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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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Interestig question for Mr. Horn | 141 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Relevance of Distance
Authored by: IMANAL_TOO on Sunday, January 27 2013 @ 02:38 PM EST
"We haven't been covering each painful inch of this litigation, so maybe I
missed it, but has this judge ruled for Motorola yet in anything? If so, email
me please, and I'll add it to the article. All I know is, every time I parachute
into this courtroom in Seattle, so to speak, to see how things are going, the
judge has just ruled for Microsoft again."

Is there a correlation between court success and the distances between the
headquarters of two companies and the court where they meet? I don't know, but I
guess that kind of statistics should be available somewhere.

According to Google Earth, it is 2,037 mi between Schaumburg, IL and Seattle WA,
a 29 hour drive. It is 15 mi between Redmond, WA and Seattle, WA, a 15 minute
drive.

Microsoft is in Redmond and Motorola in Schaumburg.



---
______
IMANAL


.

[ Reply to This | # ]

Corrections Thread
Authored by: bugstomper on Sunday, January 27 2013 @ 02:38 PM EST
Please summarize in the Title box error->correction or s/error/correction/ to
make it easy to scan see what needs to be corrected and to avoid duplication of
effort.

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Sunday, January 27 2013 @ 02:39 PM EST
Please stay off topic in these threads. Use HTML Formatted mode to make your
links nice and clickable.

[ Reply to This | # ]

News Picks Threads
Authored by: bugstomper on Sunday, January 27 2013 @ 02:41 PM EST
Please type the title of the News Picks article in the Title box of your
comment, and include the link to the article in HTML Formatted mode for the
convenience of the readers after the article has scrolled off the News Picks
sidebar.

Hint: Use Preview to check that your links are ok. Avoid a Geeklog
"feature" that posts long links broken by inserting line breaks in the
URL at punctuation points such as
<a href="http://www.example.com/xyzblahblah_
blahblah/abcblahblah/defblahblah?
abcblahblah
.html">text</a>

[ Reply to This | # ]

Comes transcripts here
Authored by: bugstomper on Sunday, January 27 2013 @ 02:42 PM EST
Please post your transcriptions of Comes exhibits here with full HTML markup but posted in Plain Old Text mode so PJ can copy and paste it

See the Comes Tracking Page to find and claim PDF files that still need to be transcribed.

[ Reply to This | # ]

MS v Motorola: The Parties File Their "Extrinsic Evidence" for Hearing on Monday in Seattle ~pj
Authored by: tknarr on Sunday, January 27 2013 @ 03:06 PM EST

It seems to me that what this particular MPEG LA license is doing is pretty straightforward: the company identifies which subsidiaries/affiliates it wants covered and pays a license for itself and them. Those that it brings into the license gain access to the pool's patents right along with their parent, and have to grant licenses to their own patents in return. Those that aren't brought in don't gain access and don't have to grant licenses. That allows for companies that have divisions with valuable patents that don't need anything from MPEG LA to exclude those divisions without having to exclude the entire company (MPEG LA would presumably rather get some of the company's patents and royalty payments than get nothing and possibly have the company that it'll be easier to engineer around the patents than to negotiate with every individual MPEG LA member it needs patents from). I wonder if there's discussion anywhere where the MPEG LA takes an official position on that?

[ Reply to This | # ]

Don't you know it's the water
Authored by: Anonymous on Sunday, January 27 2013 @ 04:25 PM EST
> every time I parachute into this courtroom in Seattle,
> so to speak, to see how things are going,
> the judge has just ruled for Microsoft again.

Living in this besmirched enclave, I wonder why it's surprising when the locals
back the big companies.

Not that we vote with our feet or anything.

[ Reply to This | # ]

MS is MS and Google is Google.
Authored by: SilverWave on Sunday, January 27 2013 @ 05:04 PM EST
That is I expect Google to prevail eventually, but the
"spin" from MS will take a while to work through.

MS have a lot of money and hire sharp lawyers, and seem to
have a venue advantage for the moment.

The thing about Google is they are fact driven so the way
this plays out is more "all is grist for the mill".

Its certainly shining a bright light on the way court
proceedings are handled here.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

We're glad you like contracts PJ
Authored by: Anonymous on Sunday, January 27 2013 @ 07:37 PM EST

Makes it easier for the rest of us.

Wayne
http://madhatter.ca

[ Reply to This | # ]

Who minds, anyway?
Authored by: Ian Al on Monday, January 28 2013 @ 04:25 AM EST
I'm going to read through this a few times, but I will not get to the bottom of
the effect of one company buying another company when both have separate
existing contractual agreements. I suspect that the answer is specific to the US
jurisdiction and is determined more by case law than statute.

However, I do remember that a contract is supposed to be based on a meeting of
minds between authorised officials of the companies making the contract. The
Google-MPEG LA contract needed lawyers on both sides to understand what the
meeting of minds was in order to write the terms and conditions of the
agreement.

In SCO v. Novell, the court and the jury were charged with establishing what the
meeting of minds, represented by the APA, was.

Microsoft have stated in the evidence that Motorola withdrew from the
discussions with MPEG LA and therefore there was no such contract between them.

There was an alleged meeting of the minds between Google and MPEG LA, but that
has now been put in abeyance because the lawyers cannot agree what the meeting
of the minds, was. That could be resolved in a court of law in the same way as
SCO v. Novell, except that Google and MPEG LA are not opposing parties in a
court of law disputing the contract terms.

Only when that happens can the court establish what the meeting of minds between
the company officials was that resulted in the contract terms. I cannot see that
the present judge has the authority to decide what the meeting of minds was
without hearing evidence from the company officials who let the contract rather
than a lawyer who may or may not have been instrumental in writing the
contract.

Also, the judge cannot come to an opinion without a detailed review of the terms
and conditions written into the contract as happened in SCO v. Novell.

As I see it, there is legally no contract between Motorola and MPEG LA because
there was demonstrably no meeting of minds. The contract between MPEG LA and
Google cannot be enforced by the courts in any way until a court adjudicates on
what the meeting of minds actually was.

Microsoft cannot be a third party beneficiary of the MPEG LA - Google contract
until the courts resolve the meeting of the minds establishing what those third
party benefits are in law. Microsoft cannot be a third party beneficiary of a
MPEG LA - Motorola contract because Microsoft agree that there wasn't one.

The only way that Microsoft can be a third party beneficiary is because of the
non-contractual agreements between Motorola and the ITU and Motorola and the
IEEE. As I have noted before, there is no evidence that officers of Motorola and
the ITU or the IEEE and their company lawyers set the contract terms expressing
the meeting of minds and no evidence of the signing of such a contract by both
sides.

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

[ Reply to This | # ]

Apparent favour by the judge may not reflect ACTUAL favour
Authored by: Ronny on Monday, January 28 2013 @ 09:17 AM EST
When SCO vs. Novell was ongoing, a few people complained about how often the
judge seemed to rule summary judgements and other matters leading up to the case
in SCO's favour. Of course, the final verdict was thoroughly in favour of
Novell.

I always thought this was due to a desire to ensure that the decision reflected
the most pessimistic possible assumptions in order to reduce the chances of an
appeal succeeding.

If the judge in MS vs Motorola has also read the contracts, could it be that the
judge is following a similar tactic? That is, he knows who is in the right, but
on the raw facts in front of him he can't make a summary judgement yet, so he's
laying the ground for a Motorola win later.

On a similar topic, the fact that a dispute exists doesn't mean that the lawyers
or even the parties disagree about the meaning of the contract. It only means
that they disagree about the interpretation of the contract that is most
favourable to them.

This probably explains a lot about the third-party liability
"industry" and the sorry state of the courts today, in that for many
people it's not about what's right, but what they can get away with.

[ Reply to This | # ]

Enterprise or Executive?
Authored by: lnuss on Monday, January 28 2013 @ 10:19 AM EST
PJ,

I'm slightly confused about the type of license Google has, only in the sense
that sometimes you refer to it as Executive and sometimes as Enterprise.

Granted I've not read all the contracts, etc. but the stuff you quoted in the
article all seemed to refer to Enterprise.

Or, perhaps I missed something.

Thanks,

---
Larry N.

[ Reply to This | # ]

Interestig question for Mr. Horn
Authored by: Anonymous on Monday, January 28 2013 @ 01:10 PM EST

If it's true that all affiliates are always covered - and a new purchase automatically brings the affiliate under the cover of the license:

    Why did MPEG LA include language that would indicate a Licensee can remove affiliates covered by the agreement?
Logically: Isn't it impossible to remove something that can't be removed?
Such entities will be listed in Attachment A to this Agreement and may be updated from time to time if Google provides written notice of its desire to include or remove Affiliates ...

RAS

[ Reply to This | # ]

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