You are wrong about J. Posner being "just a circuit judge".
In the US Federal Judicial System, District Court judges are the trial court judges. Circuit Court judges are the appellate courts and the only court higher than the Circuit Courts is the Supreme Court.
Posner is sitting as the trial judge "by designation" - he's not acting in his Circuit Court Judge capacity - he is the trial judge in a jurisdiction (7th Circuit) where the Appellate Judges are all his colleagues.
The chances of the 7th Cir. Overruling J. Posner are nil.
Worse still, this judge is the heart of the "law & economics" movement / doctrine. He doesn't believe that relief is available for ancillary damages caused by a tort feasor.
He has written that the scope of damages in the Ford Pinto cases should have been limited to the value of the vehicle. Burning to death or being maimed by the defectively-designed fuel tank/differential in a rear-end crash are too remote from the "actual damages" of the lost value of the vehicle to recover.
He's also called Henry Kissinger the leading intellectual of our day and dismissed Stephen J. Gould as a fool. Go check out his books on Amazon - you might get the picture.
Just what I'd expect from the father of the Law & Economics doctrine.
To prevail in a patent infringement action one only need prove infringement. If infringement is proved by a preponderance of the evidence than an Injunction will lie to preclude further infringement. The damages are the infringement(s).
This is statutory. The Judge just ignored the pure infringement cause of action in favor of a finding of actual monetary damages for ongoing infringement. That's not the law (until now).
Just what I'd expect from the father of the Law & Economics doctrine.
To prevail in a patent infringement action one only need prove infringement. If infringement is proved by a preponderance of the evidence than an Injunction will lie to preclude further infringement. The damages are the infringement(s).
This is statutory. The Judge just ignored the pure infringement cause of action in favor of a finding of actual monetary damages for ongoing infringement. That's not the law (until now).
Really? From just a quick search, as far back as at least 1997 (probably much longer than that) the general requirements for finding in favor of a preliminary injunction were these:
The issuance of a preliminary injunction is an extraordinary remedy to be used only to preserve the existing state of things between the parties. Generally, courts have set forth four requirements for granting a preliminary injunction:
The plaintiff has demonstrated a reasonable likelihood of success on the merits of the case (i.e., that the patent in issue is valid and infringed).
The plaintiff will be irreparably harmed if the injunction is not issued.
The threatened harm to the plaintiff outweighs the harm the injunction may inflict on the defendant.
The injunction will serve the public interest.
The Supreme Court found that injunction requests in patent infringement cases should be held to the same rules as in other cases with the eBay, Inc. v. MercExchange decision in 2006.
Aren't these essentially same points cited by Judge Pender in this case? If so, what about the ruling wasn't the law until now?
Actually Mel it's been reported that Motorola did give courts (in the current MS spat over the same FRAND issue) supporting documents that showed other licensees with comparable 2.25% royalty terms for Moto's FRAND-pledged IP package. FOSSPatents just preferred not to mention it so you probably wouldn't be aware of it. That would make their 2.25% royalty request from Apple EQUAL, if not FAIR as well. Certainly a good starting point if the reports of other's paying that amount are true.
if either Apple of Microsoft would like to pay a lower rate than those other licensees, determined during negotiations, then the time-honored and traditional cross-licensing agreement should work just fine. Don't you agree?
<span style="background-color:rgb(255,251,247);font-family:verdana, arial, sans-serif;font-size:12px;">"So in the final pages of Wednesday's ruling, Robart took a hard look at Microsoft's summary judgment argument and found it insufficient.</span>
[SIZE=12px]Microsoft had asserted that Motorola's licensing offer was patently unreasonable, but according to (Judge) Robart Motorola offered evidence of other licensing deals on supposedly comparable terms.[/SIZE] <span style="background-color:rgb(255,251,247);font-family:verdana, arial, sans-serif;font-size:12px;">To determine the relevance of those agreements, Robart said, "the court must engage in a factual comparison between the circumstances of each prior agreement and the circumstances that exist between the parties to this litigation with the benefit of complete briefing."</span>
<p style="font-family:verdana, arial, sans-serif;font-size:12px;background-color:rgb(255,251,247);">Nor, he ruled, had Microsoft shown that Motorola made its initial licensing offer in bad faith. Robart said that's also a factual dispute that has to be explored at trial. He set a trial date of Nov 19, 2012."</p>
<p style="font-family:verdana, arial, sans-serif;font-size:12px;background-color:rgb(255,251,247);">Too many people are listening to what FOSSPatents wants you to hear IMHO. Things are not as simple as he's trying to convince you they are, nor is is giving you all the facts. He's just hoping no one notices.</p>
But Apple has to prove that those people that bought a Moto or Samsung phone might have bought an iPhone instead if it weren't for the allegedly infringing patents.
As I keep saying, as you would know if you read all my posts here, is that while it's obvious, it may be hard to prove.
I don't think it works the way you described it; how can you sue over future damages? Motorola may decide to throw out the infringing feature any day... And, the "vast amount of money" in losses from a single patent should be proven. Apple may say they've lost a gazillion sales, but who's gonna believe them?
Apple's share wouldn't have been much different without Android -- the losers so far are Symbian, BB, Palm, Maemo, WP, and any mobile OS that was never heard about because of Google's juggernaut. The day WP passes over iOS it will be just as hated around here as Android is, for no other reason but being more popular than iOS.
People really care very little about the UI enhancements; a slick looking gadget that gets them on FB, plays music, doesn't break easily, doesn't require a PhD to operate, and doesn't break the bank, is 99.99% of what people need. If there's a higher status attached, the better -- then people will be willing to shell some extra cash in order to belong. But UI enhancements, meh...
Never said that Apple is suing for future damages. What I said, as what Apple is attempting, with Samsung and Motorola, is to prevent them from using the patents in question, and getting an injunction on all infringing products as they did with HTC. HTC was forced to remove the infringing feature, and that's what Apple wants Samsung and Motorola to do as well.
That goes totally against what both the US government and the EU are finding.
What exactly have the EU and US government found Mel? Feel free to link it for us.
No, it goes against what MS's paid mouthpiece, Florian Mueller, is telling news organizations. I've not seen a single piece of evidence that the EU, ITC. FTC nor any court has found Motorola to be asking anything more from Apple or MS than any other licensee.
This is more about those two industry titans maintaining what they currently believe to be a courtroom advantage over Google's Android than anything unfair or unreasonable. Android has taken a huge part of the mobile market in a very short time, with MS having a particular and probably unexpected problem in finding their footing.
You're plenty old enough to remember the same noise being made over Qualcomm's 4.5%-5% royalty collected for their 3G FRAND-pledged package beginning in 2000 and continuing for years. (as an aside they gave the Chinese a deal at less than 3%)
"Now, thanks to the 3G (standards-pledged)accord, literally billions of phones and other devices will incorporate CDMA. Because Qualcomm holds the vast majority of CDMA patents, that means money for the company--lots of money. Qualcomm collects a royalty of about $10 for each CDMA phone sold,a figure that may shrink in the future, but won't go away. Multiply $8, $6, even $4 by the billions of devices people will buy, and you get immense sums--nearly all profit. This prospect helps explain why investors stampeded into Qualcomm stock last year."
$10 on every phone sold 12 years ago? Huge in comparison to today, and of course established players complained.
The EU supposedly investigated Qualcomm too and closed the inquiry without any finding against them, reportedly after they agreed to modify licensing with those big companies who then dropped their complaints. Here's the EU regulators thoughts:
"The European Commission is committed to fight against illegal behaviour by dominant companies in key innovative sectors like telecoms and IT when an abuse of their market power would deny consumers the benefits of competition and choice.
The Qualcomm case has raised important issues about the pricing of technology after its adoption as part of an industry standard. In practice, such assessments may be very complex, and any antitrust enforcer has to be careful about overturning commercial agreements."
Qualcomm's royalty rate today is still 3.5% based on the price of a completed device, not a single chipset.
That's well above the 2.25% that Moto has consistently used as the base rate for several years. You stay up-to-date with tech and already knew that didn't you?
And it's not just Qualcomm. Nokia is reported to demand that "a fair and reasonable royalty rate for a single essential patent is 2.5%, for two essential patents, 3.5%, for three patents, 4%, and for ten or more, 5% or higher."
How about taking a look at this US Government doc from 2010, then come back and tell us how how unheard of a 2.25% royalty base rate is. You're only remembering/hearing what's convenient to your argument. It's not the whole truth no matter how many time Mueller says it or you repeat it. It would be so much better for forum members if some here took the time to do their own research before repeating FUD as fact.
Never said that Apple is suing for future damages. What I said, as what Apple is attempting, with Samsung and Motorola, is to prevent them from using the patents in question, and getting an injunction on all infringing products as they did with HTC. HTC was forced to remove the infringing feature, and that's what Apple wants Samsung and Motorola to do as well.
We were discussing lost sales, and damages therein, for the sake of understanding whether those damages can be cured. If those damages happened in the past then they can be equated with a sum of money and thus can be cured. In that case the infringing feature has been present in the past, and presumably caused said damages. Now, if you're talking about removing an infringing feature in the future, then you're assuming future damages.
I understand it's difficult to keep track of a conversation that spans a few days. Anyway the matter is all resolved by now, I believe.
Really? From just a quick search, as far back as at least 1997 (probably much longer than that) the general requirements for finding in favor of a preliminary injunction were these:
The issuance of a preliminary injunction is an extraordinary remedy to be used only to preserve the existing state of things between the parties. Generally, courts have set forth four requirements for granting a preliminary injunction:
<ul style="list-style-type:disc;"> [*] The plaintiff has demonstrated a reasonable likelihood of success on the merits of the case (i.e., that the patent in issue is valid and infringed).
[*] The plaintiff will be irreparably harmed if the injunction is not issued.
[*] The threatened harm to the plaintiff outweighs the harm the injunction may inflict on the defendant.
[*] The injunction will serve the public interest.
</ul>
The Supreme Court found that injunction requests in patent infringement cases should be held to the same rules as in other cases with the eBay, Inc. v. MercExchange decision in 2006.
Aren't these essentially same points cited by Judge Pender in this case? If so, what about the ruling wasn't the law until now?
You have inaccurately stated the elements necessary for the Court to provide injunctive relief in a patent infringement action. You are conflating the "extrodinary remedy" of a preliminary injunction with the statutory remedy of injunctive relief where a finding of patent infringement is made after a trial on the merits of the case. Yes, the Supreme Court has "legislated from the bench" in the MercExchange holding in 2006 that you cite, overruling the Federal Circuit and imposing a greater burden on a prevailing plaintiff to obtain injunctive relief than required by the plain reading of the applicable statute, 35 U.S.C. Sec. 283.
At root here we have a Judge who has denied the parties their right to a trial on the merits and has done so in an especially eggregrious manner where the Judge (Richard Posner) is a Circuit Court judge sitting by designation who dismisses the action within days of the trial. The Judge, arbiter of the law, has substituted his judgment for that of the finder of fact, the jury. Yes, there are issues of law that the Judge may address pursuant to motion practice under F.R.Civ.P 56, but in this case there are certainly facts remaining in question that should preclude Summary Judgment.
An appeal of the rulings of J. Posner would be heard by the 7th Cir. where he is a revered and powerful member of the panel. I wouldn't take an appeal of this case to the sitting Judge's own Circuit Bench. This outcome stinks on ice.
And, yes - I am a trial attorney who has argued cases before the late Giles Sullivan Rich of the Federal Circuit (the unofficial "patent supreme court") where J. Rich was the first scientist/patent attorney appointed to the Federal Circuit.
EDIT: I've changed my post since you corrected yourself, realizing that your claim that eBay vs. Merc was a trademark case rather than patent was wrong. You've also changed your post to show that I had properly stated the elements necessary for the Court to provide injunctive relief, contrary to you original claim that I was inaccurate. For any injunction finding the same rules apply, with those four requirements to be considered, so you do still need to edit your post to acknowledge that I was correct rather than inaccurate.
In essence we now agree I believe, except that you still want to claim that Judge Pender overstepped. Personally I don't see it but you're the attorney and would know better than me.
Since you are a trial attorney I was pretty surprised when you got the eBay vs. Merc Supreme Court decision wrong, but with your recognition of your error and correction all is well. Thank you for taking the time to respond.
Wasn't Apple asking for a preliminary injunction while the case was being adjudicated?
I could be mistaken, but I thought the granting of a permanent injunction required a Federal Court trial. If it was in fact a preliminary injunction request it would need to meet those four requirements, correct? Just trying to understand.
While Apple certainly requested preliminary relief at the time that the case was filed, that request was long ago denied by the Court. The remedies available after prevailing at trial are damages (35 U.S.C. Sec. 284), injunctive relief (35 U.S.C. Sec 283), attorney's fees (35 U.S.C. Sec. 285), and costs. The Injunctive Relief denied by J. Posner in the last Order is the statutory remedy afforded to a prevailing party, post trial.
The Order, coming after dismissal, was just a further twist of the knife in Apple's back. Briefing the Appeal would require Apple to address the error of law in that last Order. If you aren't going to trial you can't claim remedies that enure to a prevailing party at trial. J. Posner had no legitimate legal reason to issue that Order.
Apple v. Motorola (N.D.Ill. 11–cv-8540) (Order by Judge Posner, June 2012)
The Order dismissing the case arose in the U.S. District Court for the Northern District of Illinois. Any appeals taken from that trial court are heard by the 7th Circuit Court of Appeals. J. Posner is a Circuit Court Judge sitting by designation at the district court. His rulings would be appealed to the 7th Cir.
Comments
So, because I don't post a lot?
In the US Federal Judicial System, District Court judges are the trial court judges. Circuit Court judges are the appellate courts and the only court higher than the Circuit Courts is the Supreme Court.
Posner is sitting as the trial judge "by designation" - he's not acting in his Circuit Court Judge capacity - he is the trial judge in a jurisdiction (7th Circuit) where the Appellate Judges are all his colleagues.
The chances of the 7th Cir. Overruling J. Posner are nil.
Worse still, this judge is the heart of the "law & economics" movement / doctrine. He doesn't believe that relief is available for ancillary damages caused by a tort feasor.
He has written that the scope of damages in the Ford Pinto cases should have been limited to the value of the vehicle. Burning to death or being maimed by the defectively-designed fuel tank/differential in a rear-end crash are too remote from the "actual damages" of the lost value of the vehicle to recover.
He's also called Henry Kissinger the leading intellectual of our day and dismissed Stephen J. Gould as a fool. Go check out his books on Amazon - you might get the picture.
A very bad call for AAPL.
To prevail in a patent infringement action one only need prove infringement. If infringement is proved by a preponderance of the evidence than an Injunction will lie to preclude further infringement. The damages are the infringement(s).
This is statutory. The Judge just ignored the pure infringement cause of action in favor of a finding of actual monetary damages for ongoing infringement. That's not the law (until now).
Quote:
Originally Posted by Bought_it@AAPL
Just what I'd expect from the father of the Law & Economics doctrine.
To prevail in a patent infringement action one only need prove infringement. If infringement is proved by a preponderance of the evidence than an Injunction will lie to preclude further infringement. The damages are the infringement(s).
This is statutory. The Judge just ignored the pure infringement cause of action in favor of a finding of actual monetary damages for ongoing infringement. That's not the law (until now).
Really? From just a quick search, as far back as at least 1997 (probably much longer than that) the general requirements for finding in favor of a preliminary injunction were these:
The issuance of a preliminary injunction is an extraordinary remedy to be used only to preserve the existing state of things between the parties. Generally, courts have set forth four requirements for granting a preliminary injunction:
The plaintiff has demonstrated a reasonable likelihood of success on the merits of the case (i.e., that the patent in issue is valid and infringed).
The plaintiff will be irreparably harmed if the injunction is not issued.
The threatened harm to the plaintiff outweighs the harm the injunction may inflict on the defendant.
The injunction will serve the public interest.
The Supreme Court found that injunction requests in patent infringement cases should be held to the same rules as in other cases with the eBay, Inc. v. MercExchange decision in 2006.
Aren't these essentially same points cited by Judge Pender in this case? If so, what about the ruling wasn't the law until now?
That goes totally against what both the US government and the EU are finding.
As I keep saying, as you would know if you read all my posts here, is that while it's obvious, it may be hard to prove.
Never said that Apple is suing for future damages. What I said, as what Apple is attempting, with Samsung and Motorola, is to prevent them from using the patents in question, and getting an injunction on all infringing products as they did with HTC. HTC was forced to remove the infringing feature, and that's what Apple wants Samsung and Motorola to do as well.
edit....
Quote:
Originally Posted by melgross
That goes totally against what both the US government and the EU are finding.
What exactly have the EU and US government found Mel? Feel free to link it for us.
No, it goes against what MS's paid mouthpiece, Florian Mueller, is telling news organizations. I've not seen a single piece of evidence that the EU, ITC. FTC nor any court has found Motorola to be asking anything more from Apple or MS than any other licensee.
This is more about those two industry titans maintaining what they currently believe to be a courtroom advantage over Google's Android than anything unfair or unreasonable. Android has taken a huge part of the mobile market in a very short time, with MS having a particular and probably unexpected problem in finding their footing.
You're plenty old enough to remember the same noise being made over Qualcomm's 4.5%-5% royalty collected for their 3G FRAND-pledged package beginning in 2000 and continuing for years. (as an aside they gave the Chinese a deal at less than 3%)
"Now, thanks to the 3G (standards-pledged)accord, literally billions of phones and other devices will incorporate CDMA. Because Qualcomm holds the vast majority of CDMA patents, that means money for the company--lots of money. Qualcomm collects a royalty of about $10 for each CDMA phone sold, a figure that may shrink in the future, but won't go away. Multiply $8, $6, even $4 by the billions of devices people will buy, and you get immense sums--nearly all profit. This prospect helps explain why investors stampeded into Qualcomm stock last year."
http://money.cnn.com/magazines/fortune/fortune_archive/2000/05/15/279766/index.htm
$10 on every phone sold 12 years ago? Huge in comparison to today, and of course established players complained.
The EU supposedly investigated Qualcomm too and closed the inquiry without any finding against them, reportedly after they agreed to modify licensing with those big companies who then dropped their complaints. Here's the EU regulators thoughts:
"The European Commission is committed to fight against illegal behaviour by dominant companies in key innovative sectors like telecoms and IT when an abuse of their market power would deny consumers the benefits of competition and choice.
The Qualcomm case has raised important issues about the pricing of technology after its adoption as part of an industry standard. In practice, such assessments may be very complex, and any antitrust enforcer has to be careful about overturning commercial agreements. "
Qualcomm's royalty rate today is still 3.5% based on the price of a completed device, not a single chipset.
http://community.nasdaq.com/News/2011-04/revising-qualcomm-forecasts-based-on-better-royalty-rates.aspx?storyid=72685
That's well above the 2.25% that Moto has consistently used as the base rate for several years. You stay up-to-date with tech and already knew that didn't you?
And it's not just Qualcomm. Nokia is reported to demand that "a fair and reasonable royalty rate for a single essential patent is 2.5%, for two essential patents, 3.5%, for three patents, 4%, and for ten or more, 5% or higher."
http://www.qualcomm.eu/media/releases/2007/04/05/qualcomm-files-arbitration-demand-against-nokia-resolve-dispute-over-licen
How about taking a look at this US Government doc from 2010, then come back and tell us how how unheard of a 2.25% royalty base rate is. You're only remembering/hearing what's convenient to your argument. It's not the whole truth no matter how many time Mueller says it or you repeat it. It would be so much better for forum members if some here took the time to do their own research before repeating FUD as fact.
http://m.whitehouse.gov/sites/default/files/omb/IPEC/frn_comments/MonahanRichard_GreeneKent.pdf
Quote:
Originally Posted by melgross
Never said that Apple is suing for future damages. What I said, as what Apple is attempting, with Samsung and Motorola, is to prevent them from using the patents in question, and getting an injunction on all infringing products as they did with HTC. HTC was forced to remove the infringing feature, and that's what Apple wants Samsung and Motorola to do as well.
We were discussing lost sales, and damages therein, for the sake of understanding whether those damages can be cured. If those damages happened in the past then they can be equated with a sum of money and thus can be cured. In that case the infringing feature has been present in the past, and presumably caused said damages. Now, if you're talking about removing an infringing feature in the future, then you're assuming future damages.
I understand it's difficult to keep track of a conversation that spans a few days. Anyway the matter is all resolved by now, I believe.
You have inaccurately stated the elements necessary for the Court to provide injunctive relief in a patent infringement action. You are conflating the "extrodinary remedy" of a preliminary injunction with the statutory remedy of injunctive relief where a finding of patent infringement is made after a trial on the merits of the case. Yes, the Supreme Court has "legislated from the bench" in the MercExchange holding in 2006 that you cite, overruling the Federal Circuit and imposing a greater burden on a prevailing plaintiff to obtain injunctive relief than required by the plain reading of the applicable statute, 35 U.S.C. Sec. 283.
At root here we have a Judge who has denied the parties their right to a trial on the merits and has done so in an especially eggregrious manner where the Judge (Richard Posner) is a Circuit Court judge sitting by designation who dismisses the action within days of the trial. The Judge, arbiter of the law, has substituted his judgment for that of the finder of fact, the jury. Yes, there are issues of law that the Judge may address pursuant to motion practice under F.R.Civ.P 56, but in this case there are certainly facts remaining in question that should preclude Summary Judgment.
An appeal of the rulings of J. Posner would be heard by the 7th Cir. where he is a revered and powerful member of the panel. I wouldn't take an appeal of this case to the sitting Judge's own Circuit Bench. This outcome stinks on ice.
And, yes - I am a trial attorney who has argued cases before the late Giles Sullivan Rich of the Federal Circuit (the unofficial "patent supreme court") where J. Rich was the first scientist/patent attorney appointed to the Federal Circuit.
EDIT: I've changed my post since you corrected yourself, realizing that your claim that eBay vs. Merc was a trademark case rather than patent was wrong. You've also changed your post to show that I had properly stated the elements necessary for the Court to provide injunctive relief, contrary to you original claim that I was inaccurate. For any injunction finding the same rules apply, with those four requirements to be considered, so you do still need to edit your post to acknowledge that I was correct rather than inaccurate.
In essence we now agree I believe, except that you still want to claim that Judge Pender overstepped. Personally I don't see it but you're the attorney and would know better than me.
Since you are a trial attorney I was pretty surprised when you got the eBay vs. Merc Supreme Court decision wrong, but with your recognition of your error and correction all is well. Thank you for taking the time to respond.
While Apple certainly requested preliminary relief at the time that the case was filed, that request was long ago denied by the Court. The remedies available after prevailing at trial are damages (35 U.S.C. Sec. 284), injunctive relief (35 U.S.C. Sec 283), attorney's fees (35 U.S.C. Sec. 285), and costs. The Injunctive Relief denied by J. Posner in the last Order is the statutory remedy afforded to a prevailing party, post trial.
The Order, coming after dismissal, was just a further twist of the knife in Apple's back. Briefing the Appeal would require Apple to address the error of law in that last Order. If you aren't going to trial you can't claim remedies that enure to a prevailing party at trial. J. Posner had no legitimate legal reason to issue that Order.
An appeal of the rulings of J. Posner would be heard by the 7th Cir. . . .
Huh?Apple v. Motorola (N.D.Ill. 11–cv-8540) (Order by Judge Posner, June 2012)
The Order dismissing the case arose in the U.S. District Court for the Northern District of Illinois. Any appeals taken from that trial court are heard by the 7th Circuit Court of Appeals. J. Posner is a Circuit Court Judge sitting by designation at the district court. His rulings would be appealed to the 7th Cir.