If anyone is in the Denver area or is free to get there in May, it's time to start to plan. It's a wonderful opportunity to see Mr. Boies in person doing what he does best. And David Tulchin, for Microsoft, is considered one of the best appellate lawyers in the country. And most of all, the Groklaw family is hoping for news from the courtroom, if there is any way a volunteer can be available.

And now I've come across something that I think might be helpful, a May 19, 2010 memo [PDF] by Attorney General Eric H. Holder, Jr. to all federal prosecutors, letting them know that he wanted them to be fair and reasonable in exercising their prosecutorial discretion. He told them that he wanted them to be flexible, too, not necessarily bound by maximum/minimum guidelines, but to look at the individual circumstances of each case, stating that the "reasoned exercise of prosecutorial discretion is essential to the fair, effective, and even-handed administration of the federal criminal laws". That raises a natural enough question, of course, about whether that policy was followed in the Swartz case, but that isn't what struck me. It's this as BLT explained it at the time:

The May 19 guidance, which replaces previous memos from then-Attorney General John Ashcroft and then-Deputy Attorney General James Comey, says all charging decisions must be reviewed by a supervisory attorney. All but the most routine indictments should be accompanied by a document that sets out charging options and explains the charging decision. People who commit similar crimes and have similar culpability should be treated similarly.

Based on their questions and their past rulings, the judges seemed divided, said Brad Wright, a patent lawyer with Banner & Witcoff in Washington who attended the hearing. “The court appears fractured and a split decision is likely,” Wright said.

I have collected a couple of other reports on the hearing, and then we have our own. Ours is hilarious, in the way that only geek pain plus indignation plus despair plus a touch of amazement at tech cluelessness can provide.

Yes. Another 'is software patentable' case. Or is this patent so blazingly obvious it is invalid? If so, how about if the patent claims the magic happens when folks do it "using a computer"?

I agree with him in the abstract, so to speak, that software patents require increased disclosure. He has ruled that the means-plus-function software patents Motorola was using in this litigation are, without specifically disclosed algorithms, invalid in that he decided the algorithms claimed were insufficient as vague:

Accordingly, where the disclosed structure corresponding to a means-plus-function element is a computer-implemented algorithm, the algorithmic structure must be disclosed....

Because neither the examples of a decoder, nor the definition of a decoder, identified in the specification amount to anything more than a programmed general computer or a functional description, the court requires disclosure of an algorithm corresponding to the “means for decoding” and “means for using” limitations....Although the specification describes how one of skill in the art would ascertain what blocks to consider when decoding, the specification provides no guidance as to how one of ordinary skill would actually decode the considered blocks. Thus, the court concludes that the specification contains no disclosure that supports Motorola’s proposed algorithm (or any other algorithm) for corresponding structure to the decoding function required by the “means for selectively decoding” limitation of claim 13 of the ’375 Patent.

You doubt that software patents need to go? Look at all the trouble they are causing.

But I thought you might like to see what Newegg did just prior to that victory, something that is still pending. In early December, Newegg filed an amicus brief [PDF] in the appeal of Apple v. Motorola, the Illinois litigation that Judge Richard Posner tossed out with prejudice, saying neither side had proven damages. He never let the case go to a jury. Part of what Newegg asks the Federal Circuit to do is to remind district courts of the need to take seriously their gatekeeper role and act more like Judge Posner did in that case. The brief asks for more than just the need for establishing a causal nexus. Jury awards, they argue, are preposterously high and totally unpredictable. They have some suggestions on how to bring damages awards out of the stratosphere and back to realistic earthly levels.

Wouldn't it be ironic if the courts were to respond to the smartphone patent wars -- which Apple and Microsoft got into to try to destroy Android -- by reevaluating how patent infringement damages awards are calculated, so that such litigation tactics no longer paid off and companies had to go back to innovating and competing in the marketplace instead of trying to clobber each other with questionable patents in courtrooms?

Ah. "And business recrods." Burdensome to whom? To whom would SCO's business records be burdensome? Not me. I hereby volunteer to pay for storage for those records, in order to preserve them. Obsolete how? Does the bankruptcy court know that SCO has a petition [PDF] before the US District Court in Utah asking the court to reopen SCO's litigation with IBM?

The excuse is money. They are paying to store them, poor dears, as of January 31, I gather, since they ask the court to authorize payments nunc pro tunc back to that date. Either that, or there's more to this story than you can find in the motion. They also ask the court to let it not inform all its creditors about this. Heh heh. Imagine how messy it could get if they all showed up asking for a computer or shelving.

"What tribbles are to the Starship Enterprise, Captain Kirk, and Mr. Spock, the parties’ ever-multiplying sealing and redaction requests are to this case, Judge Koh, and the undersigned."

: )

But Apple and Samsung must be groaning. The trouble with Tribbles, of course, is that there's no seeming end to them -- "they are born pregnant" and threaten to consume all the onboard supplies, but Judge Grewal, like Spock, is immune to their effects, so he refuses most of the requests, saying over and over that the parties have failed to show in a particularized way how revealing the materials would be harmful.

But as I read the list I can see how they might be, particularly because the parties are suing each other all over the place, not just in this one courtroom. Having said that, as a member of the public, I'm personally looking forward to reading every last one of them. I find these Tribbles adorably appealing.

Say, how's that thermonuclear war against Android working out?

We are going to respond to the USPTO's Topic 2 question as well, but the deadline for Topic 1 looms, so we'll start with Topic 1 for now and I'll post the Topic 2 draft later. The first roundtable panel will be February 12th, so I'd like to submit by that date.

Next stop, appeals court, where we will find out if they agree with Judge Koh that the trial was fair. Meanwhile, poor Apple will have to make do with a mere $1 billion as its jury award. We'll see if that stands on appeal too. A billion dollars for infringement that was officially not willful. Your US patent law at work. How do you like it?