An Alice motion in the Apple v. Ericsson case pending in the Northern District of California has reignited my interest in this dispute, and I'll soon take a look at the ITC and Eastern District of Texas proceedings and will try to find out more about the cases that will go to trial in Mannheim, Germany, on January 19, 2016.
Yesterday, Ericsson filed its opposition to Apple's motion (this post continues below the document):
I'm not convinced by Ericsson's legal argument that the challenged patents cover more than the underlying abstract ideas. Basically, Ericsson refers to all sorts of technology and real-world values that are referenced, but that's not the substance of the patent: the most important question is whether whatever may (or may not) be novel goes beyond the underlying abstract concepts. Those patents don't cover antennas, for example. They refer to radio transmissions of signals, but they aren't radio patents. They are protocol patents, and I stand by what I wrote in my previous post: protocols should be patent-ineligible under any reasonable interpretation of Alice.
Ericsson points to "the Supreme Court's caution against too broad an application of 'this exclusionary principle lest it swallow all of patent law.'" It's true that the most extreme interpretation of 35 U.S.C. § 101 could limit the patent system to little more than mechanics, molecular pharmaceutics, and maybe electricity, too. But even if Apple succeeded in shooting down protocol patents, it wouldn't even be the end of all wireless patents.
Ericsson says the following about the lack of legal certainty in the Alice context:
"The Supreme Court has not 'delimit[ed] the precise contours of the ‘abstract ideas’ category.' [...] Nevertheless, the cases in which the Court has found patent claims to be directed to abstract ideas provide guidance."
The first sentence is correct. The second one is not incorrect per se, but it's incomplete. It's a half-truth. Of course, the cases in which the Supreme Court has held subject matter patent-ineligible are even more extreme cases than protocol patents. But Ericsson doesn't talk about how little the Supreme Court actually has held patent-eligible. Legal certainty for holders of patents that involve software exists pretty much only in connection with computer-controlled manufacturing processes. Protocols are far closer to the Bilski and Alice kind of patents than the physical process patent in Diamond v. Diehr.
Apple is fighting a good fight here.
Via TechRights I've become aware of this Lexology article by four Morrison & Foerster lawyers (I had seen the names of two of them before, in Oracle v. Google if I recall correctly) about "[a] chilly reception for Section 101 challenges at the ITC." I haven't watched any ITC cases recently but will at least take a look at the investigation of Ericsson's complaint against Apple. The ITC also took a different position on injunctive relief over standard-essential patents than district courts. In connection with validity determinations, however, the ITC cannot even argue that it faces a different situation because of a different set of remedies. In that context it absolutely has to be consistent with the case law outside the U.S. trade agency.
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