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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.What's New
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Google is seeking to immediately knock out one of the remaining six patents asserted in this case, this time by summary judgment. In a letter to the court filed yesterday Google asks that claim 14 of U.S. Patent No. 6,192,476 be found invalid on the grounds that it claims unpatentable subject matter. (715 [PDF; Text])
Google's argument stems from the court's determination a few weeks ago that the term "computer-readable medium" includes transmission media. (Google Wins on Claim Construction Issues) Google asserts that, by that interpretation, the claim became invalid. Google points to the finding in In re Nuitjen:
read more (1338 words) 29 comments
With Google's acquisition of Motorola Mobility there have been a number of competitors claiming Google (Motorola) is acting unfairly in its licensing of patents related to the H.264 and 3G/UMTS standards.
Among the complaining parties are Microsoft and Apple, both of which claim that the Motorola Mobility approach to FRAND (fair reasonable and non-discriminatory) licensing under the respective standards is anything but fair and reasonable. The fight is over the fact that Motorola Mobility (and now Google) is asking a 2.25% royalty for a single patent in each of these instances.
While it is the epitome of chutzpah for Apple and Microsoft to complain about the patent licensing behavior of any other company, that does little to clarify the issues involved in patent licensing related to standards. This article will walk through those issues so we can all have a better understanding of such licensing and why different companies perceive the terms "fair and reasonable" from very different perspectives, depending on whose ox is being gored.
read more (2008 words) 247 comments
A number of comments to a recent article on the Microsoft v. Barnes & Noble reveal some confusion on the issues of damages in patent infringement actions and the role that patent marking and notice play in determining when damages begin to accrue. This is not really a hard issue to understand, so let's start at the beginning. What do the U.S. statutes covering patents say:
Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action.
In the case of claims against the United States Government for use of a patented invention, the period before bringing suit, up to six years, between the date of receipt of a written claim for compensation by the department or agency of the Government having authority to settle such claim, and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as a part of the period referred to in the preceding paragraph.
35 U.S.C. § 287 Limitation on damages and other remedies; marking and notice
read more (743 words) 125 comments
Microsoft has filed its Memorandum in Support [PDF] of its Renewed Motion for Judgment as a Matter of Law in Novell v. Microsoft, the antitrust litigation Novell brought regarding WordPerfect.
It's 137 pages long. Yes. 137 pages. So somebody nominate me for sainthood, because I have done it as text for you, including all 77 footnotes, all of which add up to Microsoft saying it didn't do anything wrong to Novell, and it didn't owe Novell anything anyhow, so no reasonable jury could find for Novell, and even if Novell thinks Microsoft did some things a little harsh or deceptive, that's not covered by antitrust law. So Microsoft suggests that the judge bypass a second jury trial and just find for Microsoft as a matter of law.
If you've ever wondered why Microsoft never seems to change for the better, I think this document explains it. They feel antitrust law lets them do the things they do. It would like to get off on a technicality, or many technicalities, so it offers more than one the judge can hang his hat on if he's so inclined. And Microsoft clearly believes he just might be. 'Unreasonable' jurors might not know the law and how much a monopolist can get away with, but the judge knows. And he even expressed at trial that Novell's case was weak, so why go through a second trial?
read more (62095 words) 48 comments
Julie Zhuo, a product design manager at Facebook, wrote an opinion piece for the New York Times in November 2010, but it's the first I saw it, Where Anonymity Breeds Contempt, arguing that anonymous speech encourages trolling and so it should not be allowed in comments on the Internet:
read more (2766 words) 159 comments
There's been a slight change in the hearing date for the upcoming SCO v IBM hearing regarding SCO's desire to partially reopen the case. The new date is April 23, 2012 at 2:30 Utah time in Room 246. It's set to be heard by Judge Dee Benson, the new judge assigned, who, I gather, was unable to find a way to recuse himself.
read more (1007 words) 55 comments
As a lawyer you do the best you can to represent your client. You advise them what to say, what not to say, and basically, to say nothing unless they are asked a direct question. But sometimes the truth just comes out anyway. Thanks to Oracle engineer Hinkmond Wong, we now learn what the Oracle (Sun) Java engineers actually believe about Android: IT'S NOT JAVA!
This all came out in Wong's blog . Wong is one of the Oracle Java engineers identified as contributing to Dr. Cockburn's third attempt at a damages report. In the next few days Wong is going to be deposed by Google. And guess what they are going to ask him about. Probably this:
read more (159 words) 271 comments
Remember when I told you that the initial ruling dismissing Barnes & Noble's patent misuse defense was not the end of the story? Here's the next chapter: Barnes & Noble has now filed a petition for review of the order on the following bases:
Consistent with the Federal Circuit’s en banc decision in Princo Corp. v. International Trade Commission, 616 F.3d 1318 (Fed. Cir. 2010), Barnes & Noble alleges and has adduced evidence demonstrating that Complainant Microsoft Corporation (“Microsoft”) has impermissibly “leveraged” or broadened the scope of the patents-in-suit through its “Android licensing program”.
read more (16079 words) 77 comments
That didn't take long. Less than 24 hours after receiving the joint letter from the parties with regard to witnesses relied upon by Dr. Cockburn in preparing the third version of his damages report (711 [PDF; Text]), Judge Alsup has ordered (712 [PDF; Text]) Oracle to produce all five of the engineers referenced in the report for deposition by Google. We had anticipated that he would allow Google to depose Dr. Reinhold and perhaps two of the other four engineers, but Judge Alsup told Oracle to serve them all up. And not for a mere two hours apiece but for a total of 14 hours over two days, the time to be allocated by Google as it desires.
read more (486 words) 86 comments
Although we have yet to have the opportunity to see the third Cockburn report, Google has seen it and in a joint letter to the Court (711 [PDF; Text]) requests the opportunity to depose a number of the (new) individuals who contributed to the revised report. The question raised is, "Who is a contributor?"
Google argues that anyone named in the report as contributing to the report is fair game, especially if they were never previously identified as a witness by Oracle and Google never had an opportunity to depose them. Oracle argues that some contributors were not contributors at all and refuses to produce four of those individuals for deposition.
read more (3596 words) 81 comments
The highest court on the continent, the European Court of Justice, ruled this morning that social networks cannot be compelled to install filters, monitoring or blocking systems to prevent the illegal trading of music, films, and other copyrighted material.
[PJ: From the ruling: "Consequently, it must be held that, in adopting the injunction requiring the hosting service provider to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other (see, by analogy, Scarlet Extended, paragraph 53)."] - Zack Whittaker, ZDNet
Proview says any ban of iPad exports hard to imposeA debt-laden Chinese technology firm seeking to ban all shipments of Apple's popular iPad tablet into and out of the country has been told that China's customs authorities are unlikely to intervene in the trademark battle.
Proview Technology, the Chinese company embroiled in a legal battle with Apple Inc over the iPad name, said on Wednesday that customs authorities had told it that the sheer size of the market and the popularity of iPads would make it difficult to impose a ban. - Reuters
Securing Corporate Data in a Law Office's Computer Network“Attackers go where the money is,” says Friedberg. These days, law firms should assume that hackers will infiltrate their network, and they should identify which digital assets are most at risk and put the most security around those areas, he says....
“The issue ends up being that the lawyers are so oriented to the convenient use of computers,” Friedberg notes. “It presents real challenges to pervasively establish a culture of security, because convenience has to be subjugated to secure computer use.” - Catherine Dunn, Law.com
AT&T Must Let Beastie Boy Vote on Net Neutrality, SEC SaysThe SEC’s Division of Corporation Finance had found in past years that similar net-neutrality proposals fell under the category of day-to-day business operations and that companies could exclude them from shareholder voting. With the agency changing its position, the previous exclusion no longer applies.
“Net neutrality is the free speech issue of our time and today’s decision by the SEC was a big win in the fight to maintain a free and open Internet,” Senator Al Franken, a Minnesota Democrat, said in a statement. - Bloomberg/BusinessWeek
Jonathan Schwartz unveils startup, talks about final days at SunThe answer was quite unlike what Schwartz had done before: a subscription-based health care site that would allow customers to keep track of the medical needs of the people for whom they care. The concept may sound simple, but the need is significant, said Schwartz, who has two kids and two parents in their 80s. How do you keep track of their medications, their medical visits, even their legal documents, beyond a mishmash of Word documents and sticky notes?
The answer, Schwartz believes, is his site, whose simple interface enables easy information tracking and sharing. - Jim Kerstetter, CNET
Direct and Indirect CausalityThe BSD-ish view is systemic, believing that any innovative user of the code will want to add their improvements to the commons so that the community around the commons will maintain them collectively, freeing the innovator to spend time elsewhere. In this view, proprietary uses of software will eventually result in contribution to the commons since to behave otherwise is less effective.
This is the view the Apache Software Foundation best expresses, and it clearly works well for them.
[PJ: That's not the way to think about it. Projects can stay healthy regardless of the license. The question is, what happens to the code, freely available to the world, not just the project, when those outside the project adopt it? If you look at BSD, look at Apple. They definitely didn't decide to contribute back in the way naively expected, and instead they decided to give back very little and instead to put a lot of proprietary code on top. So the BSD theory proved unrealistic. If the code was GPL'd, they would have had to contribute back. So the real question isn't about the health of a project. It's about the health of the code. Use what you like, but it's important not to pretend that they are just two roads leading to the same goal. They are not.] - Simon Phipps
Statement on freedom of expression ... and ACTA (PDF)Copyright protection can never be a justification for eliminating freedom of expression or freedom of information. That is why for me, blocking the Internet is never an option.... I thereforee welcome the intention of several members of the European Parliament to ask the European Court of Justice for a legal opinion to clarify that the ACTA agreement cannot limit freedom of expression and freedom of the Internet. - Viviane Reding, VP EU Commission MS complains about 2.25% , but asking 3.8-6.3% of Nook price
cdaffara B&N lawsuit: MS asks $7.50-$12.50 per Android device (http://t.co/K8pBvyKm) =3.8%-6.3% of Nook price. And they contest Moto 2.25% request. - Carlo Daffara, Twitter Heartland Institute claims fraud after leak of climate change documents
The free-market Heartland Institute has moved to contain the damage from explosive revelations about its efforts to discredit climate change and alter the teaching of science in schools, claiming on Wednesday it was the victim of theft and forgery.
In its first detailed response to Tuesday's leak of documents purporting to show a well-organised campaign to cast doubt on climate change, the institute warned in a statement posted on its website: "Some of these documents were stolen from Heartland, at least one is a fake, and some may have been altered."
However, the statement from Heartland communications director, Jim Lakely, identifies only one of the eight documents posted online on Tuesday night by the DeSmogBlog website as a "total fake". That document, two pages headlined "Confidential Memo: Heartland Climate Strategy", largely duplicates information contained in the other documents.- The Guardian
Why the Patent System Doesn't Play Well with Software: If Eolas Went the Other WaySoftware patents are nearly five times as likely to be litigated as other patents. In fact, lawsuits surrounding software patents have more than tripled since 1999. What does that mean? It means that if you do business in America, and it involves any even arguably patented software, you'd better have a serious legal budget. Take, for instance, Spotify, the popular music streaming service that came to the States in late 2011. A few weeks after it launched—boom!—Spotify is facing a patent lawsuit (the kind of suit that will easily cost each side millions of dollars). Not only is this bad for U.S. businesses, but it drives innovators out of the country, which is bad for all of us, not least of all because it sends jobs abroad. Increasingly, patents serve as a dangerous tax on innovation in America, especially when it comes to software. And domestically this means that instead of helping grow R & D or engineering departments at software companies, software patents increasingly help grow legal departments.
So what do you do if you’re a small inventor, working in your free time on coding new software, and all of a sudden you’re threatened with a patent suit? Unfortunately, time and again, we hear of folks closing up shop. When part-time inventors without financial backing, or tinkerers in their free time, stop inventing the next Facebook or tomorrow’s Twitter, we’re all worse off. And right now, that’s the threat software patents pose. - Julie Samuels, EEF
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