There are now comments publicly available on the USPTO's website responding to a third question also, this one about improving patent applications. It has some suggestions for consideration regarding clarifying the scope of claims and the meanings of claim terms in specifications. I thought you'd like to see what Red Hat and Morrison & Foerster [PDFs] had to say. These days Morrison & Foerster seems to find its firm representing the old guard in the smartphone patent wars, and of course Red Hat reliably upholds the interests of the new guys on the block, Open Source. Red Hat points out to the PTO, quoting Tim O'Reilly, that were it not for Open Source, there'd be no Google, Twitter, Facebook, or Amazon: As one seasoned observer has noted, many best-known brands (like Twitter, Facebook, Amazon, and Google) "were built on a foundation of open source software, and wouldn't exist without the ... [open standards and protocols of the] Internet and the world wide web, Linux, and the cornucopia of open source tools and languages that made the fertile soup from which today's tech innovation sprang." That hopefully will help the PTO to realize that catering only to the old guard would be damaging. Open Source is now mainstream, and that means the USPTO's old way of doing things with respect to patents -- particularly software patents -- needs to be adjusted to accommodate the new. Happily, the USPTO seems to realize this, and so while Red Hat thinks some changes require changes in law, it commends them for this effort, the Software Partnership: Nonetheless, we see a clear nexus between the growing thicket of software patents and abusive patent litigation, so we support and encourage the PTO's Partnership, its systematic examination of the issues identified in the Federal Register Notice, and its efforts at improving quality. Indeed, we believe the agency should accelerate and expand these important initiatives. Tactfully, it indicates that there are more problems to be addressed that the PTO has yet to identify.
A waiver of a jury trial right can never be implied. Ostlund v. Bobb, 825 F.2d 1371, 1373 (9th Cir. 1987) ("A waiver of a constitutional right is not to be implied and is not lightly to be found."); see Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937) ("as the right of jury trial is fundamental, courts indulge every reasonable presumption against waiver."); California Scents v. Surco Prods., Inc., 406 F.3d 1102, 1108 (9th Cir. 2005) (same). In any event, Samsung did object to the scope of the new trial promptly as soon as the new trial Order issued and made clear that the ordered new trial would require the second jury to reexamine findings necessarily made by the first jury. Moreover, contrary to Apple's suggestion, Samsung did not request a new trial only on damages, but rather sought JMOL or a new trial "as to each and every claim and issue on which Apple prevailed before the jury," Dkt. 2013 at 1, and did not limit that broad request to particular errors, including damages errors. The parties also argue further on Apple's conditional motion for reconsideration of damages.
Why? It means setting damages for at least one patent claim the USPTO just decided isn't valid in a final office action and another patent that has been ruled preliminarily invalid, but this is Apple. It indicates it will appeal until it gets what it feels is the outcome it wants.
But that's not the real game. The real game is to get the appeals over with before the reexaminations plus all its appeals are finished, because, as Apple itself states, if a final invalidity ruling arrives after the appeals process is over, it doesn't "disturb an earlier final court judgment awarding damages for past infringement of those claims." So that's Apple's game. Take the money and run. It wants the damages trial to happen right away, so that the appeals process can get going quickly, to try to beat the timeline on the USPTO findings of invalidity. That way, even if the patents are ultimately found to be indeed invalid, Samsung will still have to pay the damages the deluded earlier jury sets.
Do you admire Apple for angling for such an outcome? I don't either.
See what happens when a jury gets things so very wrong? They wanted to "send a message" but the message turns out to be that US patent law can be wildly unfair. Samsung can be forced to pay for invalid patents, because that's how patent law in the US works currently. How do you like it? Think some reform might be in order? Add on top that these are software patents, which some, including me, think are not properly patentable subject matter, and it's cringe-worthy to watch this case play out like this.
The program is Open Courseware, and it is brought to you by MIT, Yale, Harvard, Stanford, and the University of Michigan and many other nationally recognized universities. For those of you wanting to brush up on your computer science, there are more than 50 courses, including courses on how to build mobile phone apps for both Android and iOS. There are courses on information technology, web design, accounting, statistics, math, writing, and numerous other areas.
Google, Red Hat, et al. Ask FTC and DOJ to Investigate Antitrust Implications of Patent Outsourcing to Trolls ~pj
But the most important part of the Google et al. request, to me, hasn't yet been highlighted in the media reports I've seen. What they are asking for is not just an investigation into trolls, but into active companies outsourcing their patent enforcement *to* PAEs. And what they are asking for is whether such activities in some instances can rise to the level of antitrust violations.
That is something I've wondered about for a while -- why didn't regulatory bodies see what is happening to Android, for example, with all the old guard working apparently together to try to crush it? One thing that Microsoft and Nokia have done, for example, is outsource patent enforcement to MOSAID and other patent enforcement-style non-practicing entities. (If you recall, Google filed a compliant specifically about that with the EU Commission last summer.) The new comments call the new outsourcing to trolls patent privateering, which they say is designed for assymetric patent warfare -- meaning the defendant's business is at stake, but the outsourcing company's business isn't, and the troll has nothing to lose, because it has no business.
So, finally, the day I've been waiting for begins.
I've taken the time to do the comments as text for us, because the footnotes alone are a treasure trove of resources. So let's take a look at the antitrust issues and see if we can learn something about antitrust law that way.
2. Did the court of appeals err in upholding a method claim by Myriad that is irreconcilable with this Court's ruling in Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289 (2012)?
3. Did the court of appeals err in adopting a new and inflexible rule, contrary to normal standing rules and this Court's decision in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), that petitioners who have been indisputably deterred by Myriad's "active enforcement" of its patent rights nonetheless lack standing to challenge those patents absent evidence that they have been personally threatened with an infringement action? Can you believe that is the question, are human genes patentable? But it is what the court has to decide. How in the world did we get to such a place? The argument [PDF] by Myriad is that they aren't patenting genes *in* the body, only after they've removed them and done things to them that are not done in the body, arguing that "isolated" DNA can perform functions that DNA can't. But ACLU's lawyer points out in its reply brief, you can't patent gold after you take it out of a stream just because you can make jewelry with it or patent kidneys after you remove them from one body and transplant them: Myriad is in effect arguing that it may obtain a patent on a product or law of nature itself if it finds a new use for it. Under this theory, Section 101 would not prohibit someone from obtaining a patent on gold if she found a new use for gold. As a matter of law, that argument is incorrect. So that is what is at stake.
Here is a paper [PDF] on POBox by Professor Masui, "An Efficient Text Input Method for Pen-based Computers", published in Proceedings of the ACM Conference on Human Factors in Computing Systems (CHI'98) (April 1998). Here's another, "An Efficient Text Input Method for Handheld and Ubiquitous Computers" the following year [PDF]. Professor Masui was approached and expressed willingness to attend the deposition. The deposition is set for June 11 in Tokyo, in the US embassy there. The Declaration [PDF] attached to the motion asking for leave to depose Professor Masui explains how it all happened: 2. I first spoke with Professor Masui on or about February 5, 2013. I explained that we were interested in Professor Masui's work on the POBox software, which is relevant prior art in this litigation. On or about the morning of February 6, my colleague John McKee and I spoke to Professor Masui about POBox. During this call, Professor Masui expressed willingness to gather and provide information about POBox. Several days later, on or about February 12, 2013, Professor Masui verbally confirmed to me that he would be willing to sit for a deposition in this matter.
3. Over the last few months, I have spoken with Professor Masui several additional times. Professor Masui has declined to travel to the United States for a deposition, but has stated that he would be willing to appear for a deposition in Tokyo, Japan. On or about March 20, Professor Masui confirmed to me that he was available June 11 in Tokyo, and would be willing to sit for a deposition on that date. Samsung thereafter reserved space at the U.S. Embassy in Tokyo for Professor Masui's deposition. Attached are the rules for such depositions, Exhibit 1, The United States - Japan Consular Convention, and Exhibit 2, the State Department's guidelines for conducting depositions in Japan.
Also the judge, the Hon. Lucy Koh, has filed her order [PDF] construing disputed patent claim terms. It's full of the usual infuriating spaghetti language about terms that describe elements of patents that in my view should never have issued in the first place. Don't read on if you don't want to know about one specific. But there is a link to Professor Masui's work.
(1) On April 9, 2013, Apple shall file a response, not to exceed six pages, to Samsung's contention that a new trial on damages alone violates the Seventh Amendment. See Samsung Opposition to Apple's Motion Seeking an April 3 Case Management Conference, ECF No. 2286 at 5-10. On April 16, 2013, Samsung may file a reply, not to exceed five pages.
(2) On April 9, 2013, Samsung shall file a response, not to exceed five pages, to Apple's contention that immediate appeal of this Court's Order Re: Damages filed on March 1, 2013 is not viable. See Apple's Motion Seeking an April 3 Case Management Conference, ECF No. 2283, at 2. On April 16, 2013, Apple may file a reply, not to exceed four pages.
(3) On April 9, 2013, both parties shall file a statement, not to exceed four pages per party, regarding when their US PTO reexaminations of the opposing party's patents will conclude and what effect the concluded reexaminations will have on any new trial or appeal. On April 16, both parties may file a response, not to exceed two pages per party. There will be more on all this, as you can see each gets to respond to the other's brief.
Those days are so over. Time to modernize, I'd suggest. Nowadays, most people use Apple or Android, on mobiles, to boot.
There's a new deadline for sending them comments, April 15. Groklaw already sent ours in, but if you have further thoughts, there's still time. And the comments already received are available now too.
And when someone files a complaint with the EU Commission, it has to consider it. So it will.
Here's what the new complaint is about, or says it's about: FairSearch's complaint is that "Google uses deceptive conduct to lockout competition in mobile" - by, specifically, requiring OEMs that use Android to pre-load a suite of Google services and give them "prominent default placement" on the device in order to also get access to "must-have Google apps such as Maps, YouTube or Play". By doing this, FairSearch argues that Google "disadvantages other providers, and puts Google's Android in control of consumer data on a majority of smartphones shipped today", adding that this "predatory distribution of Android at below-cost makes it difficult for other providers of operating systems to recoup investments in competing with Google's dominant mobile platform"....
"Google is using its Android mobile operating system as a 'Trojan Horse' to deceive partners, monopolize the mobile marketplace, and control consumer data," said Thomas Vinje, Brussels-based counsel to the FairSearch coalition, in a statement. "We are asking the Commission to move quickly and decisively to protect competition and innovation in this critical market. Failure to act will only embolden Google to repeat its desktop abuses of dominance as consumers increasingly turn to a mobile platform dominated by Google's Android operating system." That is preposterous, and I'll tell you why. But what I do want the EU Commission to think about is this: is this constant attack on Google itself a result of antitrust schemes by the old guard to destroy the new kid on the block? What? Microsoft would never do anything mean or underhanded? Puh lease.
And if you are free to do so, why not look for any prior art on the patents involved? There are three, but once again, we have a continuation loop, so it's really just one with some variations on the theme and some doodads. Don't read on if you are not supposed to look at patents.
Judge Koh Decides Not to Decide Yet, and Apple Says USPTO's Final Office Action Isn't Really "Final" Final ~pj
The two issues that she has asked the parties to brief more fully are that she'd like Apple to respond to Samsung's contention that a new trial on damages alone violates the Seventh Amendment. And she'd like Samsung to respond to Apple's contention that "immediate appeal of this Court's Order Re: Damages filed on March 1, 2013 is not viable". The biggie is the Seventh Amendment issue, simply because while judges have a lot of discretion, what they can't properly do ever is violate the Constitutional rights of a party. So if Samsung can convince her this is what an immediate trial is going to do, she will have no choice. Samsung's position is that there were errors in the jury instructions, and so having a trial on damages requires also reconsidering liability because "proof of injury" goes to both issues. But Apple gets to speak on the matter, so we will have to wait and see what happens, and the fact that she's asked the parties to attend the April 29th conference and come up with a trial schedule tells me that she is at least tentatively leaning Apple's way at the moment.
There are other filings, as is the parties' wont, and one is Apple letting the court know that the final office action by the USPTO isn't really "final" final. It can appeal the USPTO's decision that invalidated claim 19 of the Apple '381 patent, the bounce back patent, even when it really is final. But frankly, I take this as more a Michael Jacobs PR document for the public than a legal one for the judge, in that the judge already knows how USPTO reexaminations procedures work. She knows what a final office action means, and so she also already knows what a final office action usually indicates about the most likely end result, although in patent litigation, your odds at any given point are usually about 50-50, and that's one problem with patent law. No doubt there will be lots of appeals, since Apple, and Samsung too, just can't seem to get enough of litigation and motions, motions, motions, because it's so much fun.
Hmm. Not so much these days for Apple, huh? The trouble with declaring that you intend thermonuclear destruction of a competitor is, they get to hit you back. And the fact that Apple now has to try to undo the USPTO's devastating decision means that Apple indeed is not currently holding the winning hand with any certainty, despite any brave assertions that it will bounce back on the bounce back patent. On the other hand, the same is true for Apple's "win" at the jury trial. It's getting whittled back and whittled back, and it's surely true that it ain't over 'til it's over in patent litigation, and that means after the final appeal is over. That's why investing in litigation is for fools, in my view. You can't predict the outcome, unless one of the parties is the SCO Group, if you know what I mean. And I can't help but notice that the '381 patent is mentioned in some materials [PDF] that Apple files in support of its response to Samsung's motion for reconsideration regarding opening statement slides, whatever that's about. So the beat goes on. Neither side will ever stand down voluntarily, and they'll keep on filing motions and fighting and fighting and fighting until something makes them stop by ringing the final bell.
One thing the parties do agree on wholeheartedly is that they'd like the judge to quit ordering their private information unsealed, so there's more about that, with Apple putting in a declaration in support of Samsung.
Apple's Claim 19 of '381 Patent Rejected by USPTO in Final Office Action: Impact on Apple v. Samsung Damages Can Be Huge ~pj
The current moves result from Judge Lucy Koh's ruling ordering a new trial on 14 Samsung products to recalculate the damages owed to Apple, because, she ruled, the jury awarded damages on those products based on a legally impermissible theory. In the vernacular, they goofed, so the math was wrong. It was so messed up by the jury, and so untraceable as to methodology followed, she couldn't fix it for them but rather decided to order a new damages trial instead. But on other products and on Samsung's counterclaims, she said the jury's rulings should stand, subject to appeal.
It's the new trial in particular that is causing strategic maneuvering. When should it happen? The judge encouraged the parties to wait until after the appeals court rules on whether or not there were errors in the first trial. Except for the 14 products, the rest is ready to be ordered as a partial final judgment. Samsung would like the judge to do exactly that, while also ordering a stay pending the appeal, saying it makes sense to wait in that "the Federal Circuit's decision will shape the course of any new trial, including issues related to patent validity, trade dress dilution, liability instructions and the proper measure of damages."
But Apple wants to go forward with the damages trial right away, before these issues can be resolved. Ask yourself why.
For those unfamiliar with the U.S. Rules of Civil Procedure, a 12(b)(6) motion is a defense motion to throw out the law suit because the plaintiff has failed "to state a claim upon which relief can be granted." In this case, Red Hat (providing legal counsel on behalf of Rackspace under Red Hat's indemnification) argued that the asserted patent was invalid and, thus, Uniloc failed to state a proper claim. No discovery. No Markman hearing. Nothing but the arguments the defense set forth in its brief (16 [PDF; Text]) and reply brief (25 [PDF; Text]) supporting its motion and oral arguments with respect to the same. Judge Leonard Davis of the Eastern District of Texas agreed that the asserted patent claimed failed as patentable subject matter in contradiction of Section 101 of the Patent Act. GAME. SET. MATCH.
At issue was what should go into the public record of this litigation. And the biggest question discussed was, what is a trade secret? It for sure is any secret business process or information that isn't generally known, like the recipe for Coke, that your business builds the business around, the publication of which would ruin the business. Its value is its secrecy. But is the line the parties are trying to draw in this case broader than that central definition, so that they are seeking to cover pretty much any business information? There is a difference between a trade secret and a business secret, so which is which in this case? Specifically, does the law protect all historical company marketing research and financial information, as the parties hope the court will decide? It's not a silly issue they are raising. Imagine if you knew that seeking legal redress in the courts meant all your business secrets now become public knowledge? Might it hold you back from seeking the courts' help? If so, that would be detrimental. So there is a line. The question is, where is it in this case?
Reminder -- We are still prior art searching: I'll tell you some of the highlights, but please don't forget that we are still searching for prior art on Nokia's patents it claims WebRTC may infringe, specifically the VP8 video encoding scheme proposed as part of this standard, right here, and if you are free to do so, please contribute your expertise. The goal is to make the proprietary side say, "Curses, foiled again" and help to ensure that the free and open Internet can't be severely restricted by such patents. So the more prior art we find, the better. A Groklaw member sent me this this article in the Harvard Business Review, "Feeling Stumped? Innovation Software Can Help" and it is about a tool called Analogy Finder, a program that mines the U.S. Patent Database for analogous solutions. Here's the demo. Can some of you give it a whirl? Here's how you get going: You start with two words that describe what you are looking for. ... From here, the program will take the two words and basically find all the patents that are relevant to the original goal - however that goal is expressed. It will then allow you to narrow and order the results in various ways. The program will even take into account what areas you are an expert in so you don't waste time looking at solutions that you would already have thought of. Let's try it out and if you find anything, please post it on the article where the prior art already is under way, not on this article, or email me.
03/25/2013 - 1108 - MOTION for Hearing re 1095 MOTION to Reopen Case filed by Plaintiff SCO Group. (Hatch, Brent) (Entered: 03/25/2013)So, here we go again. One more Ring Around the Rosie with SCO.
Nokia just disclosed a list of patents that it claims VP8, the video compression format used by the WebM Project, infringes, and the way they filled in the form, the list looks as long and scary as it could possibly look, and just as the IETF was trying to reach consensus on VP8. But when you break the Nokia list down, country by country and then by patent, it's not so impressive after all. As it turns out, there are just a few patents repeated over and over. I think it's short enough that we can sensibly try to find prior art.
By the way, did you know that anyone, individual people I mean, can join the IETF mailing list and participate in the conversation? It's free, and while individuals may have affiliations and most do, it's not the kind of thing where companies or countries can dominate the way we watched happen in the OOXML affair, because unlike ISO or ITU, there are no national bodies to bribe influence, just individuals expressing their own opinions. The IETF is a completely open standards body. If you'd like to and feel you understand the technology, you can join the mailing list and contribute to the decision-making process. It works by consensus. No need to bring your wallet.
Don't read on unless you are free to read patents, as usual.
Ubuntu ya hace algo peor: espía al usuario. Las funcionalidades malevolas, que son comunes en el software privativo, son inusuales en el software libre; pero nuestra defensa no es perfecta. Uno de los pocos ejemplos de spyware en el software libre es Ubuntu. [PJ: Ubuntu does something worse. It spies on its users. Malevolent functionality which is frequently part of proprietary software is rare in free software, but our defense is not perfect. One of the few examples of spyware in free software is Ubuntu.]
Véase por favor http://gnu.org/philosophy/ubuntu-spyware.es.html. [PJ: Please read this (at the link).]
Les pido entonces que, en sus eventos FLISOL, no distribuyan ni promuevan Ubuntu. [PJ: Therefore I ask you that in the FLISOL events, you don't distribute or promote Ubuntu.] When his request was turned down by that event organizer, saying that it limited users' freedom of choice, he followed up with another to the whole list, giving his reasons and asking them to reconsider. It has touched off quite a discussion, needless to say. Look for the theme on that page: [Flisol] Eventos totalmente libres (pedido de Richard Stallman) if you'd like to follow along. Google has machine translation here, if you wish to check it.
Journalists Allowed to Argue at March 26 Hearing On Behalf of the Public's Right to Know in Apple, Samsung Appeal ~pj
After Steve Jobs died, I read an article that quoted his widow as saying something to the effect that just because someone is a genius in one area, it didn't mean he was a genius in all areas. I found that a charmingly honest statement that all wives for sure would understand, with all its overtones and undertones reverberating in the air. One thing that watching Jobs' plan to destroy Android play out in courtrooms has made obvious: he was not a genius at the law. Unquestionably, the Apple brand has been damaged by the litigation against Samsung.
And it may be about to get worse. Here's what is threatening to happen next: The parties were in agreement that the district court was unsealing too many company secrets and both are appealing to the Federal Circuit to keep things sealed. They agreed that they don't want to stand naked before the world, with all their trade secrets exposed. Unfortunately for them, they happened to draw two judges who believe litigants have to endure more of a spotlight than they might enjoy if they choose to litigate, because the public has rights too. Who knew that would happen? Clearly not Apple, a company that is known for its secretiveness. And the appeals court has just ruled that an eager band of journalists will be allowed to argue against sealing of the parties' relevant documents at the upcoming oral argument on the point on March 26.
Dow Jones & Company, Inc., The First Amendment Coalition, The Reporters Committee for Freedom of the Press, American Society of News Editors, Bloomberg L.P., Gannett Co., Inc., The New York Times Company, The Washington Post and Society of Professional Journalists will appear at oral argument, and a lawyer from The Reporters Committee for Freedom of the Press, Gregg R. Leslie, a staff attorney and legal defense director there, will share its allotted time with the attorney from the First Amendment Coalition. Together, they will argue that the parties are asking that too much be sealed in the Apple v. Samsung case, the first one, that the district court should be upheld, because the public has a right to know what is going on.