Saturday, January 20, 2018

EU Commission refuses to face reality about Apple's record repatriation tax payment

As I wrote more than two weeks ago, one of the key conflicts to watch in 2018 is The (failed) EU vs. Silicon Valley. Long gone--really long--are the days when European technology companies were among the leading ones in the world. The more digital the world becomes, the more Europe gets marginalized in the most important fields of technology--fields in which Mediterranean statism never succeeded in the first place.

On Wednesday, Apple announced what is a huge victory President Trump and Republicans in Congress: a $350 billion contribution to the U.S. economy over the next five years (that's at a level with the entire public debt of the failed state of Greece) including a $38 billion repatriation tax payment to the Dept. of the Treasury.

That payment is due to the fact that Apple essentially parked money in Ireland at times when U.S. corporate tax rates were much higher. While other politicians thought they could name and shame Apple and other U.S. companies for totally lawful behavior, the dealmaker-in-chief, a businessman himself, simply recognized that the United States faced only two realistic choices: make those companies an offer they can't refuse and get them to bring a lot of money back to the U.S.--or otherwise they'd have to do what's best for their shareholders, which led to the absurd situation of Apple borrowing money so it could pay its dividends while it actually had plenty in Ireland.

When Apple announced that it "expects to invest over $30 billion in capital expenditures in the US over the next five years and create over 20,000 new jobs through hiring at existing campuses and opening a new one," it confirmed that the President's "Buy American, hire American" strategy is working out nicely so far, unlike the EU's failed economic, fiscal and monetary policies. The Trump tax reform is indeed increasing America's competitiveness, and the primary loser is that old, complacent, bleeding-hearted continent run by politicians who have everything in mind (even Africa) but the competitiveness of their economies in the digital age and opportunities for their citizens.

The EU "state aid" "case" against Apple--formally, against Ireland, which the EU even sued last year for alleged non-compliance with a ruling to recover "up to" 13 billion euros--is still on appeal. Last February I criticized the EU decision (after reading it a couple of times in full detail), among other reasons for misrepresenting an important thing:

In its decision, the Commission does recognize that under Irish tax law a company can be registered in Ireland without being subject to Irish taxes. The Commission describes those companies as "stateless," which again sounds like "never paying taxes anywhere, anytime" and is not the way it is: if a company is registered in Ireland but practically operates outside of Ireland and is managed in the U.S., its profits will be subject to U.S. taxes, just that the point in time when this occurs depends on repatriation.

The EU Commission doesn't say that such companies cannot legally exist. It's all about allocation: it's about how much is taxed in Ireland (and, in that case, taxed immediately) versus how much can be kept in Ireland for a while but will ultimately be subject to U.S. repatriation tax.

Now "the point in time when this occurs" is near. Apple is going to make that payment. A reporter then asked a spokesman for EU competition commissioner Margrethe Vestager at a daily Brussels press briefing what bearing Apple's U.S. tax payment would have on the EU "case." Reuters reports that Mrs. Vestager's spokesman said "nothing has changed" with a view to that matter. He obviously had to say so. The only alternative would have been for the EU to recognize its fundamental legal error and drop the "case."

At this stage of proceeding, the Commission is just a party to the case. Since both the Commission and the judges on the EU courts are appointed by the same national governments, it's not a given that Apple will be treated fairly, but at least there is the possibility of the judges finding the "rationale" underlying the Commission decision so irrational that they'll overturn Mrs. Vestager's decision.

I actually agree with her spokesman in the sense that "nothing has changed" about the decision having failed to distinguish between tax avoidance and deferred taxes (see this explanation by Apple and another one by Fortune). What has changed is the tax rate for Apple in the U.S., and that made it a better choice for Apple to repatriate mountains of cash. But the overall cross-jurisdictional framework, with the deferred tax system in the U.S. that applied to the years at issue in this "case," hasn't changed retroactively. The idea of any of Apple's money ever having been "stateless" (not taxed by anybody) was a complete misconception.

What has changed, however, is that it's now just a matter of legal structures but (additionally) a matter of fact. Apple can point to its U.S. repatriation tax payment and, on that basis, focus the whole debate on allocation (how much of its taxes it owes in the U.S. and how much in Ireland) as opposed to tax avoidance.

Considering that Apple's products are designed and engineered in the U.S., and not even manufactured in Europe, it shouldn't be hard to understand that most of Apple's taxes are due in the U.S., too. It doesn't make sense to me that the Commission wants Ireland to collect €13 billion (almost $16 billion), almost half as much as the $38 billion Apple expects to pay as a U.S. repatriation tax. If those EU jurisdictions got even 20% of the amount Apple pays in the U.S., that would already seem very high (almost outrageous, actually) to me.

While nothing has changed about what the law was in the years the EU "case" relates to, it's now easier than ever for the judges to see that Apple never engaged in tax avoidance. The Commission can no longer argue that Apple's "stateless" subsidiaries would never ever pay taxes anywhere.

What Apple announced this week ups the political ante for Mrs. Vestager in three ways:

  1. The kind of propaganda that influenced public and political sentiment in the past won't work anymore.

  2. While the details are not known, there's no question that an unjustified "recovery" of taxes from Apple by Ireland (under pressure from Brussels) affects the United States. At a minimum, any taxes Apple is required to pay in Europe reduce the amount of money it can repatriate. Possibly, there are other implications as well. So there is a potential a major political conflict between the United States and the EU.

  3. Mrs. Vestager wields a big stick but depends on being backed by the governments of the EU member states. I haven't managed to find out what positions various governments have communicated to the EU court. There is, however, a possiblity of some governments now recognizing that Mrs. Vestager's approach is not going to be fruitful. Apple's public statement emphasizes that jobs are going to be created in the U.S., while Apple doesn't do much more in Europe than sales and marketing. The EU Commission's antagonistic attitude does nothing to spur investment in Europe. It just benefits the United States--and President Trump. It could be that some EU member state governments will understand this and be ever less prepared to back Mrs. Vestager's crusade.

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Wednesday, January 3, 2018

Happy New Year -- and a brief overview of key industry issues and conflicts in 2018

First, I wish all of my readers a Happy, Healthy, and Prosperous New Year!

Primarily this first post after the turn of the year is about a quick overview of some key industry issues and conflicts to watch in 2018. In addition, I'd like to mention that my app, Quizcover, is now available on the U.S. App Store (click here to download), and I've just issued a press release on it. But as I promised in a recent post, I'm going to keep those two activities--the trivia game app and the patent/antitrust/policy blog--perfectly separate from now on.

The following industry issues and conflicts were big in 2017 and should be very interesting to watch in 2018:

  • The World v. Qualcomm

    Ever since I can remember, no information and communications technology company has ever faced as many simultaneous and earth-spanning antitrust problems as Qualcomm: unilateral-conduct investigations by competition authoritities in the United States, Europe and Asia; thorough merger reviews of Qualcomm's proposed acquisition of NXP; and antitrust lawsuits brought by Apple in multiple jurisdictions. Then there's at least one other company (analysts believe it's Huawei) that stopped paying license fees. Some early-stage decisions made by federal judges in the Northern and Southern Districts of California didn't work out well for Qualcomm. It's losing the most momumental multi-front war any company in this industry has ever been embroiled in.

    From the outside it's always easy to say: they should settle, especially since they can't realistically win. It's never a bad idea to promote peace, and here it's just impossible to imagine that all those regulators and judges and private parties are wrong and Qualcomm (plus Maureen Ohlhausen, the last woman standing in Qualcomm's corner) are right. But let's be realistic: there is so much at stake here that Qualcomm will most likely still be the first item on my list for next year's first blog post, too.

  • The (failed) EU vs. Silicon Valley

    In the past, the EU was more selective about which IT antitrust issues to pursue, and it got a lot of support from various stakeholders all the time. But by now it looks like DG COMP (the EU Commission's antitrust enforcement unit) and policy makers are trade warriors and completely out of control. The EU's take on U.S. technology giants appears to be: "If you can't beat'em, tax'em." Literally, by creating a new digital tax and/or other measures that have the same effect; slightly less literally, by making up "state aid" cases (such as the one involving Apple) out of thin air and imposing huge fines.

    The two key questions about the continuation of the EU's war on Silicon Valley will be: how far will the EU institutions (including the Court of Justice of the EU) ultimately go? And when will there be some serious backlash?

    The question we don't have to ask--since the answer is the most resounding "no" you can imagine--is whether any of this will make Europe more innovative or more competitive. Europe will fall further behind in the age of the digital economy. It's more concerned with its history than with its future. As an Australian politician once said, Europe is like an endless seminar about itself. I seriously don't believe it has a bright future. It's going down the tubes already, with entire generations being lost in some EU member states that have youth unemployment rates beyond imagination. The EU is part of the problem, not part of the solution, though it does get something right every once in a while, such as its recent guidelines on standard-essential patents.

  • Silicon Valley vs. The White House

    Since President Trump took office about a year ago, Silicon Valley has engaged in political activism that went beyond what made business sense. Obviously, companies don't like restrictions regarding whom they can hire, so "buy American, hire American" runs counter to their global ambitions. And some major U.S. companies were presuambly afraid of losing business opportunities with governments, corporations and consumers in predominantly Muslim countries, and with Muslims anywhere else, if they didn't distance themselves from decisions and statements by President Trump that might have antagonized parts of the world. Up to a certain point, that's just where their corporate interests and President Trump's focus on improving the lives of many voters are not the same. But Silicon Valley companies opposed Trump in ways that clearly weren't justified to any significant extent by business interests, and in the "travel ban" context they took positions that the Supreme Court largely disagreed with and that amounted to Trump-bashing and cheap shots.

    Some of the things that happened last year should give companies pause. The tax reform that Congress passed and President Trump signed into law before Christmas is great news for tech companies of all sizes. The aforementioned EU trade war on U.S. tech companies may increasingly make it necessary for them to get help from the Trump Administration. Then there are subjects such as net neutrality. I don't mean to imply that the Trump Administration retaliated against tech giants in that context, but it definitely didn't help their cause to be at loggerheads with the President all the time.

    I hope there will be a more constructive and rational relationship in 2018.

  • Whatever little is left of Apple v. Samsung (design patent damages)

    If the Supreme Court had allowed the Federal Circuit's statutory interpretation with respect to a disgorgement of a design patent infringer's unapportioned profits to stand, the consequences would have been really bad. Design patents would overnight have become the most lucrative arrow in any patent troll's quiver. Fortunately, the Supreme Court already made it clear in 2016 that infringer's profits are formally unapportioned but limited to the relevant "article of manufacture" (which may or may not be the entire end product). After that strategic victory for reasonableness, the two most important questions left to be answered were the test for determining the article of manufacture and the related burden of proof. Judge Koh answered those questions in ways that Apple can live with and Samsung and many are happy about. Compared to the questions before the SCOTUS and subsequently before Judge Koh, the remaining proceedings are significantly less strategic, but there still is the risk of an award that will encourage design patent trolling. Imagine this kind of "negotiation" between a troll wielding a (possibly overbroad) design patent against an accused infringer:

    TROLL: You know § 289 (unapportioned disgorgement of infringer's profits). Why don't you just pay us X million dollars to eliminate the risk of a devastating defeat.

    COMPANY: We don't think there really is much of a risk. The Supreme Court held that the relevant article of manufacture must be determined. The Department of Justice proposed a test that the Northern District of California adopted and probably all other courts will view very favorably, too.

    TROLL: So what? Samsung ended up paying Apple half a billion dollars at any rate. Shouldn't we negotiate?

    COMPANY: Well... we really don't think the outcome of Apple v. Samsung has a bearing on what we're discussing with you because our lawyers will present a strong "article of manufacture" argument to the court and the jury from the start, optimized for the DoJ's proposed test. But...we are willing to pay you half of what you're demanding.

    That fictitious conversation explains why I hope the outcome will be a reasonable one this spring.

  • Nobody (?) v. Amazon

    To be clear, I'm a very happy Amazon customer (store and AWS alike). I have nothing against that company, and this final bullet point is actually an expression of my admiration for how Amazon has managed to avoid the kinds of disputes that other major players have to deal with all the time. For example, those "smartphone patent wars" never hit Amazon. Little Barnes & Noble had to defend itself against a Microsoft suit, but no major patent holder ever went after Amazon (just trolls).

    It could be that certain strategic "anti-Android" patent holders--none of whom ever even mentioned Amazon to me in connection with patent infringement lawsuits--didn't want to lose Amazon as a reseller. So nobody sued them, and there weren't any antitrust complaints that I'd have heard of.

    There's a good chance that Amazon, apart from maybe having to pay the U.S. Postal Service a bit more in the future and the EU's "if you can't beat'em, tax'em" kinds of challenges, will continue to be able to steer clear of major disputes and conflicts. Admirable, but in no small part attributable to its unique (and enviable) position. While some thought that Jeff Bezos' private acquisition of The Washington Post would add to his clout, it probably isn't an asset under President Trump, but it may still help Amazon in Washington circles.

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Tuesday, December 12, 2017

EU guidelines on standard-essential patents favor product-centric businesses large and small

Given that I'm working hard on my personal "Flexit," I'm the exact opposite of your average "EU ├╝ber alles" kind of claquEUr. But when the EU does something right, I'll acknowledge it. The "Communication from the [EU] Commission to the [EU] Institutions on Setting out the EU approach to Standard[-]Essential Patents" (published the week before last) is by far the best I've seen from the European Commission, or any EU institution, in ages.

Just like the Fair Standards Alliance, I welcome this (now quoting the FSA) "forward-looking guidance to European industry" on SEP licensing because the European Commission declined to endorse "use-based" licensing fees, which is what the likes of Nokia and Ericsson (and their non-European allies, particularly Qualcomm) wanted. "Use-based" licensing is just a euphemism for gutting the "ND" (non-discrimination) part of "FRAND" by allowing patent holders to charge royalties on components of multifunctional products they have nothing to do with. Industry issues often enter the public sphere only through litigation, and the dispute between Apple and Qualcomm serves as a useful showcase: Apple credibly alleges that Qualcomm effectively seeks incremental royalties on iPhones with more memory, better/bigger screens, better cameras, fingerprint sensors, and so forth. That kind of insanity is what "use-based licensing" comes down to. I wonder when the likes of Qualcomm will demand royalties on the interior of the official Apple Stores, arguing that no one would walk into those stores in the first place if it weren't for wireless connectivity...

Obviously, Apple was among the parties who provided input to the European Commission that was materially consistent with what the Fair Standards Alliance proposed. We can talk about the proper royalty base (or damages base, to be precise) again in the build-up to next year's fourth Apple v. Samsung trial, but let's stay focused on SEPs right here and now.

The royalty-base issue became the most hotly-contested one during the EU consultations on which last month's official communication was based. But the question of injunctive relief is no less important. At the end of the day, a SEP holder can extract excessive SEP license fees either way: by going directly for overcompensation (in the form of license fees and/or damages awards) or by getting leverage through injunctive relief (sales bans, import bans, seizures by customs authorities; USITC-style remedies are indeed available and sometimes granted in the EU as well) and then imposing non-FRAND settlement terms. Arguably, injunctive relief is even more problematic since it can also be used to shut competitors out of markets. The EU guidelines on SEPs do make reference to the Huawei v. ZTE ruling by the Court of Justice of the EU, and it becomes clear (not just between the lines) that the Commission, generally speaking, disfavors SEP injunctions. What made stakeholders focus more on the royalty base is simply that the rejection of "use-based licensing" has yet to be enshrined in case law while there's plenty of case law around the globe that has practically made it impossible to obtain SEP injunctions except under extremely rare circumstances. The Qualcomm showcase is also telling: while Qualcomm has flooded Apple with patent infringement suits this year, it's not even trying to seek SEP injunctions (including SEP-based import bans): all of its injunction requests are based on non-SEPs according to Qualcomm's own representations.

The EU stresses that its guidelines are a set of policy recommendations, not an interpretation of the law. But the part on injunctive relief is a statement of the law for the most part. I hope that some of the ongoing disputes and competition enforcement actions will over the next few years result in so much clarification that even the royalty-base question will have to be considered a largely settled ("settled" in terms of "adjudicated") issue.

The Commission guidelines start off with transparency. I agree with that part. It's an interesting suggestion that patent offices could help determine and, after a standard is finalized and a patent finally issued (or narrowed through reexaminations or litigation), revisit the question of whether a given patent, as finally issued, is actually essential to a standard, as finally adopted. Apart from the standard-specific parts the EU positions on transparency relating to SEPs should also apply to non-SEPs. At least I can't see any reason why they shouldn't. But it would have been off-topic for the Commission to make a more comprehensive recommendation on patent ownership transparency.

In subsection 2.2, the EU SEP guidelines refer to the principle of non-discrimination (again, the "ND" in "FRAND"). That part of the guidelines could have been sharper, clearer, and more elaborate. But the Commission's competition enforcement arm still has the opportunity to make a positive impact with respect to some SEP holders' refusal to extend licenses to rival chipset makers.

I disagree with the Commission's rosy portrayal of alternative dispute resolution (ADR) mechanisms and of the (so far non-existent) Unified Patent Court. I always consider it a lost opportunity when a SEP licensing issue gets resolved through an opaque process that doesn't contribute to the evolution of case law (on the proper royalty base, for instance).

The part on open source and SEPs (Section 4) is factually accurate. What I think should always be made clear in this context is that open-source companies such as Red Hat do pay patent royalties all the time while claiming in policy discussions that open source, particularly software licensed under the GPL free software license, and patent royalties are inherently incompatible.

All in all, the EU SEP guidelines are a victory for businesses of all sizes whose focus is on making and selling products (as opposed to the monetization of patent portfolios). While Europe's companies are and will remain insignificant in the largest market segments and most lucrative fields of technology (apart from SAP, and even that one may be acquired by a U.S. tech company sooner or later), the jury is still out on its automotive industry (I'm skeptical, but others aren't), and the EU Commission refers to Internet-of-Things (IoT) startups. In IoT, there are and will be many niche opportunities, and that's exactly where the EU (as an economy) does have some opportunities (while it's never going to be competitive in search engines, operating systems etc.). I agree with the Commission that small IoT companies need a healthy and reasonable SEP-licensing environment. Helping those companies, and Europe's automotive industry, makes a lot more sense than wacko calls for a cordinated EU response to the success of companies like Apple, Google, and Facebook.

More than anything, I'm glad the European Commission didn't bow to lobbying pressure from increasingly patent-focused has-beens like Ericsson and Nokia. Those companies aren't Europe's future. And some of the key beneficiaries of supra-FRAND royalties would be non-EU companies such as Qualcomm at any rate.

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Friday, December 8, 2017

Google's Android-Java "fair use" trial win over Oracle is virtually certain to be overturned

I haven't blogged about this case in a long time and won't spend much time now, but I wish to be of service to my readers here since there doesn't seem to be any reporting in the IT press about how yesterday's Oracle v. Google Federal Circuit hearing went. To the extent anyone reported at all, it appears those reports were either written before the hearing or, if after, they're behind paywalls (or at least Google News doesn't find them).

I won't reiterate my unchanged position on the case in general and "fair use" in particular now. All that matters is what's going to happen now, and it would be a major surprise if last year's ruling by Judge Alsup in the Northern District of California, based on a jury verdict that came into being under circumstances I harshly criticized at the time, was affirmed.

The Federal Circuit yesterday published the official recording (MP3) of the hearing. The panel, which previously held the Java API declaring code copyrightable (it's no secret that this has been my view for a long time), does not appear to agree with Judge Alsup's decision to withhold evidence on non-mobile Android devices (desktop PCs etc.) from the jury. The only question at this stage appears to be whether the appeals court, after finding that this decision and possibly some others were wrong and prejudiced Oracle, will resolve the "fair use" defense by throwing it out directly as a matter of law or, at a minimum, remand for a retrial. I think the probability of a JMOL is greater than 50%.

When listening to the recording, you'll see that the appellate panel firstly was very interested in Oracle's JMOL argument and even allowed five minutes above and beyond the originally allotted time. Then Google's appellate attorney got a very rough ride. The most impressive part of the recording is the last five minutes: an amazingly powerful rebuttal statement by Orrick's Joshua Rosenkranz. This is as good as it gets.

While no one said so at the hearing, I believe Judge Alsup completely destroyed his credibility with the Federal Circuit by excluding absolutely essential and outcome-determinative evidence. He's in for a second reversal in the same case--which is unusual, but he had it coming.

When the appellate opinion is handed down, many people will be surprised that the case is still alive. But you won't be because I felt I had to tell you since, to the best of my knowledge, no other free-to-read website has done this job, at least not yet.

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Wednesday, December 6, 2017

After Apple's patent infringement counterclaims, Qualcomm launched a barrage of new complaints

A week ago, on November 29, there was a flurry of activity between Apple and Qualcomm, and I'd like to share the documents with you now as well as a few observations:

  • Apple filed its answer and counterclaims (uploaded to Scribd) to Qualcomm's first infringement complaint (a companion lawsuit to an ITC complaint). The introductory statement contains the following portrayal of the parties:

    "This case presents a tale of two companies. On one hand we have Apple who literally created the modern smartphone as a product category, with the iPhone's cutting edge design, easy connectivity, superlative battery life, and interactive applications that make the smartphone the smartphone. On the other we have Qualcomm, who developed rudimentary telephone technology that carried voice calls in the early days of feature phones, but whose technology is dated. [...]

    The weak patents Qualcomm asserts here for the first time appear to be a blatant effort to take credit for the innovation of others. Notably, all of Qualcomm's asserted patents were filed and prosecuted well after the iPhone was introduced. Put plainly, Qualcomm saw the unique features and success of the iPhone, and then pursued patents trying to cover the Apple product much like a common patent troll."

    While I wouldn't subscribe to this description 100%, it is a fact that Qualcomm's innovations already powered pre-iPhone devices, and if Qualcomm had really been the primary innovator in the smartphone space, the iPhone and iPhone-like Android devices wouldn't have displaced older phones such as those made by Nokia at the time. The difference that the iPhone made was at a different layer of the technology stack. As for whether Qualcomm is behaving "much like a common patent troll," I'd have been less inclined to agree with Apple's lawyers on this one before Qualcomm made its four other filings that same day. In other words, Qualcomm couldn't have done much more to lend credence to the "troll" label.

    In addition to defending itself against Qualcomm's claims, Apple brought counterclaims alleging that Qualcomm is infringing eight Apple patents on techniques that minimize battery power consumption.

  • Qualcomm filed a second ITC complaint against Apple (uploaded to Scribd), over five patents described as relating to touch gestures, autofocus, multitasking, quick charging, and machine learning. Once again, Qualcomm is seeking an import ban against devices incorporating Intel chips, which is problematic given Qualcomm's market dominance. Considering that the previous ITC complaint was filed in the summer, Qualcomm apparently just waited long enough so it would have a decent chance of avoiding consolidation of two ITC actions into one (in which case Qualcomm would come under pressure to narrow its combined case, and which would delay resolution).

  • In the Southern District of California, Qualcomm filed a civil companion lawsuit mirroring the ITC complaint (uploaded to Scribd).

  • Qualcomm also filed a complaint (uploaded to Scribd) over patents originally filed by Palm Computing and the creators of a device named TouchTable.

  • Finally, Qualcomm brought a complaint (uploaded to Scribd) over what it says relates to battery charging, content delivery, machine learning, stepped gain mixers, image processing, and circuitry.

Sometimes it's hard to see the forest despite all the trees. The core issue is Qualcomm's behavior that regulators around the globe have already held to be anticompetitive. Qualcomm writes in its latest complains that "Apple misled governmental agencies around the world into investigating Qualcomm in an effort to indirectly exert leverage over Qualcomm," but where there is so much smoke, and in so many different places, it's hard to imagine there isn't also a whole lot of actual fire. No company can ever have the persuasive power that Qualcomm claims Apple has. Qualcomm would have us believe that Apple managed to mislead multiple regulatory agencies with their specialized and dedicated case teams and experienced senior decision makers. I just can't imagine this to be the case. Instead, I believe that "you can fool all the people some of the time and some of the people all of the time, but you cannot fool all the people all the time" (a quote attributed to Abraham Lincoln).

There's an antitrust core here, which (let's not forget) also involves patent exhaustion issues. Around that core, there are tangential and peripheral issues and factors.

For example, there's Broadcom's takeover bid, which Qualcomm's board has rejected.

There's Qualcomm's constant struggle to balance investor relations and litigation/antitrust priorities. The investor relations part was important at the outset and became even more relevant after Apple and another company (which analysts tend to believe is Huawei) stopped royalty payments to Qualcomm through contract manufacturers.

And now there's a whole lot of infringement litigation.

As I've said in previous posts, the real issues here are so important to the entire mobile device industry that I hope it won't come down to leverage (whether it's leverage based on Apple's cessation of royalty payments or leverage based on Qualcomm's infringement claims against Apple). The outcome should depend on the merits--and only on the merits.

Whether Qualcomm will get much leverage out of its infringement cases is impossible to tell at this early stage, but in this industry companies typically don't get much leverage out of non-standard-essential patents because, if it comes to worst, they can usually be worked around--nor do they get much leverage out of standard-essential patents because of their obligation to license them on fair, reasonable and non-discriminatory terms to all comers (Qualcomm doesn't quite agree on "to all comers" yet, as it denies licenses to chipset makers, but that will hopefully change as a result of antitrust proceedings in multiple jurisdictions, Apple's cross-jurisdictional lawsuits, and maybe even lawsuits by other parties, which can always happen).

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Thursday, November 23, 2017

Happy Thanksgiving -- and some information about my iOS trivia game app

I wish you all a Happy Thanksgiving! Hope you're having a great time now with family members and/or friends.

In recent years I've mentioned on various occasions that I was working on an app. Now, at long last and on the occasion of this holiday post, I'll be more specific about it.

This is one of only two posts you'll ever find here about my app. Promised. The only other one will be a single paragraph once it can be downloaded from the U.S. App Store, just to tell you that and where you can find it in case you're interested. Other than that, I'll keep my app and this blog completely separate, recognizing that only some--but presumably not most--of the professionals following patent and antitrust cases play trivia game apps. I've set up a separate blog and several separate social media accounts for my app.

Most of you presumably hadn't heard of me before I wrote about the "smartphone patent wars." That's why it may come as a surprise to some of you that my primary focus is a game app. Actually, in the mid to late 1990s--long before I started this blog (and even before I ran a campaign against a proposed piece of EU software patent legislation)--I was already in the computer games business: I was a consultant to Blizzard Entertainment, now best-known for World of Warcraft; and I founded an online gaming network, which was acquired by a large multinational telecommunications company. So I'm back to my roots now, as counterintuitive as it may seem.

In 2014, I founded a company, Quizista, to develop a revolutionary trivia game, Quizcover. It's revolutionary in the sense that it puts an end to the monotony of traditional trivia games and innovates the most fundamental aspects of trivia gaming: the way the game presents questions, the way players enter their answers, the way the answers are evaluated, and the kinds of hints (also called "boosters") players can get. It also has other advantages, several of which are shown on this feature comparison table (which, by the way, we're not going to use in communications with consumers).

Just like all other trivia game apps, Quizcover comes with the traditional trivia game question type (one option is right while three are wrong), which I call "Pick One" and which still makes sense for a lot of purposes. But on top of that, it has a couple of more interactive question types, Pick Some (multiple answers are correct) and Match Two (where players have to form correct pairs). The conventional Pick One trivia question type would also have worked on a 1990s Nokia phone. The Pick Some and especially Make Two types are very easy to learn, but they make much better use of touchscreens, they're more engaging, and they're more informative. They make all the difference, and I'm deeply convinced that the days of conventional trivia games are numbered. Once someone has experienced the diversity of Quizcover, why settle for monotony?

For a long time I have wanted to make knowledge more playable and trivia gaming more interesting and, at the same time, more informative. I've been fortunate to be working with a group of great software developers and content authors who share my vision. That vision has turned into a reality. Last month, Apple approved the first release of my app for distribution via the App Store and we made it available in a number of markets, but without any promotional efforts so far. In recent weeks we've made further UX improvements, some of which we consider very significant, and we're soon going to conduct our final test of a new version before publishing the app in the United States (the market for which its content was mostly created), which may already happen next week. And then we'll make more noise but, as I said, not on this particular blog.

If you have an iPhone or iPad running on iOS 10 or 11, and if you're interested in joining that final beta test, please email me at and I'll be glad to make sure you receive a test version soon via TestFlight. There's no obligation attached to participating in such a beta test.

I would also like to invite you to follow Quizcover on Instagram. We recently started posting some facts and questions from our game there on a purely experimental basis and we like the platform, so once we've launched the app in the U.S. market, we'll be more active here, too.

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Tuesday, November 7, 2017

Supreme Court denies certiorari in second Apple v. Samsung case: $119M ruling upheld

This morning's Supreme Court order list indicates that Samsung's petition for writ of certiorari (request for Supreme Court review) in the second California Apple v. Samsung case has been denied. The top U.S. court's decision follows (literally and figuratively) the position taken by the Solicitor General of the United States, which was not a given but isn't much of a surprise either.

While I still believe the three Federal Circuit panel judges who threw out the $119 million decision got it right, the Supreme Court can only hear a limited number of cases per year. The decision to deny certiorari doesn't mean that the Supreme Court agrees with the Federal Circuit on any of the substantive issues in the case. Part of the anti-cert argument was that other cases might be better vehicles for addressing those issues.

This pretty much ends the roller-coaster ride that this particular case (which is just part of the once-huge #appsung dispute) has been. All that's left to be sorted out now is relatively unimportant.

Samsung made a lot of headway with respect to design patent damages, and will get a new trial. In that context, the Supreme Court had granted a cert petition by Samsung and overruled the Federal Circuit. The Supreme Court might have been particularly hesitant to hear yet another Apple v. Samsung case.

There was a time when this dispute comprised cases pending in nine or ten jurisdictions, and when it appeared to escalate endlessly. By now, it's just about non-strategic matters pending in the Northern District of California. After Judge Lucy Koh granted Samsung a new trial over design patent damages, I already expressed my opinion that this would be a good time for them to put the dispute behind them, especially since neither of them has a major problem with the "article of manufacture" test adopted by Judge Koh. As unfortunate as the Supreme Court decision that became known today may be in some ways, it, too, paves the way for a settlement. At a minimum, those Energizer Bunny-style litigants should be able to settle that second case. The remainder of that case is a mathematical exercise with limited probabilistic elements. They should conserve court and party resources now.

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