back to article Best of FRANDs: Judge allows Apple retrial following $506m patent infringement ruling

A federal judge in Texas has allowed Apple a limited retrial [PDF] in its battle with PanOptis, which stung the iPhone maker for $506m in damages over claims it infringed the company's 4G LTE patents. Although Apple was not permitted to relitigate the question of its liability, the retrial will determine how much it's on the …

  1. Shane McCarrick

    The only people who will win here- are the lawyers........

    Its yet another instance of regardless of who wins or looses- the only people with money in the bank at the end of the day- will be the lawyers............

    1. Anonymous Coward
      Anonymous Coward

      Re: The only people who will win here- are the lawyers........

      Well, no - Apple will 'win' if they end up paying less. The others will 'win' if they award stays substantially the same. The amount of the fees paid to the lawyers will be a tiny fraction of the amounts at stake.

      The lawyers earn their money by being good at what they do and, like a game of chess, preparing in advance for a lot of contingencies, 90% of which don't happen. I suspect Apple wouldn't pay them if they wanted to use D.Hick & Sons for 50p/hr instead.

      Let's get over the 'all lawyers are evil' crap, please.

      1. This post has been deleted by its author

      2. John Brown (no body) Silver badge

        Re: The only people who will win here- are the lawyers........

        Apple should be suing their own lawyers because clearly they are not very good at all...

        "Apple, which had been looking for a broader retrial, arguing the jury was not instructed about PanOptis's obligation to license its patents to the company on a fair, reasonable and non-discriminatory (FRAND) basis."

        Isn't that something the Apple lawyers should have brought up in their defence arguments?

  2. Doctor Syntax Silver badge

    AFAICS from TFA the reason the jury weren't instructed was because it wasn't raised in that trial. If it's important to Apple's case why didn't their lawyers raise it initially? Weren't they instructed? If not it seems a bit late to be raising it now.

    1. iron Silver badge

      Because Fair and Reasonable apply to Apple as well as PanOptis. By not paying royalties and seeking to pay lower royalties than other parties they were not being either fair or reasonable.

      1. Doctor Syntax Silver badge

        I find this odd looking at it from a UK perspective although admittedly my experience is with criminal courts. The jury is the tribunal of fact. An appeal will consider if the original trial jury was misdirected about the evidence in front of it, including errors about the admissibility of evidence, but won't make further findings of fact unless new evidence has been unearthed since the trial. Evidence of FRAND known to the defence at the time of the original trial wouldn't, on that basis, be considered new. I suppose this arrangement allows the lawyers to milk the system but it seems to be a system ripe for reform.

        OTOH if not raising FRAND in the original trial was to Apple's advantage why didn't PanOptis' raise it?

    2. Hawkeye Pierce

      I could be completely wrong but if Apple's lawyers thought they were going to win the original case without mentioning FRAND then it's not necessarily a bad strategy to hold that back and so if they did lose (as they did), they could plead for a retrial (or at least what they've now got).

      1. John Brown (no body) Silver badge

        The truth, the WHOLE truth and nothing but the truth.

        Isn't that something all justice systems rely on? So how come a litigant can hold back some of the truth in anticipation of losing and then appealing to a higher court? Judges in the higher courts really ought to stop pussyfooting around with some of these so-called mis-trials or appeals to higher authority when the so-called new evidence is something they clearly should have presented in the original case.

    3. Anonymous Coward
      Anonymous Coward

      This was the plan - Apple's lawyers were hoping they'd pay nothing, and if not, ask for a retrial - which has happened.

  3. Anonymous Coward
    Anonymous Coward

    Whether PanOptis's licensing terms were FRAND compliant, and whether Apple engaged with the licensing process in good faith?

    I wonder if that will turn out to be a yes for PanOptis and a no for Apple?

  4. Wade Burchette

    We need a patent court

    What we really need is a special patent court that would handle all matters of patent disputes. This would prevent court-shopping and lengthy trials. The patent court would first determine if the patent applies. If that is true, then the court would then determine if a company knowingly violated a patent. The burden of proof would be on the patent owner. A company who used someone else's patent in ignorance would pay less damages. The patent court decision would be final, no appeal. The judges in the patent court all be trained in patent law and the ones on each case would be trained in the field they are presiding over. And both the patent owner and the one accused of breaking the patent can submit a case to the patent court. If, for instance, "Bob's Shell Company" accused Microsoft of breaking a patent, Microsoft could take the issue to the patent court to resolve the matter.

    Of course, in my ideal world, the patent court would determine, before anything else, if the patent is even valid. Is there prior art? Is it an obvious solution? Is it so vague that it could be many different things?

    1. oiseau Silver badge

      Re: We need a patent court

      The judges in the patent court all be trained in patent law and the ones on each case would be trained in the field they are presiding over.

      Indeed ...

      From what I see, it would seem that the judge involved in the original ruling may have had little or no knowledge of SEPs and FRAND, otherwise he would have asked.


      In my profession, I've been involved in a couple of lawsuits where the judges presiding did not have a clue as to what was being disputed, basically not understanding what had really happened.

      Nor did they want to take the time to understand, no matter how simple, detailed or just basic common sense the explanation put forth was.

      As expected, the lazy bastards ruled accordingly.


    2. Justin Clements

      Re: We need a patent court

      We need to overhaul the patent system. It probably wouldn't work but I think a patent should only be awarded with a working prototype. You can't just patent a good idea and wait for someone to trip over it, there needs to be a working prototype. Especially in areas of chip designing where people who are unable to build or design a chip suddenly seem to have a patent on how something works by purely dreaming it up.

      1. Barrie Shepherd

        Re: We need a patent court

        "We need to overhaul the patent system."

        Agree but first we need the US Patent System to catch up in reality terms with the rest of the world.

        Granting patents for almost anything without even a search for prior work or a 'it's bleeding obvious' check is why we are in this mess.

      2. DS999 Silver badge

        Re: We need a patent court

        Especially in areas of chip designing where people who are unable to build or design a chip suddenly seem to have a patent on how something works by purely dreaming it up

        The LTE patents in question are algorithmic, not a certain type of hardware design, so there is no "chip designing" in question. Even where chip designs are in question (like U of Wisconsin suing people over particular chip design techniques) they are just implementing algorithms in hardware.

        You could demonstrate these algorithms with a 6502 if you were willing to wait long enough for the result.

        1. Gene Cash Silver badge

          Re: We need a patent court

          I don't care if you demonstrate it with a TRS-80 running COBOL. I just want to see a concrete implementation as described by the patent. A crap FPGA lashup is fine.

      3. Doctor Syntax Silver badge

        Re: We need a patent court

        Just make the USPTO responsible for everyone's costs in the event of a patent being invalidated. It might take a few payouts by them before they cottoned on to the need to sort themselves out but it would quickly result in fewer but better patents being granted. By collecting fees without financial risk they're incentivised to choose quantity over quality.

        1. DS999 Silver badge

          Re: We need a patent court

          What's the incentive for companies not to deliberately violate patents by the bucketful, if the USPTO bears the cost of the lawsuit and not their own shareholders?

  5. Snowy Silver badge

    Bad Apple

    Lets say PanOptis 4G LTE patents where covered by FRAND so PanOptis was obliged to provide 4G LTE licences.

    The question is then did Apple ask for a license before or after it infringed them. Just because something is FRAND does not make it free.

  6. ecarlseen

    Ah, the Eastern District of Texas Federal Courts - Friends to Patent Trolls.

    The courts in this district have essentially created a "business" of being extremely litigant-friendly in IP disputes. By encouraging patent trolls to file there, they need more judges, more staff, etc. It's very shady, and anything decided there should be viewed through that lens (and these are federal courts, so don't blame it on Texas - they have no say in the matter).

    1. DS999 Silver badge

      Re: Ah, the Eastern District of Texas Federal Courts - Friends to Patent Trolls.

      This is really something congress should address - maybe IP litigation should be randomly assigned rather than letting the litigant choose a "friendly" court?

  7. Matthew "The Worst Writer on the Internet" Saroff

    How is judge Jockstrap ^h^h^h Gilstrap still doing this?

    The Supreme Court has explicitly ruled that forum shopping patent cases into his court is against the law.

    This guy is a public nightmare, and a patent troll's dream, presiding over something like 1/3 of all patent cases at the peak of his BS.

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