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Apple, Motorola Both Denied Injunctions

Circuit Court Judge Richard Posner, arguably the most brilliant mind on the American bench, threw out the Android infringement litigation between Apple and Motorola Mobility late Friday with prejudice, denying Apple its hoped-for injunction against the Google satellite and its smartphones.

That goes for Motorola too.

“Neither party is entitled to an injunction,” Posner said. “Neither has shown that damages would not be an adequate remedy” to an injunction – (which is usually reserved for cases of imminent irreversible harm) – but both sides “failed to make a responsible calculation” of damages.

“They had an adequate legal remedy,” he said, “but failed to make a prima facie case of how much money, by way of such remedy, they are entitled to. That was a simple failure of proof.”

Apple has the stronger case but “By failing to present a minimally adequate damages case, Apple has disabled itself from arguing that damages would not provide a complete remedy, going forward in the form of running royalties, as well as backward.”

With prejudice means the cross-litigation can’t be re-filed, giving Apple, which claims Motorola copied its technology, a powerful thumping.

There is of course always the probability of appeal or they could go venue shopping. Otherwise, Judge Posner, whose patience was tried more than a little by the case, blasted the strategy of using patents to bar a rival from the market in his 38-page decision.

After tossing nearly all of Motorola’s patent claims against Apple and leaving Apple with more, the judge cancelled a jury trial that was supposed to start on June 11 on their two-year-old cross-complaints and heard arguments last Wednesday on the possibility of injunctions determined to decide the issue himself.

He found that Apple had dicey grounds for a ban in the light of possible workarounds and said enjoining Motorola’s phones would be “catastrophic” for the company.

It didn’t have a tight enough case. “Apple wanted me to allow into evidence,” the judge said, “media reports attesting to what a terrific product the iPhone is. I said I would not permit this because the quality of the iPhone (and of related Apple products, primarily the iPad) and consumers’ regard for it have, so far as the record shows, nothing to do with the handful of patent claims that I had ruled presented triable issues of infringement. Apple’s ‘feel good’ theory does not indicate that infringement of these claims (if they were infringed) reduced Apple’s sales or market share, or impaired consumer goodwill toward Apple products.”

There’s “danger,” he said, “that Apple’s goal in obtaining an injunction is harassment of its bitter rival…The notion that these minor-seeming infringements have cost Apple market share and consumer goodwill is implausible, has virtually no support in the record, and so fails to indicate that the benefits to Apple from an injunction would exceed the costs to Motorola.”

“smallerAn injunction,” he said, “that imposes greater costs on the defendant than it confers benefits on the plaintiff reduces net social welfare.”

Meanwhile, Posner had left Motorola with one FRAND-pledged wireless patent to sue on after weeding out the others.

He said Motorola’s FRAND pledges barred it from seeking an injunction and that Motorola offered “no reasonable evidence for calculating a reasonable royalty” in light of its gargantuan licensing demands for 2.25% of Apple’s device sales.

“I don’t see how,” he wrote, “given FRAND, I would be justified in enjoining Apple from infringing the ‘898 unless Apple refuses to pay a royalty that meets the FRAND requirement. By committing to license its patents on FRAND terms, Motorola committed to license the ‘898 to anyone willing to pay a FRAND royalty and thus implicitly acknowledged that a royalty is adequate compensation for a license to use that patent. How could it do otherwise? How could it be permitted to enjoin Apple from using an invention that it contends Apple must use if it wants to make a cell phone with UMTS telecommunications capability – without which it would not be a cell phone.”

Judge Posner also quashed Apple’s proposal to limit the injunction and force Motorola to remove Apple-patented features from its phones within three months of launch. He said it would be too hard and too costly to administer for both Motorola and the court, and forcing Motorola to sell inferior technology would serve no social good and create the unhappy prospect of Apple then filing more lawsuits claiming Motorola still infringed à la Apple and HTC.

He suggested Apple license the relevant patents to Motorola.

FOSS Patents says the only thing that’s going to stop the worldwide patent disputes that Judge Posner loathes is a global settlement and the only way to achieve a settlement is either through an injunction that endangers sales or draconian damages.

According to Gartner Android owns 47% of the market and iOS has 23%.

The Apple-Google relationship is expected to deteriorate further if Google puts out its own branded phone, as widely reported

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Enterprises Secure Cloud Infrastructure and Social Networking Investments

According to “The State of Adoption of Cloud Applications” a recent survey from Tata Consultancy Services (TCS) determined that overcoming the fear of security risks remains the key to adopting and benefiting from cloud applications. In addition it found that while companies globally admitted this is the biggest challenge to leveraging cloud today, those in the US and Europe remain especially conservative in their approach to cloud adoption for the fear of data security breaches.
Dome9 makes the cloud security stack manageable, securing cloud servers and making them virtually invisible to hackers. Using a patent-pending policy automation and security centralization, Dome9 makes it easy to create a simple and scalable front-line defense to secure any server in any cloud. And they have incorporated into the company’s service new strong, two-factor authentication.

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OpenNebula 3.6 Beta Cloud Management Toolkit Is Out

The OpenNebula project has just announced the availability of the beta release of OpenNebula 3.6 (Lagoon).
OpenNebula 3.6 features a new hotpluging mechanism for disk volumes that supports attaching either volatile volumes or existing images to a running VM. OpenNebula 3.6 brings new Quota and Accounting tools, so now they are included in the OpenNebula core to enhance their integration with the existing AuthZ & AuthN mechanisms and other related tools (e.g. Sunstone). There are some other new features like VM rescheduling, hard reboots, cloning of disk images…
OpenNebula 3.6 also features improvements in other systems, especially in Sunstone’s interface with the redesign of several tabs as well as in the OpenNebula Zones.

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MineralTree Raises $6.3 Million to Accelerate Growth

MineralTree, Inc., maker of the cloud-based, secure payments solution specifically designed for small and medium businesses (SMBs), has received $6.3 million of venture financing. Led by Fidelity Growth Partners India with full participation from initial investor, .406 Ventures, the funding will be used to further enhance the capabilities of the MineralTree platform and to accelerate its partnerships with banks and distribution to their SMB customers.
The MineralTree solution is a secure, cloud-based payment and cash management solution that meets the needs of companies with annual revenue of $500,000 to $50 million. Offered to SMBs as a private labeled solution by MineralTree’s bank partners, the system provides unmatched security, mobility and visibility into the management of B2B (business-to-business) payments, via a secure web browser or iPad application.

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Cloud Computing: Salesforce Buys ChoicePass to Shut It Down

Salesforce has bought SMB-focused corporate perks and employee rewards management start-up ChoicePass a year after the outfit drummed up $250,000 in seed money.
Its site will be shut down on June 30 and the team that put the operation together sucked up into Salesforce according to an official blog posting.
It said that “Since launching our Perks product, we’ve found that there is massive demand from businesses for innovative ways to manage employee engagement, rewards and incentives. It has been an amazing experience for us to work with such great companies, partners and of course, people.”
It got as far as fielding an Android app last month and was supposed to turn out an iPhone and iPad app next.

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Mainframes to Mobility

Much of the success of the Cloud delivery model is attributed to the implementation of similar concepts through mainframe computing several years back. The concepts of multi-tenancy, workload management, virtualization, and chargeback accounting all are basic tenants of the mainframe.
Over the years mainframes have reinvented themselves to continue to find a place in the enterprise landscape. Recent announcements from IBM on System Z, IBM zEnterprise 196 (z196), IBM zEnterprise 114 (z114) have laid a path for enterprises to adopt Private Clouds using mainframes. The zEnterprise family provides a system designed specifically to address IaaS on a private heterogeneous cloud where the components run on the same architecture, a single hardware or operating system platform. The private cloud can be hosted within the organization or through an external provider.

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Cloud Computing: Fujitsu to OEM Eucalyptus Cloud Platform

Fujitsu has cut an OEM deal with Eucalyptus Systems to deliver a private IaaS cloud solution.
Fujitsu Frontech North America Inc is going to use Eucalyptus’ open source private cloud platform to power its pre-packaged NuVola Private Cloud Platform, otherwise consisting of Fujitsu’s x86 Primergy servers, Eternus storage appliances and virtualization software.
Since Eucalyptus is compatible and integrated with Amazon’s public cloud, Fujitsu’s will be too, adding to Amazon’s luster as the de facto cloud standard.
Frontech customers are in manufacturing, retail, healthcare, government, education, financial services, the enterprise and communications.
The NuVola Private Cloud Platform is available immediately.

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The Cloud’s Little Secret

The “cloud” terminology has been around for a while, but it was broadly popularized when Amazon Web Services started offering its S3 storage service and its EC2 compute service. With these services, you could easily store data or run software without owning or managing the physical infrastructure. Quickly, Software-as-a-Service (SaaS) companies like Salesforce.com realized that there were similarities between their offerings (which had been around for almost a decade) and this new “cloud.” So as not to be left out of the hype cycle, they started calling their offerings “cloud.” Fair enough: indeed, with SaaS you don’t have to manage the infrastructure or the software.
Lately, though, it seems that partisans of this model − I am talking specifically about SaaS that is shared-everything, and multi-tenant at the application and database level − are attempting to abscond entirely with the term. I’ve had industry analysts and others tell me that, for all intents and purposes, Cloud means multi-tenant SaaS. When I challenge this point of view by asking whether Amazon EC2 is “cloud,” they mutter something about it being transitional, or mainly for online games, or for high-performance computing. Certainly it’s not where enterprises or ISVs should be, according to this viewpoint.

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GridGain Gives Customers Even Bigger Opportunities from Big Data

As increasing numbers of industry leading companies look to new technologies to speed their real-time services and Big Data applications, GridGain Systems, leading developer of scalable, distributed in-memory compute and data grid technologies for real-time data processing, is strongly positioned to serve the demand.
This week, GridGain announced the release of an entirely new suite of solution-focused products built around the company’s leading in-memory and world’s fastest MapReduce technologies, expanded enterprise consulting and other professional services, advanced DevOps management and monitoring capabilities now available with all products, and out-of-box integration with virtually any existing data source, Hadoop-based systems, and Java, C++, .NET, Android and iOS applications.

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GridGain Gives Customers Even Bigger Opportunities from Big Data

As increasing numbers of industry leading companies look to new technologies to speed their real-time services and Big Data applications, GridGain Systems, leading developer of scalable, distributed in-memory compute and data grid technologies for real-time data processing, is strongly positioned to serve the demand.
This week, GridGain announced the release of an entirely new suite of solution-focused products built around the company’s leading in-memory and world’s fastest MapReduce technologies, expanded enterprise consulting and other professional services, advanced DevOps management and monitoring capabilities now available with all products, and out-of-box integration with virtually any existing data source, Hadoop-based systems, and Java, C++, .NET, Android and iOS applications.

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