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Comment Re:Apple's proporsed answer to Lodsys's complaint (Score 1) 83

You keep failing to acknowledge that what you claimed was wrong. It doesn't matter for this particular discussion between us what's in the Apple license agreement. You claimed that once Apple is admitted as an intervenor, it can bring up other defenses. That's why I pointed you to Apple's proposed answer to Lodsys's complaint, which is limited to only one defense (exhaustion). Don't try to confuse reasonable, unbiased readers here who follow our discussion. You said something utterly uninformed and you desperately try to muddy the water. But that's very transparent.

Comment Apple's proporsed answer to Lodsys's complaint (Score 1) 83

You attack all sorts of other points that I'm not interested in discussing with you. The topic here was what Apple's proposed defense against Lodsys is. That one is available on Scribd as a PDF document for everyone to read, and it raises only one defense: exhaustion. Here's the Scribd link. Compare the substance of that document to your off-base claim that Apple raised exhaustion only as a reason for an intervention without limiting its defenses to that one.

Comment Re:'Patent exhaustion' _is_ a complex isssue (Score 1) 83

Thanks for this support. The fact of the matter is that the world's leading news agencies, newspapers and websites quote me regularly on these topics -- in the U.S., in Europe, in Asia, in Australia, at times even in Latin America. I furthermore have a host of financial services companies among my clients asking me for advice as they shape their investment decisions. Those audiences are obviously more important to me, and it turns out that the quality of Slashdot due to the criteria by which people vote posts up or down is a serious issue that I can't solve -- Slashdot has a lot of work to do if it wants to stay relevant.

Comment Re:'Patent exhaustion' _is_ a complex isssue (Score 1) 83

My reading of the documents suggests you missed the point entirely here. Apple is not claiming exhaustion as a defense for infringement for their developers. They are claiming exhaustion as a reason for their intervention under Fed R. Civ. P Rule 24(a). As such they do not have use it as a defense. What is important are the terms of the licenses which, again, no one here has read. You also ignored that Apple cites Fed. R. Civ. P. Rule 24(b) as another reason for the court to grant them leave to intervene.

Your reading of the documents is completely off base. Apple's motion for an intervention comes with a proposed answer to Lodsys's complaint, which raises only one defense: exhaustion. You could have read that on my blog. The other points you make are equally off-base.

Comment 'Patent exhaustion' _is_ a complex isssue (Score 1, Insightful) 83

If things were as easy as you (gnasher719) say, it would certainly be just a matter of contract interpretation. But it's not. You wrote your post prior to reading my explanation of why it's far from easy to argue with the existing license agreement. I linked to that explanation before.

Apple (and Google and others) got a license to Lodsys's patents not from Lodsys itself but from Intellectual Ventures, along with roughly 30,000 other Intellectual Ventures patents. It's highly unlikely that Intellectual Ventures' standard patent licensing agreement says anything about 'app developers'. Chances are 99.99% that the term 'app developers' doesn't appear in that license agreement at all.

The analysis of whether or not Apple's license constitutes 'exhaustion' of any given Lodsys patent is no less complicated than analyzing Lodsys's infringement assertions. As I explained on my blog, 'exhaustion' is a concept that requires an in-depth technical analysis of the technology that is licensed (in this case, Apple's technology) and the one that is accused of infringement (the apps) and, very importantly, how those two layers interact. This means that the court has to go through a detailed technical analysis based on so-called infringement claim charts, which typically require the construction (interpretation) of the most relevant terms used in the language of those patents.

What I just said is also supported in full by Apple's own arguments to the court for why its intervention should be admitted (Apple stresses that only Apple itself can explain how its technology works) and a letter sent to the court by Atari, Electronic Arts, Quickoffice and Square-Enix in support of Apple's proposed intervention. Those four companies also stress the importance of access to Apple's information not only regarding the license agreement but also the technology at issue.

Exhaustion defenses are very difficult to analyze. Do some research on the case law and you'll see that those mattesr are by no means less difficult to analyze than infringement assertions.

Comment Small step is correct -- this is too little, still (Score 2, Insightful) 83

I welcome the fact that Google finally does at least something (after months of not answering related questions from affected Android app developers), and Google did a very good job so far on patent reexaminations in its dispute with Oracle.

However, these reexamination requests are of very limited use on their own . They don't change the situation of developers who get letters from Lodsys or are actually sued by Lodsys and have to decide whether to pay up or fight. Even the combination of Apple's motion for a narrowly-focused intervention (Apple just raises contractual issues as opposed to defending app developers against Lodsys's infringement assertions per se; Apple's 'exhaustion' theory could work but it's far from certain to hold water) and Google's reexamination requests doesn't really strengthen little 'indie' app developers at this stage. Also, the Wired article pointed out that the U.S. District Court for the Eastern District of Texas grants stays pending reexaminations only in 20% of all cases. Most of the time, those federal lawsuits continue unabatedly, even though the patent may subsequently be invalidated.

Short of blanket coverage from Apple and Google, what those two platform companies do against Lodsys is insufficient. It would be great if they could give their developers some real guidance -- many right now don't even dare to implement in-app purchasing or links to an app store (Lodsys also brings assertions against links, not just in-app purchasing) because they don't want to take risks. Others have removed their apps from the U.S. market because of Lodsys (which goes after international developers, too, but can only sue them if those do business in the U.S.). Apple and Google fail to create a basis on which developers would be able to simply ignore Lodsys and go about their business.


Submission + - Microsoft Gains Ground In Motorola Patent Lawsuit (

An anonymous reader writes: In its Android-related patent suit against Motorola, Microsoft has just netted a
'major win' according to the Seattle Post-Intelligencer's Microsoft blog. also says Microsoft is 'scoring points'. Both articles refer to a recently published claim construction order by the ITC judge investigating Microsoft's complaint, which could result in an import ban against Android-based Motorola smartphones. Claim construction is an intermediate step and important milestone: depending on how the language of the asserted patents is interpreted, a defendant may or may not be found liable for infringement. Motorola's proposed interpretations were adopted by the judge in only 5 of 22 cases. Motorola was the first Android device maker to be sued by Microsoft. HTC is reportedly paying Microsoft $5 per Android device, but prices have gone up, says the same analyst. More recently, Microsoft also sued Barnes and Noble (and its manufacturers FoxConn and Inventec) over the Nook and Nook Color e-book readers. That's why Microsoft's patent litigation with Motorola is of concern to a number of companies.

Desktops (Apple)

Submission + - Window 8 to look like Windows Phone 7 (

NicknamesAreStupid writes: According to Computer World, Microsoft is previewing the new UI for the next generation of Windows. It looks a lot like the UI for their Windows Phone, you know, the phenomenally successful device that has taken over the mobile world, uh, maybe not. Apple chose not to use such a touch paradigm for their iMacs UI because the touchy-feely interface was not considered intuitive. Who is right?

Comment Re:Those files were distributed by device makers (Score 0) 123

Again, I don't have to prove something I never said in the first place. My original post on that copyright issue didn't claim that any phone contained that code. So why would I have to prove it? Only because someone purposely misunderstood what I had written? In terms of copyright infringement, it's very simple: an infringement is an infringement is an infringement. And the mere publication of such files on the Internet is an infringement is an infringement is an infringement.

Comment Re:Those files were distributed by device makers (Score 0) 123

If you want to prove me wrong, show me that none of those phones shipped them. In my original post on the Oracle/Google copyright issue I didn't even say that it was shipped on any particular phone. That was just a strawman set up by Ed Burnette, a ZDNet blogger. Re-read my original January 21, 2011 post on this topic: everything I said in there was correct. You might also want to read this blog post, which quotes from an official court document that shows Oracle did present those decompiled Java files to the court.

Comment Re:Those files were distributed by device makers (Score -1, Troll) 123

The fact that some device makers included them in their source code distributions while others left them out could indicate that some actually used those files while others didn't. Apart from that, even just distributing such files online raises copyright liability issues.

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