Thursday, April 22, 2021

Intel doesn't infringe VLSI patents-in-suit: jury verdict in second VLSI v. Intel case (Western District of Texas)

Reuters reports--as do other media--that a jury in Waco (Western District of Texas) has found for Intel. According to the verdict, which I haven't found on the electronic docket yet, the semiconductor company infringes neither of the two patents asserted by VLSI Technology, a non-practicing entity funded by Fortress Investment.

In early March, Intel had lost a trial over two other VLSI patents, and the damages award amounted to $2.175 billion.

There'll be a third VLSI v. Intel trial in June, and should jurors or their friends or relatives inform themselves on the Internet of the wider dispute, the picture will be more favorable to Intel than last time.

This outcome is in line with my observations. I noted the burden of proof on infringement and that there were reasons that might very lead a jury to doubt the infringement allegations. I wrote: "I think Intel may avoid an infringement finding, but even if it happened, I can't imagine it would be another billion-dollar amount."

Just like Intel is appealing the March verdict, VLSI may appeal the April decision.

Law.com's Scott Graham reported on an interesting change regarding damages-related evidence. While this jury never reached the point of a damages determination, we may see somewhat more rational damages awards in Waco going forward. That's of the utmost importance not only to Intel but also to numerous other technology companies with a presence in that district.

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Wednesday, April 21, 2021

Retired UK judge: ETSI FRAND pledge requires component-level licensing of cellular standard-essential patents

Today's IPKat/LSE Joint Event was entitled "The CJEU's billion-dollar questions -- who gets a SEP license and when should an injunction be granted?" One of Europe's most famous patent judges, recently-retired Lord Justice Sir Christopher Floyd, gave a clear answer to the first question: in his interpretation, ETSI's standard-essential patent (SEP) licensing pledge entitles every maker of equipment, including suppliers of components, to a license on FRAND terms.

That conclusion didn't surprise me. The ETSI agreement must be interpreted under French law, and at my Brussels conference on component-level SEP licensing in November 2019, French law professor Philippe Stoffel-Munck took the same position. What made the judge's position today particularly noteworthy is that he previously criticized the ETSI FRAND pledge for containing only about half the clarity that he'd like to see in it. He provide one example of such a shortcoming: the pledge doesn't specify in what forum any disputes over licensing terms should be resolved.

While some major cellular SEP holders--such as InterDigital, whose licensing chief Eeva Hakoranta also spoke today--argue that licensing at the end-product level is the standard in their industry, two industry representatives at today's webinar--though it's important to note they all expressed only their personal opinions--explained why component-level licensing is key to the ability of standardization to serve its purpose. Intel's IP policy chief Dr. Rebekka Porath mentioned that Intel, a member of approximately 300 standard-setting organizations, does grant SEP licenses at the component level. Last summer, a component-level SEP license deal between Huawei and Sharp became known (neither Huawei nor Sharp spoke today). Automotive supplier Continental's IP chief Dr. Roman Bonn explained the supply chain for connected cars, where cellular standards are implemented in the baseband chipset. What corroborates this view is what WilmerHale's patent and antitrust attorney Tim Syrett explained: he's litigated various SEP cases in the U.S. involving SEPs, and the infringement analysis always focused on the source code of the baseband chip. (This is a structural difference between SEP litigation in the U.S. and Germany; in the latter country, infringement allegations are typically based on the specification of a standard, not on what the accused products actually do.)

With respect to industry practice, SEP litigants, particularly Nokia, frequently point to the Avanci patent pool, which licenses end-product makers (and to the extent it has anything to offer to tier 1 suppliers, i.e. car makers' direct suppliers, that's not a full and exhaustive license). In today's IPKat/LSE webinar, Mrs. Hakaronta from InterDigital mentioned that 20 automotive brands had taken an Avanci license (while complaining in no uncertain terms about the attitude of other auto makers to SEP licensing, with a particular emphasis on Daimler).

The number of 20 (Avanci-licensee brands) is an overstatement because some of them have licenses that don't cover 4G (just up to 3G). Volkswagen's chief patent counsel Uwe Wiesner was among the speakers of yesterday's patent pools webinar, organized by the European Commission's DG GROW. His presentation quoted an October 2020 paper according to which "[t]he automakers that have taken a license represented approximately 12% of the total worldwide vehicle production in 2019." Volkswagen's high-volume brands apparently don't have a 4G license from Avanci.

Mr. Wiesner's Avanci "case study" painted anything but a rosy picture. He criticized Avanci's rule of licensing only car makers for not meeting the needs of potential customers. To put it differently, Mr. Wiesner didn't quite sound like a perfectly happy customer: at least it's fair to say he sees a lot of room for improvement, and isn't fully sold yet on Avanci's terms, despite being generally sympathetic to pools.

The Dusseldorf Regional Court's preliminary reference of access to component-level licenses to the European Court of Justice won't be decided in webinars. But such events shed light on the underlying facts and on industry realities. Plus, today a fomer high-profile judge took a crystal clear position on access to component-level SEP licenses based on the ETSI FRAND pledge.

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Tuesday, April 20, 2021

Waco jury in VLSI v. Intel starts deliberation: Intel vehemently denies infringement and attacks $3 billion damages claim

In my previous post on the VLSI v. Intel patent trial in the Western District of Texas, I asked the question of whether the jury will be persuaded that, should it find an infringement, Intel would have paid a $3 billion royalty on two patents that are part of a portfolio that was at some point valued at $7 million. The answer is just a question of days, if not hours: counsel for both parties--Irell & Manella's Morgan Chu and WilmerHale's Bill Lee--just delivered closing argument.

A week ago, Intel's opening argument emphasized the semiconductor company's independent research and development. VLSI's lawyer told the jury that this is irrelevant under patent law: you can infringe whether or not you know the patent. Mr. Chu called this argument "a red herring" and "a signpost in the desert"--but the strict-liability nature of patent law is separate from whether jurors will feel that Intel has committed a wrongdoing it needs to be penalized for, or whether there is, at best, an accidential infringement at issue.

The "signpost in the desert" was not only the "post" metaphor: Mr. Lee compared VLSI's efforts to allege an infringement despite a patent having been narrowed on reexamination as "moving the fencepost" in order to develop an infringement theory regardless.

Most of the argument was very technical, and counsel for both parties tried to put testimony, particularly expert testimony, into a particular context. For example, a point that Mr. Lee made and which might resonate with the jury was that VLSI got an Intel witness to confirm that a page from a document was consistent with one of VSLI's arguments, but the headline of the document showed that it was just some general technical description and not specific to the accused products. What I consider even more likely to bear weight with jurors is an Intel position on claim construction: Mr. Lee said that this morning he "walked from [his] hotel to the court": "'from' means 'from', 'to' means 'to'." Those kinds of non-infringement arguments appeal to common sense. By comparison, VLSI's lawyer's explanations of the meaning of "when" were much more technical--that was necessary in the context, but it just wasn't as easy to understand as Intel's interpretation of "from" and "to." VLSI's explanation of "determinism" was funny: if you boil an egg for 10 minutes, then you always know what the result is going to be like.

Yet another point that jurors can easily understand was that the companies who previously owned these patents had lots of lawyers, lots of licensing executives, and lots of engineers, but didn't decide to sue Intel.

Throughout the trial, from opening to closing, Mr. Chu sounded like someone who was really tired of hearing Intel's non-infringement and damages-related arguments. Mr. Lee's role was that of a voice of reason. What he said and the way he said it described this case as one in which a company that had just been created to acquire those patents and sue Intel was looking for a payout orders of magnitude greater than the purchasing price of the patents.

Intel's lawyer may also have managed to persuade jurors that Intel's licensing expert, who worked on microprocessor patent licensing for decades while at IBM, had a stronger background than VSLI's royalties expert.

Mr. Lee pointed to testimony according to which Intel would have generated the relevant sales anyway, with or without the alleged patent infringement.

Interestingly, VSLI's lawyer changed his tone a bit during the initial part of his rebuttal today. Mr. Chu sounded concerned that some of Intel's defensive arguments could really get traction. He started his rebuttal saying that Intel made it sound like VSLI accused Intel's witnesses of being liars ("liar is a schoolyard term"), but tried to put this into perspective. As he went on, he sought to show his frustration (over Intel's arguments allegedly not making sense) to the jury.

Mr. Chu criticized Intel's invalidity contentions by saying Intel came with one prior art reference, then added another, and yet another. As a patent litigation watcher I've seen countless attacks on the validity of a patent that argue a patent is invalid ofter a single reference, but if one disagreed, the combination of two--or maybe also three or more--references would do the job. There are also many cases in which defendants will start with a combination of two or three references. This is case-specific. I don't disagree with Mr. Chu that a combination of seven references is a lot, but there's no formal legal limit on the number of elements of a prior art combination. Mr. Chu also stressed that those prior art combinations involve patents from major corporations, and argues this weighs against obviousness.

Juries rarely invalidate patents, even though most patents aren't valid as granted. In this jury trial, the emphasis was also clearly more on (non-)infringement and on the hypothetical damages.

In his closing argument, Mr. Chu reminded jurors of NXP receiving a share of what VLSI may be awarded. That is a double-edged sword: on the one hand, it addresses Intel's "VSLI doesn't invent or make products" argument, but it may also reduce the witness of any testimony from NXP, and jurors may indeed ask themselves why NXP didn't bring an action against Intel itself while it owned those patents.

Toward the end, Mr. Chu did his best to deliver a passionate, patriotic argument about the United States having been the leaders in technology for more than 200 years "in every facet of life." And he thanked the jury for paying attention to both sides: "You've been fabulous." That was an emotional closing, but the question for the jury to decide is not who was most grateful for their attention. Now the jury will have to weigh what it heard, after getting a late lunch, and it will have to take into consideration that VLSI bears the burden of proof on infringement. I think Intel may avoid an infringement finding, but even if it happened, I can't imagine it would be another billion-dollar amount. The history of those patents, their age, their prior owners, their past valuation--that's a combination of arguments, any single one of which has the potential dissuade a jury from rendering a ginormous damages verdict.

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Similarities and differences between #AppRising and #ClubRising (Super League)--the two hottest antitrust topics at the moment

[Update] Apparently some clubs are trying to withdraw, and it remains to be seen whether that is even contractually possible. Should the SuperLeague project come to an end now because of political pressure and fan protests, that would obviously moot the (otherwise interesting) antitrust aspects. But if it's true that all 12 founding members signed a binding 23-year contract, that may give rise to major contract damages claims. [/Update]

In direct response to--and partly even as a pre-emptive strike before--the announcement that 12 of the most popular and successful soccer clubs are going to set up their own international break-away league, The Super League, European soccer body UEFA and various national associations and league bodies threatened with retaliation, including but not limited to banning those clubs from domestic tournaments and their players from representing their nations. The founders of the Super League had obviously prepared for that scenario, and they are going to file antitrust lawsuits against those sports bodies. At the same time, some observers predict that the associations will allege that the Super League constitutes an anticompetitive cartel.

The European Commission's Directorate-General for Competition (DG COMP) is not at all inclined to act. Instead, the Commission points to other forms of dispute resolution, such as arbitration (though the Switzerland-based Court of Arbitration for Sport farcically ignores even the most basic principles of competition law as its "judges" are handpicked by association officials).

The first national court decision has already come down: further to a motion reportedly filed by CMS's Manuel Sánchez-Puelles, the Juzgado de lo Mercantil nº 17 of Madrid, a commercial court, has entered "medidas cautelares" (basically an ex parte preliminary injunction) barring UEFA and FIFA from adopting or threatening any measure that "prohibits, restricts, limits, places any condition on, directly or indirectly," the creation of the Super League. This is an anti-retaliation decision comparable to a U.S. court preventing Apple from terminating Epic's developer account for Unreal Engine.

In an unmistakable sign that existing competition laws in the EU, its Member States, and the UK (from which 6 of the 12 Super League founding members hail) actually favor the clubs, not the associations, politicians especially in France (Le Parisien: "la France prête à se pencher sur le droit européen pour aider l'UEFA à sanctionner les dissidents") and the UK are already talking publicly about modifying competition law to legalize the assocations' envisioned sanctions.

This means the Super League founders have to win a game not only against their opponents and public sentiment, but also play their most important match on a field with moving goal posts...

As for this blog's focus, rest assured this will be both the first and the last article about the Super League on FOSS Patents. Even with respect to app store issue, I'll have to make a decision very soon. Its historical roots notwithstanding, this blog has over the years evolved into a wireless IP and antitrust blog. Both IP and antitrust often overap in a case, and they are key to innovation policy. Nevertheless, I've received feedback from some people whose views matter a great deal to me and who believe it might be better to start a separate blog for app store issues. At this point, I envision my next post on App Store matters on May 3, when the Epic Games v. Apple trial starts, and it will focus on issues that to the best of my knowledge are not in the trial record but which I consider highly relevant to the issues to be decided. Come May 3, I'll also know whether, where, and how to continue my commentary on App Store issues, taking into account the interests of readers with a narrower focus on patent topics. Occasional digressions into other topics of interest (such as when I wrote about Apple's EU "state aid" case a few times) may occur, but some kind of decision must be made on the focus.

Getting back to the topic of this post, there are some striking parallels, but also some key differences, between the #AppRising (complaints over the current app store tyranny brought by large app developers like Epic, Spotify, and Match Group, but also smaller ones like my own company) and what I'd analogously call the #ClubRising by my former client Real Madrid and its 11 Super League co-founders against the dictatorship of the soccer associations.

What Apple and UEFA have structurally in common is that both are private-sector entities who are regulators (of entire ecosystems) and operators at the same time, and they are monopolists. A top-notch soccer club needs to compete at the highest level, and if the Super League wasn't put in place, the UEFA Champions League would be the only game in town, just like the App Store on iOS. When regulators (and gatekeepers) are also economic operators, or "undertakings" as EU law calls those types of entities, they have an inherent conflict of interest, which leads to self-preferencing. Major self-preferencing allegations in the App Store context relate to how iMessage competes with the likes of WhatsApp, Apple Music with Spotify, or Apple Arcade with other game services. In soccer, the associations run tournaments of national teams (like the World Cup and the Euro), and while the clubs pay the players' salaries, they have to make them available.

It also appears to be an economic law that in scenarios of operator-regulator identity, tying will inevitably happen. All sorts of business terms are imposed on app developers, with Apple purposely now trying to reduce in-app advertising revenues. Clubs participating can't even sell perimeter advertising in their stadia during Champions League matches but have to leave that to UEFA.

Governmental regulators may have other shortcomings, but at least they're typically not revenue-oriented. When the regulators are private-sector entities, they make rules designed to maximize their profits: Apple's App Store tax, and unfair revenue-sharing terms for the Champions League.

Apple is a publicly-traded company, and its management must and does optimize for shareholder value. Those sports bodies are organized as clubs with a "one member, one vote" rule. The problem with "one member, one vote" is that majorities are quite often formed against an economic majority. That is also an issue with the European Patent Office, whose leadership often makes decisions over large countries' objections. For an EPO or UEFA or FIFA leader, the name of the game is to curry favor with many small and (relatively speaking) poorer members. Sometimes those representing governments or sports bodies from small and poor countries within such organizations are more interested in the "perks" (such as the EPO paying for medical services used by Administrative Council members during their visits to Munich) than their more privileged colleagues from large and rich countries. Apple doesn't have any such governance issues, of course.

Many Fortnite gamers were and still are disappointed they can't download the game, or any updates, with their iPhones. Many Apple "fanbois" defend the iOS tyranny. And Apple argues that Epic is not a David, but another Goalith. A Politico newsletter today notes that "Epic recently hit a $28.7 billion valuation and another founding member [of the Coalition for App Fairness], Spotify, boasts a valuation of $72 billion — in other words, not exactly 'the little guys.'". But a major advantage that Epic and other complaining app developers have is that what they're fighting for would ultimately benefit all developers. Apple's Small Business Program (the 15% cut) wouldn't have been implemented if not for Epic's and Spotify's efforts--and doesn't solve all the problems that alternative app stores would do away with for good. By contrast, the backlash against the Super League--from the general public and some of Europe's most powerful politicians--is huge, and for now even many of the founding clubs' fans appear to favor the status quo. There's a lot of debate over whether the viability of the so-called "football pyramid" is in danger. Clubs like Everton FC, who have not been invited to the Super League as co-founders (though they could still qualify as five sports will be available to non-founders), are adamantly opposed. However, I don't know any app developer who'd have to fear any negative impact if Epic won. Apple suggests that the viability of the App Store is at stake, but the numbers clearly show it's not. The Super League has committed more money to grassroots soccer and women's soccer than the Champions League is generating for those activities at the moment, yet the common perception is that the rich will get richer and the others won't be able to compete.

With respect to legislative initiatives, there's another interesting difference. Soccer associations may benefit from new legislation, including that the UK government may penalize Super League participants through a restrictive application of immigration laws to work permit requests. With respect to app stores, however, the "rebels" are pushing for new legislation, and lawmakers appear to increasingly understand app developers' concerns. The Antitrust Subcommittee of the United States Senate will hold an app store hearing tomorrow. Apple will send an in-house lawyer, but didn't want to let any its star witnesses at next month's Epic trial testify on Capitol Hill. Apparently, all of the witnesses at tomorrow's Senate hearing will be lawyers.

Apple's critics can coordinate their political activities and lawsuit to some degree. They appear to tread carefully. For example, if all major games companies were to gang up on Apple and demanded different App Store terms left they'd stop publishing iOS apps, there might be a cartel issue in that hypothetical scenario. The Super League does constitute horizontal cooperation of economic significance. That doesn't make it per se illegal, nor do some people's policy preferences for the "football pyramid" change the standard for competitive harm. With five spots available to non-founders, the Super League has a strong argument that access to that new tournament is fair, reasonable, and non-discriminatory (FRAND). That is more than the UEFA Champions League can say. Its qualification system is inherently discriminatory, and utterly unfair and unreasonable. It's designed to please the representatives of smaller countries' soccer associations for the "one country, one vote" reason I explained further above. In terms of strength, there really is no reason why only four English Premier League clubs should participate in the Champions League, while clubs from small countries may qualify through matches against rather weak opponents.

Alternative app stores, such as a hypothetical iOS version of the Epic Games Store, would have to become wildly successful before they would have an antitrust duty to deal on FRAND terms. That wouldn't practically happen--but they'd simply face competitive constraints, unlike Apple, the feudal ruler of the iOS kingdom.

The "to be or not to be" question in the mobile ecosystem is whether an app is available on Apple's App Store and the Google Play Store. In soccer, it's the Champions League at the European level, and leagues like the Premier League in England or Primera División, also called La Liga, in Spain. The alternative to the app store monopoly is to have multiple app stores. In soccer, it would not be possible to run numerous parallel competitions. The same app could, however, be available via multiple iOS app stores, possibly with some features allowed on one store but not on another, or prices differing.

Both types of "rebels"--the Epics of the world and the Real Madrids of the world--face major challenges. #OpentheAppStore will likely take years, as Apple will see those disputes through. The Super League plans to kick off (literally) in the late summer of next year, as UEFA doesn't own all stadia and soccer balls (while Apple holds all the keys to the iOS kingdom), the main threat being UEFA's and its allies' coercive efforts, competition authorities not wanting to act against public sentiment, and lawmakers potentially moving the goal posts.

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Friday, April 16, 2021

VLSI Technology v. Intel: patents from a portfolio valued at $7 million allegedly created $3 billion in value--will the jury buy that?

Another post, another dispute involving a non-practicing entity (NPE) financed by Fortress Investment. The previous post was about a couple of additional VoiceAge EVS v. Apple cases I just learned about. While Munich is the world's #1 patent injunction venue, at least for the tech sector, the Western District of Texas is where parties go to seek Texas-size damage awards, such as in the second VLSI Technology v. Intel trial in Waco before Judge Alan Albright. That trial will continue on Monday.

It seems to me that many technology industry and patent professionals have sympathy for Intel because it already suffered so much last month when the first VLSI trial ended in a $2.2 billion damages award. At the same time, hardly anyone expects that first VLSI award to be upheld, simply because appeals courts typically reverse such decisions (sometimes reducing damages to zero by finding no infringement or holding the asserted patents invalid). For example, just yesterday Apple--Intel's ally against Fortress Investment--convinced a Texas judge (Eastern District in that case) to order a retrial, setting aside a $506 million jury verdict. The only thing that is unusual about that decision in Optis Wireless v. Apple is that a judge from a plaintiff-friendly federal district in Texas did so. Most of the time, those decisions are made by the United States Court of Appeals for the Federal Circuit.

On Monday, the parties' lawyers delivered their opening arguments. In the meantime I have occasionally dialed in to listen to the proceedings. What I found very helpful and informative is a series of podcasts by Winston & Strawn's WacoWatch blog.

I learned from the podcast that VLSI and Intel both act similarly to their previous courtroom clash, but obviously a number of facts are specific to this case. Different patents, different issues, and an even larger damages claim: $3 billion.

Jury trials are extremely hard to predict. A lot depends on whom (whose lawyers, whose witnesses) jurors trust. Patent cases are tough for juries though they are fun for some judges. Judge Albright is so eager to attract patent cases to Waco that he makes it very hard for companies like Intel to defend themselves. On Twitter, Mike Masnick (who also comments on tech law) pointed out that Judge Albright brags about the many patent cases he gets to preside over:

Mike Masnick doesn#t mince words. On Tuesday, he published an article about Judge Albright with the following title: Patent Loving Judge Keeps Pissing Off Patent Appeals Court, But Doesn't Seem To Care Very Much (I'm just quoting--not endorsing--that language)

Jury duty is anything but rewarding, and jurors are really out of luck when they are selected for a patent case. Every time Judge Albright has fun, jurors lose precious time, for which they get paid so little it's not even worth mentioning. A waste of time for jurors, whether or not their verdicts get overturned, but Judge Albright thoroughly enjoys those trials...

Intel has non-infringement as well as invalidity arguments, and VLSI can't even count on the inventors of the patents-in-suit. The fact that the claimed inventions were originally made for an entirely different purpose may make jurors skeptical of the allegation that Intel started infringing those patents a decade later.

Not because I would predict it to happen, but because it might, the jury may have to think about the damages figure should it find one or both of these patents to be valid and infringed. VLSI's damages expert arrived at a $3 billion amount. He basically concluded that the infringing products generated $4 billion, and then apportioned less than a quarter of that total value to Intel's own work. Intel has tried--and will continue to try on Monday--to convince the jury that its own engineers created the products in question. If I were on the jury, I definitely wouldn't conclude that almost 80% of the value is in those patents. Intel pointed out that one of the temporary owners of those patents valued that entire Freescale portfolio (which includes the two patents VLSI is asserting now, but also many others) at $7 million.

Just like in the previous VLSI trial, the plaintiff's damages expert arrived at a huge claim based on what is called hedonic regression. Intel's lead counsel, WilmerHale's Bill Lee, asked VLSI's damages expert a number of questions relating to the Georgia-Pacific factors, a framework for reasonable royalty-type patent damages determinations that isn't absolutely mandatory, but it's the safest approach with a view to appeals. It's possible that the jury itself will attach importance to certain Georgia-Pacific factors. If not, the Federal Circuit might hold that Intel's Daubert motion had merit.

Having watched how some other U.S. district courts handle patent infringement cases, I have serious doubt that VLSI would have been cleared by a judge to present its $3 billion claim to a jury in, for example, the Northern District of California.

For Intel, failure is not an option. For VLSI, this here is a gamble where the cost of suing Intel is a tiny fraction of the potential reward. I don't mean to doubt that Fortress is very good at what it does, and my commentary here on VoiceAge EVS's cases shows that I don't generally discount anything Fortress does--one has to look at the issues dispute by dispute, case by case. But the prior owners of the VLSI v. Intel patents-in-suit were also very sophisticated organizations who were prepared to enforce their intellectual property rights through litigation. They didn't sue Intel, much less did they believe Intel owed them billions.

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Two more VoiceAge EVS v. Apple patent infringement cases pending in Munich

On Tuesday I listed a number of standard-essential patent (SEP) infringement cases brought by VoiceAge EVS against Apple, Lenovo, Motorola Mobility, and Nokia trademark licensee HMD in Munich. Two of the patents-in-suit have been asserted against all those parties, but there are also three cases against Apple over different patents. Those three cases will all be decided by the 21st Civil Chamber (Presiding Judge: Tobias Pichlmaier).

I had already mentioned that a first hearing in case no. 21 O 13503/20 would take place on April 28 unless the COVID pandemic necessitates a postponement. I've meanwhile learned from the court that the patent-in-suit in that case is EP2707687 on a "transform-domain codeblock in a CELP coder and decoder." CELP stands for code-excited linear prediction, a linear predictive speech coding algorithm.

Case no. 21 O 13505/20 had an even earlier first-hearing date: April 21. This one may already have been pushed back, but I will try to find out again next week. In that case, VoiceAge EVS is asserting EP2162880 on a "method and device for estimating the tonality of a sound signal."

The fifth patent over which VoiceAge EVS is suing Apple in Munich is EP1509903 on a "method and device for efficient frame erasure concealment in predictive based speech codecs." The case no. is 21 O 13504/20, and the court scheduled a hearing for May 12.

VoiceAge EVS is also enforcing patents in the United States, such as against Xiaomi. According to an RPX Insight report, VoiceAge faces challenges to its standing in its U.S. cases. That's just a non-issue in Munich.

VoiceAge EVS generally appears better and stronger than Uniloc, which is the most infamous patent licensing firm funded by Fortress Investment because it countless complaints.

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DOJ downgrades Delrahim letter to IEEE on standard-essential patents: inter-agency rapprochement with FTC on SEP enforcement?

The language of diplomacy and other governmental communications is very nuanced, like the British Queen's spokespersons saying she's "not amused" when she's actually outraged. The Antitrust Division of the United States Department of Justice ("DOJ-ATR") has taken this concept to a higher level. In what could be described as a digital form of body language, the Biden Administration's DOJ has unequivocally dissociated itself from the Trump Administration's position on standard-essential patent (SEP) enforcement without saying or writing a single word: just by relegating a link to a document (with the PDF remaining in the same place as before) to a long list of links that is, for the most part, merely an archive. Parts of that archive are little more than the dustbin of DOJ-ATR history.

Look at it this way: if a colleague of yours had a picture of her sweetheart on his desk, but all of a sudden decided to put it into a dark storage room, wouldn't that tell you something?

On September 10, 2020, less than two months before the election Donald Trump lost, Qualcomm-aligned Antitrust Assistant Attorney General Makan Delrahim tried to use his remaining time in office--he was going to leave anyway, and he knew what the polls said--tried to deal one final blow to net licensees of SEPs. He supplemented, updated, and appended the DOJ-ATR's 2015 Business Review Letter (BRL) to the Institute of Electrical and Electronics Engineers (IEEE). An IEEE standard all of us use in our everyday lives is WiFi (IEEE 802.11). IEEE has been a strategically important forum at the forefront of how standard-setting organizations could set more specific rules governing SEP enforcement than, for example, ETSI, whose FRAND pledges (which must be interpreted under French law wherever in the world they are enforced) come with a lack of clarity that is fully intended (though some interpretations are still clearly less reasonable than others).

Mr. Delrahim's BRL 2.0 was meant to make the IEEE change course by giving companies like Qualcomm--which in all fairness is a tremendous WiFi innovator--ammunition for IEEE-internal discussions. Qualcomm executives publicly predicted on various occasions that the IEEE was going to make its rules more patentee-friendly under pressure from the federal government. Last month, MLex's Khushita Vasant reported on a recent clash between Qualcomm, Apple, Huawei, and other companies at an IEEE patent policy meeting. It was a clash between the progressives like Apple--who wanted to continue on the path of setting implementer-friendly rules--and those seeking a revision, led by Qualcomm.

What I mentioned at the start of this post obviously doesn't apply to the Trump Administration. Mr. Delrahim's letter to IEEE suggested that the Obama Administration's 2015 BRL to IEEE had been misinterpreted. But Mr. Delrahim also disparaged his predecessor's work by claiming that "[t]he Department's assessment in 2015 of the 'direction' of U.S. law interpreting FRAND commitments on royalty rates and damages assessments was not well-supported and has not proven accurate."

In late March, I was wondering whether the DOJ and the FTC would continue to fundamentally disagree on the application of antitrust law to SEP abuse, given that the FTC didn't seek a Supreme Court review of the Ninth Circuit's FTC v. Qualcomm ruling and mentioned its coordination with the DOJ. But that was just a question, not speculation. Also, the Solicitor General would have had to represent the FTC before the Supreme court, not DOJ-ATR.

Apparently, the Biden Administration is inclined to undo at least some of Mr. Delrahim's SEP policy initiatives. The full extent will become clearer with time. But it's already certain that change has come to DOJ-ATR.

Currently, DOJ-ATR is being run by Acting Assistant Attorney General Richard Powers. Just like we've recently seen quadruple-antisuit injunctions, which I abbreviate as A4SIs and others as AAAASIs, Mr. Powers has a quadruple-A title: he's the Antitrust Acting Assistant Attorney General. What an alphabet soup.

Mr. Powers could have done his own "update" to the 2020 Delrahim letter. That update could simply have stated that the 2020 letter was an aberration, and the 2015 letter was in full force and effect again. But doing so would have required a communication style closer to that of the Trump Administration.

That's where the hierarchical structure of the DOJ-ATR website came in handy. There's one section where one can find the currently valid BRLs. From that one, Mr. Delrahim's letter has been silently removed. His letter to the Avanci patent pool is still there, and it remains to be seen what--if anything--will change in that context. But the 2020 IEEE letter is no longer there. The 2015 BRL to IEEE can still be found on that page. That makes it the one that currently counts.

The original and now-restored BRL tends to strengthen those favoring component-level SEP licensing.

The Delrahim letter to IEEE is now on the page listing "comments to state and other organizations". That page is hidden deep down in the hierarchical structure of the DOJ-ATR website. The dark storage room I mentioned further above.

This move has been clearly interpreted by the tech industry. Cisco's Senior Director, Antitrust and Competition, Gil Ohana, replied to a tweet of mine that this marked the "end of an error":

A nice wordplay. Few people in California would refer to the Trump years as an "era" not only because #45's reelection bid failed but also for substantive reasons.

But let's also be realistic that there'll be a lof of wrangling over SEP issue now. The downgrade of the Delrahim letter to IEEE is a significant first step.

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