Reserved space for operating system on Microsoft Surface is indeed to high, but a lawsuit?

I cannot say it only happens in America. A lawyer is suing Microsoft over false advertising because for its 32 GB model actually only give you 16 GB space for your files. Here in the UK I can see irate customer filing a complain with the Advertisement Standard Agency. I guess the equivalent of a complain with ASA is lawsuit in America.

Microsoft’s reported disk usage do lead me to think that at least for the 32GB model, one can make a case for false advertisement since the operating system itself eats up half of your available disk space. Microsoft argument that people do expect some space to be taken by operating system does not holds water here for two reasons. One, while we do expect some manufacturer to annoy us  by having some spaces  taken up by operating system (and crapwares), we do not expect the “core operating system”  to take up 11 GB, i.e., my estimate that the operating system is 6GB plus recovery tools (5GB), see later; And Two, it is false advertisement because joe customer might be attracted by the disk size which looks to be larger than the cheapest IPad model and assumed that he has more space than he actually gets with Surface, and Microsoft knows it.

However, if you look at the figure, the actual operating system takes only 8GB. That is not that bad compared with my iPad which says iOS takes up about 5 GB. I am guessing (since I don’t have a Surface to check), the core operating system takes 6GB, preview of Microsoft Office Apps is 1GB since Apple’s iWorks for iPad takes about the same amount of space, and all the crapwares, Games and Videos make up the remaining 1GB.

The killer, to me, is the Recovery Tools rated at 5GB. My God! Those are dead weight space hugger and should not be in the device. What one need is a skeleton program to load the actual recovery tools from a external source, e.g. a computer. Microsoft should trim them down to a more manageable 1GB or so.

Blessing in disguise for Samsung and Apple might be biting off more than it can chew

Two interesting news item overnight.

PCMag reports that Samsung had delayed a fab construction because its projected business relationship with Apple for chips turned sour as a result of lawsuits between the two. I say blessing in disguise. Imagine Samsung has on its hand a expensive fab but insufficient volume. I think it will be worse off. Also, on the long  run, depending on one customer is never a good idea.

The second thing is Apple is attempting to insert Android Jelly Bean into its next Apple vs Samsung suit as reported at Groklaw. Good luck to Apple if it succeed. It will not be taking on Samsung in that case, but Google as well. I can see Google applying to intervene to defend Jelly Bean. I think it has to to protect the Android ecosystem. I am sure Apple see that as well. May be it fancy its chances. May be Google had been helping Samsung all along in the background and therefore all Apple is risking is just Google stepping into the limelight. Only the players in this game know their cards.

Apple scored an own goal …

It is a gamble that did not pay off for Apple. Motorola probably sense something in the pretrial negotiation and managed to execute a legal maneuvere with the effect of forcing Apple to reveal its real intention in pursuing this litigation. Used to get its way in the business market, thinking that it arrogance it has there will translate to its litigations as well, Apple gambled  that it is worth tell the court that it will appeal its decision if the court set a FRAND rate of more than one dollar per device. That, if the court had not reacted, would had in effect allowed Apple to unilaterally set the ceiling for the FRAND rate. Court barked at it and started to smoke Apple, Motorola fanned the fire, and finally as reported by Groklaw and elsewhere, the court throws out the unfair (to Motorola) lawsuit, leaving Apple more than scorched by dismissing its claim with prejudice.

In effect, the  court had implied that the FRAND rate can be more than a dollar per device.

PJ correctly said that Apple was frantically trying to salvage its case by frantically and compared to what it tells the court in UK on how long it will take to put up a notice on its website, came out with a complex memo in record time. That rightly did not save its bacon. It was asking Motorola to agree to be bound by the same procedures to set a FRAND rate for Apple’s patent, and sensing that Motorola will go for the kill by saying it is not prepare to do so, pleaded to the judge to order Motorola to accept it. Obviously the judge was not persuaded, nor should she be.

I was slightly surprised by the with-prejudice dismissal. I was expecting without prejudice. But as some commentators pointed out, with prejudice is necessary to prevent Apple from filling the same lawsuit in another court in the hope for a more sympathetic judge.

If I am Motorola, I would now apply for cost.

So far, I think the judges in United States, on the whole, did well in FRAND cases. Yes, we have the Microsoft vs Motorola abnormally in Seattle, but by and far, they did  clarify this really well. Here is what I had learned: Offering something to Standard Setting Bodies on FRAND means you cannot get an injunction before the case has run its course, as you had admitted that monetary cure will be sufficient. You can and will be forced to license your patent on FRAND terms if you had pledged to do so. If both parties cannot agree, then the court can intervene to set the FRAND rate. However, you cannot use the court as a negotiation strategy. That rate the court sets can be a worldwide rate (at least if both parties are American companies). After the rate is set by the court, by implication, if the prospective licensee still refuse to pay, then an injunction to ban the sales of infringing articles will be back on the table. In short, it upheld common sense and standard business practice. Another thing that the judge had  confirmed is agreeing to license your patent on FRAND term will not degrade the value of your patent, as Apple and Microsoft are trying to do. What’s not to like about it?

How a court should react to attempts to short circuit the FRAND process

As we all know, Apple and Microsoft are aiming their guns at Google/Motorola Mobility. In short, they are attempting to short circuit the FRAND process.

While technically the cases are legally speaking, different, the issues appear to be the same, both Apple and Microsoft attempting to use the court for commercial advantage, i.e. by getting the court to set a FRAND rate and use that as the upper limit to negotiating for a license later in the hope that the limit set by the court is lower than Motorola Mobility initial offer. Moreover, both courts have to deal with a bewildering number of issues before it can come to a conclusion of what a fair FRAND rate will be.

Interestingly, the courts in both cases react differently. In the Microsoft case, the court appears to be willing to take up the challenge of wading through all the issues to come up with a FRAND rate. Given the amount of issues the court has to deal with, no amount of filings by both parties can offer any guidance. In other words, the court is not competent enough to settle the issue. That is why I think the court was wrong and therefore it is very likely a higher court will overturn its decision. Some people claims that the court is biased towards Microsoft in this process. All I will say is while it smells this way, I am pretty confidence a higher court will eventually overturn that court ruling. Just a pity that it is going to cost Motorola Mobility  a lot of money to uphold the negotiation convention.

In the Apple case, as can be read from PJ’s reporting, the judge is trying to extricate itself from the process. It is not every day where you see the judge tell both parties to come out with the reason why it should or should not start the trial at the very last minute. It is wary about its competency to decide on a FRAND rate, but most importantly, it noted that it will not be used as a pawn by any party simply to gain a negotiation advantage.

This, I believe, is the right way to deal with a FRAND case or indeed any cases involving negotiation between  two parties: Instead of attempting to direct a negotiation, let both parties negotiate first. That will narrow down the case to issues that both parties cannot see eye to eye with. Then all the court has to do is to focus on these issues to break the deadlock between the parties.

The current mini-saga started with Apple saying that it will not be bind by the court’s ruling on the FRAND rate. One can certainly say that Apple was arrogant and stupid enough to tell the court that unless the court set the rate at lower than one dollar per device, it will certainly not comply with its ruling.  No court will allow one side to unilaterally set a condition to their ruling, and the judge  barked back. Motorola is trying to capitalize on this situation. More about that later.

I cannot see that Apple’s competent lawyers make such a silly mistake of putting the ‘one dollar rule’ on the table now. I can see them being arrogant, but I cannot see them risking the judge’s wrath unless they had planned it. Apple’s legal team (or at least that in the Apple vs Samsung) case, is know to be trying to over-reach itself. May be this is just one attempt too far. They probably figure out there is minimal risk to try this. If they succeed, they more-or-less win the case. If not, then it is back to getting what they want the hard way, i.e., through the trial. As for the judge’s feeling? To hell with it. I am certain they planned the reply to the judge before they even file that ridiculous paper.

PJ sees the reply as backpedaling. To me to backpedal one has to advance into a position then being forced to vacate that position into the position before. Since I believe Apple knows it is overreaching itself originally, I do not see it as Apple advancing its position and than retreating from it. More like dipping its toe into the water  and finding it too cold. I am, however, nagged by Apple statement that it will be bound by the court’s ruling if Motorola is willing to as well. I can see this as something we Chinese call a “face-saving” measure (Getting something inconsequential or trivial in return as an excuse to do something one was will be or was forced into doing). However, American (including a lot of Chinese American) do not believe in saving faces. Thus, I cannot help but believe the lawyers are playing a strategic game here.  I am starting to think that the tabling of the  ‘one dollar rule’ is a deliberate attempt to get Motorola to say it will submit to the court’s decision, stopping it or weakening Motorola’s ability to appeal the court decision.

Let’s return to Motorola. It sensed that the judge might be willing to throw in the towel. Thus, in its reply, it agrees with the judge’s position wholeheartedly, giving it as many excuse as possible to abandon the trial. It even throw in an additional excuse to encourage the judge to do it: Ripeness. In effect, it is telling the court that this is not the time to determine a FRAND rate so it can choose to do precisely nothing.

If you ask me, that is the right thing to do.

Checkmate …

Via Groklaw, we see a brilliant piece of work from Samsung’s lawyer. Samsung managed to corner Apple into a corner where whichever ways it choose, it will be on the losing part. Just in case Apple couldn’t see it, Samsung spell it out for Apple.

On the surface, the issue appears to be when did Apple know that the jury foreman was involved in a litigation that will make it biased against Samsung. Apple argued that Samsung could had, should had and _actually_ had, known that the Foreman is involved in the lawsuit but kept quiet to gain a litigation advantage. Samsung turn it around and say if it could had, should had and actually had, then so did Apple. As such, it wants to know when did Apple know about it. It is relying on a important concept in litigation that you should turn over information that might be useful to the other party even if it might be at your detriment. That is suppose to be one of the few things that distinguish between civilized and uncivilized litigation.

However, I believe Samsung’s intention is to bury Apple argument that it could had and should had known about it, let alone kept quiet to gain an advantage over Apple.

Apple appears to be at a weak position since it cannot win if it is stupid enough to take either paths Samsung laid out for it. However, Apple is not stupid. It will attempt to wiggle out of this by latching on the fact that Samsung did some digging on the Foreman during the trial and says it did something similar BUT no more. The latter is crucial, as Apple will argue that it is only looking for bias against itself so it is perfectly reasonable that it did not know about the potential bias. Crucially, it is Samsung’s duty to look after itself. If it did not it is its fault.

On the surface, Samsung’s request seems to be reasonable. However, let’s not forget that we only have Samsung’s words. The request will only be reasonable if and only if all of the following are satisfied: The foreman should had disclosed the litigation, the non-disclosure is material in determine whether the foreman is biased and Samsung could not reasonably be expected to discover this earlier. While people like me believe Samsung met that burden, the only person(s) that matters are the judges in this case.

As PJ says, we are watching GREAT lawyers from both side at work. This round to Samsung.

Finally, it is indeed unusual for Samsung to ask that Apple’s lawyers disclose what they know “under the penalty of perjury”. PJ noted that this is Samsung giving notice that if it will take things further if it thinks that  Apple had lied. The conspiracy theorist in me says Samsung have evidence that Apple did know about the litigation. However, the more balanced me says that Samsung is just sable-rattling.

Apple scored an own goal

Did the Apple statement on its UK website satisfied the UK Appeal Court order? A lot of web pundit, including me, did not think so. Yesterday, Groklaw posted on its News Pick an item about Samsung going back to the court to ask for direction. That was the first indication that perhaps Samsung is not happy about it. Today, we got confirmation Samsung was not the only party that is not happy about it, the court itself believes that Apple did not complied with its order. According to Bloomberg, the court now required it to put an additional three sentence on its (UK’s and EUs’ I presume) homepage acknowledging the “incorrect statement”.

So, in short, Apple was too smart for itself and scored an own goal: Instead of a tacit acknowledgement that a small, easy to miss link to the notice is all that is required,  it now must deface  its ‘treasured’ minimalist website will get officially defaced  by three sentences.  [However, I will not be surprised if the three sentences are small and coloured in light grey so as to make it not noticeable.]. Most importantly, it managed to get even more negative publicity for itself; And no, this is not the case of any publicity is good publicity.

My first reading of the notice actually gave me the wrong impression, i.e., instead of Samsung not copying from Apple, I  got the impression that Samsung copied from Apple. I completedly missed the subtext which in effect say that U.K. court is out of step with other courts. It is nice to see that Samsung use that in today’s hearing to deliver the knock-out punch.