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Google, Red Hat, HTC, SAP and Rackspace Seek to File Amicus in Apple v. Samsung Appeal ~ pj
Thursday, May 09 2013 @ 09:47 AM EDT

Google, Red Hat, HTC, SAP America, and Rackspace have asked leave of the Federal Circuit Court of Appeals to file an amicus brief [PDF] in the Apple v. Samsung appeal. That's on the first case., the one Samsung lost but has been whittling down a bit in post-trial motions. Here's the issue they'd like to address:
Amici are all innovative technology companies that develop and provide a variety of products and services that, like the mobile devices at issue in this appeal, incorporate a wide array of features. As such, an issue presented in this appeal – whether a court may enjoin the sale of innovative and technologically complex products based on the incorporation of trivial patented features without evidence that the accused features drive sales of the products – is a matter of great concern to amici.
Apple opposes [PDF]:
The lead party on the brief, Google, Inc., admittedly has a direct interest in the outcome of this appeal. As the motion explains (ECF No. 55 at 4; ECF No. 60 at 4), Google is the developer of the Android operating system running on the Samsung smartphones that Apple seeks to enjoin in this case. That interest conflicts with the traditional role of an amicus as “an impartial friend of the court—not an adversary party in interest in the litigation.” United States v. Michigan, 940 F.2d 143, 165 (6th Cir. 1991) (emphasis in original).
Even if they win, they still lose, though, because there are several others seeking to file the same material, and they are not by any stretch of imagination parties in interest. Except for HTC, none of the rest of the proposed filers is even in the mobile phone marketplace.

Nokia has filed its amicus brief [PDF], after getting permission, which takes the opposite tack. It wants there to be no causal nexus requirement to get a permanent injunction:
By requiring a patent holder to establish an additional evidentiary burden, namely a “causal nexus” between the patented feature and the source of consumer demand for a competing product, before it may obtain a permanent injunction against an infringing competitor, the district court imposed an overly-strict and undue burden on the patent holder and invented new law out of whole cloth, which threatens to turn the traditional purpose of patent law on its head.
Even if true, many of us wish someone *would* turn patent law on its head and shake out the money incentive to be evil out of its pockets.

Oh, and please stop issuing software patents, as they have resulted in such a knot in the shoe of software development, no one can figure out what to do about it. I'll tell you. Figure out what software is -- mathematics -- and then declare what is true, that it's unpatentable subject matter. Poof. Problem solved. New Zealand sees that, even if it were legal, it doesn't promote innovation to allow patents on software. Rather the opposite:

While not unanimous, there is strong consensus from the industry against software patents. "In a recent poll of over 1000 New Zealand IT Professionals across the sector, around 94% of those with a view wanted to see software patents gone," Matthews said. Separately, a petition launched by the industry against software patents received over 1,000 signatures in under a week.

"The patent system doesn't work for software. We believe it's near impossible for software to be developed without breaching some of the hundreds of thousands of software patents awarded around the world, often for 'obvious' work," Matthews said. "Thus many software companies in New Zealand, creating outstanding and innovative software, live with a constant risk that their entire business could be threatened due to litigious action by a patent holder."

Ian McCrae, chief executive of New Zealand's largest software exporter Orion Health agreed, saying today "We welcome this announcement. Under the current regime, obvious things are getting patented. You might see a logical enhancement to your software, but you can't do it because someone else has a patent. In general, software patents are counter-productive, often used obstructively and get in the way of innovation. We are a software company and as such, our best protection is to innovate and innovate fast."

New Zealand would like to avoid the mess the US patent system finds itself in. Unfortunately, the new supplemental bill leaves a loophole, which they will no doubt discover over time:
10A Computer programs

(1)A computer program is not an invention and not a manner of manufacture for the purposes of this Act.

(2)Subsection (1) prevents anything from being an invention or a manner of manufacture for the purposes of this Act only to the extent that a claim in a patent or an application relates to a computer program as such.

(3)A claim in a patent or an application relates to a computer program as such if the actual contribution made by the alleged invention lies solely in it being a computer program.

It's the "as such" that will eventually allow clever types to slowly sink the ship, as it is in the UK and EU, but at least it will take longer.

Red Hat CEO agrees that software patents are a mess, but the problem he sees which works against a solution is the pharmaceutical industry:

Whitehurst: I think I speak for the entire software industry that software patents are a bad thing. The entire software industry has been aggressively promoting a position that says software shouldn't be patentable. It gets tied up with, obviously, the pharmaceutical industry, which believes patents are necessary to drive innovation in pharmaceuticals, and it continues to go around and around and we make some progress here and there. Hopefully it gets solved someday, but I don't think we're close to it.
I love Red Hat, but I disagree. I don't think that's putting the X on the right part of the map. Is there any good reason why drugs and software need to be treated identically? And is software an important factor in drug patents? What holds things back from a true solution is what one might call "The Patent Industry" -- which includes software and smartphone vendors, who are listening to the sound of ka-ching in their dreams of market dominance -- or at least a form of survival -- from proprietary software and products and services. Like, um, Nokia. And its partner, Microsoft.

But... but... I hear some say, what about the loss of money invested in those US patents, the ones already issued? Well, not to be harsh, but if you've been making money illegally, it's hard to listen to complaints about a "loss". Call it rather an unearned windfall you enjoyed improperly for a while that never should have happened. At least you get to keep the ill-gotten gains.

Here's Nokia's concern:

Moreover, requiring strict proof of such a “causal nexus” in order to obtain a permanent injunction against direct competitors may result in a compulsory-licensing regime, where holders of otherwise differentiating patented inventions (having essentially no injunctive recourse) are effectively forced to grant licenses to their competitors, thereby undermining traditional incentives to innovate.
As you know, Nokia recently announced to the IETC that it would not license patents it claims are necessary to Google's open VP8 format. And now it reveals in this filing it also wishes to be able to get easy injunctions to shut others out of the market. Would you call that an incentive to innovate? Is Google being incentivised to innovate, or to give up and leave the field, would you say?

What a role Nokia chose to play when it entered into that deal with Microsoft. It reminds me of the devilish deal Microsoft got Novell to sign, whereby Novell was secretly paid to attend OOXML standards meetings, back when Microsoft was trying to get it approved as a "standard". The once-secret work agreement included Novell working to create "interoperability" which would "skip over unknown Microsoft Office 2010-specific content" and so many other disturbing things.

Today, Nokia announced it's offering some phones with the Asha operating system software, software it got by buying up Smarterphone in 2012. The software makes feature phone look more like real smartphones. Nokia could have used the free Android operating system, of course, without having to buy any company, and offer the lower-end market a cheap but real smartphone, but nooooo. I hope some regulator somewhere is reading the Nokia/Microsoft agreement to see if Nokia had to promise to never use Linux in any phone, even if it made business sense for the company.

If you can buy a Nokia phone after reading this filing, please see your doctor right away. Your brain may be missing some marbles. I'm worried about your heart too.

The docket:

05/03/2013 54 - BRIEF FILED (AMICUS) for Nokia Corporation and Nokia, Inc. [42]. Title: Brief for Nokia Corporation and Nokia Inc. as Amici Curiae in Support of Neither Party and In Favor of Reversal Based on Application of the Wrong Legal Standard, [Non-Confidential version only]. Number of Pages: 14. Service: 03/05/2013 by email. Pursuant to ECF-10, filer is directed to file six copies of the brief in paper format. The paper copies of the brief should be received by the court on or before 05/13/2013. [74836]

05/06/2013 - 53 - 6 paper copies of the 2nd brief Brief [51] received from Appellees Samsung Electronics America, Inc., Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC. [74573]

05/06/2013 - 55 - MOTION of AMICI CURIAE GOOGLE INC., HTC CORPORATION, HTC AMERICA, INC., RACKSPACE HOSTING, INC., RED HAT, INC. AND SAP AMERICA, INC. for leave to file an amicus curiae brief. Response/Opposition is due 05/20/2013 [Consent: not addressed]. Service: 05/06/2013 by email. [74970]

05/06/2013 - 56 - Open Restricted Document - BRIEF TENDERED from AMICI CURIAE GOOGLE INC., HTC CORPORATION, HTC AMERICA, INC., RACKSPACE HOSTING, INC., RED HAT, INC. AND SAP AMERICA, INC. Title: BRIEF OF AMICI CURIAE GOOGLE INC., HTC CORPORATION, HTC AMERICA, INC., RACKSPACE HOSTING, INC., RED HAT, INC. AND SAP AMERICA, INC. IN SUPPORT OF DEFENDANTS-APPELLEES. Service: 05/06/2013 by email. [74973]

05/06/2013 - 57 - Entry of appearance for Warren S. Heit as of counsel for Google, Inc. HTC Corporation HTC America. Service: 05/06/2013 by email. [74989]

05/06/2013 - 58 - Entry of appearance for Kevin X. McGann as principal counsel for Google, Inc. HTC Corporation HTC America. Service: 05/06/2013 by email. [74990]

05/06/2013 - 59 - Entry of appearance for Christopher J. Glancy as of counsel for Google, Inc. HTC Corporation HTC America. Service: 05/06/2013 by email. [74991]

05/07/2013 - 60 - MOTION of AMICI CURIAE GOOGLE, INC., HTC CORPORATION, HTC AMERICA, INC., RACKABLE HOSTING, INC., RED HAT, INC. AND SAP AMERICA, INC. for leave to file an amicus curiae brief. Response/Opposition is due 05/20/2013 [Consent: opposed]. Service: 05/07/2013 by email. [75206]

05/07/2013 - 61 - RESPONSE of Appellant Apple Inc. to the motion for leave to file an amicus curiae brief [55] , motion for leave to file an amicus curiae brief [60]. Service: 05/06/2013 by email. [75381]

05/08/2013 - 62 - 6 paper copies of the Brief [42] received from Amici Curiae Nokia Corporation and Nokia, Inc.. [75711]


  


Google, Red Hat, HTC, SAP and Rackspace Seek to File Amicus in Apple v. Samsung Appeal ~ pj | 117 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
1013 words - New line, carriage return
Authored by: Anonymous on Thursday, May 09 2013 @ 10:00 AM EDT

[ Reply to This | # ]

New Zealand may prohibit software patents
Authored by: IMANAL_TOO on Thursday, May 09 2013 @ 10:07 AM EDT
They should have a quick look at Slashdot too. They have an article about New Zealand prohibiting software patents.


---
______
IMANAL


.

[ Reply to This | # ]

Compulsory Licensing? So? Isn't that what Microsoft seeks from Motorola?
Authored by: Anonymous on Thursday, May 09 2013 @ 10:13 AM EDT
At this point, it is very hard not to infer that Nokia is a wholly-owned
subsidiary of Microsoft, with the sole purpose of acting as Microsoft puppets
trying to destroy Microsoft's competition in a self-destructive manner.

(christenson)

And amici, who might not have standing, are doing an outstanding public service
here. Yoohoo, FTC, Barak, are you listening? This is not the spring you
promised us!


[ Reply to This | # ]

Corrections
Authored by: OpenSourceFTW on Thursday, May 09 2013 @ 10:19 AM EDT
Post correction in title please.

[ Reply to This | # ]

Google, Red Hat, HTC, SAP and Rackspace Seek to File Amicus in Apple v. Samsung Appeal ~ pj
Authored by: cassini2006 on Thursday, May 09 2013 @ 10:20 AM EDT
Nokia could have used the free Android operating system, of course, without having to buy any company, and offer the lower-end market a cheap but real smartphone, but nooooo. I hope some regulator somewhere is reading the Nokia/Microsoft agreement to see if Nokia had to promise to never use Linux in any phone, even if it made business sense for the company.

I think Nokia did promise to drop Linux and Android work when they signed with Microsoft. It was a term in the contract. I recall reading about reports of this at the time.

Does anyone have a reference?

[ Reply to This | # ]

Newspicks
Authored by: OpenSourceFTW on Thursday, May 09 2013 @ 10:20 AM EDT
Discuss them here. Please use links.

[ Reply to This | # ]

Off Topic
Authored by: OpenSourceFTW on Thursday, May 09 2013 @ 10:21 AM EDT
On topic posters will be forced to buy a Nokia phone and use it.

[ Reply to This | # ]

Comes
Authored by: OpenSourceFTW on Thursday, May 09 2013 @ 10:22 AM EDT
Goeth here.

[ Reply to This | # ]

My family no longer buys Nokia phones, we used to buy them.
Authored by: Kilz on Thursday, May 09 2013 @ 10:44 AM EDT
My wide loved Nokia phones. Here first phone was a Nokia, it
lasted her 6 years. She kept buying Nokia and we as a family
tended to buy Nokia because they were well made. My wife and
I tend to buy feature phones because we mainly use them to
talk to people so they fit our needs.
But after I explained what was going on with Nokia we mad a
family decision not to buy them anymore. We have a Linux
network at our house. All of the computers run Linux and so
any attack on open source is an attack on our freedom.
A month or so ago I bought my wife a replacement phone to
replace her Nokia flip phone. It was on its last legs. The
battery didnt hold a charge, the bezel around the screen was
loose, the 0 button was starting not to work, and half the
buttons no longer were backlit.
We picked out a Samsung flip phone for her and while it has
a low speaker volume when in speaker phone mode she is
overall happy with it. The large number display and long
battery life have her happy again.
Nokia may not know about us, but I bet there are others who
no longer buy from them because of what they are doing. I
hope that the company gets rid of the people leading them to
attack and not to innovate.

As for the other operating system . I see no problem with
them buying the company and not using Android. That was a
choice they were free to make and probably made sense to the
people running the company at the time. You have to
differentiate yourself in the marketplace in some way.
Perhaps they thought it would be a way to do so. I would be
happier to see them go that rout than partnering with
Microsoft. Microsoft has a poison touch.

[ Reply to This | # ]

Google, Red Hat, HTC, SAP and Rackspace Seek to File Amicus in Apple v. Samsung Appeal ~ pj
Authored by: PolR on Thursday, May 09 2013 @ 12:09 PM EDT
But... but... I hear some say, what about the loss of money invested in those US patents, the ones already issued?
It is losses against losses. We have to look at both sides of this equation.

How about the operating companies which can't be assured to own all rights to their market offerings because of this patent madness? They lose a lot isn't it? Why would some people investing in software patents should be a reason to force everyone else to suffer these losses?

We need to talk more about the inability of operating companies to clear all rights to their own products and services. The patent debate is framed by patent proponents as a property debate. But the only property they discuss are patents. They forget the ownership of goods and services. Patents are a system allowing third parties to come and claim ownership over parts of the goods and services of operating companies. Since software patents rights cannot be cleared beforehand, operating companies can't fully own what they offer to the market.

[ Reply to This | # ]

Google and independence
Authored by: Anonymous on Thursday, May 09 2013 @ 04:16 PM EDT
It's hard to see how Google, authors of Android, can file a
friend-of-the-Court brief.

Having Samsung use Android is vey clearly to Google's benefit. If Google
wants to file then it should join Samsung's suit.

Amicus briefs from RedHat and HTC are fine as they have some interests
in common but are not direct beneficiaries.

[ Reply to This | # ]

Software is an important factor in drug patents.
Authored by: Anonymous on Thursday, May 09 2013 @ 08:05 PM EDT
Software is an important factor in drug patents, because
software modeling is such an important part of drug
effectiveness evaluation. It is a big time saver, and can
give a drug company a big advantage. Early on,this was done
in machine code.

[ Reply to This | # ]

Dear Amici
Authored by: Anonymous on Friday, May 10 2013 @ 07:17 AM EDT
If the feature is trivial and patented by someone else, leave it out.

[ Reply to This | # ]

Google bias
Authored by: Anonymous on Friday, May 10 2013 @ 09:23 AM EDT
When I say that Groklaw has a pro-Google bias I get told that's not the case.
So why are you vexed that Nokia used Asha not Android? Because they paid for
it? Choice is good, Nokia should be applauded for using a different OS. Some
of us think Android is over-engineered and lacking in a number of fundamental
areas (security, for example), so a different option is a good thing. If you
support innovation you should support more phone OSs, not fewer.

[ Reply to This | # ]

  • Google bias - Authored by: Anonymous on Friday, May 10 2013 @ 11:24 AM EDT
    • Google bias - Authored by: PJ on Friday, May 10 2013 @ 11:57 AM EDT
  • Google bias - Authored by: PJ on Friday, May 10 2013 @ 11:59 AM EDT
Nokia is not an "impartial friend of the court"
Authored by: HappyDude on Saturday, May 11 2013 @ 08:29 AM EDT
.
It reads like Nokia got permission to file with the court,
and they're certainly vested in this battle. How could
Google possibly be denied permission based on that
precedent?

If they are denied, I will lose every remaining ounce of
respect I've managed to hold onto. Our legal system is
becoming a joke and this judge is laughable. I'm an ignorant
son-of-a-gun, but this whole thing seems so wrong to me. Why
proceed with any part of the trial if it's even remotely
possible that the patents will be (and they probably will
be) finally invalidated? What a waste of taxpayer dollars.
and it's all in support of stupid software patents.

Speaking of which, I have an ignorant question about
software patents.

I gather that patents are supposed to be innovative and not
obvious to those skilled, they're also supposed to reveal
the explicit design so people like me could implement, and
they're not supposed to do things that are already done ...
like math equations.

Yet, software is collaborative. It's like building blocks
that any software engineer or tinkerer would eventually come
up with, void of all contact with existing software patents
and therefore not innovative.

I certainly couldn't "steal" anything from a software patent
because they reveal nothing, and instead are so vague as to
describe generalities.

And software essentially only automates things that we can
do in our minds.

I can't wait until some genius in the patent office
determines that pure math is patent worthy. Or did they do
that already ... ugh.

Kevin
.

[ Reply to This | # ]

HTC?
Authored by: Anonymous on Saturday, May 11 2013 @ 08:50 PM EDT
Seems interesting that HTC with their license agreement with
Apple would be interested in filing an amicus brief here. I'm
kind of surprised that there is language in their mutual
agreement preventing them from getting involved in any way in
Apple litigation.

Also, wasn't the unsealing of the terms of that deal a
material issue in this litigation, thus making them
necessarily an interested party?

[ Reply to This | # ]

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