Letter from AmeriKat: It's Super Bowl Sunday!!!

This week marks the 100th AmeriKat post (although there have been several non-AmeriKat posts from this feline). There would be no more apt a day to publish her 100th Letter than on SUPER BOWL SUNDAY! FOOTBALL!!!!!!!! Readers will have to excuse the AmeriKat for her sudden burst of feline frenzy, but she does love a good American football game. This year it is the Pittsburgh Steelers and Green Bay Packers who are at loggerheads -- the AmeriKat is rooting for the Steelers, although this may change following half-time. For those who have been engrossed by the rugby this weekend on this side of the Atlantic, take a moment and enjoy the beauty that is American football, not just the sport but its impact on IP. Last year the Supreme Court ruled on an issue regarding NFL team trade marks and competition law issues in the American Needle case (AmeriKat reports here). Ahh ... the NFL, bringing together two American pastimes - Sunday night football and litigation. You can't really say that about rugby, can you?

The AmeriKat will be gone next weekend as she will be finishing off (or writing) a book chapter on the Viacom v YouTube litigation, but will be back the following week with news of Microsoft's Supreme Court filing in the i4i case.

Google's "Bing Sting" takes a punt at Microsoft, but is it really copying?

Another epic battle between two massive teams has also been launched when last week Google accused Microsoft and their Bing search engine of copying their search results. Google's engineers had created 100 "synthetic" search queries such as "hiybbprqag" to which predetermined real search results that had nothing to do with the original query would then appear. After a few weeks of implementing this 'sting', these same search results were also displayed on Bing. Google's Amit Singhai published a detailed blog post about the ins and outs of Google's sting and said that their experiment confirmed their suspicion that something strange was happening with Bing. Google suggests that individuals who are using some combination of Internet Explorer 8 - which can send data to Microsoft via its Suggested Sites feature and/or the Bing Toolbar which can do the same, are inadvertently sending data to Bing about what keywords they search for on Google and what results Google in turn displays. A sort of "search engine espionage" if you will. Singhai stated that

"At Google we strongly believe in innovation and are proud of our search quality. We’ve invested thousands of person-years into developing our search algorithms because we want our users to get the right answer every time they search, and that’s not easy. We look forward to competing with genuinely new search algorithms out there—algorithms built on core innovation, and not on recycled search results from a competitor. So to all the users out there looking for the most authentic, relevant search results, we encourage you to come directly to Google. And to those who have asked what we want out of all this, the answer is simple: we'd like for this practice to stop."

Microsoft denied copying Google and has instead accused them of conducting "spy-novelesque stunts". Vice President of Bing, Harry Shum, stated that

"We do not copy Google's search results. We use multiple signals and approaches in ranking search results. Opt-in programs like the toolbar help us with click stream data, one of many input signals we and other search engines use to help rank sites."

Click stream data basically tracks or maps how users are searching and using the web. So if you use the Bing toolbar or Internet Explorer to search something on Google then it can see the URL for that query and the resulting search results. It can also see when you search something on Amazon, or when you check out the latest YouTube clip or browse shoes on Nieman Marcus (picture, left - the AmeriKat asleep in one such shoe). There is no specific Google signal, just a general search signal for the whole gambit of websites. Some of these search signals are very weak (tails) and some are very strong (heads). Head signals are generic terms such as "movies" or "shoes" - terms that millions of people search every day and will thus be 'strong'. Tail searches are your more obscure searches, such as the nonsensical queries used in the sting operation. Because these tail searches are searched less frequently a search stream will thus have less data to go on and thus the results may appear to be that Bing is "copying"' Google's results, but really there is less data to go on and the data that is out there is from only a few sources including Google (if the AmeriKat is understanding this correctly!). According to Danny Sullivan, both Google and Bing agree that this replication of search results can occur in instances of weak signals.

According to Sullivan, Google's test proves that the surfstream is a weak signal because even where Google was providing the sole signal or sole data for the nonsensical terms, Bing used this signal (data) only about 9% of the time. So are Google's claims of being copied legitimate? Shum says that Bing is not copying Google, they are only watching how users search and use the web. Much, says the AmeriKat, like what Google does with Google Chrome and their own search and browse settings. Although she knows this is not an equitable issue, the maxim "one who comes into equity must come with clean hands" is chiming around the AmeriKat's head right now ...

So is this just a PR battle being waged by Google? Is there any copying taking place at law? Further, what protection does Google have in the search results? If algorithms are being copied (of which there does not appear to any evidence of direct taking), perhaps copyright infringement is taking place or, if there is some patent at work, is there patent infringement? In so far as results are displayed, is there another possible copyright claim in the layout or table of search results? The AmeriKat has to admit that the inner workings of search engines are a mystery to her, so identifying the intellectual property rights is also a stab in the dark. What do readers think?

If anything, the AmeriKat is sure that Viacom and their amici (which include Microsoft) in Viacom v YouTube are loving hearing Google whine about being copied and saying choice things such as

“I’ve got no problem with a competitor developing an innovative algorithm. But copying is not innovation, in my book."

The Amerikat would like to thank Dave Sant of the BBC for spurring her interest in this story.

US Officials score a touchdown in fight against online counterfeits

Last week, with the assistance of Immigration and Customs Enforcement (ICE), the US Attorney's Office of the Southern District of New York seized 10 websites that allegedly streamed live sporting and and pay-per-view events online - mere days before the big SUPER BOWL GAME! The Super Bowl game attracts about 100 million viewers a year and in recent years many viewers have been tuning in online, either legally or illegally. The websites that have apparently assisted in the illegal viewing of sports games that were subject to the seizure under Title 18 of the United States Code included channelsurfing.nehq-streams.com, firstrow.net, ilemi.com and rojadirecta.org. What makes the seizure of rojadirecta.org particularly controversial is because this Spanish site was held to be operating legally by a Spanish court last May. (picture, top left - the notice now displaying on the seized websites)

These websites were alleged to illegally provide links to sites that would show or stream professional sports organizations' content, including games from the NFL and the NBA (National Basketball Association). For anyone who has ever watched an NFL or Premier League game, you will know that the sports organizations will usually own the copyright in film and sound recording of the game/match, the trade marks of some of the teams' logos and/or uniform, the music, layout, etc. Thus, unauthorized streaming or use of this content is a violation of their copyright. With more and more fans turning to their laptops to watch their favorite game, sports organizations are now facing the age-old battle with sites that illegally provide this content.

US Attorney, Preet Bharara (photo, right) stated

“The illegal streaming of professional sporting events over the Internet deals a financial body blow to the leagues and broadcasters, who are forced to pass their losses off to fans by raising prices for tickets and pay-per-view events. With the Super Bowl just days away, the seizures of these infringing websites reaffirm our commitment to working with our law enforcement partners to protect copyrighted material and put the people who steal it out of business.”

But the efficacy of such seizures is under question and anyone who battles counterfeit websites online know what that is: as soon as one domain goes away, another one will soon swoop up in its place. However, ICE Director John Morton remains undeterred

“This swift action by our Homeland Security Investigations New York special agents and analysts sends a clear message to website operators who mistakenly believe it’s worth the risk to take copyrighted programming and portray it as their own. We will continue to aggressively investigate this type of crime with our law enforcement partners."

But how effective is this? Although it may not completely get rid of these types of sites, it does shove the domains back down in the Alexa ratings which means they are more difficult to find. The more difficult a site is to find, fewer users access it, which in turn results in any advertising revenue on the site drying up. It may not be perfect, but it has the desired effect of essentially making the commercial viability of counterfeit websites less attractive to their operators.

However, not everyone is happy about the seizures. A critic of these types of seizures and of an anti-piracy legislation that will probably be reintroduced this term,Senator Ron Wyden (D-Oregon, left) wrote to Attorney General Eric Holder and Morton expressing his concern. He called for greater transparency about the criteria on why these domain seizures were being allowed to proceed. He noted particular concern in that the 10 websites that were seized last week providing links to infringing content, not providing infringing content themselves, and an apparent lack of due process. Senator Wyden stated that

"These seizures represent a major shift in the way the U.S. government combats copyright infringement in the digital environment...I grow concerned when the methods used may not be effective and could stifle constitutionally protected speech, job-creating innovation and give license to foreign regimes to censor the internet."

Steven Tepp of the US Chamber of Commerce (a private lobbying institution) previously stated in an e-mail to the AmeriKat that the anti-priacy legislation Combating Online Infringement and Counterfeits Act (COICA), that has Senator Wyden concerned does provide for due process in that the legislation does require the Department of Justice to "simultaneously give notice to the accused domain so that they have an opportunity to come to court to defend themselves" and allows a party served with an order the opportunity to modify or vacate the order. To read the text of this bill click here.

At the same time the website seizures were taking place Deputy Director of the ICE Kumar Kibble announced another successful sting, which was cleverly dubbed in time for Super Bowl Sunday as "Operation Interception". The Operation saw $3.56 million in fake NFL merchandise seized. The Operation will continue throughout the weekend.

Now that the Digital Economy Bill's website blocking clause is being reviewed by the UK Government, what do IPKat' readers think about introducing similar enforcement procedures in the UK as those undertaken by the US ICE?

Many thanks to Oliver Weingarten of the Premier League for alerting the IPKat to the ICE seizure-story.

Letter from AmeriKat II: Supreme Court greets Microsoft v i4i

The Circuit Courts’ approach

"Let's see what makes
this darned thing tick ..."

Microsoft cites cases from all 12 circuits in support of the contention that the circuit courts adhered to the Supreme Courts dictum in KSR, and in particular emphasizes the cases of Baumstimler v Rankin (1982) in the Fifth Circuit, Manufacturing Research Corp. v Graybar Electric Co. (1982) for the Eleventh Circuit and Futorian Mfg. Corp. v Dual Mfg. & Eng’g. Inc. (1976) in the First Circuit. Given that KSR and the pre-1982 practice recognized that the heighted standard of proof is weakened in cases where evidence was not before the PTO, Microsoft contends that the Federal Circuits departure from this practice must be examined by the Supreme Court. I4i points out that the decisions upon which Microsoft relies are “all decades old”. They would be, says the AmeriKat, because Microsoft’s argument is that prior to the Federal Circuit assuming jurisdiction in 1982 and subsequently getting it wrong, the courts were uniformly applying KSR; such cases are automatically going to be pre-1982. However, i4i are right to point out that given the age of these cases the rulings will not take into account any congressional acquiescence or the later creation of alternative methods to invalidate patents, i.e., the PTO’s invalidity examination proceedings.

i4i argue that section 282’s higher standard of proof has actually been applied uniformly throughout the regional circuits and for the Court to hold otherwise would go against the ratio that the courts are not at “liberty to repeal a statute or to legislate conditions diminishing its effect.” Such a ruling would also invalidate an almost 30-year old statutory construction which Congress has never acted to change. Such inaction following decades of consistent judicial construction, they say, “strongly suggests that the construction [i.e., that of a clear and convincing standard of proof] is correct.” Just because Congress doesn’t do something (which is often) doesn’t mean that it does not need to be changed, says the AmeriKat. i4i counter that Congress has been proactive in patent law and has “moved quickly to limit the potential fallout” for patenting of business methods, the enactment of the Patent Remedy Act and repeated amendments to the Patent Act. Further, i4i argue that Congress had held hearings where it was urged to lower the standard of proof for validity challenges to that of a preponderance of evidence. They were, i4i argue, made aware of criticisms to the higher threshold, but yet they chose not to act.

Of Policy and Philosophy

The Kat meditates
a philosophical point

Microsoft’s final argument is that of policy and philosophy. They contend, citing KSR, that invalid patents “stifle, rather than promote, the progress of useful arts” in that they confer market power without reciprocal consumer and innovative benefit. Given the increasing strain on the PTO due to the patent backlog (485,500 applications in 2009), the limited length of time an examiner has to examine an application (an average of 18 hours per application), and the lack of “reliable information about the claimed technology” Microsoft state that this “predictably and inevitable results in an increasingly large number of mistakes, some of them glaring.” This statement was supported by Justice Breyer’s re-statement of the Federal Circuit’s quote In re Bilski (2010) (AmeriKat reports here) that

“the granting of patents that ‘ranged from the somewhat ridiculous to the truly absurd’”

Because these factors lead to the PTO’s gate-keeping functions being too far stretched it is vital, Microsoft argues, that patent litigation is able to weed out patents that should not have been granted. The adherence to the clear and convincing evidence standard of proof is a bar to this process and was referred to by the 2003 Federal Trade Commission Report “To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy” as

“creating potential for judicially confirming unnecessary, potentially competition-threatening rights to exclude.”

Such a risk, Microsoft say, is even more so in cases where the evidence of invalidity was not even before the PTO at the time of grant.

I4i counter that a heighted burden of proof in litigation actually promotes innovation because it affords a patent

“robust protection against erroneous invalidation of patents [and] recognizes and protects the enormous resources that go into the innovation process”

i4i also argue that any party at any time can bring validity challenges before the PTO which does not require the heighted burden imposed by section 282. The AmeriKat, however, finds this inadequate. Why should the standard of evidentiary proof for invalidity of a patent be different at the administrative level (PTO) than at the judicial level? I4i say that this divergence is acceptable:

“…there is no reason why the two paths should be identical, and Congress was obviously aware of the differences when it authorized re-examination without changing the standard of proof in litigation. Its policy judgment not to establish an exact parallel to litigation should not be second guessed by the courts…”

Although the AmeriKat is sure that Congress appreciates this massive vote of confidence, the AmeriKat says that one should never underestimate Congress’s inability to recognize inconsistencies in their own legislation.

What’s Next

The Supreme Court has declined i4i’s invitation to allow the court of appeals to undertake a “fuller deliberation” of KSR before taking up the case, and has instead accepted Microsoft’s plea to decide on an issue that “will not benefit from further percolation in the circuits.”

Following the Supreme Court’s grant of certiorari, i4i’s Chariman, Loudon Owen, stated that

"The attack on patent holders and the adverse implications from the standard Microsoft is proposing is unprecedented and would deal a devastating blow to any US patent holder, large or small. Naturally, the proposed standard would be particularly destructive to the value of patents for inventors, technology pioneers and entrepreneurial companies that don't have the resources of Microsoft and other giants."

Microsoft’s deputy general counsel for the litigation, David Howard, stated that:

“We are gratified by the Court’s decision. It’s a clear affirmation that the issues raised in this case are critical to the integrity of our patent system.”

However, the AmeriKat can’t help to wonder whether Microsoft’s arguments for a lower standard of proof may ultimately come to bite them when they find themselves again in a plaintiff’s position in later litigation.

Although the Amerikat does not have a trial date to report on as of yet, she can tell readers that Chief Justice Roberts will not be taking part in the trial – he allegedly owns some valuable shares in Microsoft.

The IPKat and AmeriKat are interested to know what readers believe a the standard of proof should be in litigated invalidity proceedings.

Letter from AmeriKat I: Supreme Court greets Microsoft v i4i

Much to give thanks for ...

The AmeriKat is still grazing on her leftovers from last week's Thanksgiving extravaganza. The rosemary lemon chicken and sweet potatoes are all gone, as is the pumpkin and pecan pie courtesy of one of the AmeriKat's colleagues. However, she has been left with the green beans, mashed potatoes and cranberry sauce whose quantities seem to be multiplying, rather than diminishing. Just when she thinks that she has had the final serving of the roasted garlic mashed potatoes, another Lock-n-Lock storage receptacle presents her with another readily prepared meal. In leftovers, as with life, just when you think something is finally over, something else crops up to prolong the inevitable.

US Supreme Court says "Hi!" to Microsoft v i4i

Something else that seems to keep nearing an end only to grasp at one last gasp of air is the i4i v Microsoft litigation (see previous AmeriKat posts here – and there are many). On the same day that the Supreme Court declined to grant Tiffany’s petition for writ of certiorari in the eBay case, the Supreme Court granted Microsoft's writ of certiorari. This follows an epic battle between the two companies which saw Microsoft mostly as the "losing" party as the case journeyed from the Eastern District of Texas's courts to the Court of Appeals for the Federal Circuit. The case, which Microsoft emphasized non-too passively in their petition to the Supreme Court, was the largest patent infringement verdict ever to be affirmed on appeal to the tune of $290 million. Such an award would indicate that even if it wasn't a question of law which made Microsoft petition the Supreme Court, it was surely a question of money. Now that the Supreme Court will be charged with hearing the case, the AmeriKat has set out in brief the parties’ arguments from their petitions which provide a preview of their upcoming oral arguments.

Background

i4i contended at trial that that Microsoft Word infringes their US Patent No 5,787,449 (the “’449 Patent”) which relates to markup languages, specifically Extensible Markup Language (“XML”) used in electronic documents. Markup languages indicate how and where text is displayed in documents. The ‘449 patent covers a method whereby the software can process and store custom XML separately and distinctly from user-imputed content. The separation of the XML is called a “metacode map” which, according to the patent, allows a computer to manipulate the structure of a document without reference to the content entered by the user. Since 2003, Microsoft Word has allowed users to edit documents containing XML.

On 8 March 2007, i4i filed a patent infringement action in the Eastern District of Texas. Microsoft denied infringement and claimed under the “on-sale bar” of section 102(b) that the ‘449 Patent was invalid because i4i previously sold a system, S4, which was alleged to have embodied the claimed invention. Unfortunately for Microsoft, the S4 source code had been “destroyed” over ten years prior to the case so was prohibited from ever-providing “clear and convincing evidence” on this point. The trial jury found in i4i’s favour and awarded the Canadian company $200 million. Microsoft appealed to the Circuit Court of Appeals and in August 2009 Judge Davis upheld the lower court’s finding and increased the damages by $40 million citing the outspoken nature of Microsoft’s trial attorney, Matthew Powers. Microsoft then appealed to the US Court of Appeals whose three-judge panel in December 2009 upheld the lower courts’ rulings. Microsoft then asked for an en banc review (i.e. getting 12 judges on the panel) of the Court of Appeals decision, which was denied in Spring 2010. Microsoft’s remaining options were to either to settle, do nothing, re-apply for an en-banc review based on a revised decision of the federal court, or go straight to the Supreme Court. Microsoft obviously went for the last option.

As the AmeriKat is herself refreshing her memory of over 3 years of litigation, it is interesting to note that Microsoft’s numerous appeals had focused primarily on remittitur of damages following the large jury award, over reliance on the plaintiff’s survey evidence, and the issue of enhanced damages. Microsoft’s petition to the Supreme Court, however, deals with one very finite point about the standard of proof required for patent invalidity arguments, which their initial appeal statement only devoted a handful of its over 100 pages to.

Section 282 and KSR

Microsoft's petition to the Supreme Court was filed on 27 August 2010 after the now-retired Justice Stevens granted them an extension for filing. Their question concerns the standard of proof required by section 282 of 35 USC (the Patent Act section of the United States Code) which states that:

"[a] patent shall be presumed valid" and that "[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity."

The Federal Circuit for the Court of Appeals held in the i4i case that Microsoft was required to prove its defence of invalidity under section 102(b) of the Patent Act by "clear and convincing evidence", notwithstanding that the prior art on which Microsoft's invalidity defence relied was not before the Patent and Trademark Office (PTO) prior i4i's patent being granted. The basis of section 282 is argued to mean that patents granted by the PTO are presumed to be valid because, in brief, the examiner has the facts and the expertise to properly grant or reject a patent application before it and is therefore “presumed to do its job” (Am. Hoist & Derrick Co. (1984)). Therefore, to rebut the presumption that the PTO has done its job, a party must prove invalidity based on a higher evidential standard of "clear and convincing evidence". This evidential standard is a higher burden than that of a "predominance of evidence", which Microsoft argues should be the standard of proof.

Microsoft argues that the presumption that this higher standard of proof is always automatic is wrong in cases where the PTO did not have the evidence, on which a party relies, before it at the time of granting a patent. Given that the PTO never had an opportunity to see the evidence of prior art, the presumption that they were undoubtedly correct to grant the patent is diminished and thus a lower standard of proof should be allowed, i.e., that of a predominance of evidence.

In finding basis for this argument Microsoft referred to the US Supreme Court decision of KSR International co. v Teleflex (2007) where the Court said that they thought where an invalidity defence relies on evidence never before the PTO, it was

"appropriate to note that the rationale underlying the presumption - that the PTO, in its expertise, has approved the claim, seems much diminished."

In that case, the Court held that claim 4 of the plaintiff’s patent included subject matter that was obvious and therefore not patentable due to an earlier patent not before the PTO during the prosecution of claim 4. Although the Court was not specifically charged with deciding whether the failure to present the earlier patent voided the presumption of validity, the court nevertheless noted that the arguments for requiring a higher evidential standard in such circumstances is diminished – although not destroyed, i4i would point out.


This dictum from the Court was, according to Microsoft, affirmed by all twelve regional circuits prior to the Federal Circuit’s creation in 1982. Ever since the Federal Circuit assumed jurisdiction, Microsoft contends that it has

"repeatedly disregarded KSR's invitation to reconsider its heightened evidential standard. Instead, it has clung to its pre-KSR caselaw and continued to apply the clear-and-convincing-evidence standard even to invalidity defences based on prior-art evidence that the PTO never considered."

More in Part II

Letter from AmeriKat I: Patents (Microsoft, HTC, Bilski)

Last weekend readers may have noticed a slightly auspicious absence of the AmeriKat. The AmeriKat prides her reputation on ensuring that she delivers reports on the latest and greatest of that week's US IP news irrespective of the external elements that may be inflicting her - through sickness and health, 60 hour working weeks, or exams. However, last weekend, the AmeriKat encountered a hurdle that even she could not leap over like the feline beast of prey that she is. Entering her cat-flap Saturday morning after her morning chai tea latte run, she experienced a dripping then pouring of water on her head through the ceiling and light fixtures thanks to a water fault in the flat above. (picture, top left - the AmeriKat soaking and not happy about it) Like all Kats, the AmeriKat did not take to well to this and so with her fur and paws soaked and the water and electricity off all weekend her weekly report sunk to the bottom of her flat-cum-aquarium.

Is Microsoft one bad day away from a Supreme Court petition in the i4i battle?

While the rain was literally and figuratively coming down on the AmeriKat's head, the storm clouds that have been nestled over Microsoft's i4i saga over the past three years may have finally burst. Last Tuesday, i4i announced that the USPTO confirmed the validity of all the claims in one of the patents subject to the dispute in the i4i v Microsoft litigation which saw i4i receive a $290 million jury award (see previous IPKat posts here). The large jury award was later upheld by the Circuit Court of Appeals and Microsoft's subsequent appeals to the US Court of Appeals for the Federal Circuit were not granted. Prior to the original jury verdict, Microsoft had requested that the USPTO re-examine i4i's patent related to the customization and processing of extensible markup language, or XML (No. 5,787,449) in the hope that the patent would be declared invalid.

Kevin Kutz, Microsoft's Director of Public Affairs stated

"We are disappointed, but there still remain important matters of patent law at stake, and we are considering our options to get them addressed, including a petition to the Supreme Court."

Microsoft's potential petition for a grant of certiorari would most likely be based on the scope of discretion that appeals courts should give to jury verdicts. Readers may recall, that Microsoft's first (of many) appeals in the Eastern District of Texas focused on the issue of damages and remittitur (where the jury award is unreasonable, a party can apply for a judge to lower the award) of damages. It is clear that the sting of the jury's high award of damages has been seemingly long-lasting for Microsoft.

i4i's Chairmain, Loudon Owen stated in a press release that the

" '449 patented invention infuses life into the use of Extensible Mark Up Language (XML) and dramatically enhances the ability to structure what was previously unstructured data. As the magnitude of data grows exponentially, this is a critical technological bridge to controlling and managing this sprawling octopus of data and converting it into useful information."

According to the AmeriKat's calculations Microsoft has apparently until 30 June 2010 to file their petition to appeal to the Supreme Court. Anyone want to place a bet that they do?

HTC: Quietly brilliant...(but not so quietly suing Apple!)

A few weeks ago the AmeriKat wrote about the latest in the patent mobile wars (see post here) and explained that the mobile patent litigation has become so complex she has had to draw a diagram.

Well this week, she has had to add another arrow to her diagram - this time from HTC to Apple. Last Wednesday, HTC announced that it filed a complaint with the US International Trade Commission (ITC) to prohibit the importation and sale of the iPhone, iPad and iPod in the U.S. The complaint involves 5 of HTC's patents which are allegedly infringed by the Apple products, but which have yet to be disclosed. Jason Mackenzie, VP of HTC North America stated:

"As the innovator of the original Windows Mobile PocketPC Phone Edition in 2002 and the first Android smartphone in 2008, HTC believes the industry should be driven by healthy competition and innovation that offer the consumers the best, most accessible mobile experiences possible. We are taking this action against Apple to protect our intellectual property, our industry partners, and most importantly our customers that use HTC phones."

Some may think "Gutsy!", others who have been following this saga will be saying "Unsurprising!". In March, Apple sued HTC for violating its patents. Two weeks ago, Microsoft and HTC announced a licensing deal of Microsoft's patents relating to the mobile technology to HTC. So, diagram at the ready...could it be, that Microsoft's patents which are subject to the licence agerement with HTC could also be subject of the HTC complaint against Apple? Is this a roundabout way for Microsoft to go after Apple? Speculation across the Internet abounds, but no concrete information has yet to be placed in the AmeriKat's paws.

The AmeriKat has not been able to find any further details of the ITC complaint as of yet, but will keep readers posted. For further information see this report in PC World.

UPDATE: Courtesy of IPKat friend Pamela Chestek please see a copy of the HTC ITC complaint here .

Re Bilski, Bilski! wherefore art thou Bilski?

Not at thy Supreme Court decision table yet, so it seems. The IPKat and AmeriKat's good friend, Technollama, likens waiting for the Bilski decision to Waiting for Godot and the AmeriKat cannot agree more! The AmeriKat is anticipating the much-anticipated Supreme Court decision in Bilski any day now so keep your eyes and ears tune in to IPKat.

Microsoft and HTC make love, not mobile war

The mobile phone wars have reached such a level of complication that the IPKat has resorted to drawing diagrams to show who is suing who. The schematic interestingly sees Apple and HTC at the heart of the recent battles (see previous posts here). However, recent news sees Microsoft getting into the mix. But Microsoft is seemingly making love not war after entering into a licensing agreement with HTC, the Taiwanese handset maker of Google's Android operating system. The licence apparently acknowledges Microsoft's broad "patent portfolio" claims over the technology associated with the Android mobile platform. HTC manufactures phones for Google, including the Nexus One, that use the Android technology and is currently embroiled in patent litigation brought by Apple in March. Some commentators have suggested that Apple's litigation against HTC was really directed towards Google.

The details of the licence, announced Tuesday, have not been disclosed save for this statement from Microsoft's vice president and head of IP and Licensing, Horacio Gutierrez who stated that:

“HTC and Microsoft have a long history of technical and commercial collaboration, and today’s agreement is an example of how industry leaders can reach commercial arrangements that address intellectual property. We are pleased to continue our collaboration with HTC.”

The long historical relationship referred to is that of HTC being one of the main producers of smartphones that run the Windows operating system.

If you, like the IPKat, are confused as to who owns what in these phones you are not alone. Gutierrez (left) writing in his blog last March stated that with all innovation, especially for inventions in nascent technology markets, there is a period of time where rights holders grapple and litigate in order to sort out who owns what. He said:

"The smartphone market is still in a nascent state; much innovation still lies ahead in this field. In all nascent technology markets, there is a period early where IP rights will be sorted out. This is particularly true in a market, such as smartphones, in which a number of different technologies previously offered on a standalone basis now converge into a single device. Indeed, smartphones are a product of the ‘open innovation’ paradigm – device manufacturers do not do all of their development in-house, but add their own innovations to those of others to create a product that users want. Open innovation is only possible through the licensing of third party IP rights, which ensures that those who develop the building blocks that make a new technology possible are properly compensated for their investments in research and development."

How will Microsoft and HTC's licensing agreement impact Apple's court and ITC complaints that claim HTC infringes 20 of Apple's patents in their Android phones? The blog-o-sphere is lighting up with conspiracy theories as to what has motivated the license deal. Some say that Microsoft believed that the Android technology infringed their patents, while others say that Microsoft is coming to the rescue of the patent-poor HTC in their battle against the Apple empire. This Kat believes the truth may lie somewhere in the middle of these two extremes.

Although the Android operating system is proving to be very popular in the market right now, if the IPKat was a mobile phone manufacturer she would not be raising her head above the parapet until the mess of IP ownership over this technology is untangled.

Today, HTC has introduced a new handset named the Incredible, based on Google's Android operating system.

For more information see these articles in the Financial Times, Seattle Post Intelligencer, Wall Street Journal and CNET.