Tuesday, November 24, 2015

Shame on the European Patent Office for its legal threats against TechRights author Dr. Roy Schestowitz

The European Patent Office is the last dictatorship on Central European soil. Local police cannot allowed to enter the EPO's facilities without an invitation from the president. National court rulings cannot be enforced; compliance is voluntary. Employees and visitors are subjected to covert surveillance. And if employees are fired (or "suspended"), which just happened to several staff representative, they won't get their day in court for about ten years.

The EPO's leaders have a rather selective attitude toward the law. When it's about their wrongdoings, they want their organization to be a lawless, autocratic island that disrespects human rights. But when the rules of the world around the EPO come in handy, the leadership of the EPO tries to leverage them against those who dare to criticize it.

A Munich newspaper reported last week that the EPO even tried to get a staff union lawyer disbarred. And today World IP Review has reported on legal threats by the EPO against Dr. Roy Schestowitz, author of the TechRights blog (temporarily the link was broken, but at the time of publication, it worked). In July it became known that the EPO blocked access from its local network (which examiners use for prior art searches) to TechRights. I strongly criticized that move, and found it futfile. But the EPO leadership stops at nothing, and is now trying to silence its fiercest and most frequent critic in the entire blogosphere.

Dr. Schestowitz had mentioned this on Twitter, but he had not revealed any specifics before the WIPR article. You can find his commentary on the WIPR story--and information that purports to indicate a publisher has also been threatened--here.

TechRights has always been an opinionated, rather combative blog. Still, with almost 20,000 blog posts, Dr. Schestowitz had not received a legal letter before an EPO lawyer sent him one.

Many thousands of TechRights posts took aim at Microsoft, and typically not in diplomatic terms. But Microsoft, which has a huge and sophisticated legal department, never thought it prudent to send a cease-and-desist letter. Nor did any other company that was criticized, and there were many (though Microsoft used to bear the brunt of TechRights' criticism).

The EPO leadership must be very afraid of TechRights. It should be. Dr. Schestowitz is doing a first-rate job at keeping track of developments at and around the EPO. He doesn't miss a beat. I don't mean to say that I would always use the same terminology, but the EPO should respect the freedom of speech. If the EPO leadership wants more positive press coverage (and not just from its "media partners" like Les Échos), then it should tackle the underlying issues.

If the EPO ever sued Dr. Schestowitz, I would contribute money and lend an endorsement to a crowdfunding effort to finance his defense.

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Privateering: UK court holds Ericsson patent valid, essential to LTE in case against Huawei, Samsung

In March 2014, Unwired Planet sued several smartphone makers over various patents it had "acquired" from Ericsson. Actually, "acquired" misses the key commercial point here. In April I took a closer look at the related arrangements and couldn't help but conclude that this was just a pseudo-sale of patents and simply an act of what is commonly referred to as "privateering."

The first decision relating to Ericsson's (technically, Unwired Planet's) infringement claims came down yesterday in the England and Wales High Court. Judge Colin Birss held that EP2229744 on a "method and arrangement in a wireless communication network" is valid (and in the UK) and "infringed by wireless telecommunication networks which operate in accordance with the relevant LTE standard," or more specifically, "essential to standard 3GPP TS 36.322 release 8 version 8.8.0."

This decision came down against Huawei and Samsung's challenges to this patent. According to Bloomberg, "Samsung said it was confident it had not infringed Unwired Planet's patents." I don't know whether this means Samsung will appeal and/or whether Samsung will argue that its own implementations of the LTE standard don't make use of the technique covered by the patent in Judge Birss's opinion.

If the patent was ultimately deemed valid as well as infringed by Huawei and Samsung's LTE devices, there might be equitable defenses (relating to privateering) and there almost certainly would be a debate over what constitutes a FRAND royalty for that patent and possibly some other patents. Privateering and FRAND are the two issue heres that I'm going to be more interested in. Those two parts are intertwined, especially because Ericsson once made a promise not to demand more than a certain royalty rate for all of its LTE patents--a promise Ericsson may have circumvented by "selling" some patents to a privateer like Unwired Planet.

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Oracle v. Google: Judge Alsup, who reportedly taught himself Java, gets the law wrong again

Many people were impressed by Judge William H. Alsup's claim (according to media reports) that he had taught himself Java to better be able to judge the Oracle v. Google Android-Java case. After the Federal Circuit threw out his non-copyrightability decision as fundamentally wrong, many Judge Alsup admirers remained loyal to their hero and thought that the Federal Circuit judges just didn't understand the issues. I have said all along that the Federal Circuit showed a better understanding not only of the law but also of the underlying technical aspects than Judge Alsup. I can now show you a major error in the introductory part of a new decision by Judge Alsup that shows the Federal Circuit understood the API copyright issues at the intersection of law and technology far better than Judge Alsup.

What the Federal Circuit has decided is now law of the case, and Judge Alsup has just incorrectly described the law of the case. Here's what he wrote in a procedural order he handed down yesterday:

"The United States Court of Appeals for the Federal Circuit held that the remaining five percent infringed Oracle’s copyright in the structure, sequence, and organization of the Java Application Programming Interface, reversing a decision by this Court that had held the Java structure, sequence, and organization constituted a non-copyrightable 'method of operation' within the meaning of Section 102(b) of the Copyright Act."

Something that omits an important part in such a context is also an error. The above passage is, therefore, an incorrect summary of what the appeals court actually decided. The easiest way to see that Judge Alsup missed a key point here is to look up the "Conclusion" part at the very end of the Fed. Cir. opinion:

"For the foregoing reasons, we conclude that the declaring code and the structure, sequence, and organization of the 37 Java API packages at issue are entitled to copyright protection." (emphasis added)

There you have it. Judge Alsup refers exclusively to the structure, sequence and organization, when in reality the Federal Circuit determined that not only the SSO but also "the declaring code"--approximately 7,000 lines--was protected by copyright. That's important because the declaring code was copied literally, while you can't literally "copy" an SSO any more than you could eat a recipe.

This error regarding the law (of the case) should give the remaining die-hard Judge Alsup fans out there pause.

By the way, his focus on a percentage, when copyright law actually doesn't care about percentages if the heart of a protected work was taken and especially doesn't care about the percentage of stolen material relative to what it gets incorporated into, does nothing to dispel concerns about him being "hostile" to Oracle's case. I just quoted "hostile" from The Recorder's article on yesterday's decision.

For the context in which that statement was made, let me refer you to my previous postings on the related Oracle v. Google motion process (in reversely chronological order):

Judge Alsup denied Oracle's motion to disqualify the court-appointed expert, Dr. Kearl. I disagree with that decision and I will talk about it some more on another occasion, but before I do so, I want to see (i) what the scope of the expert's testimony will be (a footnote says a tentative order on that question will come down shortly) and (ii) whether or not Oracle is going to live with this decision or fight it.

Finally, here's the order:

15-11-23 Order Denying Oracle Motion to Disqualify Dr. Kearl by Florian Mueller

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Friday, November 20, 2015

Oracle apparently facing an unfair judge and a tainted expert in its copyright case against Google

On Wednesday, a motion hearing was held in the San Francisco courthouse of the United States District Court for the Northern District of California to discuss Oracle's motion to disqualify the court-appointed damages expert, Dr. James Kearl, who since his original appointment in this case has effectively defended Google's interests in connection with an Apple v. Samsung case.

Having just read this Courthouse News report on the hearing, I can't help but conclude that Oracle's problem in this case is not limited to the damages expert. There appears to be a bigger problem: I've been watching the remand proceedings for a while and feel that Judge Alsup is not fair. Instead of recognizing that the only reason this case hasn't been resolved yet is a decision he made on (non-)copyrightability, which the Federal Circuit found completely wrong and the Supreme Court declined to reinstate, and now doing his best to ensure that justice finally be served, Courthouse News reports that Judge Alsup said the case would be delayed by at least 18 months, or possibly until 2019 or 2020, if he granted Oracle's motion. It's obvious that Google would love this delay to happen, and for Oracle it would be very bad.

He says that he'd only appoint a new damages expert if necessary but makes it sound like that will probably happen. That is rather different from how other big commercial cases are handled in the U.S., where court-appointed damages experts are few and far between.

It would only be human if Judge Alsup hated Oracle (I don't know if he does; just saying it would be understandable) for having defeated his non-copyrightability decision on appeal. He's been described as an ego-driven judge, and a journalist said in 2012 that he appeared to be the smartest person in the room (at the 2012 trial), which contrasts with the circuit judges' remarks at the December 2013 appellate hearing: they found him "confused" and incorrectly conflating copyrightability and "fair use" aspects. The written opinion was even tougher. It was totally damning for the district judge.

Years ago I had proactively disclosed a consulting relationship with Oracle. Let me state this very clearly: there is no such relationship at this time and I have no reason to assume that there would ever be one again. Not with Oracle, not with any Oracle partner, not with Oracle's counsel, neither directly nor indirectly. I'll be happy to see many people at Oracle and its law firms download my apps next year, but I doubt Oracle and its counsel will do a lot of in-app purchasing of boosters and exclusive game content :-) I wanted to clarify this so it won't look like I was criticizing the judge to do Oracle a favor or, worse, that Judge Alsup would attribute my independent opinion (I've never discussed the damages expert or the way Judge Alsup runs this show with anyone even close to Oracle) to a company I'm completely independent from.

I've had the same positions on API-related copyrights for more than ten years. Before and after fighting against Oracle's acquisition of Sun. Before and after helping Oracle in connection with standard-essential patents.

In the first quarter of 2012, about two years after fighting against Oracle, and still a while before doing any work for Oracle, I noted that "threatening with a delayed trial gives the judge leverage only against Oracle, but even if he has leverage of a certain kind, he should use it fairly" and said I was surprised that after Google had delayed the case through a meritless mandamus petition, he faced Oracle with the choice of either leaving a key piece of evidence out of the case or the case being delayed. That was not balanced. Still in the first quarter of 2012, I wrote that Judge Alsup "can't force Oracle to withdraw anything, but he can delay resolution of the case, and that gives him enormous leverage." Unlike Judge Koh in the same district, who allowed both Apple and Samsung to reassert withdrawn patents in a separate case (they haven't made use of that option so far and maybe never will, but they could do so), and who even wants to let Apple enforce a patent that has been held invalid at a far later stage of proceeding, Judge Alsup required Oracle to drop patents with prejudice just because of rather early and not too meaningful USPTO findings. Actually, even during the earliest phase of the trial, one withdrawn patent was suddenly affirmed despite a prior "rejection" but Judge Alsup barred Oracle from asserting it again. Another withdrawn patent was revived on appeal this March. So much for justice and fairness in connection with reexamined patents.

After the appellate proceedings, I hoped and even thought that he would, despite his reportedly ego-driven way of running the show, try hard to be fair. I already had some doubts, but only voiced them cautiously between the lines, when he allowed (tentatively so far) Google to present its equitable defenses at the retrial, though this could greatly confuse the jury with respect to the (actually distinct) "fair use" factors, but did not want Oracle to bring up its willfull-infringement arguments (which are extraordinarily strong here and I will publish some of the evidence that is already in the public domain when the trial begins) in a first phase of the trial because he thought this time could be saved in case Oracle doesn't prevail on the merits: Oracle should only argue willfulness after prevailing on the merits, i.e., at the remedies stage.

Admittedly, if Google prevailed on an equitable defense, that would be dispositive. It's just very unlikely. There's a strong basis for saying Google actually lost on those defenses at the first trial and didn't preserve them on appeal. Anyway, it's true that willfulness is a remedies-related matter. But why would a judge who ran the 2012 trial in a very uneconomic way (letting a jury consider "fair use" even before he handed down his flawed non-copyrightability ruling) now all of a sudden be concerned about a limited amount of willfulness argument in the early phase of the trial? The simplest explanation would be because he might love to see Google defend itself on the merits, so if the jury gets confused by Google, that's fine, but if the willfulness arguments Oracle could present would psychologically influence the jury with respect to "fair use," then that must be avoided. I'm not saying I know what's going on in his mind, but the freedom of speech also extends to speculation about potential reasons.

I'll try to find that story again but I remember once having read something about Judge Alsup having written a letter to an appeals court to disagree with an appellant (he felt he needed to correct some misrepresentations) and to defend his ruling. I'm not aware of any other district judge ever having done that anywhere in the world. Apparently he cares a great deal about what happens to his decisions on appeal, and the highest-profile decision he made, at least in an IT/IP context, was the non-copyrightability finding that turned out to have been wrong on each point. But that wasn't Oracle's fault. Oracle's counsel tried hard to educate Judge Alsup about the way U.S. software copyright law works. If he had agreed with Oracle, the Federal Circuit would have affirmed his decision.

Since the beginning of 2012, this judge has not been fair in my opinion. He's also been completely wrong on a key issue, which is not just my opinion but also that of the Federal Circuit judges, who wield a far bigger stick every day than he ever has. He called Oracle v. Google the World Series of IP cases. The Northern District of California is a major IP litigation venue, but the World Series of IP finals take place in Washington, DC. Unlike in baseball, however, the local venue can delay things a lot. I hope Oracle will not back down because that would be a bad precedent for everyone who believes courts should be fair, experts should be neutral, and judges should be fair in light of the fact that "justice delayed is justice denied" almost always affects only the plaintiff.

I will continue to follow this case, and I won't mince words if I find more signs of unfairness. In my totally independent role, in which I can testify under oath that there is no relationship with Oracle, I can do so without having to fear that someone else would be penalized for what I say.

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Thursday, November 19, 2015

Federal Circuit denies Samsung petition for rehearing in Apple case: next stop Supreme Court?

What's an invalid patent worth? As I noted at the end of my previous post on Samsung's appeal against a partial final judgment that would allow Apple to collect half a billion dollars over a set of patents including one the United States Patent of Trademark Office has held invalid, it should be worth nothing at all; actually, it should even have a negative value (an invalid patent is a non-material form of pollution). It appears, based on litigation results, that most patents in this industry are not valid in the form in which they were originally granted. Patent(ee)-friendly judges have a problem with that fact.

The United States Court of Appeals for the Federal Circuit is markedly patent(ee)-friendly, and it has just denied Samsung's request for a full-court review of a summary decision against Samsung's appeal of that partial final judgment. The document doesn't state any reasons:

15-11-19 CAFC Denial of Samsung v. Apple en Banc Petition by Florian Mueller

With the mandate scheduled to issue on November 30, I guess Samsung will have to make it clear pretty soon whether it will appeal further (i.e., to the Supreme Court). Its petition for a rehearing already looked very much like a petition for writ of certiorari. A cert petition appears more likely than not, and it will be very interesting to see which other companies support Samsung's position that a patent that has been held invalid not only by the Central Reexamination Division of the USPTO but also by a PTAB (in-house court) must not be enforceable at that advanced stage of the reexamination proceedings.

One could even ask the question of who will support Samsung on this one the other way round: who except for non-producing entities and companies with a stronger interest in patent monetization (in general or in certain markets) than in making products would seriously want to give any leverage to holders of invalid patents?

Long-term I don't even believe that Apple really wants this. It just wants it now, more than four-and-a-half years after bringing its first patent infringement lawsuit against Samsung.

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FRAND flurry: two new initiatives promote fair licensing of standard-essential patents, Qualcomm in trouble

FRAND-pledged standard-essential patents (SEPs) were a major topic (actually, the #1 topic) on this blog a few years ago. Then my focus shifted, but my positions on this issue did not. I'm following with great interest Apple's efforts not to bow to Ericsson's notoriously-aggressive SEP royalty demands and pleased to see that two new industry initatives relating to FRAND were launched this week:

  1. ACT | The App Association has announced a new web resource for innovators, policy-makers, and academics. It's called All Things FRAND and supported by significant players including Cisco, Intel, and Microsoft. ACT is headquartered in the U.S. but also quite active abroad.

  2. The new FairStandards Alliance is based in Brussels, the de facto EU capital. Its website says: "We are friends of FRAND"

    The FairStandards Alliance is off to a pretty good start with this position paper and support from an interesting mix of IT (Cisco, Dell, HP, Intel, Juniper), mobile/IoT (Fairphone, India's Micromax, Lenovo, Sierra Wireless, Telit) and--this is particularly interesting but not surprising to me given that cars are increasingly "smartphones on wheels"--automotive companies (BMW, Volkswagen).

Both these initiatives are interested in various FRAND-related issues. The FairStandards alliance is particularly clear in its support of a proper royalty base. That question (on which Apple has been vocal in court and in standard-setting organizations) also appears to be key to findings of South Korea's Fair Trade Commission in an investigation of Qualcomm's licensing practices, including its device-based pricing strategy. I agree with analysts who view this as spelling trouble for Qualcomm. South Korea's FTC may very well get support, in political terms, from the two new FRAND initatives launched this week.

In the past, Qualcomm got away pretty much unscathed, at least in the EU. Even its Chinese settlements appears not to have caused similar worries in the investment community. South Korean antitrust enforcers are apparently taking the lead now with respect to this particular SEP holder, and I applaud them for their courage and steadfastness.

It would be great if Apple (which has always been on the good side of FRAND) and Google (which appears to be on the good side by now) could also lend support to one or more initatives of this kind. Google and Cisco have often agreed on patent policy matters. Why not on this one?

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Wednesday, November 18, 2015

EPO labor dispute getting completely out of hand: three union leaders suspended, others pressured

The conflict between the leadership and staff representatives of the European Patent Office appears to be totally out of control now. The latest information would be unthinkable anywhere in the civilized world, but the European Patent Organization simply isn't part of the civilized world around it.

On Monday, the Staff Union of the European Patent Office (SUEPO) published a flyer about what allegedly happened in The Hague (the EPO's #2 seat in terms of the number of employees) on Friday (this post continues below the document):

15 11 16 SUEPO Flyer by Florian Mueller

Let me copy the three key allegations here--they just refer to two of the staff representatives by their first names, with "Jesus" being a typical Spanish first name (with an accent over the "u") and "Laurent" being a common French first name:

  • Jesus was picked up from his office by President's emissaries. Upon return, he was visibly shaken and appeared to have suffered a nervous breakdown. Medical help was called, and he had to be wheeled out of the office in bad shape. He appears to have been subjected to severe, concerted and wilful pressure, especially intended to harm and destabilise.

  • Laurent got or was scheduled to get a similar treatment. Noticeably distressed, he had to rush for medical help externally.

  • The other members of the Staff Committee who witnessed the event were also deeply perturbed.

The last time I read stories like that they referred to Romania under its communist dictatorship. They also picked up people who returned in a perturbed state, though they also made them disappear quite often.

Last night I got a message--from a reliable source I won't disclose but it's nowhere near Munich--that three leaders of SUEPO's Munich chapter have been "suspended," among them Elizabeth Hardon, who recently wrote a letter complaining about the way she was treated. Also, the EPO had threatened legal action against her.

According to what I read on Twitter, TechRights blogger Dr. Roy Schestowitz (whose blog cannot be accessed from the EPO network without the use of software work-arounds for this kind of censorship) has also received legal threats from the EPO leadership. No details have become known yet.

I have not been threatened so far, but I am deeply sorry for those who have been. Rumor has it that Mrs. Hardon and Dr. Schestowitz are not the only ones.

It appears that Mrs. Hardon has decided to rather be proud and "suspended" than bow to lawlessness, corruption, and evil. I am so sorry for her and the other suspended union leaders, and I truly admire them for their steadfastness.

Dr. Schestowitz also deserves the greatest respect for his principled stance. Despite all the bullying, he continues to call out the EPO leadership on its actions and decisions. Most recently, TechRights has started to talk about the unbelievable, extraordinary career path of Mrs. Elodie Bergot. It appears that the juiciest part of the story is actually not even on that blog but hidden somewhere between the lines of that post or the forthcoming one (Part II) on the same topic.

TechRights is a blog I recommend all those concerned about the EPO's corrupt ways to read regularly. I will write about EPO issues from time to time, but not nearly as often. Also, I wish to highlight the IP Kat blog's announcement of forthcoming reports on staff suspensions and other EPO issues for this week.

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