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Apple lodged FRAND abuse complaint against Motorola with European Commission

post #1 of 131
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A regulatory filing from Motorola Mobility has revealed that Apple has complained to the European Commission over the handset maker's efforts to obtain injunctions against its rival by wielding standards-essential patents with FRAND commitments.

Motorola's Form 10-K annual report, filed (via MacNN), revealed that the company has just received a letter from the commission notifying it of Apple's complaint. The form disclosed ongoing legal proceedings, including its dispute with Apple.

Apple's complaint was submitted to the Competition Directorate-General and asked for the commission to intervene "with respect to standards-essential patents" (SEPs). The iPhone maker alleges that Motorola has breached its Fair, Reasonable and Non-Discriminatory commitments for its SEPs.

FRAND commitments are vital to the establishing of industry standards, especially within the wireless industry. Companies are often required to agree to license their patents on FRAND terms to competitors in order before submitting their intellectual property to standard-setting organizations. Court filings show that Motorola has offered Apple a patent license, but Apple believes the 2.25 percent royalty rate that its rival is seeking is unfair, unreasonable and discriminatory.




In Friday's filing, Motorola also said it expects International Trade Commission cases brought against it by Apple and Microsoft to be resolved in the second and third quarters of this year. The company warned that ITC losses could require it to expend "significant resources to pay damages, to develop non-infringing products or to obtain licenses." In addition, patent licenses could either be unavailable or commercially unreasonable and might potentially result in the blocking of Motorola's devices in the U.S. market.

Outside of Europe, Apple has also petitioned U.S. courts for relief from Motorola's SEP litigation. The company filed suit against Motorola in the U.S. District Court for the Southern District of California last week, alleging breach of contract on Motorola's part. Apple claims that its agreements with Qualcomm have given it a license for the two SEPs that Motorola is asserting against Apple in Germany.

Motorola had previously won injunctions against Apple for alleged infringement of push services and GPRS patents. Apple was found not to have infringed on a third standards-essential patent that Motorola brought against it in Germany.

For its part, Apple recently won a victory against Motorola in Germany. Earlier this week, a Munich regional court issued a permanent injunction against Motorola products that had been found to be infringing on Apple's slide-to-unlock patent.

The legal battle between the two companies could heat up even further when Google completes its acquisition of Motorola. At the least, the search giant has said it will uphold Motorola's aggressive tactics with respect to FRAND licensing. Though Apple and Google have become fierce rivals in several key industries, the companies have thus far largely avoided direct legal confrontations.

Both the U.S. Department of Justice and the European Commission have approved the $12.5 billion merger, but they have also voiced concerns that Google will abuse the patents it acquires from Motorola. The DoJ called out Google for being "more ambiguous" than Apple or Microsoft in its commitments to upholding FRAND licensing terms for standards-essential patents.

[ View article on AppleInsider ]
post #2 of 131
Maybe it was just all posturing from the start.
post #3 of 131
Quote:
Originally Posted by tundraboy View Post

Maybe it was just all posturing from the start.

Not posturing, marketing.
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Better than my Bose, better than my Skullcandy's, listening to Mozart through my LeBron James limited edition PowerBeats by Dre is almost as good as my Sennheisers.
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post #4 of 131
I'm predicting the EU will side with Apple.

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"The real haunted empire?  It's the New York Times." ~SockRolid

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post #5 of 131
Quote:
Originally Posted by hill60 View Post

Not posturing, marketing.

But I thought Apple patented "marketing". I mean, that's the only reason people, er I mean sheep, buy Apple's products.

...
post #6 of 131
There is absolutely no way this can go in favor of Motorola. This is going to hurt real bad.

And believe me, Google is going to hurt even more - just as their merger with Motorola gets regulatory approval, their entire rationale for buying Motorola is getting destroyed.

Irrespective of whether Oracle wins against Google, Google has just blown $12.5B on a loss making company!
post #7 of 131
Quote:
Originally Posted by SolipsismX View Post

I'm predicting the EU will side with Apple.

Yep, there is someone high up in Motorola (or Google) that is about to start sweating bullets.

I hope Motorola gets an axe right in the skull for this.
post #8 of 131
I think Google's blatant violation of Apple's privacy policies, coupled with their FTC warning will muzzle Google's litigation for some time. I know that the patent issues and the privacy issues are apples and oranges - but in the end they are all both about corporate posturing and control. This week Google has lost control of that, and with Apple's recent win over HTC I think this will mark the end of the "patent wars".

I would very much like to see Apple sue Google for their transgressions and take the proceeds (and Apple would win) and donate them to the Electronic Frontier Foundation - a non-profit organization that has championed digital rights since 1990.
post #9 of 131
Quote:
Originally Posted by Pendergast View Post

But I thought Apple patented "marketing". I mean, that's the only reason people, er I mean YOUNG and RICH sheep, buy Apple's products.

...

There, fixed it for yer
post #10 of 131
Quote:
Originally Posted by Pendergast View Post

But I thought Apple patented "marketing". I mean, that's the only reason people, er I mean sheep, buy Apple's products.

...

And that's just it, isn't it?

Apple's products get bought unlike most of Motorola's rubbish since the RAZR...way back in 2004.

I can't say I blame them for doing a quick, FRAND-related cash grab.
Apple managed the astonishing feat of getting the equivalent of a personal computer into the hands of everybody from eight to eighty year olds, and did so while providing absolutely no instructions...
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Apple managed the astonishing feat of getting the equivalent of a personal computer into the hands of everybody from eight to eighty year olds, and did so while providing absolutely no instructions...
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post #11 of 131
June 2012 : Apple initiates thermonuclear war with Google : The Safari browser is enabled (as an option) to block any advertisement, which is not against any regulation. Of course, Safari market share is just a fraction of the total, but this fraction matters for announcers (especially because Apple users are high purchasing power people).

Google suffers ...
post #12 of 131
Quote:
Originally Posted by umrk_lab View Post

June 2012 : Apple initiates thermonuclear war with Google : The Safari browser is enabled (as an option) to block any advertisement, which is not against any regulation. Of course, Safari market share is just a fraction of the total, but this fraction matters for announcers (especially because Apple users are high purchasing power people).

Google suffers ...

Let's not forget what Reader and Siri will be doing to Google's advertisements.

Hard to be influenced when you never saw the advertisement in the first place.
Apple managed the astonishing feat of getting the equivalent of a personal computer into the hands of everybody from eight to eighty year olds, and did so while providing absolutely no instructions...
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Apple managed the astonishing feat of getting the equivalent of a personal computer into the hands of everybody from eight to eighty year olds, and did so while providing absolutely no instructions...
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post #13 of 131
Quote:
Originally Posted by Pendergast View Post

But I thought Apple patented "marketing". I mean, that's the only reason people, er I mean sheep, buy Apple's products.

...

It's a case of mindless bots vs sheep.
post #14 of 131
Quote:
Originally Posted by Pendergast View Post

But I thought Apple patented "marketing". I mean, that's the only reason people, er I mean sheep, buy Apple's products.

...

On the contrary, Apple is for discerning people who are not swayed by upfront cheap prices and gimmicks. They would rather pay for a product that saves them time in innumerable ways - when things just work, without having to reboot often, or clean up malware/viruses, etc. Whether it is Android or Windows, most people are forced to spend an inordinate amount of time figuring out what is wrong, rooting the OS, etc.

I wonder if people consider the upfront cost of antivirus protection for the life of a Windows machine, plus the performance hit from having to run antivirus constantly.

If you consider the overall value proposition, you are much better off with Apple.

Or maybe you consider Apple folks sheep because they don't want to deal with the malware and viruses that Android and Windows users constantly deal with. If so, let the Android and Windows users be lions, and we will be sheep. Only difference is that it is the Lions that are being slaughtered by the hackers.
post #15 of 131
Quote:
Originally Posted by macarena View Post

Irrespective of whether Oracle wins against Google...

Oracle's latest damages report says they deserve several million for both the copyright and patent claims (of which another has been tossed from the case). No, not billions that Oracle supposedly wanted from Google that was used for splash articles.

Oracle's damages expert, Dr. Cockburn "comes up with a proposed number that is nothing near the multiple billions that made headlines when this case was first announced, the expert now valuing the patents at $57.1 million as the highest proposed figure. He values the copyrights at the highest end at between $52.4 million and $169 million, which is ridiculous anyway, but remember the headlines when Oracle first announced this litigation? That Google could lose up to $6.1 billion if it lost this case? That was never realistic."

Oracle's case appears to have been heavily overstated from the beginning.
http://www.groklaw.net/article.php?s...20218041255197
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post #16 of 131
Quote:
Originally Posted by macarena View Post

I wonder if people consider the upfront cost of antivirus protection for the life of a Windows machine, plus the performance hit from having to run antivirus constantly.

Excellent AV is available for free.

Quote:
Originally Posted by macarena View Post

If you consider the overall value proposition, you are much better off with Apple.

Extremely fast Windows machines are available for less then Macs of lesser speed, even when running AV.
post #17 of 131
Quote:
Originally Posted by I am a Zither Zather Zuzz View Post

Excellent AV is available for free.



Extremely fast Windows machines are available for less then Macs of lesser speed, even when running AV.

Even if true, which is debatable as they get slower and slower over time, you'd still be running a crap OS from the last century on a machine made of the cheapest junk with a terrible design. Ever thought the reason sales are plunging while Mac sales are soaring could be because Macs are way better., . But of course you already know all this and are just having fun on the blog
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From Apple ][ - to new Mac Pro I've used them all.
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post #18 of 131
Quote:
Originally Posted by Gatorguy View Post

Oracle's latest damages report says they deserve several million for both the copyright and patent claims (of which another has been tossed from the case). No, not billions that Oracle supposedly wanted from Google that was used for splash articles.

Oracle's damages expert, Dr. Cockburn "comes up with a proposed number that is nothing near the multiple billions that made headlines when this case was first announced, the expert now valuing the patents at $57.1 million as the highest proposed figure. He values the copyrights at the highest end at between $52.4 million and $169 million, which is ridiculous anyway, but remember the headlines when Oracle first announced this litigation? That Google could lose up to $6.1 billion if it lost this case? That was never realistic."

Oracle's case appears to have been heavily overstated from the beginning.
http://www.groklaw.net/article.php?s...20218041255197

All fine, but this will not be known for good till the dust is settled.

If there is a proven infringement, there is a strong likelihood of an injunction. At that point it really does not matter if the damages figure is in millions or billions. And you know as well as anyone else, Oracle is not in this just for the money. They will insist that Google remove all the non-compliant features of Dalvik, and respect Java's Write Once Run Anywhere paradigm. Without that, there is no way Google can get a license for Java.

Just wait till Google tries to comply with Java guidelines and see how crippled Android will be after that. In all likelihood, Google will decide to give up on Java/Dalvik and go with C or C++.

Then see the impact.
post #19 of 131
Quote:
Originally Posted by I am a Zither Zather Zuzz View Post

Excellent AV is available for free.



Extremely fast Windows machines are available for less then Macs of lesser speed, even when running AV.

Please provide evidence for your statement "Extremely fast Windows machines are available for less then Macs of lesser speed, even when running AV."
post #20 of 131
Quote:
Originally Posted by digitalclips View Post

Even if true, which is debatable as they get slower and slower over time, you'd still be running a crap OS from the last century on a machine made of the cheapest junk with a terrible design. Ever thought the reason sales are plunging while Mac sales are soaring could be because Macs are way better., . But of course you already know all this and are just having fun on the blog



Some get slower over time. But likewise with AV, if one runs good free malware software that comes alive in the middle of the night and does its silent but deadly thing, that too is not a problem. Automatic and free defrag comes standard with Windows 7.

Dunno about the other stuff. Machines are available in all price/quality ranges. Some folks get "the cheapest laptop ever!" while others want a well-made, durable machine.

I was responding to the "AV software is expensive and causes a performance hit" thing. Non-technical users are likely to be better off with a Mac. Even more so after the Mac is transitioned to iOS.
post #21 of 131
Quote:
Originally Posted by Pendergast View Post

But I thought Apple patented "marketing". I mean, that's the only reason people, er I mean sheep, buy Apple's products.

...

Baa-aaa-aaa


And I say that proudly.

Why does Apple bashing and trolling make people feel so good?

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post #22 of 131
Quote:
Originally Posted by I am a Zither Zather Zuzz View Post

Non-technical users are likely to be better off with a Mac.

That's the point. Why should one be technical to *use* a PC? Thanks for the self goal.

And don't delude yourself that AV just has to come alive at night and do its silent deadly thing. What about the real time monitoring of all traffic coming in, scanning all file attachments in your email, etc? Is that not a performance penalty?

And most important point when you discuss Apple and pricing - Apple is a luxury product compared to the rest of the market. And in a lot of cases, without a luxury premium. Especially iPhone and iPad have no premium worth discussing. The premium on Macs exists only if you ascribe a zero value to superior design, to much better battery life, to enhanced productivity, enhanced peace of mind, and last but not least, significantly higher resale value. If you consider these aspects, iPhone and iPad are dirt cheap compared to their competitors.

Care to see what you can get for your Galaxy Tab or Xoom in a years time?
post #23 of 131
Quote:
Originally Posted by I am a Zither Zather Zuzz View Post

Excellent AV is available for free.



Extremely fast Windows machines are available for less then Macs of lesser speed, even when running AV.

It's funny how Windows users never consider selling their computer when they're done with its useful life because it really has no value at that point. Reselling my Mac (or any Apple product) levels the playing field as far as price goes and allows me to upgrade more often.

Why does Apple bashing and trolling make people feel so good?

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Why does Apple bashing and trolling make people feel so good?

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post #24 of 131
Quote:
Originally Posted by I am a Zither Zather Zuzz View Post

Excellent AV is available for free.

Quite true. The idea that anti-virus "costs" anything money-wise is a thing of the past (assuming people don't click on any of the innumerable anti-virus scams and do a smidgen of research).
Quote:
Originally Posted by I am a Zither Zather Zuzz View Post

Extremely fast Windows machines are available for less then Macs of lesser speed, even when running AV.

Technically true, but only if you are talking about the number on the side of the processor.

A new Windows PC with a faster processor than a comparable new Mac, will generally run faster than the Mac only about half the time or less. They tend to have slightly newer, faster generations of chips for six months or so until the Macs catch up, but the performance just isn't there on most of them.

So you get bragging rights but most of the time you don't actually get a better, faster computer. Also, if you wait a few months then the Mac has the same processor anyway, but still has all the other advantages.
post #25 of 131
Quote:
Originally Posted by Gatorguy View Post

Oracle's latest damages report says they deserve several million for both the copyright and patent claims (of which another has been tossed from the case). No, not billions that Oracle supposedly wanted from Google that was used for splash articles.

Oracle's damages expert, Dr. Cockburn "comes up with a proposed number that is nothing near the multiple billions that made headlines when this case was first announced, the expert now valuing the patents at $57.1 million as the highest proposed figure. He values the copyrights at the highest end at between $52.4 million and $169 million, which is ridiculous anyway, but remember the headlines when Oracle first announced this litigation? That Google could lose up to $6.1 billion if it lost this case? That was never realistic."

Oracle's case appears to have been heavily overstated from the beginning.
http://www.groklaw.net/article.php?s...20218041255197

So, his argument is that it won't cost Google as much as everyone thought, so it's OK?

I guess that's one way to look at breaking the law.
post #26 of 131
Quote:
Originally Posted by I am a Zither Zather Zuzz View Post

Extremely fast Windows machines are available for less then Macs of lesser speed

Less, then?
What happens after "less"?
post #27 of 131
Quote:
Originally Posted by Chris_CA View Post

Less, then?
What happens after "less"?

Then they cost more because the TCO on a PC is significantly higher than a Mac.
post #28 of 131
Quote:
Originally Posted by Wovel View Post

Then they cost more because the TCO on a PC is significantly higher than a Mac.

I built this rig at the end of 2010. At the time the cost was around 1200, So Far other then the bad ram I had when I purchased with it(Swapped out for free). I have not had any cost with this thing other then the 600+ that I sunk to the steam store. If you build with quality you will never have any issues. I may however at the end of the year either swap out video cards or Swap the motherboard, cpu and gpu but that is the cost of ownership that comes with a gaming rig.
post #29 of 131
Quote:
Originally Posted by tundraboy View Post

Maybe it was just all posturing from the start.

I think everyone at Google originally believed in "Don't be Evil." Because they started out as "The Anti-Microsoft Company (tm)." Everything they did was intended to undercut all of Microsoft's businesses. Because Microsoft was The Evil Empire and something had to be done about it.

Now Google has evolved into the new Microsoft. Just as underhanded and treacherous. Just as willing to stab partners in the back (Apple and iPhone) the way Microsoft did in the past (IBM and OS/2.) Spreading FUD everywhere they can. Releasing products prematurely to stamp out possible competition, then dragging their feet as they fix bugs and design misconceptions.

Same thing, different business model. Microsoft made their fortune by selling software. Google is trying to make their fortune by selling ads. Which of those business models is less evil?

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post #30 of 131
Quote:
Originally Posted by macarena View Post

All fine, but this will not be known for good till the dust is settled.

If there is a proven infringement, there is a strong likelihood of an injunction. At that point it really does not matter if the damages figure is in millions or billions.

This is my thinking too, and why I think Oracle is the one Google and Android OEM's should be worried about, not Apple. If Oracle gets an injunction they can pretty much ask whatever they want from Google, and Google would probably pay a few billion.
post #31 of 131
Quote:
Originally Posted by macarena View Post

That's the point. Why should one be technical to *use* a PC? Thanks for the self goal.

You seem to misunderstand. I don't advocate for that position.



Quote:
Originally Posted by macarena View Post


And don't delude yourself that AV just has to come alive at night and do its silent deadly thing. What about the real time monitoring of all traffic coming in, scanning all file attachments in your email, etc? Is that not a performance penalty?

That was dealt with up above. I had no such delusion.

This is damn weak stuff.
post #32 of 131
Quote:
Originally Posted by Dickprinter View Post

It's funny how Windows users never consider selling their computer when they're done with its useful life because it really has no value at that point. Reselling my Mac (or any Apple product) levels the playing field as far as price goes and allows me to upgrade more often.

That's a very relevant point. From what I have seen, PCs get used most often by the original owner until EOL.
post #33 of 131
Quote:
Originally Posted by I am a Zither Zather Zuzz View Post

That's a very relevant point. From what I have seen, PCs get used most often by the original owner until EOL.

THere is no such thing as a 'PC Owner' in the sense that they can be pidgin holed. Most Windows users I know either use it as the default option because of their workplace, or because they have never experienced any alternatives (until the iPad came along) or because they want to spend less money setting up than otherwise would be the case with a Mac.

It's true that Mac owners tend to manage with less hand-holding than equivalent PC owners, and there are geeks that own both platforms.

I spent approximately £1000 building a custom PC back in 2005/06, and now it's worth less than £150 second hand. An equivalent iMac of the same period still gets £300-£400.

My 5 year old iMac still would attract bids of up to £600 on ebay, and 4-5 year old Macs are attracting higher trade in values than equivalent PCs.

However, very few people buy a computer considering its resale value in 4-5 years. It's the upfront cost they see.

I'm currently looking to replace my ageing iMac with something more modern, but while the design and build quality of Apples products is immeasurably superior, I'm leaning towards a self build PC using reasonably priced quality components. For approximately the same price as a dual core Mac Mini i7 with AMD graphics and 4 gigs of RAM, 750gb HDD and a cheap Samsung 27" screen I can buy a quad core, i5 2500k 3.4ghz with 60gb SSD, 1tb HDD, Radeon 6870, a decent quiet PC case (though not SFF it is a quiet tower0, and a dent PSU along with all the trimmings.

A Superior system for less money.

However, if I spec that system with a iMac 27" like spec including an ups display of similar quality, things go slightly wobbly and the Mac actually works out cheaper!

I just wish the Core i7 apple included in the Mini was quad core on other models than the Server, or offered more configurable options a la Dell etc.
post #34 of 131
Quote:
Originally Posted by EricTheHalfBee View Post

This is my thinking too, and why I think Oracle is the one Google and Android OEM's should be worried about, not Apple. If Oracle gets an injunction they can pretty much ask whatever they want from Google, and Google would probably pay a few billion.

That's what I've been saying too. Just wait until the Oracle lawsuit gets underway! Hopefully it will be a crushing blow for Google/Android.

I am rooting for Oracle all the way!
post #35 of 131
Quote:
Originally Posted by Apple ][ View Post

I am rooting for Oracle all the way!

You're far from alone.
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post #36 of 131
Quote:
Originally Posted by Gatorguy View Post

You're far from alone.

THe issue at hand is that Google (allegedly) stuffed Android with other peoples IP, knowingly and willfully.

With the ever increasing number of lawsuits and licence agreements between Google, Apple, Oracle Microsoft and the other 3rd party OEMs, how long until Android becomes cost prohibitive due to all the development work necessary to get it 'legal' and original.

Google can only do so much, and with HTC, Motorola and to a lesser extend LG, unable to make much of any money out of Smartphones, it seems that Androids savior is Samsung.

How long until Samsung realize that developing their own OS or licensing Windows Phone is cheaper than promoting Android when it attracts so many expensive pieces of baggage?

The sole attraction of Android to the OEMS is that it is free, and thus they have a higher margin than similar Winodws or self-developed phone OSs.

Perhaps if this happens we'll see some genuine competition and innivation in the industry?!
post #37 of 131
Quote:
Originally Posted by sibod View Post

The sole attraction of Android to the OEMS is that it is free, and thus they have a higher margin than similar Winodws or self-developed phone OSs.

Perhaps if this happens we'll see some genuine competition and innivation in the industry?!

That's not really the sole attraction. The Android Market is more than a little advantageous and adds to the Android value for OEM's.

As for Microsoft it's a distinct possibility that MS bluffed a few of the Android licensees into agreeing on a patent license from them too. They're big, aggressive and willing to go to the mat when suing others. Many and perhaps all the patents currently being asserted (in attempted secrecy) by Microsoft may not even be valid and/or apply to Android to begin with.

The overwhelming majority of Oracle's original patent claims against Android have also been dismissed or dropped altogether. Another was just dumped this week. If you read only AppleInsider you'd get the impression Google's already convicted and the claims proven with only the billions in damages yet to be taken from them.
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post #38 of 131
Quote:
Originally Posted by Gatorguy View Post

Oracle's latest damages report says they deserve several million for both the copyright and patent claims (of which another has been tossed from the case). No, not billions that Oracle supposedly wanted from Google that was used for splash articles.

Oracle's damages expert, Dr. Cockburn "comes up with a proposed number that is nothing near the multiple billions that made headlines when this case was first announced, the expert now valuing the patents at $57.1 million as the highest proposed figure. He values the copyrights at the highest end at between $52.4 million and $169 million, which is ridiculous anyway, but remember the headlines when Oracle first announced this litigation? That Google could lose up to $6.1 billion if it lost this case? That was never realistic."

Oracle's case appears to have been heavily overstated from the beginning.
http://www.groklaw.net/article.php?s...20218041255197

First of all, the page you cite is written by open source, anti-patent people who very much want Oracle to lose. Secondly, they quote only a summary of a Google legal brief, and accept it all as true, without doing any other research or looking at Oracle's arguments. Grain of salt applies here.

It also may be possible for possible for Oracle to win triple damages because the infringement was willful, though I don't know if that would apply here.
post #39 of 131
Quote:
Originally Posted by Apple v. Samsung View Post

I built this rig at the end of 2010. At the time the cost was around 1200, So Far other then the bad ram I had when I purchased with it(Swapped out for free). I have not had any cost with this thing other then the 600+ that I sunk to the steam store. If you build with quality you will never have any issues. I may however at the end of the year either swap out video cards or Swap the motherboard, cpu and gpu but that is the cost of ownership that comes with a gaming rig.

You're not the average user though! Imagine my mother building a machine and you'd be closer to the mark.

Heck, I even know a guy who when given a new pc laptop for work couldn't work out that there was latch keeping it closed. He literally prized the thing apart! (Obviously totally breaking the latch and the machine then needed 3 hours of work whilst someone fished out the broken pieces from inside the screen and body).

The average computer user is an idiot.
post #40 of 131
Quote:
Originally Posted by elroth View Post

First of all, the page you cite is written by open source, anti-patent people who very much want Oracle to lose. Secondly, they quote only a summary of a Google legal brief, and accept it all as true, without doing any other research or looking at Oracle's arguments. Grain of salt applies here.

It also may be possible for possible for Oracle to win triple damages because the infringement was willful, though I don't know if that would apply here.

Oracle's written defenses and letters to the court are referenced too and the links to them are there to read for yourself if you're so inclined. Yes, they obviously don't agree with Oracle's assertions in this case, but the remarks they make use Oracle's sources as well as Google's.

EDIT:If you want to have a idea at just how the Judge is viewing the claims, here's an excerpt from the actual, real , honest-to-goodness court transcripts. If I hadn't told you this is from the official court record I imagine some here would think it was a spoof, meant as a joke:

THE COURT: Could a reasonable jury looking at everything and seeing this identity here and the other 8 files, could they say that even comparative works as a whole that there's been an infringement?
MR. BABER (for Google): I don't believe so, Your Honor. And as a matter of law they could not because these eight files are eight out of a thousand files in Android. These are several hundred lines of code out of 11 million lines of code in Android.

THE COURT: But if there are others, why didn't you just change these two?

MR. BABER: We did. That's the point, Your Honor. As soon as Oracle said: "Hey, wait. There's these eight files in there. Did you know about that?" we looked at them, Your Honor. Frankly, it's not in record. We don't need them for summary judgment. It was a mistake. Somebody thought these were Apache Harmony files from the indepenent implementation of the API's, and they made their way in there. But as soon as they identified them, we took them out. We haven't replaced them. There's no sense in which they could be important to Android.

THE COURT: These don't even exist any more?

MR. BABER: They are gone. They are out. Not only are they out now, but the evidence will show and does show that these would never have even been shipped on any devices. They were test files. In other for a very, very small amount of copying to be actionable, and the courts have recotnized for hundreds of years that not all identical things give rise to a copyright infringement claim. It has to be quantitatively and qualitatively important....

THE COURT: What damages are being sought for this infringement that doesn't exist any more? ... By the way, that would have been a nice thing for Mr. Jacobs to point out, that this was long gone. I didn't realize that it was long gone. What do they say in terms of how they have been damaged?

MR. BABER: Your Honor, they say they have been damaged. They say that this -- they highlight this literal copying. We have these eight files. We have some comments in two other files which we also took out right away. And then there's the nine lines of code that Mr. Swoopes just showed you with the so-called "range check function". That's still in there. It's nine lines out of 11 million. And it is a very simple code that simply does some sanity check on sorting things. That's what they are copying. And they use that, of course, in an inflammatory way to say, "This shows copying," when, in fact, Your Honor, it is so de minimis -- it's less than one-tenth of one percent.

THE COURT: Why wouldn't you be thrilled to have them waste their time at trial on this so that the patent issues fall to one side?

MR. BABER: Your Honor, we would be more than delighted.


That exchange is only a small portion of the official court transcript linked here:
http://www.groklaw.net/article.php?s...0309143182#445
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