Motorola Tells Its FRAND Story to the Court in Seattle ~pj Updated |
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Saturday, January 05 2013 @ 04:36 AM EST
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Motorola has now filed with the US District Court in Seattle its
Post-Trial Brief, on the topic of what it feels Microsoft should pay for its use of Motorola's RAND patents. Microsoft has filed its brief [PDF] as well. Both sides have also filed their proposed Findings of Fact and Conclusions of Law. Here's Motorola's (168 pages) and here is Microsoft's (139 pages), both PDFs.
It's all about how much Microsoft should have to pay Motorola for its standards-essential patents, although Motorola claims that there is no RAND commitment unless Microsoft also licenses its RAND patents back to Motorola, and is asking the court to set a price for that as well.
I'm pretty sure if you read all four documents, you'll get a very different insight into what is really going on in the RAND/FRAND disputes than what you read in the funny papers. The FTC expressed concern about this topic in its recent decision and order [PDF], settling with Google, which it has now posted on the FTC website. Incidentally, if you read the order, you'll see that injunctions are not banned altogether, just that there are steps that must be taken first. And by my reading, had this FTC order been in place when the Microsoft v. Motorola litigation first began, it would have been very much to Motorola's benefit, not Microsoft's. Perhaps that's why Google didn't mind voluntarily agreeing to the terms. I'll show you what I mean.
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The USPTO Would Like to Partner with the Software Community ... Wait. What? Really? ~pj |
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Friday, January 04 2013 @ 03:10 AM EST
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There is a notice in the Federal Register that the USPTO would like to form a partership with the software community to figure out how to "enhance" the quality of software patents. To that end, they are looking for comments and there will be two roundtable events sponsored by the USPTO, one in Silicon Valley and one in New York, both in February:Each roundtable event will provide a forum for an informal and
interactive discussion of topics relating to patents that are
particularly relevant to the software community. While public attendees
will have the opportunity to provide their individual input, group
consensus advice will not be sought....
The first topic
relates to how to improve clarity of claim boundaries that define the
scope of patent protection for claims that use functional language.
I know the USPTO doesn't want to hear that software and patents totally need to get a divorce, but since most software developers believe that, maybe somebody should at least mention it to them, if only as a future topic for discussion. Most developers I know believe software is
unpatentable subject matter. It's obvious the USPTO realizes there is serious unhappiness among software developers, and they'd like to improve things. Software developers are the folks most immediately and directly affected by the software patents the USPTO issues, and it's getting to the point that no one can code anything without potentially getting sued. I don't wish to be cynical, though, as that's a useless thing. So maybe we should look at it as an opportunity to at least be heard. It's progress that they even thought about having a dialogue with developers, if you look at it that way. I'm sure companies with lots of patents will be participating. So some of you should probably try to attend too, don't you think? At least send in thoughtful, respectful but clear and specific comments. Large companies with patent portfolios they treasure and don't want to lose can't represent the interests of individual developers or the FOSS community, those most seriously damaged by toxic software patents. And now that patent trolls are targeting individual apps developers and small businesses that simply use technology like scanners and email, somebody needs to listen to what those of us who are not IBM or Microsoft or Google are enduring. And heaven only knows they are going through plenty too. But my point is there are more of you than there are of them.
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In the aw, shucks department - Groklaw recognized again ~pj |
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Thursday, January 03 2013 @ 03:06 PM EST
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The ABA Journal will announce it in their February issue, but I've just been told that Groklaw has "earned the most votes from readers in the ABA Journal Blawg 100's Legal Technology category". Groklaw members who were watching all the vote totals told me we had more votes than any other legal blog in *any* category, actually. The ABA sent me a badge to display.
Half of the one million lawyers in the US read the ABA Journal every month, they say, so lots of new lawyers are likely to stop by now. So behave yourselves.
Nah. Just be yourself, actually. They're lawyers. They've seen it all. More than once, probably. To any new readers, welcome. If you have tech questions, Groklaw is a resource for you.
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Judge Koh Slices and Dices the Evidence in Apple v Samsung ~pj |
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Thursday, January 03 2013 @ 11:35 AM EST
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Judge Lucy Koh, the presiding judge in the Apple v. Samsung litigations, warned [PDF] the parties that she would ignore any arguments in their attachments to their post-trial motions that were new and therefore a backdoor way of bypassing the page limits she set for them, writing that "Any argument that is not explicitly articulated within the briefing page limits will be disregarded. Any supporting documentation shall be for corroboration purposes solely and shall not be used as a vehicle for circumventing the Court’s page limits.” And she meant it, it now turns out. She has given them a list of what she will not consider in her Order Striking Evidence [PDF], and it's both sides misbehaving. So now we know why these law firms have been annoying her so much. She gives them limits, and they simply ignore them. Also, Apple has brought a case to the court's attention, another super-plaintiff-friendly ruling from the Federal Circuit. And the parties continue to fight with the court over the issue of sealing materials. This judge isn't receptive, and while she earlier stayed her orders to unseal on the basis that she'd wait until the Federal Circuit could rule on appeals, now she denies a Samsung stay request. And I found for you some material on what impact reexamination of a patent can have on litigation. I saw a lot of questions from you in your comments, so I researched it a bit for you.
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Motorola and Microsoft Debate the Scope of Google's MPEG-LA License (Seattle) ~pj |
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Wednesday, January 02 2013 @ 04:45 AM EST
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The last time we looked in on the Microsoft v. Motorola litigation in Seattle, the judge, the Honorable James L. Robart, had just ruled that Motorola would have no right to injunctive relief in the US and Germany for its H.264 and 802.11 standard essential patent portfolios, at least not in the current set of facts, although he allowed that facts could change in the future.
The judge has asked [PDF] the parties to give him more information about Google's license agreement with the MPEG-LA patent pool, and he set a hearing for oral argument for January 28 at 1:30 PM in Seattle on that issue and on a Microsoft motion for summary judgment on invalidity. If any of you can attend, that'd be wonderful. We now can have a much clearer picture of the parties' positions, now that we have
both parties' post-trial briefs on the subject of Google's license agreement with MPEG-LA regarding H.264/AVC patent pool. The crux of the debate is how to interpret one clause in the agreement, Section 8.3. Does it require Google to grant Microsoft a license to Motorola’s H.264-essential patents? Microsoft says it does, and Google says it does not. Google says it chose a license whereby it would have to list all affiliates it wished to be covered by the agreement, and to date it has not listed Motorola. It didn't close on the Motorola deal until after it entered the license agreement with MPEG-LA anyway. And Motorola never on its own put any of its relevant patents into the MPEG-LA patent pool. So either way, Microsoft has no rights to a license via the MPEG-LA patent pool, Google argues, only by negotiated agreement under normal RAND terms, obviously at a higher rate.
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CLS Bank v. Alice - Some Amicus Briefs ~pj |
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Sunday, December 30 2012 @ 04:19 AM EST
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When, if ever, should software be patentable? That is the question being argued before the Federal Circuit in an en banc review of CLS Bank v. Alice Corporation. I have some of the amicus briefs for you.
Back in July, the Federal Circuit issued a decision in CLS Bank v. Alice Corporation, overturning the district court, which had ruled that the asserted claims were not patent-eligible because they recited “the abstract idea of transformation or manipulation of legal obligations or business risks” and could be done without a computer, inside your head, making "on a computer" not limiting the idea. A divided Federal Circuit panel, however, reversed, and said that if “it is not manifestly evident that a claim is directed to a patent ineligible abstract idea, that claim must not be deemed for that reason to be inadequate under § 101",
ignoring the US Supreme Court's direction in In Re Bilski and Mayo v. Prometheus, once again
promoted its own, contradictory view that pretty much anything is patentable. In September, CLS Bank
asked for an en banc review. That request was
granted [PDF] in October and now amicus briefs are being filed. There is quite a variety, with more expected. There are briefs by Google, IBM, Twitter, EFF, as you would expect. But what is surprising are the briefs urging the court to do something about software patents gone wild from entities like bar associations and internet retailers. When the Federal Circuit and the US Supreme Court do not agree, chaos is the result. And, as at least one brief points out, the results of earlier patents issuing under a looser standard of usefulness has brought on a nightmare of litigation over patents that should never have issued in the first place. And something needs to be done. There has been a noticeable shift since the amicus briefs filed in
In Re Bilski, in other words, I'd say, with brief after brief in CLS Bank asking to court to align with the US Supreme Court and put an end to the contradictory rulings, which is resulting in guesswork and unnecessary litigation.
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Apple v. Samsung Trial Transcript - Day 7, Aug. 13, 2012: Prior Art Day ~pj |
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Thursday, December 27 2012 @ 05:08 AM EST
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Here's the transcript [PDF] of day 7, August 13, 2012 in the Apple v. Samsung trial, which I've done as text for you. The witnesses this day were Boris Teksler back on the stand from the Friday before, then by videotaped depositions Jun Won Lee, Dong Hoon Chang, Timothy Benner, Timothy Sheppard, and then Apple's damages expert Terry Musika live. They were the last of Apple's witnesses.
Next, Samsung began putting on its case, calling as witnesses Benjamin Bederson and Adam Bogue, both to demonsrate prior art. And so I think we could call this Samsung prior art day.
It's also the day where Apple's Terry Musika, an economist, speaks to damages, and he seems not to have calculated product by product. He arrived at a total damages figure based on his assertion that all of Apple's claims of infringement were established as true, utility patents, design patents, and trade dress infringement. But there's no specific breakdown offered to help the jury figure out what to allot if they didn't agree that every single Apple claim was so. If only the utility patents were found to be infringed by the jury, or only one, or only the design patents, there was no easy breakdown of the figures provided to the jury to be able to calculate what the right damages figure should be.
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Apple v. Samsung Trial Transcript - Day 6, Aug.10 -- Apple Experts Day ~pj |
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Sunday, December 23 2012 @ 06:54 PM EST
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Here's the transcript for Day 6 [PDF] of the Apple v. Samsung trial, August 10th, a day when lots of witnesses were put on the stand -- Hal Poret, Kent Van Liere, Ravin Balakrishnan, Karan Singh, John Hauser, and Boris Teksler. This is still Apple putting on its case. And I think you could call this "Experts' Day". But Samsung gets in some important blows in cross examination, and I'll show you how they show up in its recent motion [PDF] for judgment as a matter of law.
In fact, I'll do that first, because the media reported that the jury barely could stay awake this day. The judge even offered them coffee. But to me, this day is fascinating. I'll try to show you why. And you'll see some of the finest lawyering you could ever hope to watch play out before your very eyes. The irony is that two of the experts testified this day about how Samsung allegedly infringed Apple's '915 and '381 patents, both of which have since been preliminarily ruled by the USPTO as invalid, the '915 patent just this past week, the
'381 patent a bit earlier. But this is a trial transcript from August, and no one knew that was going to happen. One can't help but wonder though, how could experts not know whether there is prior art that seems to invalidate a patent?
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Apple Files Notice of Appeal to Federal Circuit Re Denial of Injunction Against Samsung ~pj |
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Thursday, December 20 2012 @ 06:50 PM EST
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Apple has already filed a notice of appeal of the denial of a permanent injunction against Samsung:
2203 -
Filed & Entered: 12/20/2012
NOTICE OF APPEAL to the Federal Circuit as to [2197] Order by Apple Inc.. Filing fee $ 455, receipt number 0971-7360492. Appeal Record due by 1/22/2013. (Selwyn, Mark) (Filed on 12/20/2012) And we have more transcripts from the trial as PDFs for you, days 6-11, and we'll be working on text versions for you. If you would like to help with that, feel free to leave a comment as to which one you will work on. I'm almost done with day 6, so pick another one, please.
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Apple's Pinch to Zoom Patent Preliminarily Invalidated by USPTO ~pj |
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Wednesday, December 19 2012 @ 06:02 PM EST
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Samsung has filed with the court a copy of the recent decision by the USPTO that Apple's '915 patent, the pinch to zoom patent used against Samsung, is
invalidated, all its claims, 1-21, in a preliminary ruling:
2202 -
Filed & Entered: 12/19/2012
STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1)
Exhibit A)(Maroulis, Victoria) (Filed on 12/19/2012) The goofball jury, of course, thought it was a simply wonderful patent infringed every which way by Samsung. Willfully, no less. A wonderful patent worth brazillions of gold pieces that Samsung should pay Apple for infringing their Most Holy Patent. Most Holy *Invalid* Patent, I should say.
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