FOSS Patents was spot-on on 5 of the 6 most important smartphone IP decisions in the 1st half of 2014

I didn't want to do a "me, me, me" post on my own blog, so I chose this microblog as the place for it. Still, what has to be said has to be said. Somewhere.

Uncertainty is inherent to legal proceedings, but it is possible to make educated guesses with a reasonably high hit rate. Two years ago, all sorts of people, including a few morons, bashed me after the now-reversed district court ruling that erroneously held Oracle's Java API declaring code non-copyrightable. But it's a fact that I have had a very high hit rate predicting court rulings. For example, just take a look at my reports on numerous German patent trials and then compare the predictions I made in my trial reports to the outcomes: the hit rate there is, I believe, in the 90% range (also in the observation of various professionals directly involved with the proceedings).

Not only in Germany, where I'm often the only non-party person to attend. I was also right with respect to five of the six most important smartphone IP decisions that have come down this year: five of them in the U.S. (a country I haven't physically visited in three years), and one at the EU level. I regret that I was (not entirely, but on the bottom line) wrong on one of the six (Apple's renewed motion for a permanent injunction against Samsung), and I concede that there were others, such as Stanford Professor Mark Lemley, who were right on that one. But 5 out of 6 ain't bad, right? It's 5 cases in terms of case numbers, but I count them as 6 cases because the "Posner cross-appeal" involved two distinct sets of claims consolidated into a single case, Moto's FRAND SEPs and Apple's non-SEPs. Either one was very important, and I was right on both.

So here's a case-by-case comparison of the positions I took and predictions I offered and the decisions, in chronological order of the decisions.

1) No injunction for Apple against Samsung

On March 6, Judge Lucy Koh (Northern District of California) denied Apple again (post-appeal) a permanent injunction against Samsung:

While I supported Samsung's proposal to conduct additional discovery before the court ruled on Apple's renewed motion for an injunction (, supported Samsung with respect to the '915 patent (the most important one of the three) and Samsung's lawyers ( and found that "Samsung's lawyers present[ed] some of their arguments in a pretty compelling fashion", I was admittedly wrong when I wrote that "entry of a permanent injunction [wa]s still the most likely outcome here". It was my feeling based on how the appellate hearing had gone in early August 2013, but the Fed. Cir. ruling did leave Judge Koh plenty of wiggle room (which I underestimated) and Samsung capitalized on it. This reminds of a German saying from the 1970s: "You have no chance. Seize it!"

2) and 3) Ruling on "Posner appeal" (Apple v. Motorola)

On April 25, a divided Federal Circuit panel handed down (7.5 months after the hearing) its ruling on the "Posner appeal", the Apple v. Motorola case from the Northern District of Illinois that was supposed to go to trial in the spring of 2012 but got canceled at the last minute. The Federal Circuit (i) affirmed the no-injunction-over-FRAND-pledged-standard-essential-patents part of Judge Posner's ruling and (ii) reversed his superstrict dismissal of Apple's non-SEP claims. In the "See I told you so" section of my post on the appellate decision ( you can find quotes from and links to my predictions back in 2012 on both parts.

4) European Commission decision to settle antitrust investigation of Samsung's use of SEPs against Apple in Europe

On April 29, the European Commission decided to enter into a settlement with Samsung regarding antitrust implications of its use of FRAND-pledged SEPs against Apple ( The settlement brought various improvements of Samsung's original proposal, the most important one being the one I advocated last year ( FRAND rate determinations (if the parties can't agree on terms) will now be made by courts of law if only one party (Samsung or an implementer) requests it, and by arbitrators only if both agree on arbitration, not the other way round as originally proposed.

5) Verdict in Apple v. Samsung II

On May 2, a federal jury in the Northern District of California handed down its original verdict (which was corrected three days later in ways that didn't change liability or the bottom line) in the second Apple v. Samsung case in that district ( None of the patents-in-suit (five Apple and two Samsung patents) was found invalid. In addition to a pretrial infringement finding by Judge Koh, the jury found Samsung to infringe two (more) Apple patents, and Apple to infringe one Samsung patent. It awarded Apple only 5% to 6% of the $2.2 billion it originally sought, a claim I had criticized extremely harshly ever since I became aware of it.

When the trial started, I wrote on Twitter (and referenced that tweet later on my blog): Apple deserves to emerge victorious from the trial, but only on subset of claims, not to the tune of $2 billion, not with propaganda videos. (

Apple did emerge victorious in technical terms (that don't give it decisive leverage), and the jury also disagreed fundamentally with the damages claim.

It is, by the way, absolutely crazy that some people raised conspiracy theories despite the fact that I supported an Apple win from the first day of the trial until the end, just not a lopsided or totally crazy outcome (which was fortunately avoided).

6) Federal Circuit opinion in Oracle v. Google

On Friday (May 9), the United States Court of Appeals for the Federal Circuit ruled on the Oracle v. Google appeal (technically a cross-appeal) relating to the use of Java API declaring code in Android ( The district court's non-copyrightability ruling was reversed, and fair use was remanded for further proceedings.

In my detailed analysis of the official recording of the December 4, 2013 appellate hearing ( I predicted with near-certainty that the Java API declaring code would be held copyrightable and saw a "a decent chance that fair use [would] be decided by the Federal Circuit, though it [did] seem a bit more likely that fair use [would] be resolved in district court on remand". The possibility I described as "a bit more likely" is what has just happened.

Not only had I predicted this outcome based on the appellate hearing but the copyrightability ruling is also consistent with positions I had taken on API declaring code since the spring of 2011 (in connection with the Linux APIs and other GPL-licensed APIs,, even before the issue came up in public filings in the Android-Java case. In May 2012, before the district court ruling, I wrote that APIs had been copyrightable in the Ninth Circuit (the West Coast circuit) for more than 20 years (, pointing to the Johnson Controls ruling that the Federal Circuit has now also referenced several times in its appellate opinion. I disagreed with Judge Alsup's non-copyrightability ruling ( and from the beginning (in late 2012) said that Oracle's appeal had to be taken very seriously ("This case still has the potential to make history, and the Federal Circuit will without a doubt be fully aware of the importance of this matter from an intellectual property point of view", Throughout the appellate proceedings I took a clear pro-copyrightability position, as "the last man standing".

There's no other website than FOSS Patents that was right on the 5 issues on which my positions and predictions were extremely (in some cases even perfectly) consistent with the decisions.

I do regret that I overestimated the leverage Apple could gain through litigation for a long time. Mea culpa. I've admitted this before ( I've learned from it.
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