carnegie

beowulfschmidt said:

chasm said:

You can rest assured that in this particular case, the Solicitor General of any previous administration would have come to the same conclusion: Apple can’t try out a new argument when it had evidence of this at the original trial and didn’t use it. This is long-established legal precedent.

Exactly.  If Apple was in possession of information pertinent, and beneficial, to their case, and chose to withhold that information for whatever reason, they can't suddenly say "oh wait, what about this" just because they get a ruling they don't like.

That's generally true. But it isn't relevant here because it isn't what happened here. The issue here is that Apple and Broadcom weren't allowed to present certain evidence and make certain invalidity arguments in the district court trial. That's what this Supreme Court cert petition is about. The question is, should they have been allowed to make those invalidity arguments?

There are a number of moving parts and some nuance to this situation. But the basics, as relevant to the estoppel issue, are this: There were two separate sets of proceedings. There was a district court case in which Apple was accused by Caltech of infringement. There were also USPTO PTAB (Patent Trial and Appeal Board) proceedings in which Apple sought to challenge the validity of Caltech's patents.  In the latter proceedings Apple had to first file petitions asking the PTAB to institute IPRs (inter partes reviews) of the patents in question. In filing those petitions Apple had to identify the grounds on which it was asking to be allowed to challenge those patents. If the IPRs were instituted, it wouldn't be allowed - in those reviews - to argue other grounds for invalidity.

Apple decided not to identify certain possible challenge grounds in its PTAB petitions because it wanted to be able to argue those grounds in the district court infringement case. As the law was understood at the time - and as the law is actually written - a party would only be estopped (i.e. barred) from making certain invalidity arguments in other proceedings (e.g. a district court trial) if those arguments were raised, or reasonably could have been raised, in an actual inter partes review that resulted in a final decision. The Federal Circuit had been clear on this point. The IPR is separate from the petition asking for the IPR. Whether a particular grounds was raised, or reasonably could have been raised, in a petition asking for an IPR is not what matters. Whether it was, or reasonably could have been, in the instituted IPR is what matters. And because Apple chose not to raise certain invalidity grounds in its petitions, it couldn't raise those grounds in the IPRs themselves. Therefore it wasn't - or shouldn't have been based on existing precedent and the law itself - estopped from arguing those grounds in the district court proceedings.

But despite the clear Federal Circuit precedent, the district court ruled that Apple was statutorily estopped from making certain invalidity arguments to the jury even though it had chosen not to make those arguments in its IPR petitions. Then, among other rulings in the case (some in Apple's favor and some not), a different Federal Circuit panel upheld the district courts ruling and overruled the prior Federal Circuit precedent. In other words, the rules were changed in the middle of the game and Apple - through no fault of its own, as it was following the then clearly established rules - was never allowed to make certain arguments regarding the invalidity of Caltech's patents.

With the Solicitor General's recommendation that the Supreme Court not review the (new) Federal Circuit decision, it's less likely that the Supreme Court will grant cert and decide the matter itself. More often than not (though not always), when the Court issues a CVSG it follows the advice of the Solicitor General. But I think the Court should grant cert. This decision seems wrong, and at a minimum it represents a significant about face, and it has the potential to affect a lot of patent infringement defendants.

chasm said:

red oak said:

Apple has every right to pursue every legal avenue.  Including asking that the patents to be nullified, which it put forth from the very beginning 

Why is the Biden administration even commenting on a case that is in the courts?    Bad decision after bad decision.  No wonder Biden’s approval is in the low 40%s

What a lying, life-long politician, senile moron.  For God’s sake, pick a string Democrat leader to run in 2024 

Point 1: it did not present prior art or present evidence supporting patent invalidations in the original trial.

Point 2. The Supreme Court often ASKS for the Solicitor General to weigh in, that’s why. You should try reading the article rather than just the headline.

You can rest assured that in this particular case, the Solicitor General of any previous administration would have come to the same conclusion: Apple can’t try out a new argument when it had evidence of this at the original trial and didn’t use it. This is long-established legal precedent.

Point 3: I look forward to your presentation of evidence that the Solicitor General is lying, or indeed that the current president has lied about this case.

Point 4: As evidenced by the previous election, Americans did pick a stronger Democratic candidate over the weaker Republican offering in the last election (and speaking of lying, where was your concern about that before now?).

You have no evidence that the American people won’t make the same choice again, particularly if the two candidates are the same again.

You would make a very bad Solicitor General.

To clarify a few things...

The issue isn't that Apple and Broadcom didn't present prior art evidence at the original trial. The issue is that they weren't allowed to present such evidence and an invalidity argument at the original trial. That's the point of this cert petition to the Supreme Court. The district court judge ruled that they were statutorily estopped from presenting that evidence and making that argument and the Federal Circuit panel upheld that ruling.

As for what other Solicitors General might have concluded on this particular question, I think that's much in doubt. This recent Federal Circuit ruling, which the current SG agreed with, is inconsistent with a plain reading of the law in question. And it isn't consistent with "long-established legal precedent." To the extent a precedent existed on this particular question, that precedent leaned the other way. Indeed, this Federal Circuit panel, by its own admission, overruled that previous (Federal Circuit) precedent in order to get to its decision on the matter in this case. (I'd note that this panel overruling a previous panel's decision on its own, rather than having an en banc Federal Circuit overrule such previous decision, is in itself a questionable action - especially considering that it effectively admitted that the subsequent Supreme Court decision in SAS Institute didn't actually require it to do so.)

That said, in fairness to the poster you responded to, the OP didn't point out that the SG was asked for its opinion on this issue - that this wasn't unsolicited commentary from the Administration. Having noted that, I'd agree that there wasn't anything inappropriate about the Administration filing this brief. And it didn't, as the headline suggests, say or suggest that Apple and Broadcom should quit stalling and pay Caltech the $1.1 billion. That would have been inappropriate and, frankly, wouldn't have made any sense.

For one thing, there is no $1.1 billion judgment to pay. We're waiting on a new trial to determine the amount of the award(s). The Federal Circuit also remanded for a new trial with regard to infringement of one of the three patents-in-suit. The Federal circuit vacated the jury's infringement finding for that patent because the district court hadn't given the jury an instruction as to the proper meaning of a term used in the relevant patent claim.

In its brief the SG didn't weigh in on this case in general. It, e.g., neither agreed nor disagreed with the infringement findings or the Federal Circuit's remand on the damages award. It only weighed in on the statutory estoppel issue - i.e., whether Apple and Broadcom should have been allowed to make certain invalidity arguments to the district court jury based on what did and didn't happen in the (USPTO) IPR proceedings. The SG believes the Federal Circuit got that issue right and that the Supreme Court doesn't need to review its decision on that matter.

9secondkox2 said:

What the heck is up with this administration???

this is a PRIVATE SECTOR DISPUTE! 

Let the justice system play out. It’s not like the Biden family hasn’t been doing much stalling of their own. 

There is an order and process to things. 

The Biden admin needs to remember that this is America and not some communist dictatorship. 

The Supreme Court sometimes, when deciding whether to grant cert and take a particular case, asks the Solicitor General of the U.S. for its view on the matter. This is called a CVSG (Call for the View of the Solicitor General) and typically happens when the Court is being asked to review a lower court's interpretation of a federal law or regulation. That's what happened here. In January the Court asked the Administration (though the SG) for its opinion and two days ago the administration (through the SG) submitted a brief to the Court offering its opinion. That is the order and process to this thing; every administration does this.

That said, I think the SG is wrong and the Federal Circuit's decision in this case should be reviewed. That decision changed how things previously worked and could have broad implications for invalidity defenses in patent infringement suits. And, although there's considerable nuance to the issue, I think the Federal Circuit's decision is inconsistent with a plain reading of the law in question. Apple and Broadcom, and other similarly situated parties, shouldn't be estopped (in infringement cases) from making invalidity arguments which they didn't raise in IPR petitions, even if their failure to raise such arguments at that stage was intentional. That's not what the law requires. It only bars the making of such arguments (in infringement cases) if they were raised (and rejected) or reasonably could have been raised in actual inter parties reviews rather than petitions asking for IPRs.

The Federal Circuit had it right before and, despite this recent Federal Circuit panel's claim, nothing in the Supreme Court's SAS Institute decision required it to change course on its interpretation of the law in question.

bestkeptsecret said:

I am curious about how a state-wide ban is implemented/ enforced. Does the ban mean no one in Montana can use TikTok and that it should not be installed on their phones, or does it mean that no content can be uploaded onto TikTok from Montana?
What about visitors? Do they need to delete TikTok before entering the state?

I'm not sure the details matter much, as this law wasn't passed with any expectation that it would ever go into effect. It is 100% a virtue signaling dog and pony show.

That said, a bit about how the law purports to work: TikTok users wouldn't be violating the law. TikTok itself and mobile app stores would be the ones violating the law. It would be a violation of the law every time someone (1) accessed TikTok within (the territorial jurisdiction of) Montana, (2) was offered the ability to access TikTok within (the territorial jurisdiction of) Montana, or (3) was offered the ability to download TikTok within (the territorial jurisdiction of) Montana. Every time one of those things happened, TikTok or the mobile app store would be subject to a $10,000 fine.  Apple, e.g., would have to somehow prevent TikTok from being available to download in Montana. It might also need to somehow block TikTok's ability to work in Montana.

I don't think they were much concerned with whether the law was at all feasible - i.e., whether it would be practical for covered entities to comply with it - because, again, even those who enacted the law (assuming they have measurable brain function) don't expect that it will ever go into effect. It's blatantly unconstitutional for multiple reasons.

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.