I suppose they did it because there are redactions. But since the brief includes the references to the trial testimony of the various witnesses, when the transripts are made public, we'll get to patch in the blanks. So it makes a lot of work for absolutely nothing.

Before we take a look at the brief, I thought I'd like to explain a little background for you on FRAND issues, as best I understand it. Because what we are watching is nothing less than an upending of the law regarding FRAND patents.

Of course, US law is a system whereby the courts interpret the statutes that the legislative branch passes, and those decisions collectively over time establish what the law is at any given time. So it's not a bad thing that the law does this. It's normal for law to grow and change as facts in various cases present new fact patterns.

But the changes we are watching aren't coming primarily from the courts but from regulators like the FTC. And considering how Microsoft whines nonstop to regulators about Google, perhaps it might explain a result that is so far leaving the playing field tilting Microsoft's way.

The named defendants, Novell's Board, Attachmate and Elliott Associates, all moved to dismiss. Attachmate and Elliott succeeded and get to waltz away, but Novell's board is left on the hook will have go to trial on the shareholders' claim that the board breached its fiduciary duty, acting in bad faith, a Delaware Court of Chancery judge has ruled [PDF]. I have it as text for you.

It's all about how much Microsoft should have to pay Motorola for its standards-essential patents, although Motorola claims that there is no RAND commitment unless Microsoft also licenses its RAND patents back to Motorola, and is asking the court to set a price for that as well.

I'm pretty sure if you read all four documents, you'll get a very different insight into what is really going on in the RAND/FRAND disputes than what you read in the funny papers. The FTC expressed concern about this topic in its recent decision and order [PDF], settling with Google, which it has now posted on the FTC website. Incidentally, if you read the order, you'll see that injunctions are not banned altogether, just that there are steps that must be taken first. And by my reading, had this FTC order been in place when the Microsoft v. Motorola litigation first began, it would have been very much to Motorola's benefit, not Microsoft's. Perhaps that's why Google didn't mind voluntarily agreeing to the terms. I'll show you what I mean.

Each roundtable event will provide a forum for an informal and interactive discussion of topics relating to patents that are particularly relevant to the software community. While public attendees will have the opportunity to provide their individual input, group consensus advice will not be sought....

The first topic relates to how to improve clarity of claim boundaries that define the scope of patent protection for claims that use functional language.

It's obvious the USPTO realizes there is serious unhappiness among software developers, and they'd like to improve things. Software developers are the folks most immediately and directly affected by the software patents the USPTO issues, and it's getting to the point that no one can code anything without potentially getting sued. I don't wish to be cynical, though, as that's a useless thing. So maybe we should look at it as an opportunity to at least be heard. It's progress that they even thought about having a dialogue with developers, if you look at it that way.

I'm sure companies with lots of patents will be participating. So some of you should probably try to attend too, don't you think? At least send in thoughtful, respectful but clear and specific comments. Large companies with patent portfolios they treasure and don't want to lose can't represent the interests of individual developers or the FOSS community, those most seriously damaged by toxic software patents. And now that patent trolls are targeting individual apps developers and small businesses that simply use technology like scanners and email, somebody needs to listen to what those of us who are not IBM or Microsoft or Google are enduring. And heaven only knows they are going through plenty too. But my point is there are more of you than there are of them.

Half of the one million lawyers in the US read the ABA Journal every month, they say, so lots of new lawyers are likely to stop by now. So behave yourselves.

Nah. Just be yourself, actually. They're lawyers. They've seen it all. More than once, probably. To any new readers, welcome. If you have tech questions, Groklaw is a resource for you.

And she meant it, it now turns out. She has given them a list of what she will not consider in her Order Striking Evidence [PDF], and it's both sides misbehaving.

So now we know why these law firms have been annoying her so much. She gives them limits, and they simply ignore them.

Also, Apple has brought a case to the court's attention, another super-plaintiff-friendly ruling from the Federal Circuit. And the parties continue to fight with the court over the issue of sealing materials. This judge isn't receptive, and while she earlier stayed her orders to unseal on the basis that she'd wait until the Federal Circuit could rule on appeals, now she denies a Samsung stay request.

And I found for you some material on what impact reexamination of a patent can have on litigation. I saw a lot of questions from you in your comments, so I researched it a bit for you.

The judge has asked [PDF] the parties to give him more information about Google's license agreement with the MPEG-LA patent pool, and he set a hearing for oral argument for January 28 at 1:30 PM in Seattle on that issue and on a Microsoft motion for summary judgment on invalidity. If any of you can attend, that'd be wonderful.

We now can have a much clearer picture of the parties' positions, now that we have both parties' post-trial briefs on the subject of Google's license agreement with MPEG-LA regarding H.264/AVC patent pool.

The crux of the debate is how to interpret one clause in the agreement, Section 8.3. Does it require Google to grant Microsoft a license to Motorola’s H.264-essential patents? Microsoft says it does, and Google says it does not. Google says it chose a license whereby it would have to list all affiliates it wished to be covered by the agreement, and to date it has not listed Motorola. It didn't close on the Motorola deal until after it entered the license agreement with MPEG-LA anyway. And Motorola never on its own put any of its relevant patents into the MPEG-LA patent pool. So either way, Microsoft has no rights to a license via the MPEG-LA patent pool, Google argues, only by negotiated agreement under normal RAND terms, obviously at a higher rate.

Back in July, the Federal Circuit issued a decision in CLS Bank v. Alice Corporation, overturning the district court, which had ruled that the asserted claims were not patent-eligible because they recited “the abstract idea of transformation or manipulation of legal obligations or business risks” and could be done without a computer, inside your head, making "on a computer" not limiting the idea. A divided Federal Circuit panel, however, reversed, and said that if “it is not manifestly evident that a claim is directed to a patent ineligible abstract idea, that claim must not be deemed for that reason to be inadequate under § 101", ignoring the US Supreme Court's direction in In Re Bilski and Mayo v. Prometheus, once again promoted its own, contradictory view that pretty much anything is patentable. In September, CLS Bank asked for an en banc review. That request was granted [PDF] in October and now amicus briefs are being filed.

There is quite a variety, with more expected. There are briefs by Google, IBM, Twitter, EFF, as you would expect. But what is surprising are the briefs urging the court to do something about software patents gone wild from entities like bar associations and internet retailers. When the Federal Circuit and the US Supreme Court do not agree, chaos is the result. And, as at least one brief points out, the results of earlier patents issuing under a looser standard of usefulness has brought on a nightmare of litigation over patents that should never have issued in the first place. And something needs to be done.

There has been a noticeable shift since the amicus briefs filed in In Re Bilski, in other words, I'd say, with brief after brief in CLS Bank asking to court to align with the US Supreme Court and put an end to the contradictory rulings, which is resulting in guesswork and unnecessary litigation.

Next, Samsung began putting on its case, calling as witnesses Benjamin Bederson and Adam Bogue, both to demonsrate prior art. And so I think we could call this Samsung prior art day.

It's also the day where Apple's Terry Musika, an economist, speaks to damages, and he seems not to have calculated product by product. He arrived at a total damages figure based on his assertion that all of Apple's claims of infringement were established as true, utility patents, design patents, and trade dress infringement. But there's no specific breakdown offered to help the jury figure out what to allot if they didn't agree that every single Apple claim was so. If only the utility patents were found to be infringed by the jury, or only one, or only the design patents, there was no easy breakdown of the figures provided to the jury to be able to calculate what the right damages figure should be.

In fact, I'll do that first, because the media reported that the jury barely could stay awake this day. The judge even offered them coffee. But to me, this day is fascinating. I'll try to show you why. And you'll see some of the finest lawyering you could ever hope to watch play out before your very eyes.

The irony is that two of the experts testified this day about how Samsung allegedly infringed Apple's '915 and '381 patents, both of which have since been preliminarily ruled by the USPTO as invalid, the '915 patent just this past week, the '381 patent a bit earlier. But this is a trial transcript from August, and no one knew that was going to happen. One can't help but wonder though, how could experts not know whether there is prior art that seems to invalidate a patent?