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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Corrections thread, Summary in title may be hlpful -> helpful
Authored by: nsomos on Wednesday, October 10 2012 @ 12:21 PM EDT

[ Reply to This | # ]

Introducing the iPetard
Authored by: al_dunsmuir on Wednesday, October 10 2012 @ 12:39 PM EDT
In other news, analysts questioned Apple's use of the "Lightning" connector on
their new iPetard (tm) device, noting that it has exhibited a tendency to
inflict significant damage to the user if not properly grounded in fact.


[ Reply to This | # ]

ITC Administrative Law Judge (well, really, Judge Koh)
Authored by: Anonymous on Wednesday, October 10 2012 @ 12:47 PM EDT
Hopefully, Judge Koh (of the Apple-Samsung debacle)will be
read the ITC ALJ decision.

If she does, her headache (which already has to be pretty
large) will get even bigger. Because the ALJ decision is a
pretty good smackdown of the jury verdict, and its
inconsistency.

If this were a game of gold, Koh ought to call a Mulligan.
But instead, she has to deal with the debris from that
horrible trial that she oversaw....

[ Reply to This | # ]

newspicks thread
Authored by: designerfx on Wednesday, October 10 2012 @ 12:50 PM EDT
newspicks comments here

[ Reply to This | # ]

any possibility of punitive action?
Authored by: mcinsand on Wednesday, October 10 2012 @ 12:51 PM EDT
Apple tied up the courts and spent Samsung's money on legal fees without making
an effort to use existing mechanisms. This is wrong, if not just plain evil.
What are the chances of Samsung being reimbursed for legal fees and, just as
importantly, Apple being hit with fines?

Regards,
mc

[ Reply to This | # ]

Off Topic Thread
Authored by: artp on Wednesday, October 10 2012 @ 12:57 PM EDT
Keep it unfocused, please!

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Comes Goes Here
Authored by: artp on Wednesday, October 10 2012 @ 12:58 PM EDT
See link above for "Comes v. MS" for further info.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Apple will appeal
Authored by: Anonymous on Wednesday, October 10 2012 @ 01:12 PM EDT

Of course we know Apple will appeal this. Unfortunately I know nothing
about appealing ITC judge rulings.

I'm not a lawyer, but it looks like the judge crossed all the Ts and dotted all

the Is. If I remember correctly, this is going to place limits on exactly what
Apple can do.

In other words, it looks like a huge victory for Samsung.

The main problem with it is that it implies Patents are legitimate. Since I've
never seen a single hardware or software patent that passes the USPTO's
own rules for patent eligibility, this makes me less than happy.

Wayne
http://madhatter.ca

[ Reply to This | # ]

Incompetent jury is no good for either side
Authored by: Anonymous on Wednesday, October 10 2012 @ 03:07 PM EDT
Therefore the jury's verdict with respect to the issue of patent exhaustion cannot be considered an essential fact determination by the jury, since it is inconsistent with the jury's verdict that Apple's products containing the PMB 9801 did not infringe Samsung's patents.
Apple will not be happy with this.

Not only has one of their arguments at the ITC just been shot out from under them, but an ITC judge is now pointing out to the Judge Koh and the public at large that the juries decision was nonsensical.

Apple may not lose everything in this battle, but public perception is already shifting, the legal ground they had claimed just weeks ago is now looking shaky, and certain "experts" are going to be eating crow for lunch.

David S.

[ Reply to This | # ]

  • Eating Crow? - Authored by: Anonymous on Thursday, October 11 2012 @ 04:52 AM EDT
    • Eating Crow? - Authored by: Anonymous on Thursday, October 11 2012 @ 07:06 AM EDT
      • Eating Crow? - Authored by: Anonymous on Thursday, October 11 2012 @ 10:49 AM EDT
  • Crow Banquet Proposal - Authored by: albert on Thursday, October 11 2012 @ 10:34 AM EDT
FRAND problems are real
Authored by: Anonymous on Wednesday, October 10 2012 @ 03:54 PM EDT
Apple and Microsoft are opportunistic wrt their crying wolf on FRAND, but the
problems with FRAND are real and nicely demonstrated by these cases.

In the battle of Office document standardization it was Microsoft who lobbied
heavily for FRAND over RF because it was very well aware of the patent games
that can be played with FRAND:

http://blogs.computerworlduk.com/open-enterprise/2012/04/how-microsoft-lobbied-a
gainst-true-open-standards-i/index.htm

But in the mobile world MS is the underdog and FRAND suddenly isn't so appealing
any more to them. Truth is, FRAND may sound nice on paper, but it doesn't offer
any real protection against patent agression. FRAND is just another
pig-with-lipstick obstruction in the way of our technical liberties.

[ Reply to This | # ]

Appeal
Authored by: Anonymous on Wednesday, October 10 2012 @ 04:31 PM EDT
I suppose this will be appealed.

In some way, isn't this sort of contradicting what is going on in the Microsoft
vs Motorola case?

[ Reply to This | # ]

Dommed Mobile Product Launch this October
Authored by: Anonymous on Wednesday, October 10 2012 @ 04:57 PM EDT
New Mobile OS, no Sdk.. and the FOSS Patent blowhard still
shilling..and we all thought is the New BB10 :)

How much market did MS loose this year in mobile?

Nokia better hope MS does not buy RIM..or prey..

What do you call a MS , B and N, Rim and Nokia device?

Chard remains of decaying Monopolists husk..

[ Reply to This | # ]

  • Yuck - Authored by: om1er on Wednesday, October 10 2012 @ 06:18 PM EDT
    • Yuck - Authored by: scav on Thursday, October 11 2012 @ 08:47 AM EDT
    • Yuck - Authored by: Anonymous on Thursday, October 11 2012 @ 08:51 AM EDT
  • Dommed Mobile Product Launch this October - Authored by: Anonymous on Wednesday, October 10 2012 @ 06:32 PM EDT
    • keyboard alert! - Authored by: Anonymous on Thursday, October 11 2012 @ 04:57 AM EDT
High Value Products are also high Margin Products
Authored by: rsteinmetz70112 on Wednesday, October 10 2012 @ 06:10 PM EDT
Those selling high value products should be able to rightly argue that the rate
should be lower on those products. For example 2.25% of a Feature Phone is a lot
less that 2.25% of a Smartphone.

There could be a case for a per unit royalty, but that is equal across all of
the different lines.

It seems like if Apple wants that to happen they should negotiate, however with
their premium prices, profit margins and profits, they are in a poor position to
say they can't afford to pay.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Apple cannot claim being clueless
Authored by: Anonymous on Wednesday, October 10 2012 @ 10:07 PM EDT
Apple cannot claim being clueless about Frand..

anyone remember hat little Apple and Moto iTunes partnership
? Certainly Apple knew way before 2007 about the mechanics
of FRAND..

Apple wants to set FRAND prices at zero..by any trick
necessary..





[ Reply to This | # ]

IMHO...
Authored by: BitOBear on Thursday, October 11 2012 @ 01:14 AM EDT
The act of submitting a (your) patent to a draft standard should automatically
grant a license to that patent to anybody attempting to implement that standard
in part or whole.

Nothing else is reasonable, "fair" or "non discriminatory"

All other approaches grant the patent holder rights in excess of the patent
since they then "own the standard" instead of just a means of
implementing something.

That's not the way it _is_ but it is the way it _should_ _be_.

ASIDE: if someone else submits your patented material to a standard or draft
thereof, and you knew or should have known this happened (such as you are a
member of the standards body), and you do nothing about it till the draft is
issued or ratified as a formal draft, the license should be as if you submitted
it yourself.

[ Reply to This | # ]

  • IMHO... - Authored by: Anonymous on Thursday, October 11 2012 @ 01:21 PM EDT
Exhaustion
Authored by: Ian Al on Thursday, October 11 2012 @ 03:15 AM EDT
The jury also found that Samsung's patents were exhausted by virtue of the Samsung-Intel agreement. If the accused Apple products do not infringe Samsung's '516 and '941 patents, as alleged by Samsung in the district court case, by virtue of those products' incorporation of the Intel's PMB 9801 baseband processor, then the sale of those chips by Intel would not exhaust Samsung's patents, because the PMB 9801 logically could not have practiced all of the limitations of those patents.

The affirmative defense of exhaustion requires proof of an authorized, territorial sale of articles embodying the patents at issue. Therefore the jury's verdict with respect to the issue of patent exhaustion cannot be considered an essential fact determination by the jury, since it is inconsistent with the jury's verdict that Apple's products containing the PMB 9801 did not infringe Samsung's patents.
I hope that I am not misreading this because it mirrors the argument I made during the Apple v. Samsung trial. Apple said that they bought the Intel chips that practice the patented invention and that Intel had a licence for the patents. For this reason, Apple had the benefit of the pre-existing Intel licence.

What I said was that the chips, of themselves, cannot meet all of the claims of the patent. The phone or tablet needs to do software stuff that employs the chip to practice the patented invention and, thereby, infringe the patent.

Intel only need a licence for US sales of components specifically made to manufacture the US patented invention in the US. Any Intel chip not specifically made to enable manufacture of the patented invention needs no such licence. The manufacturers of the nuts and bolts in my better mousetrap cannot be accused of inducing or contributing to an infringement of my patent.

35 U. S. C. §271(b) (1970 ed.) says “Whoever actively induces infringement of a patent shall be liable as an infringer.” which renders liable as a contributory infringer anyone who sells or imports a “component” of a patented invention, “knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial non-infringing use”.

In fact, Intel exported the component, and the device was built into the phone outside of the US. In Microsoft v. AT&T the Supreme Court dealt with exactly this situation. It's complex and requires quite a lengthy quote:
Our decision some 35 years ago in Deepsouth Packing Co. v. Laitram Corp. a case about a shrimp deveining machine, led Congress to enact §271(f).

In that case, Laitram, holder of a patent on the time-and- expense-saving machine, sued Deepsouth, manufacturer of an infringing deveiner. Deepsouth conceded that the Patent Act barred it from making and selling its deveining machine in the United States, but sought to salvage a portion of its business: Nothing in United States patent law, Deepsouth urged, stopped it from making in the United States the parts of its deveiner, as opposed to the machine itself, and selling those parts to foreign buyers for assembly and use abroad. We agreed.

Interpreting our patent law as then written, we reiterated in Deepsouth that it was “not an infringement to make or use a patented product outside of the United States.”. Deepsouth’s foreign buyers did not infringe Laitram’s patent, we held, because they assembled and used the deveining machines outside the United States.

Deepsouth, we therefore concluded, could not be charged with inducing or contributing to an infringement. Nor could Deepsouth be held liable as a direct infringer, for it did not make, sell, or use the patented invention— the fully assembled deveining machine—within the United States. The parts of the machine were not themselves patented, we noted, hence export of those parts, unassembled, did not rank as an infringement of Laitram’s patent. Laitram had argued in Deepsouth that resistance to extension of the patent privilege to cover exported parts “derived from too narrow and technical an interpretation of the [Patent Act].”.

Rejecting that argument, we referred to prior decisions holding that “a combination patent protects only against the operable assembly of the whole and not the manufacture of its parts.”
Apple imported the complete manufactured patented invention in their phones to the US and Intel needed a licence for the especially made components because they actively induced Apple to manufacture the patented invention by selling the components as a US sale.

Apple imported the manufactured invention and needed a patent licence for the invention and not just the Intel especially made component.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

Non-Infringement
Authored by: Anonymous on Thursday, October 11 2012 @ 06:13 AM EDT

I've lost track of the status of this case, what with so many going on, and was trying to find stuff about findings of infringement or not, and so far this is what I've found from the docs linked above.

Patents '348, '644, '980, '114 are non-infringed (detailed below).

Patent '843 is listed as being terminated from investigation.

Basically, none of the Samsung patents were deemed infringed by Apple, despite them being allegedly standard essential, and Apple clearly implementing the standard.

Are these just bad patents, or have they been out-lawyered?

(Part 2 - Page 75)
For the several reasons discussed above with respect to each of the asserted claime, 75, 76, 82, 83, and 84, the Administrative Law finds that the preponderance evidence fors not demonstrate that the Accused Products infringe the asserted claims of the '348 patent.

(Part 3 - Page 145)
For the foregoing reasons, the Administrative Law Judge concludes that the evidence does not demonstrate, to a preponderate degree, that there is any violation of Section 337, as alleged by Samsung, by reason of infringement of the '644 patent by Apple.

(Part 3 - Page 169)
The Administrative Law Judge found above that Samsung has failed to demonstrate that the Accused '980 products are able to infringe the asserted claims of the '980 patent. Thus Samsung has not shown that a user is able to directly infringe the asserted claims with the accused iPhones.
...
As Samsung has failed to show by a preponderance of the evidence that the Accused '980 Products are able to directly infringe the asserted '980 patent claims, they cannot indirectly infringe.

(Part 4 - Page 239)
The administrative Law judge concludes that the evidence does not demonstrate, to a preponderate degree, that the Accused Products infringe any of the asserted claims of the '114 patent. In order to establish infringement, the complainant must demonstrate that the accused devices or methods meet all of the limitations of the asserted claims

(Part 4 - Page 251)
The Administrative Law Judge concludes that the evidence does not demonstrate to a preponderate degree that the Accused Products infringe the claims of the '114 patent under the doctrine of equivalents, as alleged by Samsung. The accused products do not perform substantially the same function as the "velocity detector" limitation as opined by Dr. Abowd, who testified as follows with respect to the alleged velocity detector in the Accused Products

Stevos
IANAL.

[ Reply to This | # ]

I'm torn...
Authored by: Anonymous on Thursday, October 11 2012 @ 10:41 AM EDT
...on the one hand I understand Apple's hatred of standards-essential patents.
As a former employee of another smartphone maker I recognize the difficulty of
breaking into the market when other established players like Motorola, Nokia,
Sony-Ericcson, Samsung, etc. all have patents on the standards. Any newcomer to
the market faces an uphill battle. As soon as you make a phone that complies
with the standards you get a visit from the patent holders demanding royalties,
which are a significant percentage of the cost of building the product. But the
established players don't have to pay these royalties to each other, they just
cross-license. It's basically an oligopoly -- the newcomers with disruptive
products can't possible make phones as cheaply as the patent holders unless they
come up with some of their own essential patents. Of course, Apple has no
standards-essential patents so it is trying to convince everyone that it
invented rectangles with rounded corners and that everyone owes Apple money for
this technology. This is a logical (though repugnant) business strategy -- they
are trying to get their costs down by forcing other players to cross-license
with them.

On the other hand I recognize Apple/Microsoft's attempt to destroy Android and
Linux, and I value my freedom. PJ is absolutely right -- this is not just an
attack on FRAND it is an attack on open technologies which preserve the rights
of the end-user. It is an attempt to move towards a rental economy where every
device and app is "licensed" to us instead of owned by us. Apple et
al would like to maintain artificially high prices even as the marginal cost of
production is in free-fall.

I predict that Android/Linux will eventually weather this storm just as it did
the SCO fiasco. Apple, like RIM, will slowly fade into insignificance and
Samsung will become the dominant player in the smartphone market, and perhaps
the entire consumer electronics market. Will they become an evil monopoly too?
Time will tell...but at least they are using Android which prevents them from
doing certain evil things with their software...

My hope is that people will eventually move away from cellular devices towards
primarily wifi devices. I recently did this and I find I'm not really any less
connected. Once you know where the hotspots are in your city you're set. Since
there is vigorous competition among wifi equipment manufacturers and ISPs (not
to mention restaraunts that want you to use their wifi) I think this would be
the best for consumers.

[ Reply to This | # ]

Apple into farming?
Authored by: Anonymous on Thursday, October 11 2012 @ 02:02 PM EDT
"Apple chief intellectual property counsel BJ Watrous argued in a morning
session. 'Using the ASP of the end user product as the royalty base [is]
discriminating against companies like Apple who sell high-value
products.'"

http://en.wikipedia.org/wiki/High_value_products

High value products (HVP) refers to Agricultural products that are high in
value, often but not necessarily due to processing.

[ Reply to This | # ]
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