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Apple, Motorola, ITC - Federal Circuit Remands - The Beat Goes On ~pj
Wednesday, August 07 2013 @ 05:28 PM EDT

The Federal Circuit has just ruled in Apple's appeal of a final ruling of the ITC, which had ruled in Motorola's favor, overturning the ITC in part and remanding the case:
Apple appeals from the final decision of the International Trade Commission (ITC) that the asserted claims of U.S. Patent No. 7,663,607 (’607 patent) are invalid and that Motorola does not infringe the asserted claims of U.S. Patent No. 7,812,828 (’828 patent). Apple challenges the ITC’s claim construction and its determinations of obviousness, anticipation, and noninfringement. For the following reasons, we affirm-in-part, reverse-in-part, and vacate-in-part the ITC’s decision and remand for further proceedings.
So the ugly dance continues. Apple started the show in this particular tent of the overall smartphone patent wars circus, suing Motorola at the ITC for infringement of various claims of Apple's ’607 and ’828 patents, which are about touchscreens and multi-touch. The ITC found that Motorola didn't do what the claims cover, and Apple appealed. As you know, the Federal Circuit never saw a patent it didn't love, or at least rarely do they, and in their opinion, the ITC didn't correctly throw out certain prior art or come up with the correct construction of another patent, blah blah, and under the new Federal Circuit definitions and guidance, Motorola might infringe, so back it has to go to the ITC to reconsider the Federal Circuit's way:
We remand so the ITC can consider that evidence in conjunc- tion with the evidence of secondary considerations and determine in the first instance whether claim 10 would have been obvious to one of skill in the art at the time of the invention....

We thus vacate the ITC’s decision that Motorola does not infringe the ’828 patent claims and remand the case to allow the ITC to consider in the first instance whether the accused products infringe under the correct construction of “mathematically fitting an ellipse.”

So back it goes. If you want to know what is going wrong in patent law, just read this ruling. Seriously.

Here's the ruling:
08/07/2013 - 74 - OPINION and JUDGMENT filed. The judgment or decision is: Affirmed-in-Part, Reversed-in-Part, and Vacated-in-Part. (Precedential Opinion). (For the Court: Moore,Circuit Judge; Linn,Circuit Judge and Reyna,Circuit Judge). Opinion concurring-in-part and dissenting-in-part filed by Circuit Judge Reyna. [96683]
Here's one example of the type of reasoning:
Secondary considerations evidence can establish that “an invention appearing to have been obvious in light of the prior art was not” and may be “the most probative and cogent evidence in the record.” Transocean, 699 F.3d at 1349 (quoting Stratoflex, Inc. v. Aeroquip Corp., 713 F.3d 1530, 1538 (Fed. Cir. 1983)). This evidence guards against the use of hindsight because it helps “turn back the clock and place the claims in the context that led to their invention.” Mintz, 679 F.3d at 1378. Apple presented compelling secondary considerations evidence that may have rebutted even a strong showing under the first three Graham factors, and the ITC failed to grapple with it.

For example, Apple presented evidence of industry praise by business publications. Time Magazine hailed the iPhone as the 2007 “Invention of the Year” in part because of the phone’s touchscreen and its multitouch capabilities. J.A. 7483–84. Bloomberg Businessweek issued a 2007 article entitled “Apple’s Magic Touch Screen,” in which it labeled the “sophisticated multipoint touch screen” as “[t]he most impressive feature of the new iPhone.” J.A. 7826. Around the same time, Wired Magazine recounted that, after Apple demonstrated the iPhone and its “brilliant screen,” an AT&T executive praised the iPhone as “the best device I have ever seen.” J.A. 8259 (internal quotation marks omitted). The ITC failed to address this evidence and the record does not appear to contain any contrary evidence.

Apple also presented evidence of copying. The ITC failed to address this evidence as well.

Lastly, Apple presented evidence that the iPhone has achieved a high degree of commercial success. Apple presented financial information that showed that the iPhone and related products received billions in dollars of revenue from 2008 to 2010. J.A. 14184. Apple also presented evidence showing a nexus between the undisputed commercial success of the iPhone and the patented multitouch functionality, namely evidence that Apple’s competitors copied its touchscreen and that those in the industry praised the iPhone’s multitouch functionality. The ITC did not address any of this evidence.4

For the foregoing reasons, we vacate the ITC’s decision that claim 10 of the ’607 patent would have been obvious and remand the case for further proceedings.

Apple made a lot of money and Time Magazine said the iPhone was the invention of the year, so it must be new and innovative, no matter what prior art you present. Sigh.

Could somebody please nominate some geek judges? This is unbearable for software developers to watch.

Now you know why patent infringement lawsuits cost so much money. Nobody ever gives up, because nobody actually knows where the real line is. One entity says X, the appeals court looks at the same evidence and facts starting from GO, and then they say not X, Y. So parties never give up trying, in that you simply never know what is a valid patent and what is not.

They could solve this madness by simply noticing that software patents are algorithms, which are mathematics (working on data), and mathematics is not patentable subject matter.

For those of you who like to track things in detail, here are the briefs the court was considering:

Motorola is intervenor because the appeal was against the ITC, so that made the two parties Apple, appellant, and the ITC, appellee, but Motorola asked to file also as intervenor, and without objection, the court said fine.

  


Apple, Motorola, ITC - Federal Circuit Remands - The Beat Goes On ~pj | 126 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: NigelWhitley on Wednesday, August 07 2013 @ 06:35 PM EDT
Please make corrections under here, preferably by including the correction in
your title, e.g.
Fuddersall->Federal

Or maybe that should be the other way around :-)
---------------------
Nigel Whitley

[ Reply to This | # ]

Off-topic here
Authored by: NigelWhitley on Wednesday, August 07 2013 @ 06:39 PM EDT
For things which are, well, not on-topic.
-----------------
Nigel Whitley

[ Reply to This | # ]

Newspicks
Authored by: NigelWhitley on Wednesday, August 07 2013 @ 06:41 PM EDT
Please place comments on and suggestions for the Newspicks section under here.
------------------------
Nigel Whitley

[ Reply to This | # ]

Apple, Motorola, ITC - Federal Circuit Remands - The Beat Goes On ~pj
Authored by: Anonymous on Wednesday, August 07 2013 @ 06:41 PM EDT
I was not aware that the authors of Time Magazine were skilled in the art of
hardware design.

[ Reply to This | # ]

Comes transcription
Authored by: NigelWhitley on Wednesday, August 07 2013 @ 06:44 PM EDT
Identify any contributions towards transcribing the documents from Microsoft v
Comes under here. Thanks.
--------------------
Nigel Whitley

[ Reply to This | # ]

Market success trumps patent law
Authored by: n0ano on Wednesday, August 07 2013 @ 08:35 PM EDT
Let me get this straight. The Appeals court is saying that success selling something is more important than the law. If I steal someone's invention, claim it as my own, and then sell it to lots of people then I'm good.

I thought the appeals court was supposed to concern itself with legal issues, I guess that's changed.

---
"Censeo Toto nos in Kansa esse decisse." - D. Gale

[ Reply to This | # ]

Subvert software patents -- use internet time
Authored by: davecb on Wednesday, August 07 2013 @ 09:00 PM EDT
The term of a patent is 17 to twenty years, which in the physical world is
enough to encourage investment. One has a reasonable time to make a profit.

However, software moves in internet time. In 17 to 20 years, a software or
business process patent would pay back hunderds or thousands of times the
original investment.

Perhaps software patents should instead be denominated in dog years. At 7 dog
years for one human year, a software or business process patent would have a
term of 2.4 to 2.8 years. Say three years for simplicity.

All the other terms would stay the same: the inventor would get three years to
make his due profit, then the patent would become part of the public domain.

--dave




---
davecb@spamcop.net

[ Reply to This | # ]

Apple, Motorola, ITC - Federal Circuit Remands - The Beat Goes On ~pj
Authored by: Anonymous on Wednesday, August 07 2013 @ 09:20 PM EDT
"Secondary considerations evidence can establish that “an invention
appearing to have been obvious in light of the prior art was not” and may be
“the most probative and cogent evidence in the record.” Transocean, 699 F.3d at
1349 (quoting Stratoflex, Inc. v. Aeroquip Corp., 713 F.3d 1530, 1538 (Fed. Cir.
1983)). This evidence guards against the use of hindsight because it helps “turn
back the clock and place the claims in the context that led to their invention.”
Mintz, 679 F.3d at 1378. Apple presented compelling secondary considerations
evidence that may have rebutted even a strong showing under the first three
Graham factors, and the ITC failed to grapple with it."

First create false news.
Second plant false news in technical news.
Third site false news in patent law suit as fact.
Profit

[ Reply to This | # ]

Interpretation
Authored by: Ian Al on Thursday, August 08 2013 @ 03:35 AM EDT
We remand so the ITC can... determine in the first instance whether claim 10 would have been obvious to one of skill in the art at the time of the invention...

We thus vacate the ITC’s decision that Motorola does not infringe the ’828 patent claims and remand the case to allow the ITC to consider in the first instance whether the accused products infringe under the correct construction of “mathematically fitting an ellipse.”
Apparent translation:
The ITC got it wrong in saying that claim 10 was not infringed because they did not correctly construct the claim as being a machine component that mathematically fitted an ellipse'.
I bet they wore their boxers on their heads and had two pencils stuffed up their nostrils when they wrote that.

In the alternative, the entire patent must be reviewed before the opinion can be interpreted.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

Apple, Motorola, ITC - Federal Circuit Remands - The Beat Goes On ~pj
Authored by: ukjaybrat on Thursday, August 08 2013 @ 08:30 AM EDT
"Apple made a lot of money and Time Magazine said the iPhone was the invention of the year, so it must be new and innovative, no matter what prior art you present.
I just threw up...

---
IANAL

[ Reply to This | # ]

Apple, Motorola, ITC - Federal Circuit Remands - The Beat Goes On ~pj
Authored by: DarkPhoenix on Thursday, August 08 2013 @ 01:24 PM EDT
So Time magazine, Bloomberg News and AT&T executives are the
most knowledgeable names in tech?

I wonder what Wired's opinion of the iPhone was at that time.
I mean, at least they deal in electronics, so I'd be more open
to taking their opinion than Time magazine.

---
Please note that sections in quotes are NOT copied verbatim from articles, but
are my interpretations of the articles.

[ Reply to This | # ]

Prior art and press releases
Authored by: JK Finn on Thursday, August 08 2013 @ 06:51 PM EDT

This has been pointed out in so many previous comments already that there's no hope of replying under the most relevant reply.

Anyway, is the meat of the of the Federal Circuit remand really that ITC should look up Apple-derived press expsure before deciding what is and what is not prior art?

Somehow, that approach does not jive with most definitions of prior I know.

[ Reply to This | # ]

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