Monthly Archives: June 2017

Patent FRAND and SEP case, dimissed on unfair trade practice

ARTICLE SOURCE
FOSS Patents
Wednesday, June 28, 2017
Judge Koh shows the way: FRAND non-compliance can be established without rate-setting exercise
Qualcomm tried hard, but unsuccessfully, to get the FTC’s antitrust lawsuit in the Northern District of California dismissed. Maybe Qualcomm hoped, more realistically, the FTC would have to amend the complaint in some important ways, possibly complicating the case to the point where the U.S. competition agency would find it hard(er) to justify using the resources required for pressing on. The reason I suspected the latter is because, based on hearsay from about seven years ago, the European Commission’s investigation of Qualcomm’s practices with a focus on Nokia (now more of a Qualcomm friend than foe), essentially got derailed by scare of conducting a resource-intensive, complex and somewhat subjective (thus more likely to be overruled) rate-setting exercise. In the FTC case here, the presently-Acting Chair of the FTC, Maureen Ohlhausen, opposed the decision authorizing the complaint, and might have been the first decision-maker to argue that the case should be dropped or settled (the latter without any useful remedies) due to litigation economics. Industry concern over such a decision by the FTC was and remains real, as an open letter to President Trump showed in April.

Fortunately (though I was sympathetic to some of the arguments in Qualcomm’s motion), the case is going forward on the basis of the FTC’s original complaint (congratulations to the FTC’s litigation team, whose partly-minimalistic approach has worked out so far) and without the hypothetical need (in a worst-case scenario) for a jury trial. And the federal judge whom Qualcomm needs to persuade at the future bench trial has taken positions on the legal issues in the case that don’t bode well for the San Diego patent holder and chipset maker. There is an important caveat here since the hurdle for denying a motion to dismiss is low, but the way Judge Koh has expressed her disagreement with Qualcomm’s various legal challenges does go beyond what is strictly needed to deny the motion. Seriously, I’ve never been happier about a decision from the Northern District of California than this one (this post continues below the document):

17-06-26 Order Denying Qualcomm Mtd by Florian Mueller on Scribd

Here’s a total non-starter to begin with:

“Qualcomm contents that FTC’s allegations of above-FRAND royalties are nonetheless contradcited by the fact that the Complaint also alleges that Qualcomm has historically collected a royalty rate of 5%, and that this rate has not changed over time. […] However, FTC’s allegation that Qualcomm has continued to collect the same 5% royalty on the total value of a handset supports, rather than contradicts, the FTC’s allegations that Qualcomm’s royalty is above FRAND. As the Complaint explains, early handsets were primarily used only to transmite voice calls. […] Accordingly, Qualcomm’s cellular communications SEPs contributed significantly to the functionality and value of a 2006 handset. […] By contrast, handsets today contain numerous features that are unrelated to cellular network connectivity, such as camereas, Wi-Fi access, and data storage. […] Thus, Qualcomm’s SEPs contribute far less to the value of a 2017 phone [than] they contributed to the value of a 2006 phone. […] Nonetheless, Qualcomm continues to collect a 5% royalty from the total value of the handset today for Qualcomm’s cellular communications SEPs, just as Qualcomm did a decade ago.”

Taken together with SEP portfolio erosion (with respect to existing standards), this point is then reinforced:

“In short, that Qualcomm collects the same 5% royalty on the total value of a 2017 smartphone as Qualcomm collected on the total value of a 2006 phone, despite the fact that both handset technology [that’s the previous point] and Qualcomm’s SEP portfolio [have] changed dramatically over the past decade, supports FTC’s allegations that Qualcomm’s SEP royalty rates are above FRAND.”

The passages quoted above can be reasonably interpreted as facts-based skepticism regarding Qualcomm’s claims of being FRAND-compliant, which shows what Qualcomm is up to here. There’s a lot more to it than merely finding that the FTC’s pleadings are sufficient. The FTC has won the single most important battle in the FRAND context that Qualcomm could possibly have lost: the royalty-base question.

Since Judge Koh believes that the FTC’s FRAND non-compliance theories are potentially sufficient to determine that Qualcomm charged supra-FRAND royalties, rate setting won’t be necessary. The case will stay focused, and some of these issues (such as the royalty base) may at the next stage be analyzed in light of whether a reasonable fact finder could ever disagree with the FTC…

The royalty base question hasn’t been resolved before. I was profoundly disappointed when Judge Robart didn’t draw a bright line in this regard (in Microsoft v. Motorola). It’s great that Judge Koh has this issue totally figured out in economic and technical terms.

The FTC-internal driving forces behind this antitrust action must be very happy and feel encouraged. Apple is litigating directly against Qualcomm in San Diego; Samsung and Intel filed informative and persuasive amicus briefs; regulators in other jurisdictions agree; and Judge Koh is now a thought leader, too. All that is missing is for Acting Chairwoman Ohlhausen (and others who may have shared her views so far) to join the mainstream. What the FTC is pursuing here is a just cause and, while most citizens won’t ever realize, is perfectly consistent with the Make America Great Again vision. Qualcomm has done and continues to do impressive research and deserves to be compensated fairly and reasonably, not overcompensated at the expense of companies that make real products and, by extension, consumers.

Another legally very important issue on which Judge Koh has taken a fairly clear position (clearer than would have been necessary at this stage of proceeding) relates to the antitrust duty to deal with competitors, i.e., Qualcomm’s obligation to honor its FRAND licensing promise vis-à-vis Intel, Samsung’s components division, and others.

In connection with (among other things) Qualcomm’s “no-license-no-chips” policy and tying, there was some argument over what the proper term for royalties changed on top of the chip price should be. The FTC consistently referred to it as a “tax” (a term that is also justified by Qualcomm’s anachronistic approach to the royalty base), and Qualcomm understandably didn’t like that. Judge Koh now calls it a “surcharge.”

The following holding by Judge Koh is another highly important point to draw attention to (and one of the things that make me wonder whether Qualcomm can defend itself at all, unless regulators in different parts of the world all got the facts totally wrong, or whether it may ultimately just have to focus on remedies since it can’t win the merits part):

“Thus, by violating its FRAND obligations twice over—by not licensing its competitors and by threatening to withhold its chips to induce OEMs to pay an above-FRAND royalty rate—Qualcomm raises the ‘all-in’ modem chip price that OEMs pay on all modem chips.”

Finally, those of use who follow Apple v. Samsung (with all the talk there about a two-horse race etc.) have or will read with great interest how Judge Koh, who is also presiding over those Apple v. Samsung cases, views the anticompetitive impact of Qualcomm’s exclusive rebate-based arrangements with Apple. In that context, she agrees with the FTC as well, though here she limits her analysis to minimum pleading standards. This does not necessarily mean that she’s less convinced. It may very well have to do with the nature of the beast: the anticompetitive effects of past exclusive deals (that foreclosed others from supplying chipsets to Apple for many years) involve certain facts regarding market share (and segmentation, possibly) and also some even harder-to-measure aspects such as Apple being a company whose decisions others like to follow

Politics, police, progressive discipline and just cause

Two officers of the DeFuniak Springs Police department, Officer Richard Boblitt and Sergeant Anthony Kaiser, claimed they were dismissed in retaliation for having supported the Department  Chief’s opponent in a municipal election.

The two had been employed by the Department for 17 and 4 years respectively. Both were instrumental in bringing the PBA into the Department in 2010.

The Chief was up for reelection in April 2015. On March 25, 2015 the PBA endorsed the Chief’s opponent. On April 2, 2015 several Department employees published a letter in a local newspaper questioning the PBA’s endorsement of the Chief’s opponent. Also on that date one of the officers who signed the letter filed a complaint against Boblitt and Kaiser alleging racial harassment. An Internal Affairs investigation was initiated on April 8, and the two were notified of the investigation on April 13. The election was held on April 14, and the incumbent Chief prevailed.

On June 2, 2015 the Department notified Boblitt and Kaiser that their employment was being terminated, Boblitt for allegedly having racially harassed the complaining officer and Kaiser for failing to take corrective action. Both grieved their termination and the dispute was submitted to arbitrator Jeanne Charles Wood for resolution.

Largely based on her credibility resolutions and her evaluation of the evidence against the grievants, Arbitrator Wood found the termination of the two not supported by just cause. Regarding the Union’s claim that that the terminations were part of a “conspiracy” relating to the reelection of the Chief, and the City’s claim that the terminations were compelled by its obligations under Title VII, the Arbitrator noted:

So, the question remains: Why would [the complaining officer] file the complaint when he did? The Union contends that it was part of a conspiracy relating to the election of Chief Weeks whose opponent was supported by the Union. I make no findings regarding this theory. It is, however, concluded that based on the totality of the circumstances present here, Boblitt’s comments were not so severe or pervasive too alter the terms and conditions of [the complaining officer’s] employment. That being the case, the City has failed to prove that Boblitt engaged in unlawful racial harassment in violation of Title VII. It follows then that Kaiser, was not negligent in failing to report or take corrective action in connection with racially discriminatory harassment in violation of Title VII.

Arbitrator Woods did find, however, that certain conduct of the grievants was contrary to Department policy, even if not severe enough to constitute unlawful harassment. Observing that police officers are held to a higher standard than other employees, and that “use of potentially racially offensive language and clearly inappropriate name calling in reference to a co-worker’s national origin is serious enough to warrant a suspension.” Reducing the terminations to five day suspensions, Arbitrator Wood noted:

Progressive discipline is an element of the just cause doctrine. The rationale for using a progressive discipline system is that both the employer and the employee “benefit when an employee can be rehabilitated and retained as a productive member of the work force. …” [footnote omitted]

Finding no evidence that grievants’ conduct could not be corrected by discipline less than termination, and also finding some evidence of disparate treatment, Arbitrator Wood ordered that grievants be reinstated subject to the five day suspensions.

Arbitrator Wood’s award can be found here.

Source: ADR

Detailed guide: How to classify trade marks

Introduction

Intellectual Property Offices worldwide use a trade mark classification system that groups together similar goods or services into 45 different classes. This is often referred to as the Nice classification

Each class contains a list of pre-approved terms. These cover all the goods or services included in that class.

  • goods are listed in classes 1 to 34

  • services are listed in classes 35 to 45

All classes have a broad heading explaining what’s covered in that particular class. This is only a general indication and doesn’t include all the goods or services in that class.

General indication of goods and services

If you do not know which class(es) your goods or services are in, you may wish to use the classification search tool TMclass. This will help you to search for, and classify, your goods and/or service needed to apply for trade mark protection.

Choosing the right classes for your application

It’s important you choose the correct:

  • class, or classes for your goods and/or services

  • pre-approved terms within each class

When completing your application to register a trade mark because once you file your application, you can’t add more classes or pre-approved terms.

For example

  • If the trade mark’s to be used on your own clothing line, you’d choose class 25 (clothing, footwear and headgear)

  • If the trade mark’s to be used on a shop that sells other peoples products, you’d choose class 35 (Advertising; business management; business administration; office functions) and select the pre-approved term ‘Retail services in relation to clothing’

Plan ahead

Don’t just focus on the goods and/or services that you currently use or intend to use your trade mark on. A registered trade mark lasts for 10 years, so think how you may want to expand your brand during this time.

Including classes that you think you’ll want to expand your brand into could save you time and money.

However, it is important to note that a registered trade mark can be revoked if it’s not used for five years.
For example
You file an application to register your trade mark in class 25 (clothing, footwear and headgear) and then decide to expand your brand into hand bags, which is covered by class 18.

As the application you have filed only covers you for class 25, you have to file another application to register your trade mark in class 18.

You could have avoided the extra cost making a new application by including both classes in the first application. You’d also have to pay two sets of renewal fees.

Choosing the wrong class can mean a worthless registration

Make sure you select the right class or classes for your trade mark.

For example;
If you use your trade mark on alcohol, you’d need to select the right class for its intended use, as:

  • class 1 covers alcohol used in chemical
  • class 33 covers alcoholic beverages (except beers)

Fee for extra classes

One class is included in the cost of a trade mark application. Extra classes cost an additional £50 per class.

For example

A single online trade mark application covering one class will cost £170.

The same application covering three classes will cost £270:

  • £170 for the application and first class
  • £100 for the two extra classes (£50 each)
    Note that you only pay for the class, not the number of pre-approved terms you select within a class.

Help with classifying goods and services

If you’re not sure which class or classes you need, you can use the classification search tool TMclass

This will help you search for and classify, the goods and/or services you need to apply to register your trade mark.

A TMclass tutorial is also available.

You can also:

Source: UK IPO News

How has EU Citizens’ perception of IP evolved?

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  • General subjective understanding of IP has increased among the general public, with the exception of 15- to 24-year-olds
  • 44% of citizens surveyed believe IP only benefits the “elites”
  • Citizens widely believe buying counterfeit goods is detrimental to the economy but increasingly accept purchasing counterfeits if price and availability become an issue, particularly among 15- to 24-year-olds. 













On March 23, 2017, the European Union Intellectual Property Office released the study European Citizens and Intellectual Property: Perception, Awareness and Behaviour. This was a follow-up to the first study, which was carried out in 2013. The survey gauged the degree to which EU citizens understand and respect IP rights. Constructed similarly to the previous one, this survey was based upon a total of 26,555 interviews with EU citizens 15-years-old and older from each of the 28 EU Member States, with 80% of the questionnaire being identical to the old study and 20% being new questions as to allow for further comparison and to give an updated analysis. The general assessment of this survey echoes that of the one made in 2013: overall, Europeans seem to grasp the economic impact of IP rights and the damage caused by infringements. However, there is room for improvement among younger generations.





No statistic highlights this grasp more than the general perception on the economic value of IP. Nearly every respondent—97% of them—agree it is important that inventors, creators and performing artists protect their rights and be paid for their work. However, only two thirds of respondents recognize the role of IP protection in economic stability.





This anomaly can be contributed to the discrepancy among generations in the awareness and understanding of IP. The general subjective understanding of IP has increased in Europe. The number of citizens with a good understanding increased 2% from 2013 to 75%. Every generation, except the youngest surveyed, either has seen an increase in understanding or has held steady. The level of general understanding among 15- to 24-year-olds decreased from 68% to 64%. 





As the survey describes, EU citizens come to this conclusion in part because IP remains an abstract concept for EU citizens. Forty-four percent of respondents think IP protection mainly benefits the “elites”— more specifically big companies and famous artists. There is an understanding of the importance of IP rights, but who those rights benefit is not as comprehensive.





Respondents demonstrated an understanding of the damages caused by infringements, by stating that the negative impact on the economy would be the greatest discouragement for purchasing counterfeit goods. The survey posed four arguments against the purchase of counterfeit products: such purchases have a negative impact on the economy, encourage illegal trafficking, threaten public health, and discourage innovation. The negative impact on economy was the top argument against buying counterfeits that was mentioned, by 78% of respondents. Moreover, 70% believe nothing justifies the purchase of counterfeit goods and 78% believe buying those goods ruins businesses and jobs. 





Despite the condemnation of counterfeits, sales of counterfeits are increasing. This is mainly a result of price and availability. While only 27% of respondents said they find it acceptable to purchase counterfeit products when the original or authentic product is too expensive—up 3 points since the 2013 study—the key demographic, 15- to 24-year-olds, seem to be less convinced of the damages associated with infringements; of respondents accessing content from illegal sources or purchasing counterfeit goods, 15- to 24-year-olds are the leading demographic in both respects. Sixty-three percent of respondents, 72% of 15- to 24-year-olds, attribute the behavior to prices and say the availability of affordable products is the main reason why they would stop this behavior. 





Based on all the information from the survey, the EUIPO concludes the support for IP rights continues to be high among EU citizens, but there are services not being provided to meet the expectations of some demographics, especially the younger ones, in terms of the price and availability. 





The full study and related materials can be accessed here. The study was presented by the EUIPO Executive Director Antonio Campinos to members of the Legal Affairs Committee of the European Parliament on March 23, 2017, in Brussels, followed by questions and comments from the deputies. A webcast of the presentation is available here (starting at 12:02:45). 









Category: Europe
Published: 6/23/2017 5:06 AM
BlogTag: Europe

Source: TM NEWS

News story: Customer research manager vacancy at the IPO

Purpose

The Intellectual Property Office (IPO) is transforming its services for our customers using modern technology. Our transformation portfolio includes a number of projects that are being delivered in accordance with the Government Digital Service project approach. The successful candidate will lead the User Research function within the wider IPO Customer Insight team.

Role and responsibilities

  • lead and develop the IPO User Research function, investing in the team’s capability, with a focus on continuous learning and improvement
  • manage and lead customer research exercises, including usability testing to identify customer issues and areas for service improvement
  • represent customer requirements in projects to build new online capability
  • engage customers in the development of online services, tools and content
  • make authoritative recommendations for courses of action within the context of professional practice

How to apply

Full details of this role and how to apply are available on the Civil Service jobs website

The closing date for applications is 4 July 2017.

For more information please email adminvacancies@ipo.gov.uk.

Source: UK IPO News

Letter of Reprimand and recording of classes didn’t violate university professor’s academic freedom

Arbitrator Thomas W. Young issued an award in a dispute between the University of Central Florida and one of its professors. The grievant had been employed by the University for 15 years without discipline in his record. At some point, the University conducted an investigation of a series of incidents involving grievant and his students. The investigation was conducted by a team including the University’s Assistant Director EOAA, Title IX Coordinator, The Director of Compliance and Ethics, and a Senior Compliance Analyst. That investigation culminated in a report, finding that while grievant’s conduct did not constitute sexual harassment under applicable law and policies, grievant “has a long standing pattern of hostility towards women and … he lacks the ability to conduct himself with civility and professionalism in the classroom and the office.”

In response to the report, the Chair of grievant’s Department issued a Letter of Reprimand. The letter incorporated ten incidents expressed in the report and admonished grievant to avoid certain behaviors in the future. These behaviors included ceasing any stories or anecdotes which suggested to students that they cannot report complaints about him to the University, a prohibition on profanity directed at students, sexist language in the classroom and discriminatory behavior in the classroom or office.  The Letter also advised grievant that his classes would be recorded and reviewed for the Summer and Fall terms.

A grievance was filed over the Letter and related restrictions. Among the professor’s claims in the grievance process was an assertion that the University’s action restricted “the spirit of intellectual exchange in the classroom” and violated his academic freedom as guaranteed by the cba. That agreement provided:

Academic freedom is the freedom to teach, both in and outside the classroom, to conduct research, and to publish the results of that research. Consistent with the exercise of academic responsibility, employees shall have freedom to present and discuss their own academic subjects, frankly and forthrightly, without fear of censorship, and to select instructional materials and determine grades in accordance with the University policies. Objective and skillful exposition of such subject matter, including the acknowledgment of a variety of scholarly opinions, is the duty of every such employee. Faculty are also free to address any matter of institutional policy or action. As individuals, employees are free to express their opinions to the larger community on any matter of social, political economic, or other public interest, without institutional discipline or restraint due to the content of those messages. Unless specifically authorized by the administration, employees’ opinions do not reflect the policies or official positions of the University of Central Florida.

 Grievant maintained that the conditions set forth in the Letter of Reprimand and the decision to record his lectures limited his ability to freely debate and discuss since he did not know how the video of his teaching would be used or who would be viewing it.

Arbitrator Young rejected these claims. Concerning the restrictions contained in the Letter he concluded:

There is nothing in the 6 admonitions, or anywhere else in the Letter of Reprimand, that would require Grievant to alter course content or restrict “the spirit of intellectual exchange in the classroom.” Specifically, there is no record evidence that the Letter of Reprimand required or even suggested that Grievant stop teaching his classes using the George Carlin Pacifica monologue. To the contrary, testimony from Beckman at hearing is instructive on this point. Beckman was asked, “[A]t any time, through this document [Letter of Reprimand] do you direct any faculty member to actually alter course content in terms of the delivery of their academic instruction?” Beckman responded:

In my five years as chair I have never once requested a faculty member change course content, change course delivery, change what chapters they’re assigning in a book, what they’re not assigning in a book; . . .

Rather than alter course content, the record instead establishes that the admonitions address Grievant’s use of profanity and vulgarity and discriminatory treatment directed at students in his classroom. The Investigative Report establishes that the referenced profanity, vulgarity and discriminatory treatment were not germane to his course material therefore not protected pursuant to section 5.2 of the CBA.


Concerning the requirement that his classes be recorded, Arbitrator Young noted that Grievant did not object to random observation of his classroom and concluded that failed to explain why monitoring by video would chill “the opportunity for open discourse, whereas monitoring by a human being would not.”
The Arbitrator found the restrictions contained in the Reprimand were narrowly tailored to prevent a breach of grievant’s academic freedom rights and determined that the recording of classes was not imposed to alter course content but simply to ensure compliance with the restrictions contained in the Letter of Reprimand.

Arbitrator Young’s award can be found here.
 

Source: ADR

Fishing lessons: questioning objectivity in settlement negotiations

When disputes don’t settle, it’s reasonable to ponder the causes. Everyone has pet theories – high emotions, unreasonable lawyers, cognitive biases  – and all have merit. However, most experienced mediators I’ve spoken to agree that facts have more influence than the law in driving settlement negotiations.

How parties and their lawyers approach facts, therefore, justifies consideration. Lawyers are often at pains to point out to clients that the law isn’t science; that right answers have limitations. However, the litigation process strives to narrow and nail down facts, thereby (unfortunately) entrenching views, polarising parties and diminishing scope for compromise.

On one view litigation is archaeology: an attempt to rediscover and understand past events, people and places. In this regard, lawyers have more in common with historians than clients might readily suppose. Where seemingly they differ, though, is in their attitude towards facts. The view to which clients instinctively subscribe – and lawyers tend not to demur – is that of the 19th-century historian in which facts simply have to be assembled to produce an objective and accurate picture of the past.


Source: JAMS ADR

Unreal Campaign Visits India

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On May 1, 2017, I (Pooja Dodd, a member of the Unreal Campaign Committee), hosted a Student Engagement Event at the Tagore International School, New Delhi. The 270 students who attended the session were curious and engaged in the presentation. 





At the beginning of the session, I spoke briefly about INTA, the objectives of Unreal Campaign Committee, and the importance of understanding the problems associated with counterfeiting. We then discussed the basics of trademarks and their importance for consumers as well as companies. At the conclusion of the presentation, I detailed some of the dangers that arise from counterfeiting and specifying how the students can help overcome counterfeiting issues. 





The students were interactive throughout the event, and some even shared their own experiences and encounters with counterfeit products. The session was followed by a short, fun quiz. 





The students seemed to understand the gravity of the counterfeiting problem and were excited at the prospect of educating their parents about it. 

To get involved in the Unreal Campaign, please visit the landing page here. Thank you to our 2017 sposnors that make these events possible.

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Published: 6/15/2017 9:19 AM

Source: TM NEWS

News story: Enforcement Landscape Review: tender specification

The Intellectual Property framework provides a number of different protections and remedies for creators and rights holders. The IPO is commissioning research which aims to construct a snapshot of the current UK enforcement framework for each IP right. It is important for rights holders to have the necessary means to protect their IP and this is reflected in the commitment made in the IPO’s Enforcement Strategy

We are now inviting fresh bids for this research into the effectiveness of the UK’s enforcement framework. We have split the research into distinct parts:

  • Part A will focus on developing evaluation criteria to assess the processes needed to enforce IP rights and the consequences of infringement.

  • If taken forward Part B will focus on identifying recommendations for changing the enforcement framework.

We are inviting bids from stakeholders interested in undertaking Part A only at this stage. The decision to proceed with Part B of the research will be taken after the results from Part A have been considered.

An open meeting to discuss the research tender will be held at the IPO’s London Office on 5th July at 2pm. Teleconference facilities will also be available. If you are interested in attending please contact enforcement@ipo.gov.uk by close on 3rd July.

The deadline for receiving completed applications is 5pm on Wednesday 26th July.
If you have any questions or to receive the tender document please contact Robert.Mould@ipo.gov.uk

Source: UK IPO News