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.

Does it cover Motorola as an affiliate of Google? Are all affiliates covered? Or only those specified by a licensee? And is the royalty cap provision in one section a stand-alone provision? Is there, in other words, a cap on how much Microsoft has to pay?

His request is related to his decision to reopen the trial that ended in November, now that Motorola has presented new evidence that didn't present at that trial. It didn't have to, by the way. The trial was to be held in parts, and November was part one. Now that the new arguments are on the table in connection with the next phase about exactly what the rate should be, however, the judge sees a need to go back and take another look, and I think you'll agree with him that what Motorola has presented changes the picture, and not in a way that favors Microsoft as much as before, which was trying for a low-ball figure. And that is now in question.

Apple’s motion for an increase in the jury’s damages award is DENIED. The Court declines to determine the amount of prejudgment interest or supplemental damages until after the appeals in this case are resolved.

Because the Court has identified an impermissible legal theory on which the jury based its award, and cannot reasonably calculate the amount of excess while effectuating the intent of the jury, the Court hereby ORDERS a new trial on damages for the following products: Galaxy Prevail, Gem, Indulge, Infuse 4G, Galaxy SII AT&T, Captivate, Continuum, Droid Charge, Epic 4G, Exhibit 4G, Galaxy Tab, Nexus S 4G, Replenish, and Transform. This amounts to $450,514,650 being stricken from the jury’s award. The parties are encouraged to seek appellate review of this Order before any new trial.

The jury’s award stands for the Galaxy Ace, Galaxy S (i9000), Galaxy S II i9100, Galaxy Tab 10.1 WiFi, Galaxy Tab 10.1 4G LTE, Intercept, Fascinate, Galaxy S 4G, Galaxy S II Showcase, Mesmerize, Vibrant, Galaxy S II Skyrocket, Galaxy S II Epic 4G Touch, and Galaxy S II T-Mobile. The total award for these 14 products is $598,908,892.

This jury goofed. The End. That's how it goes down in history. Because they did. And when you see something that you know is a mistake in a courtroom, you have a journalistic duty to call it like you see it, even if the whole world stands against you. That is what journalism is. And that is what Groklaw did. And now time has, once again, proven that Groklaw called it right.

I say sort of, because three times the brief, filed by Microsoft with EMC and NetApp, they say they take no position on whether or not Google infringed:

Although amici do not take a position on the ultimate question of whether the software packages at issue in this case are copyrightable and whether any copyright has been infringed, amici urge this Court (1) to hold that the district court's copyright analysis was fundamentally flawed and (2) to decide this case in light of the settled copyright principles discussed below.

This case tests the copyrightability of computer programs, specifically packages of source code that are part of the Java software platform used by third-party software developers to write applications for computers, tablets, smartphones, and other devices running Java.

Congress has determined that computer software is eligible for copyright protection. 17 U.S.C. § 101. Copyright protects computer software in several important respects. It covers the literal lines of code that comprise software, generally preventing their reproduction or distribution without permission from the rightsholder. But copyright also covers certain non-literal elements of the software as well. For example, the "structure, sequence, and organization" of a software product -- above and beyond the 1s and 0s that make up the program at its literal level or the exact words of the human-readable source code -- can, in some instances, be protected by the copyright in the work. As a result, copyright infringement in a software case can occur even when the defendant did not copy the underlying developers' code, where the defendant has copied some other, non-literal element of the software subject to copyright protection.

Novell's arguments are clear and powerful. "A reasonable jury could find that Microsoft's conduct was anticompetitive because it harmed Novell, was not competition on the merits, and was reasonably capable of contributing significantly to maintaining Microsoft's monopoly power in the operating systems market," Novell writes. Nowhere, it says, does Microsoft defend Microsoft's conduct as competition on the merits. And Microsoft's brief neglected to mention to the appeals court, or respond to, the District Court's conclusion that a jury could have found Microsoft's justifications for its conduct "to be pretextual." Worse, Microsoft is asking the appeals court to confer immunity on it "for deception of competitors regardless of the effect on competition."

By withdrawing its support for namespace extension APIs, Microsoft destroyed Novell's economic viability, and it did it on purpose to harm a competitor. The Bill Gates email [PDF] proves it, they believe. The whole point of documenting APIs and releasing betas is to induce reliance, so Microsoft can't credibly argue that it didn't know this change on its part would impact Novell negatively.

And again, as in Novell's opening brief (p. 38, footnote 5), Novell references Microsoft using a "deceptive script" which it says is mentioned in the email thread in which a Microsoft employee reported to his company that WordPerfect appeared to be "OK" with the change. Novell says was used to justify the change and persuade companies like Novell that Microsoft had to make the change. (Cf. this Groklaw article and this email thread [PDF] for context.) I'm sure we'll hear more about this at oral argument. So if you attend the event, and I know some of you are trying to make arrangements to attend, please watch for this in particular.

And then Novell says Microsoft ignored a great deal of the evidence that favors Novell, and so did the District Court, but the applicable standard for summary judgment under Rule 50 is that the court was required to view the evidence in the light most favorable to Novell, which it failed to do. Microsoft also ignored evidence that its conduct harmed competition in the operating systems market, including evidence from binding Findings of Fact from the US v. Microsoft case, and the testimony and statements of Microsoft executives (cf. Groklaw). And finally, Microsoft disregarded applicable substantive law, Novell argues.

Does the government come and tell you, "You have to move out and abandon the house. Sorry for the loss of the value of your house, but that's life. The public interest comes ahead of your individual property rights."

Is that how it works?

Of course not. The government may be able, under certain circumstances, to tell you to move in order to build the highway, but it has to *pay* you reasonable compensation. You don't have to just gulp and swallow such a loss. Why? Because no one, not the government or anyone, has the right to rob you of your property rights. It's your house. You paid money for it, and if they take it away to benefit the larger good, you should at least be paid compensation.

What about taking away certain property rights from FRAND patent holders? Why is that any different than taking away a man's house? Patents, they tell us, are property, and patents come with certain property rights, such as the right to seek injunctive relief against willful infringers and the possibility of treble damages. If you take that away, without compensation, where is the fairness in that?

At the hearing, the presiding judge, the Hon. Lucy Koh, told the parties they have to narrow their cases against each other to 25 patent claims against 25 products, with more narrowing to come. And she asked if it would be wise to just table this case until the Federal Circuit rules on a pending appeal. Samsung told the judge it will, in fact, be offering a motion to do exactly that, but Apple piped up that it will oppose that motion.

I'm happy to tell you we had a volunteer in the courtroom again, the same Debra B. who told us about the February 14th hearing where the parties explained the technology of their various claims to her, and once again, we get more details about this hearing than we got from the media reports alone. For example, it's clear that Judge Koh has learned from the first Apple v. Samsung trial:

Koh suggested that she would not follow the pattern of the Apple-Samsung case held last summer with the parties’ superabundance of motions, filings, and efforts to expand the scope of the case. “This is going to be a streamlined case,” she said. "As this case … is currently framed, I'm refusing it to go on. I am willing to let it simmer for five years.”