FOSS Patents

Recently the Federal Circuit scheduled the hearing on Apple's appeal of the denial of a permanent injunction against Samsung after last year's trial. The hearing will be held on March 4. From the outside it looks like one of the last steps before this dispute will be history.

Three weeks ago I wrote about Apple's opposition to an amicus curiae brief submitted by Google, SAP, Red Hat, Rackspace, and -- notably -- Samsung competitors LG and HTC. The brief was accepted by the Federal Circuit over Apple's objections. Apple may have opposed the filing just because this was an opportunity to highlight Google's special involvement with the case in an effort to diminish the brief's credibility, but even if one viewed Google (like Apple suggested) as a de facto party to the case, the other filers have quite some credibility.

Cases should be decided on the merits, not on amicus brief campaigns. That said, it says something that Apple has support only from Nokia and Ericsson -- the company with which Apple now has a dispute over potentially much more money than what the remaining parts of the Samsung case are about, especially since the Apple-Ericsson situation is very unbalanced (Apple has much less offer to Ericsson in terms of a patent license, so it won't be able to offset the inbound licensing cost with much of an outbound licensing revenue stream).

Besides the aforementioned group of companies, the Computer & Communications Industry Association (CCIA), whose members are listed here, also submitted a brief. It already did so back in mid-December, but it appeared on the Federal Circuit docket only yesterday. I've also found it (PDF document) in the Briefings & Filings section of CCIA's website.

It focuses on two issues. The first one is about whether a feature-specific injunction should be easier for Apple to obtain. CCIA argues that the scope of the injunction was already considered.

There's a second, shorter part that raises an issue I wish to highlight. CCIA says "the special treatment Apple requests would open the door to patent assertion entities [i.e., patent trolls] to demand injunctions."

CCIA takes issue with the notion that a patent holder shouldn't have to prove a causal nexus between the infringement of a small feature of a multifunctional device and the alleged irreparable harm because it's so easy to work around.

In light of strict page limits, it would be unfair to both Apple and CCIA not to consider an important nuance: while this particular part of Apple's pro-injunction argument could indeed open the floodgates to injunctions obtained by patent trolls (which could also hurt Apple in the future), I understand Apple's position as being about the combination of the availability of workarounds and the patent holder having a "reputation for innovation." The second part would be much harder (though not impossible) for a patent troll to satisfy.

CCIA nevertheless has a point. In order to obtain an injunction against Samsung (over patent claims that are too narrow to give Apple strategic leverage), Apple must try different things to lower the hurdle. Apple wants to have its cake and eat it (get an injunction against Samsung but preserve much of its ability to fend off injunction demands by trolls), and that's always risky. Presumably the perfect outcome from Apple's point of view wouldn't be that the court reverses Judge Koh's injunction denial just based on the availability-of-workarounds basis. Apple almost certainly hopes for the aforementioned combination of that one with the "reputation for innovation" criterion. However, this here could go wrong in two ways:

1. An appellate decision that emphasizes the "small feature" part (or is based entirely on it) would have exactly the effect CCIA warns against, whether or not this would have been Apple's intention. Apple can make its case but it can't write the decision even if it prevails.

2. I've previously criticized the "reputation for innovation" criterion as a very vague and soft one, and I think it runs counter to the traditional logic of the patent system, which is all about technological merits (what contribution was made to the state of the art relative to the prior art?). If this approach was adopted by the court, patent law would depart from its focus on rewarding inventiveness and start to reward PR and marketing. A patent troll (not a small one, obviously) could spend a lot of money promoting its inventions and its research and development efforts to maximize the leverage it gets from its patents. And if it has other licensees, those are arguably harmed by infringement, and by extension, the patent holder is then harmed as well.

Apple is doing so well. It doesn't really need an injunction (over patent claims of limited scope) other than for publicity and pride. In terms of natural allies for Apple when it comes to balanced patent policy, the likes of Google, Samsung and SAP -- companies that also have a strong reputation for innovation -- would clearly be a better fit (because their uncompromised priority is on making real products) than Nokia and Ericsson. It's possible that just the increased cost of licensing patents from Nokia and Ericsson in the future (those also have non-standard-essential patents, so FRAND alone can't solve the entire problem for Apple) will outweigh any positive effects that Apple could get, in the most optimistic scenario, from a successful appeal.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

Apple, Samsung and Google are three of the most significant members of an industry coalition that is fighting the good fight for balanced rules of procedure for Europe's future Unified Patent Court, particularly with respect to access to injunctive relief. But as the industry coalition stated repeatedly, including at the November 2014 hearing, some of its members are actually embroiled in patent litigation--in which they have sought or are seeking injunctions--with each other. That fact only adds to the credibility of that industry group because it shows that some of its members, such as Apple, are more interested in obtaining sales bans over patents than others, such as Google and Samsung, yet they all agree that the current proposal would make Europe a patent trolls' paradise and hurt all innovative operating companies. Nothing could better demonstrate just how bad those proposed rules are.

The most notable case in which members of the UPC industry coalition stand on opposing sides is Apple's appeal of Judge Lucy Koh's August 2014 denial of a permanent injunction against Samsung over the patents on which Apple had prevailed at the spring 2014 trial. Apple says that a feature-specific injunction should be granted here and claims to have better evidence in place this time around (Apple filed a reply brief this week that reinforces the points made in its opening brief) but Samsung argues that Apple still can't tie patented features to lost sales. Google sides with Samsung on this and has, together with other significant companies (LG, HTC, SAP, Red Hat, Rackspace), asked the Federal Circuit for permission to file an amicus curiae brief.

Apple formally opposes the proposed filing, noting that Google accepted to indemnify Samsung with respect to certain patents. However, no liability was established with respect to those patents, and as a result, they are not at issue in this injunction appeal. Apple also points to various business relationships between Google and some of the other amici curiae, even including some small-scale business partnerships compared to which there's actually a much closer cooperation between Apple and Samsung in certain (component-related) areas. Notably, HTC and LG compete with Samsung, and since HTC has a ten-year license agreement in place with Apple, it has no reason to be concerned about the particular patents at issue here.

I've seen LG enforce some of its patents (such as patents on the Blu-ray standard) rather aggressively.

There have also been some other filings. Industry group CCIA and the National Black Chamber of Commerce filed other briefs in support of Samsung, while Apple's pursuit of an injunction is backed by Ericsson and Nokia, two companies that used to build smartphones but exited that business and increasingly focus on patent licensing (and that are obviously not members of the aforementioned UPC industry coalition). While it's certainly good for Apple to have at least some support from third parties, the fact that no current smartphone maker was prepared to back Apple here shows that Cupertino is somewhat isolated in its industry when it comes to this issue. They all face too many patent assertions all the time and have to think about their interests as a defendant, even if they engage in some enforcement (Microsoft, for example). And there could be a future situation in which Apple itself will fight an injunction bid against its products and someone else will use Apple's own pro-injunction arguments against it.

I'm not an expert in the admissibility of amicus curiae briefs, so I can't predict whether Google itself will be formally allowed to appear as a "friend of the court" here, but there cannot be the slightest doubt about the other filers.

It's an interesting brief that this blog is first to make available to the general public (access is still restricted on the Federal Circuit docket; this post continues below the document):

14-12-24 Google HTC LG Rackspace RedHat SAP Amicus Brief by Florian Mueller

The amicus brief focuses on the bearing of a certain Federal Circuit decision from 2013, Douglas Dynamics, on the present case. In that case, which involved two snowplow manufacturers, then-Chief Judge Randall Rader stressed that if a workaround is available, an infringer should choose the path of legality. At the time I thought this was going to be very helpful to Apple (at that time, in connection with its first California case against Samsung, while the current appeal relates to the second case). But it turned out that it didn't help Apple too much. Smartphones and snowplows are different markets with different characteristics, and there's obviously a much smaller number of features in a snowplow than in a smartphone. While Apple won a remand of the denial of a permanent injunction in that first Samsung case, Judge Koh again (while taking into account the additional guidance from the Federal Circuit) denied an injunction. Last summer Apple dropped its related cross-appeal and, thereby, forever accepted that denial.

The above amicus brief has two parts. Section A explains that Apple still has to establish a causal nexus between the infringements identified (Samsung is appealing those findings, by the way) and the alleged irreparable harm, regardless of the scope of the injunction it is seeking. In other words, the standard isn't lowered just because a proposed injunction wording is very specific to particular features. That makes sense and may be part of the reason why Apple tries to reduce the credibility of that amicus brief, but I'm now going to focus on Section B, which addresses Apple's argument that Douglas Dynamics supports its injunction push now (though it didn't help in the previous case).

The "causal nexus" question never came up in Douglas Dynamics. That's the primary reason for which it didn't help Apple before and may not help now. According to the amicus brief (and I'm obviously not able to verify this), "Douglas's patents were directed to an entire snowplow blade assembly, not a specific feature of that assembly." The brief goes on to discuss another key difference from the Apple-Samsung dispute:

"Second, the core innovation of Douglas's patented snowplow design allows a user to easily remove the assembly, reducing stress on the vehicle's suspension. [...] Douglas promoted this 'easy on, easy off' feature in advertising for its own snowplow assemblies by incorporating the concept into its trademark – Minute Mount – to ensure that snowplow customers associate the patented feature with Douglas. [...] Here, there is no evidence that the patented features are core innovations of Apple’s products or that Apple has advertised them as such. Apple certainly has not incorporated those features into its product brand names."

As for the last part, the iPhone is certainly not sold or advertised as the "slide-to-unlock phone" or the "quick-links phone."

The brief also says that "Douglas never licensed the patents-in-suit and intentionally chose not to, thus insuring that the innovative design would (absent infringement) be exclusively associated with Douglas in the minds of its customers," and contrasts this no-outbound-licensing-ever approach with the fact that "Apple has licensed the patents-in-suit to several competitors, including IBM, Nokia, HTC and Microsoft." I would agree with the amici that "there is simply no evidence that anyone exclusively associates the patented features with Apple," with the exception that Apple's particular implementation of slide-to-unlock, with the slider bar, is certainly a signature feature, but Apple didn't even accuse the more recent products at issue in this case (and those are already a couple years old) of infringement of its slide-to-unlock patent. In the prior art context it has been stated over and over that the iPhone was not the first phone to come with a slide-to-unlock mechanism, which is why the related patent family is so weak. With respect to "quick links," that's a feature that consumers typically can't distinguish from other links, such as the ones found on a webpage like this. And autocomplete is also something that you find in all products from all sorts of vendors.

A key concern of the amici is that the way Apple would like Douglas Dynamics to be applied to cases like this one "would unfairly create a lower standard for proving causal nexus for companies with a reputation for innovation." Apple argues that Douglas Dynamics made the patent holder's reputation as an innovator a key factor. The amici concede that there is direct competition between Apple and Samsung, and that Apple has a reputation as an innovator, but say that evidence is "scant, at best," with respect to claims that Samsung has a less prestigious reputation, that Apple makes efforts to maintain exclusive control over its patented features, and that an injunction was necessary to demonstrate to consumers that Apple does protect its intellectual property rights.

Against this background, the amicus brief says:

"So the proposed 'Douglas Dynamics test,' as Apple has framed it, is this: if a patentee has a reputation for innovation and its patent is infringed by a competitor, then the patentee's reputation will necessarily be harmed by that infringement – no matter how trivial the patented feature – because consumers might believe the patentee did not enforce its intellectual property rights. No further proof of causal nexus is needed. The logical leap is astounding."

The appellate hearing will take place in a matter of months, and I'll listen to the official recording as soon as it becomes available (usually on the day of the hearing). I understand Apple's desire for a sales ban and I said before that, while Samsung doesn't need to infringe the related patents (and the liability findings are subject to an appeal, with the autocomplete patent also being under reexamination pressure), an injunction would make Apple look and feel better. However, it wouldn't make sense to lower the standard for access to injunctive relief if an injunction bid comes from a company with a reputation for innovation. In Apple's case, that reputation is based on a definition of innovation that is inconsistent with the one applied in patent law. In patent law, it's about who's first to come up with something, not who's first to convince millions of consumers to buy and use technologies that, for the most part, others created before Apple.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

Last week I read a headline saying that "US shops and restaurants fight patent trolls" with print and radio ads in more than a dozen states. I looked up the campaign site and saw that the campaign website runs on a subdomain of the Internet Association's website. The Internet Association's members include, among others, Google and Rackspace. According to Wikipedia, Google was one of only four founding members.

I'm not going to defend the trolls, nor would I deny that there are too many "bad patents" (which the campaign asks politicians to "stop") out there. But there are certain aspects of this campaign that I find confusing at best and disingenuous at worst.

It appears that the Internet Association is really the driving force behind the campaign and may be its primary source of funding. But the campaign talks about the economic impact of patent trolls on "supermarkets, restaurants, retailers and startups". Startups are a more complex issue that I'll talk about on some other occasion (here's a link to a recent story of a patent troll and an app developer). Let's focus for now on "supermarkets, restaurants, retailers". The NPR report on this campaign contains an interesting quote from someone claiming to represent at least one of those categories of stakeholders:

"We are not for the most part developing these technologies," he says. "We're simply using them."

If the problem is that they are sued over technologies they use (but which others developed), wouldn't it be the most logical demand for them to make to insist that their technology vendors defend them in court against the trolls? If the asserted patents are "bad patents", sophisticated and deep-pocketed technology companies should be able to shoot them down, wouldn't you think?

This would have a self-regulatory effect: if tech companies fight back, trolls asserting weak patents would lose lawsuit after lawsuit, patent after patent, and only legitimate intellectual property claims would remain.

From the perspective of shops and retailers it would make a whole lot more sense to campaign for indemnification by vendors (or simply to refrain from buying products if their vendors don't indemnify), which is an option under the law as it stands, than to push for ambitious, far-reaching changes to the legal framework.

It's also a non sequitur that the way to combat "trolls" (whatever definition one may use) is to "stop bad patents" ("Congress must act now to stop bad patents and stop the trolls"). Studies have shown that non-practicing entities are reasonably choosy when buying up patents that they later assert. There are certainly some bad patents out there asserted by trolls, and fighting bad patents is never a bad idea -- but there's no evidence of trolls holding, on average, more dubious patents than other patent holders do (the opposite could even be true).

Let me be clear: the question of who funds this campaign wouldn't matter if this campaign didn't try to create the impression that restaurants and retailers suffer so much under trolls that they pour many millions into an anti-troll, anti-bad-patents, anti-all-bad-stuff campaign. And it would matter much less (or maybe not at all) if it advocated, with a reasonable degree of particularity, the most logical solution to a pressing problem. But when I look at this campaign, I see a disconnect between the problem(s) it raises and the broad, vague and general solution ("stop bad patents") it proposes; the claim of trolls costing the economy 80ドル billion a year does not convince me; and these substantive concerns of mine are reinforced by a closer look at who's behind this campaign and what the real agenda may be.

Google and Rackspace, the two Internet Association members I mentioned further above, jointly submitted an amicus curiae brief to the Federal Circuit arguing that Apple should not be allowed to stop Samsung's blatant copying. Rackspace also signed an amicus brief supporting Google against Oracle in the Android/Java copyright infringement case. These two companies are close anti-IP buddies, plain and simple. They have in common a business model that's more about exploiting other parties' IP than about creating their own (Rackspace is more extreme in this regard than Google, but Google is more reckless in its approach to other companies' IP).

Google is still asserting, in the U.S. and (especially) in Germany, a patent that different judges have already found to be a "bad patent": Motorola's push notifications patent. For further detail, see last week's post on a recent decision by an appeals court to lift an injunction because the patent is clinically dead.

A federal jury last week found Google's Motorola to have breached the duty of good faith and fair dealing in connection with its H.264 (video codec) and IEEE 802.11 (WiFi) declared-essential patent portfolios, effectively exposing it as a patent troll and finding it guilty of egregious conduct that none of the companies typically referred to as "patent trolls" has been convicted of to date.

There's obviously a narrower definition of "patent troll" that Google doesn't meet. But there are interesting connections between Google and more narrowly-defined "patent trolls". A company that Ars Technica simply calls "'shopping cart' patent troll" uses the very same law firm as Google does in most of its patent lawsuits.

Isn't a "shopping cart patent troll" what the retailers whose interests the campaign claims to represent are particularly concerned about?

Using again a definition of "patent troll" that isn't limited to non-practicing entities, the world's first "shopping cart patent troll" was Amazon back in 1999, with a clearly anticompetitive and anti-innovative agenda. Oh, wait. Amazon is one of Google's Internet Association co-founders. Pot, meet kettle. In some cases, you use the same lawyers, who may be happy to introduce you to each other. But don't expect sophisticated policy-makers in Washington DC to be fooled by a campaign like this one. They'll figure you out, and they'll ask some of the questions I raised in this post (such as whether indemnification couldn't take care of the problem of lawsuits against retailers and restaurants for the most part).

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

When a Google-led group of companies (also including, in alphabetical order, HTC, Rackspace, Red Hat and SAP) last month asked the Federal Circuit for permission to file an amicus curiae brief in support of Samsung against Apple's appeal of the denial of a multi-patent injunction against various Android-based devices, Apple opposed the request because Google is not an impartial friend of the court -- but a Samsung ally and the maker of Android, the operating system powering the accused devices. On Wednesday the Federal Circuit granted the motion against Apple's objections (Apple at least got an opportunity to draw the appeals court's attention to Google's vested interest in a certain outcome), and today the public version of the brief, which was originally filed on May 6, became available (this post continues below the document):

Google HTC SAP Rackspace Red Hat Amicus Brief Supporting Samsung Against Apple

Amici don't have to address every issue relevant to a case -- they can choose. This Google et al. brief addresses only the first one of the four transcendental issues I outlined in a recent post on this appeal: it basically argues that even if Apple was right and injunctions over patents covering smaller features of complex, multifunctional products became unavailable as a result of the "causal nexus" requirement, this would be a just outcome. And like Samsung, these amici also rely on non-patent cases in their effort to support a stringent causal nexus requirement.

One may agree or disagree with Apple and Microsoft, who oppose injunctions over standard-essential patents, but their positions are honest and logical: you can support injunctions over non-SEPs while arguing that FRAND-pledged SEPs must be licensed and not serve as a basis for injunctions. But Google takes positions the combination of which doesn't make sense: while doggedly pursuing an SEP-based injunction against Apple, Google submits an amicus brief like the one shown above, arguing that "denial of injunctive relief would not substantially impair the patentee's legitimate interests" because the right holder "can recover damages to compensate for any ongoing infringement". One can be against all patent injunctions, or maybe in favor of all of them (if one takes a radically IP-centric, antitrust-ignorant position), or in favor of non-SEP injunctions (which are thermonuclear) and against SEP injunctions. But there's no way, unless someone wants to take inconsistent positions as Google is doing here, to argue that non-SEP injunctions aren't necessary but injunctions should be available over SEPs.

Another inconsistency between Google's SEP and non-SEP positions is that in the non-SEP context it claims "holdup power would permit patent holders to capture a greater amount of money than their invention is worth". Google's Motorola attempted SEP-baed holdup against Apple and Microsoft, and failed.

I said before that amici can selectively address the issues in, or relevant to, a given case. But sometimes these choices are revealing. The anti-injunction argument made in this brief completely misses the point if one considers the possibility of working around (or "designing around", as some prefer to call it) a given patent. This is something that I've always stressed, and I sometimes felt Apple could or should stress that point even more (Samsung actually talked more about workarounds in its appellate brief than Apple did). Let me just quote from a very recent ruling written by Chief Judge Rader, Douglas Dynamics v. Buyers Products:

"If indeed Buyers had a non-infringing alternative which it could easily deliver to the market, then the balance of hardships would suggest that Buyers should halt infringement and pursue a lawful course of market conduct."

Google and its friends couldn't anticipate Douglas Dynamics when they filed their brief. But if the Federal Circuit at large adopts the position of its Chief Judge on the question of workarounds, then the persuasive impact of this brief will be minimal or even zero. In that scenario it won't matter whether Apple's asserted features are, as Samsung and its supports allege, trivial. The answer will be: "If it's trivial, then please work around it."

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

The weather is lousy here this weekend, so I might as well comment on a third amicus curiae brief filed in support of Google against Oracle's Android-Java copyright appeal. Yesterday I already discussed the two amicus briefs orchestrated by the Electronic Frontier Foundation (EFF). This morning I saw that the Application Developers Alliance issued a scathing press release on its amicus brief in this case, which it also published on its website. This means that three of the four Google-supporting amicus briefs have been published; only a Google lobbying front, the CCIA, hasn't done so yet, but its brief will soon appear on the Federal Circuit's electronic docket.

I already said in the post I just linked to that there's only one thing that app developers are truly concerned about: that if Oracle prevails, Google may have to bring Android back into the Java fold, necessitating rewrites, recompilations and redeployments of existing apps. The App Dev Alliance just doesn't admit this. It talks about all sorts of scenarios that aren't truly a concern to app devs. The true concern -- Google possibly having to modify Android's APIs over a transitional period of time -- is obviously something app devs don't like, but in that event Oracle would have prevailed in court and you can't blame the one who enforces the law -- you should always blame the one who violates it.

Oracle's appeal has elicited heat, not light, from Joel "on Software" Spolsky, the chairman of the App Dev Alliance. The organization's press release contains a quote from him that spans a relatively long paragraph but fails to present any reasonable argument. The organization's amicus brief has its shortcomings, which I'll address further below, but its style is reasonable -- unlike that of the Stack Exchange co-founder.

He starts with the words "Don't be fooled", but if there's anybody trying to fool people here, it's him. His first claim is that "APIs are not such a complicated thing". This contrasts nicely with what Google's own witnesses said at last year's trial about the skills required to design great APIs (click on an image to enlarge):

He then goes on to say that "[l]etting one company copyright APIs would be like letting one company have a monopoly on the use of the + sign [to mean addition]". As Mr. Spolsky likes to say, "don't be fooled": the asserted Java APIs consist of more than 7,000 lines, and if you want to learn about the creative choices involved (which don't exist for something like the plus sign), I can recommend an amicus brief submitted in support of Oracle by a group of computer science professors. None of the three pro-Google amicus briefs I've seen so far rebuts that submission, which I actually considered the most interesting one as far as the facts (not the law per se) are concerned.

After making such claims, which don't enhance the reputation of the organization he represents, Mr. Spolsky then calls Oracle's attempt "a ridiculous, shameful attempt to abuse the legal system for the purpose of extortion". Actually, Google was negotiating a license with Sun (before Oracle bought it) but decided to go ahead and release Android without a license.

Finally, Mr. Spolsky warns against "a catastrophic collapse of the ability of computer programs and systems to work together", which is just the doomsday version of what the EFF's briefs suggest. But I commend the Application Developers Alliance for at least making some limited effort to address what the EFF fails to explain: the fact that interoperability can also be safeguarded by other means than non-copyrightability. Congratulations: the App Dev Alliance is represented by a one-man-show appellate attorney from Texas while the EFF works with the renowned Samuelson Clinic in Berkeley, but it touches on the key issue the EFF doesn't even mention. Unfortunately, there isn't too much more substance than in the EFF briefs because the App Dev Alliance fails to give consideration to antitrust (I'll give a couple of examples further below), and its argument about "fair use" comes down to saying that regardless of whether a platform company would have a legal basis, it could always bring frivolous lawsuits:

"Oracle and its amici suggest that any balancing between the rights of an original author and those of a subsequent innovator should be done using the infringement prong of copyright analysis, particularly the doctrine of fair use. But the doctrine of fair use is a slippery one [...]

Were this Court to accept Oracle's position, almost every player in the industry would be susceptible to suits for copyright infringement when using declaring code. If liability for the entire market were determined based on a case-by-case determination of fair use (an already unpredictable doctrine), developers would be unable to adequately predict their exposure."

This is a very weak argument, but at least it is a fair-use-related argument. If a platform company actually started suing app developers for using APIs when writing apps (as opposed to stealing APIs to create rival platforms), you can be sure that the whole software industry -- and this includes Oracle's amici like BSA | The Software Alliance -- and software users (banks, for example) would stand by the first one who gets sued. They would fund his defense; they would submit amicus briefs. So let's be realistic: the doomsday scenario of someone trying to destabilize the software industry at large is a different thing than Oracle's dispute with a company that was actually negotiating a license before it decided to just take its chances. About two years ago District Judge Alsup looked at the evidence in this case and wrote that Google "may have simply been brazen, preferring to roll the dice on possible litigation rather than to pay a fair price". Now Mr. Spolsky accuses Oracle of extortion, and his organization's brief says "[t]he result that Oracle seeks in this case [...] would also jeopardize the livelihood of the millions of individuals employed as app developers or employed by publishers and platforms".

Someone who wants to sue on a meritless basis will always find a way to do so and doesn't need API copyrights for this. If the only purpose is to sue, the kinds of companies that create major APIs all have plenty of software patents over which they can sue -- and if necessary, they can always buy some more on the secondary market.

The brief is also one-sided. Just like the start-ups and the two non-Californian, notoriously IP-critical venture capitalists supporting Google, the App Dev Alliance fails to address the scenario in which little guys need IP to prevent the hijacking and supplantation of their creations by big companies employing "embrace, extend, extinguish" tactics.

Finally I'm going to talk about some of the specific examples given by the App Dev Alliance in its brief, and I'll pick those that show a fundamental misunderstanding or even ignorance of antitrust realities.

There's really a misconception out there. It's wrong to conclude from the fact that many companies didn't assert API copyrights against those reimplementing APIs that there was/is no copyright protection. As I explained in my commentary on the EFF's briefs, in most cases there's simply a commercial interest in API adoption, there's "fair use", and in those cases in which someone might act anticompetitively, there's always antitrust law.

The App Dev Alliance isn't too familiar with antitrust law. It discusses the MySQL-related part of the Oracle-Sun merger control process (a context in which I worked very hard against Oracle) and refers to "the European Commission on Competition". There's no such thing though. The European Commission is the EU's executive government. Among other things it also handles antitrust regulation. The specialized department in charge of antitrust enforcement is the European Commission's Directorate-General for Competition (DG COMP).

Like I said, I was intimately involved with that process (and had previously served as a strategy advisor to MySQL's CEO for three years). The App Dev Alliance is absolutely wrong when it says that "[t]he Commission was particularly worried that permitting Oracle to control the MySQL APIs would reduce the choices available to consumers and increase prices of database software". The facts can be found on the Internet. As Professor Eben Moglen's submission to the Commission explained, the competition concerns centered around the level of control Oracle would have over MySQL, despite its free and open source software (FOSS) status, due to the "copyleft" effect of the GPL license (requiring derivative works to be published under the GPL or not published at all). This also involved so-called storage engines, which rely on an API. The concern was just that Oracle could have modified MySQL's code for new versions released after the acquisition in ways that would have made it impossible for storage engines to run. In order to do that, you don't need copyright: you just have to be the one releasing and compiling the version of the code everyone uses. The other related issue was copyleft, not copyright. It was about whether Oracle could enforce the GPL's copyleft provisions against third-party storage engines, requiring them to release their code under the GPL, which would have killed most of their revenue opportunities. The App Dev Alliance's brief mentions Oracle's pre-clearance commitments concerning MySQL. The explanation I just gave is supported (and the distorted version of the App Dev Alliance proven wrong) by paragraph 646 of the final Commission decision:

"The notifying party [i.e., Oracle] has thus publicly declared that for five years it would continue to support MySQL's pluggable storage engine API and it would waive the copyleft provision of the GPL for third-party storage engine providers who implement this API. Oracle's non-assertion pledge should not be understood to imply that all cases in which a third-party storage engine implements this API constitute violations of the GPL. It can therefore be expected that third party storage engine vendors will be allowed to provide to their customers a combination of MySQL under the GPL and the storage engine (including if that is under a proprietary license) as an integrated product."

Since copyleft can only be enforced by means of copyright (but note that Oracle waived only its right to enforce copyleft, not the copyrights it acquired), the paragraph I just quoted additionally shows that the European Commission and Oracle don't consider APIs generally non-copyrightable, contrary to what Google's amici incorrectly portray as well-settled expectations of this industry.

The App Dev Alliance says that under a settlement with the U.S. government (relating to competition in the browser market) "Microsoft was forced to make its APIs publicly available so that other developers could utilize the declaring code for products, including web browsers, that were fully compatible with the Windows operating system". Note that the issue was public availability. If someone doesn't make APIs publicly available (Google, for example, has various APIs, particularly related to advertising, that it consistently refuses to make available), you can't solve the problem with non-copyrightability -- but you can with antitrust.

Yes, programmers expect to be able to use public APIs for certain purposes. But this expectation doesn't change copyright law. You can also have expectations based on what most companies do voluntarily, and on "fair use" and antitrust law.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

Amicus curiae briefs must be filed with U.S. appeals courts "no later than 7 days after the principal brief of the party being supported is filed". Google filed its brief in the cross-appeal of the Oracle v. Google copyright ruling on May 23. Yesterday (May 30) was the deadline for amici curiae ("friends of the court") supporting Google. A couple of months ago Oracle's appeal received support from an impressive and diverse roster of amici (overview of amici, former U.S. copyright chief's warning against eviscerating protection for software, Sun founder's submission explanatory filing by academics regarding API creativity, filings by organizations representing creatives). By contrast, the list of amicus briefs supporting Google is so underwhelming that I'm wondering whether someone is still going to file something (maybe someone got confused about the deadline?). With the greatest respect for the work that some of the individuals ("Computer Scientists") did several decades ago, this mostly comes down to an effort orchestrated by two Google-funded, IP-hostile organizations. I really thought Google, being as powerful as it is, could do better than that. Here's the current and probably final list (click on the image to enlarge or read the text below the image):

• BRIEF TENDERED from Computer & Communications Industry Association Title: Brief Amicus Curiae in Support of Cross Appellant Google Urging Affirmance.

• BRIEF TENDERED from Computer Scientists Title: Corrected Brief of Amici Curiae Computer Scientists In Support of Defendant-Cross Appellant and Affirmance.

• BRIEF TENDERED from Amici Curiae Software Innovators, Start-ups, and Investors: Apiary, Inc., et al. Title: Brief Amici Curiae of Software Innovators, Start-ups, and Investors in Support of Affirmance.

• BRIEF TENDERED from RACKSPACE US, INC.; APPLICATION DEVELOPERS ALLIANCE; TMSOFT, LLC; AND STACK EXCHANGE INC. Title: BRIEF OF AMICI CURIAE RACKSPACE US, INC., APPLICATION DEVELOPERS ALLIANCE, TMSOFT, LLC, AND STACK EXCHANGE INC.

I'm going to comment on those briefs in the coming days as they become available. At this point only the EFF's brief is available. But even before the content of all those briefs is known, it's worth talking briefly about who actually came out in support of Google's anti-copyrightability and self-service-is-fair-use positions:

• Google is a driving force behind the CCIA. It has various other members, but there is no other member that the CCIA would have supported as consistently and aggressively in a variety of IP contexts in recent years as Google.

  BSA | The Software Alliance, whose amicus brief supports Oracle, also counts Oracle among its members, but it hasn't previously appeared as a pro-Oracle lobbying entity the way CCIA has been a pro-Google lobbying entity over the last couple of years. Oracle also received direct support from sizable companies (Microsoft, EMC, NetApp). And BSA's membership represents a far greater share of of software innovation in the U.S. and on a worldwide basis than that of CCIA (particularly if you remove Microsoft from CCIA's list, given that Microsoft took a clear position in Oracle's favor in an amicus brief it filed directly).

• The "Computer Scientists" are represented by the Electronic Frontier Foundation (EFF), which orchestrated this brief. The EFF has received various donations from Google, three of which were mentioned by the BBC, including a de facto donation amounting to a million dollars (in a class action settlement it was given a choice to whom to give money and, of course, picked the EFF, which it had already funded before). It published pro-Google articles (on its own website and on Wired) during the trial and argued that the need for the open source Samba file server to interact with Microsoft's products supported the case for non-copyrightability of interoperability-related code, when the fact of the matter is that (true) interoperability can be ensured through "fair use" and, which happened in the Microsoft-Samba case, antitrust regulation.

  The EFF already started the orchestration of this amicus brief last year with a public call for support, which disingenously included the following sentence that already appeared in a previous EFF commentary on this case:

  "It is safe to say that all software developers use APIs to make their software work with other software."

  Why is this disingenuous? Because it suggests that all software developers are at risk from litigation if APIs are found copyrightable. But those using an API for its intended purpose have nothing to fear -- only those who copy and steal. The copyrightability of APIs doesn't create legal risks for those building applications on top of a platform. Nowhere does Oracle say in this dispute that Google isn't allowed to write Java apps.

  Also, the EFF is generally known to advocate anti-IP positions, which the Federal Circuit (a key protector of IP) is pretty aware of. There are areas in which I agree with the EFF. In particular, I believe small app developers shouldn't be targeted by patent trolls.

  The list of "Computer Scientists" undoubtedly includes people whose names ring a bell with me, such as Bjarne Stroustrup, who invented the C++ programming language a long time ago when there was less computing power in entire data centers than there is in a modern-day smartphone. But that's not a substitute for support from corporations. If you get hardly any corporate support except from one of your own lobbying fronts (CCIA), then you know that your positions aren't popular in the wider industry. But there's another reason why even the impressive backgrounds of some of those "Computer Scientists" are of limited relevance to the weight of this amicus brief: it's a lot easier for an organization like the EFF to persuade people to lend their name to such an effort than it is to convince the sophisticated legal departments of large organizations. You can get individuals to sign up by somehow making them believe there's an important cause to support, or by spreading FUD. This is very hard to do with large corporations. And that's the reason why some of those individuals can only support Google in their own name and can't persuade substantial organizations they know or work for to join this effort.

• For now the "Software Innovators, Start-ups, and Investors" haven't been identified except for "Apiary, Inc.". If you enter "apiary" in Google, you'll get all sorts of results, but it's hard to find this company. It remains to be seen who else is on this list, but again, the level of sophistication when it comes to complicated IP issues is probably very low compared to the legal departments of the kinds of organizations supporting Oracle. These may be just the kinds of people the EFF managed to mislead with its public call.

• Earlier this month Rackspace filed an amicus brief together with Google against Apple's pursuit of a permanent injunction against Samsung (which took positions that are contrary to what Chief Judge Rader wrote in a very recent ruling). Rackspace is a great service provider, but it really can't speak on behalf of innovators. The EspaceNet database lists a total of nine Rackspace patent applications. It's no surprise that this company is in favor of weak IP: it would love to exploit what others have created.

  The Application Developers Alliance has no reason to be concerned about infringement through the creation of apps, as I explained further above, but the EFF may have misled the organization and some of its members, though strong copyright can actually help little guys defend themselves against large players (regardless of whether this means Apple, Google, IBM, Microsoft, Oracle -- you name them).

  What the Application Developers Alliance may primarily worry about is that if Oracle succeeds, hundreds of thousands of Android apps may have to be rewritten as a result of Oracle's efforts to "bring Android back into the Java fold". I understand that app developers prefer not to rewrite software only because the underlying platform has IP issues. But that is not a reason to deny copyrightability or to define "fair use" so broadly that infringers easily get away with their conduct.

In previous posts (1, 2) I already wrote that amicus briefs are not only about what is said but also about by whom it is said. Oracle received support from substantial organizations as well as from individuals (such as former U.S. copyright chief Ralph Oman) who are very sophisticated in the IP context. Oracle received independent support from such amici. And Oracle's supporters showed a credible basis for being profoundly concerned about the implications of the district court's ruling. By contrast, Google has had to use organizations it funds in order to drum up the appearance of support, may have confused well-meaning individuals and small companies about what's truly at stake here, and the motives of supporters like Rackspace, whose business model is about the commercial exploitation rather than creation of IP, are also questionable and not likely to appeal to the Federal Circuit judges.

[UPDATE on May 31] Oracle spokeswoman Deborah Hellinger has now issued a comment: "I guess everyone is having collective amnesia about the uncontroverted testimony that Android is not compatible with Java." [/UPDATE]

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

On Monday, a Google-led group of companies also including HTC, SAP, Rackspace and Red Hat filed a motion for leave to submit an amicus curiae brief to the United States Court of Appeals for the Federal Circuit in connection with Apple's appeal of a district court's denial of a permanent injunction despite a multiplicity of infringement findings by a federal jury. Samsung filed its opening brief last week. The motion by Google et al. already indicated that Apple had declared its intent to oppose it. Apple was quick and filed its opposition only a day later (this post continues below the document):

13-05-07 Apple Opposition to Google Et Al. Amicus Curiae Brief in Samsung Case

Apple's argument is based on the fact that Google is "the developer of the Android operating system running on the Samsung smartphones that Apple seeks to enjoin in this case", an interest that conflicts with the traditional role of an amicus as 'an impartial friend of the court--not an adversary party in interest in the litigation.'" (citation to other case omitted; emphasis in original)

Apple then cites cases in which courts denied permission to submit an amicus bief "to prevent 'an end run around court-imposed limitations on the length of parties' briefs.'" This was just a quote from a decision by Judge Posner, who also expressed concern about cost implications. Apple cites other cases as well. The law firm of Duane Morris has a good blog post on this topic, Can You Ever Have Too Many Friends (of the Court)?, which notes that "someone who contemplates taking the position of a 'friend of the court' needs to find a way to rise above the din".

Apple doesn't raise objections with respect to Google's co-submitters (HTC, SAP, Red Hat, Rackspace). It also doesn't say what Google should do instead, but there's one thing that Apple obviously means to suggest and another thing that I'd like to add. Apple apparently believes that if Google has anything to say, it should cooperate with the Samsung entities that have to defend themselves in this litigation because that would be the appropriate channel. Basically, Google is a co-defendant. But the Federal Circuit rejected a similar argument last year in connection with the Galaxy Nexus smartphone, a device Samsung and Google officially co-developed. Google's submission was deemed admitted at the time.

Regardless of whether the Federal Circuit will accept Google's amicus brief this time around, I believe amicus briefs are a rather weak kind of support for Google to lend to its partners. In August 2011 Google announced the 12ドル.5 billion acquisition of Motorola Mobility and promised the Android ecosystem that it would use Motorola's patents to "protect" Android, specifically naming Apple and Microsoft as parties that Google wanted to use those patents against. But that strategy hasn't worked out and probably never will. Google has had far more (and far more important) losses than wins on the smartphone patent front. Its desperate reliance on standard-essential patents (SEPs) has created antitrust problems (on Monday the European Commission issued a Statement of Objections, a preliminary ruling finding Google's Motorola guilty of abusive conduct). The Guardian has a report entitled "Google under pressure to cut 5ドルbn valuation of smartphone patents". Google thought it had acquired a patent arsenal with which it could solve Android's court-established, wide-ranging patent infringement issues. By now it's pretty clear that Google lacks leverage to get away with infringement and can't help its partners other than in purely defensive terms (searching for prior art, developing non-infringement arguments, intervening in certain lawsuits, and filing amicus curiae briefs that struggle to rise above the din).

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

Late on Monday, a group of amici curiae ("friends of the court") asked the United States Court of Appeals for the Federal Circuit for permission to file an amicus brief in support of Samsung, opposing Apple's pursuit of injunctive relief following a multiplicity of infringement findings by a district court. The group includes

• Android maker Google (whose software is at issue in the Apple v. Samsung dispute, in addition to design-related rights and Samsung's proprietary extensions of Android, and which yesterday received a Statement of Objections from the European Commission concerning its allegedly-abusive pursuit of injunctions based on standard-essential patents),

• Android device maker HTC (which settled with Apple last year but could still face injunctions if it violates the anti-clonig provision of the license agreement),

• business software maker SAP (which just failed in the same appeals court to get an injunction overturned),

• Linux distributor Red Hat (which also teamed up with Google on a submission to U.S. antitrust regulators concerning "patent trolls"), and

• hosting company Rackspace (which has recently been quite active in campaigning against software patents and "patent trolls").

For more detail on what's at issue in this case and on the position Apple and Samsung have taken in their opening briefs, please see my most recent post on this appeal (published on Friday).

Google, HTC, SAP, Red Hat and Rackspace describe themselves as "innovative technology companies that develop and provide a variety of products and services that, like the mobile devices at issue in this appeal, incorporate a wide array of features". I could spend the rest of this post discussing in which ways these companies are innovative and in which they are not, or about Android's track record of court-established patent infringements, but in this context I just want to report on the fact that this group of companies sides with Samsung against Apple. The motion for leave to file an amicus brief goes on to say the following:

"As such, an issue presented in this appeal – whether a court may enjoin the sale of innovative and technologically complex products based on the incorporation of trivial patented features without evidence that the accused features drive sales of the products – is a matter of great concern to amici."

This misses the point. Everyone agrees -- presumably also Apple, which has to defend itself against patent lawsuits all the time -- that complex products shouldn't be banned because of the existence of one "trivial patented feature[]". But the real issue is whether it's reasonable to expect an infringer to either take a license (if the patent holder offers one) or to work around (or "design around") an intellectual property right. Everything else would be tantamount to a compulsory-licensing regime.

Apple's fight against a "causal nexus" requirement that presents pretty much an insurmountable hurdle for patent holders seeking injunctions against multifunctional products has drawn support from Nokia. Two months ago I already reported that Nokia asked for permission to file an amicus brief, formally in support of neither party but practically supporting Apple's strategic interests related to this appeal. Nokia doesn't always side with Apple: it supports Google against the FRAND part of Judge Posner's ruling. Meanwhile, Nokia's amicus brief, which argues that a compulsory-licensing regime would "undermin[e] traditional incentives to innovate", has been accepted by the appeals court and is publicly available:

13-05-03 Nokia Amicus Brief in Apple v Samsung Injunction Appeal by Florian_Muelle_439

Nokia stresses, among other things, that the Supreme Court's eBay v. MercExchange opinion clarified that injunctive relief must remain available, subject to certain criteria.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn:

While I remain focused on mobile patent (and related competition) issues, I'm well aware that a Pennsylvania jury's shocking 1ドル.2 billion damages verdict against chip maker Marvell (here's Marvell's statement) is the biggest patent litigation news during this last week of 2012. Theoretically that award could even be tripled for willfulness, in which case the damages award would exceed Marvell's market capitalization. I don't have an opinion on the details of that case, but just by looking at the numbers and considering the huge number of patentable inventions that go into a chip, I can't help but feel that it was an abdication of its discretion by the district court to allow Carnegie Mellon University to present its claims to the jury, which then supported them in their entirety -- because regardless of whatever CMU may have invented and whatever Marvell may have used, nobody in this industry could have a viable business in the United States if such damage awards were in line with the law.

Marvell's market cap is substantially below Samsung's quarterly profits. I already noted on Twitter that last summer's 1ドル billion verdict in Apple's favor against Samsung looks "kind of modest" now. Actually, it pales by comparison.

By coincidence, Marvell's lead counsel, Quinn Emanuel's Kevin Johnson, was also on Samsung's team in the Apple trial. For a firm that claims on the front page of its website that its lawyers won 90% of the cases they tried, it must be almost disheartening to be on the receiving end of two billion-dollar patent damages verdicts within only four months of each other. Companies with a patent infringement problem should be realistic about how much a law firm can do for them. I don't know about the work QE did for Marvell, but what they have done and continue to do in the Apple-Samsung case is very impressive -- the problem is just that Samsung added its own design patent infringements (very costly under U.S. law) to Android's manyfold software patent infringements, and there was strong evidence of a strategy to copy Apple. There really is a lot of money at stake in Apple-Samsung: if Samsung could solve the whole Apple patent problem by paying a billion dollars, it would do so any day of the week. In the CMU-Marvell case, there's also a finding of willfulness, but again, the numbers just don't make the slightest sense. The Apple-Samsung award needs to be adjusted here and there, but the CMU-Marvell award must simply be tossed or slashed in order to protect the innovation economy against patent unreasonableness.

The cross-appeal of Judge Posner's Apple v. Motorola Mobility ruling is probably the best near-term opportunity for the Federal Circuit to address two pressing problems at once: the one of injunctive relief over FRAND-pledged standard-essential patents, and the one of reasonable patent damages (for SEPs as well as non-SEPs), a problem that this week's 1ドル.2 billion lunacy highlights. I've always been much more interested in injunctive relief than damages questions because injunctions are the far more impactful remedy in disputes between major industry players. I've been opposing SEP-based injunctions for a couple of years, and I also focus on FRAND royalty calculation issues, but I'm still in the process of forming an opinion on how non-SEP damages should be calculated. Without a doubt, however, there's a need for improvement -- not only in the United States, by the way, even though the most spectacular patent damages awards tend to come down in that jurisdiction.

So without this representing a ringing and unconditional endorsement, but in light of the presently-heightened interest in patent damages and a need for constructive, rational debate, I wish to draw additional attention to a set of proposals that an interesting group of companies submitted to the Federal Circuit in the form of an amici curiae brief on the Posner appeal. Here's the document, and I'll talk briefly about the companies behind it and their proposals further below:

These are the "friends of the court" who submitted the brief:

• Altera Corporation (a maker of "custom logic solutions")

• Cisco Systems

• CME Group (Wikipedia: "CME Group Inc. [...] owns and operates large derivatives and futures exchanges in Chicago and New York City, as well as online trading platforms. It also owns the Dow Jones stock and financial indexes, and CME Clearing Services, which provides settlement and clearing of exchange trades.")

• Garmin (GPS navigation tools)

• Hewlett-Packard (HP)

• Logitech

• Nest Labs, a maker of learning thermostats that received a venture investment from Google (but states that "[n]either Google, Inc. nor Motorola Mobility, Inc. took any part in drafting this brief") and recently recruited Chip Lutton, Apple's former head of IP (who personally signed the brief)

• NewEgg (online computer hardware/software retailer)

• Rackspace Hosting

• Safeway (online grocer)

• SAS Institute (business software maker, also known for a landmark EU copyrightability case that I consider interesting but inapposite to the Oracle-Google API copyrightability dispute)

• Symantec

• Wal-mart Stores (dba "Walmart")

• Xilinx (integrated circuits)

You can read the details of their brief yourself, but let me highlight the fact that it advocates a fundamental departure from certain existing damages rules, in particular, the 15 Georgia-Pacific factors (by which Judge Posner also seems rather underwhelmed), which the briefs says "fail to provide meaningful guidance and are not a reliable methodology for calculating reasonable royalty damages", and the Entire Market Value Rule (EMVR), which Cisco and friends says "should presumptively be abolished". The brief is not anti-patent, but it's clearly the kind of submission companies make if they think that minor adjustments are insufficient and fundamental change is needed. Whether one agrees with this approach or not (again, I'm still learning and thinking about all of this), it definitely makes it an interesting read.

The Georgia-Pacific factors and the EMVR appear quite reasonable at first sight, but these amici curiae argue that "generalized methodologies currently used to calculate reasonable royalty damages lead to inconsistent and unreliable results because they are not sufficiently tied to the patent invention". The latter part of this shows what these companies would like to happen: they would like the courts to "focus on the value of the patented invention at the time of the design to a reasonable licensor and licensee", and wherever possible, such damages "should be capped at the incremental value of the patented invention over the next best alternative".

I don't think one can make an argument that the Georgia-Pacific factors or the EMVR are biased frameworks for patent damages. Theoretically, judges could use them as tools to prevent excessive damages claims to be presented to a jury, and in a perfect world with perfect juries, jurors could also apply those rules to the benefit of innovation. I believe Georgia-Pacific doesn't work well for FRAND royalties because simulating a negotiation between two parties would allow patentees to capture post-standardization hold-up value. Apart from that, this framework is not inherently unbalanced. There's something in it for everyone. It's even open-ended, a fact that Judge Posner has criticized. In the world in which we live, judges as well as (especially) juries are often misguided, even if they have the best intentions. These are complex cases that even industry experts with a strong business and technical background have a hard time figuring out. In light of that reality, the question must be whether a set of rules does or does not work -- a results-based approach. Something can be scientifically brilliant but not practicable. And that's what I believe the patent damages debate (including, as a subset with unique characteristics, the FRAND royalty debate) will mostly be about.

In this regard, it's important not to attach disproportionate weight to spectacular outliers like the CMU-Marvell verdict. This is a lunacy, it may be fixed by the district court itself in the post-trial proceedings, and if not, the Federal Circuit can still solve the problem. There are many patent trials in the U.S. every year, and one can't judge the system only by the outliers. That said, I have a lot of sympathy for those who look for rational ways to prevent those outliers from occurring in the first place.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Follow @FOSSpatents

Share with other professionals via LinkedIn: