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The long and short of it | 219 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Double dipping
Authored by: Anonymous on Sunday, December 02 2012 @ 04:51 PM EST

The D'677 and D'087 Patents....

Third, the D'677 patent is invalid for double-patenting. Miller v. Eagle Mfg. Co., 151 U.S. 186, 198 (1894) (second patent must be "substantially different" from first). D'677 and embodiments of D'087 (particularly the sixth embodiment) depict the same design; the only elements added by the D'677 are the color black and oblique lines, features that do not make D'677 "a separate invention,...
Aided and abetted by the USPTO not doing its job properly.

[ Reply to This | # ]

Corrections Here
Authored by: OpenSourceFTW on Sunday, December 02 2012 @ 04:57 PM EST
Please put correction in title.

Waht --> What.

---
I voted for Groklaw (Legal Technology Category) in the 2012 ABA Journal Blawg
100. Did you? http://www.abajournal.com/blawg100. Voting ends Dec 21.

[ Reply to This | # ]

Newspicks Thread
Authored by: OpenSourceFTW on Sunday, December 02 2012 @ 04:58 PM EST
HTML linkeys please.

---
I voted for Groklaw (Legal Technology Category) in the 2012 ABA Journal Blawg
100. Did you? http://www.abajournal.com/blawg100. Voting ends Dec 21.

[ Reply to This | # ]

Off Topic Thread
Authored by: OpenSourceFTW on Sunday, December 02 2012 @ 04:59 PM EST
On topic posters will be forced to find a patent owner that Judge Newman does
not like.

---
I voted for Groklaw (Legal Technology Category) in the 2012 ABA Journal Blawg
100. Did you? http://www.abajournal.com/blawg100. Voting ends Dec 21.

[ Reply to This | # ]

Comes Thread
Authored by: OpenSourceFTW on Sunday, December 02 2012 @ 05:00 PM EST
Comes cometh only if you sendeth.

---
I voted for Groklaw (Legal Technology Category) in the 2012 ABA Journal Blawg 100. Did you? http://www.abajournal.com/blawg100. Voting ends Dec 21.

[ Reply to This | # ]

Vote for Groklaw Thread
Authored by: OpenSourceFTW on Sunday, December 02 2012 @ 05:03 PM EST
230 votes people! I think we are still ahead, no time to do a full calc sadly, but the 2nd and third place blogs seem to be at under 190.

Keep up the good work!

http://www.abajournal.com/blawg100 (Legal Technology Category)

---
I voted for Groklaw (Legal Technology Category) in the 2012 ABA Journal Blawg 100. Did you? http://www.abajournal.com/blawg100. Voting ends Dec 21.

[ Reply to This | # ]

087 and 677
Authored by: Anonymous on Sunday, December 02 2012 @ 06:14 PM EST
Double jeopardy? If the patent is the same then isn't being charged with
violating both a case of double jeopardy? Can I be made to pay for having both
tires and round things that spin and support the vehicle off the road on my car?
After all, the former is the latter and vice versa.

[ Reply to This | # ]

Reversing the jury verdict, remember this one?
Authored by: cricketjeff on Sunday, December 02 2012 @ 07:37 PM EST
Apple isn't always quite so certain of the sanctity of jury verdicts, boots can fit more than one foot.

---
There is nothing in life that doesn't look better after a good cup of tea.

[ Reply to This | # ]

The long and short of it
Authored by: kawabago on Sunday, December 02 2012 @ 08:12 PM EST
Apple is an evil company. Avoid all Apple products at all
costs.

[ Reply to This | # ]

We have not *identified* any attorney ... who was aware ...
Authored by: jbb on Sunday, December 02 2012 @ 08:16 PM EST
Apple's attorneys said:
In connection with this declaration, Michael Jacobs and I surveyed the litigation teams who have worked on this case at Morrison & Foerster and WilmerHale (including every attorney at Morrison & Foerster and WilmerHale who has a current appearance in this case on behalf of Apple) and the in-house litigation team within Apple. We have not identified any attorney or other member of the litigation teams who was aware that Mr. Hogan had been a party to lawsuits involving Seagate until after the conclusion of trial, when Samsung raised the matter in connection with its post-trial motions.
Does the word "identified" have a peculiar legal definition? If not then the sentence by Apple's attorneys' could mean they decided not to divulge the identity of the persons they found to the court. It also does not rule out the possibility that it was clear someone on the team was aware of what was going on but the investigating attorneys decided not to find out who it was.

If Apple were truly innocent of the gross misconduct implied by Samsung's question then why would they delay in telling the court they were innocent and why would they use such a weasel word in their apparent declaration of innocence? Why would they craft their answer so it hinges entirely on such an ambiguous word? Why would highly trained (and highly paid) professionals decide to produce such apparently shoddy work? Maybe it's not shoddy after all. Maybe it was the best they could do without telling the court outright lies.

---
Our job is to remind ourselves that there are more contexts
than the one we’re in now — the one that we think is reality.
-- Alan Kay

[ Reply to This | # ]

Apple's Nerve: About the Jury Foreman
Authored by: webster on Sunday, December 02 2012 @ 09:01 PM EST
.

It is hard to believe Apple's denial of knowledge about the Seagate case, but we
must. There is no way to contradict it.

It is hard to believe because they accused Seagate of waiving the argument of
jury misconduct because they could have discovered it from readily available
searches. Why would they make that argument if they didn't themselves discover
this information? They were apparently as incompetent as Samsung in not
discovering this information.

If they felt their first argument is true, that Samsung missed it, so too bad,
then why abandon the argument? They could admit they along with Samsung were
incompetent. They both should have found it. But Samsung's not finding it,
waives their right to raise juror misconduct. The fact that Apple missed it too
does not resurrect Samsung's waived argument.

The preceding absurdity is eclipsed by Apple's lie. They made the argument in
bad faith if they didn't know about the Seagate case. If lawyers like this Apple
team and Samsung didn't find it, most likely none would. Yet they argued it
anyway. They are not to be trusted in an area where the judge became intensely
interested. It is a factor that will be weighed henceforth in the burden of
persuasion.

Apple are left to argue that it doesn't matter; there was no misconduct. The
jurors omission is irrelevant. It is twenty years ago and not then connected to
Samsung. Maybe the Apple legal team and the juror are omitting information for
the same reasons.

~webster~

.

[ Reply to This | # ]

An aspect of Revision Military
Authored by: Anonymous on Sunday, December 02 2012 @ 09:50 PM EST
A major aspect of Revision Military is that the CAFC said that the CAFC standard
for a preliminary injunction instead of the 2nd circuit's standard.

If SCOTUS want's to deliver a shot across the bow of the CAFC, they can rule
that in all cases of ambiguity the "local" districts rules apply over
the CAFCs. End result is a loss of power from the CAFC and a shot across their
bow by the SCOTUS, telling them " you don't start showing us due deference
and we will take even more of your power away."

[ Reply to This | # ]

Weasel words
Authored by: CCourt on Sunday, December 02 2012 @ 11:38 PM EST
I don’t trust Apple or its litigation teams. Their obtuse
answer here makes me read it a bit closer and it would seem to
say absolutely nothing.
If I survey my staff… and I make it an anonymous survey, then
even if twelve people said that they know in detail about Mr.
Hogan's case with Seagate and its connection to Samsung, I can
honestly then say that I have not identified an individual.
They have separated the asking from the answering and they
could very well be entirely unrelated.

[ Reply to This | # ]

Negotiations by other Means
Authored by: rsteinmetz70112 on Monday, December 03 2012 @ 01:28 AM EST
Apple appears to be giving up points they are likely to lose in order to
preserve points they are more likely to win. Giving up these points makes Apple
appear more reasonable.

---
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 | # ]

'Presumably it's also true.' Ouch! ...nt
Authored by: Ian Al on Monday, December 03 2012 @ 03:28 AM EST
.

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

[ Reply to This | # ]

Apple's Nerves - not with this judge
Authored by: Anonymous on Monday, December 03 2012 @ 07:37 AM EST
It's nice that Apple is squirming a little, but I don't
think Samsung stands a chance with this judge. The fix was
in three months ago, and I have no faith that the judge will
have found any reason to change her mind.

The 12/6 hearing is just another sideshow. When this gets
to the Appeals court -maybe in 18 months or so - a new set
of judges who haven't prejudged the case will overturn the
verdict.

By the way, my old smartphone crapped out over the weekend
and I bought a Samsung Galaxy S - which, not coincidentally,
happens to be one of the ones that Apple purportedly wants
to ban....

[ Reply to This | # ]

Conflicts of Interest
Authored by: ukjaybrat on Monday, December 03 2012 @ 10:51 AM EST
OK so let's pretend first that no one paid off the judges or Jury in Apple v
Samsung or Microsoft v Motorola.
Let's also pretend i don't know much about the judicial system -- that second
part will be much easier ;)

Why is it that a landmark case like Apple v Samsung can be tried in a California
courtroom and Microsoft v Motorola can be tried in a Seattle courtroom? Even if
the judge or jury member is not directly being paid off, just living there
provides the likely possibility that he/she knows someone that works with or for
the company bringing the suit. and even if that doesn't directly affect his/her
judgement, it could easily be seen as a conflict of interest. The judgement will
directly affect the local economy and possible friends/family/acquaintences.

What i'm getting at is why do we have cases like this with a home field
advantage? why not try the case in a different state where local politics and
economy can't/won't provide a conflict of interest?

---
- IANAL

[ Reply to This | # ]

  • venue - Authored by: IANALitj on Monday, December 03 2012 @ 11:30 AM EST
    • venue - Authored by: Anonymous on Monday, December 03 2012 @ 11:43 AM EST
      • venue - Authored by: ukjaybrat on Monday, December 03 2012 @ 11:58 AM EST
Not reading the terminal disclaimer right
Authored by: Anonymous on Monday, December 03 2012 @ 01:12 PM EST

You missed a critical word in your reading of the disclaimer: Apple doesn't disclaim the part of the term of '677 which would extend to the expiration of the prior patent (i.e., '087). This is a reasonable exception; if Apple lets '087 lapse, but renews '677, '677 should last until '087 would have expired had it been renewed. (Or, if some court decides that you can't have a design patent without specifying the color, and invalidates '087, this wouldn't mean that Apple loses '677 at that time.)

It seems to me that a better way to write this disclaimer, which wouldn't need an exception, would be to say that Apple disclaims the portion of the term of '677 which extends beyond the statutory limit it would have if '677 had the dates that '087 has, as well as any portion presently disclaimed by terminal disclaimers on '087.

(Actually, it's also weird that the disclaimer talks about the effects of present terminal disclaimers about '087 on '677 without either referencing ones that exist or saying that none exist. How could these terminal disclaimers or their absence not be information everyone has anyway?)

[ Reply to This | # ]

a highly improble negative pregnant
Authored by: IANALitj on Tuesday, December 04 2012 @ 12:53 AM EST
I am not asserting that the suggestion I am here making has any relationship to
what has actually happened. This is purely a suggestion as to how the language
Apple has used might be read.

There is a legal concept of "negative pregnant." This is obscure in
its own right, as well as in its nomenclature. (Negative is the noun, not an
adjective. Pregnant is an adjective, specifying that a negative may bear -- be
pregnant with -- a different meaning from that which appears if it is read
uncritically.) Wikipedia has an example in a brief article.

Several people have criticized Apple as having used weasel language. I do not
think that any such thing as this happened, but just suppose . . .

Suppose that when this issue erupted, and in particular when the files were
reviewed, somebody found a "smoking gun," a note that said "I
have found some information about Seagate and someone named Velvin Hogan. Isn't
he on your jury?" It might be asking too much for this to be signed, and
dated after July 30, but so long as I am the author of this fantasy I can
specify even that, so long as the signer not have been a member of one of the
litigation teams, nor have made an appearance in this case. Maybe not even a
lawyer. This would not have been a memo addressed to anyone in particular, just
a piece of paper found in the file.

Let me call this the Gun Note.

Now what? It's time for the survey. Michael Jacobs (who is no fool) and Mark
D. Selwyn (who probably isn't either) knew about the Gun Note and knew what they
wanted to be able to tell the court:

"As set forth in the Selwyn Declaration, Apple has not identified any Apple
attorney or other member of the Apple litigation teams who was aware that Mr.
Hogan had been a party to lawsuits involving Seagate until after the conclusion
of trial, when Samsung raised the matter in connection with its post-trial
motions."

"3. In connection with this declaration, Michael Jacobs and I surveyed the
litigation teams who have worked on this case at Morrison & Foerster and
WilmerHale (including every attorney at Morrison & Foerster and WilmerHale
who has a current appearance in this case on behalf of Apple) and the in-house
litigation team within Apple. We have not identified any attorney or other
member of the litigation teams who was aware that Mr. Hogan had been a party to
lawsuits involving Seagate until after the conclusion of trial, when Samsung
raised the matter in connection with its post-trial motions."

"4. On the evening of July 30, 2012, following jury selection, members of
the litigation teams at WilmerHale and Morrison & Foerster became aware,
based upon publicly available records, that Mr. Hogan had filed for bankruptcy.
No attempt was made to obtain or review the contents of the bankruptcy court
file, which the teams first saw after the conclusion of the trial when they were
submitted by Samsung in support of its JMOL submission."

So Jacobs and Selwyn (in my fantasy) scrupulously surveyed the litigation team
-- lawyers and non-lawyers -- and asked them when they first learned about
Hogan's lawsuits. They did not ask about the Gun Note. None of the team
members surveyed said that they learned about those lawsuits until Samsung's
motion educated them.

Notice that they do not say that they asked other lawyers at the various firms,
nor other non-lawyers. Just the litigation team. They were able honestly to
state what they did when they told the court about their survey.

This is my fantasy negative pregnant: that Jacobs and Selwyn may have known
from the Gun Note that someone (at one of the firms or at Apple) who could put
things in the file knew about Hogan and Seagate, but that the litigation team
members did not. Their statement is carefully crafted to evade that (not that I
believe that this is actually what happened).

[ Reply to This | # ]

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