Post #21: Apple defeats Samsung in claim construction

http://www.fosspatents.com/2013/04/apple-defeats-samsung-in-california.html

While the official second trial between Apple and Samsung is set in 2014, a claim construction, ordered by Judge Lucy Koh, was issued on Wednesday. For the uninitiated, a claim construction means that the court defines how certain terms in an asserted claim must be properly understood. This is basically a pre-conflict before the actual trial where Apple and Samsung duke it out on how terms and claims are defined.

In this claim construction, Apple won in each and every disputed term, without any modification by the court. There were four patents. The patents are: (1) U.S. Patent No. 5,666,502 on a "graphical user interface using historical lists with field classes" (2) U.S. Patent No. 5,946,647 on a "system and method for performing an action on a structure in computer-generated data" (3) U.S. Patent No. 7,761,414 on "asynchronous data synchronization amongst devices", and (4) U.S. Patent No. 8,014,760 on "missed telephone call management for a portable multifunction device".

Samsung tried to narrow the scope of the patent terms. However, the company's claims were unfounded and ultimately could not make any revisions. The results of the claim construction are tell-tale of how the trail will go in 2014. Samsung will have difficultly arguing against terms that are defined by Apple. To be fair, there are a variety of other claims that Samsung won a revision in the definition. However, Apple won the dispute on each of their main assertions. However, it will still be difficult for Samsung to battle these claims they already lost on.

Post #20: USPTO Takes action to reduce RCE Backlog

http://www.patentlyo.com/patent/2013/03/uspto-takes-action-to-reduce-rce-backlog.html
http://www.ipwatchdog.com/2013/02/20/will-the-uspto-outreach-fix-the-rce-backlog/id=35472/

The backlogs for RCE, requests for continued examination, are growing dramatically in the USPTO. While our class focuses on the ITC, I am sure there is a similar phenomenon happening in there as well. The chart above, from patentlyo, is the # of backlog RCE filings that have not received a first action. There is a drop rate in the # of RCEs being examined. The increase of RCE filings, along with the drop rate in  examinations, has resulted in the increase of the backlog.  There is a caveat, albeit small, in the docketing, quota, and count systems for examiners.

Also interesting is there is a dip in backlogs in September, which is when most examiners are trying to reach their end of year numbers. THE USPTO has recognized this issue and has reverted to the old system to give more credits for RCE backlogs, hoping to incentivize examiners to process these backlogs.

There is pressure to do this since overall allowance rate is up in the Obama administration compared to Bush era. A while back, patent examiners would take 2 or 3 months to pick up a RCE. Now the wait is one or two years. Some RCEs can take up to 4 or more years. This is because RCEs are placed on a special docket for examiners, some of which only do 12 RCEs a year. 

On the flip side, it would exceeding difficult to remove RCEs all together. Reducing RCEs as well is a challenge because allowing RCEs is a necessary function of the patent system. People will always be unsure if the examiner considered their patent fairly. However, many believe reverting to the old method will help reduce RCEs because examiners will have a greater incentive to complete more RCEs.

Definitely and interesting bit of patent knowledge I did not know. 

Blog #19: Apple v Samsung: Apple can seek more than $1B

http://www.fosspatents.com/2013/03/samsung-filing-confirms-apple-can-seek.html



After the $1B verdict favoring Apple in the recent Apple v. Samsung case, Samsung filed a plea which resulted in a verdict that many believed would reduce the payout to $600m. However, critics said that infringement could result in a final number higher or lower than the original $1B. This is because the $600m was not finalized and a new jury was called in for this plea hearing. With a new jury, the actual amount could be higher or lower, therefore a new judgement.

Last Friday, Samsung confirmed that Apple can seek even more damages on the products in the new trial. This has The $600M figure is what Apple has already earned. This means Apple is most likely to gain part of the remaining $450m or even more than that.

The author of this article believe that Apple has a good chance of winning a significant amount of additional loss claims from the new judgement. This is because, under the verdict, the timeline of applicable patents were shifted up to 2011. In terms of sales, Samsung gained most of its earnings from their android products after this date. Also, the $1B payout is actually only 40% of the total claims lossed, which is above $2B.

So what is next? Both have a strong defense (offense respective to Samsung). However, most media has believe the $450m has been removed, but it is only not granted for now. Apple still has much upside to gain even above the $1b. It will be exciting to see how the final results turn out. It will not be short in time however.

Blog #18: Critism against Google's 10 patent pledge

http://www.fosspatents.com/2013/03/googles-promise-not-to-assert-10.html



Yesterday Google decided to pledge a total of ten patents that it would not assert against open source software. Google is definitely not a first mover with this type of tactic. IBM has pledged over 500 and Sun Microsystems around 1,600. For IBM and Sun Microsystems, the reception towards these patent pledges were not warmly received. They received initial publicity for their action but people soon realized that their pledges were so limited it made little changes to the ecosystem. Because of this, no one since IBM or Sun has tried this since Google.

So what are they doing different?

According to the author of the article, not much. In fact, they are doing much less. What's worse, Google recently gave HTC patents to sue Apple over. The author is pretty skeptical and unsure of Google's reasoning for doing this.

He brings up an example of Microsoft, who pledged to not sue open source developers on all of this patent portfolios. Also, Microsoft allows individuals to track Microsft patents. Google doesn't provide transparency into its own patent portfolio and so thus no access to the # of total portfolios.

I think the author has a point but many not have considered the value of the individual patents that Google pledged, which could be pretty substantial.

Blog # 17: Patent filings increase substantially this month

http://www.patentlyo.com/patent/2013/03/pre-aia-filing-numbers.html

Patent filings tripled in March compared to January and February. In January, there were a total of ~20,000 non-provisional applications and ~12,000 provisional applications. February saw similar numbers. However,  in March, ~60,000 non-provisional applications and ~33,000 provisional applications were filed. In the week ending on March 15^th, ~34,000 non-provisional applications and  ~24,000 provisional applications were filed.

What is the reason for the huge surge in patent filings? March 15^th marks the last day patent applications could be filed under the old first-to-invent regime. New applications filed afterwards will be judged under the first-to-file regime of the American Invents Act (AIA).  

After reading this article, I decided to look into the difference between the two forms of filing.

First-to-invent: When an inventor conceives of an invention and diligently reduces the invention to practice (by filing a patent application, by practicing the invention, etc.), the inventor's date of invention will be the date of conception.

First-to-file:  In a first-to-file system, the right to the grant of a patent for a given invention lies with the first person to file a patent application for protection of that invention, regardless of the date of actual invention.

It is interesting that people are rushing to file under the first to invent method. I wonder if those individuals prefer the old method because they prefer the mechanism, or they have an invention that is competing for the first to invent not first to file (competing against other patent filers). Either way, it seems like there are some steady job opportunities for patent lawyers these coming months. 

Blog #16: Intellectual Ventures vs. Symantec

http://www.patentlyo.com/patent/2013/03/intellectual-ventures-v-symantec.html



Very interesting lawsuit. I made a previous post on Intellectual Ventures. It seems like an interesting company that is seen by some as a patent troll. IV, like other non-practicing entities, rarely resort to litigation when asserting patents. However, in a recent suit against Symantec did not budge. This is one of the first litigations for Intellectual Ventures.

From Intellectual Ventures "“In an effort to protect the intellectual property assets of Intellectual Ventures, we must take steps to stop the use of our patents without license" 
Also:  “We have been unable to reach an agreement with Symantec, and, in addition to their infringement of software security patents, we determined the company’s server and storage management products also infringe IV patents. As a result, we found it necessary to file this second complaint.”

The litigation involves US Patents Nos. 5537533;6589131;6732359;5987610;6073142;6460050;7506155. This totals to seven patents against Symantec. This is the second time that IV has sued Symantec recently.

The most interesting part is which companies these patents originally came from. Many of them had went through bankruptcy. Companies include: So. Pak Pte., LLC, Oxtapro Tre, BellSouth, Ameritech, University of Texas, individual entrepreneurs, InfoBahn, and many more. After reading this article, it seems to me that IV is acting more and more like a patent troll. As we learned from Uzi in class, the only true definition of a patent troll is one that makes money on settlement only if it is less than the cost of defending the patent. IV, which is definitely major player in this space, is seeming more and more like this.

Blog #15. Samsung Claims Ericsson is a Patent Troll

http://www.fosspatents.com/2013/03/samsung-says-ericsson-behaves-like.html


Samsung and Ericsson have a particularly interesting patent battle. Two months ago in December Samsung brought on seven 4G/LTE-related patent cases against Ericsson. Eefore that, Ericsson filed complaints on Samsung in both the Eastern Distict of Texas court and in the ITC. Both are accusing each other of failure to comply to FRAND licensing obligations.

Samsung, seeing this as a particularly offensive move, counter sued Ericsson with eight other patents.
These patents are also very related. Theres patents cover the following areas:

1. CMOS memory devices
2. Protected plugged contacts and upper interconnections for semiconductor devices
3. SC-FDMA communication
4. ACK/NACK messages
5. Mobile communication methods
6. Inter-cell inference mobile communication
7. CRC for multiple block codes

Most interestingly, Samsung has filed this claim with some aggressive words:

" Ericsson has recently jettisoned its mobile phone business and it now feels unhinged as a non-practicing entity in the mobile phone market to extort vastly unreasonable and discriminatory license fees from Samsung under threat of product exclusion resulting from a simultaneously filed complaint in the U.S. International Trade Commission ('ITC'). Ericsson's misguided actions epitomize the patent 'hold up' problem that has been the recent subject of wide discussion within standard-setting organizations and other authorities around the globe "

"Ericsson seeks to dismantle the standard-setting framework with unreasonable and discriminatory license demands from a willing licensee under threat of product exclusion."

I wonder how this will play out in the future. It seems like, despite the mass of patent wars, Samsung is taking this one somewhat personally.