So the media articles that referenced FOSSPatents and wrote that the Samsung motion was mooted because Samsung had agreed to accept a redacted version were flat out wrong on the facts. The motion was not only not mooted, it went to oral argument today, and Samsung won. And that's not all it won.

Part of the reason for the hearing, aside from a speedier resolution, is that there is some question about why there is a motion to unseal the HTC agreement.

But then you know already, if you read Groklaw, that trials never really end, or so it seems sometimes.

Remember when we all laughed at Microsoft's expert, Leo Del Castillo, testifying that the Xbox's version of IE didn't support interlaced H.264? Well, Microsoft just sent a letter [PDF] to the judge, acknowledging that in fact it does. So much for that expert.

The most interesting bit, to me, from yesterday is the news that the judge said two significant things. One was that courts generally follow a modified Georgia-Pacific procedure, which is what Motorola wanted, in figuring a RAND price or range. He didn't commit to doing so himself, but he seems to be leaning in that direction. If you recall, in its trial brief, Motorola wrote:

As Motorola’s expert economist, Professor Richard Schmalensee, will explain, the most appropriate way to reconstruct that negotiation is to employ a modified form of the well-known Georgia-Pacific hypothetical negotiation, used in patent damages analysis.

This is a rational approach. Georgia-Pacific is an established, reliable framework for creating a hypothetical negotiation between two parties in damages cases, and provides a helpful analog for RAND licensing. As the Court observed, the Federal Circuit “has consistently sanctioned the use of the Georgia-Pacific factors ‘to frame the reasonable royalty inquiry.’” (Id. at 13.) Similarly, the Court also noted that “other courts have spoken to the applicability of the Georgia-Pacific factors in determining a reasonable royalty in the RAND context.” (Id.) Moreover, as Dr. Schmalensee will explain, there is significant support in the literature for employing a methodology like Georgia-Pacific to determine RAND terms.

And the judge also criticized a ruling of the 9th Circuit Court of Appeals regarding sealing documents, but in the end he followed it, as he must, and the result of that was that despite his strong personal belief that the public has a right to know what is going on, because there is case law that says otherwise, and he is "constrained" by it, today most of the evidence was presented with our reporter (and all the others) put outside of the room.

The most interesting thing the judge said today, from the notes, was that he hadn't been given much in the way of specifics that would help him reach a figure for Microsoft to pay Motorola. Um. That's why standards bodies leave it up to the parties to work out in bilateral negotiations.

This must be what it feels like to be a marriage counselor. The parties come in, all upset with each other, fervently and loudly enumerating in detail each others' sins up to the heavens, asking you to say *they* are right, and you sit there not knowing what some of what they are saying is even talking about. Even when you do, where do you start with those two?

I have no hope of explaining all of it in one article, so I'll just highlight three items, and I'll show you the docket with all the PDFs, and little by little, I'll try to explain the things that matter most.

For now, suffice it to say that the parties are building up to the December 6th hearing, and it's hot and heavy going, fighting over every little -- and every big -- thing. The big thing is whether or not the judge has the authority to overrule the jury's verdict. On subsidiary issues, Apple doesn't want Samsung to be able to show [PDF] the court production models of newly available design-around versions of the Galaxy S II (T Mobile) (SGH-T989) and a production model of the Galaxy S II Epic 4G Touch (SPH- D710), newly produced uninfringing products, because, Apple claims [PDF], "the record is closed." I mean. Too closed for something that significant? Apple is asking for an injunction, after all, and it claims the new models do still infringe, and evidence of new noninfringing products in the hands of the court is too late? For what? Justice?

The big issue is whether or not the judge can toss out the jury's verdict, the damages part in particular. Apple wants some of Samsung's exhibits excised on the basis that they're "blah blah, too late, not relevant, blah blah", to summarize with my lip a bit curled. Very circuitous reasoning. I'll show you that in actual detail. But they really don't want them in the case because one of them is the judgment dated November 9, 2012 issued by the England and Wales Court of Appeal, ruling that Samsung didn't copy Apple's design patent. How much logic is there to give Apple a lot of damages for a design patent the UK court just ruled was not infringed? And there is a new ruling in another case that Apple wants the court to take notice of, because, I gather, they think it held that jury verdicts are to be treated reverently, but I think they may not have read it all the way through, as it seems to support Samsung's position in one very significant particular, as I'll show you.

Today was the day Motorola presented its opening statement. It had asked to do it as it began its side's presentation. Microsoft has presented, including today, 10 witnesses. Today, Motorola began its side of the story. Phil Dawson summarizes Motorola's opening statement like this:

Microsoft wants low pool rates based on multilateral ex ante negotiations. This does not reflect real-world negotiations. This model does not consider the strength of Motorola's contributions. Other important patent holders rejected the MPEG LA pool. Motorola seeks to simulate a real-world negotiation that would have happened. Motorola will compare the strength of their patents vs. Microsoft patents. Multiple witnesses from multiple companies will attest to how bilateral negotiations would work.

At the November 5 hearing, Motorola suggested that the parties engage in binding arbitration to resolve their dispute. If the parties really wish to resolve this licensing dispute, this is the obvious solution. It would have many advantages to the parties. It would be conducted in private; the parties would not be bound by their pleadings; they would be able to negotiate any and all of the many aspects of their licensing agreement on which they disagree; and they would finish the process with an agreement that would determine once and for all what amount of licensing fees Apple is required to pay Motorola. In the end, this seems to be the best way, if not the only way, for the parties to negotiate a rate that takes into account the many elements of a licensing fee that are not part of this case but are critical to the determination of a fair, reasonable and non-discriminatory rate.

Samsung's motion to add iPhone 5 was granted. Apple's motion [PDF] was partly granted and partly denied. It can add the Samsung Galaxy Note 10.1, the Samsung S III, and the Galaxy Nexus, which runs Android Jelly Bean. Apple cannot add Android Jelly Bean itself. That's a huge block of what I'd call a sneaky move on Apple's part, one that did not get past this judge.

It is looking like this trial will be still going on next week, probably until Tuesday. So we need someone to step forward and volunteer to cover for us Monday and Tuesday, if possible, as neither of our reporters will be able to attend. One of them took vacation days to cover this week. Please email me if you can go as Groklaw's eyes and ears. And I know you join me is thanking our volunteers for helping us to know for sure what was really going on in that courtroom this week.

[ Update: I am disappointed to see that you are supposed to download Microsoft Silverlight to participate. I will not do that, as I stopped using Microsoft products years ago. I do see that you can at least listen eventually if you have YouTunes, via subscribing free to YouTunesU via Universities, Santa Clara. You can also use Mono if, unlike me, you are willing. If this isn't a clear and obvious demonstration of why proprietary anything is a royal pain, I don't know what else to say. I view Mono as having patent issues, ironically enough, as does Microsoft. Ironically Santa Clara has just provided a clear illustration of precisely what is wrong with software patents. Most people these days use their smartphones or tablets for this sort of thing, and that means Microsoft is the very last on the list of marketshare. Extrapolate, please. It's no longer the case that if you pick only Microsoft, you've reached most people. The world has changed. Not to mention but it's precisely users of Free operating systems who are the most interested in this topic. Microsoft thinks the patent system is just fine. So, now I see why Richard Stallman refused to allow his talk to be live streamed this way. That ought to have let Santa Clara know that this is a valid and real issue to a large number of people, including me. My readers are expressing deep disappointment. I feel it too.]

[ Update 2: A Groklaw member, gibus, reports: "You can watch the conference with Free software (mplayer, vlc...) on mms://ammsmedia.scu.edu/mobile2 "]

I confess I begged for this, because I know a lot of you are seriously interested in this topic but can't make it there. So thank you Santa Clara Law. Here's where you go tomorrow, and it runs all day from 8:50 am to 5:30 pm Pacific time, minus one talk at 9 AM.

You can also ask questions, and they'll try to get to them as time allows by emailing or tweeting. I'll show you the announcement in full, with all the details. Michael Risch and Colleen Chien will be speaking, as will James Bessen, and Eben Moglen and Dan Ravicher and Google's Kent Walker and the Honorable Paul Grewal, Northern District of California, the magistrate judge on the Apple v. Samsung litigations there, and Stanford's Mark Lemley and Keith Bergelt of Open Invention Network and Julie Samuels of EFF and Pamela Samuelson of UC Berkley School of Law and many more. It's going to be something.

I know we will have a couple of attendees from Groklaw there in person, and I know you wish you could be there too. So do I. But I'm very grateful that they are streaming this and that they will make the talks available in a few weeks as well, in case you can't devote the whole day to it all at once. I can't think of any legal topic I care about as much as this one right along through here, and it's been a long slog just to get the topic stage front and center. And here it is.

Let's get started. I have to decode handwritten notes on the second report, but you can get going now with our first report.