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10.24.17

Let’s Hope That Apple v Samsung Puts an End to Design Patents Once and For All

Posted in Apple, Patents, Samsung at 8:02 am by Dr. Roy Schestowitz

Zach Snyder patent

Summary: Apple and Samsung are going to court again and again, much of the time just to bicker/argue about stupid design patents like rounded corners

EARLIER this month we wrote about design patents being somewhat of a sham. That’s just patents creeping into a domain already properly covered by copyrights and trademarks (like computer programs already fully covered by copyright law).

We may never understand the minds of so-called ‘IP’ lawyers (they lump together trade secrets, patents, copyrights and trademarks), but one thing we understand is that they always pursue money for themselves. They even give bad advice to clients if that would potentially bring income (to the lawyers, not to the clients).

The media is currently full of reports (e.g. [1, 2, 3]) about the Samsung dispute with Apple — a dispute which goes half a decade back. The case is going to a jury — probably a jury that does not quite understand patents (they’re usually told buzzwords like “property”, “innovation”, “stealing” and so on).

Florian Müller was among the first few to write about it (CBS had beaten him to it, but he has the original documents). To quote Müller: “If one thought it appropriate to label a company’s in-house and outside counsel, collectively, a “Comeback Kid,” the term would surely apply to Samsung’s IP litigation group and Quinn Emanuel. Yesterday (Sunday), Judge Lucy Koh of the United States District Court for the Northern District of California determined that a new Apple v. Samsung trial on design patent damages, which Samsung had been fighting for in courts on both coasts of the United States since the 2012 verdict, is indeed going to happen.”

“It appears @Apple v @Samsung will never end. Judge Koh says today-Sunday!-that there will be another damages trial,” said this tweet which Müller had highlighted before he found and published the relevant documents.

What’s worth noting here is that it’s all about design patents and this case, if escalated high enough, can squash all design patents (similarly to Alice). To quote CBS:

Get ready for Apple v. Samsung round number… oh, forget it, we don’t remember, either.

Apple and Samsung will head back to district court for yet another design patent infringement trial. Judge Lucy Koh, in an order signed Sunday, has ordered the two tech giants to meet again in a courtroom to determine how much Samsung owes Apple for infringing three patents.

We hope that this case will put an end to design patents once and for all. Both parties have very deep pockets and can afford an appeal to the Supreme Court.

Speaking of Samsung, there’s this bunch of lawsuits coming from Japan. IAM said yesterday that “Hitachi unit Maxell Ltd filed five US patent suits this month following on the Huawei and ZTE campaigns it launched last year. The breadth of the companies and industries on the defendant side in this latest offensive suggest that a significant initiative is underway within the Japanese company to increase its licensee base and royalty earnings.

“Three of the new complaints (which I accessed using Lex Machina) target well-known companies in the mobile space. Suits against Blackberry, ASUSTeK Computer and Blu Products name a range of mobile, tablet and other devices accused of infringing patents which appear to be related to mobile phones and cameras.

“The other two defendants – Fandango Media and FOTV Media Networks – both operate online video streaming services. These suits involve patents directed to digital video recording and transmission.”

What is it about dying companies that compels them to be so litigious? Such is the nature of patents. It’s like an ‘insurance’ policy for when business runs dry and managers look for someone to blame (or sue).

10.21.17

Microsoft and Nokia’s Patent Trolls by Proxy: First Conversant, Now Provenance Asset Group Holdings LLC

Posted in Apple, GNU/Linux, Google, Microsoft, Patents at 6:03 am by Dr. Roy Schestowitz

Provenance Asset Group Holdings has no presence on the Web; it’s only mentioned by IAM and this shady page

Rhode Island courtSummary: Microsoft’s shell game with patents (passing Android-hostile patents to trolls) carries on and publishers funded by these trolls offer the details, albeit vaguely and with obvious spin

FIVE years ago, after this long case which we had been covering for a long time, Uniloc was probably paid hundreds of millions of dollars by Microsoft (they never revealed the exact amount of money).

“Microsoft also fed Nokia’s patents to MOSAID (now known as Conversant, one of the funding sources of IAM) and Google complained that Microsoft was feeding this patent troll in order to extort Android OEMs.”This patent troll, Uniloc, does not make anything. It’s just suing a lot of companies and it is still going after Apple. This post from last night said:

After a brief hiatus, patent troll Uniloc is back and looking to milk Apple for claimed damages and fees related to allegedly infringed patents, this time involving Apple Watch GPS functionality.

At the same time we also see Nokia, not too long after it was hijacked by Microsoft (the Elop routine), shaking down Apple for a lot of money (possibly several billions of dollars) and BlackBerry is going down a similar route.

“Basically, Microsoft not only killed Nokia’s business but it is also making it a patent troll, sometimes by proxy (by passing Nokia’s patents to classic trolls).”As a reminder, Microsoft also fed Nokia’s patents to MOSAID (now known as Conversant, one of the funding sources of IAM) and Google complained that Microsoft was feeding this patent troll in order to extort Android OEMs. Basically, Microsoft not only killed Nokia’s business but it is also making it a patent troll, sometimes by proxy (by passing Nokia’s patents to classic trolls).

Yesterday this blog post from IAM revealed that yet more of Nokia’s patents are being scattered to trolls. Acacia, which is connected to Microsoft, got mentioned and also Conversant, which pays IAM for such bias. Here we go again:

In what looks like one of the biggest patent deals of the year so far, Nokia has transferred a portfolio of almost 4,000 US grants to an entity called Provenance Asset Group Holdings LLC. The deal was recorded on the USPTO assignment database in mid-September. Although full details of the deal and the team behind Provenance are not yet clear, former AST head and RPX executive Dan McCurdy lists on his LinkedIn page that he became CEO of Provenance in September 2017. Late last year McCurdy left RPX to team up with Tim Lynch and Laura Quatela’s IP advisory business which is now known as Quatela Lynch McCurdy. Quatela is currently the chief legal officer at Lenovo but previously served as vice president of IP at Alcatel Lucent where she was based at the time of Nokia’s initial bid for the company.

[...]

Ever since it started to re-order its operations including the sale of its devices business to Microsoft, the Finnish company has been a relatively active seller of patents including to the likes of Acacia and Conversant. In a tough assertion market those assets have been monetised with varying degrees of success, but it’s interesting that with this latest transfer the giant telco has opted to work with one entity rather than do a series of smaller deals. The portfolio currently being sold by AQUA has been made available to buy in whole or in part.

It will be interesting to see what happens with these patents next (if not behind closed doors then out in public). Never underestimate Microsoft’s hatred of Linux, Google, and Android (unless Microsoft can blackmail the OEMs into pre-loading Android with Microsoft software).

10.16.17

Patent Troll VirnetX a Reminder to Apple That Software Patents Are a Threat to Apple Too

Posted in Apple, Patents at 4:28 pm by Dr. Roy Schestowitz

Summary: VirnetX, a notorious patent troll, is poised to receive a huge sum of money from Apple and Qualcomm is trying to ban Apple products, serving to remind Apple of the detrimental impact of patents on Apple itself

AS reported in some Apple fan sites and VirnetX with its press release, Apple will need to pay about half a billion dollars for some dubious patents. It’s the latest reminder to Apple that software patents should be abolished.

There is also an attempt to ban all the ‘i’ things. That’s the latest on Qualcomm, as we noted yesterday. Even patent fanatics from IAM don’t think Qualcomm’s strategy will succeed. As they put it some hours ago:

A series of Beijing lawsuits first reported by Bloomberg on Friday are just the latest salvos in the increasingly bitter global patent war between Qualcomm and Apple. Announcing the new suits to the press, Qualcomm declared explicitly that it will seek an injunction in China to stop the manufacture and sale of iPhones.

The three cases have been filed to the Beijing IP Court. A Qualcomm spokesperson said the patents are related to power management and touch screen technologies, and made clear that they are not standard essential patents (SEPs). Apple emphasised that the rights are peripheral to the core of the dispute between the two companies, saying in a statement: “In our many years of ongoing negotiations with Qualcomm, these patents have never been discussed.” But by asserting patents not subject to a fair, reasonable and non-discriminatory (FRAND) licensing pledge, Qualcomm is likely to be counting on an easier path to injunctive relief – its stated goal.

Wouldn’t it be a lot simpler for Apple if software patents simply did not exist (in China too)? Many of the patents Qualcomm is using are software patents.

10.15.17

Qualcomm’s Nightmares Are Getting Worse as Antitrust Questions Are Raised and Assessed

Posted in Antitrust, Apple, Asia, Patents at 9:22 am by Dr. Roy Schestowitz

Silicon chip

Summary: Qualcomm is getting itself deeper in trouble as fines pile up and its multi-billion dollar dispute with Apple isn’t getting it anywhere

THE company known as “Qualcomm” used to exist in the market. One could actually buy things with the “Qualcomm” brand on them. Nowadays, Qualcomm is just something that’s a tax. It’s embedded in many products and the tax includes software patents, which aren’t even valid in many of the respective markets. Later this week we intend to organise our articles about Qualcomm in a Wiki page similar to that of the EPO.

“It’s embedded in many products and the tax includes software patents, which aren’t even valid in many of the respective markets.”Several days ago Qualcomm got slapped with a massive fine (almost $0.8 billion in a nation as small as Taiwan). Will they fine them even more in nations like Korea and China? We shall see…

From the report of Bloomberg (found via Florian Müller):

Qualcomm Inc. was fined a record NT$23.4 billion ($773 million) by Taiwan’s Fair Trade Commission in the latest blow from regulators over the way the U.S. company prices mobile phone chips and patents.

The company has been violating antitrust rules for at least 7 years and Qualcomm collected NT$400 billion in licensing fees from local companies during that time, the Taiwanese regulator said in a statement on its website Wednesday. The San Diego-based company didn’t immediately respond to a request for comment.

Qualcomm has attracted scrutiny from regulators around the world, with it practices probed in South Korea, China, Japan, the European Union and elsewhere. The company is engaged in a fierce battle with Apple Inc. that has seen the iPhone maker cut off billions of dollars in payments to Qualcomm.

Müller wrote about it in his own blog later on. To quote:

The Taiwan Fair Trade Commission’s decision to impose a record fine of more than $700 million on Qualcomm and to demand a departure from some of Qualcomm’s longstanding, problematic practices is really huge. If I didn’t believe so, I wouldn’t be writing this blog post about two hours after receiving approval from Apple to publish my iOS game, after three years of development. We’re initially making the game available in 24 countries now and will do our U.S. launch (after a bit more fine-tuning) next month, at which time I’ll be more specific about category, name, features, everything.

[...]

This has been a very eventful ten months for Qualcomm in antitrust terms. It’s hard to identify the tipping point, but my prediction is Qualcomm will have to fundamentally change its patent licensing and other business practices in the not too distant future, and when that happens, today’s Taiwanese decision will be considered to have been among the more important events in that regard.

IAM, as expected, isn’t too happy. “Whatever happens with the appeals,” it wrote, “the fact that the TFTC has shown its cards means there is one less major regulatory question mark for Qualcomm in Asia. The focus of the antitrust war may shift to the US and EU going forward, although there is still important Apple-Qualcomm litigation going on in China, Taiwan and Japan.”

On a separate day IAM spoke about NXP patents and Qualcomm, which it dubbed “one of the world’s leading licensors” (more like one of the world’s leading bullies). To quote:

According to a news report earlier this week Qualcomm has offered to agree to certain patent-related conditions in order to get the greenlight for its $38 billion takeover of NXP from European Union regulators. The giant US chipmaker is said to have told regulators that it will not acquire NXP’s standard essential patents (SEPs) and will not assert the Dutch company’s IP relating to near field communication (NFC) technology, except for defensive purposes.

Given that Qualcomm is one of the world’s leading licensors and makes a big chunk of its profits from monetising its patent portfolio in the mobile space, these possible concessions are very significant. The San Diego based business’s licensing practices are of course well and truly in the spotlight right now thanks to various regulatory investigations and its increasingly bitter spat with Apple. As we reported earlier today, Qualcomm was fined $773 million by Taiwan’s antitrust authorities (the company has said it will challenge the decision in court) and has also been hit with fines in the recent past by South Korea and China.

An article from Eric Jhonsa at The Street has meanwhile explained “Why Apple Is Likely to Come Out Ahead in Its Royalty Battle With Qualcomm” and to quote the summary:

Apple probably won’t get everything it officially wants in its legal fight with Qualcomm. But similar to what happened in its patent battles with Samsung, Apple might end up in a better position than if it had never sued.

As we explained at the start of the year, if Apple wins this battle, it will be good news for Android, too. Apple has just, yet again, been sued for patent infringement. Will Apple interpret that as a wakeup call regarding patents? Perhaps a nice goal for us to have is to compel companies like Apple to understand that software patents aren’t in their interest and therefore fight along with us.

“Will Apple interpret that as a wakeup call regarding patents?”In the meantime, as of Friday, “Qualcomm Seeks China iPhone Ban, Expanding Apple Legal Fight” (because it’s feeling the pressure).

To quote Bloomberg again:

Qualcomm Inc. filed lawsuits in China seeking to ban the sale and manufacture of iPhones in the country, the chipmaker’s biggest shot at Apple Inc. so far in a sprawling and bitter legal fight.

The San Diego-based company aims to inflict pain on Apple in the world’s largest market for smartphones and cut off production in a country where most iPhones are made. The product provides almost two-thirds of Apple’s revenue. Qualcomm filed the suits in a Beijing intellectual property court claiming patent infringement and seeking injunctive relief, according to Christine Trimble, a company spokeswoman.

Qualcomm is just trying to intimidate Apple, but we very much doubt this pressure (or financial risk) will turn Apple away. At the end, we certainly hope that Qualcomm will lose and preferably fold as a company. Qualcomm has nothing left to offer.

Forget About Apple; Two of the Leading Phone Makers (Samsung and Huawei) Are Bickering Over Patents

Posted in Apple, Asia, Patents at 8:35 am by Dr. Roy Schestowitz

The aggressor is Huawei

Huawei and China

Summary: Massive Android OEMs, Huawei and Samsung, are in a big patent dispute and this time, for a change, China is a legal battleground

THE war Apple started against Android in 2010 was a patent war. The first target was HTC from Taiwan. Later on Apple targeted the biggest (at the time) Android OEM, namely Samsung.

Huawei has since then challenged Samsung to the crown, after Samsung became a bigger OEM than Apple. As is widely known by now, Apple started flinging all sorts of ridiculous design patent lawsuits at Samsung. Some of these patents looked almost comical and last week we explained why design patents, as a whole, are a lame shame (trademark and copyright laws already cover designs). More people need to talk about this. Several days ago Patently-O plotted duration of such patents (believe it or not, it’s fifteen years). “If I were preparing to file a design patent around early May 2015,” it said, “I might have held-off a bit on the filing to pass the May 13, 2015 threshold. Design patents stemming from applications filed on or after that date have a 15-year patent term (calculated from patent issuance) as opposed to a 14-year term for those filed prior to the threshold date.”

“…the patent courts in china have become kangaroo courts like the Eastern District of Texas.”So the USPTO further extended the life of patents which probably ought not exist in the first place.

Sadly, patents like these continue to be used in countries where the threshold for patenting is low. Huawei, for example, first sued Samsung in both China and the US, knowing that China’s State Intellectual Property Office (SIPO) is notorious worldwide for probably the lowest patent quality. Moreover, as we have shown recently, the patent courts in china had become kangaroo courts like in the Eastern District of Texas. Here is the latest on this from English-speaking Chinese media:

The patent war between Chinese smartphone maker Huawei Technologies Co and its South Korean rival Samsung Electronics Co has been in the headlines again recently, after China’s State Intellectual Property Office (SIPO) announced its latest rulings on eight cases.

The SIPO’s Patent Reexamination Board announced on September 30 that five patents involved in Samsung’s lawsuits against Huawei are invalid, one is partly invalid and only two remain valid. At this point, 10 of the 16 patent infringement lawsuits Samsung filed against Huawei in China have been determined invalid, accounting for 62.5 percent of the total.

The patent battle started in May 2016 when Huawei first sued Samsung in both China and the US for alleged infringement of its smartphone patents, involving several of its cellular communications technology and software inventions used in Samsung smartphones. In July 2016, Samsung countersued Huawei over six alleged infringement patents.

It’s worth noting that SIPO found most of the patents it had granted to be invalid. Yet another reminder of the low patent quality there.

IAM (lobbying group that calls itself publisher) keeps egging on or encouraging a patent trolls epidemic in China. See what it wrote some days ago. We are worried that China’s race towards patent maximalism will spread to other countries. Patent radicals in the US already cite “China!” all the time, in an effort to lobby their officials for broader patent scope.

10.06.17

Design Patents Should Not Exist, Trademarks and Copyrights Already Cover Designs

Posted in Apple, Patents, Samsung at 3:57 am by Dr. Roy Schestowitz

Zach Snyder is listed as an “Inventor” of this:

Zach Snyder patent

Summary: The absurdity of broad patents on design ideas which are about as ludicrous as patents on paintings or sketch arts

WE have, for a long time, said that patents on designs should not exist. Trademark law already covers designs, sometimes copyright law covers these too.

This new book title irked us a little. Patently-O promoted it yesterday. The book’s name, “Design Rights”, is misleading. These are not “rights” per se. We often see words like assets, property, rights, protection etc. misused. Patently-O misuses these words too.

“The book walks through design protection available the various global regions,” Patently-O wrote, “US, Europe, Japan, China, India, S.America, etc – and is designed to help practitioners both understand the law and get started on strategy.”

It talks about “practitioners”, i.e. those who make a living not from designs but from telling designers that they need patents.

Design patents too often (more often than not) look like satirical ones. Patently-O gave this example the other day and even Crouch made fun/poked at it. To quote: [via]

Don’t stare too deeply into the pattern above – it embodies Columbia Sportswear’s U.S. Design Patent No. D657093 – covering “the ornamental design of a heat reflective material, as shown and described.” The recent $3 million jury verdict in Columbia Sportsware v. Seirus Innovative Accessories appears to be the first post-Samsung verdict on design patent damages.

Look at it. Ridiculous! How can that be monopolised? It’s almost outrageous.

The Samsung verdict Crouch alludes to is the Apple case, which revolves around a ridiculous design patent dispute. There’s an update on the case in this post from Florian Müller:

Just this week, the Wall Street Journal reported on the high-volume business Apple is doing with Samsung, a key supplier of components for various products including the new flagship iPhone, the iPhone X, on which Samsung will reportedly make $110 per unit. But as device makers, the two remain fierce competitors–and adversaries in court.

And on the design patents:

In the famous design patents case, the DoJ agreed with Samsung on the key legal question (article of manufacture). It additionally brought up a procedural question that could have enabled Apple to defend the original damages award. Now, with respect to the more recent petition relating to invalidity, injunctive relief, and infringement, the DoJ cautiously distances itself from the en banc opinion and indicates only between the lines that it may disagree, to some extent, from a policy perspective (“rigid rules for demonstrating obviousness” etc.). It would have been nice if the DoJ had been clearer about the implications of this for U.S. tech companies and for the work of the United States Patent and Trademark Office, which is supposed to protect real technological progress, which is hard to do if even weak evidence of non-obviousness gets a lot of weight. The DoJ could have expressed more clearly a concern over what this means for patent quality, but unfortunately it didn’t.

Those who have actually seen some design patents (not registered designs) will know that it’s a bubble of bad patents. Patently-O recently showed the explosive growth of such patents at the USPTO.

What next for patent maximalists? The crooked EPO has already begun granting patents on life itself, rendering EPs a laughing stock.

09.30.17

Apple is the Next BlackBerry

Posted in Apple, Patents, Samsung at 11:39 am by Dr. Roy Schestowitz

Blackberry Guardsman

Summary: BlackBerry continues going down the route of ‘monetising’ its patents rather than actually making phones — something towards which even Apple increasingly gravitates

It was exactly two weeks ago that we wrote about BlackBerry becoming aggressive with patents. Only days later we found out that their chief patents guy had left. BlackBerry has a large number of patents granted by the USPTO, even though BlackBerry is Canadian.

BlackBerry, as we have stated in nearly a dozen articles, was reduced to nothing but patent litigation and “licensing” (euphemism for shakedown/settlement/extortion, which otherwise culminates in litigation). Their producing part of the business is more or less defunct (depending on who one asks; they still need to provide updates to existing customers).

“BlackBerry’s Software Sales Contribute To Share Value Increase,” said this headline just before the weekend. “BlackBerry signs first licensing deal for its version of Android,” said other headlines [1, 2] from Thursday. These deals have a lot to do with design patents and even hardware (especially keyboards that BlackBerry is widely known for). To quote:

BlackBerry stopped making its own phones last year and began licensing its technology and brand to other companies. Up to this point, those deals have included BlackBerry’s hardware patents, some of which go back to the nascent days of the smartphone era. This deal shows there is demand for the company’s version of the Android software on its own, said Alex Thurber, head of mobility solutions division for the Waterloo, Ontario-based company.

We expect Apple too to end up like this. Why? Because Android OEMs are taking away its market share, little by little.

Yesterday, citing the likes of Rebecca Tushnet (not patent maximalists for the most part), Florian Müller wrote about Apple’s design patent case (there’s more than one) against Samsung. Here’s the latest:

Apple and Samsung have meanwhile responded to each other’s proposed tests (Apple brief, Samsung brief). They accuse each other’s proposal of being inconsistent with the Supreme Court decision, other case law, and statutory law. Up to a certain degree, I agree with Mr. Levy’s criticism of Apple’s proposed test: Apple is simply trying to salvage a $400 million award through a test that has rather subjective elements such as “how” a design was used, “how” a product was sold, or “the degree to which the asserted article of manufacture is physically and conceptually distinct from the product as sold.” That kind of test would be a recipe for lengthy trials and confused juries, in many cases even hung juries.

[...]

A really interesting panel debate–the 90-minute recording is worth watching in its entirety– took place in Washington D.C. the week before last. A Law360 reporter attended and noted that this design patent damages issue divides the patent world. Professor Rebecca Tushnet (Harvard) published some of the panelists’ statements on her blog. I’ll probably get back to some of what was said on that panel at the next procedural juncture.

Apple is eager to win this legal battle because if (or when) Samsung gives up Apple can then go after other OEMs, not necessarily with lawsuits but with “licensing” demands.

09.21.17

East Asia’s Patent Peril and the Curse of Patent Trolls

Posted in Apple, Asia, Microsoft, Samsung at 3:42 am by Dr. Roy Schestowitz

From manufacturing to merely taxing manufacturers?

A factory

Summary: The high cost of China’s new obsession with patents and the never-ending saga of Samsung (Korea), which gets dragged into courts not only in the US but also in China

THE unit once owned by Google (now Lenovo) — namely Motorola‘s mobile business — is in the news again. IAM says that the judge who oversaw Microsoft’s patent war on Linux (Android/Motorola) is upset that Britain now enables patent trolls to operate in London (we wrote a lot about this decision at the time). Huawei, a Chinese giant and leading Android OEM, was attacked by Ericsson’s patent troll. As IAM puts it:

US district court judge James Robart has taken aim at the decision handed down by Justice Colin Birss in the high profile London High Court SEP/FRAND case of Unwired Planet v Huawei, decided earlier this year. Speaking at the annual IPO meeting in San Francisco yesterday, Robart – who handed down the famous Microsoft v Motorola decision in 2013 and sits in the Western District of Washington – said that Birss was wrong to offer specific royalty rates for the technology in question, rather than offering a range, and stated that he did not expect the judgment to be particularly influential in US courthouses.

[...]

Robart’s claim that the Unwired decision wouldn’t have much influence over US courts has previously been made by former Chief Judge for the Federal Circuit Paul Michel who told this blog after the London ruling was handed down that the US legal system was traditionally inward looking and so rarely paid much heed to overseas cases. Of course, judges around the world often disagree on key areas of patent law – the Supreme Court’s rulings in several patent eligibility cases has meant that the US is out-of-step with many jurisdictions in sectors like medical diagnostics – but Robart’s comments highlight the degree to which the law in FRAND licensing remains unsettled.

This decision ought to have been a wake-up call for Huawei, Lenovo (now holding Motorola’s ‘assets’), and China in general. Patent maximalism harms them everywhere. IAM also wrote about this collapse of a Chinese company that wrongly relies on patents rather than production. To quote:

Sanan Optoelectronics failed to take over Osram after having its bold $8.2 billion bid rebuffed late last year. But the Chinese LED maker has turned to the patent market to shore up its IP position, most recently buying a pair of portfolios from Sony. As increased scrutiny from regulators in both Europe and the United States threatens to scuttle Chinese firms’ more audacious M&A endeavours, there is still significant scope for them to acquire IP in smaller-scale deals.

[...]

A USPTO database search turned up just one previous example of Sony transferring patents to a Chinese entity. In 2015, it assigned six imaging-related assets to Hikvision, a video surveillance company whose controlling shareholder is a state-owned enterprise. So it appears to be a relatively rare occurance. Throughout this year and going back to 2015, Sony has steadily transferred LED-related assets to JOLED, an entity which was formed to combine the OLED functions of Sony, Panasonic and Japan Display in 2014. The Sanan sale perhaps shows that Sony has identified assets in the technology area which are not needed by its spun-out business but can find willing buyers on the open market.

As we said here many times before, this strategy of China’s patent gold rush (with government support/backing/financing) is going to be self-destructive. China is, indeed, becoming a patent trolls hub (self harm). IAM wrote about it the other day in relation to Samsung coming under fire. Shortly beforehand, Florian Müller wrote about the Apple v Samsung design patent case — a case which was discussed some days ago:

About a month and a half ago, Judge Lucy Koh of the United States District Court for the Northern District of California held that Samsung had not waived its “article of manufacture” argument in the first Apple v. Samsung case. That was another step forward for Samsung in its quest to get the damages award reduced. But prior to ordering a new trial on design patent damages, Judge Koh ordered briefing on various questions to be resolved first.

Last week, the parties filed their answers to the court’s questions (Apple, Samsung). Samsung argues that Apple has the burden of proof and that the only way the damages question could be resolved without a new trial would be for the court to find an evidentiary failure on Apple’s part. Apple refers the court to the Solicitor General’s Supreme Court brief. According to Apple, after a prima facie showing regarding the article of manufacture that infringes a design patent, the burden of proof is on the defendant to show that a component of that product is the appropriate basis for a disgorgement of infringer’s profits. While I tend to consider Samsung’s proposition better policy, I have no idea to what extent Judge Koh may be influenced by the DoJ’s Supreme Court brief.

Design patents were certainly on the line after the case had been escalated to the Supreme Court and then sent back down to lower courts. As one publication put it the other day:

The U.S. Supreme Court furthered a legal dispute last year as it sent a patent law case involving the two biggest smartphone makers, Apple and Samsung, back to lower courts. Intellectual property experts are now looking to those courts to better define an “article of manufacture” and determine how to place value on individual features in a complex device.

This case seems like it has lasted forever (so far). The only party happy about it is the patent ‘industry’, which is wasting time bickering over patents instead of creating something.

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