Apple: Galaxy Tab 10.1 Prelim Injunction Must Remain

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Lifting the Galaxy Tab 10.1 InjunctionApple has argued that a preliminary injunction against the Samsung's Galaxy Tab 10.1 must remain in place even though a jury found that it did not violate a patent that was the basis of the injunction. In court documents, Apple told Judge Lucy Koh that she can not dissolve the preliminary injunction while Apple appeals the jury verdict, and that the device will be banned anyway because the same jury found that the Samsung tablet violated three of Apple's multitouch patents.

Apple had won a preliminary injunction banning the import and sale of the Samsung Galaxy Tab 10.1 tablet on the basis that it violated a design patent—patent D'889. In an otherwise sweeping victory, the jury in the case found that the Samsung tablet did not violate that patent, but that it did violate three multitouch patents Apple owns.

Samsung filed for an immediate dissolution of the preliminary injunction based on the jury's verdict. Apple, of course, wants to keep the device off the market and filed its opposition to Samsung's dissolution motion.

According to FOSS Patents, Judge Koh had asked both parties to, "address, in particular, the following issues: (1) whether the June 26, 2012 Preliminary Injunction order ('PI Order') automatically dissolves upon entry of final judgment [...] (2) whether the fact that the PI Order is on appeal impacts or stays any such dissolution; and (3) whether this Court has jurisdiction to rule on Samsung's dissolution motion while the PI Order is on appeal."

Apple's argument was that Judge Koh doesn't have jurisdiction to dissolve the preliminary injunction because Apple is appealing the jury's verdict. The company added that even if she did have the power to dissolve the preliminary injunction, she shouldn't because the device violates the three software patents.

Indeed, Samsung announced on Monday that it was ready to sue Apple for the iPhone 5 over LTE patents, and the iPhone 5 won't be announced until Wednesday.

Florian Mueller of FOSS Patents characterized the later argument as a weak one because Samsung can modify the software on its patents remove the violating features, allowing the company to then sell the device without infringing on Apple's patents.

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As we have noted before, the court victory Apple won in August is merely one more step in a long path for both Apple and Samsung, not to mention the other Android OEMs embroiled in patent infringement battles with Apple.


In the case of this particular motion we'd be surprised if Apple was able to keep the import and sale ban on the Galaxy Tab 10.1 in place. It seems more likely that Samsung will be able to resume sale of the device once it removes the software features that infringe on Apple's software patents.

Then again, we aren't lawyers.

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Bosco (Brad Hutchings)

Here’s a perfect example of why Florian is such a useless d-bag:

Keep the above in mind next time some uninformed person, or someone with an intent to disinform, falsely claims that such products as the Galaxy S III won’t be affected by an injunction over some or all of the software patents the jury found infringed.

It’s not even the argument that the so-called “uninformed” (meaning, not being paid by clients they don’t disclose to comment on these issues and spawn wave after wave of disinformation) persons are claiming. Nice strawman, Florian.

The first matter of business is for the judge to decide on the Rule 50 issues. Then Samsung will know whether the jury’s findings of infringement are correct. It will have plenty of time to correct software issues in TouchWiz before the judge hands down any injunctions, and also time to brief the judge on its compliance efforts. FFS, this flow of things has been discussed all over the frigging Internet, and this clown still feigns ignorance to the actual process and timing.


Who’s Florian?

Bryan Chaffin

He’s a patent expert Brad demonizes for A.) having opinions he doesn’t like, and B.) not adequately disclosing a consultant relationship with some companies (notably, Oracle) about whom he commented in his blog and in interviews with a variety of mainstream media outlets.

He consulted for Oracle and Brad has turned that into accepting a job to espouse meritless propaganda.

Brad has, in turn, taken to dismissing everything Mr. Mueller says about Apple while ignoring the reality that Mr. Mueller often offers opinions critical of Apple—for whom no consultation relationship is known to exist—and Oracle.

That’s the long version that’s all about Brad.  The short version is that Florian Mueller is the operator of FOSS Patents. He’s a German lawyer who closely watches technology patent litigation in both Germany and the U.S.

Bosco (Brad Hutchings)

Actually, it’s not just Oracle, Bryan. It was also Microsoft during the SCO debacle. And that’s why it was so egregious when he did it for Oracle. Because it’s exactly what he did before. Offer opinions and get quoted as a “patent expert” while being paid and not disclosing the relationship until later. Perhaps the biggest, but most benign joke of his online persona is that he uses the “FOSS” banner and then tries stirring up crap in the general open source community that the community finds laughable. Like when he claimed that Google violated the GPL with Linux, and Linus laughed it off.

He is not a lawyer, either. He is a “lobbyist”. So the next time the peanut gallery here asks why non-lawyers should even be allowed to have an opinion on this stuff, I do hope Bryan will point out that one particular non-lawyer on the payroll of at least two parties “opposed to Android” gets a lot of run for his non-biased analysis. grin

Florian Mueller

This user—or should I say troll?—with the “Bosco” nickname says things that make no sense at all.

I was never involved in any way with the SCO case. The fact of the matter is that I never read even one of the court filings in that case. Not even one. I never commented on it publicly. Never once. And while I properly and proactively disclosed consulting relationships with Microsoft (in 2011) and Oracle (this year), there was never ever any kind of working relationship that had anything to do, even indirectly or remotely, with the SCO case.

Also, regarding my comments on the scope of an injunction: my blog has been talking a lot—really a lot—in recent weeks about the Rule 50 process. The passage that “Bosco” quotes talks about “an injunction over some or all of the software patents the jury found infringed”, which even if you don’t look at the context of my post and just analyze that quoted passage clearly signals that I was not referring to an existing or certain injunction—otherwise there wouldn’t be doubt whether “an” injunction would cover “some or all” of those patents. And “Bosco” talks about the workaround thing, which I’ve also been stressing all the time on my blog and in countless interviews. BTW, the above MacObserver commentary gets the workaround thing absolutely right.


  And, Yet, you replied to the “troll”.

Bosco (Brad Hutchings)

“Bosco” has his real name in parentheses, pal. It’s a result of deciding one day a couple years ago to be transparent with my opinions here in light of my longtime anonymous participation. You can read English. You can see my name.

Speaking of trolling, would you care to explain what you, a self-proclaimed patent expert, were trying to accomplish by telling developers to settle with Lodsys before it was even known how Apple and Google would respond? It looks like you were trolling for a customer, namely Lodsys. You put out a piece like that, then they sign up for your services, since you’re being helpful to them. I know a couple of developers who were served by Lodsys and would love to meet you in a back alley with cameras off. Seriously pal, your little stunt cost them money because for some reason, your opinions get reprinted, and lawyers get scared when they see that crap from a so-called analyst or patent “expert”, even if it’s obvious he’s just trolling for customers. And then they get billed for the extra time and have to think about signing a document to pay a royalty that would give them zero recourse when the whole thing gets tossed out.


Florian Mueller

I categorically deny any business or other relationship of any kind, directly or indirectly, close or remote, with Lodsys or any other person or entity that ever held those patents.

Regarding what works for little app developers, it says everything that the Iconfactory, after months of spending money on Texas lawyers trying to defend them, ended up paying Lodsys, as it confirmed on Twitter with a sad smiley. Apple and Google did not do the most important thing, which is to pick up legal fees of small developers. Therefore, the Iconfactory and various others all had to back down in the end. They could have saved that money by signing a license deal right away. That’s a sad fact, but still a fact.

Bosco (Brad Hutchings)

I notice that you didn’t deny soliciting such business through that public column, which is what I called you out on above. BTW, your business model is basically the Rob Enderle business model. You’re just awkward at it. And you’re not a lawyer, so why were you offering specific legal advice in that post?

So when you whipped up all the Apple fanboys into a frenzy last summer with predictions of a slam-dunk multi-billion dollar verdict for Oracle, was that part of your customer acquisition process or were you on the payroll and not disclosing your astro-turfing behavior at that point?

Thanks, Brad

Florian Mueller

The evolution of this discussion is interesting. First I get accused of having done something that was never the case (involvement of any kind with the SCO issue, while I never even commented on it; otherwise you could point me to articles that quoted me on it) and of not pointing out things that I point out all the time (workaround options, possibility of modification of jury verdict by Judge Koh). Then I’m accused of “trolling for a customer, namely Lodsys” and I deny any relationship, again even any indirect relationship, and suddenly I’m told that this was just an accusation of “soliciting” customers. And instead of explaining why the Iconfactory’s and multiple other defendants’ inability to defend themselves against Lodsys, despite the things Apple and Google did (which were “too little to late” as the Iconfactory’s Gedeon said on Twitter), Bosco (Brad Hutchings) comes up with even wilder conspiracy theories.

No reasonable person can help but conclude that this is someone who for whatever reason (could be paid, could be a fanatic, could be something else, doesn’t matter) just tries to smear me with lies and baseless conspiracy theories.

Since this user has demonstrably lied here and tried to smear me, I think it would make sense to block him and delete his posts, but that’s the MacObserver’s decision.

Bosco (Brad Hutchings)

Yeah, I was worried for a minute there that this was some kid having fun being Florian, but that little rant and threat pretty much confirms it. There’s no “conspiracy” when it’s just you trolling for a customer by posting a very favorable “analysis” leveraging your entirely astro-turfed prominence as an “expert”. It’s actually called a quid pro quo.

Bryan, you are obviously a recipient of Florian’s email reports. And I’ll bet that as you mention his site in your articles, he passes along goodies like “private” analysis and “insider” information. It helps you see the whole picture his clients are paying him to paint. Try contradicting his assertions in a column sometime. Word is he becomes kinda unglued at journalists who do that. I’m just a long-time commenter on a Mac site. Bryan hasn’t ever offered me even a cut of the page views I’m sure I’ve generated.

Also, Florian was parroting the SCO/Microsoft line concerning IBM in 2010, before his disclosure of payments from Microsoft. So it begs the question. Was he being paid before-hand to spew propaganda, or was the customer acquisition phase? There’s clearly a pattern one way or another.


Why are Bosco’s posts showing up ?

I had set my Manage Ignore List preferences to ignore Bosco



There are times when your posts stimulate thought by challenging consensus opinion or simply by making a point that others may not have considered.

This is not one of them.

Indeed, despite the fact that I frequently disagree with the point you are making, as one who reads your posts in order to consider all angles of given topic, and as one who admittedly finds himself more well rounded as a result, I find this particular exchange with Florian Mueller and Bryan Chaffin unfortunate. I don’t think it serves you, your point of view, or the forum well at all. In fact, I would say that it hurts all of the above.

One of the benefits of my job is that I have come to appreciate, first hand, the benefits of a society of presumed innocence - working as I do in countries where such presumption does not obtain. Having made your claims, and having received detailed and explained denial (in a very professional tone, I might add) from the author of those posts himself, I see no benefit to either you or anyone else here in pursuing this further, as it does not establish guilt but reads as diatribe.

As a fan, supporter and frequent user of the TMO website, and its related podcasts, my concern is that so public an exchange as this with an internationally noted and respected analyst and blogger as Mr Mueller, risks bringing the site into disrepute as a host and haven for unsubstantiated invective, conspiracy theories and borderline hate speech for those with whom any of the regulars here might differ.

I think these types of comments, not just from you, but from anyone, discourages freedom of [removed]to avoid coming under the ire of someone with strongly held opinions), adversely affects the calibre of the discussion threads, and therefore compromises the reputation of the site.

I ask both you, our fellow readers and commenters, and the TMO staff to reconsider the value of this type of exchange.


My sentence, ‘I think…’ included ‘freedom of expression’.

Not sure why the word ‘expression’ was removed.

Bosco (Brad Hutchings)

@wab: Frlorian Mueller is not universally noted or respected. His opinions are prominent the tech press because he voraciously and systematically targets his analysis to them. Given their nature and prominence, readers have a right to know—and journalists a responsibility to provide—the context of those opinions. If he is shilling for a customer, that needs to make it through to the reader every time. If he engages in a pattern of not disclosing for whom he shills or has a pattern of shilling as a repeated pattern of customer acquisition, the reader needs to be informed. If there is a pattern, but he really double-pinky swear didn’t do that for Lodsys/Oracle/Apple, that’s his problem for displaying the pattern in the first place.

Since this user has demonstrably lied here and tried to smear me, I think it would make sense to block him and delete his posts, but that’s the MacObserver’s decision.

He is most certainly not tolerant of anyone examining his motives. This from the guy who was the only legitimate consultant listed when Judge Alsup ordered Oracle and Google to divulge their shills. It seems that the Oracle team told the judge that both sides do this push garbage analysis into the public discussion crap, when in fact, it was just their side, and it was just through Florian.

Florian Mueller

“Bosco” (Brad Hutchings) just won’t stop. The fact of the matter is that I’ve been nominated to worldwide rankings in intellectual property by IAM (Intellectual Asset Management) magazine and Managing Intellectual Property (ManagingIP) magazine, and spoken at the Max Planck Institute for IP and Competition Law (the leading European research institute for IP and antitrust law) and the Munich University of Technology. Also, most of my clients are financial investors who turn to me for information on the business implications of the ongoing disputes. Those facts speak for themselves, and it’s time for Mr. Hutchings to stop trolling.

Bosco (Brad Hutchings)

I never said you didn’t have an effective business model, Florian. But you do advocacy on behalf of your big dollar clients more than you do analysis (which is fine), and you do nothing to draw a line between the two (which is not). I doubt that will ever win you any ethics awards.

Wayne Borean

I find it rather amusing that Florian (Hi Florian) lists himself as an ‘Intellectual Property Expert’.

I could make that claim. I used to be responsible for evaluating patents and deciding if the company I was working for would shell out, or tell the patent holder to drop dead. Most of the time I ended up telling the patent holder to drop dead, because we’d already been using the invention/process before they applied for their patent.

The real problem is the United States Patent and Trademark Office. It is totally incompetent, continually issuing patents which it LEGALLY is not allowed to issue under the regulations. Whether the issue is prior art (which it is all too often), a fact of nature, or obviousness, the Patent Office keeps issuing junk patents. They costs of these junk patents, both Hardware and Software, to the American economy runs into Trillions of dollars per year, and is responsible for extending the current recession.

The ex-IBMer who is head of the Patent Office started a push to issue more patents. How does that help the country when most of the patents are not capable of holding up to a challenge in court? Admittedly most companies can’t afford to fight over patents, addendum paying, causing them to waste money, and making them less efficient than their competitors in other countries.

The United States is going to kill manufacturing. Who wants to set up a factory (or even an office) in country where you can be shut down for designing a tablet which is a rectangle with rounded corners (do a Google or Bing search on ‘Knight Ridder Tablet’).


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