carnegie

tht said:

carnegie said:

entropys said:

All articles I have read fail to specify exactly what patents Apple is supposed to have infringed. More interested in the controversy I suppose.

From what I can sort of gather, it is a general patent applying to blood oxygen sensors being on the wrist. Which tbh is a joke of a patent. Happy for more details in the next article please.

Masimo is a very large company. Whining about how much more Apple Pay’s its former staff is tragically sad, as Masimo clearly weren’t paying them what they were worth.

I'll post the verbiage of the 5 patent claims which the LEO and C&DO are based on. In order to infringe a patent claim, one must employ every element listed in that patent claim. Note that some of these claims are what are referred to as dependent claims. They include all of the elements of a previous numbered claim plus something additional. So, e.g., with the first claim I'll post - 22 of the 10,912,502 patent - there's only an enforceable violation because of the inclusion of the last item.

I'd also note that the original USITC ALJ (administrative law judge) only found enforceable violations as to the last 2 claims (24 and 30 of the 10,945,648 patent). The Commission effectively overruled that ALJ with regard to the first three.

This is not clear to me.

The ITC (commission) found Apple was in violation of which patents, which claims of which patents?

The ALJ (judge) found Apple was in violation of which patents, which claims of which patents?

I've read that Apple is only in violation of the 648 patent, claim 24 and 30. This was a patent that was granted in 2021, after Apple shipped the Apple Watch Series 6.

The administrative law judge (who is part of the USITC) initially found a 337 violation based on claims 24 and 30 of the '648 patent. That ALJ didn't find a violation based any of the other remaining claims (which spanned 5 different patents).

Then the Commission (the C in USITC) affirmed the 337 violation based on those two claims. But it also effectively reversed the findings of no violation when it came to claims 22 and 28 of the '502 patent and claim 12 of the '648 patent.

So the limited exclusion order and the cease and desist order are based on claims 22 and 28 of the '502 patent and claims 12, 24, and 30 of the '648 patent.

That said, it doesn't matter when a patent was issued. What matters is the priority date and that (for the '648 patent) goes back much further.

eightzero said:

SpamSandwich said:

rob53 said:

Can Samsung appeal this decision or is it final? It’s about time Apple got a jury that understood things.

I suppose they could appeal all the way up to the Supreme Court, but it would never get a hearing.

It is my understanding this case was remanded on appeal to the federal district court for Northern California for determination of damages. An appeal from this would go to the Federal Court of Appeals for the 9th Circuit. No one has a right to appeal to the SCOTUS. A petition can be submitted (for a writ), but the Supremes take 60-70 cases a year at their discretion. 

An appeal would be heard by the Federal Circuit, not the Ninth Circuit, because of the subject matter involved - i.e., it's a patent case.

chasm said:

foregoneconclusion said:

godofbiscuitssf said:

So Apple has to allow companies to say "you go to <company's website URL> to subscribe", but Epic and other companies don't have a right to their own app stores?

The anti-steering ruling was specific to California state law. I believe Apple is still appealing that ruling, but if they ultimately lose then it's CA only. 

You’re not wrong, but Apple will likely apply it worldwide (outside of Europe, which has its own rules now). Apple has zero interest in creating different versions of the App Store on a state-by-state basis, and even if they could do so it would tempt other states to create similar regulations that would be harder to customize.

Just to be clear, and as I indicated earlier, the injunction applies nationwide. Apple doesn't have the option of only applying it in California.

For those who still have doubts on this front, from Judge Rogers' Rule 52 Order (citations and footnotes omitted):

Even with this past quarter's massive stock buyback at an average price above $171, the average price for Apple's stock buybacks since August of 2012 is below $107.

Apple has, according to my numbers, now bought back 1.869 billion shares at a cost of $199.6 billion.


EDIT: I'd also note that AAPL is now below 5 billion shares outstanding. As of April 20th, it had 4,915,138,000 outstanding shares. 

chasm said:

mattinoz said:

Yes but if Platforms are go the other way and are completely hands off with moderation, it will have the same effect. Customers* will walk away from all the noise and the bots. 

Yes, but as mentioned Section 230 only indemnifies publishers IF they make a “good faith” effort to censor comments that either call for or cause illegal acts. If sites don’t do this, they can expect to be held liable for the consequences of that negligence.

Unless they’re rich enough, of course.

That's not really how Section 230 works. I think a lot of people have been misled on this point in part because, as with so many other things, there's been a lot of inaccurate reporting on how Section 230 works.

There are two distinct protections provided for (or clarified) by Section 230 which often get conflated. First, there's an unqualified protection against being treated as the publisher of information provided by others. That's 47 USC §230(c)(1):

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

So Twitter, e.g., isn't legally liable for defamatory postings made by others. It isn't responsible for others' speech just because it provides resources they might use to propagate such speech. That subsection is also, btw, what protects you and I when we simply quote someone else's speech. The point is, in general I'm responsible for my own speech (to include comments I might make regarding others' speech) but not for the speech of others. In that way Section 230(c)(1) provides protections for everyone using the internet - ISPs, so-called platforms, users - and without it (or common law to substantially the same effect) the internet as we know it couldn't exist.

Then there's another protection provided by 47 USC §230(c)(2):

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

That subsection provides protection against civil liability for, e.g., taking down content provided by others. So Twitter, e.g., can censor speech which it finds "otherwise objectionable" so long as it acts in good faith in doing so. Generally speaking, someone can't (successfully) sue Twitter for taking down their (or others') content.

The key point here though is that the protections provided by those respective subsections aren't linked. If someone acts in bad faith in censoring some content, they might be liable - if there's a statutory or common law basis for such liability - for that censoring. Bob, e.g., might be able to (successfully) sue Twitter for its bad faith action in taking down his Tweet. But that bad faith doesn't then make Twitter liable for anything posted by others which it leaves up. It isn't treated as the publisher or speaker of such content. Full Stop. That remains true regardless of its good or bad faith efforts to censor other content. 

EDIT: To be clear, I'm only talking about Section 230 here. It provides protections against civil liability. By its own terms it doesn't block enforcement of federal criminal laws. To the extent anyone on the internet violates federal criminal laws, they can be held accountable for doing so. But that's a separate matter from the protections provided by Section 230.

This decision to deny cert on Epic's petition in particular is pretty important. It's going to make it harder for anyone - to include the DOJ - to establish that Apple has monopoly power in certain relevant markets and thus to establish that Apple has violated anti-trust laws.

One of the things the Ninth Circuit did in its opinion in this case is outline the circumstances under which a relevant antitrust market can be limited to a single brand. Under the guidelines the Ninth Circuit established it will be difficult to show that iOS distribution, for example, is a relevant antitrust market. The Supreme Court just decided not to review those guidelines and perhaps overrule or alter them. The Supreme Court didn't actually affirm them, so it's still plausible that it will in the future effectively overrule them. But for now it's a positive development when it comes to the likelihood that those guidelines, or something close, will live on.

What the Ninth Circuit said on this front is only legally binding in that circuit, but courts in other circuits may find it persuasive if they need to consider such matters themselves. At any rate, I think this cert denial makes certain kinds of antitrust actions the DOJ may bring in the future more difficult and may incline it to file such actions in a different circuit.

foregoneconclusion said:

gatorguy said: Apple fast approaching 65% market share in the US won't be helpful to their defense. 

Market share isn't relevant. Apple lost the e-book lawsuit regarding illegal conspiracy at a time when Amazon controlled almost 90% of the ebook market. So the courts didn't care about Amazon's dominance. They cared that Apple was found to have conspired with a group of publishers to raise the price of ebooks on the NYT bestseller list. 

And the reality is that Amazon has a horrendous commission structure for ebooks relative to the App Store and it doesn't really matter. Amazon takes 30% commission on ebooks priced between $2.99 and $9.99 and a 60% commission on anything above or below that price range. So not only are they taking as high or higher of a cut than Apple does in the App Store, they're also trying to set a specific price range. 

Market share is relevant when it comes to U.S. antitrust law though, of course, it isn't the only thing that matters and its relevance depends on which aspect of antitrust law is at issue. Further, if Apple had 65% market share in a properly defined relevant antitrust market that could be important in potential antitrust actions brought against it. Anything below 50% market share is generally considered indicative of a lack of monopoly power, but 65% market share is in a gray area where it may or may not be indicative of monopoly power.

There are three primary aspects of U.S. antitrust law: Sherman Act Section 1, Sherman Act Section 2, and the Clayton Act. The Clayton Act relates to whether potentially anitcompetitive mergers and the like are allowed. Sherman Act Section 1 prohibits agreements which unreasonably restrain competition - e.g., Apple and Google agreeing to policies which would make it more difficult for others to compete in a smartphone OS market. Market share doesn't necessarily matter when it comes to Sherman Act Section 1 violations. Sherman Act Section 2 is generally about single firm conduct - unlawful monopolization or monopolization attempts. There market share matters because:

The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.

See U.S. v Grinnell (1966). That's black letter U.S. antitrust law that you'd find quoted in some form in countless antitrust decisions. The elements that need to be established for a successful Section 2 action are: (1) monopoly power and (2) anticompetitive behavior. Market share is an important factor that goes into determining whether the first element is present.

The Apple e-book decision you refer to was based on Section 1 of the Sherman Act so Apple's market share didn't really matter there.

sflocal said:

One thing that confuses me a little bit is who manufactures the Qualcomm chips that Apple uses in its devices.  If Apple's partners are not paying Qualcomm until the lawsuits are settled, and Apple is not paying anything either to Qualcomm, then how is Apple getting the physical chips?

Are the physical chips provided by Qualcomm?  I would think that Qualcomm would simply stop supplying the chips if that were the case until they get paid.  Can anyone provide some insight on that?

There are a couple of reasons why Qualcomm wouldn't (or is very unlikely to) do that:

(1) It might exacerbate Qualcomm's anti-trust problems. One of the allegations made against Qualcomm - by multiple parties, to include various regulatory bodies -  is that Qualcomm has used its virtual monopoly when it comes to certain kinds of chips to force companies to agree to unreasonable licensing terms. Qualcomm has threatened, it is alleged, to cut off supply of certain kinds of chips which weren't otherwise available (and which were necessary for certain kinds of smartphones) if companies didn't agree to Qualcomm's unilateral terms - even as those terms related to licensing for IP in chips not supplied by Qualcomm. (I can get into various aspects of those terms, and why they might be considered unreasonable, if you're interested.) Actually cutting off the supply of chips would strengthen the anti-trust claims made against Qualcomm. And, to be clear, it isn't as if Qualcomm isn't getting paid what it's entitled to - when it comes to the licensing of the included IP - on the chips which it supplies itself. Qualcomm (at least superficially) argues to the contrary, but in the U.S. the law is clear on this point: In selling those chips Qualcomm exhausts its patent rights with regard to the underlying IP.

(2) Cutting off the supply of those chips would do great commercial harm to Qualcomm. It would be Qualcomm cutting off its nose to spite its face. In order to understand Qualcomm's actions in this situation, we need to understand that much of what it is doing is for investor PR reasons - not in hopes of winning (most of) its legal battles. Qualcomm - and, iikely, most of its institutional investors - understand that the model which has worked for it in the past is no longer viable. Its (arguably) bad behavior has caught up with it and the party is over. What is left for it to do is to salvage as much commercial success going forward as it can. That success can still be quite substantial. It can't throw away the pieces (for future success) which remain out of anger over the pieces which are lost.

If we were talking about a privately-held company, perhaps it might be willing to (at least threaten to) burn the whole house down in a last act of desperation (or vengeance). But we're talking about a publicly-traded company, answerable to shareholders - one with a high level of institutional ownership. Qualcomm has already taken a major hit to its stock price from this dispute and the spreading awareness that the model it's relied on for a while will no longer worker. If Qualcomm took the kinds of actions you're referring to, those institutional investors would understand the likely business consequences and many of them would dump the stock. Or they might demand new leadership. Those possibilities, and the success of potential shareholder lawsuits, are what Qualcomm's leadership is trying to guard against. That's what so many of the statements that Qualcomm has made, and legal positions it's taken, are about. It knows it's on the wrong side of many of the legal issues. It's fighting to survive as a viable investment in the eyes of many.

godofbiscuitssf said:

So Apple has to allow companies to say "you go to <company's website URL> to subscribe", but Epic and other companies don't have a right to their own app stores?

More or less, that's correct. Developers can include links (and information)  in their apps that direct users to other payment options.

Also, Apple still doesn't have to reinstate Epic's developer account so Epic may remain unable to distribute its Fortnite app on iOS.

Further, Apple can still require the payment of licensing fees for the use of its IP even though payments go through other parties. Depending on how Apple decides to handle that, it could make for a messy situation.

Xed said:

anonymouse said:

Xed said:

anonymouse said:

SmittyW said:

Mike Wuerthele said:

SmittyW said:

Wesley Hilliard said:

canukstorm said:

DAalseth said:

I wonder if Trump knows it won’t change. He made all sorts of really stupid promises to his supporters. These Executive Orders let him say he followed through, but like his promise in 2016 to ‘bring back coal’ none of them stand a chance in hell of happening. He knows that but he’s just going through the motions. It’s also good misdirection so people talk about this, while he and his crew are doing real damage behind the scenes. 

As a non-US citizen, how do Executive Orders work?  Are they not binding?  For example, the issue of birthright citizenship is a hot button topic which from my understanding is protected by the 14th Amendment.  Can an executive order just overturn that even though it's in the Constitution?

Nope. Many of Trump's executive orders were actually illegal. An executive order is kind of like a promissory note that conveys the intentions of the administration. They are binding for federal employees and offices, but can't go beyond that and can't violate the constitution. The orders can later be considered by Congress and the Supreme Court if they need further legislation to make them more official, or if they need to be blocked.

For example, his orders about birthright citizenship aren't allowed, period. He can't actually provide amnesty to ByteDance from a law that was passed. And he can't withdraw from the WHO like that. He's being sued already and there are a lot of people on both sides of the isle that are unhappy with the many of the executive orders and what they do. Congress will likely overturn several. We'll see.

You need to do some more research and look into what 'US jurisdiction' means. Might want to look up supreme court precedent while you're at it. You are welcome.

Also, that's a shame about the WHO, looks like Tedros is going to have to go back to embezzling funds from the Ethiopian government again. Poor guy.

I don't think Wes is the one that needs to look up US jurisdiction. 

I would encourage you to look deeper into that issue. If someone sneaks into your house, does that mean you're obligated to make them part of your family and give them your resources? The 14th amendment was created to grant citizenship to former slaves during the Reconstruction. 

The text of the 14th Amendment is quite unambiguous,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It doesn't say anything about applying only to former slaves. There aren't any restrictions at all such as that their parents are citizens, or even in the country legally. It clearly and simply says, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." There's no wiggle room there. The idea that The Constitution can be amended by executive order is a pill too bitter for even the corrupt right wing of SCOTUS to swallow. But, you know, maybe they'll go along, and then the next President (or, who knows, maybe even this one) can simply repeal the 2nd Amendment by executive order.

Trump's Eos can't get around the 14th Amendment. HOWEVER Trump and his cronies can work to get SCOTUS to repeal Amendments (and add new ones). Trump and his cronies can also do what they've already done, which is bully people who fear for their life, livelihood, and/or stock value into making decisions that are not good for the nation, as well and look the other way when states do something that's Federally illegal in a Red state (or when a Blue state needs assistance). Right now he's trying to get a bishop to apologize for asking everyone to be accepting of minorities... ya know, Jesusy shit.

SCOTUS can't repeal amendments or otherwise amend The Constitution because, you know, the process for that is laid out in The Constitution and doesn't involve SCOTUS. But, if the corrupt ring wing of SCOTUS wants to rule that an executive order that effectively amends the The Constitution is lawful, go right ahead, because target number 1 for the next Democratic president will be to issue an executive order that effectively repeals the 2nd Amendment and they'll have cleared the way.

Translation: End birthright citizenship via this avenue and we're coming for your guns, all of them.

You are correct. I did misspeak on how Amendment are added and removed. Thank you for the correction.

Right now the super majority is 2/3rd of Congress. What is needed to change the percentage of votes needed?

If you're asking as regards Congress' power to propose amendments to the Constitution, then an amendment to the Constitution would be needed to change the majority (to, e.g., 51%) needed to propose such amendments.

But even when Congress proposes an amendment, that amendment needs to be ratified by 3/4 of the states in order to go into effect.