The last seven days have been the slowest seven-day period period on the smartphone patent litigation front in several months. There were various smaller developments in different places, but none of them met the threshold for justifying a dedicated blog post. Now it's time for a roundup, and for a preview of major events scheduled in some key lawsuits between now and the end of the year. Between now and mid-December, all three leading Android device makers -- Samsung, HTC and Motorola Mobility -- could be affected by major decisions.
Those who follow me on Twitter and/or Google+ saw that I was still around and monitoring everything for my readers (and my clients). On those platforms I also mentioned my new Galaxy Note. I'll also say something about that one toward the end of this post.
I will now provide an update and a preview, covering each of the major disputes in a separate section.
Apple v. Samsung: decision on US-wide preliminary injunction is imminent; hearings in several jurisdictions
Apple v. Samsung is a world-spanning patent war that is always fascinating to watch. They are suing each other in so many places that there are sometimes two hearings on the same day involving those parties.
A decision on Apple's motion for a US-wide preliminary injunction against four Samsung products is imminent. At the end of a recent hearing, Judge Lucy Koh said she would decide "soon", and I actually thought the decision was still going to be handed last month, even though the parties were still fighting over the admissibility of certain evidence two weeks ago.
Whichever way this decision goes, it will be an important one and I believe the court strives to be exceptionally diligent about it.
It's very unlikely that Apple will achieve a ban of all four accused Samsung products. For one of those products, the Infuse 4G, the motion related only to a list-scrolling patent. The judge indicated that if there is an injunction, it won't be based on that patent. Even if it was, Samsung has already worked around that patent (as I'll discuss in the final section of this post, which is related to the Galaxy Note).
The judge also had some doubts about the validity of Apple's asserted design patents, but appeared to be quite convinced of there being an infringement, and independent experts have similar doubts. It's impossible to tell how this will work out. Maybe Apple will achieve a partial victory. Even in that case, I believe Samsung will continue to fight on. Its wireless communications devices business now accounts for 60% of its profits in the last quarter. According to certain surveys (such as this one), Samsung was the leading smartphone maker (by units) in the third quarter, though Apple has a good chance of reclaimining the number one spot now that the iPhone 4S is being rolled out around the world.
Samsung is trying to shut that one down in several countries. On November 15, there will be a hearing in Paris, and also a hearing in Milan on December 16 (as I reported). The French lawsuit could become particularly important since ETSI, the telecoms standard-setting organization in connection with whose 3G (UMTS) standard Apple raises FRAND defenses against Samsung, is in France and judges in the Netherlands as well as in Australia have independently concluded that the relevant commitments must be construed under French law.
In the Australian dispute, Samsung demands access to the iPhone 4S source code.
In parallel to its attempts to attack the iPhone 4S, Samsung also tries to get preliminary injunctions lifted in the Netherlands (where a related hearing has been scheduled for December 15) and in Australia (where Samsung initially opposed an expedited schedule but now supports it in connection with its appeal).
Apple v. HTC and S3 Graphics v. Apple: last-minute attempts to delay ITC proceedings are apparently failing
S3 Graphics must be viewed as a party to the dispute between Apple and HTC. It is being acquired by HTC and brought two ITC complaints (as well as federal lawsuits) against Apple.
The ITC investigation of Apple's first complaint (of two) against HTC is now nearing the final decision (scheduled for December 6). HTC has received support from the ITC staff (the Office of Unfair Import Investigations, to be precise) with respect to public interest concerns related to 4G devices while Apple's position is backed by an industry body named the Association for Competitive Technology (ACT).
In parallel to the public interest debate, HTC has formally proposed that the ITC drop one of Apple's patents (the narrower one of the two patents an Administrative Law Judge deemed infringed by HTC) from the investigation on the grounds of so-called intervening rights. On October 24, the ITC asked HTC to "show cause" and is apparently rather skeptical of the merits of this motion, as one can tell based on how HTC itself states, at the start of its October 28 reply, the questions raised by the ITC:
"The Commission's October 24, 2011 Order to Show Cause ('OSC') asks Respondents HTC Corp., HTC America, Inc. and Exedia, Inc. (collectively, 'HTC') to address two questions: (1) why HTC's motion regarding intervening rights ('HTC's Motion') should not be dismissed in view of Commission rules; and (2) if there is an alternative procedural basis for HTC's Motion that is appropriate and ripe."
Those questions are almost rhetorical in nature...
But a last-ditch AMD/ATI initiative in support of Apple against S3 Graphics is similarly unlikely to succeed. In late September, AMD claimed to be the rightful owner of the patents S3G is asserting against Apple. Two weeks ago, after reviewing the redacted version of S3G's reply, I already expressed skepticism in a blog post:
"Most of the interesting information in those documents is redacted, but to the extent that material was in the public record, I must say that I'd be rather surprised if ATI turned out to be right. I will keep an eye on that development but for now I'm inclined to assume that S3G is more likely than not to be the rightful owner of the patents it's asserting in that ITC investigation."
That skepticism of mine is further validated (even if not yet definitively) by the fact that the United States District Court for the District of Delaware denied AMD a preliminary injunction that would have barred S3 Graphics from further pursuing its first ITC complaint against Apple. A motion for a preliminary injunction can fail even if a full-blown proceeding results in a more favorable ruling, but the plot is definitely thickening that this ownership dispute lacks merit.
Finally, there's a third late-stage ITC investigation involving Apple and HTC: the one related to HTC's first ITC complaint against Apple. The initial determination found no violation. However, the asserted patent claims were held valid, which means that HTC may not be light years away from winning an infringement finding (or two or more). The hurdle is highest if one has to overturn both an invalidity determination and a non-infringement finding.
At this stage, the related documents are sealed, but I saw on the ITC document server that HTC filed (unsurprisingly) a petition for review, while Apple filed only a contingent petition for review, meaning that Apple would rather close that case on the current basis (which is obviously good for Apple) but if the Commission (the six-member decision-making body at the top of the ITC) decides to review the judge's initial determination, Apple wishes to raise various additional questions that could up the ante for HTC.
We should know before the end of the year whether or not the ITC decides to review that initial determination.
Motorola Mobility v. Apple: hearing scheduled for December 8-16, investigation delayed by 5.5 months
By mid-January, the Administrative Law Judge investigating Apple's ITC complaint against Motorola Mobility will make an initial determination. The target date was extended by about six weeks due to the ITC's resource constraints (relative to its immense popularity).
On October 24, a newly-recruited Administrative Law Judge, Thomas B. Pender, was assigned to the investigation of Motorola Mobility's complaint against Apple. In early August, all dates and deadlines in that investigation were vacated after the ITC's former chief ALJ Paul Luckern retired surprisingly. A hearing was actually scheduled for August 22-26, but it was also postponed indefinitely at that point. Now the new ALJ has entered two orders. He extended the target date by approximately five and a half months from March 8, 2012 to August 23, 2012. He will make his initial determination on or before April 23, 2012. The hearing will take place on December 8-16.
While I presume that Motorola isn't too happy about this timeline, I guess they're glad that this case is at least continuing and that a hearing will take place in the very short term. There was no guarantee that it was still going to happen this year.
Microsoft v. Motorola Mobility: initial determination on Microsoft's complaint scheduled for December 16, new judge assigned to Motorola's case
Just like Apple, Microsoft also has to wait an additional six weeks for the initial determination on its complaint against Motorola Mobility. In Microsoft's case, that one is scheduled for December 16, and it seems that Microsoft is aiming to have Motorola Mobility (and Android at large) found to infringe multiple patents.
On October 24, a new Administrative Law Judge, David P. Shaw, was assigned to Motorola's case against Microsoft, which is only about the Xbox (pretty much the only product Microsoft imports into the United States). This was one of the first ITC investigations from which the staff withdrew for a lack of resources.
It remains to be seen whether the new ALJ will order a new schedule. So far he hasn't.
On October 21, just three days before turning this case over to ALJ Shaw, the ITC's new Chief ALJ, Charles Bullock, denied a Motorola motion for summary determination (the ITC equivalent of what is called summary judgment in federal court) that it satisfies the ITC's domestic industry requirement with respect to the asserted patents. In order to obtain a favorable ITC ruling, a patent holder must show not only that a patent is vaild and infringed (those two requirements also apply to federal courts) but furthermore satisfy the domestic industry requirement. Without it, there's no import ban. The order denying Motorola's motion is sealed, so I don't know whether the issue just wasn't ripe yet (the investigation is certainly at a rather advanced stage) or whether Motorola faces major problems satisfying that crucial requirement. We should know in the not too distant future.
Oracle v. Google: Lindholm saga still not over
Even though the trial of Oracle's lawsuit against Google has been pushed off into next year (or even beyond in the event of a stay), there are still some motions over which the parties are arguing, and the judge continues with certain preparations. For one of many possible examples, he has asked the parties to produce color-coded claims highlighting the areas of disagreement for the future jury.
Both parties wanted to bring some additional summary judgment motions (beyond the ones that are already being argued). The judge refused all those proposals (for reasons including judicial resource constraints) with only one exception: Google gets another chance to challenge the copyrightability of Oracle's Java APIs. I will report on that one in due course.
One of the motions currently being argued relates to the Lindholm email, a potentially "damning" Google-internal email that could be a very important piece of evidence in Oracle's favor because it indicates that Google was quite aware of the need to take a Java license from Oracle. Google made four attempts to have it declared privileged, in which case Oracle couldn't present it to the jury. All four attempts failed. But now Google is fighting to have it at least declared confidential. Mr. Lindholm's Scandinavian ancestors of centuries ago had a penchant for long sagas, such as the Edda, but this one may be too long even for their taste.
This is how Google seeks to justify its insistence:
"Google respectfully disagrees with the Court's October 20, 2011 Order [...] holding that the Lindholm email is not protected by attorney-client privilege or work-product immunity. Google intends to seek appellate review of that decision. In order to preserve its ability to seek that relief, Google must take all 'reasonable steps' available to prevent disclosure of the information Google contends is privileged and confidential. See [Federal Rules of Evidence] 502(b). As a result, Google cannot withdraw this motion, as Oracle has invited it to do."
It already seemed to me months ago that Google is preparing for a possible appeal if this case gets lost. This request to have the email declared confidential appears to be a long shot since the judge indicated in his order (the one denying privilege) that he doesn't believe it's a document of the kind that deserves confidential treatment in a lawsuit like this. But he did concede that Google would be free to pursue its objective of having the document declared confidential.
Partly off-topic: observations after five days of using the new Samsung Galaxy Note (XXL smartphone)
On Friday, Amazon delivered the Samsung Galaxy Note that I ordered a few days before. I configured it on Saturday and have been using it as my mobile phone since. Some people claim that it's too large for a phone and should be viewed as a small tablet computer. I can understand that, but so far I'm fine with using it as a phone. It just about fits into my pockets.
I also have an iPad 2, but I haven't found much use for it to be honest. I may use tablet computers to a greater extent in the future, but so far my take on those devices is "bipolar": there are real computers, and there are smartphones. The Note falls in the latter category for me personally. The screen is not as good as the one of the Galaxy S II (it's less brilliant), but I find its large size pretty convenient for reading and typing purposes.
Further above I mentioned that Samsung has already removed Apple's patented overscroll bounce effect from its newer operating software versions. On the Note I now get a blue overscroll glow instead of a bounce. In the photo gallery, the frame of an image gets temporarily stretched a bit if I try to scroll beyond one end of the gallery. Both workarounds are nicely done but very unsatisfactory. I really miss the overscroll bounce, which is the only completely intuitive solution. With all alternative approaches one always figures out only after the fact why the screen content doesn't move along with one's finger. As a Galaxy user, I hope Samsung can work out a license deal with Apple concerning that feature, even though Apple doesn't appear (at least at this stage) to be interested in entering into a comprehensive cross-license agreement.
Concerning another feature patented by Apple, the Galaxy Note operating software still has the number-tapping feature that is at issue between Apple and HTC (that's the one HTC wants dropped from the investigation at the 11th hour). However, it works well only for U.S. phone numbers. It fails to recognize most European phone numbers, which shows that Google and/or Samsung didn't do a good job at internationalization.
Another flaw -- which may also affect all newer Android versions, not just Samsung's products -- is that I can't edit the sender name in the Email app (the standard email client, not the GMail one). I wrote about it on Google Plus, and a couple of readers told me where to look for the related option in the General Settings menu. I remember that option from my Galaxy phones, but I can't find it on the Note, and someone said that it's a general Android problem. This shortcoming and the difficulty of finding a documentation of those standard apps are disappointing.
Another negative thing I unfortunately have to say about Samsung's Galaxy products is that the alarm clock is very bad and, at least on my Galaxy phones, highly unreliable. It's so bad it's better not to use it at all. I still have separate alarm clocks, though one day I hope I won't need them and can use a smartphone instead. It starts with a poorly-designed user interface. The standard mode of operation presumes that I want weekly alarms, which is -- sorry to say -- nothing short of an idiotic assumption. Most alarms are one-time events. There are also daily alarms that people use and it's nice to have repeat alarms available, but the user interface should make it as easy as possible to set a one-time alarm. Not with those Galaxy devices. Assuming it's 10 PM on one day -- let's use Wednesday as an example -- and you set the time to 6 AM, the alarm will be scheduled for 6 AM on the following week's Wednesday. You have to actually change the weekday in order to set it for Thursday, though the thing should be smart enough to figure at which time you want the alarm. That's a badly-designed user interface and I don't know whether it's Google or Samsung or both of them who are unable to do a decent alarm clock UI. But there's a much worse problem: the alarm clock is highly unreliable if one switches off the phone. On my Galaxy S I and S II, the alarm clock would work in that scenario only about 10% of the time.
I'll see how it works with the Note. Or maybe I'll need to download a third-party app. But at any rate, I think Google and Samsung can do better than that, and this kind of failure has nothing to do with Apple's or anyone else's patents. It has to do with commitment to quality and user experience.
Still, I hope that these issues will be solved over time, and I do commend Samsung for having created a very innovative and useful form factor with the Galaxy Note. I hope this form factor will be here to stay.
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