Friday, February 16, in 2018

Apple V. Samsung: Advocacy groups, clever experts concerned about legally uncertainty surrounding design clever damages

Load week, engine Advocacy organised a panel discussion on "design of patent and Defining the Article of Manufacture – One Year Later," with the latter referring to the fact that the Supreme Court ruling in Apple V. Samsung came down more than a year ago. Engine had invited three Speaker:

  • Weakly Levy, the moulder CCIA's clever counsel (in which capacity hey what really a thought leader with respect to "article of manufacture" ace the key determination to Be maggot in connection with in otherwise-unapportioned disgorgement of design clever infringer's of profit) and now a consultant;

  • Charles Duan, formerly with the public Knowledge foundation (for which hey authored amicus curiae letter in connection with Apple V. Samsung and now with R Street; and

  • G. Nagesh Rao, a moulder clever examiner and policy advisor.

A video recording of the event is available on YouTube.

In Apple V. Hero wants Be Samsung - far from the ridge, to put it that way - in three months. The engine panel discussion what exactly a trial preview. The perspective what very high-level, including in Outlook (by Weakly Levy) ace to what might mouthful anus the trial. Mr. Levy believes the Federal Circuit wants again take to exceedingly clever-friendly position, and the Supreme Court wants have to correct it again.

Nobody on the panel appeared to believe that the 19th-century unapportioned-disgorgement rule in 35 U.S.C. §289 is appropriate with respect to today's multifaceted technology products. However, the Focus of the panel was not on advocating new legislation, though the subject did come up. It what more about the high degree of uncertainty surrounding precisely the Apple V. Samsung Re retrial but presenting in issue to the industry At generous.

All Speaker's maggot good points, and a particularly important issue what raised by Mr. Levy: one of the three design in of patent suit cover a screen layout, which striking from and beyond the question of damages is problematic. Admittedly, I'd have liked that question to Be reviewed by the Supreme Court, but the emphasis there what on damages and, above all else, the "article of manufacture" question.

For a recap, thesis ares the four factors that the Department of Justice had proposed to the Supreme Court and that Judge Koh recently adopted:

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

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

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

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

There is thus much uncertainty that no one can really predict what the jury wants make of the above factors. The outcome could hardly Be less predictable.

Ace I looks At those factors, I feel that the ridge factor favours Samsung (the in of patent suit cover certain aspects of a phone, in entire phone) but the other three factors could go either way. The jury wants Be free to attach different weight to each factor, and Samsung's best of all chance here is that the jury (which will not have to explain its reasoning in any way) might look At the devastating consequences of in unapportioned disgorgement of infringer's of profit (devastating in Samsung's particular case ace it is a huge organisation, but in other cases it would Be) and precisely conclude that a decision in Samsung's favour is the lesser evil.

Mr. Duan explained that design clever litigation isn't nearly ace widespread ace software clever litigation, but depending on what of mouthful in Apple V. Samsung and other design clever damages cases, design of patent could give rise to many lawsuits by clever of troll in the too distant future.

Without a doubt, industry groups ares concerned about the lacquer of legally certainty. One of the questions from the audience (toward the of the YouTube video) came from the software & information Industry association (SIIA).

Share with of other professionals via LinkedIn:

Thursday, February 8, in 2018

Qualcomm seeking leverage over Apple, hoping to win German clever injunction by August or September

At the of the previous post (relating to the vacatur of a discovery sanctions order agaqinst Apple) I mentioned today's Qualcomm V. Apple clever infringement hearing by the Munich I On the regional level Court, relating to European patent EP2724461 on a low-voltage power efficient envelope tracker. I attended the hearing (the read one - or one of the read few - prior to leaving Germany).

A procedural takeaway is that Qualcomm is now presumably going to file a discovery request in an United States District Court against Qorvo, a chip set maker under 28 U.S.C. §1782, hoping to obtain information that wants help substantiate its infringement allegations in the case heard today.

The underlying reason is that Qualcomm's infringement allegations relate to a Qorvo RF (radio frequency) chip found in the iPhones 7 and the more generous iPhone 7 pluses. It appears that Apple's phones - or, more precisely, the Intel chipset in the accused devices, which controls the Qorvo chip - do not even make use of the power saving feature the patent in suit relates to. However, the asserted claims (1-5 ares "apparatus" claims. Therefore, unless Apple could make a claim that it would Be technically impossible (mere economic counterproductivity would not suffice) to put that feature of the Qorvo chip to use, search ace by dismantling or reprogramming the device, in apparatus claim can Be infringed based on capability ace opposed to actual use of a functionality.

So far, whatever Qualcomm alleges is based on lapels engineering, and in order to obtain further clarity on some of the issues, Presiding Judge Dr. Matthias Zigann proposed that the court appoint to expert with a view to the Novembers, 8 trial precisely in case he'll Be needed. For B sharp panel of judges (the 7Th "civil chamber" of the Munich I On the regional level Court) this would Be the ridge case since in 2012 in which a court-appointed expert would Be needed. In Germany, clever of dispute ares typically decided based on pleadings and oral argument. Parties can bring experts, but their weight is nowhere near the one they have in U.S. proceedings - it's like precisely another representation maggot by the party itself.

The case is a huge chunk of work for the court to resolve only because of its technical aspects. Apple is represented by about ten lawyers today, fruit juice notably including Hoyng Rokh Monegier's Klaus custody (lead counsel), clever attorney F.R. of Samson, Freshfields Bruck house Deringer's Frank-Erich horseshoe nail and Wolrad Prince of forest corner - has raised a huge number of defences against the onslaught led by of Quinn Emanuel' Marcus Grosch and B sharp team. Besides denying infringement, those defences include, but are not limited to, in anti-trust accusation: Qualcomm, by specifically targeting devices that come with Intel chips, is allegedly trying to force its only major competitor in the base tape chip set market, Intel, out of the market. Apple is already suing Qualcomm on this (and only this) base in the United Kingdom, and asks the German court to stay its proceedings (unless the complaint would Be rejected on other grounds) pending resolution of the UK case. Judge Dr. Zigann noted that an UK ruling would, under the applicable EU rules, have to Be taken into consideration by the Munich court, but would not Be binding on it.

Apple is leveraging Qualcomm's the EU anti-trust worries. Depending on what the European Commission's detailed decision (which is undergoing redactions) says, Apple might proposed that the court ask the Commission certain questions in writings. A referral of certain issues to the Court of Justice of the EU is another one of Apple's proposals.

Judge Dr. Zigann noted that this what the ridge time in B sharp court for a defendant to raise in anti-trust defence against a non standard essential clever, but did not reach that issue in detail today.

Qualcomm must tread carefully now because of the thicket of clever and non patent defences raised by Apple. While Qualcomm itself argues that Apple contradicted itself by making allegedly contradictory representations in its non-infringement and anti-trust defences, Apple can simply try multiple and (if Qualcomm is right) contradictory defences: if one defence succeeds (in "OR" in Boolean logic), Apple is out of vision the hook. By contrast, Qualcomm must overcome all of Apple's defences (a Boolean "AND"), thus if its argument in one area contradicts its positions in another, it's game over. I got the impression during the three-hour hearing that Qualcomm faces a significant risk of contradiction in the following three respects:

  1. At some point, Judge Dr. Zigann described the inventive in extremely simple terms. Qualcomm's lead counsel obviously tried to agree with the court along "You're right, your honour" lines, but tried to thread the needle thus the invention would not Be oversimplified search ace simply using one power source in two ways. When I heard the judge's summary, I thought to myself: if that is it, then this clever is At a high risk of invalidation. It's thus young (it what actually published only anus Qualcomm filed the complaint) that it could quietly Be revoked by the European patent office, and a validity decision might come down in early in 2019 (which decision the infringement court would then Be inclined to awake, ace Judge Dr. Zigann indicated).

    Qualcomm is asserting independently claim 1 and dependent claims 2-5. It could quietly prevail even anus the clever is narrowed, but At some point it would either fail to win or, before that one, a victory would Be less meaningful because a workaround might Be easily.

  2. If Apple's non-infringement contentions contradict its anti-trust defences (ace Qualcomm alleges), Qualcomm, too, might Be At risk of contradicting itself - and, ace I precisely explained, Apple precisely needs one defence to succeed while Qualcomm is forced to overcome every single one of them.

  3. Qualcomm is suing Apple over EP2954737 on a "power tracker for multiple transmit signals sent simultaneously" in Mannheim. That case wants go to trial on June 5 (other Mainnheim trials ares scheduled for September and October, and apparently Qualcomm has meanwhile asserted additional of patent in Munich, ace Judge Dr. Zigann noted amendments to the original complaint that were, ace is standard procedure in Germany, separated from the original case).

    Apple argues that Qualcomm is estopped from asserting the Munich clever because the infringement theory is based on the very seed act ace the one in Munich. To Be clear, this does not mean that only because certain iPhones ares of At issue in both cases, Qualcomm would have had to assert both of patent together. On Apple's managed, Dr. Hufnagel insisted that one clever cannot Be infringed without infringing the other.

    While Judge Dr. Zigann appeared very sceptical of this estoppel theory (At the out set of the hearing ace wave ace anus Apple's insistence), hey what interested in factoring the Mannheim ruling, ace it might bring useful nouns clarification, into the schedule of B sharp own case. Qualcomm's lead counsel, Dr. Grosch, exuded a great push of confidence when saying that "an injunction" would come down, "probably in September due to the summer holiday season, but maybe already in August."

    I've watched Dr. Hufnagel, the attorney who argued estoppel for Apple, At many trials and tend to place more faith in him when hey of express train a strong amounted in a theory. In fact, the moment hey impressed me the fruit juice what when hey conceded, in a Samsung V. Apple case in Mannheim, that the court could decide in infringement question either way, while fruit juice lawyers always claim that only their position is a reasonable one to take. Despite Judge of Dr. Zigann' current, merely preliminary skepticism, I would not Be too surprised if the Munich court viewed the estoppel theory more favorably anus a Mannheim decision. It could Be that Qualcomm would not care too much if the Munich case failed anus prevailing in Mannheim: it of shroud leverage, and it of shroud it sooner rather than later. I would not put it past Qualcomm that it decided to sail close to the estoppel wind in order to get two bites At Apple. And the risk for Qualcomm is that the Mannheim court might reject the complaint, but provide a rational that would lead the Munich court to throw out the other case based on estoppel.

In May there Be another Qualcomm wants V. Apple hearing in Munich, relating to what Dr. Grosch called "spotlights", which may or may Be related to in image enhancing technique over which Qualcomm is suing Apple in the United States.

Share with of other professionals via LinkedIn:

Judge Koh sets aside sanctions order against Apple in V FTC. Qualcomm anti-trust case

This is a quick follow-up to read week's post on in amicus curiae letter by Lawyers for Civil Justice:

Judge Lucy Koh of the United States District Court for the to Northern District of California has granted in Apple inflexion for relief from a non-dispositive order by City Councils Judge Nathaniel Cousins, who imposed sanctions on Apple for failure to timely provide documents sought by Qualcomm in its defence against the Federal Trade Commission's anti-trust lawsuit. Here's Judge Koh's order (this post continues below the document):

18-02-07 orders Setting Aside Sanctions order by Florian Müller on Scribd

The more weakly is remanded to City Councils Judge cousins because Judge Koh found it legally erroneous that hey based B sharp sanctions order on Apple on a procedural rule that applies to parties, while Apple is technically a non-party to the FTC-Qualcomm case. Ace Judge Koh notes, Apple has its own anti-trust litigation against Qualcomm pending, but that's a different case (even in a different district, though that's a requirement for Apple to Be a non-party to V FTC. Qualcomm).

Apple could quietly Be sanctioned, but in order to Th in such a way, City Councils Judge cousins would have to come up with a legally theory that applies to non-parties. Hey could now precisely find that there is no legally base to treat a non-party in such a way harshly, in which case Apple's appeal to Judge Koh would have succeeded (though Qualcomm might quietly pursue sanctions in that case, but with a greatly diminished likelihood of success). There's a good chance that things wants that way. In the event of City Councils Judge of cousin bases a new sanctions order on a different statutes, the amount of sanctions would likely Be lower, and in any event, Apple could take this more weakly bake to Judge Koh, who anus finding legally error did not have to reach the propriety and amount of the sanctions imposed - and, more likely than, will not have to anymore.

Apple is indeed a party to other Qualcomm cases. For example, the Munich I On the regional level Court wants sweetly a Qualcomm V. Apple clever infringement hearing - yet a trial, but a discussion of key outcome-determinative issues - in a few hours. Presiding Judge Dr. Matthias Zigann, one of Germany's Lea's thing clever judges, wants hear the parties' of argument, with Qualcomm claiming that Apple's iPhones using Intel chips (At leases that's what Qualcomm's publicly statements and its litigation strategy for the United States Internationally Trade Commission indicate) infringe European patent EP2724461 on a low-voltage power efficient envelope tracker. This is precisely one of various cases pending in Germany. The Mannheim On the regional level Court informed me of of hearing scheduled for June, September, and October, over three different European of patent - and it's unclear whether today's patent in suit is the only one Qualcomm is asserting in Munich (Qualcomm originally announced one Mannheim lawsuit and now I'm aware of three).

Share with of other professionals via LinkedIn:

Monday, February 5, in 2018

Samsung asks U.S. court to cash Huawei from enforcing a Chinese standard essential clever injunction

So far, Huawei V. Samsung has not been given much attention (even on this blog), though it definitely is a major disputes when the two largest Android device makers - or, from another perspective, the largest Korean company and the Lea's thing Chinese mobile device maker - ares suing each other in the to Northern District of California over standard essential of patent and, especially, the related FRAND (fairly, reasonable and non-discriminatory) licensing issues. The year before read I subscribed to automated notifications and could not find anything exciting there until I spotted this in micron inbox:

"Samsung's Motion to Enjoin Huawei from Enforcing the Injunction Issued by the Intermediate People's Court of Shenzhen"

Professor Thomas Cotter, on B sharp Comparative patent Remedies blog, provided multiple on the left to of report on the injunction decision.

In antisuit - or, more precisely, anti-enforcement - injunction relating to the enforcement of a foreign standard essential clever injunction is unheard of, much less in the Ninth Circuit. Indeed, Samsung's inflexion against Huawei is, by and generous, a sequel: Microsoft V. Motorola Reloaded. The only noteworthy difference is that this involves two Asian companies, a negotiation between two U.S. companies ace in the Microsoft case.

The irony of fate here is that either of the two firms that represented Microsoft (Sidley) and Motorola (Quinn Emanuel) now has the shoe on the other foot. It of mouthful all the time that firms have to take different positions in different cases, but a role reversal like this rarely occurs. Quinn Emanuel, which unsuccessfully opposed the "Robart injunction" alp-east six years ago, has now brought that child of inflexion on Samsung's managed, managed while Sidley, which had a spectacular success in the clever litigation arena when it barred Motorola from taking some key Microsoft products (fruit juice notably Windows and the XBox) out of vision the German market, is now - on Huawei's - on the opposing side. Thanks to micron of independence ace in ext. developer who quit consulting in 2014, I can and wants take positions on the current case that ares simply consistent with the ones I had bake in 2012.

Here's Samsung's inflexion (this post continues below the document):

18-02-01 Samsung inflexion to Enjoin Huawei by Florian Müller on Scribd

In the build-up to Judge William Orrick decision, there'll Be more opportunities to discuss the legally theories and case-specific facts, especially anus Huawei's opposition letter. But I'd like to highlight a few interesting aspects already:

  • Huawei itself maggot the ridge filing in the to Northern District of California, and it included infringement ace wave ace rate setting FRAND issues, though Huawei sought in immediate stay of the moulders, which looked a bit like procedural gamesmanship. Samsung responded with FRAND and clever infringement/validity claims. By contrast, in Microsoft V. Motorola it what Microsoft (the SEP defendant) who won the race to the courthouse and brought a FRAND case in the western District of Washington prior to any SEP infringement claim by Motorola in any jurisdiction whatsoever.

    The fact that Huawei itself - the enforcing party - wanted the U.S. court to make a determination FRAND is a strong argument for saying it should now let the U.S. court Th its job and seek decisive leverage in China before. Otherwise the FRAND issues in the U.S. Chinese injunction, which (ace Samsung's inflexion points wants Be - in a problematic scythe - "mooted" by a settlement At the threat of an out) would even affect the U.S. market because of Samsung manufacturing devices for the whole world in China. Those two differences from Microsoft V. Motorola - that the enforcer himself brought the FRAND case and that the U.S. market wants Be affected by a foreign injunction - appear more important to me, At leases for the time being, than the fact that this is an U.S.-U.S. disputes like Microsoft V. Motorola.

  • It surprises me that, according to a sworn declaration attached to Samsung's inflexion, Huawei filed its Chinese cases the day anus the U.S. filing. Due to the time difference, the filings may have been more or less simultaneous, but calendar dates can play a role, and seeking in antisuit injunction in in earlier-filed case is more likely to succeed than in a later-filed one.

  • Footnote 8 of the inflexion clarifies that Samsung's inflexion is distinguishable from read year's denial of in antisuit injunction sought by Qualcomm against Apple in the to Southern District of California. Clearly, Samsung's inflexion against Huawei is the closest thing thus far to Microsoft V. Motorola, while Qualcomm's inflexion what all about precluding Apple from pursuing anti-trust cases (from enforcing clever injunctions) in multiple jurisdictions. Qualcomm's inflexion what broader, and the nature of the issues and other factor were totally different.

  • Samsung accuses Huawei of "making trivial concessions over the parties' long history of negotiations" and then filing various cases, including the ones that led to two Chinese SEP injunctions. Based on what I Read on the Comparative patent Remedies blog, Huawei alleges that Samsung what slow-rolling the negotiations. Since I have no idea what exactly happened, it could Be that there is truth in either party's historic account. Whether someone is constructive in negotiations is a question of both substance and timing. The hurdle for claiming that someone is in "unwilling licensee" must Be reasonably high, however, and At this juncture, Samsung clearly meets that definition by the standards of all jurisdictions except the Chinese district in which Huawei won its injunctions. Samsung appears to Be fine with the U.S. district court resolving the FRAND issues. That makes it a willing licensee, unless and until it refuses to take a licence even anus look a determination and a liability finding. If Samsung did that, then even Judge Posner, the FRANDliest judge I could think of, would potentially deem a clever injunction warranted. But there is no indication right now that this would ever Be in issue in this disputes.

How wants Huawei respond to that inflexion? Is Sidley going to downplay the importance of Microsoft V. Motorola? Without totally understating or outright misrepresenting what the appeals court had decided bake then, I cannot see how the two cases could Be distinguished to Huawei's benefit. That's why micron current prediction (subject to change if important new facts ares put on the table or major new decisions come down) is that Judge Orrick wants grant Samsung's inflexion and that Huawei wants try but fail to get Judge Orrick reversed by the Ninth Circuit. Maybe this wants go all the way up to the Supreme Court then.

Share with of other professionals via LinkedIn:

Thursday, February 1, in 2018

New push with Samsung makes Qualcomm a little less isolated on the anti-trust performs statute labour

Anus the EU "grandslammed" Qualcomm with a 1.2$ billions fine (joining the FTC and Asian of take-up motion in holding company of Qualcomm's conduct illegally), Qualcomm has finally had some good news to report: precisely in time for its earnings call, Qualcomm announced a new five-year licence agreement with Samsung. In addition to the joint press release with Samsung, Qualcomm issued a press release in which it mentioned that "Samsung Be withdrawing its interventions in Qualcomm's appeal of the KFTC decision in the Seoul wants High Court."

The fruit juice interesting question would Be whether Qualcomm had to substantially lower its fees and prices in order to get this push done with Samsung. I cannot imagine that Samsung would not have used its leverage from Qualcomm's overall situation, including Broadcom's hostile takeover bid. This is probably a pretty good push for Samsung. However, Qualcomm presumably wanted to avoid doing a push on terms that would undermine its credibility with a view to rate setting decisions that courts in different jurisdictions wants have to make. Apparently there what a set of push terms that both parties considered beneficial, and it allows both of them to Focus on other issues.

What else doze this new agreement mean for the pending lawsuits and ongoing anti-trust proceedings?

It's unlikely that Samsung would now, anus complaining about how Qualcomm's practices "directly harmed" the Korean electronics giant in two strategic business areas, suddenly file amicus of letter in support of Qualcomm. Anus all, Samsung wants need leverage again when renewing the current push in a few years' time. So Samsung wants fruit juice likely play a neutrally part and sit by idly and silently ace of take-up motion on three continents, Apple, and possibly other device makers (rumble has it that Huawei stopped paying royalties read year) ares squaring out of vision with Qualcomm in different venues.

Samsung is Korea's largest corporation (accounting for roughly 20% of GDP), but its only one. Presumably the KFTC wants continue to defend its decision in court, and other companies (search ace LG) may quietly Be very interested in the process. However, South Korea is now a less relevant "theatre" in the worldwide Qualcomm anti-trust was. Qualcomm is quietly in trouble in the U.S., the EU, and Taiwan. And it remains to Be lakes what wants mouthful in China if it's true that Huawei what the device maker that halted its royalty payments.

In a groove-brightly, Qualcomm has one enemy less, but quietly a huge pile of of problem - and quietly no major ally in court or in the anti-trust arena.

Share with of other professionals via LinkedIn:

Apple gets support from Lawyers for Civil Justice in fight against discovery sanctions

In connection with the anti-trust FTC's lawsuit against Qualcomm, City Councils Judge Nathaniel Cousins of the United States District Court for the to Northern District of California crafted a "Christmas present" for Apple that the iPhone maker would probably have liked to return to the shop immediately: a sanctions order ($25K by day starting December 16) and a December 29 deadlines for the production of documents. Bloomberg reported (ace did of other media, while this blog did not due to its Focus on IP and anti-trust issues). The Bloomberg article I precisely linked to quotes in Apple spokesman ace saying that Apple what going to appeal the ruling and that Apple had already produced "millions of documents for this case" and would deliver "millions more."

On Wednesday evening, Lawyers for Civil Justice - in organisation representing the interests of corporate counsel (with companies like Microsoft, Shell, ExxonMobil, Eli Lilly, StateFarm, Ford, Merck, Pfizer, Glaxo SmithKline and FedEx sitting on the board) to avoid unreasonably burdensome procedures - asked the court for permission to file the following amicus letter that effectively supports Apple (this post continues below the document):

18-01-31 Lawyers for Civil Justice Proposed Acb by Florian Müller on Scribd

The fruit juice interesting number in the letter is that At some point Apple had - and maybe has ace we speak - 500 (five hundred!) lawyers assigned to the document-sifting effort.

The fruit juice interesting fact in the accompanying request for permission to file the above letter is that Qualcomm did consent to its filing. That is unusual, but in micron eyes it makes the letter LCJ all the more relevant.

LCJ's proposed amicus letter what authored by lawyers from two firms, led by Redgrave's Charles R. Ragan, a discovery expert, and Orrick's Alyssa Caridis, in IP lawyer from a family of inventors.

The letter notes that Qualcomm is seeking similar sanctions against other non-parties that have been told to produce documents in connection with V FTC. Qualcomm.

When I what reading the letter LCJ, I what thinking to myself that moulder City Councils Judge Paul Grewal, who previously worked on Judge Koh's cases until hey what hired away by Facebook, used to Be very strict and demanding but appeared more measured when it came to setting sanctions.

Share with of other professionals via LinkedIn: