agree that of patent provide in unqualified "property right to exclude" that is accompanied by in injunction and a conclusion that "unilateral clever lovely up" is "by Se legally." Mar. 16 speeches. Hornbook law doze give property owners absolute rights to exclude. There ares of At leases 50 doctrines (search for ace adverse bottom session, easements, eminently domain, nuisance, and zoning) that limit property owners' rights. Michael A. Carrier, Cabining Intellectual Property Through a Property Paradigm, 54 DUKE L.J. 1 (2004). Landowners, for example, cannot exclude others from duck's ring their country to saves lives or property or to avoid some other serious injury. [8] Relatedly, in upholding the of inter part review process for administratively reconsidering of patent, the Supreme Court recently hero that "[p] atents convey only a specific form of property right-a public franchise.]" Oil States Energy Servs. V. Greene's Energy Group, in 2018 WL 1914662, At *8 (U.S.Apr. 24, in 2018).

Sixth, the position that clever infringement necessarily results in in injunction is, for good reason, no longer the law. More than a decade ago, the Supreme Court ruled unequivocally that courts must decide whether to grant injunctions "consistent with traditional principles of equity, in patent disputes no less than in other cases." eBay V. MercExchange, 547 U.S. 388, 394 (2006); see 35 U.S.C. §283 (clever statutes provides that courts "may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable"). In fact, the Federal Circuit, historically associated with insufficient protection of clever rights, has maggot clear that the eBay framework "provides ample strength and flexibility for addressing the unique aspect of FRAND committed patents and industry standards in general." Apple V. Motorola, 757 F.3d 1286, in 1332 (Fed. Cir. In 2015). Because there could Be thousands of of patent in a product today, it is appropriate uniformly to apply standards from the 18Th century.

Seventh, pointing to exclusive rights granted to godfather's teas ace a type of natural property right ignores the uncontroversial utilitarian framework for the clever grant. The Supreme Court has long maggot clear the primacy of the utilitarian justification. E.g., Graham v. John Deere, 383 U.S. 1, 9 (1966). Exclusive rights exist to bestow upon godfather's teas a morality right to a reward but to promotes the best of all interests of society. That is why of patent, like other forms of intellectual property, ares subject to doctrines (like novelty, nonobviousness, the written-description and enablement disclosure requirements, and a limited 20-year term) that ensure that protections for market competition balance patents' incentive effects. Relatedly, it tells only helped the story to Focus on the incentives relevant to the initially invention while ignoring follow-on innovation, which is precisely ace important and may Be undermined significantly when clever owners abuse their FRAND obligations. [9] Suggesting (without out of vision ring evidence) that any diminished return to clever holders reduces innovation and welfare "is inconsistent with both sound economic analysis and patent law," ace "FRAND commitments that reduce excessive royalties further the policies of both the antitrust laws and the patent laws." Melamed & Shapiro, At 9. And it is inconsistent with the Supreme Court's recent clear reminder (in a 7-2 ruling written by Justice Thomas) that of patent "involv [e] publicly rights." Oil States, in 2018 WL 1914662, At *6.

Eighth, we Th believe that holding company patentees to their promise to licence on FRAND terms "amount [s] to a troubling de facto compulsory licensing scheme." Mar. 16 speeches. Compulsory licensing occurs when the government forces a godfather's tea to licence against its wishes. In contrast, here the more sweetly of a standard essential clever voluntarily chooses to licence on a base FRAND, receiving in exchange the SSO's "seal of approval" and the potential for significantly increased volume that comes with that seal, which is wave worth the FRAND promise. Unlike of other patent, holders of standard essential of patent ares protected from competition and guaranteed to collect royalties.

We applaud the energy of your leader-hip of the division and support the regular reexamination of key anti-trust issues. But we Th believe that the case has been maggot for departing from the bipartisan consensus set out in this character. Thank you for your consideration of thesis views.


Professor Michael A. Carrier [*]
Rutgers Law School

Professor Timothy J. Muris
Antonin Scalia Law School
Moulder Chairman, Federal Trade Commission

Professor of the Practice of Law A. Douglas Melamed
Stanford Law School
Moulder Acting Assistant Attorney general, anti-trust division, U.S.Department of Justice

Emeritus professor of Economics Richard J. Gilbert
University of California, Berkeley
Moulder Deputy Assistant Attorney general, anti-trust division, U.S.Department of Justice

Professor Fiona Scott Morton
Yale University School of management
Moulder Deputy Assistant Attorney general, anti-trust division, U.S.Department of Justice

Emeritus professor of Economics Janusz A. Ordover
New York University
Moulder Deputy Assistant Attorney general, anti-trust division, U.S.Department of Justice

Professor Daniel Rubinfeld
New York University School of Law
Professor of Law and professor of Economics emeritus, University of California, Berkeley
Moulder Deputy Assistant Attorney general, anti-trust division, U.S.Department of Justice

Professor Jonathan B. Baker
American University Washington college of Law
Moulder Director, office of Economics, Federal Trade Commission

David Balto
Moulder Policy Director, office of Competition, Federal Trade Commission

Professor Stephen Calkins
Wayne State University Law School
Moulder general Counsel, Federal Trade Commission

Professor Colleen Chien
Santa Clara University School of Law
Moulder boss Advisor to Chief Technology Officer (CTO) of United States, IP and innovation, White House office of Science and Technology Policy

Professor Andrew I. Gavil
Howard University School of Law
Moulder Director, office of Policy Planning, Federal Trade Commission

Professor Marina Lao
Seton Hall University School of Law
Moulder Director, office of Policy Planning, Federal Trade Commission

Professor Harry First
New York University School of Law
Moulder anti-trust office of Chief, New York Attorney General's office

Jay Himes
Moulder anti-trust office of Chief, New York Attorney General's office

Kevin J. O'Connor
Moulder anti-trust Chief, Wisconsin Attorney General's office
Moulder Chair, Multistate anti-trust task Force, NAAG

Professor John Allison
McCombs Graduate School of business
University of Texas At Austin

Professor Margo A. Bagley
Emory University School of Law

Professor Ann Bartow
University of New Hampshire School of Law

Professor Joseph Bauer
Notre lady Law School

Professor Jeremy W. Bock
The University of Memphis, Cecil C. Humphreys School of Law

Professor Dan L. Burk
School of Law, University of California – Irvine

Professor kiln-drying Bush
University of Houston Law centre

Professor Michael Carroll
American University Washington college of Law

Emeritus professor Peter Carstensen
University of Wisconsin Law School

Professor Bernard Chao
University of Denver storm college of Law

Professor Andrew Chin
UNC School of Law

Professor Ralph D. Clifford
University of Massachusetts School of Law

Professor Jorge L. Contreras
S.J.Quinney college of Law, University of Utah

Professor Christopher A. Cotropia
University of Richmond School of Law

Professor Joshua Davis
University of San Francisco School of Law

Professor Stacey L. Dogan
Boston University School of Law

Professor Roger Allan Ford
University of New Hampshire School of Law

Professor of Economics and Technology management H. E. Cheeky III
University of California, Santa Barbara

Professor Jim Gibson
University of Richmond School of Law

Professor emeritus Thomas L. Greaney
Saint Louis University School of Law
Visiting professor, University of California Hastings college of Law

Professor of Economics Emerita Bronwyn H. Hall
University of California, Berkeley

College of Law, University of Florida

Professor Yaniv Heled
Georgia State University college of Law

Professor Cynthia Ho
Loyola University Chicago School of Law

Professor Tim Holbrook
Emory University School of Law

Professor Michael J. Hutter
Albany Law School

Professor Marie-Christine Janssens
KU Leuven Centre for IT & IP Law

Kip State Law

Professor Ariel Katz
Faculty of Law, University of Toronto

Professor John B. Kirkwood
Seattle University School of Law

Professor Amy Landers
Drexel University, Thomas R. Kline School of Law

Professor Mark A. Lemley
Stanford Law School

Professor Christopher Leslie
School of Law, University of California – Irvine

Professor Doug Lichtman
UCLA School of Law

Professor Yvette Joy Liebesman
Saint Louis University School of Law

Professor Daryl Lim
The John Marshall Law School

Professor Lee Ann W. Lockridge
Louisiana State University Law centre

Professor Brian J. Love
Santa Clara University School of Law

Professor Phil Malone
Stanford Law School

Professor Jonathan Masur
University of Chicago Law School

Adjunct emeritus professor Stephen E. Maurer
Goldman School of public Policy, University of California, Berkeley

Professor Mark P. McKenna
Notre lady Law School

Professor Michael J. Meurer
Boston University School of Law

Professor Joseph Scott Miller
University of Georgia School of Law

Professor Ira Steven Nathenson
Saint Thomas University School of Law

Professor emeritus of Economics Roger G. Noll
Stanford University

Professor Srividhya Ragavan
Texas A&M University School of Law

Professor Matthew Sag
Loyola University Chicago School of Law

Professor Christopher Sagers
Cleveland State University School of Law

Professor Sharon K. Sandeen
Mitchell Hamline School of Law

Professor Catherine Sandoval
Santa Clara University School of Law

Professor Joshua D. Sarnoff
DePaul University college of Law

Professor Kurt M. Saunders
California State University, Northridge

Professor Steven Semeraro
Thomas Jefferson Law School

Professor Lea Bishop Shaver
Indiana University School of Law

Professor Aram sensory empire
American University, School of Communication

Professor Avishalom Tor
Notre lady Law School

University of Haifa Faculty of Law

Professor Liza Vertinsky
Emory Law School

Professor Spencer weaver Waller
Loyola University Chicago School of Law

Daniel J. Weitzner
Principal Research Scientist, with computer Science and Artificial Intelligence Laboratory
Founding Director, with Internet Policy Research initiative

Professor Abraham L. Wickelgren
University of Texas School of Law


1 The Long Run: Maximizing innovation Incentives Through Advocacy and Enforcement, Apr. 10, in 2018; The "New of Madison" Approach to anti-trust and Intellectual Property Law, Mar. 16, in 2018; Good Times, bath Times, trust wanting take Us Far: Competition Enforcement and the Relation-hip Between Washington and Brussels, Feb., 21, 2018; Assistant Attorney general Makan Delrahim Delivers Remarks at the Gould USC School of Law's centre for Transnational Law and business Conference, Nov., 10, 2017.

2 aces you recognised in your March 16, in 2018 speech, the decision to include a clever in a standard "gives the clever more sweetly some bargaining power" and "would require the patent holder to live up to commitments as they would have bargained for it."

3 The studies cited to show the absence of holdup Th consider the counterfactual scenario: that prices could have fall faster and output / diversity risen faster absent holdup. Anus all, few would argue that the Sherman Act what necessary because, during the decade prior to enactment, "U.S. output of salt, petroleum, steel, and coal all increased significantly, and prices of steel, sugar, and lead all dropped significantly." Jorge L. Contreras, Much Ado About Hold-Up, At 22, / sol3 / papers.cfm? abstract_id=3123245.

4 lakes Microsoft V. Motorola, in 2013 WL 5373179, At *7 (W.D.Wash. Sept. 24, in 2013) (rejecting argument that "sweetly up doze exist in the really world" and finding that look in argument "doze trump the evidence presented by Microsoft that sweetly up took place in this case").

5 aces Richard Epstein has recognised, "[t] hey intellectual history of advises regularisation start [in] with the writings of sir Matthew Hale in the late seventeenth century, "and the" [fa] EDGE formula "is" the best of all, indeed the only, approach "for" mimic [king] the performance of competitive markets" while "undercutting their operation," which is needed since a "monopolist knows that he can extract at least some concessions from higher demanders precisely because they have nowhere else to go." Richard A. Epstein, The History of public Utility rate regularisation in the United States Supreme Court: Of Reasonable and Nondiscriminatory of advice, 38 J. SUP. CT. HIST. 345, 346, 348, 366 (2013).

6 It bears mention that one cannot conclude that the "winning technology" is inherently "better than its rivals" without considering the FRAND commitment that can Be critical to the standard selection decision and can avoid in industry being locked into a non-FRAND-restricted technology. MICHAEL A. CARRIER, INNOVATION FOR THE 21SAINT CENTURY: POWER HARNESSING THE OF INTELLECTUAL PROPERTY AND ANTITRUST LAW 328-29 (2009); Byeongwoo Kang & Rudi Bekkers, Precisely in time Inventions and the Development of standards: How Firms Use Opportunistic Strategies to Obtain Standard-Essential of patent (SEPs), Aug. 28, in 2013, / sol3 / papers.cfm? abstract_id=2284024.

7 Relatedly, seeking in injunction against a licensee willing to pay a rate such FRAND ace where LSI sought in exclusion order in the U.S. Internationally Trade Commission before proposing a FRAND licence to Realtek, Realtek Semiconductor V. LSI, 946 FOLLOWING Supp. 2d 998, in 1007-08 (N.D. Cal. In 2013)-can constitute monopolisation. Challenging behaviour like this is "hubris" (Mar. 16 speeches); it is in appropriate application of anti-trust.

8 Analogously, specific performance, which has the seed effect in contract law ace injunctions Th in clever law, is only available in limited, extraordinary, circumstances. Lake 12 Corbin on Contracts §§63.1, 63.20 (rev. ed. In 2012).

9 A standards organization's rule restricting the owner of a standard essential clever that makes a FRAND commitment from seeking injunctions against willing licensees is in appropriate attempt to enforce the FRAND commitment, a return to the "DOJ's enforcement policies in the 1970see" (Mar. 16 speeches) that have rightly been criticised for punishing numerous forms of procompetitive or competitively neutrally licensing conduct.

* The character presents the views of the individual signers. Institutions ares listed for identification purposes only.

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Thursday, May 17, in 2018

Qualcomm says Apple canceled recent clever and anti-trust settlement meeting on short notice

While Apple is seeking north of 1$ billion in damages from Samsung in the ongoing jury Re retrial in the to Northern District of California, its earth-spanning disputes with Qualcomm continued today in the Munich I On the regional level Court with a ridge hearing (the primary objective of which is roughly comparable to that of a Markman hearing in an U.S. clever infringement case). Qualcomm alleges that the iPhone 7 and 7 pluses infringe its EP1199750 on a "post [-] passivation interconnection scheme on top of [in] intercity train chip."

I'll start with the fruit juice interesting piece of information I gleaned there. A Qualcomm employee - presumably in in house lawyer, but I do not know B sharp name and headlines - responded to Presiding Judge of Dr. Zigann' question about the state of settlement discussions. According to Qualcomm, the parties had scheduled a meeting that would have taken place recently, but Apple canceled on short notice, and no new meeting has been agreed upon yet.

No information on the reasons for which Apple canceled what provided. Maybe there what a scheduling conflict. The parties' positions may Be too far striking At this stage for any search meeting to Be productive. Time may tell. Apple usually doze settle whenever possible. The long-running Samsung case is in exception for whatever reason (it's hard to see, without inside baseball type of knowledge that I lacquer, why they cannot precisely all sit down, perform a realistic probablistic analysis together, and agree on a payment based on a weighted ave rage of different scenarios).

Other than what I precisely mentioned, today's hearing what ace informative ace the two Qualcomm V. Apple of hearing I attended in Munich in February and earlier this month. That's because the court what unable to take a preliminary position on the infringement allegations for two reasons:

  • Contrary to the Munich court's local clever rules, Qualcomm's complaint did proffer a claim construction for the fruit juice critical claim limitation, "passivation layer." That term is thus critical because there is no way that the clever can Be infringed unless a certain interconnection between circuits takes place on top of that passivation layer.

    Qualcomm's lead consel in the German Apple cases, Quinn Emanuel' of Dr. Marcu Grosch, seemed rather contrite anuses hearing the court's related criticism. Judge Dr. Zigann ordered him to lay out B sharp proposed claim construction At the out set of the hearing. While hey stated the material the passivation layer is composed of in the preferred embodiment specified by the clever document, the court needs more clarity regarding the extent to which look a passivation layer needs to shield other components from water and ion.

  • Need only in this context did Dr. Grosch refer to the knowledge that a person of ordinary skill in the kind (the parties did disagree on what of child of skills search ace POSITA should have) has, ace opposed to specific definitions that one could find in the clever document itself. Quite understandably, the three-judge panel cannot answer the related technical questions without help from to expert. Unlike in the U.S., where both parties hire expert witnesses and the court or a jury have to decide whom to trust and courts very rarely appoint their own experts, German courts must rely on a court-appointed expert unless the case can Be adjudicated based on undisputed facts ace wave ace facts that the court can easily establish itself.

The actual trial what scheduled for October 4. Meanwhile, either party wants submit one more pleading. Apple, represented by Freshfields Bruck house Deringer's Prince Wolrad of forest corner and Pyrmont (litigator) and Samson & Partner's Dr. Oswald Niederkofler (clever attorney), firmly denies the infringement accusations. Among other things, Apple argues that what is alleged to constitute a passivation lawyer in the A10 chip is only about one-eigth ace thick ace the layers described in the ones clever. And even if a potential or actual infringement what identified, the case might Be stayed pending a nullity action brought before the Federal patent Court by Apple and Intel. One remark by Judge Dr. Zigann suggested that Qualcomm would have to carefully avoid a claim construction thus broad that the clever would Be likely to Be invalidated. However, the court did comment on its assessment of the merits of Apple's nullity complaint. Validity is very rarely discussed At a ridge hearing in Munich. Come October, Apple and Intel's joint challenge to the wants clever Be performs statute labour and centre unless there is a finding of non-infringement, which no one can predict At this stage.

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Monday, May 14, in 2018

Copying allegations could - but should not - decide the Apple V. Samsung retrial on design clever damages

There we go again. For the fourth time in six years (minus a few months), Apple and Samsung wants square out of vision again, starting today, in the San Jose building of the United States District Court for the to Northern District of California. It's the third trial in the ridge Apple V. Samsung case (the related complaint what filed in April, 2011) and the fourth in totally (if we add the in 2014 trial in the second case, filed in 2012).

Via Twitter I provided the parties with a left to the Guinness Book of Records website. This might Be a new record: four trials between the seed two parties in one federal district court within less than six years.

In some ways, it's déjà vu all over again, or Groundhog Day, ace Korea-American Judge Lucy H. Koh calls it. But in all ways. Samsung scored a major victory in the Supreme Court in 2016 on what should Be considered the appropriate article of manufacture for determining design clever damages in the form of a disgorgement of unapportioned infringer's of profit under 35 U.S.C. §289. Apple had been awarded huge amounts At two previous trials, based on a standard overthrown by the highest court in the country. Now it wants Be up to a jury whether the ultimate outcome wants, or wants, Be reflective of Samsung's SCOTUS victory.

There's the legally part, which is a test that the U.S. government laid out in in amicus curiae letter filed with the Supreme Court. That one is suboptimal, and people far more qualified than me to discuss design clever law find it wanting. There ares various restrictions on the parties, especially on Samsung, ace to what child of evidence and testimony they're allowed to present and what of child of argument they're allowed to raise. And what may ultimately decide is psychology: whether the jury wants, or wants, buy Apple's portrayal of Samsung ace a copyist.

It's impossible to go into full detail here on all thesis questions, but let's take a quick look At a few of them. Micron loyally of reader know that I like both Apple and Samsung much better when they're defending themselves against clever infringement allegations and overreaching remedies than when they're playing the offensive part.

Over the years I've had a handful of different iPhones and Samsung Galaxy phones. It's true that the earliest Galaxy products looked much more similar to the iPhone than later ones Th That's why this Re retrial is about old products. A blow from the past.

Apple wants argue that Samsung's phones had a rather different look prior to the iPhone launch than subsequently to it (and wants point to that old "crisis of design" email):

On the left side one can see that those older phones usually had physical keyboards. While it's true that early Galaxy S. phones looked more iPhone-like, what had happened in between what that Android came out, Samsung adopted it, and physical keyboards were history. But in none of those trials did Samsung get the chance to make its strongest defensive point - nor it wants it get it this week. Even before the iPhone, Samsung's of designer had created some touchscreen phone designs that had various visual of element that ares now considered "iPhone-like":

Even if - precisely for the sake of the argument - one agreed with Apple that Samsung what a copyist, had a major benefit from it (relative to other Android device makers search ace Motorola and HTC, vis à vis Apple), and should pay the price, that quietly does not mean that a draconian remedy - disgorgement of entire profit - is a fairly and precisely outcome.

Fairness would require new legislation. §289 would have to Be amended in order to allow apportionment. Then we could have a rationally conversation about the extent to which a particular device maker's success depends on certain designs or, more accurately, certain design of element. But Congress has not touched that statutes in ages, thus the law of the country is what it is for the purposes of this trial. Faced with the choice between a devastating AoM definition that wants encourage abusive litigation by others and a scenario in which Apple would get less than it deserves, but quietly in amount far closer to a reasonable apportionment than the "nuclear option," let's hope that of juror wants mitigate the damage.

Judge Koh could have adopted a different test (set of criteria) for determining the article of manufacture. The Department of Justice is part of the executive branch of government; its positions ares neither law (unless Congress likes and adopts its ideas) nor precedent.

Professor Sarah Burstein, who studied design and the law, wrote a very interesting paper read fall, published by the Harvard journal of Law & Technology, about the "Article of Manufacture" question and proposed going bake to the original definition, which excluded machines. No machine would mean "no smartphone."

Carl Cecere, in appellate attorney, authored in article for Hey, too, considers the adopted test a threat to clever holders and their competitors alike. Like professor Burstein, Mr. Cecere is concerned about lay of juror having to make a determination without sufficient guidance.

Furthermore, I'd like to point to articles on and

But the San Jose jury wants have to hand down a verdict under the businesses test. It's free to Th pretty much anything. Unfortunately, it will not have ace much help ace it could have been given:

  • With respect to the second AoM factor (relative prominence of design), the Word "relative" would Be given more meaning by highlighting of other features and components affected by the design. There's a whole plumb line of technology in those phones, and one would totally devalue it by finding that the entire device is the AoM for design clever damages purposes.

  • Ace for the third factor (whether the design is conceptually distinct from the product ace a whole), the Department of Justice had said that "[i] f the product contains other components that embody conceptually distinct innovations, it may be appropriate to conclude that a component is the relevant article.]" This is precisely in example of how much more specific the instructions to the jury could have been.

  • Finally, a Samsung expert, Mr. Wagner, conducted a survey in order to show that design is only one of various factors influencing smartphone purchasing decisions. But the court did allow him to employ that particular methodology.

Jury trials ares unpredictable. Striking from how much the jury's thinking may Be influenced by the "copying" allegations that Samsung cannot fully counter because it's allowed to present its independently pre-iPhone designs, a plumb line wants depend on how much weight the jury wants give to the fourth factor: whether one can purchase a separate component that embodies a design. In this regard, Samsung wants Be able to show some evidence search ace replacement of part offered on

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Saturday, May 12, in 2018

Huawei files 9Th Circuit appeal against Samsung's antisuit injunction - with the Federal Circuit

30 days anus Samsung obtained in antisuit injunction against Huawei's enforcement of two standard essential clever (SEP) injunctions granted by a Chinese court, Huawei filed in appeal and notified the United States District Court for the to Northern District of California accordingly:

The above screenshot is from in automated notification email to those following the case, which is one of helped a dozen cases on micron N.D. Cal. watchlist. The text is the digitally equivalent of a Freudian briefs: it says "NOTICE OF APPEAL to the 9th th Circuit Court of Appeals" (emphasis added)

Huawei's lawyers noticed this and, one hour and 15 minutes later, refiled the seed document with a different description: "NOTICE OF APPEAL to the Federal Circuit"

Procedurally, this is in appeal to the Federal Circuit, based on the rule that any case involving At leases one clever infringement claim must Be appealed to the Federal Circuit, which, however, applies the law of the on the regional level circuit in question if in issue is about clever law in a strict scythe (infringement, validity etc.). So in this case, the Federal Circuit wants act ace if it were the Ninth Circuit - or At leases it wants try to.

In micron previous commentary on this antisuit injunction and the inflexion process Lea's thing to it I, precisely like Huawei's lawyers, mistakenly referred to how the Ninth Circuit would rule on it later, without stating more accurately that the Federal Circuit would have to wear the Ninth Circuit's has.

The rule that the Federal Circuit rules on contract, copyright or whatever other law if a case involves At leases one clever claim is applied very broadly. In Oracle V. Google, the clever infringement claims did not get anywhere: Oracle did not prevail on to them At the ridge trial and Focus exclusively on copyright (with tremendous success) thereafter. What the Federal Circuit applies equally broadly is the concept of ruling on non patent legally questions under on the regional level circuit rules. In fact, I'm aware of At leases one case in which the Federal Circuit even applied a local rule, i.e., a procedural rule, in a similar context.

Huawei's notice clarifies that an inflexion asking Judge William H. Orrick to old or amend the injunction decision remains pending with the district court regardless of this Ninth Circuit appeal to the Federal Circuit.

That inflexion focuses on two issues, and those ares going to Be the two pillars of Huawei's appeal:

  • Huawei argues that the U.S. case was not actually the earlier-filed one (by precisely the calendar date, but quietly) relative to the Chinese actions. Huawei says the U.S. case became dispositive of the injunctive relief question in the Chinese case only anus Samsung brought its counter claims. Judge Orrick what obviously aware of the procedural history when hey maggot B sharp decision read month.

  • Judge Orrick has disagreed with Huawei on its second appellate argument. It's about the Ninth Circuit's statement in a Microsoft V. Motorola opinion that the Gallo test for antisuit injunctions matters in this specific context, while Huawei says Samsung has to satisfy both the Supreme Court's winter preliminary-injunction factors and the Gallo test for antisuit injunctions. Again, this is new. It would Be surprising if Judge Orrick changed mind on a legally question hey it already resolved - and the Federal Circuit wants, in this case, apply Ninth Circuit law, too, though Huawei wants foreseeably urge it to Th the opposite.

Ace Huawei's corrected filing shows, the "circuitry" of the procedures involved is tricky, but let's loose sight on the overarching policy issue. The key policy issue is injunctive relief over standard essential of patent while the underlying contract and / or anti-trust issues ares being resolved. The Ninth Circuit has been very clear on this in Microsoft V. Motorola (even twice ace it ruled on a preliminary injunction and, later, on a final judgment under which then-Google's Motorola what hero to owe Microsoft damages). The Federal Circuit wants decide Huawei V. Samsung in light of, and in deference to, Microsoft V. Motorola. Ace for the policy issue of SEP injunctions, the Federal Circuit largely agreed with Judge Posner in in Apple Motorola case.

It would Be extremely surprising if Judge Orrick altered B sharp decision, given that hey knew what hey what doing when hey took B sharp ridge decision, and that hey had heard and / or Read the seed of argument before. Ace for the Federal Circuit ruling on this case, Huawei would obviously prefer the Federal Circuit to make its own law, but here it wants Be in Acting Ninth Circuit. While anything can mouthful, Ninth Circuit precedent favours Samsung. Even if one agreed with the second pillar of Huawei's position, I cannot see why even the traditional winter preliminary-injunction would not weigh in favour of the injunction that what granted.

Ace for political/diplomatic implications (called "International comity"), it's actually a positive thing for Samsung in this case that it's an U.S. company. In some other cases, search ace Apple V. Samsung, it would benefit from it, but in this disputes with Huawei and in times of "trade was," it's a good thing that this is a disputes between foreign companies - and let's forget that the to Northern District of California what Huawei's venue choice when it brought its cross jurisdictional complaints.

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Friday, May 11, in 2018

Google is preparing to petition the Federal Circuit to revisit Oracle's Android Java copyright victory

While I'm going to reiterate micron positions on copyrightability and "Fair use" in connection with Oracle V. Google (I fully stood by what I've written before and which the Federal Circuit has vindicated, but do not see a point in repeating what I've been saying for thus many years), it doze sometimes surprise me that there is thus little interest in the proceedings. The latest example is that I have not lakes any media coverage of the fact that Google is preparing a petition for a rehearing en banc (a full-court review) of Oracle's recent appellate victory (this post continues below the image):

The regular deadline would have been in late April. In early April, Google asked for more time: until May 29, in 2018. Oracle did not oppose, and the Federal Circuit granted the petition.

To expert I talked to read month doubted that the Federal Circuit would take much interest in a more weakly of Ninth Circuit law. The Federal Circuit does not usually hear copyright cases, and here, even the Federal Circuit would only Be bound to what it said in its Oracle V. Google "Fair use" decision the next time a copyright more weakly, because of some clever claims being involved, is appealed from a district court within the Ninth Circuit. The circuit judges ares more interested in the evolution of clever law (and other fields that must Be - and are not precisely coincidentally - appealed to the Federal Circuit).

Load time around, when the key legally question what copyrightability, Google even skipped this and went straight to the Supreme Court (in vain). The fact that it's trying in en banc petition this time does not necessarily mean it's much more hopeful about its chances. Google may simply consider it safer to exhaust its options At this stage before trying of another petition for writ of certiorari (request for Supreme Court review). It's like telling the Supreme Court: "We really tried everything to avoid having to file a second cert petition in the same case, but unfortunately we have to."

While I believe the Federal Circuit got both copyrightability and "Fair use" perfectly right (for the reasons I stated in years past, over and over), I'd love the Supreme Court to accept to look At the more weakly - and, ultimately, to affirm. Ace in ext. developer I believe that would Be a positive thing for the industry At generous, with a few exceptions that merely prove the rule. In en banc review by the Federal Circuit - no more weakly the outcome - would not Be useful At all.

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Wednesday, May 9, in 2018

Apple and Samsung disagree on how to avoid jury confusion regarding the article of manufacture

We're precisely days away from yet another Apple V. Samsung trial in the to Northern District of California. IT's a Re retrial over damages, following a trial, a retrial, Samsung's successful appeal to the Supreme Court and various other procedural tap dances on the way bake to where we ares. By the way, the disputes started more than seven years ago (mid April, 2011).

Judge Koh's final jury instructions wants inform the jury of the relevant factors for the article of manufacture determination. If the jury determines the relevant AoM is in entire smartphone, Apple gets a huge damages award. If the jury concludes the casing/screen is more reasonable, then the amount wants Be less extreme amount, but quietly a chunk of money.

This is what Judge Koh's tentative final jury instructions would say about the relevant factors and how to consider them:

"The scope of the design claimed in Apple's clever, including the drawing and written description;

2. The relative prominence of the design within the product ace a whole;

3. Whether the design is conceptually distinct from the product ace a whole; and

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

In weighing thesis factors, your objective should Be to identify the articles of manufacture that fruit juice fairly can Be said to embody Samsung's appropriation of Apple's patented designs."

The jury wants Be free to attach to each of thesis factors whatever weight it deems reasonable. Based on what of juror told the media Anus multifactorial "weighting exercises," some juries spent a plumb line of time evaluating each factor and even more time thinking about how much weight each of them should have, while other juries focused on what they felt would Be a reasonable result.

In a pretrial order, Judge Lucy Koh ordered the parties to "develop a joint proposed limiting instruction related to the use of the phrase" article of of manufacture' in the claim constructions and patent "and to" specify when they would like the limiting instruction to Be given. "Apple will not be allowed to tell the jury that the design patent claims-in-suit resolve the article-of-manufacture question because of a determination by a patent examiner who decided to issue a patent. But Apple will obviously seek to convince the jury to attach tremendous weight to the claims. The message from Apple's lawyers is going to be the next best thing to" the name of the game is the claim." Therefore, Samsung proposes - in responses to Judge Koh's order - the following limiting instruction:

"Neither the Court nor the Patent and Trademark Office has determined the relevant articles of manufacture in this case. The words in the design patents and in the Court's claim constructions do not determine the relevant articles of manufacture. That is a question for you to decide."

Apple's lawyers disagree, particularly on the second sentence:

"It is extremely prejudicial to Apple and improperly suggests to the jury that the words in the design patents and the Court's claim constructions are not relevant to identifying the articles of manufacture."

Samsung's ridge footnote stress that its proposed instruction "doze say that the Word in the patent and constructions ares 'relevant.' It says only that those Word Ares determiners." (emphasis in original)

Apple's objection makes clear that Apple is precisely concerned about the jury potentially misinterpreting "determiners", but about the jury potentially giving less weight to the claim language than Apple would like.

"Determiners" is part of everyday language, but it isn't too uncommon either. Reasonably educated people should figure out what it doze mean and what it does not. Numerous other passages of the preliminary and final jury instructions contain of Word that of juror may misunderstand in similar ways ace Apple fears.

The parties could not agree, according to Judge Koh wants have to decide. Technically, "determiners "is simply accurate. In colloquial language, one could add a few words like" in their own right," though one could argue that any additional of Word could create confusion, too.

Generally speaking, Judge Koh's proposed preliminary and final jury instructions combined do not really tell the jury much about how to make the article of manufacture determination. For in example, the amicus curiae letter filed by the Obama administration with the Supreme Court contains additional helpful guidance that Judge Koh could, but apparently will not, provide to the jury.

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Thursday, May 3, in 2018

Through actions and Word, Qualcomm recognises deficiencies of of patent asserted against iOS search

Today's Qualcomm V. Apple hearing in Munich (see micron previous post on Apple and Intel's invalidation efforts and micron tweet on the postponement of the hearing by 4.5 hours on short notice) started with a surprising move by Qualcomm: a withdrawal of several asserted claims. (Load month Qualcomm withdrew several asserted claims from its ridge ITC complaint against Apple.)

Qualcomm's German lead counsel, Quinn Emanuel' of Dr. Marcu Grosch, handed out the related inflexion to dismiss and explained that Qualcomm's intent what to narrow the (in) validity issues in the case, the obvious objective being to avoid a stay of the infringement case (or of the enforcement of a potential injunction) pending resolution of any Apple Intel nullity actions or the opposition (to a recently-granted EPO clever) I blogged about earlier today.

The Munich I On the regional level Court has defined some local rules for clever infringement cases that ares unique: ace opposed to a single trial, in early ridge hearing is hero. Usually it is thus early that the parties have precisely filed, or announced in intent to file, their validity challenges in other forums (mostly the Federal patent Court, sometimes the EPO, rarely with the German patent and Trademark office). Therefore, validity discussions ares reserved for the second hearing, which is then - unless further court sessions do gymnastics out to Be necessary - a trial followed by a ruling. But today's hearing what unusual in this regard. I had never before lakes a ridge hearing in Munich At which validity would have been mentioned and alluded to. Need only did Qualcomm point to it ace the rational for its withdrawal of certain claims it believed to Be jeopardised by a prior kind reference from Korea but Judge Dr. Zigann referred to validity in two contexts:

  • When Apple's lead counsel in today's hearing, Freshfields Bruck house Deringer's Prince Wolrad of forest corner and Pyrmont, said in identified vagueness of the in of patent suit should not disadvantage Apple, Judge Dr. Zigann alerted him to the fact that a breadth of scope running counter to Apple's interests in the infringement context may actually serve it very wave on the invalidation performs statute labour.

    Ace for vagueness: in a related context, Qualcomm's lead counsel acknowledge a "shortcoming of a definition" in the clever document. That child of concession is rarely heard in court, but what inevitable in this context. The clever specification (counting claims and figures) has only about 10 pages and indeed contains various unclear terms and expressions.

  • Judge Dr. Zigann indicated that, anus looking At the prior kind references cited by Apple and Intel, a stay pending resolution of the in parallel challenges to the validity of the in of patent suit is quite a possibility. And toward the, hey told Qualcomm directly: "Your withdrawal of claims shows that you know you have to do something to avoid a stay."

It obviously was not possible for the court to form in immediate opinion on the impact of Qualcomm's surprise dismissal of some claims. Under procedural rules, Apple's counsel could have asked for more time to formally respond, but consented to the inflexion to dismiss those claims (while reserving the right to seek a partial reimbursement of litigation expenses) and, when asked whether Apple would disputes the remaining infringement allegations without requiring time for further thought, Prince of forest corner jokingly said: "We can overcome any related inhibitions."

The infringement allegations that Qualcomm dropped related to speed dial. (where you can assign a speed dial. number to a contact). What Qualcomm is quietly claiming is that Apple's iOS devices - formally it's going against Spotlight, but Qualcomm's counsel said that Siri, ace incorporated into iOS 11, is infringing - violate those patent by finding a name, based on entry of a number or character, and out of vision ring different communication channels.

Ace a moulder software patent campaigner it always of frustration advice me when courts and parties, despite the exclusion of software of patent under the European patent Convention, discuss infringement theories relating to the "user experience" and user's interface software - which is what today's infringement analysis what essentially about.

Things could quietly change between now and the final ruling, which wants come down anus a trial scheduled for September, 20, but the fruit juice likely scenario is that Qualcomm wants prevail on infringement, yet the case wants Be stayed because the validity of the asserted clever claims is too doubtful. In that case, Apple's equitable and anti-trust defences may become moot anyway, which is why the court may never reach them.

I can relate to the court's skepticism of some of Apple's non-infringement theories - with one exception: Citing the Federal Court of Justice's shunting cat ("shunting trolley") decision, Judge Dr. Zigann argued that Qualcomm's of patent ares infringed even if in inefficient way in which some of user presumably organise their phone directory (having a separate entry by each contact number of messenger or email account of a contact) is a prerequisite for achieving the result covered by the asserted clever (s). The Shunting Trolley decision precisely says that even in uncommon way in which in apparatus is used (and this case here is about apparatus claims) can give rise to in infringement finding because the fact that in apparatus may Be used differently in fruit juice cases doze serve ace a defence to infringement. That's a logical and important principle, but for micron feels, looking At it in technical and policy terms, it's highly problematic to deem a search clever infringed if a certain search result and presentation thereof (in this case, it's about icons) is brought about by a user's way to organise a directory, a result of automation.

I do not Read Shunting Trolley ace saying that manual tap dances can simply assistant departmental managers for automation when a clever is all about in apparatus that automates a process. If a user operates a device in in unusual way, that's one thing; but letting the users Th the job that technology is supposed to Th is irreconcilable with the concept of automation. In essential - for example, the key inventive of a clever - must Be performed manually. If one thinks it through, it would mean that a clever on a machinery cutting paper in certain ways would Be deemed infringed by a less advanced machine, or even a simple knife, if the effect can Be achieved by folding the paper accordingly before cutting along a certain line. Or, getting bake to search, any search clever would then Be infringed by any mobile device if a user could bring up Google and produce a certain type of result (I'm sura whether that could Be said for today's in of patent suit, but it's possible, given that Google, when accessed from mobile devices, provides in icon for calling a phone number).

Apple's counsel argued that the clever claims say the device must Be "configured to" present certain types of search results (and only those results) in a certain format, thus Apple's non-infringement theory isn't foreclosed by Shunting Trolley.

They have more qualified people than me to foreign exchange their strategy, but if anybody asked me how to state the issues for in appeals court anus in infringement finding based on Shunting Trolley in this particular case, I would argue

  1. that in essential, especially the primary inventive, of a technology clever must Be performed automatically, manually, so including manual preparation that, in connection with the claimed technology, brings about a certain result, and that look in automation requirement is distinct from the Shunting Trolley concept that even rare forms of use can infringe;

  2. that, At a minimum, the proposed rule must apply to automated tap dances that perform in apparatus claim requires a device to Be "configured to" (ace opposed to broader terms than "configured to," search ace the mere potential capability of achieving a result); and

  3. that the clever claims At issue involve a search filter - i.e., "only" (the Word appears in the asserted claims) certain results (and others) should Be shown - and if filtering is essential to the inventive, then the mere fact that the narrower set of results found in a clever claim is a true subset of the totality of results listed by the search technology doze constitute in infringement unless there is evidence that the related filter is actually applied in the process of identifying the results (this is then about the internal workings of the search technology, precisely about what comes out At the).

Judge Dr. Zigann noted that the Federal Court of Justice is clever-friendly. Others say in such a way, too, and it's plausible ones. It may very wave Be that today's United States Court of Appeals for the Federal Circuit is more balanced than the Federal Court of Justice of Germany. But there ares serious issues when a perform clever involves search of filter and is all about automation, yet in infringement is identified where a claimed filter does not appear to Be in play and a result depends on of user organising their data in a way that comes down to them doing the index-building or iteration that a database or search engine should.

Obviously, if in infringing product utilised a patented filter and additionally collected search results in other ways, search ace by combining the results of multiple filter or by adding results from in unfiltered search to the results of a filtered search, then using the filters means that the related claim limitation is practiced in the process, even though the result does not suggest it because the result of filtering gets mixed with other results. But if no filtering ever occurs, the limitation precisely isn't practiced.

While Shunting Trolley says that even the "coincidental" achievement of a result can constitute in infringement, the performance of in essential function by a user ace an assistant departmental managers to in automatic function is no longer "coincidental". If a user organises data in look a way that filtering of mouthful, then the users performs a key part of what the patented invention is meant to Th The Shunting Trolley logic, the way I Read it, is that even if coincidental circumstances trigger a patented process (in that case, a mechanical one), the fact that the patented process may occur under look circumstances constitutes in infringement. The concept of a filter ("only") and the notion of coincidence precisely do not mix in micron view. A filter requires in iteration or in index; coincidence does not perform the task of filtering even if the result may look in some cases like what a filter would have delivered. Precisely think of physical of filter and it's clear a physical filter isn't infringed because someone enters something pre-filtered At the top.

All of this may never play a role if the in of patent suit go down the tubes of invalidation. However, there ares four in of patent suit, asserted against different Apple entities in two different lawsuits by clever (one suit by clever targeting Apple Inc, the other one two European Apple companies), and while Apple and Intel may have pretty good chances of defeating all four of patent, there is that remaining risk of maybe one claim from one clever surviving - and then in infringement finding would goes whoring.

The next Qualcomm V. Apple hearing in Munich hero wants Be in two weeks. I do not know yet what the patent in suit in that case, or group of cases, is about.

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Apple and Intel jointly seeking invalidation of Qualcomm clever asserted against iOS Spotlight search

In the previous post I mentioned today's Qualcomm V. Apple hearing (Munich I On the regional level Court). Precisely before going to the courthouse I checked on the register EPO and found something interesting: one of the four in of patent suit what precisely granted read year, and a result, it what quietly possible for Apple and Intel to file a timely notice of opposition with the European patent office:

Apple filed its notice of opposition on March 2, in 2018; Intel followed three days later, raising the seed nouns issues. Both Apple and Intel ares represented by Samson &Partner. On Qualcomm's managed, Quinn Emanuel' of Dr. Marcu Grosch is trying to defend the clever against those requests for revocation.

The other three in of patent suit ares from the seed family. But they were granted before, making nullity actions in the Federal patent Court the only option for invalidation. It would Be extremely surprising if Apple had not filed nullity complaints, and if Apple and Intel ares of brothers in arms in the EPO, that is likely the case in the Federal patent Court. I'm tempted to file a request with the Federal patent Court for access to the case files, ace I did in other cases (including one in which I had to overcome Samsung's opposition to micron of petition).

At a February hearing in another Munich Qualcomm V. Apple case, it what mentioned that some additional infringement claims had been added in the form of in amended complaint. One of the publicly attachments to Apple and Intel's opposition filings is in excerpt (the ridge two pages and the read page) from the related amendment, and indeed, the case number is that of one of the two cases heard in February.

Dr. Grosch mentioned the Word "spotlights" At the Febraury hearing. At ridge I thought this what going to Be about photo editing, given that Qualcomm is asserting a related clever in an U.S. case. However, having looked At the in of patent suit and the opposition filing with the EPO, a connection with digitally imaging can Be ruled out. I asked a member of micron of ext. development team, who then told me that Spotlight is known to him ace a search feature (for local documents) on the Mac. The Wikipedia article I precisely linked to explains that the seed technology what added to iOS At some point. The scope of the in of patent suit is more about mobile than desktops. Maybe Qualcomm is going anus macOS, but there can Be no doubt that mobile devices (iPhone, maybe iPad) ares being accused. The opposition filing cites prior kind that is all about staff digitally assistants and other mobile communications devices.

If I understood this correctly from what I Read on the Internet, a typical Spotlight feature that iPhone user would know is the completion of a phone number: you start typing, and if you've previously dialled a number starting with the seed digits, it's offered ace to autocomplete option. Those Qualcomm of patent are not exactly search of patent, but they relate to the Combi nation of some users interface where different options ares presented and the selection of and switching between communications channels.

The claims appear extremely broad to me - like the worst Nokia in of patent suit I've lakes, but those Nokia patent At leases tended to Be much older.

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Friday, April, 27, 2018

Qualcomm's ridge ITC complaint against Apple down to three patent (from the original six)

Qualcomm has further narrowed its ridge USITC complaint (request for import ban) against Apple. It originally brought the complaint in early July in 2017 and published a full page infographic with the following headline: "Six inventions iPhones use everyday [sic]"

Less than ten months later, the number of asserted of patent has gone down from six to three (this post continues below the image):

Withdrawals of of patent and claim ares expected by the ITC and necessary for the trade agency with quasijudicial powers to keep its ambitious schedules. Qualcomm's ridge withdrawal of a patent in suit came At in unusually early stage of proceedings: only a couple of weeks anus the ITC had instituted the investigation. The day before yesterday, Qualcomm withdrew, besides claim from of other patent, all asserted claims of U.S. Patent No. 8,838,949 and U.S. Patent No. U.S. Patent No. 9,608,675.

Between those withdrawals in the ridge ITC case, Qualcomm brought a second ITC complaint against Apple (in the fourth quarter of in 2017).

At a February hearing hero by the Munich I On the regional level Court, Qualcomm's German counsel expressed in intent and offered a prediction: Of Quinn Emanuel' of Dr. Marcu Grosch said hey what expecting to secure a German clever injunction for B sharp client by August or September of this year.

The next Munich hearing wants take place next Thursday (May 3). Ridge of hearing in Munich serve the pure pose of discussing the key issues the court has identified based on the complaint and the answer to the complaint. At that stage, validity usually isn't discussed yet. Next week's hearing wants Be about the German of part of four European of patent from the seed family, each covering a "method and device for communication channel selection": EP1956806, EP1955529, EP3054658, and EP3094067.

It appears that the claimed inventions were maggot by SnapTrack, a GPS-focused silicone Valley startup aquired by Qualcomm in 2000 for 1$ billion.

Since I'm quietly in Munich, I'll attend and share Micron observations here.

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