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Apr 302014

I’ve made no bones about Florian Mueller being a major source for my posts about Apple’s legal wrangling with Android OEMs. His FOSS Patents posts was the basis of no fewer than six of my own posts. I’ve always liked his writing style, which breaks down the thoroughly complex and tedious issues related to patent law in technology and makes them easy to understand. It also helped that his posts reflected my own personal bias that Apple’s fight to defend its iOS intellectual property was, for lack of a better word, noble.

Then something strange happened, but I don’t know exactly when it did.

The klaxon was when Daniel Eran Dilger, an Apple beat writer who I respect greatly, went after him for his take on Apple’s damages claim in the most recent Apple-Samsung trial (a Twitter exchange about which led Mueller to block Dilger). Before that, I had noticed a couple one-off Apple takes in Mueller’s Twitter feed, but I wrote that off as part of the limitation of a 140-character medium. It was the AppleInsider piece that served as confirmation that Mueller had crossed a track with which he had always run parallel. I hadn’t linked to him for awhile, so I started looking back at his more recent FOSS Patent posts – and one of the first that caught my eye was somewhat disappointing.



Florian Mueller was endorsing a book that was universally panned by the Mac community – and not just the lunatics.  The book’s premise is stated hilariously clearly in the title itself. From what I’ve read, the book is basically one long BusinessInsider post. Philip Elmer-DeWitt summarized the shortcomings of Kane’s work nicely. Nevermind that Mueller never reviewed a book in his blog before; he was recommending an absolute dog. Something had changed. The tone of the FOSS entries had started their ascent to their current level of anti-Apple bombast around January of this year. And it wasn’t just his blog that flipped; his Twitter account had taken an unusual pro-Samsung turn. On the day Apple smashed the 2Q earnings estimates laid out by analysts, Mueller’s tweets focused on iPad sales coming up short in the eyes of some analysts, which was literally the only thing that might be construed as negative in an otherwise lights-out quarter for Apple. When Samsung announced its second consecutive decline in YoY earnings, Mueller was decidedly upbeat.

Screeny Shot Apr 30, 2014, 2.34.12 PM

The closest thing I could come up to an explanation appears in a FOSS Patents post Mueller wrote in earlier this month in which he shows his fatigue at the seemingly unending nature of the Apple-Samsung litigation. Apparently, Mueller feels that the following is the case:

1. Apple has nothing to show for its legal assault on Samsung

2. Neither Apple nor Samsung show any sign of relenting their legal battle

To resolve the issue, Apple and Samsung should agree to pay each other $1 and $3/unit, respectively for use of the other party’s IP (with Apple getting $750 million additional compensation for its first California verdict).

Now I admit a certain fatigue with Apple having to plow millions into its IP defense with zero to show for it, but this to me doesn’t fully explain Mueller’s about-face. Some speculate that he may have taken on Samsung as a client, which would be disappointing but not unprecedented. As several of his historical detractors pointed out during the Oracle/Google trial, Mueller was a paid consultant to Oracle.

The reasons behind Mueller’s change of heart may never be known, but it’s clear to me that one has taken place. The change in the focus of his content and, even more so, the tone of his writing is black and white to my eyes. Despite my disappointment with his new attitude, I agree with him about the patent war being one of eternal attrition that is begging for an end. Barring radical reform, I don’t see that changing, which is unfortunate. I still view him as one of the more articulate voices in the tech patent universe. I just wish he’d come back to center.

 Posted by at 2:58 pm
Aug 052013

On Saturday, it was widely reported that an impending ITC ban on some Apple products got a presidential stiff-arm. Of course the Samsung South Korean government, feeling the wicked sting one feels when the indefensible hovers just shy of possibility only to be revoked at the last minute by common sense, felt obliged to express their concern. The country’s anxiety is particularly acute because its corporate darlings are facing their own judgment on Friday for some ancient devices such as Galaxy S, Galaxy S II and Galaxy Tab 10.1. If you’ve read some of the reporting on South Korea’s reaction, you may think Samsung’s the patent used against Apple with the ITC in some way resembles the patents with which Apple is seeking an import ban against Samsung. Case in point: Min-Jeong Lee’s piece for the Wall Street Journal. Let’s see how the issue is presented, using excerpts from the article:

 The South Korean government’s statement suggests that the legal dispute between the two technology giants could escalate into a political issue depending on the outcome of the ITC’s decision.

“The ITC will likely take a more careful view in the Samsung case in light of the Obama veto,” said a patent lawyer, who declined to be named.

Should the ITC decide to ban the Galaxy products subject to the decision Friday, legal experts say Samsung may opt to lobby for a similar veto.

Lawyers said Samsung has a range of options. The company can try to overturn previous decisions by the ITC relating to patent infringement that were in favor of Apple. Samsung in July filed an appeal to the federal court in the U.S., in a bid to reverse rulings by the ITC that said Apple doesn’t infringe Samsung’s patents.

Some analysts said odds are low for the dispute to result in an ultimate ban of Samsung products in the U.S., particularly given the possibility that it may disrupt the trade relationship between the U.S. and South Korea.

“If the presidential veto appears to be used to give advantage to Apple over Samsung, this would be a dangerous precedent that could upset the current good trade relations between the U.S. and South Korea,” Mark Newman, an analyst with Sanford C. Bernstein said.

“The White House has presented this as being about consumer choice…if it really is about consumer choice, then it would have to do the same for Samsung as it did for Apple,” Mark Summerfield, a patent attorney for Watermark based in Australia said.

There is a suggestion that there may be a difference between Samsung’s skeet-shot patent and Apple’s. It’s hilariously (and I have to assume unintentionally) couched in a statement from South Korea’s Ministry of Trade, Industry & Energy about the impending ITC ruling on Samsung: “We hope to see a fair and reasonable decision on the matter.”

Samsung’s patent was subject to FRAND standards; Apple’s are not. It’s understandable that the South Korean government, which is basically synonymous with Samsung, is spinning this with a tit-for-tat tone, but who the fuck are these quoted idiots who completely ignore the fundamental differences between FRAND and non-FRAND patents?

Interestingly, Mark Newman, according to this Bloomberg clip is “among the top-ranked analysts” of Samsung – probably because he worked for the company for 6 years. Certainly no reason to play stupid there.

Mark Summerfield works for Watermark, which provides “Intellectual Asset Management” for companies. Although they don’t say which ones by name (lest Summerfield be summarily dismissed as an authority worthy of a quote to the Wall Street Journal), there is a cagey entry on Watermark’s site describing one of their clients: “The Major Corporation:”

Watermark has worked closely over a period of years with a major corporation whose technology has been taken up worldwide. We have worked with them to develop a worldwide patenting strategy identifying future market opportunities, scoping and understanding competitor activity, establishing freedom to operate, mapping out future directions and identifying potential licensees. Their international success has been driven by dedicated management of their intellectual assets.

It’s probably not Samsung, but who cares? For companies engaged in “Intellectual Asset Management” like Intellectual Ventures…err…Watermark, one patent is as good as another. They bill by the hour. For context, let’s see how the Australian court system feels about Samsung’s FRAND abuse. From Florian Mueller’s FOSS Patents site:

Let’s go to another continent. Australia, too, is a neutral jurisdiction. Justice Annabelle Bennett called Samsung’s assertions of 3G-essential patents “ridiculous” because this should only be about the terms of a FRAND license.

Contrary to the confusion on display by her clown-shoed, patent ambulance-chasing fellow countryman, it seems like at least one judge in Australia knows what a standard-essential patent is.

And what about the conductor of this symphony of one-sidedness? How is it possible that the Wall Street Journal’s Min-Jeong Lee can construct a story without a single mention of its most material fact? If you search his name on the WSJ’s site, 13 of the top 20 results contain “Samsung” in the title. Lee is apparently the resident Sammy hack.

So there you have it: how to make a story absolutely one-dimensional, brought to you by the Wall Street Journal written by a Samsung corp-hack and backed by a former Samsung employee and a Nathan Myhrvold wanna-be. Wall Street Journal readers aren’t typically stupid, but man does that rag think they are.

 Posted by at 11:31 pm
Jun 252012

You have to wonder what kind of view Google has over the “Firewall” it claims to have erected between itself and Motorola Mobility Inc., a company they bought for the bargain basement price of $12.5 billion. In addition to getting a company that hasn’t been in the black for almost 2 years, MMI is doing its best to make its new owners look like deceitful double-dealers by shopping its patent spats with Apple and Microsoft around to the court of public opinion. The problem with their strategy is two-fold: generally, things that get blabbed to the press don’t correspond to their real-world courtroom counterparts and the things that MMI is bleating about don’t correspond to past matters of public record. And the disparities are as obvious as they are egregious.

As reported by Florian Meuller in his FOSS Patents blog, MMI’s statements to Ars Technica about the terms they’ve been offering to Microsoft in its race with Redmond for product injunctions are, at best, contrary to what they’ve been putting into court documents. Mueller opens by pointing out MMI’s statement that “Both Microsoft and Apple need to show that they’re willing to be reasonable as well by respecting the contributions Motorola has made in literally creating the mobile phone industry” would be nice – if 1. any of the crop of Motorola’s FRAND patents they were using against Microsoft had anything to do with cellular technology and 2. if they possessed any cellular patents that haven’t expired. He then moves on to MMI’s IP counsel’s claim that:

Microsoft says we demanded $4 billion a year from them, and that’s simply not true,’ said Kirk Dailey, VP of intellectual property for Motorola Mobility. ‘We never asked for anything like that.

Except that this statement is exactly the opposite of what the claim filed by MMI 2 years ago reads:

As per Motorola’s standard terms, the royalty (2.25%) is calculated based on the price of the end product (e.g., each Xbox 360 product, each PC/laptop, each smartphone, etc.) and not on component software (e.g., Xbox 360 system software, Windows 7 software, Windows Phone 7 software, etc.).

Microsoft’s allegation that MMI was seeking in the ballpark of $4 billion is actually on the low side, as it assumes an average PC cost of $500 (insert  “race to the bottom PC pricing joke” here). To top it off, the statement made to Ars about “never asking for anything like that” was made by the same lawyer who filed the very specific MMI royalty calculation: Kirk Dailey.

Google can claim up and down that it lets MMI operate on its own; that doesn’t make the huge black smear they’re continuing to apply across Google’s brand any less tawdry. It’d be smart if someone from Google had a little “come to Jesus” talk with MMI, or at least put a muzzle on their counsel. I personally have no problem with them doing neither and letting their duplicity continue to glare before the eyes of the entire tech world.

 Posted by at 2:13 pm
May 082012

I got a little heat from a post I did wondering what would happen if criminal trials plodded along at the pace of patent litigation in this country. Some of the heat was understandable, but the point I tried to make – and sharpen in my comments – remains: the glacial pace of Apple’s IP defense is perpetuating the open season enjoyed by its competitors in ripping it off. My rant was based on Apple’s current case in California against Samsung, the company that serves as the most egregious example.

When we last left our heroes, they were being asked to partner with their adversaries in paring down the claims so that they could have their day in court in July, as opposed to the not-so-veiled threat of a 2013 trial that would allow Sammy to mock Apple’s innovations for another year.

Instead of conceding a 2013 date, which of course Samsung still maintains is necessary for a trial of this scope, Apple dropped half of its claims, including all of its trademark claims. Samsung, meanwhile, narrowed its “claims” from 12 to 7, or in Samsung’s words “42% of its fluff pulled from the filing cabinet marked ‘kevlar’ affirmative counterclaims.”

Florian Mueller has an excellent state of the case as it stands, including this nugget that sounds a lot like what I’ve been saying:

Samsung asserts a combination of allegedly standard-essential patents that Apple may infringe, but only if they’re standard-essential, and non-standard-essential patents that appear weak to me at this stage. Samsung’s counterclaims are underwhelming. They’re the kind of counterclaims someone brings only for the sake of bringing counterclaims, which is why it’s far easier for Samsung to drop a number of them (Samsung now proposed to withdraw 5 of its 12 technical patents). When Samsung countersued Apple over such a long list of patents, it knew that the case would be narrowed.

It remains to be seen whether this lightened load will be enough to persuade Judge Koh that the case can be processed by the frail capacities of potential jurors in July, but it does show Apple is so serious about defending its IP in the near term that its willing to skinny the docket at the expense of their case.

 Posted by at 1:16 pm
Sep 282011

I remember reading that Microsoft made more money from licensing agreements related to Android than it did from its own Windows Phone 7. Now another shrimp is grilling on the barbie. Samsung, the largest maker of Android phones, is now the 7th manufacturer to agree to some sort of license deal with Microsoft, leaving soon-to-be-acquired Motorola as the only major player still in Redmond’s sights. As FOSS Patent’s Florian Mueller points out, this makes it pretty clear that Samsung doesn’t have faith that Googlerola is the answer to its prayers, while also making the likelihood of Google having to ante up to Microsoft for its blushing bride a certainty.

I guess “Google’s deep commitment to defending Android, its partners, and the ecosystem” doesn’t reflect Samsung’s deep commitment to sit around and wait for it to happen.

Aug 122011

When Steve Jobs proclaimed of the iPhone during its introduction in 2007 “we patented the hell out of it”, he officially ushered in Apple’s new intellectual property worldview. Gone were the days of letting Microsoft abscond with your company’s UI. With iOS, things were going to be different.

The first shot across the bow was fired in March of last year when Apple filed suit against HTC claiming infringements on patents covering the iPhone’s interface and hardware. Then, in April, Apple filed against Samsung and their Galaxy devices, a suit that recently banned the Galaxy Tab 10.1 from being sold in Australia and the European Union. Samsung’s response to the EU preliminary injunction was an interesting variation of the “that’s not fair!” bellyaching popularized by Mountain View: they claimed they didn’t know anything about the suit and therefore did not have the chance to defend themselves. For anyone in possession of 2 firing neurons, Samsung’s protestation was suspect. Either the injunction was served without the company involved knowing anything about it or Samsung as a company was so incompetent as to not know they were the targets of an impending injunction that would ban the sale of a flagship device in 26 countries (the Netherlands has it own suit pending).

Thanks to the legwork of patent bloodhound Florian Mueller, we know that Samsung is not dumb, just dishonest. According to his FOSS Patent blog, Samsung filed a pre-emptive opposition to the preliminary injunction a week before it was issued, an action that obviously failed to persuade the court.

Samsung vows that 2 damning injunctions on the Tab aren’t that big of a deal and that they’ll continue to defend their innovation… blah blah…something about competing in the marketplace: the standard quote you get from Android manufacturers when they get pantsed.  Now that their product is banned on 2 continents, a smart company would use that as an excuse to stop embarrassing itself in the market with these turds.

Jan 212011

What do Google and Julian Assange allegedly have in common?

They have no qualms about injecting their DNA into unsuspecting vessels without protection.


Things just got a lot worse for smartphone manufacturers and carriers who thought they were getting a steal with Android’s low, low $0 sticker price. Florian Mueller’s FOSSpatents blog is running an entry depicting at least 43 instances where Google’s Android source files appear copied straight from Oracle/Sun’s. Google’s already been targeted by Oracle for copyright infringement, but that hasn’t kept the iPhone knock-off OS from being gobbled up by HTC, Motorola and Sony. In addition to Google’s bursting pockets, Oracle’s case to go after these fat cats just got a lot stronger.

Maybe some aspiring Android developer could create a Morning After app?

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