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No Legal Advice

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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Lost in the fog | 81 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Thoroughness versus brevity...
Authored by: jkrise on Thursday, January 03 2013 @ 12:09 PM EST
Sorry, that was me; forgot to log in.

[ Reply to This | Parent | # ]

Thoroughness versus brevity...
Authored by: jkrise on Thursday, January 03 2013 @ 12:18 PM EST
Should the first Office actions tentatively invalidating the rubber-banding and the touchscreen heuristics patents be affirmed at the end of the proceedings (after all appeals have been exhausted), Apple would lose two iconic patents, but it would still have thousands of other patents, including hundreds of multitouch patents. from http://www.fosspatents.com/2012/12/us-patent-office-declares-steve-jobs.html

[ Reply to This | Parent | # ]

Juries and patience
Authored by: Anonymous on Thursday, January 03 2013 @ 12:43 PM EST
While it might be possible that a court could maintain it's attention to
hundreds of patents, it's unlikely that a jury could. It's obvious that the jury
in this case did not spend the time to carefully examine the evidence even in
the limited number of patents, covering hundreds of patents would be worse. Then
one gets into the problem that the courts are clogged with cases and they don't
really have time to handle them all.

For another way of looking at this, if Apple has hundreds of multitouch patents,
then none of them are individually worth much, given the thousands of patents
likely covering the products. None of them can really be a significant
contributor to the buyer's desire for the product, but only in aggregate. This
would lead to a significantly lower per-patent royalty. What the courts try to
do for economy of everyone's time, is to make the plaintiff pick what they
believe are the most valuable patents to try. In actuality though, they are
still unlikely to have a significant or even non-zero value to the consumer in
isolation.

[ Reply to This | Parent | # ]

Thoroughness versus brevity...
Authored by: Anonymous on Thursday, January 03 2013 @ 12:58 PM EST
Do you want the honest answer to this? Because any given
system of law has to balance (among others) the following
competing interests:

Truth, "justice" (or equity), finality, and cost. Some of
those interests are closely correlated (truth and equity,
finality and cost, for example). Others... not so much
(truth and finality).

So let's take this example. It is your belief that because
you think this case is important to you, it should be given
special rules that don't apply to other cases. Well, your
beliefs don't matter. The law doesn't care what you think
about the case, and what your interest is (in the law, this
would be considered your standing to get involved in the
case). But what about the parties' interests? You assert
that because Samsung and Apple are litigating over a billion
dollars, they should be given special treatment. However,
the billion dollars to these two large corporations isn't a
big deal to them. Does this matter more than an individual
facing life in prison? A person who might get their social
security cut off? A small company facing a $500k verdict? A
union facing a $50k verdict it can't pay? An individual
facing foreclosure? More importantly, the law can't give
special consideration to certain litigants because their
cases are so super-duper important*, otherwise the very
appearance of impartiality that you worry about would be
destroyed.

I think what many people don't understand is that the only
reason that so many of these issues get briefed and
addressed in this case (over, and over, and over again) is
*because* Apple and Samsung can afford expensive teams of
civil litigators who attempt to fight over every single
issue, thus necessitating some limits and causing the
testiness of the judge. Without some external limits, there
would never be an end to this litigation (the interest of
finality). As it stands, both sides have offered the best
cases that money can buy. And will continue to do so as they
appeal.

*This isn't quite correct; some types of cases are treated
differently than others for procedural reasons. A small
claims cases has slightly different rules than a death
penalty case, and this is codified (see also- appeals of
patent cases go to the fed. cir). In addition, some cases
are treated differently in practice than others. The rules
of evidence might be more relaxed in family court than in
civil litigation. But this is done by type of case, not
because the parties say their case is super important. The
main exception I can think of is that certain legal rules
allow for "matters of great public importance", such as a
discretionary writ of appeal in some state appellate courts.

[ Reply to This | Parent | # ]

Thoroughness versus brevity...
Authored by: rsteinmetz70112 on Thursday, January 03 2013 @ 01:36 PM EST
I actually think setting arbitrary limits is actually arbitrary and contrary to
justice. Prior to doing that I think the court should do it's job and rule on
matters of law and eliminate any allegations which do not pass legal muster,
including indefiniteness, before bringing in a jury. That should in practice
eliminate a lot of weak patents. I also think courts should defer more to the
reexamination process, allowing the USPTO to do its job. Hopefully the recent
changes in law will speed that process enough to make it useful.

For example in this case the Judge has expressed skepticism of at least one of
the patents on the basis of indefiniteness. That legal issue should have been
decided by the judge before it got to a jury. Everyone knew this case would be
appealed it makes no difference if that is an issue for appeal or if it's
damages or other issues.

---
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 | Parent | # ]

Lost in the fog
Authored by: Anonymous on Thursday, January 03 2013 @ 07:15 PM EST
It's already difficult and costly enough to defend ones business from attack via
patents that should never have been granted (and that's with a court imposing
limits at trial)!

That's why businesses settle, not because they were guilty of stealing ideas (an
idiotic notion if ever there was one) but because it's a bad economic strategy
to put your lively hood in front of a technically ignorant jury. Best to avoid
the courts really and, just maybe, that's why some use the term 'legal
extortion' when discussing such patent attacks!

Imagine a no limit trial where the truth would certainly be lost amongst
millions of pages of evidentiary fog one has to wade through. Imagine how any
juries would be able to get their heads around the millions of bits of
information thrown at them. The reality is that no judge or jury member would
cope with such information overload and the jury would certainly fall back to
voting for the person with the most carisma (justice and ugly don't apply).

[ Reply to This | Parent | # ]

Lost in the fog
Authored by: Anonymous on Thursday, January 03 2013 @ 07:17 PM EST
It's already difficult and costly enough to defend ones business from attack via
patents that should never have been granted (and that's with a court imposing
limits at trial)!

That's why businesses settle, not because they were guilty of stealing ideas (an
idiotic notion if ever there was one) but because it's a bad economic strategy
to put your lively hood in front of a technically ignorant jury. Best to avoid
the courts really and, just maybe, that's why some use the term 'legal
extortion' when discussing such patent attacks!

Imagine a no limit trial where the truth would certainly be lost amongst
millions of pages of evidentiary fog one has to wade through. Imagine how any
juries would be able to get their heads around the millions of bits of
information thrown at them. The reality is that no judge or jury member would
cope with such information overload and the jury would certainly fall back to
voting for the person with the most carisma (justice and ugly don't apply).

[ Reply to This | Parent | # ]

'the number of patents to be examined for potential violation'
Authored by: Ian Al on Friday, January 04 2013 @ 06:02 AM EST
You are only supposed to raise with the courts patents of which you have
actually found infringement.

It is only actual infringement that legally incurs recoverable damages and
warrants injunctive relief.

Otherwise, the courts would be full of legal fishermen who sue first and rely on
discovery to find something to sue about. The litigant with the largest patent
pool would be the most likely to succeed...

Darn, I think I have happened on another inconvenient truth.

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

[ Reply to This | Parent | # ]

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