06.10.18

Everyone Talks About Apple’s Notorious Design Patents But Not About ‘Abstract’ European Patents Used Against Apple and Linux

Posted in Apple, Europe, GNU/Linux, Patents, Samsung at 3:18 am by Dr. Roy Schestowitz

A ‘Battistelli era’ patent

EP2954737

Summary: What corporate media and the ‘mainstream’ speak of in relation to Apple and what more ‘niche’ bloggers pay attention to, serving to highlight a decline in patent quality at the European Patent Office (EPO)

LAST weekend we wrote about Zeroclick, LLC v Apple, Inc. We took note of the relation to a very malicious patent troll, Erich Spangenberg. Days later Watchtrolll wrote about this case as well, adding virtually no new information.

But Apple remains in headlines (about patents) mostly because of its own battles against Android (and by extension Linux). Professor Michael Risch’s analysis of Apple v Samsung is only days old and it speaks of the massive “damages” of ~$533,000,000. Risch’s views:

I’ve done a few interviews about the latest Apple v. Samsung design patent jury verdict, but journalistic space means I only get a couple sentences in. So, I thought I would lay out a couple points I see as important. We’ll see if they hold up as predictions.

There’s been a lot written about the case, so I won’t rehash the epic story. Here’s the short version. The design patent law affords the winning plaintiff all of the profits on the infringing article of manufacture. The Supreme Court ruled (reversing about 100 years of opposite practice) that the article of manufacture could be less than the entire accused device for sale. Because the original jury instructions did not consider this, the Court remanded for a determination of what the infringing article of manufacture was in this case (the design patents covered the shape of the phone and the default screen). The Federal Circuit remanded, and the District Court decided that, yes, in fact, the original jury instructions were defective and ordered a retrial of damages.

The District Court adopted the Solicitor General’s suggested test to determine what the article of manufacture was, determined that under that test it was a disputed fact question, and sent it to the jury. Apple asked for $1 billion. Samsung asked for $28 million. The jury awarded $533 million, which is more than $100 million more than the damages were before the Supreme Court ruled.

Josh Landau (CCIA) too wrote about these design patents, probably for the dozenth time or so. “Comments from Samsung Jurors Drive Home The Flaws In Design Patents,” Landau argued.

Flawed Logic

The logic of the jury’s verdict also requires a different result than profits on the entire device.

Even if we assume, contrary to both good policy and established case law, that profits on the components that produce the icon grid are available, those components still aren’t the whole phone. The cellular hardware, for example, is not involved in producing a display (after all, Apple’s iPod Touch produced a similar display without any cellular functionality), but is still part of Samsung’s total costs and profits. For that matter, the external casing isn’t required in order to produce the grid of icons.

If the article of manufacture is defined by the hardware required to produce the icon grid, then it’s also defined as something other than the entire phone.

Flawed Results

It all comes back to a single problem. The design patent total profits rule produces tests that are incoherent and impossible to apply when design patents are available for small pieces of complex, multi-component products. The total profits rule of § 289 simply doesn’t make sense in these situations.

We’re very disappointed to see Apple stooping to ‘Microsoft levels’ and 7-8 years ago we called for an Apple boycott (this made it into sites like Slashdot at the time). Has much changed since? Other than Steve Jobs’ death?

Well, sometimes we openly support Apple’s patent battles, e.g. against Qualcomm. As we explained before, if Apple wins this dispute, it will be good for phones that have Linux in them as well.

As it turns out, Qualcomm now uses a software patent granted by the EPO. To quote Florian Müller:

In 10 minutes: #Qualcomm v. #Apple #patent infringement trial in Mannheim, Germany. Patent-in-suit: EP2954737 on a „power tracker for multiple transmit signals sent simultaneously“.

He later added:

After Judge Dr. Kircher of the Mannheim Regional Court expressed serious doubts about the validity of #Qualcomm‘s EP2954737, QCOM felt forced to stipulate, with #Apple, to a stay of this case pending the EPO‘s decision (in a year or so) on Apple and #Intel‘s opposition. https://twitter.com/fosspatents/status/1003968003413815298 …

On why it’s a software patent:

Yet another software patent: “the functions described may be implemented in hardware, software, firmware, or any combination thereof. If implemented in software, the functions may be stored on or transmitted over as one or more instructions or code on a readable medium”

Well, software patents like these have plagued the EPO, not just the USPTO. We doubt any of that will change under António Campinos; it’s like the EPO goes in the very opposite direction of the US (where the Federal Circuit and Patent Trial and Appeal Board invalidate software patents en masse).

Müller later put it together in a blog post [via], having watched this dispute for quite some time. To quote:

Four months back, Qualcomm’s lead counsel in the German Qualcomm v. Apple cases, Quinn Emanuel’s Dr. Marcus Grosch, hoped to obtain a Germany-wide patent injunction against Apple this summer. The related case (one of various patent infringement claims Qualcomm has brought against Apple in Germany) went to trial this afternoon, and it’s unlikely that anything, if ever, will happen in that particular matter before the summer of 2019.

The patent-in-suit, EP2954737 on a “power tracker for multiple transmit signals sent simultaneously,” is under massive pressure because of Apple and Intel’s opposition to its recent grant. Of the four prior art references cited, Alcatel Lucent’s European patent application EP2442440A1 poses the greatest–though not the only–threat to Qualcomm’s patent.

Why did the EPO foolishly grant such a patent? In the US, in the meantime, software patents are being invalidated and yesterday Müller gave a new example:

Yesterday the United States Patent and Trademark Office had bad news for a particularly broad member of Twitter’s key patent family, U.S. Patent No. 9,088,532 on a “device[-]independent message disribution platform.” As I reported in March, the ’532 patent is being reexamined based on a patent application by independent Indian inventor Yogesh Rathod as well as a couple of other prior art references. The reexamination requested related to claims 1-3, 8, 9, 13-15, 17, 20, and 21, all of which are being reexamined. In a (first) Office communication since opening the reexamination proceedings, the USPTO has held all of the reexamined claims invalid, challenging Twitter to persuade the examiner that its patent claims should be upheld.

Prior art rather than Section 101 (or similar) was cited here, but still… it’s a testament or evidence of the fact that the US improves patent quality, whereas Europe moves in the opposite direction under Battistelli’s crooked leadership.

06.02.18

US Antitrust Official Makan Delrahim Encourages Parasitic Patent Behaviour — Not Just Embargoes — in the Phones Domain and Beyond

Posted in America, Antitrust, Apple, Asia, Patents, RAND, Samsung at 8:47 am by Dr. Roy Schestowitz

The lawyers might like it, but it’s bad for the customers (fewer choices, more expensive overall)

ZTE

Summary: US antitrust authorities and the European Commission have been speaking a lot lately about FRAND/SEP and SPCs; will they institute policies which benefit the monopolies or the market at large?

WE HAVE ALWAYS PREFERRED not to deal with politics but with purely technical matters, but when it comes to patent law it seems like politics are inevitable. The EPO, for example, is run by a crooked politician and the USPTO is connected directly to the government. See Makan Delrahim's history just before Trump put him in his current position; Trump put yet another rogue lobbyist (“swamp” is what he calls it) in charge and it hurts actual science and technology. Before Iancu was nominated and appointed by Trump his firm had worked for Trump too. That’s politics.

Makan Delrahim’s policies were mentioned by Richard Lloyd just before the weekend. It was about standard essential patents (SEPs). There was a discussion about it in Europe (FRAND/SEP and SPCs) because of the European Commission’s latest announcement (relegated to our daily links) and here’s what Lloyd wrote about a new letter:

A group of advocacy groups with close ties to the high-tech, automotive and retail industries have released a new paper calling into question several of the policy positions staked out by US antitrust chief Makan Delrahim regarding the application of antitrust law to the licensing of standard essential patents (SEPs). The paper follows a letter, signed by 77 former government officials and academics sent to Delrahim last week which also questioned several of the comments that the head of the Department of Justice’s antitrust division has made since he was appointed last September.

We already wrote several posts bemoaning Delrahim’s policies, which seem to be influenced not by national interests but few private interests.

Speaking of politics, ZTE has been everywhere in the news lately; it isn’t all about patents, but the patents angle/aspect does get brought up on occasions, sometimes in relation to these lawsuits in Texas, which is becoming widely known for little but patent trolls and patent lawsuits. From a new report about it:

Despite the fact that its devices were recently banned in America, Chinese smartphone maker ZTE is now facing a patent infringement lawsuit in the US.

A Northern Texas US District Court judge recently denied the company’s motion to dismiss a patent infringement case filed by a Texas-based mobile software developer.

Seven Networks has alleged that ZTE’s firmware uses seven of its own patents regarding battery management, data transfers and notifications. The software developer’s complaint alleges that the ZTE Blade smartphone as well as its other devices, use parts of all seven patents to manage their battery life and handle notifications and data transfers.

[...]

ZTE has decided to halt production until the ban is lifted and its lawsuit with Seven Networks will likely complicate matters further.

As The Register put it (adding some politics), “ZTE can’t buy chips from America – but can still get sued for patent infringement in the US” (this is the headline).

Chinese phone maker ZTE will have to face a patent infringement lawsuit in the US, despite its handsets being effectively barred from sale in America.

On Wednesday a Northern Texas US District Court judge tossed the Chinese company’s motion to dismiss a patent infringement case filed by a Texas-based mobile software developer.

Seven Networks has alleged that ZTE’s firmware borrows from seven patents it holds regarding data transfers, battery management, and notifications.

Why would ZTE even wish to participate in the US market? ZTE and other Chinese companies have been the subject of a political smear campaign lately*. The same has been happening in Europe, especially in the UK.

Going back to the patent maximalist/lobbyist Richard Lloyd, he caught up with something we had covered regarding Panasonic. It’s feeding patent trolls in spite of all the openwashing. It’s likely that the trolls will soon go after companies like ZTE, suing perhaps through Texas (this has become common among Canadian patent trolls). Quoting Lloyd:

WiLAN has acquired a portfolio of patents from Panasonic in the latest in a long line of patent transfers between the Japanese tech giant and the Canadian NPE. The portfolio contains 34 patent families comprising 96 grants worldwide. It relates to security camera surveillance technologies, including camera systems used in retail, other commercial buildings and smart home applications. The transfer follows another transaction between the two in January which related to semiconductor memory technologies used in Dynamic Random Access Memory (DRAM) and NAND Flash Memory.

Nobody benefits from it; they artificially elevate the price of phones, which basically come with a ‘trolls tax’ attached.

As Samsung and Apple recently came to accept, this is mostly beneficial to patent lawyers. IAM named Samsung as the winner in Apple v Samsung, but the truth is that neither company won. Only their legal departments gained, as usual.

Well, having uploaded the relevant PDF, which can be found in Scribd [PDF], Florian Müller wrote that “Apple, Samsung trying to put patent dispute behind them through mediation” and to quote:

After last week’s Apple v. Samsung damages verdict (largely over design patents) in the Northern District of California, counsel for both parties told Judge Koh that they were both willing to put an end to their long-running dispute, which started with a complaint filed by Apple in April 2011 and quickly escalated into a global dispute with filings in ten countries.

[...]

What’s furthermore unclear (and no one may know at this stage) is whether the parties will try to resolve both California cases (the one that went to re-retrial in May, and a second one that turned into a roller coaster) or just the first one.

High-profile smartphone disputes between handset and platform makers (unlike litigation brought by non-practicing entities or increasingly-”trollified” former phone makers such as Nokia and Ericsson) haven’t recently resulted in license agreements. Instead, parties just dropped pending cases but reserved all options for bringing new complaints anytime, with some license agreements–or covenants not to sue–of extremely limited scope possibly having been part of some of those confidential deals. I would expect the same if Apple and Samsung finally called a truce. Apple obviously isn’t going to extend a design patent license to Samsung; the result might involve a license (or a convenant not to sue with the practical effect of a license) to a few software patents, though some have expired and others have been worked around. But by and large the question is just whether Apple will withdraw any pending claims. And, even if this works out now at long last, no one knows when hostilities might flare up again.

Müller speaks of “non-practicing entities or increasingly-”trollified” former phone makers such as Nokia and Ericsson,” but he might as well add Blackberry with Apple at its heels.

All these lawsuits sure fascinate patent lawyers because these make them richer. But at whose expense? We would be better off without all these legal battles. Can Delrahim, a lawyer himself, ever understand that?
____
* In addition to this, Microsoft blackmails ZTE and others. It’s suing or threatening to sue using patents just because they use Linux and Free/libre Open Source software.

05.27.18

The Way Things Are Going in the Eastern District of Texas and Other US District Courts, South Korean Companies Might as Well Exit the US Like They Exit China

Posted in Apple, Courtroom, Patents, Samsung at 2:44 pm by Dr. Roy Schestowitz

Patents on designs (controversially granted by the USPTO) are self-discrediting anyway

Judge Lucy Koh

Summary: Apple and Samsung conclude another major patent battle (after 7 years of chaos, taking up a lot of Judge Lucy Koh’s time), but many patent battles remain, which means that lawyers at both companies receive salaries which otherwise engineers would have gotten

THE Apple and Samsung patent battles are so long and boring that we’ve almost entirely quit covering them. When Apple started attacking Android with patents (Apple v HTC) we still wrote a lot about it.

Just because it’s Apple, the firm which champions hype and fantasy, the media in the US is sickly obsessed with it and it has been covering the case like it’s the only one that really matters. We’re assuming that our readers already saw the news elsewhere. If not, here are some articles [1, 2, 3, 4, 5, 6, 7, 8, 9]. “Samsung argued it should pay only $28 million for infringement,” one article notes, rather than have the patents questioned (this trial wasn’t about the patents but the “damages” — a bizarre misnomer but an official/formal legal term).

“The fact is that Samsung won the smartphone wars back in 2012,” IAM claimed in “The smartphone wars were a triumph for Samsung, a defeat for Apple, but everybody won” (the editor published this a few hours ago).

Notice how even some pro-Apple news sites thought that Apple would lose. Ben Lovejoy wrote in 9 to 5 Mac:

The Apple versus Samsung patent trial that began in 2011 returned to court last week. Closing arguments were made on Friday, and it’s now up to a jury to decide whether the damages awarded to Apple will be increased, decreased or remain unchanged.

My expectation is that Apple will lose the case – and I’ll define ‘lose’ in a moment – and that, actually, that would be the right result …

But no, not really… because only lawyers won. It’s more like an internal fight within the companies rather than between them. The legal team is trying to make itself relevant and help itself expand. At whose expense? Likely the technical workers, who would rather add features than remove features to avert potential infringement.

This truly sickening, wasteful battle (7 years of court battles with judges and lawyers involved) should serve as a reminder; two companies wrestle themselves to death and only the lawyers enjoy the duel (they profit from it regardless of who wins which motion/s).

Three days ago, i.e. shortly after the decision, USA Today wrote: “Samsung must pay about $533.3 million for infringing on design patents. The jury said Samsung owes Apple an additional $5.3 million for infringing on utility patents.”

Florian Müller, who had followed this super-closely, stayed up until very late at night (or woke up as early as summer’s dark hours) to write about the outcome and these design patents. To quote some bits:

A cartoon showing Homer Simpson using an iPhone may indeed have had an impact on a high-profile smartphone patent dispute as the screen design patent it relates to apparently accounts for approximately half a billion dollars in design patent damages. After three days and a half of deliberation, the re-retrial jury in the first Apple v. Samsung case in the Northern District of California awarded Apple a total of approximately $538.6 million in damages from Samsung (related to some old phones–mostly the first two generations of the Galaxy S), $533.3 million of which relate to design patents and $5.3 million to utility (i.e., technical) patents. Here’s the verdict form (this post continues below the document)…

[...]

The jury had asked two questions, and both questions showed they were really struggling with determining the relevant article of manufacture (AoM). If the jury had determined that the design patents in question covered only certain components (casing and screen), the amount would have been in the tens–not hundreds–of millions of dollars, but given that Apple was seeking more than $1 billion, the jury would probably have been inclined (in that hypothetical scenario) to award substantially more than the amount Samsung described as reasonable (less than $30 million). At the same time, given that juries often come down somewhere in the middle, a billion-dollar award was a possibility, but far less probable than the combination of agreeing with Apple on the AoM but with Samsung on most or all of its deductions.

[...]

According to media reports, Apple reiterated how much value it attaches to design, and Samsung is now going to consider its options. Those options are post-trial motions and, possibly, another appeal.

When patent trials are done or decided by juries the impact is catastrophic. As CCIA put it the next day:

Yesterday, after almost four days of deliberation, the Apple v. Samsung jury decided Samsung owed Apple over $500 million of Samsung’s profits.

Faced with an artificial and unsound test, the jurors struggled to understand just what they were supposed to do.

Ultimately, the jurors awarded Apple profits on the entire Samsung device for Apple’s icon grid patent. One juror is reported to have explained that the article of manufacture for the icon grid patent “was the whole phone because you need the phone to see it.” If Microsoft Solitaire (with cards originally designed by Apple’s own expert witness) had an infringing design, all of a sudden the entire computer is at risk—without a processor, display, memory, and hard drive, there’s no way to display the cards. That logic creates real risks for the computing industry and for new industries like smart home and IoT products.

What a mess. So even the mere design of something can have someone — anyone — liable for infringement of patents. Even a mere part of something.

Is Apple happy about the precedent here? It would be damaging to everyone.

Going back nearly a month ago, Watchtroll suddenly recalls that old case against Siri — a case brought forth by an “Israeli camera startup” that becomes a serial litigator. Many news outlet reported on it at the start of this month (because it’s about Apple). “One of the patents added was not even granted until January 2018,” says one of those reports.

Guess whose side Watchtroll takes:

On April 30th, Tel Aviv, Israel-based camera tech developer Corephotonics filed a complaint alleging patent infringement against Cupertino, CA-based consumer tech giant Apple Inc. (NASDAQ:AAPL) in the Northern District of California. This lawsuit comes months after Corephotonics filed a patent infringement suit against Apple last November, also in Northern California, with both suits alleging that Apple copied Corephotonics’ patented technology after Apple had allegedly expressed interest in a business relationship with the Israeli tech startup.

This sounds similar to the i4i v Microsoft situation (going about a decade back).

Samsung too is on the receiving end of such ‘nuisance’ lawsuits. Even in Texas. Apple’s arch-rival is being sued in the Eastern District of Texas, home of patent trolls. Who by? The Korea Advanced Institute of Science and Technology (KAIST). There’s no escaping Korean patent aggressors then, not even in the US. Docket Navigator wrote about the latest twist in Kaist IP US LLC v Samsung Electronics Co., Ltd. et al as follows:

The court granted plaintiff’s motion to exclude the testimony of defendants’ technical expert regarding defendants’ enablement and written description theories as irrelevant.

Docket Navigator also wrote about Plastic Omnium Advanced Innovation and Research v Donghee America, Inc. et al, but this one is less relevant to us albeit a similar new example because a motion to exclude. To quote: “The court denied defendant’s motion to exclude the testimony of plaintiff’s damages expert regarding a reasonable royalty rate because his reliance on an unaccepted proposal was sufficiently reliable.”

KAIST is a curious case of Korean patent aggression, which is rare. We wrote quite a lot about it in recent years and IAM wrote about it as recently as a few days ago. To quote the summary:

An affiliate of a top South Korean tech university, the Korea Advanced Institute of Science and Technology (KAIST), is currently locked in a US patent litigation battle with Qualcomm, GlobalFoundries and Samsung. A recent flap over the ownership of the underlying right reveals the missed opportunities that led to KAIST monetising the right, and underlines why universities in the country are changing their approach to patenting. KAIST IP US LLC, a university monetisation vehicle, filed the lawsuit in late 2016 accusing the three global chipmakers of infringing a single patent. The case was accompanied by a parallel complaint in South Korea.

KAIST is the exception rather than the norm in South Korea. Korean companies generally do not sue much; they do get sued, usually abroad, e.g. in China and in the US (this led LG to even withdrawing from the Chinese market). If Apple keeps suing like it does (always in the US), will it even be worth it for Samsung to still operate there? For the time being, owing to Samsung’s relatively high market share, the answer is probably yes, but for how long? Quite a few Chinese firms have begun moving out of the US, either because of US policies or lack of demand (partly the fault of the media).

05.20.18

In Apple v Samsung Patents That Should Never Have Been Granted May Result in a Billion Dollars in ‘Damages’

Posted in Apple, Courtroom, Patents, Samsung at 8:05 pm by Dr. Roy Schestowitz

Merely damages the credibility of the USPTO if anything…

11 Cool, Funny or Just Plain Strange Patents for Back to School
Reference: 11 Cool, Funny or Just Plain Strange Patents for Back to School

Summary: A roundup of news about Apple and its patent cases (especially Apple v Samsung), including Intel’s role trying to intervene in Qualcomm v Apple

HERE in this Web site we prefer to focus on topics/angles which ought to be covered by mainstream media but never/rarely are. The Apple v Samsung trial is generally being covered quite a lot by big publishers, e.g. “Apple v Samsung Poses Threat Beyond Just Tech” and other new headlines/reports [1, 2, 3, 4, 5, 6]. It is already being mentioned quite heavily in social control media, probably because Apple is involved. Not many patent cases manage to attract quite as much public interest. We remarked on it a few times earlier this month. As Wall Street media put it last week, “Apple Wants $1 Billion From Samsung at Smartphone Retrial” (retrial after nearly a decade of fighting).

Apple has taken patent maximalism/lunacy to new heights in California. It’s seeking billions in ‘damages’ over a simple shape of something. To quote one report:

Apple Inc. is seeking about $1 billion from Samsung Electronics Co. in another go-round stemming from a long-running smartphone patent-infringement dispute.

Jurors at the retrial before before U.S. District Judge Lucy Koh in San Jose, California, learned at the outset that the South Korean company infringed three of Apple’s design patents and two utility patents. Their sole job, Apple lawyer Bill Lee said, is to determine what damages Apple can collect.

Damages? What damages? As Josh Landau (CCIA) put it 5 days ago:

The design patent total profits rule of § 289 was created in an era when awards of profits were common and where complex multi-component products like we have today were uncommon. (Obviously, the concept of a computing device with an ecosystem of third-party app developers wasn’t even within the realm of imagination when § 289 was written.)

In fact, § 289 was created as a reaction to a decision about carpet decorations. A customer might seek out and buy a carpet just because of the design. But for most products today, that simply isn’t the case.

In order to avoid the kind of perverse results I’ve described, the article of manufacture for an icon or GUI should be interpreted as the software, not the device it runs on. And even if that change were made, Congress should still consider revisiting the total profits rule. A single infringing icon that’s a small part of a complex operating system shouldn’t entitle a patent owner to the total profits on the whole operating system—no matter how iconic it might be.

Patents on designs are a clear misfit; copyright and trademark laws cover designs. There’s this new blog post at IP Kat about industrial designs in Mexico with subheadings like “New concepts for industrial design examination” and “New regime for the validity of designs” (they aren’t talking about patents!).

Going back to Landau, the following day he published “Smartphones, Diapers, and Design Patents” — a post in which he mentioned Microsoft v Corel analysis by Sarah Burstein. She is a proponent of such patents. She wrote about it years ago.

Landau alludes to diapers and says:

Apple v. Samsung is obviously about high tech smartphones. Other recent design patent cases have focused on high tech products as well—both the Nikola v. Tesla case Patent Progress covered recently and the Microsoft v. Corel case that Prof. Sarah Burstein described over on Patently-O deal with high tech products.

[...]

Similarly, in a design patent case involving diapers, you have a printed outside layer—and then all the technology on the inside. Is the article of manufacture the entire diaper, or the printed outside layer? And how do you distinguish that from the Apple v. Samsung case?

The truth of the matter is — as we have been arguing for a number of years — patents on designs are too bizarre a concept. Watchtroll now promotes the nuisance patent litigation against Tesla (over mere shape/curves of a truck). Patent maximalists typically like any patents, irrespective of how broad they are. That just means more litigation, hence more business for them.

“The truth of the matter is — as we have been arguing for a number of years — patents on designs are too bizarre a concept.”There is another patent battle going on which involves Apple. But it’s not about design patents and it has nothing whatsoever to do with Samsung. As Florian Müller put it the other day: “While waiting for a tire change, I get to watch another #Qualcomm v. #Apple #patent infringement hearing at the Munich I Regional Court. Some chipset in some Apple products allegedly infringes on a manufacturing patent. Intel joined Apple in challenging the patent. More to follow [] Breaking News: Qualcomm employee just told the Munich I Regional Court today (at a #patent infringement hearing relating to the A10 chip) that Apple recently canceled a settlement meeting on short notice. Next meeting not scheduled yet.”

Müller then wrote a blog post about it:

While Apple is seeking north of $1 billion in damages from Samsung in the ongoing jury re-retrial in the Northern District of California, its earth-spanning dispute with Qualcomm continued today in the Munich I Regional Court with a first hearing (the primary objective of which is roughly comparable to that of a Markman hearing in a U.S. patent infringement case). Qualcomm alleges that the iPhone 7 and 7 Plus infringe its EP1199750 on a “post[-]passivation interconnection scheme on top of [an] IC chip.”

I’ll start with the most interesting piece of information I gleaned there. A Qualcomm employee–presumably an in-house lawyer, but I don’t know his name and title–responded to Presiding Judge Dr. Zigann’s question about the state of settlement discussions. According to Qualcomm, the parties had scheduled a meeting that would have taken place recently, but Apple canceled on short notice, and no new meeting has been agreed upon yet.

Qualcomm has long exploited SEP to tax pretty much every large company that sells chips (or products with chips inside them) — a subject which does not seem to bother Delrahim, unlike a long list or big bunch of “former government officials and professors” as Müller put it (Dennis Crouch covered this around the same time).

“Patent maximalists typically like any patents, irrespective of how broad they are. That just means more litigation, hence more business for them.”It’s worth noting that Intel sides with Apple here; Intel also lobbies for software patents and days ago Michael Proksch from Intel Standards Group was quoted as saying that they they invest $100 million annually in a 50,000-strong patent portfolio.

Intel has in fact filed/fired another patent missile:

Intel has filed for a declaratory judgment of non-infringement against small semiconductor licensing business Tela Innovations, in another dispute that shows how assertion activity is continuing to pick up in the chip sector. This spat has a particularly interesting edge to it given that Intel was an early investor in Tela and the two companies have a covenant not to sue (CNTS) dating back to May 2007. That covenant is still in effect and according to Intel’s filing “covers Tela patents claiming priority during the term of the CNTS”

A CNTS has all sorts of other names associated with it. Tela is actually new to us. It seems to be rather obscure, more or less like many patent trolls, but its Web site does not come across as that. There’s more to them than their patents.

“Imagine lots of patent lawsuits over shapes of cars or components around/inside the car.”Where does this all end up? Where do such large companies (Intel, Qualcomm, Apple and Samsung) position themselves in the market? Who will pay for the legal battles if not customers that nowadays pay about $1,000 for a phone? The shape of things — pardon the pun — ain’t so great.

According to yesterday’s latest update from Müller, Homer Simpson may sway the big trial, which is a jury trial:

It would have been preferable to give the Apple v. Samsung design patent damages re-retrial jury in San Jose (Northern District of California) a chance to render a verdict before the weekend. In that case, jurors might have put an end to this disruption of their lives. But the way things worked out, they’re now going to think about what position to take on Monday morning when official deliberations begin. In the meantime, they’re not allowed to talk to anyone about the case or to take a look at any media reports (whether some jurors do so anyway is another question, but they’re not supposed to).

As in the previous trials in this case, and as I mentioned a few days ago, Apple’s lawyers portrayed Samsung as an intentional infringer, an unrepentant copyist, with Samsung being barred from presenting some evidence that could have shed a different kind of light on that question.

The holdings that (i) Samsung infringed those three design patents (a long time ago) and (ii) that those patents are valid are “law of the case” and the re-retrial jury must presume both to be the case. It is worth noting, however, that courts in other jurisdictions looked at international equivalents of those intellectual property rights (and at devices from the same generation of Android-based Samsung products) and reached rather different conclusions. But things are the way they are for the purposes of this U.S. case, so the focus is just on damages, and the single most important question in this regard is what “article of manufacture” a disgorgement of Samsung’s profits should be based on: the entire device (which was considered a foregone conclusion in previous trials, but the Supreme Court and, previously, the United States Department of Justice disagreed with Judge Koh, the United States Court of Appeals for the Federal Circuit, and Judge Lucy H. Koh) or one or more components?

[...]

The world outside that San Jose courtroom overwhelmingly prefers a component-based damages determination. This InsideSources article on the problems that an excessive damages amount in the Apple v. Samsung case could cause tech and non-tech companies alike is a good example. But jurors won’t have the benefit of such information on the wider ramifications of what they’re required to decide.

“What has patent maximalism wrought?”We have always argued that jury trials, especially for technical matters, are inadequate. It is rather odd that such trials are even being considered in this domain. If Apple gets its way, a lot of industries will be impacted. Imagine lots of patent lawsuits over shapes of cars or components around/inside the car.

What has patent maximalism wrought?

05.15.18

Xiaomi, Samsung, TCL and Others Demonstrate That in a World With an Abundance of Stupid Patents Like Design Patents Nobody is Safe

Posted in America, Apple, Asia, Samsung at 9:26 am by Dr. Roy Schestowitz

Zach Snyder patent

Summary: The “Cult of Patents” (typically a cabal of law firms looking to have everything on the planet patented) has created a battlefield in the mobile world; every company, once it gets big enough, faces a lot of patent lawsuits and dying companies resort to using whatever is in their “portfolio” to destroy everyone else inside the courtroom (or demand ‘protection’ money to avert lawsuits)

SEVERAL days ago we wrote about failing mobile giants (Coolpad included) resorting to litigation. This is nowadays happening in China as well. As an Asian news site put it yesterday:

Smartphone maker Coolpad has sued Xiaomi for infringement of three patents that are associated with the user interface.

The company Coolpad asked a Shenzhen court to cease selling Xiaomi smartphones five.

Another Asian site (south Asia) mentioned it yesterday, albeit only among many other topics:

“Interesting patents – Voting just got interesting, Wear healthy, stay healthy!, Supreme Court issues notice to Nuziveedu Seeds, Coolpad Sues Xiaomi, Brazil & EU reject Gilead’s patent on hepatitis C & HIV drugs, Peripheral claiming versus Central claiming, Patent Tip of the week and other Weekly Patent News,” presented by the Patent attorneys and experts of BananaIP Counsels, India’s leading Patent Firm.

This isn’t the only legal battle Xiaomi is facing. On the patent front, as mentioned yesterday, there’s also the Shenzhen-based Yulong:

A lawsuit filed in China last week accused Beijing-based Xiaomi of developing mobile devices which contain patent infringing technology.

The complaint was filed at Jiangsu Province Nanjing Intermediate People’s Court on Thursday, May 10.

Yulong Computer Telecommunication Scientific (Shenzhen) Company, a provider of telecommunications equipment and a subsidiary of Coolpad Group, initiated the suit.

The complaint accused Xiaomi, a developer of consumer electronics and software, of infringing one of Yulong’s invention patents (Chinese patent number ZL200610034036.7). The patent covers a “multi-mode mobile communication terminal interface system and method for call recording”.

Further east in Japan Kyocera is becoming litigious — a rather rare thing for Japanese firms. It’s actually suing German companies in Germany using ‘haptic’ patents. Here are some details:

Japanese conglomerate Kyocera has very rarely asserted its patent rights in recent years; but a recent deal with Bosch and an assertion against another German supplier show that even in traditionally conservative Japan, the potential prize represented by the auto sector is too big to ignore. Last Tuesday, the company announced a licence agreement with Robert Bosch Car Multimedia, a subsidiary of industrial conglomerate Bosch. The noticed disclosed only that the German firm would gain access to haptic feedback technology for use in automotive solutions. This deal came just one month after Kyocera launched a German patent litigation suit against another auto parts supplier – Preh GmbH…

Right next to them in Korea there’s a battle Samsung faces half a world away — in the United States. Apple is dragging Samsung back to court — a patent battle that receives a lot of media attention (e.g. [1, 2]) mainly because Apple is involved. Corporate/mainstream media has a rather poor grasp/understanding of the case, so it’s mostly repeating superficial claims (without proper assessment/fact-checking/healthy level of scepticism). To quote Tech Spot‘s background to this (objective chronology of events):

Apple and Samsung are back in court over a patent dispute that started back in 2011. This will be the third court appearance over the same five design infringements. Two of the patents involve the front and back look of the original iPhone. A third violation is over the GUI (graphical user interface), and two others concern software functionalities such scrolling and pinch to zoom gestures.

In 2011, Apple sued Samsung claiming the South Korean company’s phones, including the Galaxy S2, copied the iPhone in both physical and software design. The Cupertino-based firm was awarded over one billion dollars in 2012. The judge in the case reduced the award to around $940 million citing that the jury had made an error in its calculations. A second trial resulted in the award amount being further reduced to about $400 million.

For a better, in-depth analysis of this we suggest reading informed blogs. We previously wrote about the design patents at hand [1, 2] and so did Josh Landau (CCIA), who last night noted that “[i]f design patents on a small piece of a product can regularly be applied to the profits on the entire product, it will have a huge impact on whole swaths of industry—many of them far from the high-tech sector.”

Indeed. Apple’s designs aren’t even particularly clever; some are downright laughable!

As Landau put it:

A district court trial. A retrial, after part of the verdict was vacated. An appeal to the Federal Circuit. A Supreme Court opinion with a remand to the Federal Circuit. A remand from the Federal Circuit back to the district court. Seven years after Apple originally filed suit against Samsung, we’re right back in Judge Koh’s courtroom for the sixth part of this dispute, a third jury trial on damages.

[...]

If design patents on a small piece of a product can regularly be applied to the profits on the entire product, it will have a huge impact on whole swaths of industry—many of them far from the high-tech sector. Those industries will be placed at risk of in terrorem threats of litigation and chilling effects on product design and development. Disgorgement of total profits on the whole product for a design patent covering only a small component will reduce willingness to work with smaller suppliers who can’t indemnify the manufacturer. It will make manufacturers seriously reconsider providing open access to their systems. It might even drive a wave of design patent troll lawsuits.

Another decent analysis came from Florian Müller, who has been following these trials for 8 years. Here’s his latest:

There we go again. For the fourth time in six years (minus a few months), Apple and Samsung will square off again, starting today, in the San Jose building of the United States District Court for the Northern District of California. It’s the third trial in the first Apple v. Samsung case (the related complaint was filed in April 2011) and the fourth in total (if we add the 2014 trial in the second case, filed in 2012).

Via Twitter I provided the parties with a link to the Guinness Book of Records website. This might be a new record: four trials between the same two parties in one federal district court within less than six years.

In some ways, it’s déjà vu all over again, or Groundhog Day, as Korean-American Judge Lucy H. Koh calls it. But not in all ways. Samsung scored a major victory in the Supreme Court in 2016 on what should be considered the appropriate article of manufacture for determining design patent damages in the form of a disgorgement of unapportioned infringer’s profits under 35 U.S.C. § 289. Apple had been awarded huge amounts at two previous trials, based on a standard overthrown by the highest court in the land. Now it will be up to a jury whether the ultimate outcome will, or will not, be reflective of Samsung’s SCOTUS victory.

There’s the legal part, which is a test that the U.S. government laid out in an amicus curiae brief filed with the Supreme Court. That one is suboptimal, and people far more qualified than me to discuss design patent law find it wanting. There are various restrictions on the parties, especially on Samsung, as to what kind of evidence and testimony they’re allowed to present and what kinds of argument they’re allowed to raise. And what may ultimately decide is psychology: whether the jury will, or will not, buy Apple’s portrayal of Samsung as a copyist.

What will happen at the end? Well, we hope that not only will Apple’s case collapse but design patents as a whole will collapse as well, in due course. Nobody benefits from these except patent lawyers, who already made a fortune from these pointless patent disputes between Apple and Samsung.

We suppose that one day in the not-so-distant future Apple will become another BlackBerry. Apple may become just a pile of patents and a long list of lawsuits. This certainly is what happened to Ericsson, whose latest news isn’t about a product but about a lawsuit (Ericsson Inc. et al v TCL Communication Technology Holdings Limited et al). Ericsson no longer does much except feeding patent trolls and suing lots of companies using patents. Now it wants millions for doing nothing at all, just sitting on a bag/bundle of very old patents:

The court granted plaintiff’s motion to reconsider an earlier order granting defendant a new damages trial and upon reconsideration reinstated the jury’s $75 million verdict because the extensive evidence of unaccused products was not reflected in the verdict.

Notice the trend in all the above cases; companies love to brag about patents being “defensive” and all, but once their real business grinds to a halt all they have to show for it is a list of lawsuits. This means that the underlying problem is the patents themselves, not only who uses them and when.

05.12.18

Companies in the Red Resort to Patent Litigation Rather Than Creation

Posted in America, Apple, Asia, Patents, Samsung at 10:23 am by Dr. Roy Schestowitz

Coolpad
Reference: Coolpad

Summary: A little update about patent litigation involving Apple, Samsung, Huawei, Xiaomi and even the dying Coolpad

THE DEMISE of BlackBerry (like a hundred-fold decline in terms of revenue) has meant that it is being reduced — however gradually — into a patent troll. The company’s patent activities are being noted in this new article, “What’s Driving Our $11 Price Estimate For BlackBerry?”

But BlackBerry isn’t alone because Apple follows its footsteps and so did Nokia. Florian Müller spent years keeping abreast of Apple and Samsung patent disputes and just before the weekend he covered the latest twist, citing that old judgment from the courts of the Northern District of California (in anticipation of another):

We’re just days away from yet another Apple v. Samsung trial in the Northern District of California. IT’s a re-retrial over damages, following a trial, a retrial, Samsung’s successful appeal to the Supreme Court and various other procedural steps on the way back to where we are. By the way, the dispute started more than seven years ago (mid-April 2011).

Judge Koh’s final jury instructions will inform the jury of the relevant factors for the article-of-manufacture determination. If the jury determines the relevant AoM is an entire smartphone, Apple gets a huge damages award. If the jury concludes the casing/screen is more reasonable, then the amount will be less extreme amount, but still a chunk of money.

[...]

“Determinative” is not part of everyday language, but it isn’t too uncommon either. Reasonably educated people should figure out what it does mean and what it doesn’t. Numerous other passages of the preliminary and final jury instructions contain words that jurors may misunderstand in similar ways as Apple fears.

The parties couldn’t agree, so Judge Koh will have to decide. Technically, “not determinative” is simply accurate. In colloquial language, one could add a few words like “in their own right,” though one could also argue that any additional words could create confusion, too.

Generally speaking, Judge Koh’s proposed preliminary and final jury instructions combined don’t really tell the jury much about how to make the article-of-manufacture determination. For an example, the amicus curiae brief filed by the Obama Administration with the Supreme Court contains additional helpful guidance that Judge Koh could, but apparently won’t, provide to the jury.

There’s an additional article about it: [via Müller]

The U.S. District Court for Northern California will be rehearing arguments next week in a major design patent case between the two tech giants Apple and Samsung. The case could very well be a turning point for the future of the tech industry. Major technology companies have largely weighed in on the side of Samsung as the industry worries about the long term impact of the case and its potential to empower a new breed of design patent trolls and encourage more litigation.

Apple Inc. launched a tense legal fight over whether some design features of its iPhone were infringed upon by Samsung devices. The dispute resulted in a longstanding legal dispute which eventually made its way to the U.S. Supreme Court. Apple argued that it could claim remedies equivalent to the total profits of an entire smartphone if even one design patent was found to infringe. This awarding of total profits came from a 19th century law written long before a multifunctional device as complex as a smartphone could be imagined.

Watchtroll, a site friendly to the litigation ‘industry’, has publishedApple v. Samsung Retrial: An Opportunity to Finally Clarify Design Patent Law” (there’s no lack of clarify, they’re just protesting the status quo, as usual).

Another site of patent maximalists took note of this lawsuit against Apple — one that we covered last weekend and the week before that. “Apple has built its success on innovative products,” it said. “It has sought to protect this innovation through patents and registered designs. Apple is no stranger to asserting its patents and designs against its competitors but it is also regularly on the receiving end of third parties asserting their patents.”

Well, Apple isn’t particularly innovative; it just tells this lie to itself and to its hardcore ‘followers’ (loyal clients), who perpetuate such myths. It’s true that Apple uses patents on designs — not mere trademarks — to go after rivals, including Samsung. We spent years ranting about several such examples. There was nothing innovative about these designs; some were downright laughable — something that a young child could easily some up with in a matter of minutes.

Earlier today Müller looked eastwards again and took note of patent lawsuits by China’s government-connected giant (Huawei) versus Korea’s giant, which isn’t so government-connected because South Korea is capitalist, not Communist. He spoke of what Huawei had done in the US using patents:

Procedurally, this is an appeal to the Federal Circuit, based on the rule that any case involving at least one patent infringement claim must be appealed to the Federal Circuit, which, however, applies the law of the regional circuit in question if an issue is not about patent law in a strict sense (infringement, validity etc.). So in this case, the Federal Circuit will act as if it were the Ninth Circuit–or at least it will try to.

[...]

As for political/diplomatic implications (also called “international comity”), it’s actually a positive thing for Samsung in this case that it’s not a U.S. company. In some other cases, such as Apple v. Samsung, it would benefit from it, but in this dispute with Huawei and in times of “trade war,” it’s a good thing that this is a dispute between foreign companies–and let’s not forget that the Northern District of California was Huawei’s venue choice when it brought its cross-jurisdictional complaints.

Earlier this year we said that China's patent policy would drive out companies not only from the US but also from Korea (LG for instance). There’a also a number of disputes among Chinese firms, so it causes domestic feuds (waste of commercial resources). The following is not the start of it, but it is the latest example where a company is trying to ban actual products of another company (Coolpad v Xiaomi):

After noticing intellectual property right violations three months ago, Coolpad notified Xiaomi and since the latter hasn’t yet taken any action, Coolpad has requested that eight Xiaomi devices be recalled from the market. In addition to that, the company also wants compensation for economic losses resulting from patent infringement.

Coolpad filed the lawsuit through Yulong Computer Technology, their subsidiary company, at the Shenzhen Intermediate People’s Court. One of the patents behind this controversy is related to software, being termed as ‘method for implementing call record interface system of multi-mode mobile communication terminal,’ as per MyDrivers. Other infringements relate to app icon management, notifications and the system’s user interface (UI).

Here is another report about that:

Coolpad has filed a lawsuit against Xiaomi regarding patent infringement. From a hint revealed by the company’s CEO, it was thought that the lawsuit has been settled outside the court. But that’s not the case. Coolpad has come up with an announcement that the lawsuit it filed against Xiaomi is before the Shenzhen Intermediate People’s Court. Notably, the lawsuit has been filed by Yulong Computer Technology, its subsidiary.

At the top of this post we included a summary sheet of Coolpad because we are hoping to show the reason for such a dead-end strategy. If Coolpad cannot sell much anymore, then perhaps it’s thinking of just taxing other company’s products.

04.19.18

Microsoft’s Lobbying for FRAND Pays Off as Microsoft-Connected Patent Troll Conversant (Formerly MOSAID) Goes After Android OEMs in Europe

Posted in Europe, GNU/Linux, Google, Microsoft, Patents, RAND, Samsung at 4:38 am by Dr. Roy Schestowitz

Royalty stacking until free/libre platforms become very expensive

Coin stacking

Summary: The FRAND (or SEP) lobby seems to have caused a lot of monopolistic patent lawsuits; this mostly affects Linux-powered platforms such as Android, Tizen and webOS and there are new legal actions from Microsoft-connected patent trolls

EARLIER THIS week we wrote a couple of short articles that alluded to Samsung’s small victory over Huawei. For those who don’t know, Huawei is a highly government (or regime) connected entity, more so than a corporation as is known in Western democracies. Huawei nowadays uses patents in an effort to embargo the competition, but that hasn’t been particularly successful outside China (where government connections help). The Asian giants almost always use Android; this includes Huawei and Samsung, which also has the Linux-based Tizen (LG has the Linux-based webOS). As one site put it yesterday:

Back in January, we updated you on the Huawei vs. Samsung patent infringement lawsuit. The big news was that a Chinese court found in favor of Huawei in that dispute.

The patent infringement had to do with Samsung using Huawei’s cellular technology and software patents in various Samsung devices, without paying Huawei the necessary licensing fees. Samsung denied any wrongdoing (as usual), but the court said that Huawei’s patents were indeed infringed upon, and Samsung would have to pay a fine and halt Chinese production and sales of the infringing devices.

Docket Navigator also wrote about Huawei Technologies Co., Ltd. et al v Samsung Electronics Co., Ltd. et al, showing that the US patent system/law suddenly becomes friendlier (to engineers, not lawyers) than China’s. To quote:

The court granted defendant Samsung’s motion for an antisuit injunction prohibiting plaintiff Huawei from enforcing injunction orders issued by a Chinese court and found that the Chinese injunction orders would frustrate domestic policies.

Boasting a new Samsung patent that we criticised the other day, this one new article says, “Samsung May Use Top Notch in Their Future Phones, New Patent Spotted in China” (so Samsung remains in China in the long run).

LG has already been driven out of China, or least partially. Patent lawsuits accomplished that.

As for Samsung, as we said and showed some days ago, it’s a top target for patent trolls. PACid, for example, is a patent troll whose latest action (against Samsung) belatedly got the attention of Watchtroll.

What we’ve only just noticed (this morning) is this update about MOSAID (now known as “Conversant”) with its litigation campaign in Europe. This Microsoft-connected (and Microsoft-armed) patent troll is still actively harassing companies with litigation in London. It’s nowadays going after Huawei and ZTE. To quote:

Does the English Court have jurisdiction to grant relief in the form of a global FRAND licence in relation to a claim for infringement of UK patents, where UK sales account for only 1% or less of worldwide sales on which royalties are claimed? This was the subject of the decision of Carr J. in the Patents Court on Monday in Conversant Wireless Licensing S.A.R.L v Huawei Technologies Co. Ltd, ZTE Corporation and Ors [2018] EWHC 808 (Pat). The answer – on the facts of this case as explained below – was “yes”.

[...]

Conversant commenced proceedings in July 2017, claiming that the Defendants were infringing 4 EP(UK) patents, and sought a determination of FRAND terms for its global SEP portfolio. Conversant’s global portfolio of patents includes SEPS in over 40 countries.

[...]

It was common ground that Art 24(4) (validity of IP rights) and 27 (court first seised) of the Recast Brussels Regulation would require the English Court to declare of its own motion that it had no jurisdiction to adjudicate upon cases concerning the validity of (non-UK) European patents. The Court also assumed that the English Court had no jurisdiction to adjudicate upon cases in which the dispute concerned validity of non-European patents. The Defendants however maintained that Conversant’s claims are in substance claims for infringement of foreign patents – which therefore depend on the validity of foreign patents, which the English Court has no jurisdiction over.

Although Huawei did not formally challenge jurisdiction in Unwired Planet [2017] EWHC 711 (Pat), it did rely upon some jurisdictional arguments to support its argument that a global licence was not FRAND, including that a worldwide FRAND determination in the English Court would undermine existing infringement and validity proceedings in Germany. Carr J. referred to the “simple” and “compelling” analysis of the judge in that case, where it was held that the Brussels Regulation and CJEU case law has nothing to do with what the terms of a FRAND licence should be.

What’s noteworthy about the case is: 1) it’s happening in Europe and 2) there’s a Microsoft connection. Microsoft was never able to blackmail Huawei over its Linux use, but later it managed to do this through Nokia, which also passed (at Microsoft’s instructions) patents to MOSAID (the same troll as above, owing to a rename/rebrand).

Microsoft might think it’s pretty clever by telling us that it “loves Linux” or “uses Linux”. But we’re not stupid enough to not see where patents come from.

04.17.18

For Samsung and Apple the Biggest Threat Has Become Patent Trolls and Aggressors in China and the Eastern District of Texas, Not Each Other

Posted in Apple, Asia, Patents, Samsung at 2:00 pm by Dr. Roy Schestowitz

Samsung and Apple ought to unite against software patents rather than waste money (legal fees) fighting one another in court

Korean dancers

Summary: The latest stories about two of the world’s largest phone OEMs, both of which find themselves subjected to a heavy barrage of patent lawsuits and even embargoes; Samsung has meanwhile obtained an antisuit injunction against Huawei

LAST year we explained why Apple should care about software patents and work against them rather than leverage them against rivals. VirnetX has once again won a legal case against Apple, relying on questionable USPTO patents. The lawyers have just issued a press release about the ruling, which was covered in many hundreds of sites last week. We mentioned the latest ruling as well.

A week later IAM wrote about the Pantech story, which basically involved passage of many more patents to Apple. Those are USPTO patents:

Apple has acquired a portfolio of 27 US patents from Korean smartphone maker Pantech, according to assignment records filed with the USPTO. The transfer follows the iPhone manufacturer’s purchase last summer of a package of 11 patents from Korean NPE Goldpeak — assets which were originally owned by Pantech. The latest portfolio appears to be largely focused on wireless technology and all of the grants have been made since 2012. Pantech is a Korean smartphone maker which has struggled in recent years as its local rivals LG and Samsung have thrived in the handset sector.

This isn’t really a solution to Apple’s problems because when patent trolls like VirnetX come knocking they just don’t care what patents you have (or haven’t). It doesn’t matter to them. These cannot impact trolls. What about Apple’s archrival (in phones) Samsung? Watch this latest news from Asia [1, 2]. This is not innovation (prior art, abstract etc.), so why patent that? As one article puts it, “[s]everal Chinese OEMs have done it. OnePlus is set to adopt it as well for their next smartphone. And now, it seems that Samsung is also willing to use the notch for one of their upcoming smartphones if the leaks are to be believed.” Maybe they hope that by patenting every little ‘brainfart’ (thought) they’ll better cover prior art in patent form. Maybe. Perhaps this is why Apple still stockpiles patents and Samsung rose to the top position of US patenters (even though it’s not an American company). We wrote about that last week in relation to some trolling Samsung had experienced. More (belated) coverage about last week’s patent lawsuit against Samsung is surfacing this week. WIPR wrote:

The fingerprint authentication methods featured in some of Samsung’s phones contain software that infringes patents owned by a data encryption firm, according to a claim filed earlier this month.

PACid Technologies filed the infringement complaint at the US District Court for the Eastern District of Texas, Marshall Division, on April 6.

Data encryption research firm PACid owns patents which form a crucial part of the encryption specification necessary to secure a wireless local area network which provides the basis for Wi-Fi, according to the company.

PACid is a patent troll. IAM called it “NPE” (as usual) because IAM is a patent trolls’ lobby. As it turns out, Apple too is/was being targeted:

There is a story going around in the Korean, Chinese and English-speaking media suggesting that Samsung Electronics faces a $2.8 billion patent infringement claim related to biometric technologies from US company PACid. This looks like a possible case of media mis-reporting. More interestingly, Samsung is facing down another challenge also based on its touch-to-unlock feature, this one from what looks like a new Korean NPE. First, in a case that has generated headlines for what is allegedly an eye-watering damages claim, Samsung Electronics is facing a lawsuit from PACid alleging infringement of two US patents related to user authentication.

Speaking of Samsung, IAM’s Adam Houldsworth mentioned it yesterday in relation to the Humira biosimilar settlement. “With the recent announcement that it had reached a settlement in its patent dispute with Samsung Bioepis,” he wrote, “AbbVie has scored another significant victory in efforts to delay market entry to biosimilar versions of its drug, Humira. While allowing Samsung to launch its product in European jurisdictions later this year, the deal keeps the copycat arthritis treatment out of the lucrative US market until 2023.”

IAM also reminded us that China is a lot more extreme than the US when it comes to patents, especially on standards (SEP). To quote the outline:

On Friday, United States District Judge William Orrick ordered Huawei not to enforce the two SEP injunctions it was granted against Samsung in the Chinese city of Shenzhen until his court has had its say on the same issues. The decision has dealt a major blow to Huawei’s efforts to bring Samsung to the negotiating table through quick wins in Chinese courts. The two parties have reportedly been negotiating a cross-licence since 2011, but it was Huawei that struck the first blow in court, filing infringement and FRAND actions in both Chinese and US venues in May 2016.

This was also covered by a longtime watcher of Samsung/Apple on the same day. He said:

Friday the 13th wasn’t Huawei’s lucky day, but it went well for Samsung: in accordance with an inclination he expressed at a recent motion hearing, Judge William H. Orrick of the United States District Court for the Northern District of California decided to enjoin Huawei from enforcing two Chinese standard-essential patent (SEP) injunctions against Samsung until a breach-of-contract question has been adjudicated in the U.S., where a trial is scheduled for December…

[...]

As you might imagine, I’m proud of having accurately predicted the decision (based on the motion and Ninth Circuit precedent). I’m now predicting affirmance by the Ninth Circuit. For a final “See I Told You So,” I’d like to note that last month the Federal Circuit completely vindicated my longstanding “fair use is a fairy tale” position on Oracle v. Google. I’m not going to talk about the merits here anymore. I wrote so much about it from 2010 to 2016 that there’s no point in reiterating and rehashing all of that old stuff. All sorts of people who bashed me in earlier years were simply wrong: I didn’t take those positions for any other reasons than wholeheartedly believing in them, and those positions can’t have been as unreasonable as my detractors alleged. Otherwise, a Federal Circuit panel wouldn’t have supported my positions unanimously in two separate decisions. That said, should Google file a petition for writ of certiorari (request for Supreme Court review), which is a given absent a settlement, I’d really like the top U.S. court to provide definitive clarity on some key software copyright issues. I’d hope for affirmance there as well, but I really believe the issues are important enough for the software industry at large that cert would be warranted.

What we’re finding more curious about this is the changing approach of China, which now seems to 'out-Texas' Texas. Korean companies are impacted while some of them let go/relieve their patents for cash (e.g. Pantech’s sales to Apple).

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