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1 | RAND in the Courts: Legal Theories for | 20 | implementing the standards in its products |
RAND and an Update on Strategies and | and, more importantly, (2) make clear that | ||
Approaches Being Used by Eric Lamison. | Microsoft relied upon Motorola’s RAND | ||
2 | Venues Where RAND Issues Are | assurance when it began selling the | |
Presented. Claims / Defenses in U.S. | accused products. RAND IN THE COURTS. ? | ||
District Courts ITC Defenses ITC venue | 20. | ||
limits the theories that are viable for | 21 | Equitable Estoppel – Reliance Issues. | |
Respondents. See, e.g., Microsoft v. | Barnes & Noble, Inc. v. LSI Corp., 849 | ||
Motorola ITC Initial Determination, | F. Supp. 2d 925 (N.D. Cal. 2012). “it is | ||
337-TA-752 (Yet another reason why ITC may | reasonable to infer reliance by the IEEE | ||
remain popular for certain patentees.) | based on the IEEE’s policies requiring | ||
Claims / Defenses in State Courts Claims | disclosure and requiring it to obtain | ||
are typically based on state law. | assurances regarding any patents relevant | ||
Governmental Body Investigations (FTC, | to proposed standards before adopting | ||
European Commission) Foreign Courts, e.g. | them.” Notes that requirement to provide | ||
Mannheim Court, Germany. RAND IN THE | assurances on a FRAND basis necessarily | ||
COURTS. ? 2. | anticipates reliance on those commitments, | ||
3 | RAND Based Claims / Defenses. | otherwise the assurances would be | |
Declaratory Judgment Actions Breach of | meaningless. “[Adoption of] the standards | ||
Contract Promissory Estoppel Equitable | in question is sufficient to infer | ||
Estoppel Waiver Fraud Unclean Hands | reliance on the propriety of the | ||
Antitrust Claims / Patent Misuse Unfair | standards-setting process itself.”. RAND | ||
Business Practices. RAND IN THE COURTS. ? | IN THE COURTS. ? 21. | ||
3. | 22 | Equitable Estoppel. Who Adjudicates? | |
4 | Declaratory Judgment Actions. 35 | Equitable estoppel is a “matter committed | |
U.S.C. § 2201 “In a case of actual | to the sound discretion of the trial | ||
controversy within its jurisdiction . . . | judge.” A.C. Aukerman Co. v. R.L. Chaides | ||
any court of the United States, upon the | Const. “Co., 960 F.2d 1020, 1028 (Fed. | ||
filing of an appropriate pleading, may | Cir. 1992). When a trial involves | ||
declare the rights and other legal | questions that require answers by both | ||
relations of any interested party seeking | judge and jury, the jury questions should | ||
such declaration, whether or not further | be decided first, however the judge | ||
relief is or could be sought” Declaratory | retains discretion to take into | ||
Judgment claimant in a patent case must | consideration alternative factors such as | ||
meet case-or-controversy requirements as | the court’s docket and hardships to each | ||
set forth in MedImmune, Inc. v. Genentech, | party. Beacon Theatres, Inc. v. Westover, | ||
Inc.: “Basically, the question in each | 359 U.S. 500, 510 (1959). Burden of Proof | ||
case is whether the facts alleged, under | Absent special circumstances, such as | ||
all the circumstances, show that there is | fraud or intentional misconduct, a party | ||
a [1] substantial controversy, [2] between | asserting equitable estoppel must prove | ||
parties having adverse legal interests, | each factor by a preponderance of | ||
[3] of sufficient immediacy and reality to | evidence. A.C. Aukerman Co. v. R.L. | ||
warrant the issuance of a declaratory | Chaides Const. Co., 960 F.2d 1020, 1046 | ||
judgment.” MedImmune, Inc. v. Genentech, | (Fed. Cir. 1992). RAND IN THE COURTS. ? | ||
Inc., 549 U.S. 118 (2007). RAND IN THE | 22. | ||
COURTS. ? 4. | 23 | Waiver. Waiver can be asserted as a | |
5 | Declaratory Judgment Actions. Who | defense, but has been rejected as an | |
Adjudicates? The Declaratory Judgment Act | affirmative claim. Implied waiver has been | ||
specifically preserves the right to jury | typically used for arguing that patentee | ||
trial for both parties. Burden of Proof | failed to comply with duty of disclosure | ||
Party seeking a declaratory judgment has | to SSO Qualcomm v. Broadcom, 548 F.3d | ||
the burden of establishing the existence | 1004,1012-18 (Fed. Cir. 2008) One may try | ||
of an actual case or controversy. | to argue that an express commitment to | ||
MedImmune, Inc. v. Genentech, Inc., 549 | license on RAND terms is: (a) express | ||
U.S. 118, 127 (2007). Plaintiff has burden | waiver through intentional relinquishment | ||
to establish by a preponderance of the | of right to seek non-RAND royalties; or | ||
evidence. Shell Oil Co. v. Amoco Co., 970 | (b) implied waiver through conduct | ||
F.2d 885, 887 (Fed. Cir. 1992). RAND IN | inconsistent with an intent to enforce | ||
THE COURTS. ? 5. | rights as to include a reasonable belief | ||
6 | Declaratory Judgment Regarding Amount | that such right has been relinquished. | |
of Reasonable Royalty. Realtek | RAND IN THE COURTS. ? 23. | ||
Semiconductor Corp. v. LSI Corp., 2012 WL | 24 | Waiver. Who Adjudicates? In patent | |
4845628 (N.D. Cal. Oct. 10, 2012) (Order | cases, waiver appears to be an equitable | ||
denying motion to dismiss declaratory | defense for determination by the judge, | ||
judgment claim) Realtek sought a | although advisory jury verdict may be | ||
declaratory judgment: That Defendants have | utilized. Qualcomm v. Broadcom, 548 F.3d | ||
not offered license terms consistent with | 1004, 1012-18 (Fed. Cir. 2008) Burden of | ||
SSO policy and declarations; Setting forth | Proof Waiver must be proved by clear and | ||
RAND terms and conditions for a license, | convincing evidence. Qualcomm v. Broadcom, | ||
including royalty rate; and That the | 548 F.3d 1004, 1016, 1018 (Fed. Cir. 2008) | ||
alleged “essential” patents are | Hynix Semiconductor Inc. v. Rambus Inc., | ||
unenforceable as to Realtek given | 645 F.3d 1336, 1348 (Fed. Cir. 2011). RAND | ||
Defendants’ refusal to offer a license on | IN THE COURTS. ? 24. | ||
RAND terms Defendants moved to dismiss the | 25 | Fraud. A misrepresentation, | |
declaratory judgment count as duplicative | concealment, or nondisclosure in the face | ||
of other claims, stating it sought same | of a duty to disclose Knowledge of falsity | ||
relief and added no new dimension or | Intent to defraud or induce reliance | ||
theory. Court denied motion, finding | Sufficient that patentee intended its | ||
controversy based on patent infringement | statements or silence to be communicated | ||
claims. “the determination of a reasonable | to SSO members Justifiable reliance | ||
royalty is part of a live controversy | Reliance found if defendant designed | ||
between the parties over defendants’ | products based on the standard Damages | ||
claims of patent infringement, which is | Barnes & Noble, Inc. v. LSI Corp., 849 | ||
independent of whether defendants breached | F. Supp. 2d 925, 933-34 (N.D. Cal. 2012). | ||
the alleged contract.”. RAND IN THE | RAND IN THE COURTS. ? 25. | ||
COURTS. ? 6. | 26 | Fraud – Developing Cases. Barnes & | |
7 | Declaratory Judgment of Non-RAND | Noble, Inc. v. LSI Corp., 849 F. Supp. 2d | |
Offer. Microsoft Corp. v. Motorola, Inc. | 925, 942 (N.D. Cal. 2012) B&N sought | ||
(W.D. Wash. June 1, 2011) The Court found | declaratory judgment of non-infringement. | ||
Microsoft’s declaratory judgment claim to | LSI counterclaimed for infringement, and | ||
be duplicative of its additional claims, | B&N asserted numerous equitable | ||
particularly its claim for breach of | affirmative defenses for unenforceability, | ||
contract, because “the relief it was | citing non-disclosure of 3G patents during | ||
seeking is the consequence of the same | ETSI meetings by LSI and LSI’s | ||
ruling on its other claims, which is an | predecessor-in-interest, Lucent. Court | ||
injunction that requires Motorola to make | denied motion to strike fraud defense | ||
a RAND offer.” The Court relied on Swartz | based on alleged failure to disclose | ||
v. KPMG LLP, 476 F.3d 756, 766 (9th Cir. | essential patents. RAND IN THE COURTS. ? | ||
2007) stating “requests for declaratory | 26. | ||
judgment orders that merely impose the | 27 | Fraud. Who Adjudicates? Fraud involves | |
remedies provided for in other claims are | questions of fact normally left to a jury. | ||
duplicative and may be dismissed on that | Burden of Proof Fraud must be proved by | ||
basis. Therefore the court granted | clear and convincing evidence, including | ||
Motorola’s motion to dismiss Microsoft’s | in the standard setting context. E.g., | ||
declaratory judgment cause of action. | Rambus, Inc. v. Infineon Techs. AG, 318 | ||
However, it would appear that contract and | F.3d 1081 (Fed. Cir. 2003). RAND IN THE | ||
other claims have various elements such as | COURTS. ? 27. | ||
damages, that seem unnecessary for a DJ | 28 | Unclean Hands. Patentee’s conduct is | |
claim. RAND IN THE COURTS. ? 7. | inequitable and relates to the subject | ||
8 | Right to a Jury on Patent Damages. | matter of its claims. Barnes & Noble, | |
Determination of Running Royalty | Inc. v. LSI Corp., 849 F. Supp. 2d 925, | ||
Calculation (if ordered negotiations fail) | 942 (N.D. Cal. 2012) (denying motion to | ||
Apple, Inc. v. Motorola, Inc., 2012 WL | strike unclean hands defense) Typically | ||
2376664 (N.D. Ill. June 22, 2012) The | arises in context of duty to disclose, but | ||
Court stated that, although an order to | one can envision that where a plaintiff | ||
pay a royalty in the future certainly | demands excessive compensation or an | ||
sounds like an equitable order (a | injunction in violation of a RAND | ||
mandatory injunction), alternatively it | commitment, unclean hands may be a tenable | ||
may be part of a jury’s verdict on | defense. RAND IN THE COURTS. ? 28. | ||
damages. “If past damages are awarded | 29 | Unclean Hands. Who Adjudicates? The | |
along with future damages either | judge, based on the equitable nature of | ||
calculated as a lump sum or as a | the defense. Levi Strauss & Co. v. | ||
non-equity running-royalty order, there | Shilon, 121 F.3d 1309, 1313 (9th Cir. | ||
would be no occasion to order equitable | 1997) (Cited in Barnes & Noble v. LSI) | ||
relief.” Thus a running royalty | Burden of Proof Unclean hands must be | ||
calculation may be made by either a judge | proven by clear and convincing evidence. | ||
or a jury (citing Telcordia, 612 F.3d | Aptix Corp. v. Quickturn Design Sys., | ||
1365, 1378-89 (Fed. Cir. 2010)). RAND IN | Inc., 269 F.3d 1369 (Fed. Cir. 2001). RAND | ||
THE COURTS. ? 8. | IN THE COURTS. ? 29. | ||
9 | Breach of Contract. Agreement between | 30 | Antitrust Claims. Sherman Act § 2 – |
patentee and SSO Duty to disclose | Unlawful monopolization claim requires: | ||
existence of essential IP Commitment to | Monopoly Power, Acquired or maintained | ||
license on RAND terms Breach of the | through anticompetitive conduct. Broadcom | ||
Agreement Question whether initial offer | Corp. v. Qualcomm, Inc., 501 F.3d 297, 306 | ||
or later offers must be RAND Even if | (3d. Cir. 2007) What type of conduct is | ||
initial offer need not be RAND, | anticompetitive? Failure to disclose. At | ||
unreasonable initial offer may breach | least one court has held it essential that | ||
implied covenant of good faith & fair | the SSO would not have used the IP but for | ||
dealing. Initial outrageous offer also may | the deception. Rambus Inc. v. FTC, 522 | ||
be viewed as anticipatory breach by | F.3d 456 (D.C. Cir. 2008) Failure to later | ||
patentee. Pros / Cons of engaging in | license on FRAND terms. Broadcom Corp. v. | ||
further negotiations if you wish to assert | Qualcomm Inc., 501 F.3d 297 (3d Cir. | ||
claim Damages Can be a disputed element if | 2007). RAND IN THE COURTS. ? 30. | ||
no non-RAND license fee has been paid. | 31 | Antitrust Claims. Rambus, Inc. v. FTC, | |
Party asserting RAND may need to be | 522 F.3d 456 (D.C. Cir. 2008) Failure to | ||
creative, e.g. rely on legal fees / costs | disclose IP rights to SSO did not | ||
Third-party beneficiary status Apple, Inc. | necessarily reduce competition because SSO | ||
v. Motorola Mobility, Inc., 2012 WL | might have chosen to standardize the IP | ||
3289835 (W.D. Wis. Aug. 10, 2012). RAND IN | anyway. Broadcom Corp. v. Qualcomm, Inc., | ||
THE COURTS. ? 9. | 501 F.3d 297 (3d Cir. 2007) FRAND promise | ||
10 | Breach of Contract – Agreement. Offer | plus later demanding non-FRAND terms could | |
IP rights policies of the SSO can be | be a deception sufficient to violate | ||
considered offers in exchange for ability | antitrust law. Misrepresentations of the | ||
to participate in developing standards | cost (i.e. licensing cost) of implementing | ||
Acceptance Attending meetings; | a standard may confer an unfair advantage | ||
participation in meetings; having | and bias the competitive process in favor | ||
proposals considered; joining the SSO, | of the defendant. RAND IN THE COURTS. ? | ||
submitting letters of assurance, etc. | 31. | ||
Consideration – two theories recently | 32 | Antitrust Claims. Noerr-Pennington | |
articulated The right to participate in | Immunity May immunize patentee from | ||
standards discussions. Having your IP | antitrust claim where patentee is | ||
declared essential to compliance with the | asserting patent right. See Apple, Inc. v. | ||
standard. Apple, Inc. v. Motorola | Motorola Mobility, Inc., 2012 WL 3289835 | ||
Mobility, Inc., 2012 WL 3289835 (W.D. Wis. | (W.D. Wis. Aug. 10, 2012). Therefore, may | ||
Aug. 10, 2012) Apple, Inc. v. Motorola | need to assert some injury beyond | ||
Mobility, Inc., 2012 WL 2376664 (N.D. | litigation costs. Id. Can apply to other | ||
Ill., June 22, 2012). RAND IN THE COURTS. | types of unfair competition claims. RAND | ||
? 10. | IN THE COURTS. ? 32. | ||
11 | Breach of Contract – Developing Cases. | 33 | Antitrust Claims – Developing Cases. |
Apple v. Motorola Mobility (W.D. Wisc.) – | Apple, Inc. v. Motorola Mobility, Inc., | ||
case pending Court allowed Apple’s | 2012 WL 3289835 (W.D. Wis. Aug. 10, 2012) | ||
counterclaim for breach of contract to | Noerr-Pennington doctrine provides | ||
survive summary judgment motion by | Motorola immunity. Court stated that | ||
Motorola and awarded Apple summary | Apple’s only alleged damages from the | ||
judgment that: contracts existed between | abuse of the standards-setting process | ||
Motorola and the SSO; Apple, as potential | were costs of litigation arising from | ||
user of the standards at issue, is a third | Motorola’s allegedly improper suits | ||
party beneficiary; that Motorola was | against it. Realtek Semiconductor Corp. v. | ||
obligated to disclose its patents and | LSI Corp., 2012 WL 4845628 (N.D. Cal. Oct. | ||
applications before adoption of standards | 10, 2012) Court dismissed the claim due to | ||
incorporating its patents; and Motorola | the fact that Realtek focused on the harm | ||
failed to timely disclose patents and | to them rather than the competitive harm, | ||
applications. Agreement: All members shall | and harm to the rest of the marketplace. | ||
use reasonable means to disclose IP rights | RAND IN THE COURTS. ? 33. | ||
that might have become essential to | 34 | Antitrust Claims – FTC. Civil | |
standards being considered before issuance | antitrust actions to prohibit unfair or | ||
Issues for trial: Whether Motorola | deceptive acts or practices affecting | ||
breached the agreement by (a) failing to | commerce (DOJ handles criminal cases). | ||
make bona fide efforts to disclose in a | Remedies potentially available (Rambus, | ||
timely manner; and (b) failing to offer a | 2006 WL 2330117, FTC Commission Remedy | ||
license on RAND terms Damages attributable | Op., Feb. 2, 2007) Injunction against | ||
to each asserted breach. RAND IN THE | future anticompetitive conduct Compulsory | ||
COURTS. ? 11. | license at reasonably royalty rates Free | ||
12 | Breach of Contract – Developing Cases. | compulsory license. RAND IN THE COURTS. ? | |
Microsoft Corp. v. Motorola, Inc. (W.D. | 34. | ||
Wash. June 1, 2011) Microsoft raised a | 35 | Antitrust Claims – FTC. Concerned | |
breach of contract claim against Motorola | about the issue of abuse of SEPs In June, | ||
and the Court found that Motorola’s | held a workshop on standard-setting and | ||
Letters of Assurances to the IEEE created | SEPs. Sought public comments on the issue | ||
an enforceable contract and that Microsoft | through August 5th. Earlier this month, | ||
was a third party beneficiary. The Court | DOJ’s chief economist gave speech at | ||
found there to be no legal authority | National Academy of Sciences in D.C. | ||
requiring negotiation as a precondition to | explaining policy choices SSOs could | ||
a breach of contract claim based on RAND | implement that would help competition. | ||
licensing and denied Motorola’s motion to | RAND IN THE COURTS. ? 35. | ||
dismiss the claim. RAND IN THE COURTS. ? | 36 | Antitrust Claims – European | |
12. | Commission. Pending European Commission | ||
13 | Breach of Contract – Developing Cases. | antitrust investigation regarding seeking | |
Realtek Semiconductor Corp. v. LSI Corp. | of injunctive relief for FRAND-obligated | ||
& Agere Systems, Inc., 2012 WL 4845628 | patents. Jan. 31, 2012: formal | ||
(N.D. Cal. Oct. 10, 2012). After | investigation opened regarding Samsung | ||
defendants sued Realtek in ITC, Realtek | April 3, 2012: formal investigation opened | ||
filed NDCA complaint Realtek alleges that | regarding Motorola Mobility Commission | ||
defendants breached agreement to comply | examines whether there is an abuse of a | ||
with policies of IEEE-SA and commitment to | dominant position prohibited by Article | ||
offer RAND licenses for patents essential | 102 of the Treaty on the Functioning of | ||
to 802.11 Judge Whyte denied motion to | the EU. Apple, as defendant, has very | ||
dismiss, citing to WA and WI cases: Didn’t | recently (Oct. 19, 2012) asked the German | ||
decide if initial offer must be RAND or | court to stay its patent litigation with | ||
just meet good faith/fair dealing | Samsung pending the EC investigation. RAND | ||
Intriguing: “The court is troubled by | IN THE COURTS. ? 36. | ||
defendants’ decision to choose, in the | 37 | Antitrust Claims – European | |
first instance, a forum for enforcing | Commission. Appears to be very motivated | ||
their patent rights in which money damages | to solve the SEP abuse issue “The fact | ||
are unavailable and the only relief is | that we have received many complaints | ||
injunctive in nature. Since defendants | related to standards-essential patents | ||
have done so, there appears even less | also shows that there is a great need for | ||
reason for this court to wait before | guidance. I want to tell you that I am | ||
determining the reasonable royalty rate, | willing to provide clarity to the market | ||
which is all defendants are initially | through our enforcement. . . . I expect | ||
entitled to. Thus, the motion to dismiss | the leading companies in the sector not to | ||
Realtek’s breach of contract claim is | misuse their intellectual property rights | ||
denied. RAND IN THE COURTS. ? 13. | . . .” – EC Vice President Almunia | ||
14 | Breach of Contract. Who Adjudicates? | http://europa.eu/rapid/press-release_SPEEC | |
Judge determines meaning of the agreement | -12-629_en.htm. RAND IN THE COURTS. ? 37. | ||
or policy. Hynix Semiconductor Inc. v. | 38 | Patent Misuse. Apple, Inc. v. Motorola | |
Rambus Inc., 645 F.3d 1336 (Fed. Cir. | Mobility, Inc., 2012 WL 3289835 (W.D. Wis. | ||
2011). Jury determines whether the | Aug. 10, 2012). Apple filed a claim for | ||
patentee breached the agreement (unless | declaratory judgment that Motorola misused | ||
parties waive jury trial). Microsoft Corp. | its patents by promising to offer fair | ||
v. Motorola, Inc., 2012 WL 2030098 (W.D. | licenses and then failing to do so. The | ||
Wash. June 6, 2012). The RAND amount can | Court determined that it was not clear | ||
be a jury question. Id. Burden of Proof | from Apple’s complaint whether this claim | ||
Plaintiff bears burden of proof by the | was based on contract theory or antitrust | ||
applicable state law standard, which is | theory. If based on antitrust theory, the | ||
usually a preponderance of the evidence. | Court determined that this claim would not | ||
See e.g. Lab. Corp. of Am. Holdings v. | survive as Motorola is immune under the | ||
Metabolite Laboratories, Inc., 599 F.3d | Noerr-Pennington doctrine. However, the | ||
1277, 1280 (Fed. Cir. 2010). RAND IN THE | Court stated that if the claim is based on | ||
COURTS. ? 14. | contract theory it may proceed. RAND IN | ||
15 | Promissory Estoppel – Elements. A | THE COURTS. ? 38. | |
promise; The intent to induce action or | 39 | Patent Misuse. Who Adjudicates? The | |
forbearance based on the promise; | judge, based on the equitable nature of | ||
Reasonable reliance on the promise; Injury | the defense. C.R. Bard. Inc. v. M3 Sys., | ||
Microsoft Corp. v. Motorola, Inc., 2012 WL | Inc., 157 F.3d 1340, 1372 (Fed. Cir. 1998) | ||
2030098 (W.D. Wash. June 6, 2012). RAND IN | Burden of Proof Patent misuse must be | ||
THE COURTS. ? 15. | proven by clear and convincing evidence. | ||
16 | Promissory Estoppel – Developing | C.R. Bard. Inc. v. M3 Sys., Inc., 157 F.3d | |
Cases. Microsoft Corp. v. Motorola, Inc., | 1340, 1372 (Fed. Cir. 1998). RAND IN THE | ||
2012 WL 2030098 (W.D. Wash. June 6, 2012) | COURTS. ? 39. | ||
Microsoft alleged that Motorola made a | 40 | Unfair Competition. Under California | |
clear and definite promise through their | Business and Professions Code § 17200, | ||
commitments to the IEEE and ITU. Microsoft | unfair competition refers to conduct that | ||
claims that they developed and marketed | threatens an incipient violation of an | ||
produces in reliance on Motorola’s | antitrust law, or that violates the policy | ||
promise, and they have been harmed as a | or spirit of one of those laws because its | ||
result of its reasonable reliance. | effects are comparable to a violation of | ||
Motorola filed a motion to dismiss stating | the law, or that otherwise significantly | ||
that Microsoft had alleged a valid | threatens or harms competition. Cel-Tech | ||
contract and the doctrine of promissory | Communications, Inc. v. Los Angeles | ||
estoppel was not designed to give a party | Cellular Tel. Co., 20 Cal. 4th 163, 973 | ||
a “second bite at the apple in event it | P.2d 527 (1999). RAND IN THE COURTS. ? 40. | ||
fails to prove a breach of contract.” The | 41 | Unfair Competition — Developing Cases. | |
Court determined that at an early stage in | RAND IN THE COURTS. Realtek Semiconductor | ||
the case a plaintiff may plead alternative | Corp. v. LSI Corp., 2012 WL 4845628 (N.D. | ||
causes of action even if inconsistent, and | Cal. Oct. 10, 2012) Plaintiffs allege | ||
denied Motorola’s motion. RAND IN THE | competitive harm under § 17200 stating | ||
COURTS. ? 16. | that due to Defendant’s actions the entire | ||
17 | Promissory Estoppel – Developing | WLAN product market has suffered injury. | |
Cases. Realtek Semiconductor Corp. v. LSI | The Court determined that Realtek’s | ||
Corp., 2012 WL 4845628 (N.D. Cal. Oct. 10, | allegations do not adequately suggest | ||
2012) Patent-holder submitted Letters of | competitors will be harmed. Realtek only | ||
Assurances to IEEE stating it was prepared | focused on the alleged impact on | ||
to grant a license to an unrestricted | themselves rather than the market as a | ||
number of applicants on RAND terms. | whole. Apple, Inc. v. Motorola Mobility, | ||
Realtek claimed that it developed and sold | Inc., 2012 WL 3289835 (W.D. Wis. Aug. 10, | ||
standard-compliant products in reliance on | 2012) Apple alleged unfair competition and | ||
this commitment to license. The court | business practices, arguing that Motorola | ||
denied LSI’s motion to dismiss, stating | engaged in a pattern of unfair, deceptive | ||
that Realtek’s complaint alleged enough | and anticompetitive conduct by failing to | ||
information for the claim to survive. RAND | disclose ownership of patents it now | ||
IN THE COURTS. ? 17. | claims to be essential. Noerr-Pennington | ||
18 | Promissory Estoppel. Who Adjudicates? | provided immunity because Apple only | |
Some courts have found promissory estoppel | alleged harm in the form of litigation | ||
to be an issue properly resolved by the | costs. ? 41. | ||
Court. Merex A.G. v. Fairchild Weston | 42 | RAND IN THE COURTS. Case. DJ. | |
Sys., Inc., 29 F.3d 821, 826 (2d Cir. | Contract. Promissory Estoppel. Equitable | ||
1994) Others have found the reasonable | Estoppel. Waiver. Fraud. Unclean Hands. | ||
reliance element to be an issue of fact | Antitrust/Misuse. Pending. Pending. | ||
for the jury. Hendricks v. Smartvideo | Dismissed. Precluded. Rejected. Rejected. | ||
Techs., Inc., 511 F. Supp. 2d 1219 (M.D. | Rejected. Dismissed. Pending. Pending. | ||
Fla. 2007) In re JPMorgan Chase Mortg. | Dismissed as affirmative claim. Pending. | ||
Modification Litig., 2012 WL 3059377 (D. | Pending. Pending. Dismissed. Pending. | ||
Mass. July 27, 2012) Burden of Proof Proof | Pending. Pending. Pending. Rejected. | ||
of promissory estoppel may require clear | Rejected. Asserted. Affirmed by Fed. Cir. | ||
and convincing evidence. W. Indies | Asserted. Apple v. Motorola (W.D. Wis.). | ||
Network-I, LLC v. Nortel Networks, (CALA) | Apple v. Motorola (ITC). Microsoft v. | ||
Inc., 243 F. App’x 482, 485 (11th Cir. | Motorola (ITC). Microsoft v. Motorola | ||
2007) Escarra v. Regions Bank, 353 F. | (W.D. Wash.). Realtek v. LSI (N.D. Cal.). | ||
App’x 401, 403 (11th Cir. 2009). RAND IN | Barnes & Nobles v. LSI (N.D. Cal.). | ||
THE COURTS. ? 18. | Hynix v. Rambus (Fed. Cir.). Qualcomm v. | ||
19 | Equitable Estoppel. Statement/conduct | Broadcom (Fed. Cir.). ? 42. | |
of patentee communicates something in a | 43 | KIRKLAND & ELLIS LLP. Eric Lamison | |
misleading way; Accused infringer must | is the founding partner for the | ||
show it substantially relied on the | intellectual property trial practice group | ||
misleading conduct in taking some action; | for Kirkland's San Francisco office. | ||
Accused infringer must establish it would | eric.lamison@kirkland.com (415) 439-1496. | ||
be materially prejudiced if patentee is | Harper Batts is a partner for the | ||
now permitted to proceed. A.C. Aukerman | intellectual property trial practice group | ||
Co. v. R.L. Chaides Constr. Co., 960 F.2d | for Kirkland's Palo Alto office. | ||
1020 (Fed. Cir. 1992). RAND IN THE COURTS. | harper.batts@kirkland.com (650) 859-7001. | ||
? 19. | Reza Dokhanchy is an intellectual property | ||
20 | Equitable Estoppel – Reliance Issues. | litigation associate in Kirkland's San | |
Microsoft v. Motorola, Initial | Francisco office. | ||
Determination (ITC), 337-TA-752 ALJ found | reza.dokhanchy@kirkland.com (415) | ||
against Microsoft’s equitable estoppel | 439-1469. Claire Thompson is an | ||
claim because Microsoft purportedly did | intellectual property litigation associate | ||
not meet the reliance prong. ALJ opined | in Kirkland's San Francisco office. | ||
that Microsoft did not (1) explain what | claire.thompson@kirkland.com (415) | ||
their “costs” were when they invested in | 439-1492. ? 43. | ||
RAND in the Courts: Legal Theories for RAND and an Update on Strategies and Approaches Being Used.ppt |
«Женщина the woman» - От нашего ребра нам не ждать добра; The wife is the key to the house. Холостому помогай боже, а женатому хозяйка поможет. A good wife makes a good husband. Человек = мужчина. Пути пополнения лексической группы «женщина» в английском языке. Chicken’s mind- Куриные мозги. Оценочная структура лексической единицы “женщина”.
«English for you» - Викторины Задания Игры Игровые упражнения Ты можешь выбрать уровень сложности. Ты научишься правильно строить предложение. Что ты научишься делать и узнаешь. Артикль Множественное число Предлоги. EuroTalk. Может ли компьютер заменить учителя? Ты убедишься насколько интересным и захватывающим может быть обучение языку.
«The animals» - KANGAROO. REINDEER. GORILLA. LION. SEA-HORSE. LIZARD. The animals which live in the rainforest and tropics. SEAL. BOBCAT. BISON. GIRAFFE. TIGER. HIPPO. DOLPHIN. The animals which live in the forest. BEAR. STARFISH. FLAMINGO. SCORPIO. FOX. The ANIMALS of our planet. ELEPHANT. KOALA. PARROT. GRIFFIN. CAMEL.
«The green movement» - It became the first African who has headed this organization. Several active workers managed to steal up on a raft to a platform and to chain themselves to it. Management of each such branch in which head there is a chief executive, carries out national board. The main objective — to achieve the decision of global environmental problems, including by attraction to them of attention of the public and the authorities.
«The english-speaking countries» - Australia. The English-speaking countries. Great Britain. Scotland. Disneyland. USA.
«Школа английского» - В мире. ИЗУЧАЙ! Специально разработанные программы. Академическая база EF. Фонд Общественного Мнения «Владение иностранными языками» в России. ПОЛУЧАЙ СЕРТИФИКАТ! Исследования об уровне владения английским языком в России и в мире. Ступени реализации проекта языкового обучения: Новаторский подход в обучении английскому языку.