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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 - 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]

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