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The HTC-Apple Agreement Mostly Revealed ~pj Updated 2Xs
Thursday, December 06 2012 @ 05:07 AM EST

We finally get to see the HTC-Apple License Agreement [PDF]. Most of it. There is a lot redacted still. I've only had time for a quick read through, but I'll tell you what stands out so far, subject to further analysis and/or correction after I have time to read it more carefully.

Apple and HTC chose what to redact (see Declaration of Robert Becher), and it's a lot. But we learn enough, despite their efforts, to know that it's a cross-license and a settlement of all the 52 litigations and various administrative actions then pending around the world. The "Payments" section is redacted, of course, but the plural means both paid something, as in crossing out a lot of the others' need to pay, and only HTC is listed as paying any royalties going forward. The other thing we learn is that Apple did not license its design patents, which isn't what Samsung was probably hoping it had done. But the rest of Apple's patents are licensed, which ought to matter in the Apple v. Samsung injunction analysis. There are some HTC utility patents excluded as well (see p. 4 and Ex. G of the agreement, p. 141 of the PDF), if I've read it right, the ones on loan from Google, I believe, and Apple reserves to itself all other IP it owns, like trade dress rights. All the litigation is dismissed mostly without prejudice, because one or the other might violate the agreement, but otherwise they agree to drop their disputes and basically leave each other alone.

The hearing on Apple and Samsung's various post-verdict motions is today, and Groklaw has made plans to be there. So whatever we learn, we'll let you know. No doubt this agreement will come up. HTC plans to be there and will be urgently asking the court to say that their proposed redactions are OK (see Exhibit A). HTC wants to defend the redactions in person, so a lawyer from Finnegan flew to San Jose to be there today at the hearing. My question is this: how do we know if HTC violated the GPL license if we can't read more than they are showing the public?


read more (3685 words) 119 comments  View Printable Version
Most Recent Post: 12/10 12:04PM by Anonymous

Judge Koh Asks For Lists Proving Compliance with Order Re Attachments ~pj
Wednesday, December 05 2012 @ 04:09 PM EST

It seems that Judge Lucy Koh has it in mind to hold the parties to what she told them would be the rules of the road for post-verdict filings in Apple v. Samsung. Her order [PDF] said that they were limited to certain space limits and couldn't work around them via attachments. Specifically, they couldn't present new points in attachments that were not argued in the briefs themselves:
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.
Both parties have accused the other of violating her order. Now, a new order [PDF] tells them to file a cross-linked list, showing where in the briefs each attachment is referenced. She says both parties have submitted voluminous documents with their briefs, and the new order is to make *them* do the hard work of cross-checking, so she can disregard anything not in the briefs.

read more (285 words) 115 comments  View Printable Version
Most Recent Post: 12/10 07:14AM by Anonymous

Judge Koh Rules: HTC-Apple Agreement Will Not Be Sealed, Exc. for Royalty Terms ~pj
Tuesday, December 04 2012 @ 03:52 AM EST

The judge in the Apple v. Samsung case, the Hon. Lucy Koh, has just ruled that the HTC-Apple license agreement that was signed on November 11 will be made public, the only exception being the pricing and royalty terms, which will be sealed. Samsung's lawyers have already gotten to see them, but we won't. But we will get to see the list of patents covered by the agreement. If the patents on the list are the same patents as in this case, it will make it much easier for Samsung to avoid an injunction. As you just saw in the Microsoft v. Motorola case in Seattle, if money can make you whole, you normally can't get an injunction. And if they aren't, there is a Samsung argument that customers don't care about those features enough to pay for them, which could impact the damages figure. This will be part of what is discussed at the hearing on the 6th.

And Judge Koh has also ruled that a discovery dispute between the parties that has arisen in litigation between Samsung and Apple in Japan is related to this case. The cases being related means that the issue about doing the discovery will be handled by Judge Koh and Magistrate Paul Grewal, mostly the latter. Samsung is asking for four items:

  • All documents that evidence, reflect or refer to the sale, transfer, lease, or offer for sale of any iPhone to any person or entity prior to June 29, 2007;
  • Physical exemplars of any iPhone that was made available for sale, transfer, lease, or offer for sale to any person or entity prior to June 29, 2007;
  • A physical exemplar of the iPhone that was used in the presentation by Steve Jobs at MacWorld on January 9, 2007; and
  • A physical exemplar of the iPhone that was used in the video "iPhone guided tour" posted to Apple's website on June 22, 2007.

Samsung says it needs these items to aid it in defending itself from Apple's claims of patent infringement in Japan, not to mention similar patent infringement actions between these two companies in 5 countries in addition to the US, the UK, Australia, Japan, South Korea, and the Netherlands.


read more (1611 words) 196 comments  View Printable Version
Most Recent Post: 12/06 05:27PM by Anonymous

Apple's Nerves Show in Buildup to Dec. 6 Hearing ~pj Updated 2Xs
Sunday, December 02 2012 @ 04:41 PM EST

I think Apple may be feeling a little nervous about Samsung winning a new trial in Apple v Samsung. As the December 6th hearing on both parties' motions for summary judgment draws near, there has been a flurry of Apple activity.

First, they have finally voluntarily told [PDF] the court -- voluntarily as in after Samsung filed a motion to compel Apple to respond, but before the judge ruled -- that they didn't know about the jury foreman's litigation with Seagate until after the trial. They did know about the bankruptcy but they didn't delve into it. This, of course, is helpful to Samsung, in that Apple's argument that Samsung shoulda-coulda known earlier about the litigation and failed to pursue it now bites the dust. Or it should. But the truth is, no matter what they said, it helps Samsung, but this is the least harmful to Apple. Presumably it's also true.

Apple has also filed a recent decision [PDF] by the Federal Circuit in another patent case's appeal, Revision Military, Inc. v. Balboa Mfg. Co. The decision in the appeals case was written by Judge Pauline Newman, however, who never saw a patent owner she didn't support, I've come to believe. That's overstating it a bit, perhaps, but if you read her dissent in the Bilski case, you'll see that she is very, very reluctant to narrow patentability, since she believes patents spur innovation.

And Apple has also filed a notice [PDF] of filing a terminal disclaimer with regard to one of its patents, '677, which I take as a sign that they agree with -- or are worried about -- something that Samsung pointed out in its motion for summary judgment or for a new trial, that Apple was double dipping, since two of its design patents, '677 and '087, are for essentially the same thing. The jury, of course, granted damages for both patents, since they were in a generous and hasty mood and apparently didn't notice the similarities. Here's what Apple hopes will be the result of its disclaimer:

This disclaimer moots Samsung’s Motion for Judgment as a Matter of Law, as set forth in Samsung’s reply brief, that Apple’s U.S. Patent No. D618,677 is invalid for obviousness-type double patenting over U.S. Patent No. D593,087.
The jury messed up every which way. And that is what must be making Apple so nervous, although they deny it is the case. They wouldn't take these steps if they felt confident of the jury's work, in my opinion.

read more (4921 words) 219 comments  View Printable Version
Most Recent Post: 12/09 12:11AM by rsteinmetz70112

Surprise Surprise... NOT. Seattle Judge Grants MS Motion, Bans Injunctions for Motorola's RAND Patents ~pj Updated
Friday, November 30 2012 @ 11:59 PM EST

The judge in Microsoft's home court in Seattle, the Hon. James Robart, has handed the company a huge win against Motorola regarding injunctions on RAND patents. What a surprise. Not. This is in Microsoft v. Motorola, and the judge is the one who blocked the injunction a German court ordered against Microsoft for infringing Motorola's RAND patents. Now the Seattle judge has ruled [PDF] that Motorola can't get an injunction for any RAND patents it owns either in the US or in Germany or in fact worldwide, even though this case was about only two patents. Here's his reasoning:
Because Motorola cannot show irreparable harm or that monetary damages would be inadequate, the court agrees with Microsoft that injunctive relief is improper in this matter and grants Microsoft’s motion....

As a result, this court’s order not only dismisses injunctive relief for the Motorola Asserted Patents, but also for Motorola’s entire H.264 standard essential patent portfolio including the European Patents at issue in the German action.

Think this might be appealed?

: D

Actually, the judge says he is granting Microsoft's motion dismissing Motorola's request for an injunction *without prejudice* based on current specific circumstances:

The court’s determination that injunctive relief is no longer available for the Motorola Asserted Patents is based on the specific circumstances and rulings that have developed in this litigation. If, in the future, those circumstances change in a manner to warrant injunctive relief, Motorola may at that time seek such relief.

read more (6355 words) 173 comments  View Printable Version
Most Recent Post: 12/05 04:28AM by TiddlyPom

What Does "Software Is Mathematics" Mean? Part 2: A Semiotics Approach to the Patent Eligibility of Software by PolR
Thursday, November 29 2012 @ 07:05 AM EST

What Does "Software Is Mathematics" Mean? - Part 2

A Semiotics Approach to the Patent Eligibility of Software

by PolR

[This article is licensed under a Creative Commons License; article as PDF.]

I argued in part 1 of this series that computations are manipulations of symbols with meanings. In this article, I hope to further explain this notion using the social science of semiotics. Its object is the study of signs, the entities which are used to represent meaning.

This article elaborates on what Richard Stallman said in the recent Santa Clara Law conference Solutions to the Software Patent Problem.

According to this report Richard Stallman described patents on software as patents on thought, which amount to patents on the use of the human brain to reason and to solve problems by the application of reasoning. This article uses semiotics to show that Stallman's point is more than rhetoric. It is a provably correct statement of fact.


read more (13244 words) 456 comments  View Printable Version
Most Recent Post: 12/12 04:46PM by PolR

The Oracle v. Google Trial Transcripts Now Complete & Groklaw Honored ~pj
Tuesday, November 27 2012 @ 02:04 PM EST

I'm happy to tell you that we now have all the remaining trial transcripts from the Oracle v. Google trial, and you can find them all in the Oracle v. Google Timeline by date. I'm still working on providing a link there to each report that we did from the court, but in the meantime you can just go by the dates, matching up with Groklaw's Archives. I want to highlight one of them for you, the day the judge revealed he knew how to program. What a difference that made.

And I'm excited to tell you that Groklaw is listed in the ABA Journal's Top 100 Blawgs this year. It's a real honor, and even more so when you look at the others on the list. Judge Posner's blog is on the list. I mean. So I'm feeling mighty fine.


read more (1318 words) 217 comments  View Printable Version
Most Recent Post: 12/01 12:54AM by Anonymous

Novell Files its Opening Appeal Brief in WordPerfect Antitrust Litigation v. Microsoft ~pj Updated
Monday, November 26 2012 @ 01:51 PM EST

Novell has filed its opening appeals brief [PDF] in the Novell v. Microsoft antitrust litigation regarding WordPerfect.

As you know, appeals are about mistakes of law. So the brief lists the mistakes Novell believes the district court judge made, but you see also how Boies Schiller has managed to tell a complicated story in a simple way that is easy to grasp. I assume it's their contribution to the team effort, because that's what David Boies is famous for. Ted Olson put it like this once a couple of years ago: "Above all, Boies is a storyteller. Nobody is better able to describe the gist of a case." And Boies said:

...Boies acknowledges his ability to cut to the chase in jargon-infused litigation. "It is easy to be accurate if you have the freedom to be complicated, and it is very easy to be simple if you have the freedom to shade the truth," he says. "What's hard is to be simple and very accurate, and that takes work to figure out what are the simple truths that are going to sustain your case."
The brief tells this simple story, that what Microsoft did to Novell when it withdrew its APIs left it with a choice between "two different ways to commit suicide" -- use what they had and meet the deadline, with the obvious result of getting bad reviews, or take the time to get it right and miss the release of Windows 95.

It's something that Dr. Roger Noll, one of Novell's experts mentioned [PDF] during the trial (see page 37), but the brief turns it into the theme of the appeal, and it's brilliant, in that it neuters the district judge's misguided opinion that Novell had viable options that it failed to pursue.


read more (18302 words) 113 comments  View Printable Version
Most Recent Post: 12/01 05:36AM by eric76

A Report on the Santa Clara Conference on Software Patents by Tkilgore ~pj
Saturday, November 24 2012 @ 05:26 AM EST

Groklaw member Tkilgore attended the Santa Clara Law conference Solutions to the Software Patent Problem on November 16th for Groklaw, and he has now sent us his report. We have a second one due also later, but let's get started with his.

He is a mathematician, so that is his frame of reference, and I hoped that he'd be able to raise questions that might help conference speakers to see a side of things that they otherwise might not.

As you know, Groklaw stands for the proposition that software is algorithms, nothing else, and that algorithms are mathematics, and hence unpatentable subject matter, so I hoped he'd be able to present that thought. Sadly, although he tried to ask questions, he was never called on.

However at the end of his overview of the day, he writes about his impressions of the day, how the room seemed to be divided into two groups, 1) programmers and academics who teach computer programming, and 2) lawyers or those representing corporate interests. It gives an interesting and unique flavor to his coverage, one not to be found anywhere else.


read more (10076 words) 354 comments  View Printable Version
Most Recent Post: 12/06 06:11AM by The Cornishman

HTC-Apple Stipulation Filed with Del. Court Contradicts FOSSPatents on Terms of Agreement ~pj Updated
Thursday, November 22 2012 @ 08:03 PM EST

FOSSPatents has published what it claims is the redacted version of the Apple-HTC agreement settling all claims between them. I didn't link to it or write about it
1) because he doesn't say where he got it, so I could not verify whether it was legitimate or reliable, and

2) because I respect the court's right to decide what is made public and what is not.

And it looks like I was right to wait and see.

The now filed stipulation, titled "Stipulation of Dismissal of Entire Action," in the HTC v. Apple litigation in Delaware states clearly that Apple's claims are dismissed without prejudice but HTC's are dismissed *with* prejudice. That directly contradicts what FOSSPatents claimed was in the 'settlement agreement'. His article claims that both parties claims were dismissed *without* prejudice.


read more (696 words) 186 comments  View Printable Version
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