Tuesday, September 13, 2016

Samsung to Supreme Court: Apple has made a "remarkable about-face" on design patent damages

This tit-for-tat took almost four years. In December 2012, Apple informed the United States International Trade Commission of what it portrayed as a "remarkable about-face" by Samsung in the form of withdrawing injunction requests in Europe. Samsung's August 29, 2016 reply brief in support of its Supreme Court appeal concerning design patent damages--thankfully published by the SCOTUSblog (PDF)--says the following about Apple's opposition:

"In its brief, Apple makes a remarkable about-face. It now admits, agreeing with Samsung and the government, that the "article of manufacture" to which a patented design is "applied" may be only a component of a product. And it now admits, agreeing with Samsung and the government, that, where the patented design is applied only to a component of a product, the total profit under Section 289 is the profit attributable to the component, not the product."

On page 36 of Apple's July 29 brief, Apple indeed says that "article of manufacture" has a broad definition ("anything made by human labor"), specifically, "that it may include a complete final product or a component thereof." Apple, hgowever, argues that this broad definition works in its favor and doesn't limit application of the total-disgorgement rule to "decorative" articles. Apple continues to argue that even highly complex, multifunctional products may fall under that rule for infringing a single design patent.

Having re-read some older documents from this litigation, I can't help but feel that Apple has indeed adjusted--or one might just say "softened"--its position as a result of the amicus curiae brief filed by the Solicitor General on behalf of the U.S. federal government.

Very closely related to this is how some of the "friends of the court" supporting Apple argued in their filings. There's something rather atypical about it when you see certain amici raise very case-specific, partly just procedural reasons for or against a decision instead of focusing more or less exclusively on a fundamental, substantive legal question. To a non-party it normally shouldn't matter too much whether a certain party did or did not present a particular kind of evidence or raise a particular kind of objection somewhere in the process. If anything like that turned out outcome-determinative, the key substantive issue in the case might not (and often would not) be adjudicated.

If an amicus curiae just wants to do one of the parties a favor, that's a different story. But the likes of Calvin Klein aren't Apple vassals. They have an interest in design patents being as powerful as possible, and the power of design patents is a more generic question than the specifics of this litigation.

Amici should care about clarification in their favor, and somehow they appear to be afraid that the Supreme Court might agree with the U.S. government on the definition of "article of manufacture"--in fact, on the broad and inclusive definition that Apple now also, suddenly, accepts.

A simplistic way to put it is that Apple and some of its amici would now content themselves with Samsung being the last victim of Judge Koh's and the Federal Circuit's interpretation of § 289, knowing that any remotely savvy litigant in future cases would know how to avoid the same problem. For Apple, winning is the only thing. And its amici primarily just don't want to lose. Another plausible explanation is that some amici believe that even a finding by the Supreme Court that the district court was too narrowminded on "article of manufacture" wouldn't affect the value of design patents too much in the public perception because people would just see that Apple gets many hundreds of millions of dollars. That would, of course, benefit trolls asserting design patents, at a minimum by showing to prospective defendants that an unapportioned disgorgement can be the ultimate outcome. The worst-case scenario makes trolls money.

We're still about four weeks away from the Supreme Court hearing, and I'll write about this case again in the meantime. For the remainder of this post I just want to focus on what's very likely (not certain though) to be the outcome-determinative issue. A few months ago I would have assumed that the meaning of "article of manufacture" would be at the center of the hearing. It still might be if that's what the justices focus on. But if the top U.S. court agrees with both parties and the U.S. federal government that "article of manufacture" can also be a component, then the question would be whether the record of this case supports one party or the other. Unsurprisingly, either party argues that the other has the burden of proof and failed to shoulder it, so the respective party could win even without a remand. With respect to the burden of proof, Apple has the U.S. government on its side. It's the only key issue on which the DoJ agreed with Apple (the rest doesn't really matter). At the October 11 hearing, the most important indication of the outcome that the justices give could be what they say about who has the burden of proof on what the appropriate "article of manufacture" in this case was.

Samsung's argument concerning the burden of proof is that patent holders generally bear the burden of proof for their claims and that § 289 differs from other disgorgement statutes that "explicitly shift burdens to defendants." Samsung also quotes from the legislative record, and the following passage suggests rather strongly that Apple had the burden of proof:

"'the patentee recovers the profit actually made on the infringing article if he can prove that profit' H.R. Rep. No. 49-966, at 3 (emphasis added)"

If the Supreme Court (or Judge Koh on remand) finds that Apple failed to identify the relevant "article of manufacture," then there won't have to be another jury trial--and the clear message to the rest of the world would be that rationality has been restored with respect to design patent damages, period.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Share with other professionals via LinkedIn:


Friday, September 9, 2016

Oracle files proposed notice of deposition of Google witnesses regarding discovery misconduct

On August 25, Oracle and Google filed sworn statements (and Oracle also filed an objection) regarding Oracle's motion for an Android-Java copyright re-retrial over alleged discovery misconduct and lies to the jury. Judge Alsup then ordered the parties to respond to each other's filings with new sworn declarations, which were due today.

To be of service to loyal readers following the case in detail, I have uploaded Google's declaration as well as Oracle's filing (a declaration as well as a proposed notice of deposition of Google witnesses) to Scribd.

Unfortunately, I don't have time, at least at the moment, to analyze these documents in detail and share any observations. However, I don't want this to be misunderstood as my positions on the issues in this case or my belief as to the most likely outcome having changed. So I'd like to explain, just quickly:

Due to my focus on two app development projects, my blogging has slowed down massively in recent years. For example, this is only my 36th post this year (with more than two thirds of the year already behind us), while I wrote a minimum of 40 posts in any given month of the year 2012. Some slowdown would obviously have resulted from the fact that many smartphone disputes have been settled, but not to this extent.

I'm working very hard right now to launch both games (one on iOS first, the other one on Android and iOS simultaneously) before Thanksgiving weekend. Both games are almost feature-complete, with a lot of the current efforts already relating to final touchup and testing. Both have taken much longer to develop than initially planned, but they've also become even better than I would have predicted at the outset--and those were ambitious projects from the beginning.

I have to focus as there still is some hard work on my part to be done, though I have recently stopped doing any coding myself. Now, after six years of "smartphone IP wars," there are only two really big cases pending: this copyright case here and the Apple v. Samsung design patent matter. As a right holder who has already invested a huge amount of money as well as "sweat equity" in software development, I care very much about Oracle v. Google, which is no longer really about APIs as much as it is about software copyright in general. As a potential future defendant against trolls, I'm deeply concerned about the prospect of an unapportioned disgorgement of profits over a design patent on a single icon or whatever other design.

The Supreme Court will hear Samsung's appeal in a month (one month and two days, to be precise). This is obviously not the time to reduce or discontinue my coverage of that matter. It will be over soon. I guess the decision will even come down before Christmas, or in January maybe.

By contrast, Oracle v. Google will take much longer. I honestly can't predict how much time I'll find to comment on it. It could be that I'll somehow manage to find the time to blog about it like in the past, especially because I disagree with 99% of everything else I read about that case, but it could also be that my next post on this case after this one will be my commentary on the final outcome after a settlement or after all appeals have been exhausted. Or anything in between those extremes. Whatever it may be, it has nothing to do with how important this matter is to software developers like me or with what I believe the legally and factually correct outcome should be.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Share with other professionals via LinkedIn:


Thursday, August 25, 2016

Oracle pushing hard for Android-Java re-retrial while Google fails to justify its lies to the jury

In litigation, the devil is often in the detail, but not always. Sometimes there are overarching issues that decide a dispute and the legal detail is simply worked out in order to reach the only result that any remotely reasonable person could consider correct. The situation surrounding Oracle's push for a re-retrial is clear: Google's expert witnesses told the opposite of the truth to Judge Alsup and the jury. In Judge Alsup's case, there is evidence that the lies were outcome-determinative because he denied Oracle's first motion for judgment as a matter of law JMOL) on that basis. And with respect to the jury, there can be no reasonable doubt that its deliberations--the details of which are not known--would have been very, very, very different if Google had been unable to base its "transformative use" and "no market harm" arguments on the claim that "Java SE runs on desktops, Android is on smartphones" (because Oracle could have pointed to the Marshmallow-Chrome project as conclusive evidence that it was a lie).

Before the re-retrial is ordered (and I'm sure it will happen, be it by order of Judge Alsup or be it the outcome of an appeal that will, if it has to be filed, be a slam dunk), some procedural details concerning what went wrong in the discovery process may have to be discussed. But at the end of the day, it doesn't really matter what Google told its lawyers. All that matters is what absolute untruths Google's expert witnesses, directed by Google's lawyers, told the judge and, especially, the jury.

Google is trying to hide behind Judge Alsup's pretrial orders that limited the scope. It can run, but it can't successfully hide. Those orders were bad and unfair in their own right. So even if Judge Alsup tried to let Google get away with it, what would happen then? The whole thing would be presented to the appeals court (which is the opposite of hostil to intellectual property right holders). After the first page and a half of an Oracle opening brief, it would already be clear that this here is not just a case about software theft but also about a stolen trial.

Judge Alsup can only make things worse for himself by adopting Google's excuses the way he once adopted Google's misinterpretation of the Sega and Sony Ninth Circuit cases. Everyone knows how that one ended.

The appeals court would simply not let a judgment stand that is based on lies of the worst kind. The expert witnesses communicated those lies to the jury, but they presumably hadn't been briefed and instructed correctly. But the bottom line was that Google, as a party, lied to the jury. Even if Judge Alsup found Google's conduct excusable, the judges above him almost certainly wouldn't.

So instead of going into detail here on how certain discovery responses allegedly came into being and why certain things were said or not said or asked or not asked, I'll just highlight three things now and then I'll show you all three documents filed today (written declarations by attorneys for both parties, and an Oracle response and objection to last week's follow-up order to the motion hearing).

  1. I wrote above that the platform-related lies were outcome-determinative with respect to the denial of Oracle's first JMOL motion. Here's a sentence from that order:

    "With respect to Factor Four, our jury could reasonably have found that use of the declaring lines of code (including their [structure, sequence and organization]) in Android caused no harm to the market for the copyrighted works, which were for desktop and laptop computers."

  2. In my previous post I wrote I had also interpreted the Ninth Circuit's Jones v. Aero/chem decision (which remanded a case with certain similarities to a district court so a hearing would be held) the way Judge Alsup outlined in last week's order. But Oracle's declaration now explains that a "hearing on the motion" was actually held in the Jones proceedings, but, Oracle's lawyers explain, "[w]hat the district court had not done was hold its contemplated hearing where evidence could be presented in order to determine whether there was discovery misconduct."

  3. Google's arguments as they try to now say that the unified Android-Chrome platform is not a "full" version of Marshmallow are ridiculous. Two particularly crazy examples: they argue that "the Google Play Store is not part of (the Marshmallow version of) Android, but is rather a separate application that is available for Android," even though everybody knows that Google contractually requires Android licensees (unless they use Android on open source terms without the right to show the green robot logo etc.) to ship the Play Store (and other proprietary Google apps) with Android. And they write that "the runtime for (the Marshmallow version of) Android that can be run inside of Chrome OS does not include the Linux Kernel at the bottom of the Android stack," even though everybody with a modicum of technical knowledge knows that the Linux kernel has its own APIs that are simply not relevant to a case about the Java APIs.

    I will continue to admire Google regardless, but this is really very bad.

So now, finally, the three documents. I'll start with Google's declaration because Google is the party that really has some 'splaining to do here, followed by Oracle's response and objection (Oracle pushes hard for a re-retrial and argues that the declaration the court requested from a Google attorney is not sufficient but much more is needed to bring the relevant facts to light) and then, finally, a declaration by an attorney for Oracle.

16-08-25 Google Attorney Declaration by Florian Mueller on Scribd

16-08-25 Oracle Response and Objection by Florian Mueller on Scribd

16-08-25 Oracle Attorney Declaration by Florian Mueller on Scribd

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Share with other professionals via LinkedIn:


Sunday, August 21, 2016

Don't blame Ars Technica for the inevitability of an Oracle v. Google Android-Java copyright re-retrial

It ain't over till it's over, and Oracle v. Google is very far from over.

At a Wednesday hearing, Judge Alsup told Google that it should have disclosed its Marshmallow Chrome project. As a follow-up to the hearing, he issued an order on Thursday, which I'll quote from and comment on below:

"By THURSDAY AUGUST 25, AT NOON, Christa Anderson, counsel for Google, shall submit a sworn statement explaining why the discovery responses referenced in Court yesterday were not updated, including the full extent to which counsel knew Google's intention to launch a full version of Marshmallow, including the Google Play Store, for Chrome OS."

This could be one last chance for Google to justify the unjustifiable and, which is what I guess is going to happen, for Google's lawyers to avoid consequences for themselves. Oracle's counsel claimed at the hearin g that "they" were "LYING" to the jury. At least that was the net effect of what happened. In a fairly recent post I quoted those lies.

But who is "they" in "they were LYING?"

The expert witnesses were instructed by Google's trial counsel. It's highly unlikely--if not simply implausible--that the expert witnesses were aware of the secretive Marshmallow Chrome project whne testifying.

The net effect of this was that the jury was being lied to. The requested declaration may shed some light on how this happened and on who has to accept responsibility. But Google and its lawyers are less interested in bringing the truth to light. What they'll try to do is to reinforce the points they made at the hearing about why they thought Marshmallow Chrome was outside the scope of the trial though the Marshmallow version of Android undoubtedly was at issue.

I'll comment on that declaration once it is filed. I presume it will be made public, at least large parts of it. For now I doubt that it will change anything with respect to the likelihood of a re-retrial. And the primary reason I doubt it is that Judge Alsup would be headed for another overruling, far worse than last time, if he denied Oracle's motion for a new trial even though the appeals court will then see very clearly that

  • Google's expert witnesses told the opposite of the truth about the single most important issue in the case (given that Marshmallow Chrome affects the "transformative use" analysis as well as the assessment of market harm) and

  • Google itself made it clear, and reporters and industry watchers clearly understood, that the integration of Marshmallow into Chrome is totally unrelated to the App Runtime for Chrome (ARC). I'll talk about the Ars Technica article and its implications further below.

In the event of an appeal, the appeals court will also get to see a list of other problems (I'm sure there would be an appeal on multiple grounds, which is also what Oracle announced after the spring retrial) and a consistent pattern of Oracle being disadvantaged by the judge. At the hearing he again sought to justify some of his decisions to limit Oracle's ability to present the full story to the jury with case management arguments. I've been watching this case for more than six years now and while Judge Alsup has put case management above the truth on various occasions, he has not even been perfectly consistent (for example, he didn't care in 2012 about wasting jury time instead of firstly ruling on copyrightability but then bifurcated merits and damages on remand) except that his case management decisions have always helped Google and harmed Oracle. That kind of consistency would also be easy for the appeals court to see, and let's not forget that the Federal Circuit is generally quite sympathetic to intellectual property right holders trying to enforce their rights against infringers.

"By the same date and time, Annette Hurst, counsel for Oracle, shall submit a sworn statement setting forth, after full inquiry, the full extent to which Oracle neglected to update its discovery responses by reason, in whole or in part, of one or more rulings by the judge."

The word "neglected" in the above passage is a bit strange. All dictionary definitions of the word show that it has a very negative connotation in terms of a failure to do something a careful person should have done. A non-judgmental term would have been "decided not [to update]" or something like that. He certainly was non-judgmental in the paragraph quoted further above concerning Google's statement, though in Google's case it's now clear that something was not disclosed that should have been disclosed, while in Oracle's case it's, at best, hypothetical (it's possible that no such thing exists at all but, above all, there doesn't appear to be the slightest indication of any wrongdoing). But I've seen far worse things in connection with this case. Maybe I'm just being hypersensitive after all that has already gone awry. (Again, I'll try my best to look at the proceedings relating to a re-retrial, unless Judge Alsup denies it and the appeals court orders it (in which case it would be absolutely impossible to have too much faith in his fairness), as if nothing had gone wrong before.)

Can this part help Google? I doubt this, too. At most Oracle's response might bring up stuff that would have to be discussed at a re-retrial. But the question of whether a re-retrial is necessary has everything to do with Google's conduct and nothing with Oracle's conduct.

"The same statement shall explain why counsel repeatedly represented that the Jones v. Aero/chem decision required an 'evidentiary hearing' when that decision, as it turns out, made no mention of an 'evidentiary hearing' and instead remanded because no 'hearing' or other consideration at all had been given to the issue of discovery conduct by the district judge."

Despite my other concerns and reservations, I took a quick look at that decision and I understand that decision and the circumstances leading to it just the way Judge Alsup also describes that precedent. What I don't know is what exactly Oracle's counsel said about that case at the hearing. So let's see what Oracle files.

This, again, is nothing that can have any bearing on the pressing need for a re-retrial.

"By the same date, counsel shall meet and confer and advise the Court whether the form of judgment should be amended to reflect that it is not a final judgment but a Rule 52(c) judgment on partial findings, given that Oracle is entitled to challenge further uses of Android herein."

This paragraph here is hard to interpret because everything depends on what will happen with respect to Google's decision to keep the Marshmallow Chrome project secret from Oracle's lawyers. What's certain, however, is that it reflects the fact this dispute could get substantially broader soon.

I don't have the slightest idea of how Oracle and Google's lawyers will address this one. In my opinion, it was a final judgment that must be set aside because Marshmallow was part of the case and the jury was being lied to. However, if the case continues, it might indeed make sense to present everything to the jury including other devices than just smartphones. That is more of a question of admissible evidence to me than anything else.

Ars Technica

In my previous post I already linked to and quoted from the Ars Technica article Google's counsel presented at the Wednesday motion hearing.

Oracle's counsel called Ars Technica "the premier publication in this industry." That's hyperbole, and I attribute it to two factors. One, she obviously wanted to give that article maximum weight at the motion hearing. Two, she had written an op-ed for Ars Technica after the spring retrial.

Ars is certainly influential and widely read. And one could probably define a set of criteria based on which it would be number one. But it's not number one in this industry by all measures and standards. Also, its coverage of Oracle v. Google is neither enlightening nor fair.

Interestingly, when the author of that Ars Technica article heard about how Oracle tried to use it at the trial, he immediately felt compelled to portray another story, but for lack of knowledge about what was really at issue in the motion hearing, he actually just confirmed again why his article helps Oracle:

It is all about the underpinnings. It's about the inner workings.

That's because the App Runtime for Chrome (ARC), which according to Google could not even have passed its Android compatibility test, really was separate from Android, while the Marshmallow Chrome project serves as a great unifier.

What shocked Oracle's lawyers? Not the fact that Google would in some way, shape or form make Android apps run on Chrome. That was old news. The shocker was that Google would actually incorporate the Android Marshmallow APIs into Chrome: APIs that contain APIs Google should have licensed from Oracle a long time ago.

Many people out there have been misled. If all software developers truly understood what this case is about and what it is not (for example, the retrial was not about whether APIs are protected but just about whether Google's trial counsel could manipulate a jury by presenting witnesses who made it sound like everything related to Java, especially the APIs, was for the taking), Ars Technica's Ron Amadeo wouldn't have had to try to put his article into perspective. I'll talk about implications for developers again on some other occasion. The timing of that will very much depend on procedures. I, for my part, would be shocked if the request for a re-retrial was denied.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Share with other professionals via LinkedIn:


Wednesday, August 17, 2016

Judge may order a new Oracle v. Google retrial over evidence unwisely withheld by Google

Thanks to Twitter coverage by Mike Swift (MLex), Sarah Jeong (Motherboard, EFF) and Ross Todd (The Recorder), I just had the opportunity to "follow" the Oracle v. Google post-trial motion hearing in the Northern District of California. Since I already shared my observations, opinions and predictions last week, I can keep this post here brief:

  • As expected, Judge Alsup is not going to agree with Oracle on JMOL. He continues to believe that the jury had a reasonable basis for reaching its verdict based on the evidence and testimony it saw/heard.

  • I'm pleased to see that Judge Alsup, Google and Oracle all affirmatively agreed with me today that Oracle could, as a last resort, bring a new copyright infringement lawsuit to raise issues that were kept out of this year's retrial. Such consensus is unusual. Google tried to somehow nuance its concession by saying "collateral estoppel issues aside," but it's unclear how that would work--not just to me but, more importantly, also to Judge Alsup.

  • Based on the quotes I read on Twitter, I initially felt that Judge Alsup was not quite inclined to order a new trial. But Oracle's counsel, Orrick's Annette Hurst, didn't give up. She pointed to how Google's lawyers had "lied" to the jury and committed "fraud" by centering a transformative-use argument around differences between personal computers and smartphones. She also dealt a blow to Google's argument that the integration of the Marshmallow APIs into Chrome OS was essentially just the same as the Android App Runtime for Chrome (ARC), and in this context she read parts of this Ars Technica article aloud. Here's an unbelievably powerful passage that makes Google's ARC-based excuse downright ridiculous:

    "The real shocker here is that this release of Google Play on Chrome OS is not based on ARC. Zelidrag Hornung, the engineering director of Chrome & Android, filled us in on the details: "We have redone this completely differently. There are no connecting points between the two projects (ARC and today's announcement) from an implementation perspective."

  • Judge Alsup told Google that at the time it decided not to disclose its Marshmallow Chrome project, "this was possibly an important point." And while he made it clear that he wasn't yet at the point of expressing his position on the new trial motion, a re-retrial definitely is a possibility, especially since he also told Google's counsel: "If I had been in your position, I would have disclosed it."

    It's also important to consider that Marshmallow was part of the retrial and the jury verdict was not about particular devices but about Android versions up to and including Marshmallow. I noted on Twitter that this is a key difference between Oracle v. Google and the various Apple v. Samsung trials, where juries made device-specific determinations on the merits and on damages.

All in all, the things I read on Twitter suggest that Judge Alsup was a whole lot more evenhanded today than at any point during the retrial and its preparations. I do believe that this "fair use" issue should never have been put before a jury in the first place, but if a new trial is ordered and the Marshmallow-related evidence becomes part of the case, even Judge Alsup's JMOL analysis (under those new circumstances) may be a different one than so far. What I consider less important is that he appears to consider a Google motion for fees "greedy" and said he might just deny it if the parties couldn't reach an agreement on this one. A motion about a few million dollars of expenses is just a sideshow in the context of a multi-billion dollar case. But the Marshmallow Chrome issue is absolutely pivotal, and in case Judge Alsup orders a re-retrial, it will be a whole new ball game and in that case I'll form my opinion on each and every decision before, during and after the re-retrial as if the things that went wrong last time had never happened in the first place. Yes, the spring 2016 retrial may soon be water under the bridge, and a correct outcome may be possible even prior to an appeal.

In retrospect it's really hard to understand what Google did here. And even harder to justify.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Share with other professionals via LinkedIn:


Monday, August 8, 2016

Companies, associations and professors join 111 designers in supporting Apple against Samsung

[UPDATE] An earlier version of this post was based on the (false) assumption that last week's widely-reported amicus brief by 111 designers and design educators was the only amicus brief supporting Apple. This misperception was due to the delay with which both the court's own website and the SCOTUSblog get updated. Actually, a total of 10 briefs were filed in support of Apple. Furthermore, the first version of this post noted an "artsy font" used on the title page of the designers' brief. However, that font was only used in the version published on Apple's website. I've now updated this post and may still have been first to upload (to Scribd) all of these amicus briefs. [/UPDATE]

An amicus curiae brief filed with the Supreme Court by 111 designers and design educators in support of Apple's design patent damages position against Samsung last week drew lots of attention. Understandably so, as Apple indeed managed to get support from a group that included some very famous people such as Calvin Klein and Norman Foster.

The brief was authored by a team of Orrick appellate lawyers.

Two months ago I commented on various amicus briefs filed in support of Samsung as well as some filed in support of neither party, most notably the position taken by the U.S. government. In that post I wrote that Apple might still orchestrate something big to show support for its position that the infringement of a design patent entitles its holder to an unapportioned disgorgement of the infringer's profits made with multifunctional, complex products. But I expressed doubts.

While Apple has clearly exceeded my expectations in terms of the individuals supporting its cause (great work, no doubt), support from companies is about in line with my expectations, especially since Apple's position appears to be an outlier position among large U.S. technology companies. The following companies and industry bodies support Samsung: The Internet Association, The Software & Information Industry Association, Dell, eBay, Facebook, Garmin, Google, HP, Lenovo, Motorola Mobility, Newegg, Pegasystems, Red Hat, SAS Institute, Varian Medical Systems, Vizio; and the Computer & Communications Industry Association, which has been a thought leader on this issue.

Apple garnered support from companies that are mostly non-tech/low-tech: Crocs, Nordock, Tiffany, Bison Designs, Deckers Outdoor Corporation, Design Ideas, Kohler, KRC Capital, Lutron Electronics, Method Produts, Novo Nordisk, Nuelle, Nuvasive, Oakley, Sun Products, SZ DJI Technology, Thule Group, and Cleveland Golf. Many of those companies operate in industries where a product is typically covered by only one design patent, and products with a very substantial part of their value lying in designs.

The only industry association backing Apple is ACT, which has always positioned itself as a voice of small innovative businesses though its funding came from large organizations, with smaller companies being offered free memberships. A few years ago ACT all of a sudden started positioning/portraying itself as an association of app developers. I'm an app developers and don't see my interests being represented by them, and especially not in this context here.

Companies (and industry associations) are really important in a case that has huge economic implications. Individuals, no matter how famous and well-respected, can say whatever they want but they don't have to defend against design patent infringement claims by others. At most, the companies they're affiliated with will have to defend, but those companies can then disown whatever the individuals wrote in their personal filing. Take Calvin Klein, for example: he sold his company a decade and a half ago.

Not only have Apple's lawyers been unable to counterbalance Samsung's tremendous support from industry but they also have far fewer law professors on their side. There's 50 of them in Samsung's camp (a number that has increased at every stage of proceeding). Apple has five of them, and while it's not just about a headcount, there's really no basis for a claim that those five counterbalance Samsung's 50. However, the notoriously right holder-friendly American Intellectual Property Law Association (AIPLA) also supports Apple, as does a local organization of the same kind, the Boston Patent Law Association.

Let's not forget about another important group of amici: public-interest advocates. I'm sometimes skeptical of some of those organizations and of what they write, but if a party has zero support from that group and no support from industry, then it could just be that its positions run counter to the public interest. Designers and IP lawyers have their professional interests just like Apple is pursuing certain objectives in this litigation. But what's good for the economy at large? For society? Hardly any neutral party appears to agree with Apple, while Samsung got support from representatives of minorities and rural communities, the Electronic Frontier Foundation,Public Knowledge, R Street Institute, American Antitrust Institute, IP Justice, Engine Advocacy, and the Software Freedom Law Center.

Obviously, amicus curiae briefs are just a factor that can influence decisions and the public perception, but amici don't make the law. I'll talk about the legal arguments made by Apple and its amici later this month. For now I just wanted to share my observations on who supports, and especially who doesn't support, Apple's positions in this case. The PR impact of the 111 designers' brief is one story. The actual weight thrown behind Apple's legal position is another. There's more weight here than just the designers, but for the reasons outlined above, Samsung has far more (and far more credible) support from large technology companies.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Share with other professionals via LinkedIn:


Google's integration of Android into Chrome makes a third Android-Java copyright trial 100% inevitable

About a month ago, Oracle renewed its motion for judgment as a matter of law against Google and brought a Rule 59 motion for a new trial. While such post-trial motions are common and expected in high-stakes IP cases, there's much more to it here.

Unless the parties settle, it's not just likely or very likely, but absolutely certain, that there will be (at least) a third Oracle v. Google Android-Java copyright trial.

Trust me: there will be one. The only question is whether it will result from

  • a potential decision by Judge Alsup that Google is guilty of serious discovery misconduct,

  • the appeals court overruling the trial judge again, or

  • a new lawsuit that Oracle would have to bring according to Google's position.

The first of these possibilities is much more likely than I initially thought. Judge Alsup will hold a post-trial motion hearing next week. It's a safe guess that he won't agree with Oracle on JMOL. It's also a safe guess that he'll disagree with various Rule 59 arguments that are based on his own pre-trial decisions. He's afraid of Oracle's appeal (this much is sure based on the way he denied JMOL a couple of months ago) but he's not going to say that he messed up. It's hard to think of any judge who would do that but even harder to think of a judge less likely to do it than him. But Google's misconduct actually provides him with a nice exit strategy. He can avoid the potentially huge embarrassment of being overruled twice in the same case by judges who are more powerful and more IP-savvy than him, and put the blame on Google.

I have no idea whether he will do that, but it would be a very appropriate and rational thing to do. And it would be convenient, too, because he could correct some of his pre-trial errors very elegantly without having to backtrack: it would simply be a whole new ball game, especially with respect to the admissibility of evidence relating to Android's non-mobile target markets. Even the question of whether a bifurcated trial prejudiced Oracle (in my opinion, it did, even massively) could be avoided and the third trial could, for whatever case management reason, be a single trial. Furthermore, evidence that Oracle wasn't allowed to use last time to counter some utterly dishonest statements by Google's lawyers could also be admitted in the event Google were to make certain statements again at the third trial.

Judge Alsup can either seize this splendid opportunity to correct some of his mistakes or he can make another huge mistake by letting Google's lawyers get away with what they've done, which is so bad that Oracle would be very likely to get a new trial on appeal (if it doesn't succeed on JMOL anyway, which it might and in my view should, but for the appeals court it would probably also be easier to just look at the integration of Android into Chrome and simply remand for a new trial).

For the huge, game-changing implications of Google's integration of Android Marshmallow into Chrome (i.e., Android is competing with Java SE on desktop and laptop computers, not just in mobile markets), may I refer you to my post on Oracle's Rule 59 motion. Simply put, the whole "fair use" analysis changes, especially with respect to market harm and "transformative" use.

In its July 20 opposition filing, Google essentially argued that it had no obligation to make any disclosures regarding the Marshmallow/Chrome project because it had provided information regarding the Google App Runtime for Chrome (ARC). Google basically said that the integration of Marshmallow into Chrome was just an evolution of ARC ("update"), which Oracle knew about and which was "outside the scope of the retrial." A week later, however, Oracle's lawyers filed a very powerful reply brief that exposes Google's ARC-related arguments as extremely flimsy (this post continues below the document):

16-07-27 Oracle Reply in Support of Motion for New Trial by Florian Mueller on Scribd

The first thing to consider here is that Marshmallow was part of the trial (in a February 16 follow-up trial order, Judge Alsup wrote that "Marshmallow shall be added to the named versions of Android to be in play at the trial") and there was no question about whether it contained the asserted material: Google conceded this much, and the jury was instructed accordingly ("it has already been established that [Marshmallow] used [...] the declaring code and [SSO: structure, sequence and organization] of 37 Java API packages"). That already makes it a very different situation from the one concerning ARC.

On the technical side, the most important difference is, as Oracle's reply brief points out, that ARC could not have passed Google's own Android compatibility test because lots of Android apps wouldn't work with it, and even those that do wouldn't run right away without modifications.

Oracle also notes that fact discovery closed before the orders on trial scope that Google claims put the Marshmallow/Chrome project outside the trial scope. But Google couldn't know at the time what the subsequent orders would be.

What I find disgusting is that Google's technical and economic experts told the jury things that make absolutely no sense in light of Marshmallow/Chrome:

  • Google's only technical expert at trial, Dr. Astrachan, said that Android includes "libraries [that] are designed specifically for the mobile platform, which is a different platform from where the 37 [Java SE] API packages came from." He meant that desktop and laptop computers are a different type of platform. But that's exactly the Chrome market.

  • Similarly, Google's economist Dr. Leonard said "the two products are on very different devices [...] Java SE is on personal computers. Android [...] is on smartphones." In his closing argument, Google's counsel said the same: "Android is not a substitute. Java SE is on personal computers; Android is on smartphones."

There cannot be the slightest doubt that the trial could have had a different result if Oracle had been able to counter those untruths with references to Marshmallow/Chrome.

I look forward to whatever the court reporters attending next week's motion hearing will observe. There's a good chance that Judge Alsup will be very angry with Google. If he is, then a retrial will loom large.

If not, Oracle has another silver bullet for its appeal.

But if everyone told Oracle that Marshmallow/Chrome was outside the scope of that trial, Oracle could and certainly (knowing that Oracle never quits in those kinds of disputes) would file a new complaint over newer Android versions. That would also lead to a third Oracle v. Google trial, though things would take a bit longer then.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Share with other professionals via LinkedIn: