The two issues that she has asked the parties to brief more fully are that she'd like Apple to respond to Samsung’s contention that a new trial on damages alone violates the Seventh Amendment. And she'd like Samsung to respond to Apple’s contention that "immediate appeal of this Court’s Order Re: Damages filed on March 1, 2013 is not viable". The biggie is the Seventh Amendment issue, simply because while judges have a lot of discretion, what they can't properly do ever is violate the Constitutional rights of a party. So if Samsung can convince her this is what an immediate trial is going to do, she will have no choice. Samsung's position is that there were errors in the jury instructions, and so having a trial on damages requires also reconsidering liability because “proof of injury” goes to both issues. But Apple gets to speak on the matter, so we will have to wait and see what happens, and the fact that she's asked the parties to attend the April 29th conference and come up with a trial schedule tells me that she is at least tentatively leaning Apple's way at the moment.

There are other filings, as is the parties' wont, and one is Apple letting the court know that the final office action by the USPTO isn't really "final" final. It can appeal the USPTO's decision that invalidated claim 19 of the Apple '381 patent, the bounce back patent, even when it really is final. But frankly, I take this as more a Michael Jacobs PR document for the public than a legal one for the judge, in that the judge already knows how USPTO reexaminations procedures work. She knows what a final office action means, and so she also already knows what a final office action usually indicates about the most likely end result, although in patent litigation, your odds at any given point are usually about 50-50, and that's one problem with patent law. No doubt there will be lots of appeals, since Apple, and Samsung too, just can't seem to get enough of litigation and motions, motions, motions, because it's so much fun.

Hmm. Not so much these days for Apple, huh? The trouble with declaring that you intend thermonuclear destruction of a competitor is, they get to hit you back. And the fact that Apple now has to try to undo the USPTO's devastating decision means that Apple indeed is not currently holding the winning hand with any certainty, despite any brave assertions that it will bounce back on the bounce back patent. On the other hand, the same is true for Apple's "win" at the jury trial. It's getting whittled back and whittled back, and it's surely true that it ain't over 'til it's over in patent litigation, and that means after the final appeal is over. That's why investing in litigation is for fools, in my view. You can't predict the outcome, unless one of the parties is the SCO Group, if you know what I mean. And I can't help but notice that the '381 patent is mentioned in some materials [PDF] that Apple files in support of its response to Samsung's motion for reconsideration regarding opening statement slides, whatever that's about. So the beat goes on. Neither side will ever stand down voluntarily, and they'll keep on filing motions and fighting and fighting and fighting until something makes them stop by ringing the final bell.

One thing the parties do agree on wholeheartedly is that they'd like the judge to quit ordering their private information unsealed, so there's more about that, with Apple putting in a declaration in support of Samsung.

This Final Office Action by the USPTO is relevant because it finally rejects multiple claims of the ‘381 patent as being anticipated under 35 U.S.C. §102 by PCT Publication No. WO 03/081458 to Lira. This final rejection includes claim 19, which is the only claim of the ‘381 patent at issue in this action. The jury found at trial that 21 accused Samsung products infringed claim 19 of the ‘381 patent—specifically, the Captivate, Continuum, Droid Charge, Epic 4G, Exhibit 4G, Fascinate, Galaxy Ace, Galaxy Prevail, Galaxy S, Galaxy S 4G, Galaxy S II (AT&T), Galaxy S II (i9100), Galaxy Tab, Galaxy Tab 10.1 (WiFi), Gem, Indulge, Infuse 4G, Mesmerize, Nexus S 4G, Replenish, and Vibrant. The jury awarded damages as to 18 of these products. Some, but not all, of these damages awards have been vacated for new trial.

The current moves result from Judge Lucy Koh's ruling ordering a new trial on 14 Samsung products to recalculate the damages owed to Apple, because, she ruled, the jury awarded damages on those products based on a legally impermissible theory. In the vernacular, they goofed, so the math was wrong. It was so messed up by the jury, and so untraceable as to methodology followed, she couldn't fix it for them but rather decided to order a new damages trial instead. But on other products and on Samsung's counterclaims, she said the jury's rulings should stand, subject to appeal.

It's the new trial in particular that is causing strategic maneuvering. When should it happen? The judge encouraged the parties to wait until after the appeals court rules on whether or not there were errors in the first trial. Except for the 14 products, the rest is ready to be ordered as a partial final judgment. Samsung would like the judge to do exactly that, while also ordering a stay pending the appeal, saying it makes sense to wait in that "the Federal Circuit’s decision will shape the course of any new trial, including issues related to patent validity, trade dress dilution, liability instructions and the proper measure of damages."

But Apple wants to go forward with the damages trial right away, before these issues can be resolved. Ask yourself why.

For those unfamiliar with the U.S. Rules of Civil Procedure, a 12(b)(6) motion is a defense motion to throw out the law suit because the plaintiff has failed "to state a claim upon which relief can be granted." In this case, Red Hat (providing legal counsel on behalf of Rackspace under Red Hat's indemnification) argued that the asserted patent was invalid and, thus, Uniloc failed to state a proper claim. No discovery. No Markman hearing. Nothing but the arguments the defense set forth in its brief (16 [PDF; Text]) and reply brief (25 [PDF; Text]) supporting its motion and oral arguments with respect to the same. Judge Leonard Davis of the Eastern District of Texas agreed that the asserted patent claimed failed as patentable subject matter in contradiction of Section 101 of the Patent Act. GAME. SET. MATCH.

At issue was what should go into the public record of this litigation. And the biggest question discussed was, what is a trade secret? It for sure is any secret business process or information that isn't generally known, like the recipe for Coke, that your business builds the business around, the publication of which would ruin the business. Its value is its secrecy. But is the line the parties are trying to draw in this case broader than that central definition, so that they are seeking to cover pretty much any business information? There is a difference between a trade secret and a business secret, so which is which in this case? Specifically, does the law protect all historical company marketing research and financial information, as the parties hope the court will decide? It's not a silly issue they are raising. Imagine if you knew that seeking legal redress in the courts meant all your business secrets now become public knowledge? Might it hold you back from seeking the courts' help? If so, that would be detrimental. So there is a line. The question is, where is it in this case?

Reminder -- We are still prior art searching: I'll tell you some of the highlights, but please don't forget that we are still searching for prior art on Nokia's patents it claims WebRTC may infringe, specifically the VP8 video encoding scheme proposed as part of this standard, right here, and if you are free to do so, please contribute your expertise. The goal is to make the proprietary side say, "Curses, foiled again" and help to ensure that the free and open Internet can't be severely restricted by such patents. So the more prior art we find, the better. A Groklaw member sent me this this article in the Harvard Business Review, "Feeling Stumped? Innovation Software Can Help" and it is about a tool called Analogy Finder, a program that mines the U.S. Patent Database for analogous solutions. Here's the demo. Can some of you give it a whirl? Here's how you get going:

You start with two words that describe what you are looking for. ... From here, the program will take the two words and basically find all the patents that are relevant to the original goal — however that goal is expressed. It will then allow you to narrow and order the results in various ways. The program will even take into account what areas you are an expert in so you don't waste time looking at solutions that you would already have thought of.

03/25/2013 - 1108 - MOTION for Hearing re 1095 MOTION to Reopen Case filed by Plaintiff SCO Group. (Hatch, Brent) (Entered: 03/25/2013)

Nokia just disclosed a list of patents that it claims VP8, the video compression format used by the WebM Project, infringes, and the way they filled in the form, the list looks as long and scary as it could possibly look, and just as the IETF was trying to reach consensus on VP8. But when you break the Nokia list down, country by country and then by patent, it's not so impressive after all. As it turns out, there are just a few patents repeated over and over. I think it's short enough that we can sensibly try to find prior art.

By the way, did you know that anyone, individual people I mean, can join the IETF mailing list and participate in the conversation? It's free, and while individuals may have affiliations and most do, it's not the kind of thing where companies or countries can dominate the way we watched happen in the OOXML affair, because unlike ISO or ITU, there are no national bodies to bribe influence, just individuals expressing their own opinions. The IETF is a completely open standards body. If you'd like to and feel you understand the technology, you can join the mailing list and contribute to the decision-making process. It works by consensus. No need to bring your wallet.

Don't read on unless you are free to read patents, as usual.

Los eventos FLISOL frecuentemente promueven y distribuyen Ubuntu. Eso siempre era un problema. Aunque Ubuntu es una distro de GNU/Linux, contiene también programas privativos. Ha olvidado la meta de un sistema libre. [PJ: FLISOL events frequently promote and distribute Ubuntu. This is always a problem. Although Ubuntu is a GNU/Linux distro, it contains proprietary programs. It has forgotten the goal of a free system.]

Ubuntu ya hace algo peor: espía al usuario. Las funcionalidades malevolas, que son comunes en el software privativo, son inusuales en el software libre; pero nuestra defensa no es perfecta. Uno de los pocos ejemplos de spyware en el software libre es Ubuntu. [PJ: Ubuntu does something worse. It spies on its users. Malevolent functionality which is frequently part of proprietary software is rare in free software, but our defense is not perfect. One of the few examples of spyware in free software is Ubuntu.]

Véase por favor http://gnu.org/philosophy/ubuntu-spyware.es.html. [PJ: Please read this (at the link). The same material in English is here.]

Les pido entonces que, en sus eventos FLISOL, no distribuyan ni promuevan Ubuntu. [PJ: Therefore I ask you that in the FLISOL events, you don't distribute or promote Ubuntu.]

After Steve Jobs died, I read an article that quoted his widow as saying something to the effect that just because someone is a genius in one area, it didn't mean he was a genius in all areas. I found that a charmingly honest statement that all wives for sure would understand, with all its overtones and undertones reverberating in the air. One thing that watching Jobs' plan to destroy Android play out in courtrooms has made obvious: he was not a genius at the law. Unquestionably, the Apple brand has been damaged by the litigation against Samsung.

And it may be about to get worse. Here's what is threatening to happen next: The parties were in agreement that the district court was unsealing too many company secrets and both are appealing to the Federal Circuit to keep things sealed. They agreed that they don't want to stand naked before the world, with all their trade secrets exposed. Unfortunately for them, they happened to draw two judges who believe litigants have to endure more of a spotlight than they might enjoy if they choose to litigate, because the public has rights too. Who knew that would happen? Clearly not Apple, a company that is known for its secretiveness. And the appeals court has just ruled that an eager band of journalists will be allowed to argue against sealing of the parties' relevant documents at the upcoming oral argument on the point on March 26.

Dow Jones & Company, Inc., The First Amendment Coalition, The Reporters Committee for Freedom of the Press, American Society of News Editors, Bloomberg L.P., Gannett Co., Inc., The New York Times Company, The Washington Post and Society of Professional Journalists will appear at oral argument, and a lawyer from The Reporters Committee for Freedom of the Press, Gregg R. Leslie, a staff attorney and legal defense director there, will share its allotted time with the attorney from the First Amendment Coalition. Together, they will argue that the parties are asking that too much be sealed in the Apple v. Samsung case, the first one, that the district court should be upheld, because the public has a right to know what is going on.

Mr. Kirtsaeng, for any here who are new, is from Thailand, and he came here to study at Cornell. To help fund his education, he had his family buy books in Thailand published abroad, send them to him, and he then resold them in the US. He made about $100,000 that way, and the publisher took note. John Wiley & Sons sued him for copyright infringement, and at the district court level and at the appeals court, they prevailed. The Supreme Court, however, overturned, saying that once the publisher sold its books, that was the end of their control over them, thanks to the first sale doctrine. The court noted that there is no geographical language limiting it just to the US:

Putting section numbers to the side, we ask whether the “first sale” doctrine applies to protect a buyer or other lawful owner of a copy (of a copyrighted work) lawfully manufactured abroad. Can that buyer bring that copy into the United States (and sell it or give it away) without obtaining permission to do so from the copyright owner? Can, for example, someone who purchases, say at a used bookstore, a book printed abroad subsequently resell it without the copyright owner’s permission?

In our view, the answers to these questions are, yes. We hold that the “first sale” doctrine applies to copies of a copyrighted work lawfully made abroad.