A blanket denial of the right to seek injunctive relief, Motorola argues, violates patent law, contradicts eBay v. MercExchange [PDF], where the US Supreme Court held that it was error to come up with a categorical rule that “injunctive relief could not issue in a broad swath of cases”, and violates the original expectations of donors of technology to standards bodies. In fact, it says any such rule would violate the US Constitution, which provides that Congress shall have power to secure exclusive rights for inventors, and in the Patent Act Congress came up with, it says every grant to a patentee includes the right to exclude others. Motorola asserts that it has never waived its rights to injunctive relief and states that there is no language in its ETSI agreements requiring it to do so. Motorola argues that there should continue to be a case-by-case analysis under eBay, with judges having discretion to make such decisions based on the particular facts of each case.

Fair warning, though: the PDF is 737 pages. The actual brief is one-tenth that, 73 pages, so I've done that part of it for you as text. The rest is a collection of patents at issue, judge's orders in this case, and one from a related Apple v. Motorola litigation in Wisconsin, which is where this case began, before being transferred to Illinois and Judge Posner.

The chairman of the hearing, US Representative Bob Goodlatte, opened with a statement, as did several members of the subcommittee with a little speechifying of their own, and then the invited witnesses of the day each told about their company's experiences with abusive litigation, except for one, a lawyer whose firm represents trolls and who opined that the patent system is working well overall. If you click each of the following names of the witnesses, you can download as a PDF the written testimony each provided in advance:

• Mr. Mark Chandler, Senior VP, General Counsel and Secretary, Cisco Systems, Inc.
• Ms. Janet L. Dhillon, Exec. VP, General Counsel and Secretary, J.C. Penney Company, Inc.
• Mr. John G. Boswell, Sr. VP, Chief Legal Officer and Corporate Secretary, SAS Institute, Inc.
• Mr. C. Graham Gerst, Partner, Global IP Law Group, LLC
• Mr. Philip S. Johnson, Sr. VP and Chief IP Counsel, Johnson & Johnson
• Mr. Dana Rao, VP and Assoc. General Counsel for Intellectual Property Litigation, Adobe Systems, Inc.

There is now a video on this page for those with the stomach for to watch the entire hearing and who have the ability to view something in .wvx format, which doesn't include me.

I think Congress is stuck in the 80s, when Microsoft ruled the world. They don't realize most of us moved on a long time ago, and if they want a lot of citizens to watch these hearings, they need to provide it in the formats that most of us now use. And that very much isn't .wvx. I haven't used Windows Media for almost a decade, and I'm not starting again now. There really is no excuse for any government to force its citizens to use a proprietary format from a private company in order to participate in civic life, and that's especially true when you consider that you have to pay for Windows Media.

And with that sad detail aside, here's Webster's account of the day.

We are also publishing here on Groklaw a more detailed supplement on those four topics, explaining in depth why we propose them, with references, on the theme, "Using Semiotics to Identify Patent-Eligible Software". The supplement is referenced in the document sent, if they wish to read more in-depth arguments, based on interest level.

It has once again extended the deadline to announce its decision until May 31 as a result. It is asking for written submissions "from the parties and from the public" on the issues.

This is rather stunning. The Essential Patent Blog says this may "imply that the Commission could be leaning toward a finding that Apple infringes U.S. Patent No. 7,706,348 – a patent that Samsung has alleged is essential to the UMTS 3G cellular standard — and is now trying to decide what if any remedy it should order."

I know this interests many of you because of the Aaron Swartz case. So here's the video of the entire hearing, including the testimony of Orin Kerr, which begins at around the 52:11 mark. His written testimony is here [PDF]. He's been trying to get reforms of the CFAA for many years. And EFF has materials on what you can do, should you choose to, here.

Neither party has demanded a jury in this case, so all remaining issues, including Motorola’s breach of contract, should be tried to the bench. The Federal Rules require that any party seeking a jury make a timely demand, in writing and filed with the Court—and the failure to do so constitutes waiver. Motorola had two weeks from the filing of its Answer in June 2011 to make a jury demand, and it has never done so. Motorola noted in multiple status reports prior to its Answer that it was still considering a jury demand in this case, but decided not to make one. Motorola made a jury demand—explicitly limited to its H.264 patent infringement claims—in the consolidated patent case, in a pleading filed on the same day as its Answer in this case. Motorola was well aware of its jury right in the contract case, and deliberately waived it. The fact that Microsoft’s breach of contract action, in which neither party demanded a trial by jury, has been consolidated with Motorola’s patent case, in which Motorola demanded a jury trial only as to patent issues, does not cure Motorola’s jury trial waiver in the contract action. Motorola apparently would now prefer that this case be tried to a jury rather than the bench, but the Rules do not provide that option. Because Motorola has waived any jury right in this case, the liability phase of Microsoft’s breach of contract case, like the RAND determination phase, should be a bench trial.

We came up with four topics for future discussion. You may think of others. Because we have to file this on Friday, and that means if you want to contribute a thought, please do it by Wednesday.

We are also publishing a more detailed supplement on those four topics, explaining in depth why we propose those four topics, providing some foundation and providing resources. This we will not sent to the USPTO, but it is referenced in the document we will send, if they wish to read more. If you think my decision on that is flawed, let me know. But all they asked for is topics. If we overwhelm them with a lot of what they didn't ask for, I worry that it would be counterproductive. The USPTO will be publishing the comments they receive, and so both documents will be available to the world, and people can read it or not based on their interest level, which is part of the purpose. I would particularly appreciate your help with the supplement.

Virtually none isn't none, so Apple adds that the only reason there is any real overlap is because Samsung "chose to accuse some of the same products in both cases." Like that doesn't count. Samsung is the counterclaim-plaintiff here. Apple says Apple shouldn't have to wait on Apple's claims just because Samsung has its own claims. "The Apple patents at issue in this case are from completely different families, cover different technologies, and solve different problems than those in the 1846 Case. None of the 1846 Case appeals, therefore, will resolve any issue affecting claim construction, infringement, or validity of the patents asserted in this case."

Not the world's best argument, unless you think the judge is willing to split the cases up. And if we can safely say that there is a judge who has had enough of the demands of both Apple and Samsung, I think we may say it is Judge Lucy Koh. But Apple wants to stop Samsung's new products from infringing Apple's patents, as it sees it, not the old ones in Apple v. Samsung I (where it wants an injunction -- hence the pending appeal), because it wants to avoid "irreparable harm" to Apple. That's a magic phrase that might work. Samsung keeps launching new products -- Apple calls it a "relentless launch" of infringing devices causing harm to Apple. That's the same as saying Apple can't compete as things now stand.

Samsung counters that there is too an overlap, not only in products but in legal facts and theories. Why risk having a do-over, if the appeals court rules that the judge is making errors that implicate how discovery and the trials are being administered or everyone is following legal theories the appeals court knocks down?

"The reports we were receiving had not signaled us of this breach," said Joaquin Almunia, the head of the antitrust agency, when asked how the oversight went undetected for over a year.

Those reports, it turned out, were coming from Microsoft. "We trusted in the reports on the compliance [from Microsoft]," said Almunia. "We were not trying to explore Windows Service Pack 1. But maybe we should have tried to complement their reports."

He admitted the Commission may have made a mistake letting Microsoft police itself, rather than appointing an external overseer. "In 2009, we were even more naive than today," Almunia added.

What about the fact that in effect Microsoft has been able to "buy" noncompliance? By that I mean, the browser screen was supposed to be made available for 5 years. It wasn't made available for 14 months. Is the browser screen going to be kept in effect 14 months longer than the original cutoff date, to make up for that breach? According to this New York Times article, the date is still 2014. If so, Microsoft makes out like a bandit, once again. I've written to the EU Commission asking them about this issue, and I'll post any reply I receive.

Update: I heard from Maria Madrid, Press Officer: "The formal duration of the commitments has not been extended, but the Commission takes note that Microsoft intends to offer the browser choice screen for an additional period of 15 months after the end of the commitments."

I showed you RIM's and CCIA's last time, two of the entities that don't think it's right to take away property rights from patent owners. And here are two more, the Washington Legal Foundation [PDF] and Qualcomm [PDF]. WLF argues that what the FTC proposes is in excess of its authority and its expertise, that it's a violation of the Noerr-Pennington doctrine and the First Amendment. Qualcomm says if the FTC makes this a template applicable to everyone else, it will result in more litigation, not less. I've done them both as text for you, and I have snippets from several more, who raise serious questions about the legality, including the Constitutionality, of what the FTC is proposing.