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Forced Exposure ~pj
Tuesday, August 20 2013 @ 02:40 AM EDT

The owner of Lavabit tells us that he's stopped using email and if we knew what he knew, we'd stop too.

There is no way to do Groklaw without email. Therein lies the conundrum.

What to do?

read more (2725 words)   View Printable Version

Apple v. Samsung I: Case Management Statement, Hearing Aug. 21 ~pj Updated
Thursday, August 15 2013 @ 01:34 PM EDT

There will be a hearing in Apple v. Samsung I in Judge Lucy Koh's courtroom, Courtroom 8 on the 4th floor, on August 21 at 2:00 PM, so if any of you stalwarts can attend, that would be fabulous. You don't even have to wake up early.

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What's it about? Didn't they just have a case management hearing in April? Why yes. Yes, they did, but there have been "progress and changes" since, according to the parties' Joint Case Management Statement [PDF], which fills us in on the details. Both parties would like some changes since the last case management hearing. Here's the last joint case management statement, back in April. And the judge's order on April 30 was to go forward immediately with the damages trial, unless certain things happened in the USPTO reexaminations of Apple's patents at issue. Some of those things have almost happened, and there are other quirks, so some changes are being requested.

The real core issue is Samsung's '381 motion, asking for a new trial on Apple's '381 patent based on newly discovered evidence or for entry of judgment on liability. Apple Opposes with a capital O. It now wants another chance to file a sur-reply [PDF], which Samsung opposes [PDF], claiming that "Apple identifies no 'new' arguments Samsung raised in its reply that were not responsive to arguments in Apple’s opposition." The parties have been told that this motion wasn't on the calendar yet, but that they should be prepared to argue it on August 21. There is also the fact that the USPTO has found all relevant claims in the '915 patent invalid in a final office action. There can be more to come on that, but how does it impact the damages trial is the question?

And that is why we really should be there to hear it, if any of you can arrange your affairs to get there and be our eyes and ears. Samsung is telling the court that "Apple is attempting to 'sandbag' Samsung and obtain an unfair tactical advantage" by various proposals on how to go forward and by refusing to seriously meet and confer with Samsung. For example, Apple wants the judge to restrict the parties to the same exhibits used at the first trial. But that's not really fair in Samsung's eyes, because since that first trial, Apple has said things to the USPTO that conflict with what they said about the '381 and '915 patents at that trial:

Samsung does not believe the Court should limit the parties to the same exhibits disclosed prior to the first trial. For example, Apple has made numerous admissions to the USPTO subsequent to the first trial that directly contradict its arguments concerning the scope of the ’381 and ’915 patents. Apple should not be permitted to tell the Patent Office one thing and the new jury another. Samsung should be able to put this new evidence before the jury. Doing so would raise no issues concerning inconsistent appellate records because liability issues are not being retried and this damages trial will have its own separate record. Rather, the trial should be held based on an evidentiary record as it exists at the time of the new trial.
If you can go, email me please and I'll tell you more.

[Update: We still need a volunteer.]

read more (5076 words) 961 comments  View Printable Version
Most Recent Post: 08/29 01:22PM by Anonymous

Judge Robart Rules in MS v. Motorola: Seeking an Injunction on a FRAND Patent Can Be Perfectly Proper ~pj Updated - As text.
Tuesday, August 13 2013 @ 11:25 AM EDT

Judge James L. Robart has now ruled [PDF, 38 pages] on Microsoft and Motorola's summary judgment motions, granting in part and denying in part.

He has ruled that seeking an injunction over a FRAND patent can be proper and is not necessarily a breach of the FRAND commitment:

Additionally, as explained above, material issues of fact exist regarding whether the October offer letters violated the duty of good faith. In addition to the rate contained in the offer letters, the jury will consider language of the letters, the circumstances surrounding the letters, the industry custom and practice, and Motorola’s intent in sending the letters. Motorola has presented evidence that the letters were sent in good faith, and the jury will make the final determination....

As discussed above, in certain circumstances seeking injunctive relief may constitute a breach of the RAND commitment, whereas in other circumstances such conduct may be proper. The timing of when a party seeks injunctive relief in a separate forum relative to a pending action is germane to whether that party acted in bad faith in seeking such relief. In other words, it may very well be the case that seeking injunctive relief absent a pending lawsuit is good faith, whereas seeking the same relief during the pendency of litigation over a RAND rate is bad faith.

So it's up to the jury. He has, therefore, denied Microsoft's motion asking him to rule that Motorola violated its duty of good faith, because, he says, "there are numerous disputed issues of material fact precluding summary judgment on Microsoft’s claim that Motorola violated its good faith duty." So it has to go to a jury. What does it mean? It means that the Microsoft/Apple attempt to get courts to rule that FRAND patent owners can't ever seek injunctions has failed. This court was Microsoft's best chance to win on that, and it lost.

read more (12833 words) 318 comments  View Printable Version
Most Recent Post: 08/20 01:30PM by Anonymous

First 104 pages of Aaron Swartz Secret Service File Released - Who is the female on page 97? ~pj
Monday, August 12 2013 @ 06:49 PM EDT

Kevin Poulsen at Wired reports that the first 104 pages of Aaron Swartz's Secret Service files are available now, with a lot more to come, as a result of court ordered release. There are apparently 14,500 more pages to come.

Look at page 97. It's redacted so the identity of the woman is kept confidential, but it appears from the notation that a woman was in contact with authorities and informing them of conversations between her and Swartz.

read more (421 words) 74 comments  View Printable Version
Most Recent Post: 08/16 05:06PM by Anonymous

Reports from the Apple v. Samsung Appeal Hearing ~pj - Updated 8Xs - Audio
Friday, August 09 2013 @ 03:38 PM EDT

Today was the day Apple's appeal of Judge Lucy Koh's refusal to issue an injunction against Samsung was scheduled at the US Court of Appeals for the Federal Circuit in Washington, DC. And Groklaw had two volunteers there. The first report is in, and we expect Webster to send in his report next. Groklaw's RFD has the framework of how it went, but he confesses he couldn't predict the outcome.

read more (5422 words) 287 comments  View Printable Version
Most Recent Post: 08/21 11:23PM by Anonymous

Motorola Presses Its Case v. Microsoft's FRAND Attack in Seattle and in Germany ~pj
Friday, August 09 2013 @ 07:09 AM EDT

Things are getting interesting in Seattle in the FRAND case between Microsoft and Motorola. At the hearing the other day, our reporters mentioned that the judge had asked for cases to support Motorola's position that the time frame to consider Motorola's good faith in making its initial offer was back when it happened:
Judge asks when duty of good faith bargaining begins and ends. Motorola says it is ongoing. But each breach complaint is pinned to a specific date -- not tied to the progress of the litigations. Mentions FTC order re Google acquisition of Motorola. FTC did not say that *prior* injunctive relief requests had to be dropped.
And our second report added this:
The German action was filed July 2011, MS didn't say they would accept a RAND offer until Sept 2011, and as such breach can't be a moving target. MS is stuck with the facts at the time of the complaint. Robart seemed skeptical of this, "Do you have authority for that?" answer about getting back with more briefing "I think you're wrong, but I'll be happy to read your brief." Sullivan says they have an ongoing duty, but a new breach action would be required, and the litigation in this case can't be included in this current breach action.
So this is about the German action, which Microsoft claims caused it financial damages it would like to recoup, and I'll tell you more about that, because Microsoft is very upset about it all. Motorola has followed up [PDF] with two cases, and Microsoft has provided an excerpt [PDF] from the Daubert hearing that we didn't attend the day before, so that's nice to have.

On Microsoft's side, it naturally immediately filed the USTR's letter [PDF] blocking the injunction against Apple by Samsung, although its cover letter is misleading as to what the USTR said. You knew they would do that. And they are in quite a tizzy [PDF] over the fact that Motorola continues to proceed in the German case, where it already got an injunction against Microsoft, which this Seattle judge purports to have the authority to block. However, Microsoft had already made a financial offer of royalties to Motorola in that case, and Motorola, to Microsoft's horror, accepted them. The rate is higher than what this Seattle judge set, so Microsoft has smoke coming out of its ears about how unfair it is that Motorola accepted its original offer. So Microsoft is asking [PDF] the court to "to renew and expand its anti-suit injunction to curtail Motorola’s ongoing efforts in Germany to undercut the jurisdiction of this Court and to attempt to procure inconsistent rulings."

As for the judge, he's maybe starting to realize that some of his assumptions about FRAND requirements conflict with what the experts are now telling him. He expresses a measure of confusion about it in an order [PDF] on what the experts for both sides can tell the jury. Here's what he won't allow Motorola's experts to tell them: that being willing to negotiate is sufficient to meet a FRAND obligation. That contradicts what this judge has already ruled in this crazy case, so he doesn't like that, I suppose. The "reason" they can't say that to the jury is, he says, because he gets to decide what is or isn't a fulfillment of a RAND obligation, in that he's Da Law on Microsoft's obligations under Washington state law which he believes the world must go along with, Germany included. Experts can't opine on legal conclusions. However, Motorola has now informed him via this route that he's been getting some things seriously wrong on what FRAND obligations are and what good faith requires. Perhaps it will influence him. He says that the Motorola experts can input how the jury instructions read. I wouldn't put much faith in that if I were Motorola, and I gather they don't. This German prong is getting interesting, I must say.

read more (6929 words) 65 comments  View Printable Version
Most Recent Post: 08/13 02:13PM by Anonymous

Apple, Motorola, ITC - Federal Circuit Remands - The Beat Goes On ~pj
Wednesday, August 07 2013 @ 05:28 PM EDT

The Federal Circuit has just ruled in Apple's appeal of a final ruling of the ITC, which had ruled in Motorola's favor, overturning the ITC in part and remanding the case:
Apple appeals from the final decision of the International Trade Commission (ITC) that the asserted claims of U.S. Patent No. 7,663,607 (’607 patent) are invalid and that Motorola does not infringe the asserted claims of U.S. Patent No. 7,812,828 (’828 patent). Apple challenges the ITC’s claim construction and its determinations of obviousness, anticipation, and noninfringement. For the following reasons, we affirm-in-part, reverse-in-part, and vacate-in-part the ITC’s decision and remand for further proceedings.
So the ugly dance continues. Apple started the show in this particular tent of the overall smartphone patent wars circus, suing Motorola at the ITC for infringement of various claims of Apple's ’607 and ’828 patents, which are about touchscreens and multi-touch. The ITC found that Motorola didn't do what the claims cover, and Apple appealed. As you know, the Federal Circuit never saw a patent it didn't love, or at least rarely do they, and in their opinion, the ITC didn't correctly throw out certain prior art or come up with the correct construction of another patent, blah blah, and under the new Federal Circuit definitions and guidance, Motorola might infringe, so back it has to go to the ITC to reconsider the Federal Circuit's way:
We remand so the ITC can consider that evidence in conjunc- tion with the evidence of secondary considerations and determine in the first instance whether claim 10 would have been obvious to one of skill in the art at the time of the invention....

We thus vacate the ITC’s decision that Motorola does not infringe the ’828 patent claims and remand the case to allow the ITC to consider in the first instance whether the accused products infringe under the correct construction of “mathematically fitting an ellipse.”

So back it goes. If you want to know what is going wrong in patent law, just read this ruling. Seriously.

read more (622 words) 126 comments  View Printable Version
Most Recent Post: 08/14 12:53PM by Anonymous

Apple's ITC Presidential Pardon v. The ITC's Opinion ~pj - Updated 2Xs
Tuesday, August 06 2013 @ 03:21 PM EDT

Samsung had already appealed [PDF] the portion of the ITC Opinion that denied it relief against Apple regarding the mainly non-FRAND patents the ITC ruled Apple did not infringe, and in connection with that appeal, we find the complete public version of the ITC Opinion [PDF] that the President just overruled attached as an exhibit. It's long, 162 pages because there is an appendix bundled in that same PDF, but I want to show you a few excerpts from the opinion that I hope will demonstrate to you, as they do me, that Apple's pardon was not based on Apple being the good guy in this picture. The ITC found otherwise on the facts in the record. In fact, the ITC specifically states in the opinion that Apple failed to prove that Samsung had violated any FRAND obligation.

The pardon, therefore, couldn't have been due to concern about patent hold-up, as was stated [PDF], since the ITC specifically found that Samsung had negotiated with Apple in good faith, had already licensed the '348 patent to over 30 companies, and that it was, in fact, Apple that illustrated the danger of reverse hold-up. Further, the opinion stated, Apple not only failed to prove that Samsung violated any FRAND obligation, it failed to establish even what they are. Further, Apple conceded in its ITC briefing that FRAND patent holders are not barred from seeking injunctions, and in fact since Apple argued to the ITC that the '348 patent was not really essential, this would mean that Samsung had no FRAND obligations, due to the wording of the ETSI terms.

So, it was a bit like the papal special dispensations of history, where the law said X, but you are let off the hook from having to keep it. That makes Apple's reported public response particularly offensive, when it said, "Samsung was wrong to abuse the patent system in this way." Samsung didn't abuse the patent system. It was, as you will see, exactly the opposite, according to the ITC Opinion. And while the President can do whatever he wishes regarding public policy, the ITC followed the statute, since it has no policy powers. In short, one unavoidably must conclude that if Samsung had been the US company and Apple the Korean one, there would have been no pardon. That's the bottom line, I'm afraid. As Jamie Love tweeted, "What Froman and USTR will now have to explain is why India and other countries can't also consider public interest in patent cases." As I'll show you, one of the things the ITC considered was public comments warning that changing the terms for FRAND patent owners would make sweeping changes to trade laws, and Korea has already registered its concerns. I'm all for reforming the patent system, as you know, but if you want to reform it, how about making it *more* fair, not less? Playing favorites based on country of origin doesn't aim for that noble goal. It's indisputable that this has harmed Samsung, and since the ITC, which examined the facts in detail, found it was the innocent party in this picture, what can be the justification for Apple's comment?

read more (3179 words) 240 comments  View Printable Version
Most Recent Post: 08/14 06:17PM by Boundless

Six Pro-Viacom Amicus Briefs Filed in the 2nd Appeal in Viacom v. YouTube - Yup. Hollywood Still Wants to Control the Internet
Saturday, August 03 2013 @ 05:39 PM EDT

There aren't as many amicus briefs in this second Viacom appeal as there were in the first, less than half, but there are six die-hards supporting Viacom's second appeal who have just filed their amicus briefs in Viacom v. YouTube-Google. They don't understand the Internet. They hate the DMCA's Safe Harbor provision, and they have learned absolutely nothing from history or from the rulings in this case so far. For example, here's the Copyright Alliance cynically predicting the end of the world if the appeals court doesn't overturn the district court judge's ruling for YouTube:
If the court upholds this decision, the burden of ensuring a safe and legal Internet ecosystem will shift almost exclusively onto the shoulders of authors, practically absolving other stakeholders from being in any way responsible for the activities that occur on their websites.
That is, I'm sorry to say, not true. There is no shifting *on* to the shoulders of authors, because the Safe Harbor provision in the DMCA *already* puts responsibility on authors to identify their own works if they think they are being infringed. That's what cease and desist letters are for. And after you send one, the entity you sent it to has responsibilities indeed, a responsibility to act. The only shifting in this picture is folks like the Copyright Alliance trying to shift that burden of identifying infringement onto Google instead. Because Google has lots of money, right? They're smart, right? Why can't they have to come up with something that won't cost authors anything or make them lift a finger to protect their own works?

This group has learned nothing at all about the Internet. All they want is that they want it to stop being the way it is. The Internet is allegedly killing them. The DMCA is giving YouTube a free ride, to hear them tell it, and the lower court judge, they argue, misinterpreted it. Back in the '80s, it was Sony allegedly destroying copyright with their wicked anti-copyright VCRs that let home users video films and tv shows. Now it's the Internet and Google and YouTube allegedly stealing money out of the mouths of starving artists. The arguments are the same.

But do they suffer from amnesia? One amicus brief states clearly that the majority of money Hollywood makes from movies is from sales of things like DVDs after the theater release. The very thing they told the court back in the days of the Sony Betamax case would destroy them turned out to be what kept them in business. They lacked vision back then, and they still do. But can't they compare and notice how wrong they were back then and extrapolate?

It's actually worse. It's greed. They want to make the Internet the new goldmine, as you can see in this telling quote from the amicus brief [PDF] by the American Federation of Musicians et al:

The motion picture and television industry's financial models and well-being, and that of the employees represented by the Guilds and Unions, heavily rely on "downstream" revenue, or revenue from the exploitation of its products subsequent to the theatrical release or first television run.5This was never truer than it is today — 75% of a typical motion picture's revenues derive from exploitation after the initial theatrical release, as do more than 50% of a television program's revenues after the initial television run. Internet exhibition and distribution, in particular, is one area of potential downstream revenue that is continuing to develop, evolve and expand as technology advances.
They want their business model to stay the same and just squeeze the Internet into it until it screams and dies, morphed into a money machine for them, while you and I can do without the real Internet, because it's too free-wheeling for their business model. What do they care about technical progress? This is about money, honey. If every other use of the Internet dies because of their bull-in-a-china-shop ways, what do they care? They never grokked the Internet anyhow.

read more (5909 words) 333 comments  View Printable Version
Most Recent Post: 08/09 02:20AM by Anonymous

Report from the Microsoft v. Motorola Hearing in Seattle ~pj Updated
Wednesday, July 31 2013 @ 10:24 PM EDT

There was a hearing today in US District Court Seattle before the Hon. James L. Robart, the presiding judge in Microsoft v. Motorola. We had two volunteers there, and I have our first report for you.

This was the hearing on their RAND dispute building up to the second part of the trial in this litigation which is set to begin on August 26th, and, as is typical before a trial, both sides brought motions for summary judgment or partial summary judgment. There was a trial already, part one, with the judge only, no jury, and he set a RAND rate Microsoft should pay to Motorola, a very low rate. But there is a second trial coming up in August, this time with a jury, on whether or not Motorola breached its RAND obligations, which is what Microsoft claims, and if so, whether Microsoft should receive damages and attorneys fees. Motorola filed a motion for partial summary judgment [PDF] on those issues. Here's Microsoft's opposition [PDF].

Microsoft also filed its motion [PDF] asking for partial summary judgment on breach of contract and summary judgment on Motorola's 3rd, 4th, 5th, 7th, 8th and 9th affirmative defenses and its second counterclaim. You can read about the affirmative defenses and counterclaim beginning on page 21. And this is Motorola's response in opposition to Microsoft's motion.

That's the long version of what was the subject matter at the hearing, or the starting point. But here's the simple overview. Microsoft is claiming Motorola asked for too high a royalty in its opening offer of its RAND patents and that seeking an injunction for a RAND patent is a breach of contract; and Motorola claims Microsoft sucker punched them by asking for an offer and when it got one, immediately suing instead of negotiating an agreed-upon price. The judge also asked the parties to brief a separate question on what are the proper responsibilities with respect to RAND patents. What do "good faith" and "fair dealing" mean in that context? Here's where you can find both sides' briefs as text, Microsoft's and Motorola's [PDFs], and many of the points in those briefs were touched on in the hearing today.

read more (5976 words) 218 comments  View Printable Version
Most Recent Post: 08/06 09:27PM by Anonymous


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  • FRAND licensing, chip suppliers, and interplay of patent exhaustion/defensive suspension clauses
    As to what is addressed in Motorola’s letter, there are three particular issues: (1) the applicability of patent exhaustion; (2) the ability of Motorola to require a “defensive suspension” clause in a license with Marvell; and (3) Microsoft’s standing to allege a RAND breach based on Motorola’s course of dealing with Marvell.

    Motorola does not appear to take issue with Microsoft’s claim that Marvell’s chips “substantially embody” its 802.11-essential patents, instead arguing that the scope of a hypothetical RAND license between Motorola and Marvell might be of a different geographic or territorial scope than a license between Motorola and Microsoft — therefore, not all of Marvell’s chip sales to Microsoft would be “authorized” under a hypothetical Motorola-Marvell license, rendering patent exhaustion inapplicable. Further along those lines, Motorola argues that RAND commitments do not preclude it from including a defensive suspension provision or other restrictions that would render any Marvell sales to Microsoft as “unauthorized” (presumably, because Microsoft “fired the first shot” in the parties’ overall dispute by filing ITC and district court infringement actions). Motorola claims that these provisions are common in both RAND and non-RAND licensing, even citing a Microsoft document and asserting that Microsoft itself has acknowledged the permissibility of including these restrictions.

    Finally, Motorola argues that there is no basis for Microsoft to argue that an SEP holder’s RAND commitment entitles an implementer (Microsoft) to a license from a supplier (Marvell) via the supplier’s license agreement with the SEP holder (Motorola). Motorola claims that if Marvell believes Motorola has violated its RAND commitment to Marvell, then Marvell should have to bring that claims — and that Microsoft lacks standing to do so. - Matt Rizzolo, The Essential Patent Blog

  • David Miranda detention: a betrayal of trust and principle
    The detention of Mr Miranda subverts the benefit of the doubt that liberal democracies ask for when they arm themselves against terrorism. States pass anti-terror laws that grant exceptional powers on the strict understanding that terror poses exceptional threats and that such powers will be used proportionately. The Miranda detention betrays that understanding, since it does not involve terrorism in any way. Democratic leaders have likewise claimed to recognise the legitimacy of a public debate about the proportionate nature of the state's weaponry against terrorism. This case suggests the state takes us for fools.

    Because of schedule 7's troubling history, parliament already has both a chance and a responsibility to prove otherwise. Schedule 7 should be radically tightened, so that exceptional powers are applied only in genuinely exceptional terror-related cases. Detentions should require reasonable suspicion. Confiscated materials should be returned quickly, where no charge is brought or national security involved, as fingerprints and DNA samples now are. Access to a lawyer should be allowed. If parliament rises to the occasion, perhaps some good may have come from what is otherwise a disgraceful episode of state harassment of independent journalism and free citizens. - Editorial, The Guardian

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