Broadbased support for Samsung's petition for rehearing en banc in Apple injunction case

With an unusually strong dissent, Federal Circuit Chief Judge Sharon Prost practically invited Samsung to request a rehearing en banc (full-court review) of a 2-1 decision that would, unless overturned, pave the way for a permanent injunction for Apple against Samsung over patents covering limited aspects of some of countless smartphone features. Samsung accepted the de facto invitation and petitioned accordingly. On Monday, five amicus curiae briefs in support of Samsung's petition were filed. These amici include:

• the National Black Chamber of Commerce (which warns against the risks of African-American businesses being forced out of markets by patent-wielding incumbents);

• non-governmental organizations Public Knowledge and the Electronic Frontier Foundation (EFF), whose joint filing focuses on the majority opinion's holding that the public interest "nearly always" favors patentees seeking injunctions, which has these NGOs greatly concerned;

• innovation policy researchers Charles M. Davidson and Michael J. Santorelli of the Advanced Communications Law and Policy Institute of New York Law School, whose brief (filed in their individual capacities, not on behalf of their university) expresses profound concern over a potential "deluge of lawsuits seeking injunctive relief" that would stifle innovation;

• the Computer & Communications Industry Association (CCIA), whose members include, among others, Amazon, Intuit, Microsoft, Netflix, Sprint, and Yahoo; and

• a group of companies including Google, Facebook, eBay, ASUSTeK, HTC, Lenovo, Newegg, and Red Hat. (ASUSTeK, HTC and Lenovo compete directly with Samsung.)

Chief Judge Prost must be pleased that her dissent from the majority opinion has support in academia, NGOs, and industry.

Apple, however, has a particular problem with the brief filed by the Google-Facebook group. It has asked the Federal Circuit to reject the brief because the filers allegedly didn't meet and confer with Apple prior to filing and because Google should, in Apple's opinion, be treated as another party to the dispute lest its amicus brief constitute an end-run around page limits. I don't have an opinion on the procedural argument, and it doesn't seem overly important to me whether Google is a legitimate amicus curiae in this case, given that there is no way Apple could prevent all the other members of that group of companies from filing an amicus brief. Also, even if the court formally agreed with Apple, the circuit judges would get to see that brief anyway. By far and way the most important aspect of this brief is that it shows the support Samsung has in industry. That political weight would not be diminished by a potential rejection.

Here's the "Google et al." brief (this post continues below the document):

15-11-02 Google Facebook Et Al. Amicus Curiae Brief ISO en Banc by Florian Mueller

Just like Chief Judge Prost, these companies seek to defend the causal nexus standard the Federal Circuit established in its first three Apple v. Samsung injunction decisions. Part A of the brief explains why there is now an inconsistency that must be settled by means of a rehearing en banc. In the second half of their filing, these companies focus on their concerns as major high-tech companies. They refer to an analogy that came up in a previous Apple v. Samsung injunction-related ruling (and to Justice Kennedy's famous concurrent opinion in eBay v. MercExchange):

"To borrow from this Court's analogy in Apple III, if a laptop computer maker was required to change the design of its battery, cooling fan or screws (and the list goes on and on) every time it was found to infringe one of the thousands of patents covering minor features of its product, and was then forced to litigate whether its design-around complies with the injunction, the laptop maker would face the constant threat of coercive patent litigation."

Instead of injunctions, they propose cross-license agreements such as the one Google and SAP announced last week. They note that Apple has licensed the patents at issue, as the record of this case irrefutably shows.

There is a significant overlap between these amici and the membership of CCIA, but CCIA also has a number of very significant other members, such as the ones I listed further above. Here's CCIA's brief (this post continues below the document):

15-11-02 Apple v. Samsung CCIA Amicus ISO Petition for en Banc by Florian Mueller

I have repeatedly disagreed, but also agreed on more than one occasion, with CCIA. I agree this time around, with one exception:

"There is no dispute that patents are a critical part of protecting innovations."

There are industries in which that is the case, but in this industry, there's a constantly-growing number of companies and individuals who believe the patent system does more harm than good. CCIA notes that its member companies file for patents, and they probably didn't want to appear as an anti-patent group here. So they diplomatically chose to say something about information and communications technology (ICT) patents that is actually rather controversial in this industry. That tactical choice has nothing to do with the strength of CCIA's arguments for a rehearing, of course.

CCIA's brief is very focused. The concern is all about outsized, undue leverage for patent holders over high-tech companies that build highly multifunctional products. It's a concise and convincing brief that has drawn my attention to a brand-new academic paper I wasn't previously aware of:

"The majority's 'new and lower causal nexus appears disconnected from the reality of multicomponent devices. It fails to appreciate that even those most innovative technology products are made up of countless small advances, not a few pioneering ones.' Bernard Chao, Causation and Harm in a Multicomponent World at 9 (U. Denv. Sturm C. of Law Legal Studies Research Paper Series, Working Paper No. 15-56, Oct. 27, 2015), http://ssrn.com/abstract=2681204"

The five amicus briefs nicely complement each other. There are, of course, overlaps (for example, the thrust of the two filings from industry is very similar). But each of these filings raises issues and arguments that increase the likelihood of a rehearing. I'm optimistic about the prospects of this, and we'll likely see even more amicus brief activity if the rehearing is indeed granted.

Apple will likely also get some support for its opposition to Samsung's petition, including, if the not too distant past is any indication, from Ericsson, a company that would not hesitate to leverage a patentee-friendly final decision in Apple v. Samsung against Apple...

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Apple reinforces its Alice attack on two Ericsson patents, says claims don't specify solutions

Last month, Apple brought a motion for summary judgment of invalidity against two Ericsson patents, based on the exclusion of abstract subject matter under 35 U.S.C. § 101 and its interpretation by the Supreme Court in the famous Alice case, in the declaratory judgment case in the Northern District of California. Ericsson's opposition brief argues that there is so much technology involved in the operation of a wireless network, it's just impossible to hold such patents to cover abstract subject matter, lest an extreme interpretation of Alice spell doom for patent law as a whole.

Reply briefs are often very repetitive, reinforcing points already made in the motion in light of the opposition brief. Over the years I was actually bored by many such filings, including a number of Apple replies. Apple's reply brief in this context is one of my favorite ones, however, because it addresses some important post-Alice legal questions and convincingly dismantles Ericsson's arguments with great specificity (this post continues below the document):

15-11-04 Apple Reply in Support of Alice Motion Against Two Ericsson Patents by Florian Mueller

The first footnote counters Ericsson's assertion that the clear-and-convincing-evidence standard of proof should apply to Alice. Apple points to case law that supports applying the preponderance standard. The recent Supreme Court decisions on § 101 (Alice, Bilski, Mayo etc.) didn't address the evidentiary standard. The Federal Circuit has clarified that "while a presumption of validity attaches in many contexts, no equivalent presumption of eligibility applies in the section 101 calculus." A decision from the District of Oregon cites Justice Breyer's concurring opinion on Microsoft v. i4i (where clear and convincing evidence was held to be the applicable standard for other invalidity theories):

"Where the question of invalidity depends 'not upon factual disputes, but upon how the law applies to facts as given,' the clear and convincing evidentiary standard simply does not come into play."

Apple then addresses the two Alice steps (is there an abstract idea in play, and does the patent claim go beyond the abstract idea identified) for either patent it challenges. If you're interested in the details of this, you may find Apple's argument worth reading in detail. I'd like to just talk about a couple of aspects.

I know that those who would like to mitigate the impact of Alice tend to argue that the § 101 patent-eligibility analysis should be totally separate from novelty and non-obviousness considerations. Admittedly, my previous post on this motion process may have appeared to blur the line. But the Alice logic is simply that if you only use "generic" hardware to implement what you claim to be an "invention" (referring to the claim limitations, not whatever the description might contain beyond the claim elements), your "invention" isn't patent-eligible. While "generic" is not the same as "new" or "non-obvious," it's still a somewhat similar analysis. Before the first computer or the first mobile network was invented, it wouldn't have been generic.

Over here in Europe, we've had this kind of discussion for a long time because of the exclusion of computer programs "as such" from the scope of patent-eligible subject matter under the European Patent Convention. I've followed numerous nullity cases before the Federal Patent Court of Germany and related discussions in courts hearing infringement cases (where nullity cannot be decided, but the outcome of nullity cases must be predicted because a strong prognosis of invalidation results in a stay). Both the lawyers arguing these cases for parties challenging patents and the judges rarely conclude that an entire patent claim falls under the exclusion. They're much more comfortable arguing on the basis of (non-)novelty) and (non-)obviousness and then finding that the question of patent-(in)eligible subject matter doesn't even have to be reached.

In no small part, this is due to the fact that it would simply be bad for the business of those lawyers and bad for the domain of patent-specialized judges if many patents were declared invalid on the basis of wholesale ineligibility. It would be a show stopper, and the show must go on for the professionals working in that area, which at least subconsciously and in some cases probably also at the conscious level prevents them from proposing or establishing rules that would end the discussion about most software patents. For example, the Federal Court of Justice affirmed the nullity ruling on Apple's slide-to-unlock patent, but disagreed with the Federal Patent Court for fear that its decision contained at least one statement that would get too many user interface patents invalidated. What they are more willing to do over here (though they still prefer decisions to be based on obviousness or non-novelty) is that they identify the novel claim elements and then determine whether those are technical under the EPC.

While it's easy to imagine patents that are so abstract one wouldn't have to consider what is "generic" (Alice logic) or "software as such" (EPC logic), those are hard to come by, and patent claims like the ones at issue in Alice were not like that. In most cases, the claim drafters had tried to inject some token references to technical means of solving a technical problem. Therefore, Apple is right to refer to the following Alice passage:

"A claim that recites an abstract idea must include 'additional features' to ensure 'that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].'" (bracketed language in original)

And an indirect Mayo quote by Apple shows again that novelty/non-obviousness considerations inevitably overlap with the abstract subject matter analysis:

"explaining the additional elements within the claims, apart from the abstract idea itself, must involve more than ''well-understood, routine, conventional activit[ies]' previously known to the industry' (quoting Mayo [...]; bracketed language in original)"

Here, the Ericsson patent claims at issue are just about abstract protocols and their generic implementation on run-of-the-mill mobile communications technology.

Finaly, a really good quote from Source Search Techs., LLC v. Kayak Software Corp., District of New Jersey:

"DDR Holdings tells us that when a patent holder seeking to establish § 101 eligibility for an otherwise abstract idea points to a particular element of a patent's claims as solving a computer-centric problem, the claims must specify how that solution works. [emphasis in Apple's filing] That specificity removes the claims from the abstract realm."

Apple says that Ericsson's claims just don't meet that requirement, and many pages of legal argument that now tries to portray the subject matter of those patent claims as technical inventions can't change what's written in the claims. I agree.

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Oracle to court: Samsung's offense was also Google's defense in Apple case, expert not neutral anymore

In the Android-Java copyright infringement litigation in the Northern District of California, Oracle filed a reply Wednesday evening in support of its motion to disqualify the court-appointed damages expert Dr. James Kearl. In the meantime I had published and commented on Dr. Kearl's filing, which was a de facto opposition brief. Google formally opposes the motion, but I found nothing of interest in Google's opposition brief other than Google offering the prediction that Oracle's damages claim in next year's retrial would be substantially greater than the billion-dollar claim from 2012.

Here's Oracle's reply brief (this post continues below the document):

15-11-04 Oracle Reply in Support of Disqualification of Court Dr. Kearl by Florian Mueller

In the first section, Oracles notes, as I had after Dr. Kearl's filing, that a number of facts about Dr. Kearl's involvement with Apple v. Samsung on Samsung's and, by extension, Google's behalf are undisputed. One of those facts is that the law firm of Quinn Emanuel represented both Google and Samsung, with Google paying directly for some of QE's work:

"That Quinn Emanuel represented both Google and Samsung shows that the important strategic decisions—like asserting counterclaims—likely served the best interests of both companies. [...] It would have been impossible for Google's attorneys to participate in some parts of the litigation while only Samsung's attorneys handled other parts. Google's attorneys were Samsung's attorneys."

The paragraph quoted above is not wrong, but it is obviously a bit one-sided. First, Google was a beneficiary of the counterclaims Samsung brought (in order to discredit Apple's out-of-this-world damages claims in that case), but I doubt Google was involved in any of the decisions relating to those counterclaims, other than maybe as an informal advisor. Second, QE is a big firm and had (actually, still has) a huge team involved with Apple v. Samsung: not just the size of a soccer team but more attorneys than you see different plays in a World Cup semifinal. Such Texas-size teams are not manageable in any context unless there is some division of labor, and I guess different lawyers will have worked on the details of the various patents-in-suit.

That said, I do believe the fact that Dr. Kearl worked with QE in Apple v. Samsung, a case in which QE also represented and presumably continues to represent Google, warrants his disqualification, and it's by far not the only and not even the strongest reason.

The next passage is even stronger in my mind:

"Second, Dr. Kearl helped the Samsung/Google team by offering his analysis of Samsung's counterclaims at trial. Google had two ways to lower Apple's damages, and thereby its liability: on defense, by undermining Apple's expert's analysis; and on offense, by convincing the jury that smartphone patents are not worth much. To execute the offensive strategy, Samsung counterclaimed for $6 million to argue that Apple's $2 billion demand was overstated. When Dr. Kearl testified about Samsung's counterclaims, he also helped to defend Google. In other words, Samsung's offense was also Google's defense."

The above is absolutely true. Even though Dr. Kearl denies that he had sandbagged his damages figures, there cannot be the slightest doubt that he knew, before starting his analysis, what his client wanted to achieve. They won't have told him to arrive at a lowball damages figure. They will have said something to that effect in a slightly more subtle way. For example, they might have told him something like "look at Apple's lunacy of a damages claim and just so you know, we don't want to reciprocate that but we want to show the jury what a more reasonable damages claim looks like." He must have known that he was expected to come up with something that would contrast with Apple's approach.

The second, shorter part of Oracle's reply brief explains why there should be no other court-appointed damages expert either. Oracle's argument is convincing to me when looking at it through the lens of U.S. litigation. In other jurisdictions, such as the one in which I live, court experts are the norm. In the U.S., they are meant to be a rare exception, and if there were reasons for a rare exception last time, the threshold will hardly be met now that the case no longer involves any damages theories related to patent claims.

I guess Dr. Kearl will be disqualified later this month. Anything else would be outrageous.

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Samsung says Apple is jumping the gun, Apple says Samsung is stalling: what's an invalid patent worth?

The week before last, Samsung filed a petition for an en banc rehearing (full-court review) of summary affirmance of a partial final judgment that would allow Apple to collect roughly half a billion dollars over a set of patents, the most valuable software patent of which has meanwhile been held invalid by the United States Patent and Trademark Office (the Central Reexamination Division as well as a Patent Trial and Appeal Board). On Tuesday, the Federal Circuit invited Apple to file a response on or before November 13, 2015, but Apple didn't want to wait nearly that long: it filed its opposition the next day, Wednesday. (Obviously, Apple's lawyers were able to already prepare for this as soon as they saw Samsung's filing on October 19, so I doubt anyone had to work for 24 hours without sleep.)

Here's Apple's opposition filing (this post continues below the document):

15-11-02 Apple Opposition to Samsung Petition for Rehearing by Florian Mueller

By filing on the first day of an 11-day deadline, Apple demonstrates once again that it is very serious about collecting damages from Samsung at the earliest opportunity. Of course, Apple wants this to look like a case in which a totally legit right holder should finally, after years of litigation, get paid. Apple is legit, but that is not the case for all of its patents-in-suit (in Europe, not even one Apple patent-in-suit has been upheld so far, so at least in Europe, Apple's lawsuits were not legit based on what we know today).

Apple portrays Samsung as a defendant employing stalling tactics. For example, a footnote of the above filing says the following:

"Consistent with its strategy of delay, Samsung sought and was granted an extension of 32 days in which to file its petition for certiorari."

That footnote refers to Samsung's previously-announced Supreme Court petition over design patent damages. The Chief Justice gave Samsung until December 14 (instead of November 11) to file that petition for writ of certiorari. There is, however, nothing unusual about that extension. I generally suspect that companies request extensions for their cert petitions mostly because it gives them more time for mobilization of amici curiae, while they could easily do their own filings on schedule, and that may very well be the case here. But a 32-day extension of a 90-day filing deadline doesn't really make a huge difference in the greater scheme of things. Stalling is something else to me.

Apple's opposition filing says Samsung is wrong on the law, and portrays Samsung's argument as merely policy-based. Once again, Apple does not argue policy in this context. It knows that from a pure policy perspective, it has a losing case: a patent that shouldn't have been granted in the first place should not entitle anyone to a damages award, even if the notoriously patentee-friendly Federal Circuit didn't hold it invalid. The patent had originally been granted by the USPTO, and the USPTO itself has corrected that mistake.

As for stalling, Apple is certainly not doing anything to accelerate the reexamination-related proceedings. It has made clear in various filings over the years that it would always exhaust all appeals to defend its patents even after multiple decisions holding them invalid. But that's what it's entitled to. So I don't see a reason why Apple could accuse Samsung of stalling or the other way round.

The real issue here is whether Apple is jumping the gun. It may appear counterintuitive to say that someone who wants to collect in 2015 money that had already been awarded by a jury in 2012 is jumping the gun. But the criterion is not how many years patent litigation takes, or whose fault it is (for example, a retrial in this first Apple-Samsung case would never have been necessary if Apple had made some different decisions in the build-up to the 2012 trial). The real issue here is precisely the one Law360 has raised in a recent headline:

Damages For A Canceled Patent?

The answer to that question should clearly be no.

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Google-SAP cross-license agreement announced: is SAP once again critical of software patents?

Google has previously announced various patent cross-license agreements, with partners including (but not limited to) Samsung and Cisco. Not with Apple and Microsoft, though: those announcements merely related to the withdrawal of lawsuits, not to actual license agreements.

Today, Google and SAP have announced "a long-term patent cross licensing agreement that covers a broad range of products and technologies."

It's not unprecedented for SAP to agree with Google in the context of patents. SAP has previously joined Google in supporting Samsung against Apple's pursuit of injunctive relief over patents covering (certain aspects of) minor features. But today's announcement contains a rather interesting quote from SAP's chief IP counsel:

"We are proud to announce this important agreement with Google, a global leader in technology," said Tony DiBartolomeo, Chief IP Counsel, SAP. "Giving talented engineers and developers the freedom to build great products is key to promoting innovation. Patent cross-license agreements like this one increase freedom to operate and prevent distractions from unnecessary patent litigation. And, like Google, SAP welcomes similar discussions with like-minded companies."

The second sentence ("Giving ...") appears to imply that software patents restrict the freedom of talented engineers and developers to build great products, and are, therefore, an impediment to innovation. The third sentence proposes cross-license agreements as means of increasing "freedom to operate" and calls patent litigation unnecessary and a distraction from innovative activity.

That's clearly a much more critical view of (software) patents than merely supporting the philosophy of Justice Kennedy in the eBay case that injunctions over minor features would give patent holders undue leverage.

SAP is living (in an abstract sense) proof that innovation in software, contrary to what many patent professionals claim all the time, is not dependent on patent protection. When SAP came out of nothing and became the most significant non-American software company, software patents weren't available--neither in the U.S. nor in Europe. For a long time SAP had no software patents, and even a while after it started filing for some, it had less than a handful.

Based on what I once heard from credible sources, Hasso Plattner, SAP's former CEO, was philosophically opposed to the notion of patenting software. But SAP may have felt forced to play the game everyone else was playing, and at some point, SAP's management believed its in-house patent attorneys that software patents were strategic assets for the company. I saw SAP patent attorneys at government roundtables and in the European Parliament, lobbying aggressively for software patents.

In 2005, the European Parliament rejected a proposed directive on computer-implemented inventions (more accurately and commonly referred to as the "EU software patent directive," though it's a fact that software patents already existed in Europe and continue to exist, because the exclusion of software patents defined in the European Patent Convention had already been vitiated beyond recognition by the European Patent Office and, to a lesser extent, national courts). Before the decisive vote, SAP placed an ad in the European Voice, a Brussels-based weekly on EU affairs published by the Economist Group, calling on Members of the European Parliament to vote in favor of the proposal. That ad came in handy for the movement opposing the bill: the liars supporting software patents (including the European Commission) had said all the time that the legislative measure was not at all about software, just "technical inventions," and had pointed to computer-controlled refrigerators and car braking systems, but SAP doesn't make any products of that kind: SAP is purely a software company, so its ad exposed the CII lie.

Now, more than ten years later, SAP appears to be part of the Google-led movement that is rather critical of software patents and those seeking to extort true innovators (ab)using patents of usually very questionable quality.

I hope SAP has now come full circle.

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Court expert: I don't want to appear partial and oppose Oracle's motion, but I'm doing it anyway

Dr. James Kearl, the court-appointed damages expert in the Oracle v. Google Android-Java copyright infringement case, yesterday responded to Oracle's motion to disqualify him on the grounds that he is no longer impartial due to his work on Samsung's behalf in the Apple v. Samsung cases that went to trial last year.

Here's his filing (this post continues below the document):

15-10-28 Kearl Answer to Oracle Motion to Disqualify by Florian Mueller

I had a #facepalm moment when I read toward the bottom of the first page that he does "not believe it appropriate for [him] to oppose Oracle's motion" because he--untruthfully--says he does "not have an adversarial position vis-a-vis Oracle" and then read on. His filing is not just a declaration that serves to state some facts for the record. It simply is an opposition to Oracle's motion. Nothing more and nothing less. Anything to the contrary should be reserved for April Fools' Day.

Dr. Kearl's filing spans several pages but does not contain anything new, enlightening, surprising, or whatever else might add value to the motion process.

Oracle's motion makes clear what the concern is: he's closer to one side than to the other. For a judge who had concerns in 2012 about bloggers potentially influencing a court or a jury (if that had happened, he'd have read blogs like Groklaw that got the rules for copyrightability totally wrong), it should be a no-brainer to dismiss a court-appointed expert once there are facts that show more of a proximity to one party than to the other.

Oracle's motion didn't refer to the strawmen Dr. Kearl's filing puts up just to have something to tear down. It's undisputed that he did not provide expert testimony directly on Apple's infringement assertions against Android. He does not deny, however, that Samsung used his testimony to convince the jury (rightfully so) that Apple's damages claims in that case were not just outsized but downright irrational.

He denies that he or his firm received $5 million (Apple's lawyers told the jury that Samsung had spent $5 million on damages counterclaims of §6 million and that this fact showed Samsung's counterclaims were just about devaluing patents), but he does not say what he and his firm received instead. Also, he doesn't explain why Samsung's trial counsel didn't object to the $5 million claim.

He stresses that he "did not meet or speak with any Samsung corporate officer or employee at any time before, during or after the Apple v. Samsung trial, with the single exception that a Samsung in-house attorney was intermittently present during portions of my preparation that occurred over parts of three days leading up to my court testimony that lasted no more than 20 minutes." Samsung is not a party to Oracle v. Google anyway. But what does he say about Google?

"My communication and work was with counsel from the Quinn Emanuel law firm, which was the outside law firm for Samsung. Likewise, whatever the relationship between Google and Samsung, I had no communication before, during or after the trial with any Google corporate officer or employee. Google's role, if any, and its products and services were completely irrelevant to the work that I did. I was not provided with information regarding Google's role in Apple v. Samsung, nor did I inquire about such."

Quinn Emanuel also represented Google in the same case. Oracle's motion stressed the fact. Dr. Kearl doesn't deny it.

I don't know the man, so he may genuinely be, as he writes, "confident that [he] can assist the court as a neutral economic expert in the present action." But the question is not how he feels. The question is whether Oracle can rely on its chance to make its case on a level playing field. With him, Oracle has every reason to be concerned, no matter how honorable he may be as a person. The court should say "thanks, but no thanks" to his offer to remain involved.

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Ericsson says Apple's Alice motion against wireless patents threatens to swallow all of patent law

An Alice motion in the Apple v. Ericsson case pending in the Northern District of California has reignited my interest in this dispute, and I'll soon take a look at the ITC and Eastern District of Texas proceedings and will try to find out more about the cases that will go to trial in Mannheim, Germany, on January 19, 2016.

Yesterday, Ericsson filed its opposition to Apple's motion (this post continues below the document):

15-10-28 Ericsson Opposition to Apple Motion for Summary Judgment by Florian Mueller

I'm not convinced by Ericsson's legal argument that the challenged patents cover more than the underlying abstract ideas. Basically, Ericsson refers to all sorts of technology and real-world values that are referenced, but that's not the substance of the patent: the most important question is whether whatever may (or may not) be novel goes beyond the underlying abstract concepts. Those patents don't cover antennas, for example. They refer to radio transmissions of signals, but they aren't radio patents. They are protocol patents, and I stand by what I wrote in my previous post: protocols should be patent-ineligible under any reasonable interpretation of Alice.

Ericsson points to "the Supreme Court's caution against too broad an application of 'this exclusionary principle lest it swallow all of patent law.'" It's true that the most extreme interpretation of 35 U.S.C. § 101 could limit the patent system to little more than mechanics, molecular pharmaceutics, and maybe electricity, too. But even if Apple succeeded in shooting down protocol patents, it wouldn't even be the end of all wireless patents.

Ericsson says the following about the lack of legal certainty in the Alice context:

"The Supreme Court has not 'delimit[ed] the precise contours of the ‘abstract ideas’ category.' [...] Nevertheless, the cases in which the Court has found patent claims to be directed to abstract ideas provide guidance."

The first sentence is correct. The second one is not incorrect per se, but it's incomplete. It's a half-truth. Of course, the cases in which the Supreme Court has held subject matter patent-ineligible are even more extreme cases than protocol patents. But Ericsson doesn't talk about how little the Supreme Court actually has held patent-eligible. Legal certainty for holders of patents that involve software exists pretty much only in connection with computer-controlled manufacturing processes. Protocols are far closer to the Bilski and Alice kind of patents than the physical process patent in Diamond v. Diehr.

Apple is fighting a good fight here.

Via TechRights I've become aware of this Lexology article by four Morrison & Foerster lawyers (I had seen the names of two of them before, in Oracle v. Google if I recall correctly) about "[a] chilly reception for Section 101 challenges at the ITC." I haven't watched any ITC cases recently but will at least take a look at the investigation of Ericsson's complaint against Apple. The ITC also took a different position on injunctive relief over standard-essential patents than district courts. In connection with validity determinations, however, the ITC cannot even argue that it faces a different situation because of a different set of remedies. In that context it absolutely has to be consistent with the case law outside the U.S. trade agency.

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