Groklaw's Report from the CLS Bank v. Alice En Banc Hearing at the Federal Circuit ~pj Updated |
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Friday, February 08 2013 @ 06:46 PM EST
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I hope you were not expecting too much from today's en banc hearing by the Federal Circuit on CLS Bank v. Alice. A split decision is the best we can hope for, according to Bloomberg's report on the day's festivities,
Google Joins JPMorgan in Seeking Software Patent Limits, quoting a patent lawyer, Brad Wright: Based on their questions and their past rulings, the judges seemed divided, said Brad Wright, a patent lawyer with Banner & Witcoff in Washington who attended the hearing.
“The court appears fractured and a split decision is likely,” Wright said.
Fractured. Indeed. Le mot juste. A split decision is what Mark Lemley
predicted, as well. I have collected a couple of other reports on the hearing, and then we have our own. Ours is hilarious, in the way that only geek pain plus indignation plus despair plus a touch of amazement at tech cluelessness can provide.
Yes. Another 'is software patentable' case. Or is this patent so blazingly obvious it is invalid? If so, how about if the patent claims the magic happens when folks do it "using a computer"?
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Judge Robart in Seattle Grants Microsoft's Motion for Partial Summary Judgment ~pj Updated |
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Thursday, February 07 2013 @ 06:25 PM EST
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Judge James Robart in the Microsoft v. Motorola litigation in Seattle has ruled now on Microsoft's partial summary judgment motion that they held the hearing about last week. He has -- surprise, surprise -- once again ruled for Microsoft. He has not yet ruled on the other issue the hearing was about, the issue of the Google license agreement with MPEG LA. I agree with him in the abstract, so to speak, that software patents require increased disclosure. He has ruled that the means-plus-function software patents Motorola was using in this litigation are, without specifically disclosed algorithms, invalid in that he decided the algorithms claimed were insufficient as vague: Accordingly, where the disclosed structure corresponding to a means-plus-function element is a computer-implemented algorithm, the algorithmic structure must be disclosed....Because neither the examples of a decoder, nor the definition of a decoder, identified in the specification amount to anything more than a programmed general computer or a functional description, the court requires disclosure of an algorithm corresponding to the “means for decoding” and “means for using” limitations....Although the specification describes how one of skill in the art would ascertain what blocks to consider when decoding, the specification provides no guidance as to how one of ordinary skill would actually decode the considered blocks. Thus, the court concludes that the specification contains no disclosure that supports Motorola’s
proposed algorithm (or any other algorithm) for corresponding structure to the decoding function required by the “means for selectively decoding” limitation of claim 13 of the ’375 Patent. Means plus function claims are exactly what the USPTO is asking the software community to comment on, with the view to improving software patents, and one suggestion we at Groklaw are sending in is the need for increased disclosure, and not just for the type of patent the judge thinks needs more specific disclosure. But if the world decides that any time the patent says something like "on a computer" that you need to provide specific algorithms, so be it. From his mouth to God's ears, as they say.
You doubt that software patents need to go? Look at all the trouble they are causing.
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The Newegg Victory over Soverain; and Newegg et al's Amicus Brief in Apple v. Motorola Appeal ~pj |
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Sunday, February 03 2013 @ 10:53 PM EST
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Joe Mullin has the full story of Newegg's fabulous win against Soverain's patent infringement claims, How Newegg crushed the “shopping cart” patent and saved online retail, along with a fabulous interview with Newegg's counsel, explaining Newegg's policy of taking patent litigation to trial. I highly recommend you read both. The short version is that Newegg, left alone as a defendant when others settled, and in Eastern Texas to boot, was found liable for patent infringement by the jury, but ordered to pay only $2.5 million, a lot less than Soverain had asked for. But the judge had refused to let the jury decide whether the patents were valid, and he decided they were and awarded Soverain an ongoing royalty as well as a damages-only trial on a 3rd patent. Newegg appealed, of course, and -- finally able to present prior art -- Soverain's patents were ruled [PDF] invalid. And so Soverain's patents, which had been used to threaten some 50 companies, went poof, thanks to Newegg's determination. I thought you might like to read the order itself, so I've done it as text for you.But I thought you might like to see what Newegg did just prior to that victory, something that is still pending. In early December, Newegg filed an
amicus brief [PDF] in the appeal of Apple v. Motorola, the Illinois litigation that Judge Richard Posner tossed out with prejudice, saying neither side had proven damages. He never let the case go to a jury. Part of what Newegg asks the Federal Circuit to do is to remind district courts of the need to take seriously their gatekeeper role and act more like Judge Posner did in that case. The brief asks for more than just the need for establishing a causal nexus. Jury awards, they argue, are preposterously high and totally unpredictable. They have some suggestions on how to bring damages awards out of the stratosphere and back to realistic earthly levels.
Wouldn't it be ironic if the courts were to respond to the smartphone patent wars -- which Apple and Microsoft got into to try to destroy Android -- by reevaluating how patent infringement damages awards are calculated, so that such litigation tactics no longer paid off and companies had to go back to innovating and competing in the marketplace instead of trying to clobber each other with questionable patents in courtrooms?
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SCO Asks the Bankruptcy Court to Let It Destroy Its Business Records ~ pj Updated |
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Sunday, February 03 2013 @ 03:45 PM EST
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SCO, now calling itself TSG, has just filed a motion [PDF] with the bankruptcy court in Delaware asking it to authorize "the abandonment, disposal, and/or destruction of certain surplus, obsolete, non-core or burdensome, property, including, without limitation, shelving, convention materials, telecommunications and computer equipment, accounting and sales documents, and business records." Ah. "And business recrods." Burdensome to whom? To whom would SCO's business records be burdensome? Not me. I hereby volunteer to pay for storage for those records, in order to preserve them. Obsolete how? Does the bankruptcy court know that SCO has a petition [PDF] before the US District Court in Utah asking the court to reopen SCO's litigation with IBM?
The excuse is money. They are paying to store them, poor dears, as of January 31, I gather, since they ask the court to authorize payments nunc pro tunc back to that date. Either that, or there's more to this story than you can find in the motion. They also ask the court to let it not inform all its creditors about this. Heh heh. Imagine how messy it could get if they all showed up asking for a computer or shelving.
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Apple v. Samsung: Magistrate Judge Paul Grewal References Tribbles in Order Re Sealing ~pj |
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Friday, February 01 2013 @ 03:27 PM EST
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More denials from the magistrate judge in Apple v. Samsung on new requests from the parties to seal documents. More sealing requests, you ask? Does this ever end? Yes, another long list, mostly denied. To the magistrate judge, the Hon. Paul Grewal, it feels like an invasion of
Tribbles -- everywhere where he looks, there are more of them:
"What tribbles are to the Starship Enterprise, Captain Kirk, and Mr.
Spock, the parties’ ever-multiplying sealing and redaction requests are
to this case, Judge Koh, and the undersigned."
I know. All of a sudden, you like him.
: )
But Apple and Samsung must be groaning. The trouble with Tribbles, of course, is that there's no seeming end to them -- "they are born pregnant" and threaten to consume all the onboard supplies, but Judge Grewal, like Spock, is immune to their effects, so he refuses most of the requests, saying over and over that the parties have failed to show in a particularized way how revealing the materials would be harmful. But as I read the list I can see how they might be, particularly because the parties are suing each other all over the place, not just in this one courtroom. Having said that, as a member of the public, I'm personally looking forward to reading every last one of them. I find these Tribbles adorably appealing.
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Federal Circuit Denies Apple's Request for Rehearing En Banc ~pj |
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Friday, February 01 2013 @ 04:15 AM EST
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Apple just lost another round. The US Court of Appeals for the Federal Circuit has denied Apple's petition for en banc review of Judge Lucy Koh's decision not to order a permanent injunction against Samsung. The court also denied Apple's motion asking for permission to file a reply brief.
Say, how's that thermonuclear war against Android working out?
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A Proposed Response to the USPTO's Topic 1 Question on Functional Language ~pj Updated |
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Thursday, January 31 2013 @ 03:22 PM EST
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In response to the USPTO's call for comments on how to enhance software patent quality, Groklaw has a draft of a response to the USPTO's Topic 1 question, on "how to improve clarity of claim boundaries that define the scope of patent protection for claims that use functional language". We'd like your input before we finalize our comment. Do you see a way to improve it? Make it clearer and more accessible to non-programmers? Any further references you think would be useful? We are going to respond to the USPTO's Topic 2 question as well, but the deadline for Topic 1 looms, so we'll start with Topic 1 for now and I'll post the Topic 2 draft later. The first roundtable panel will be February 12th, so I'd like to submit by that date.
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Judge Koh Rules in Apple v. Samsung - No Willfulness, No Enhanced Damages for Apple but No New Trial Either ~pj |
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Wednesday, January 30 2013 @ 12:20 AM EST
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The presiding judge in the Apple v. Samsung litigation in San Jose, CA, the Hon. Lucy Koh, has issued four rulings on the parties' post-trial briefs. No to a new trial for Samsung, as she views the trial as fair. No to more money for Apple. They failed to prove they were undercompensated by the jury, she writes without conscious irony. And she has ruled that Samsung did not willfully infringe. Next stop, appeals court, where we will find out if they agree with Judge Koh that the trial was fair. Meanwhile, poor Apple will have to make do with a mere $1 billion as its jury award. We'll see if that stands on appeal too. A billion dollars for infringement that was officially not willful. Your US patent law at work. How do you like it?
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Report from the Seattle Courtroom in Microsoft v. Motorola ~pj Updated |
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Monday, January 28 2013 @ 09:01 PM EST
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We had a volunteer in the courtroom for the hearing in Seattle between Microsoft and Motorola, and we have his first report. The hearing was in two parts. The first part had to do with the validity of Motorola's patents, which Microsoft is challenging. The second part was on whether Google's 2005 license agreement with MPEG LA sweeps Motorola's FRAND patents at issue in this litigation into MPEG LA's clutches and control. It's all about how much Microsoft has to pay Motorola, if anything. For background, go here and here for lots more details and context on the license agreement issue.
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MS v Motorola: The Parties File Their "Extrinsic Evidence" for Hearing on Monday in Seattle ~pj |
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Sunday, January 27 2013 @ 01:39 PM EST
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Tomorrow, Monday, Microsoft and Motorola meet in a courtroom in Seattle at 1:30 PM to argue at a hearing before the Hon. James L. Robart about the meaning of a 2005 Google-MPEG LA patent license agreement and regarding a motion for summary judgment by Microsoft. I have all the documents for you so you can see what it is all about.
Don't worry if you don't understand everything when you read them. The parties' lawyers don't understand the licenses fully either, not for sure, in that they don't agree at all on what they mean, and that's why they are in a court of law. After the parties briefed the issue of what they thought the agreement meant, the judge
asked [PDF] them to present any "extrinsic evidence" they could on how to interpret that license, "such as affidavits from MPEG LA regarding the purpose and intent of the grant-back provision", and of course, Microsoft did exactly that, and surprise, surprise, MPEG LA's president claims in a declaration [PDF] that Microsoft is exactly right in its interpretation. When Motorola asked to depose him, the judge said: Nope. No can do. The judge can ask for such evidence this late, but there's no time to, you know, verify it to make sure it is actually true and admissible. Motorola calls it hearsay and inadmissible. We haven't been covering each painful inch of this litigation, so maybe I missed it, but has this judge ruled for Motorola yet in anything? If so, email me please, and I'll add it to the article. All I know is, every time I parachute into this courtroom in Seattle, so to speak, to see how things are going, the judge has just ruled for Microsoft again.
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