Blog 26: Apple v. Samsung 2.0 Ordered to be Narrowed; Interpreting Legalese

Judge Koh of the North District of California issued an order for Apple and Samsung to slim down the already-bloated case:
"By February 6, 2014, the parties will be required to limit their asserted claims to 5 per side and limit their accused products to 10 per side. In addition, the parties will be required to reduce their invalidity references/systems/combinations to 15 per side."

This ruling will likely lead to Apple and Samsung citing five claims at trial time that pertain to five different patents in order to maximize the breadth of the slimmed down case. Notably, Judge Koh's ruling seems to benefit Samsung, based on the fat that Koh's statement calls for a maximum of five asserted claims for each company. This hurts Apple because Apple wanted to assert 12 claims from five different patents, which reduces the redundancy in the case and increases the risk that Apple may suffer a loss based on a limited amount of patents.

Samsung also called for the limit of 5 accused products for each side, although Koh allowed both companies to have 10 products. Samsung likely called for five products to limit Apple's potential damage against Samsung, which does not really work against Apple, because Apple has only one flagship phone, which also serves as the entirety of the product line. This order for litigation simplicity seems like a reasonable request that FossPatents calls "fair and balanced".

Blog 25: Google Goes (2-7)

April 2013 was a month that continued the trend of Google's patent woes. Business sites are also now beginning to discover that Google has been struggling tremendously in patent court, although this is a fact that has been long known by followers of the patent law scene.

As a recap, here is a summary of Google's record in court for the month of April.

Win:

1. Apple's Slide-To-Unlock Patent Invalidated in Germany
1. Samsung (Android platform) had been cleared of any potential infringement on the home screen unlock feature ubiquitous to smartphones.
2. Nokia Lawsuit Dismissed Against HTC/Google Play (not actually a win, soon to be a loss)
1. Google temporarily delayed what FossPatents believes to be inevitable--dozens of strong Nokia patents that will eventually force HTC to pay Nokia for using its intellectual property

Loss:

1. Android's Text Selection Infringes Apple Patent
1. As the title suggests, the ITC ruled that Android's text selection feature (holding down on the screen to create a translucent box around a field of text) infringed on Apple patents
2. Florida Court Slows down Apple v. Google Case
1. I discussed this in an earlier blog, but essentially non-SEP Motorola patents are under review in this case. The delay hurts Google because Google needs to have some sort of defense against Apple's patent assertions, and will not have any help from Motorola patents (as usual) because of the delay
3. Apple Defeats Samsung in Claim Construction on All But One SEP
1. Apple's victories in claim construction imply that Google/Samsung will likely be forced to pay Apple for the Android system's violations of intellectual property
4. Hon Hai Signs Royalty Deal with Microsoft
1. I also discussed this in an earlier blog--basically Google will be indirectly paying Microsoft for Android's violation of Microsoft Intellectual Property
5. ZTE Signs Deal with Microsoft
1. Microsoft signs deal with ZTE to receive royalty payments based on Android infringement.
6. Microsoft Licensed to Motorola's (for Push Notifications)
1. Under a former patent license, Motorola has already been paying Microsoft for the "push notification" technology, so Google/Motorola's lawsuit holds no water.
7. Court Rules that Google Will Receive Cents on the Dollar for Motorola Allegation
1. In this recent case, the a court determined that Motorola's FRAND demands for Microsoft would be pushed down from a $4Bn royalty fee to $1.8 MM
1. Google will probably never realize any gain in the smartphone war based on its acquisition of Motorola Mobility 

Blog 24: Samsung Asks for Delay in Ericsson Case

Samsung recently asked the ITC for a two month expansion of the discovery phase in an investigation with Ericsoon, citing Ericsson's lack of interest in narrowing the scope of the investigation as a primary reason for gaining the additional 60 days of discovery. Ericsson appears to have only nominally decreased the total scope of the investigation from 11 patents, 134 claims, and 190 infringing Samsung products to 10 patents, 123 claims, and 190 Samsung infringing products.

Given that 7/10 of Ericsson's patents are fair, reasonable, and nondiscriminatory (FRAND) pledged standard essential patents is a major factor in the complexity of the investigation. Over 40 U.S. companies have been subpoeaned and many major third parties have also been subpoened in the investigation (ASUSTek, Hon Hai, HTC, Nokia, Sharp...). If Samsung's request for expanded discovery is successful, then the trial will also be delayed for two months, and Samsung will also have more time to prepare its retaliatory compliant.

http://www.fosspatents.com/2013/04/samsung-asks-itc-for-two-month-delay-of.html

Blog 23: Microsoft Takes Cut Out of Android in China

Taiwan-based Hon Hai, the contract manufacturer of 40% of the world's consumer electronics, signed a deal with Microsoft on Wednesday, April 17. This deal ensures that any Android or Chrome devices made by Hon Hai will lead to a royalty stream to Microsoft. Although FossPatents does not provide a clear cut answer on whether or not Hon Hai will be passing on this cost to Google (likely), the significance of the deal underscores the strength of Microsoft's intellectual property and the simultaneous weakness of Google's patents, especially the lack of value-add that the Motorola Mobility patent portfolio has.

This deal will likely embolden companies such as Apple, Nokia, or even British Telecom to enhance their lawsuits against Google's patent portfolio. Microsoft has minted more than 20 new royalty streams based on their intellectual property since April 27, 2010. Given that the Motorola patents are essentially useless against  Microsoft, and that their patents are openly known to have infringed Microsoft patents, Microsoft will likely receive a royalty stream from Google in the near future.

http://www.fosspatents.com/2013/04/foxconn-parent-hon-hai-signs-with.html

Blog 22: Nokia Slims Down HTC Case

Nokia refined its case against HTC and cut out three patents from its suit. Generally, most companies narrow their lawsuits  as trials proceed, given that different patent claims are thrown out or are removed for arbitration. Originally, Nokia had nine patents. Of the three that were dropped, each were related to a loss of a claim construction battle (claim construction provides guidance for which patents will be viable in a lawsuit).

As of now, Nokia has obtained one German injunction against HTC, which HTC claimed was meaningless and would not affect its business. In Germany, HTC and S3 Graphics are suing Nokia over an infringement based on Qualcomm's'Snapdragon chip.

http://www.fosspatents.com/2013/04/nokia-streamlines-itc-case-against-htc.html

Blog 21: Florida Ruling Sets Back Google

Google suffered two additional setbacks in its attempt to create value from its Motorola patent portfolio. A German court notified Google that it plans to lift the only existing Google injunction against Apple in existence--a ban on iCloud push notifications. (Push notifications send information directly to a user's phone.)

Additionally, Judge Robert Scola from the Southern District of Florida pushed back the claim construction process for a new case by four months. Google and Motorola previously started the litigation in Florida over six patents, which led Apple also counter sue on basis of their own patents. This case became significant because while Google's acquisition of Motorola was under antitrust review, Motorola filed an additional suit against Apple targeting Apple's (as of then) new iPhone 4S and iCloud platform.

The delay is particularly bad for Google because it hinders Google's ability to extract value from it's $12.5Bn acquisition of Motorola. Furthermore, Google is unable to stop Apple from continuing to assert patents against Android. Additionally, because Apple cannot afford to lose any lawsuit against an Android OEM or any company affiliated with Android (because the precedent will strengthen the Android OS as a whole),  the delay is a welcome news update. 

As this case is still in the early stages, there are over 180 claims jammed into this singular lawsuit--Judge Scola noted that currently the case is far too big to effectively manage. If Scolar orders that the lawsuit be slimmed down, Apple will likely benefit because it would  have to fight off fewer patents.

http://www.fosspatents.com/2013/04/florida-judge-slows-down-multi-patent.html

Blog 20: Google Struggles Against Microsoft XBox

Administrative Law Judge David P. Shaw recently issued a preliminary ruling recommending that Google cut its losses in a lawsuit against Microsoft's Xbox. Shaw's remand initial determination provided two reasons for  Microsoft's side of the case, one procedural and one technical.

1. The advent of a landmark ruling on S3 Graphics' complaint against Apple led to the conclusion that the ITC can only order exclusion when the importation of goods violates U.S. patent law, NOT when the post-importation use of the goods violates patent law. Because Motorola lawyers argued for a ban based on direct infringement and not on indirect infringement, Judge Shaw ruled that Motorola failed to develop an indirect-infringement at the appropriate stage in the lawsuit.
2. Furthermore, Shaw ruled that Motorola failed to show essential elements of infringement--the Xbox's Kinect accessory is a wired XBox accessory that bypasses the game pad controller. Microsoft's wide marketing of the Kinect accessory reveals that Microsoft did not intend to induce users to infringe upon Motorola's patent.

This preliminary ruling represents another failure on behalf of Google/Motorola's patent portfolio.

http://www.fosspatents.com/2013/04/google-faces-double-hurdle-in-whats.html

Blog 19: Apple's Slide-to-Unlock Invalidated

Google experienced a rare win in the smartphone patent war. Germany's Federal Patent Court invalidated Apple's EP1964022 and struck down Apple's 14 proposed amendments to the patent. Apple has the ability to appeal the decision. Apple's EP1964022 protects the ubiquitous "slide-to-unlock" feature on all commercial smartphones.

This patent was found to fail to meet the requirement of European patent law of requiring a software innovation to "solve a technical problem with technical means." Because the slide-to-unlock feature is largely cosmetic, it was not deemed to be a technical innovation. However, U.S. patent law would likely enable the existence of the slide-to-unlock patent, because U.S. law is more lax and lacks the technicity requirement. In February of 2012, the Munich I Regional Court previously granted an injunction against two of Motorola Mobility's slide-to-unlock implementations. 

Additionally, Apple's attempt at asserting a slide-to-unlock utility model is also expected to fail.

http://www.fosspatents.com/2013/04/apples-slide-to-unlock-patent.html