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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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Microsoft v. Motorola Trial in Seattle, Day 3 and Judge Crabb Explains Dismissal of Apple v. Motorola~pj | 50 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: ankylosaurus on Thursday, November 15 2012 @ 11:51 PM EST
It's helpful to indicate the nature of the error at least in the title of the
comment. (Mitsake -> Corrected, for example.)

---
The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

Off-topic Discussions
Authored by: ankylosaurus on Thursday, November 15 2012 @ 11:54 PM EST
Discussions about matters not related to the main article.


---
The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

News Picks Thread
Authored by: artp on Friday, November 16 2012 @ 12:17 AM EST
URL, please!

Comments, too. ;-)

---
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 Friday, November 16 2012 @ 12:19 AM EST
Or would that be On Topic?

I will leave that question as an exercise for the student, as
it is intuitively obvious to the most casual observer. :-)

---
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 | # ]

Witness uses CCMP security at home.
Authored by: Anonymous on Friday, November 16 2012 @ 12:21 AM EST
CCMP is the security protocol for WPA2, so witness kind of dodged the question.
Looks like the lawyers didn't know that.

[ Reply to This | # ]

Is cancelling the same as dismissal in legal lingua?
Authored by: Anonymous on Friday, November 16 2012 @ 02:57 AM EST
I ask because some technology "blogger/expert",
who I won't link to here, refers to the Apple vs.
Motorola
case as having been cancelled, not dismissed.
Is he playing with semantics?

[ Reply to This | # ]

Security patents
Authored by: Anonymous on Friday, November 16 2012 @ 04:25 AM EST
On to security patents. Motorola did not invent this technology. Little or no benefits to Xbox for these patents.
...it's sometimes fun to take statements out of context.

[ Reply to This | # ]

HD-DVD
Authored by: Anonymous on Friday, November 16 2012 @ 04:39 AM EST
"Not a successful product by any stretch"

Errmmm, isn't that what MS were backing vs. Bluray?

[ Reply to This | # ]

A meeting of minds
Authored by: Ian Al on Friday, November 16 2012 @ 06:45 AM EST
PJ commented, previously, 'The judge views it that Microsoft is a third-party beneficiary of the contract'. I racked my brains to remember SCO v. Novell and recalled that the contract must be a meeting of minds between the parties. The legal arguments during the trial were about just what that meeting of the minds was and getting evidence of that. I thought I would review the original contracts to see what light that shone on things.

I looked up a Wikipedia definition of what a contract is according to the US legal system:
What is a Contract?

A working definition of Contract comes from the American Law Institute's Restatement 2nd:

§ 1. Contract Defined:

A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.

Another definition comes from the Uniform Commercial Code (UCC), which specifically covers contracts for "Goods" (instead of services):

§ 1-201(11) [Revised § 1-201(11)]:

“Contract” means the total legal obligation which results from the parties’ agreement as affected by this Act and any other applicable rules of law.

Both of these definitions make clear that not all promises or agreements are contracts. The promises or agreements that are contracts are the ones the legal system will enforce. That definition certainly appears circular: which ones will our legal system enforce?

That enforcement mechanism kicks in when a contract has been formed and it has been breached. The legal system is then asked to supply a remedy.
The IEEE is a professional association for electrical engineers. It does allow companies to nominate professional engineers for the standards setting groups. However, the groups' stated objectives do not include the setting of legal or commercial relationships between companies.

Their policy for standards essential patents is:
If the IEEE learns that an IEEE standard or a proposed IEEE standard may require the use of an essential patent claim, the IEEE requires the patent holder to either state that it is not aware of any patents relevant to the IEEE standard or to provide the IEEE with a Letter of Assurance. Any such Letter of Assurance must include either

(1) a disclaimer to the effect that the patent holder will not enforce the “Essential Patent Claims,” or

(2): [a] statement that a license for a compliant implementation of the standard will be made available to an unrestricted number of applicants on a worldwide basis without compensation or under reasonable rates, with reasonable terms and conditions that are demonstrably free of any unfair discrimination. . . .
In similar circumstances, the ITU asks the patent holder to make a declaration that they will negotiate patent licenses under FRAND terms. The declaration is not restricted to a particular country or a particular legal jurisdiction.

My initial thought is that neither the ITU declaration nor the IEEE Letter of Assurance constitute a contract in US law. As noted in the quote, above, 'Not all promises or agreements are contracts'. The Letters of Assurance and the ITU Declarations are promises and not contracts because they do not include a legal meeting of the minds specifying the terms, considerations and legal obligations and do not apply to an agreed legal body of law.

The IEEE Letter of Assurance is also to apply ' to an unrestricted number of applicants on a worldwide basis without compensation or under reasonable rates, with reasonable terms and conditions that are demonstrably free of any unfair discrimination'.

The Letter of Assurance specifically calls for reasonable rates (consideration) and reasonable terms and conditions that are not discriminatory. These are part of the legal obligations of a contract and the parties to the contract are the patent owner and the standard user. The IEEE is not a party to the contract called for in the Letter of Assurance.

Let's assume, for the purpose of discussion, that the Declaration and the Letter of Assurance were contractual agreements between the ITU (a specialised agency of the U.N, and headquartered in Switzerland) and the patent holder and the IEEE and the patent holder, respectively. Since both organisations are non-commercial, then the broader contract definition would apply:
A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.
Neither contract cites the law against which the contract can be tested. Both contracts apply worldwide. Further, most jurisdictions do not have the concept of a legally binding third-party beneficiary. Neither standards organisation can be assumed reasonably to have set contract terms and conditions in a contract which apply in every legal jurisdiction in the world. Further, the contract is unstated. The requirements for declarations and letters of intent can only be pro-forma and not the final agreed contract.

There is no start date or end date for the contract. Can there be a contract let from the date of the letter or declaration for which the consideration lasts in perpetuity? Do the letter or the declaration specify which patents are covered (hint, it is every patent for the invention everywhere in the world owned by that patent holder). You might remember the uproar in the SCO v. Novell case about which copyrights the APA contractually transferred from Novell to Santa Cruz. In that contract, they looked for legal text that specified it. The rule was quoted that, in some US jurisdictions, the copyrights to be transferred must be explicitly stated. Since there is no specific contract text or oral contract commitments in the letters and declarations, then the terms of the contract cannot be legally established.

If the letter and the declaration are contracts, where are the patents specified?

In any contract, the legal entities entering the contract must be specified. Where in the declaration or the letter is this done? The organisations making the declaration or writing the letter of assurance are not necessarily the legal entities owning the patent(s) (since this is a world-wide issue). Are the letter writers and declaration makers legally entitled to represent the patent owners everywhere in the world in every legal jurisdiction in the world? Where is this court's proof of that?

Finally, does the promise represent an actual exchange of consideration? It cannot. The 'contract' can only be performed if and when a third party requires to use the standard containing the patent owner's invention. What consideration does the standards organisation and the patent owner actually exchange under the contract? I don't think there is a legally valid exchange of consideration.

I think that both Apple and Microsoft are only potential third party beneficiaries of a potential non-contract. The IEEE Letter of Assurance calls for 'a license for a compliant implementation of the standard [to] be made available to an unrestricted number of applicants on a worldwide basis under reasonable rates, with reasonable terms and conditions that are demonstrably free of any unfair discrimination'.

Have either Apple or Microsoft proven that they are being discriminated against by being excluded from a compliant implementation of an IEEE standard?

Why would the low licence fees for the other essential patents in the standard that were set for purely business reasons to monopolise the international standard within the US affect what a fair and non-discriminatory rate should be for a patent owner who is not a business partner?

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

[ Reply to This | # ]

Microsoft v. Motorola Trial in Seattle, Day 3 and Judge Crabb Explains Dismissal of Apple v. Motorola~pj
Authored by: Anonymous on Friday, November 16 2012 @ 07:02 AM EST
Looks MS has here some convincing arguments. About the value of all patents.
These arguments should be used in patent negotiations with Apple and Microsoft.
And showed to jury's in patent litigations.

One argument suggests the price of the patent licence should not be higher then
the component that does the bigger action where some little elements would be
patented. Somewhat my feeling also. Surely in the case of software that can be
obtained free of charge. Obviously no patent license fees should be charged
either to someone using that component.

On the other hand would it not be quite unreasonable to charge only a fraction
of the amount that in the industry is usual for patents with the same, very
limited, utility? To not use them as a defence if frequently other patents are
used to slow down the growth of competing technology?

[ Reply to This | # ]

Judge Robart at M$FT v. Motorola in Seattle desperately needs to read Judge Crabb's order
Authored by: Gringo_ on Friday, November 16 2012 @ 07:55 AM EST

...it is not realistic to think that a court could construct a "method" into which the parties could insert numbers to produce a fair valuation of a company’s patent portfolio in a given area of technology. It is no more realistic to think that this court could arrive at a fair valuation of the ... patents simply by applying the percentage of intellectual property rights approach that Apple has suggested. Each proposal exposes more of the difficulties inherent in trying to pick a particular monetary rate for an agreement as complex as a licencing fee for rapidly changing technology. Apple has not explained how it is possible to determine a rate without knowing the answers to such questions as how a cross-license to the other party’s patents may affect that rate or what the scope of the license is (a worldwide license will be more valuable than a license to sell in only one country or only a few countries); what guarantees are incorporated into the agreement; the length of the agreement; or the frequency of payments. In effect, Apple is asking the court to assess one part of a complex contract that has yet to be negotiated.

Why is Judge Roberts willing to take on such a task as Judge Crabb has ruled to be "unrealistic"? Especially when M$FT made no attempt to negotiate with Motorola? Makes no sense at all. I was thinking the other day, all these third parties who are worried that the intimate details of their licensing negotiations will be revealed to the world at large. Where were they earlier, before Judge Roberts took it upon himself to come to Microsoft's rescue? They should have been filing amici with him to prevent this trial in the first place.

[ Reply to This | # ]

Judge Crabb nails the isssue dead center
Authored by: Anonomous on Friday, November 16 2012 @ 12:23 PM EST
In effect, Apple was asking the court to assist it in negotiating, not in putting the parties’ dispute to rest.

Probably this was obvious to Her Honor as soon as it was to us, but she had to wait until the appropriate time say it.

-Wang-Lo.

[ Reply to This | # ]

Good support for interlaced video was one reason I got a XBOX
Authored by: Anonymous on Friday, November 16 2012 @ 04:03 PM EST
a few years ago I was trying to get freeview Digital TV going here in New
Zealand. It had recently been released and used the latest h264 and AAC audio
specs which caused problems for my first attempts at using linux based mythtv.
The 1080i video decoding did not work reliably in software decoder and looks
really bad without a good deinterlacer which are not efficent in software.
There was a linux hardware accelerated deinterlacing for nvidia called VDPAU but
it was new and I had problems at the time.

So I installed windows 7 which had just come out and went and got an XBOX 360.
This allowed me to stick the Windows 7 machine away in a cupboard and get it to
record TV and just have an XBOX as a media extender and it had great support for
1080i h264 playback which is quick and worked great for 3 years.

I also used the XBOX for a few games but very little time was spent on that and
97% of its powered on life it has been a TV playback device. 2 channels were
progressive 720p back then but they have since changed to 1080i so all channels
here I think are interlaced now (most channels are 576i).

Recently I've switched back to MythTV and am now using that instead and my XBox
is now only powered on every so often to entertain my nieces.

Michael

[ Reply to This | # ]

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