Next stop, appeals court, where we will find out if they agree with Judge Koh that the trial was fair. Meanwhile, poor Apple will have to make do with a mere $1 billion as its jury award. We'll see if that stands on appeal too. A billion dollars for infringement that was officially not willful. Your US patent law at work. How do you like it?

The hearing was in two parts. The first part had to do with the validity of Motorola's patents, which Microsoft is challenging. The second part was on whether Google's 2005 license agreement with MPEG LA sweeps Motorola's FRAND patents at issue in this litigation into MPEG LA's clutches and control. It's all about how much Microsoft has to pay Motorola, if anything. For background, go here and here for lots more details and context on the license agreement issue.

Don't worry if you don't understand everything when you read them. The parties' lawyers don't understand the licenses fully either, not for sure, in that they don't agree at all on what they mean, and that's why they are in a court of law.

After the parties briefed the issue of what they thought the agreement meant, the judge asked [PDF] them to present any "extrinsic evidence" they could on how to interpret that license, "such as affidavits from MPEG LA regarding the purpose and intent of the grant-back provision", and of course, Microsoft did exactly that, and surprise, surprise, MPEG LA's president claims in a declaration [PDF] that Microsoft is exactly right in its interpretation. When Motorola asked to depose him, the judge said: Nope. No can do. The judge can ask for such evidence this late, but there's no time to, you know, verify it to make sure it is actually true and admissible. Motorola calls it hearsay and inadmissible.

We haven't been covering each painful inch of this litigation, so maybe I missed it, but has this judge ruled for Motorola yet in anything? If so, email me please, and I'll add it to the article. All I know is, every time I parachute into this courtroom in Seattle, so to speak, to see how things are going, the judge has just ruled for Microsoft again.

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.