Microsoft's airy arguments go something like this: Yes, we were a monopoly with 95% of the desktop market at the time, and yes, we reversed course after encouraging Novell to use APIs that we then decided not to support, but hey, we don't owe competitors anything. "A monopolist generally has no duty to cooperate with or assist a competitor whether the decision is 'intentional' or otherwise." We can change our business model any time we want to, as long as we are even-handed and the effect is on everyone, not just Novell. (Novell, however, was the one that Microsoft encouraged to use the APIs, and it was the one Microsoft feared, according to Novell, writing that the decision to drop support for the APIs "involved the intentional inducement of reliance.")

Besides, when Microsoft made the change, Novell had three ways to react, and it stupidly chose the worst one. That's not our fault, Microsoft argues. Novell sealed its own fate. It could have chosen differently, and it would have been better. Anyhow, it was a change to a beta product, and everybody knows you can make sudden changes in a beta. How could Microsoft know Novell was relying on that beta stuff? Because it had an employee who was working closely with Novell after Microsoft encouraged Novell to rely on the APIs, perchance? Anyhow, Microsoft says, everybody in the industry changes beta software, Novell included, so "...Novell cannot base a claim of anticompetitive conduct on a widespread industry practice." Um. Not everybody else had a 95% desktop monopoly. Capice? Novell has already said that it had three choices, but they were *all* awful.

What does it mean? It means Samsung has two shots to get what it is looking for. If Japan says no, in addition, it will confirm what Samsung told the California court. Both sides provided a lawyer declaration, Samsung's saying that Japanese courts don't order such discovery, and Apple's lawyer saying it does. So the judge wisely says, let it play out, and let's see. After it all plays out, then we'll all know.

You’ve probably seen the terrible news about the death of Aaron Swartz. It’s always horrifying when someone so young and so clearly talented feels they have no option but to take their own life. I know that this is something that shook the internet community deeply. And my thoughts are with his family, and what they must be going through right now.

This was a man who saw that greater openness can be good for citizens, and good for society. Hugely disruptive – but hugely beneficial.

For me, the case is particularly clear when there aren’t copyright issues, when information was already paid for by taxpayers, and when more openness can help new innovations and scientific discoveries.

I would never condone unlawful activity. But in my view, if our laws, frameworks and practices stand in the way of us getting all those benefits, then maybe they need to be changed.

Agree or disagree with his methods, Aaron could see the open direction we’re heading in, and its benefits. In the meantime, those scientists who are paying tribute by making their own work legally, openly available aren’t just showing their respects – they are also benefiting scientific progress.

I have a question for you. Do any of you have proof of having bought or received as a gift an iPhone prior to July of 2007? Because that's one of the things Samsung is looking for -- "all documents that evidence, reflect or refer to the sale, transfer, lease, or offer for sale of any iPhone" prior to June 29, 2007 -- and it is saying if that can be found, it could impact litigation in more than just the ones in Japan.

[ Update: If you go to Internet Archive, and search for Apple's home page, guess what you find? Ads for the iPhone. For example, if you go to April 29, 2007, there it is. If you mouse over the image, guess what the address is?

http://images.apple.com/home/2007/images/promoiphone20070130.jpg

That looks like January, so let's see: Yup. Introducing iPhone. However, if you click on it, you'll find this notice:

This device has not been authorized as required by the rules of the Federal Communications Commission. This device is not, and may not be, offered for sale or lease, or sold or leased, until authorization is obtained.

Apple a couple of months back filed its petition for rehearing en banc of an October 2012 order by the Federal Court of Appeals in Apple v. Samsung II that held that in order to obtain injunctive relief in a case where an accused product contains many features, a “patentee must . . . show that the infringing feature drives consumer demand for the accused product”. Apple argues that this so-called "causal nexus" requirement violates equity.

After contacting law enforcement, MIT helped federal authorities gather evidence to build their case against Swartz, his attorneys said in court filing. MIT officials, for example, installed video surveillance to catch Swartz returning for his laptop, according to filings.

MIT employees also captured network traffic from Swartz's laptop and turned that data over to the Secret Service without requiring a warrant or subpoena. MIT disclosed that data to law enforcement with permission from the university's general counsel’s office, Swartz's attorney wrote in an October court filing.

It portrays MIT as the core problem in this tragedy. In fact, there are claims that it was actually MIT who was breaking computer laws. Because not only did Aaron Swartz have JSTOR guest visitor privileges on MIT's completely open network, it claims, but once MIT discovered Aaron's laptop, all it had to do was disconnect it from the network and hold it, according to the filing. If Aaron showed up to claim it, they could tell him that they felt he was excessively downloading and to cut it out. And that could have been all there was to it. Instead, MIT contacted the police and the rest is the tragedy that ensued.

In a Claims Construction Order (341 [PDF; Text]) handed down on December 19th, Judge Marsha Pechman found the key terms “unobtrusive manner” and “does not distract a user” to be indefinite. As a result, Judge Pechman found each of the claims of Interval's two asserted patents (6,034,652 and 6,788,314) containing these phrases to be invalid. This is a significant victory for the defendants, although they are not altogether out of the woods.

Here's the text of Apple's Notice:

NOTICE IS GIVEN that Plaintiff Apple Inc. appeals to the United States Court of Appeals for the Federal Circuit from the Order Granting-in-Part and Denying-In-Part Motion to Seal entered in this action on November 29, 2012 (Dkt. 2168) and from all other orders, rulings, findings, and conclusions underlying and related to that order, including but not limited to the orders dated August 9, 2012 (Dkt. 1649) and the July 17, 2012 (Dkt. 1256).

This issue has been going on since July, and the judge stayed her orders so the parties could appeal, which Apple has now done. Interestingly, it's Apple appealing, not Samsung, so that is who really cares.

So what is it Apple wants kept from the public? I'll show you in detail, but the big items appear to be Apple’s internal customer research, specific financials, and certain license agreements.

After the order, Apple filed Exhibit 2 to the Robinson Declaration, its calculations that it is suffering $399,196 a day in supplemental damages, or $50 per infringing Samsung unit sold, from October of 2011 to the end of December 2012, with a total estimated supplemental damages figure of $101,167,892. Are they kidding? $50 for each phone sold. Can you imagine?

Apple is the one who has been telling courts that if it had to pay $6 per unit, or 2.4% royalties, per phone for FRAND patents, it would go out of business. But here it is asking for $50 per unit from Samsung for patents, at least three of which are under a cloud at the USPTO in reexaminations.

I think one may, then, honestly conclude that Apple isn't so much trying to protect its patents as trying to knowingly put Samsung out of business. Apple declared it would try to destroy Android, and it certainly seems to be following through. Are there any patents in this world that are worth such amounts, let along Apple's "rectangle with rounded corners" nonsense patents?

I suppose they did it because there are redactions. But since the brief includes the references to the trial testimony of the various witnesses, when the transripts are made public, we'll get to patch in the blanks. So it makes a lot of work for absolutely nothing.

Before we take a look at the brief, I thought I'd like to explain a little background for you on FRAND issues, as best I understand it. Because what we are watching is nothing less than an upending of the law regarding FRAND patents.

Of course, US law is a system whereby the courts interpret the statutes that the legislative branch passes, and those decisions collectively over time establish what the law is at any given time. So it's not a bad thing that the law does this. It's normal for law to grow and change as facts in various cases present new fact patterns.

But the changes we are watching aren't coming primarily from the courts but from regulators like the FTC. And considering how Microsoft whines nonstop to regulators about Google, perhaps it might explain a result that is so far leaving the playing field tilting Microsoft's way.

The named defendants, Novell's Board, Attachmate and Elliott Associates, all moved to dismiss. Attachmate and Elliott succeeded and get to waltz away, but Novell's board is left on the hook will have go to trial on the shareholders' claim that the board breached its fiduciary duty, acting in bad faith, a Delaware Court of Chancery judge has ruled [PDF]. I have it as text for you.