Legal Archive

"Apple vs. Samsung initially ended with a billion-dollar verdict in favor of Apple, but there have been plenty of wrinkles since. This week brought about another, as Nokia filed an amicus brief on behalf of Apple, Inc. in the US Court of Appeals for the Federal Circuit. In the brief filed Monday, Nokia asked the court to permit permanent injunctions on the sale of Samsung phones that were found to infringe Apple's patents." In the meantime, the latest comScore figures for the US show that Windows Phone's market share actually declined during the launch of Windows Phone 8. It's pretty clear that, combined with the disappointing quarterly results for Nokia, the company is setting itself up for the future. In this future, Nokia's patent portfolio is worth more than their actual phone business, and as such, Nokia can't do anything but support Apple in this case, else the value of their portfolio goes down.

"The European Commission has imposed a EUR 561 million fine on Microsoft for failing to comply with its commitments to offer users a browser choice screen enabling them to easily choose their preferred web browser. In 2009, the Commission had made these commitments legally binding on Microsoft until 2014. In today's decision, the Commission finds that Microsoft failed to roll out the browser choice screen with its Windows 7 Service Pack 1 from May 2011 until July 2012. 15 million Windows users in the EU therefore did not see the choice screen during this period. Microsoft has acknowledged that the choice screen was not displayed during that time." Burn.

"This means that people can no longer get convicted for violating the copyright monopoly alone. The court just declared it illegal for any court in Europe to convict somebody for breaking the copyright monopoly law when sharing culture, only on the merits of breaking the law. A court that tries somebody for violating the copyright monopoly must now also show that a conviction is necessary to defend democracy itself in order to convict. This is a considerably higher bar to meet." Well, that's progress, I guess.

"The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless productivity is identified with the number of patents awarded - which, as evidence shows, has no correlation with measured productivity. Both theory and evidence suggest that while patents can have a partial equilibrium effect of improving incentives to invent, the general equilibrium effect on innovation can be negative. A properly designed patent system might serve to increase innovation at a certain time and place. Unfortunately, the political economy of government-operated patent systems indicates that such systems are susceptible to pressures that cause the ill effects of patents to grow over time. Our preferred policy solution is to abolish patents entirely and to find other legislative instruments, less open to lobbying and rent seeking, to foster innovation when there is clear evidence that laissez-faire undersupplies it. However, if that policy change seems too large to swallow, we discuss in the conclusion a set of partial reforms that could be implemented." Written by economics professors Michelle Boldrin and David K. Levine, published in the winter issue of the Journal of Economic Perspectives. Via John Siracusa.

"As was widely expected, the Federal Trade Commission announced this morning that it has reached a settlement agreement with Google, bringing the commission's antitrust investigations into the search giant to a close. Two different areas of Google's business were being explored: the way it prioritized search results, and the way that Google had sought injunctions against devices that were thought to have infringed upon standards-essential patents from Motorola." Would have loved to see the FRAND system crumble, though. Let the patent mess explode - to change the system, we need disruption, not appeasement.

"The Chinese government issued new rules on Friday requiring Internet users to provide their real names to service providers, while assigning Internet companies greater responsibility for deleting forbidden postings and reporting them to the authorities." The crazy thing is not that China is tightening its control over the internet. No, the crazy thing is that if it were up to our own politicians, western governments should do the same.

"America's broken patent system needs major reform to protect innovators and the public. Today, the Electronic Frontier Foundation is announcing a major new boost to its patent work: a half-million dollars in funding from entrepreneur Mark Cuban and game developer Markus 'Notch' Persson." Notch putting his money where his mouth is. Classy guy. Even if a creeper literally just blew up the front of my house.

Lots of news about Apple vs. Samsung (and vice versa) in both the US and Europe today. In the US, judge Koh dealth two blows: one to Samsung (no retrial based on juror misconduct), the other to Apple (no permanent sales ban). In Europe, in the meantime, Samsung announced it will cease all lawsuits injunction requests against Apple... But only in Europe.

Another patent fight is taking shape, this time between the two struggling smartphone makers RIM and Nokia. "Nokia has asked a California court to enforce an arbitration award that would prevent Research In Motion from selling products with wireless LAN capabilities until the companies can agree on patent royalty rates."

Interesting news in the middle of the night: Apple and HTC have announced they've settled all their patent disputes, bringing an end to all running lawsuits between the two companies. The companies signed a ten-year cross-licensing deal. Considering Apple's legal assault on Android hasn't been going particularly well, this really shouldn't come as a surprise.

"Samsung's got to be pretty happy right about now, after learning that the US Patent and Trademark Office has filed an initial ruling declaring Apple's rubber-banding patent invalid, as reported by FOSS Patents. The news was good enough that Samsung decided to share it with friends, that is, if US Federal Judge Lucy Koh can be considered a friend. According to the ruling, which Florian Mueller says isn't final, all 20 claims of Apple's patent (No. 7,469,381) are now invalid, including one that the iPhone maker had leveraged against Samsung in their recent legal showdown. The office found that Apple's invention was either anticipated by prior art (from Lira and Ording) or, in some cases, simply obvious." One down, 93485763827563856 to go.

"One of the exhibits Samsung has now made public tells an interesting tale. It's the slide presentation that Apple showed Samsung when it first tried (and failed) to get Samsung to license Apple's patents prior to the start of litigation. While some of the numbers were earlier reported on when the exhibit was used at trial, the slides themselves provide more data - specifically on the difference between what Apple wanted Samsung to pay for Windows phones and for Android phones. The slides punch huge holes in Apple's FRAND arguments. Apple and Microsoft complain to regulators about FRAND rates being excessive and oppressive at approximately $6 per unit, or 2.4%; but the Apple offer was not only at a much higher rate, it targeted Android in a way that seems deliberately designed to destroy its ability to compete in the marketplace." Eagerly awaiting the 45 paragraph comment explaining how this is completely fair and not hypocritical at all. Bonus points if it includes something about Eric Schmidt being on Apple's board, and, double bonus point if it mentions one of the QWERTY Android prototypes. Mega Epic Bonus if it somehow manages to draw a line from Edison, Tesla, to Jobs.

The failing US patent system is getting ever more mainstream - The New York Times is running a long and details piece on the failings of the system, especially in relation to the technology industry most of us hold so dearly. Most of the stuff in there isn't new to us - but there's two things in the article I want to highlight.

Well known judge Richard Posner scores another home run. "I am concerned that both patent and copyright protection, though particularly the former, may be excessive. To evaluate optimal patent protection for an invention, one has to consider both the cost of inventing and the cost of copying; the higher the ratio of the former to the latter, the greater the optimal patent protection for the inventor."