06.06.16
Samsung’s Case at the Supreme Court Will Have Ramifications for Free Software, Amici Curiae Submitted
Summary: A look at some of Samsung’s ongoing high-profile patent cases which involve Apple
“The Samsung case [one of several ongoing cases] is particularly interesting,” said Standard Law the other day, “because it turns on the “non-discrimination” prong of RAND. Little case law on what ND means.”
RAND (or FRAND) is an anti-Free software (FOSS) loophole. It’s how proprietary software giants like Apple and Microsoft every so often try to exclude FOSS while calling this reasonable, non-discriminatory and fair (i.e. a series of euphemisms, one longer than the other). In practice, RAND is means UnReasonable and Discriminatory, sometimes UnFair too (FRAND). It’s typically about software patents.
“RAND (or FRAND) is an anti-Free software (FOSS) loophole.”“In a statement to Patently-O,” it has just been said, “Samsung argued that “If the current ruling is left to stand, it would value a single design patent over the hundreds of thousands of groundbreaking technology patents, leading to vastly overvalued design patents.” The itself brief cites Professor Rantanen’s 2015 essay for the proposition that the high damage is likely result in an “explosion of design patent assertions and lawsuits.””
In the mean time, another (new) article by Jason Rantanen explores CAFC appeals — a stage that Samsung has already been through. It will soon reach the Supreme Court (the design patent case at least).
Sharing Samsung’s Supreme Court brief, one said a few days ago that we now have access to “Samsung’s Supreme Court brief addressing the question of whether section 289 of the Patent Act requires the disgorgement of the defendant’s total profit from sales of design patent infringing products, or only the profit attributable to the infringing component.”
“For all we know, not a single case at SCOTUS will present the chance/opportunity to challenge software patents, or override Alice as a precedent.”Patently-O still keeps track of new Supreme Court patent cases and there is a new short article by Dennis Crouch which zooms in on one particular case. He wrote: “On remand from the Supreme Court vacatur, the Federal Circuit has reaffirmed its prior NuVasive decision and – in the process limited the reach of the Supreme Court’s 2015 decision of Commil USA, LLC v. Cisco Systems, Inc., 135 S. Ct. 1920 (2015).”
For all we know, not a single case at SCOTUS will present the chance/opportunity to challenge software patents, or override Alice as a precedent. The case of Samsung is about design patents and one new article says that “in the next five years the chances are this isn’t going to go away anytime soon. So what has this continuing battle demonstrated about patent law?”
“It’s going to be interesting to see which companies will oppose Apple’s ludicrous design patents (probably Google and Facebook, judging by what happened before).”The deadline for amici curiae has passed and Samsung can now wait and prepare for this important case that will hopefully determine design patents are out of line. As a bit of background on this: “More than two months ago, the Supreme Court of the United States granted Samsung’s petition for writ of certiorari (request for top-court review) regarding design patent damages, which was supported by Google, Facebook and other tech giants. Tomorrow [last week actually], Samsung has to file its opening brief. At this level of proceeding the parties’ positions, theories and arguments are largely known, but it will be very interesting to see what priorities they set, what case law they can find in support of their positions, and which amici curiae (“friends of the court”) will support them.”
We are still not aware of any information related to this, maybe because the amicis have not yet been published. It’s going to be interesting to see which companies will oppose Apple’s ludicrous design patents (probably Google and Facebook, judging by what happened before).
Speaking of certiorari, Patently-O reports that “Hospira explained that both the district court weighed the secondary indicia of non-obviousness and found them “not sufficiently strong to overcome the showing of obviousness arising from an analysis of the prior art.” To Hospira, the petition was basically a request that the Supreme Court conduct its own factual analysis.”
The very fact that the Supreme Court is not revisiting any software patents cases (so far) may serve to suggest confidence in the Alice case, much to the chagrin of Big Business lobbyists. █
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