Late on Friday, Judge Richard Posner ordered the dismissal with prejudice of a lawsuit in which Apple was asserting four patents (out of 15 originally asserted ones) and Motorola was suing over one patent (out of six). You can find a report and the full text of the ruling here.
Just two days earlier, Judge William Alsup had entered his final judgment in Oracle v. Google. These are the first two final (though appealable) rulings by U.S. federal courts involving Android-related infringement disputes between major players.
The outcome of the Chicago litiation between Apple and Google subsidiary Motorola Mobility was not a huge surprise. Judge Posner had previously canceled a jury trial and indicated his inclination to dismiss the case. He didn't even want to hold a hearing but changed mind and gave the parties another chance to persuade him. It was clear that it wasn't going to be easy, but the companies' lawyers tried. And they will keep trying elsewhere: this case is 100% certain to be appealed to the Federal Circuit.
Judge Posner's ruling is a very interesting read. It touches on a number of issues, and one could write a whole series of blog posts just commenting on that ruling. Here's a summary of my observations.
Substantive/strategic vs. procedural/tactical issues
The most important thing to do when analyzing the implications of this is to properly distinguish between substantive/strategic issues on the one hand and procedural/tactical issues on the other hand.
Judge Posner has a very strategic perspective on some of these issues, and some of what he said has strategic implications for the parties involved. But as far as the legal reasoning behind the dismissal of Apple's claims is concerned, it boils down to a procedural/tactical question: the ruling essentially says that Apple didn't do its homework in terms of expert reports and witnesses to be entitled to an injunction (or, in the alternative, monetary compensation) while it had the chance to do so. He doesn't rule out that Apple might have won either an injunction or at least damages (if it had been given the chance to prove an infringement). This sentence is a good example:
"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."
In a more specific form, this paragraph also explains that this was an issue of "a simple failure of proof":
"In fact neither party is entitled to an injunction. Neither has shown that damages would not be an adequate remedy. True, neither has presented sufficient evidence of damages to withstand summary judgment—but that is not because damages are impossible to calculate with reasonable certainty and are therefore an inadequate remedy; it’s because the parties have failed to present enough evidence to create a triable issue. They had an adequate legal remedy 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."
Judge Posner didn't want to give them a chance to make up for these shortcomings. The expression "too late" appears three times in the ruling.
There are also substantive/strategic issues with repercussions beyond this case. They involve the entitlement to injunctions in general, possible workarounds for some of Apple's patents, Motorola's pursuit of injunctions over (or excessive royalties for) standard-essential patents, etc. I'll discuss those below. Those issues have to do with the merits, but "failure of proof" and "too late" are unrelated to the merits.
Judge Posner is a skeptic of the current patent system
Even prior to this ruling, Judge Posner said in a blog post he co-authored with a fellow researcher that "[t]he institutional structure of the United States is under stress", listing a number of examples including "a dysfunctional patent system".
In some of the reports on this week's injunction hearing I also read that he pointed to systemic problems with patents, and the word "chaos" was quoted more than once.
Someone's political perspective need not get in the way of sound analysis, especially in the case of someone as smart as Judge Posner. But public policy considerations do play a role in judicial decisions. And Judge Posner is not only a critic of the present state of affairs of the patent system but also has a track record of treating injunctive relief as an exception, not the rule. That attitude is also reflected by the following sentence from yesterday's ruling:
"The grant of an injunction is not an automatic or even a presumptive consequence of a finding of liability, either generally or in a patent case—in fact the Supreme Court has held that the standard for deciding whether to grant such relief in patent cases is the normal equity standard."
At the hearing, Judge Posner reportedly said that it would be mistaken to think that "just because someone has a patent, he has a deep moral right to exclude everyone else [from practicing the claimed invention]".
However, the constitutional basis of patents is that Congress has the right to grant time-limited monopolies. A patent is, by definition, an exclusionary right. There are limits to it, and while I'm definitely close to Judge Posner's political perspective on this, it's a fact that there are other judges than him who draw the line somewhere else and attach more importance to the notion of a patent constituting intellectual property and a time-limited monopoly.
In particular, Chief Judge Rader of the CAFC (whose court is going to be next to look at this case) has repeatedly made statements that are markedly more favorable to the interests of patent holders than the positions Judge Posner takes. Again, I'm personally more on Posner's than Rader's side, but with a view to what will happen next, it's a safe assumption that the CAFC will be concerned about the patent-skeptical stance embodied in this ruling and will probably be hesitant to affirm this in its entirety.
Judge Posner wants fewer smartphone patent lawsuits -- but his ruling will have the opposite effect
The hearing reports also mention a dialog between Judge Posner and Apple's counsel, Matt Powers. Apple proposed to give Motorola three months to modify its products and design around the asserted patents. Judge Posner was concerned that Apple would then file a new lawsuit after three months arguing that Motorola still infringes. As a matter of fact, that's what's currently happening between Apple and HTC. Apple's counsel confirmed that Apple would have the right to do so if it concluded that infringement continues. And then Judge Posner reportedly said that "all we need is more actions, more suits, because there isn't already enough litigation worldwide between Apple and Android".
Clearly, Judge Posner wanted his ruling to represent a contribution to patent peace. He wanted to discourage even more litigation. This is, of course, perfectly consistent with his patent-skeptical attitude.
Unfortunately for him and the industry, his ruling is actually going to have the opposite effect. Judge Posner tried to limit damages claims and to raise the bar for injunctive relief in general and, even more so, in connection with standard-essential patents. When writing his decision, he knew it was going to be cited many times in the months and years ahead. It will be, and it deserves to be. But it's going to have the unintended consequence of even more litigation, for two reasons:
The strategic issues between the Android camp and the companies who see their rights infringed by it won't go away until there are settlements. But in order for settlements to happen, there must be pressure on the parties to stop this. Litigation expenses and the negative publicity resulting from lost cases are not going to discourage anyone from carrying on. The prospect of lost sales as a result of injunctions, or of draconian damage awards, is much more of an incentive to settle than a feeling that it's just going to take longer and cost more legal fees.
Most of the patents at issue in this litigation would not have had a huge effect. The only one that could have had a devastating effect is probably the '263 "realtime API" patent. And Motorola's standard-essential patent, but an injunction over that one was not an option. If Apple had won an injunction over the '263 patent, that really might have created a basis for Apple and Google to sit down and negotiate a global settlement. After yesterday's ruling, there's no sense of urgency for either one to settle.
Lawmakers and judges alike can only make decisions in their own jurisdictions, but here we are talking about global disputes. Simply put, Judge Posner's ruling is an invitation for "forum-shopping" and an advertisement for such jurisdictions as Germany. Companies pursuing injunctive relief are going to increasingly file their lawsuits in jurisdictions that don't have the Common Law notion of equitable discretion. In the long run, that will probably bring about change in those jurisdictions. So five or ten years down the road, Judge Posner's vision may materialize in all major jurisdictions on this planet. But with a view to the next few years, patent holders will simply litigate overseas.
Judge Posner gives meaning to FRAND and endorses the FTC's submission to the ITC
What Judge Posner wrote about FRAND and what it means for injunctions and damages/royalties is absolutely fantastic. I couldn't be more impressed. I couldn't agree more. It's the best FRAND ruling I've ever seen. Its logic is based on antitrust considerations -- unlike some other things that Judge Posner said, it does not in any way build on his patent-skeptical positions.
I expected something FRAND-friendly since the order that invited the parties to the hearing already told Motorola that it would have to address the bearing of FRAND on injunctive relief. But the ruling still beat my expectations.
I am now going to quote the passages on FRAND and insert comments below some of the paragraphs:
"'Going for broke' is the inescapable characterization of Motorola's damages claim. Motorola claims to be entitled to a minimum royalty of 2.25 percent for a license for the patents in the portfolio that contains the ‘898. Though it's the only patent in the portfolio that remains in this suit, Motorola claims to be entitled to damages equal to (or 'up to,' or 'at least'--it seems not to have made up its mind) 40 to 50 percent of 2.25 percent, which would be 0.9 to 1.125 percent of sales of Apple devices that infringe the '898.
At the June 7 hearing Motorola's lawyer said that in future litigation it would prove that Apple had infringed the other patents in the portfolio as well and so Motorola would prove its entitlement to 2.25 percent of all sales. In his words: 'Apple is infringing all the standards-essential patents [this was said before I granted Apple summary judgment regarding its alleged infringement of Motorola's '559 patent] that Motorola owns by selling its cell phones that communicate on these wireless networks. As…a practical reality, we cannot sue on a hundred patents in one case, or 75…. There are other cases pending, and there are cases in various stages of development at the International Trade Commission. But the ultimate result would have to be, as a result of all the litigations, that Apple would pay Motorola whatever the standards-essential license negotiated fee would be. We say it's 2.25 percent, but I'm not going to be able to prove to you that that’s the right number today' (emphasis added). And now it's too late."
Considering that Motorola is still demanding that Microsoft pay a 2.25% royalty on the Xbox, it's interesting that Motorola doesn't even have any particular proof for the legitimacy of that percentage, other than saying that it's always asked for that. It then claims that others have accepted it, but there's no evidence of any major company having accepted it just for standard-essential patents.
"There is another decisive objection to Motorola's damages claim. The proper method of computing a FRAND royalty starts with what the cost to the licensee would have been of obtaining, just before the patented invention was declared essential to compliance with the industry standard, a license for the function performed by the patent. That cost would be a measure of the value of the patent qua patent. But once a patent becomes essential to a standard, the patentee's bargaining power surges because a prospective licensee has no alternative to licensing the patent; he is at the patentee's mercy. The purpose of the FRAND requirements, the validity of which Motorola doesn’t question, is to confine the patentee’s royalty demand to the value conferred by the patent itself as distinct from the additional value--the hold-up value--conferred by the patent's being designated as standard-essential. Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 313–14 (3d Cir. 2007); Daniel G. Swanson & William J. Baumol, 'Reasonable and Nondiscriminatory (RAND) Royalties, Standards Selection, and Control of Market Power,' 73 Antitrust L.J. 1, 7–11 (2005). Motorola has provided no evidence for calculating a reasonable royalty that would be consistent with this point."
The above paragraph is highly important. In debates over FRAND, many people fail to make the necessary distinction between the pre-standard-setting value of a patent and the value of standardization itself. SEP holders obviously like to argue that what they sell is a license to operate in a market: without a license, the phone won't dial into a network. But that value is a separate story from the intrinsic value of the innovation that a patent represents. A patent doesn't have to represent a particularly impressive innovation to be included in a standard. It's all just a bargaining process. The patent becomes powerful because of the collective market share of the companies engaged in standard-setting. That's the power of a cartel, not the power of innovation.
Judge Posner accurately refers to the differential between the value of a standard and the value of a patent contributed to it as "the hold-up value".
In my observation, standard-essential patents are, on average, not more but actually less of an innovative achievement than other patents. Most of those patents would have a commercial value of zero, or next to zero, if they weren't included in a standard. For example, they cover simple countdown algorithms, some of an infinity of encryption algorithms, etc. There are countless workarounds, but those workarounds cease to be available once the patented technique has become a mandatory part of a standard. If the standard prescribes only one way to encrypt data or to count down the number of packets to transmit, the availability of other ways to solve the same technical "problems" becomes irrelevant.
If patent holders were allowed to charge based on the value of standard-setting, they would unduly enrich themselves just because they were part of a standard-setting cartel.
"So damages are out for both parties. But a patentee can also seek injunctive relief for infringement, and both parties seek such relief, as I have already noted with respect to Apple.Injunctive Relief. To begin with Motorola's injunctive claim, I don't see how, 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."
This is a ringing endorsement of the "no injunction" policy on standard-essential patents that Apple, Cisco, HP, Microsoft and others have recently stated in different submissions to governmental agencies and standard-setting organizations.
Judge Posner's position on FRAND injunctions is unequivocal. He doesn't allow backdoors such as arguing that after someone has refused an offer, an injunction should be available. He's even clearer in this regard than the European Commission has been to date. The European Commission might still say at some point that injunctive relief over FRAND patents should be unavailable without exceptions, and it has not said anything that would make it impossible to adopt that position in the future. It might be encouraged by different developments in the United States to adopt an unequivocal position.
"The Federal Trade Commission recently issued a policy statement which implies that injunctive relief is indeed unavailable for infringement of a patent governed by FRAND. 'Third Party United States Federal Trade Commission's Statement on the Public Interest,' filed on June 6, 2012, in In re Certain Wireless Communication Devices, Portable Music & Data Processing Devices, Computers & Components Thereof, Inv. No. 337-TA-745, www.ftc.gov/os/2012/06/1206ftcwirelesscom.pdf (visited June 22, 2012). This was said in the context of an exclusion order by the International Trade Commission, but its logic embraces any claim to enjoin the sale of an infringing product. For the FTC says it's 'explaining the potential economic and competitive impact of injunctive relief on disputes involving SEPs [standard-essential patents].' Id. at 2. It goes on to note that
Id. at 3–4; see also (besides the Broadcom case and the Swanson & Baumol article) Douglas Lichtman, 'Understanding the RAND Commitment,' 47 Houston L. Rev. 1023, 1039–43 (2010); Mark A. Lemley, 'Intellectual Property Rights and Standard-Setting Organizations,' 90 Cal. L. Rev. 1889, 1916 (2002)."a royalty negotiation that occurs under threat of an exclusion order may be weighted heavily in favor of the patentee in a way that is in tension with the RAND commitment. High switching costs combined with the threat of an exclusion order could allow a patentee to obtain unreasonable licensing terms despite its RAND commitment, not because its invention is valuable, but because implementers are locked in to practicing the standard. The resulting imbalance between the value of patented technology and the rewards for innovation may be especially acute where the exclusion order is based on a patent covering a small component of a complex multicomponent product. In these ways, the threat of an exclusion order may allow the holder of a RAND-encumbered SEP to realize royalty rates that reflect patent hold-up, rather than the value of the patent relative to alternatives.
The FTC statement is very new, but it's already been quoted by this famous judge. Maybe the FTC will at some point quote him. Nobody can deny the dynamics at play that reinforce the rejection of injunctions over standard-essential patents by a growing number of influential people and institutions.
"Motorola counters that Apple's refusal to negotiate with it after rejecting its initial offer of a 2.25 percent royalty warrants injunctive relief; by opting not to take a license ex ante, it argues, Apple should lose the FRAND safe harbor. But Apple's refusal to negotiate for a license (if it did refuse—the parties offer competing accounts, unnecessary for me to resolve, of why negotiations broke down) was not a defense to a claim by Motorola for a FRAND royalty. If Apple said no to 2.25 percent, it ran the risk of being ordered by a court to pay an equal or even higher royalty rate, but that is not the same thing as Motorola's being excused from no longer having to comply with its FRAND obligations. Motorola agreed to license its standards-essential patents on FRAND terms as a quid pro quo for their being declared essential to the standard. FTC Statement on the Public Interest, supra, at 2. It does not claim to have conditioned agreement on prospective licensees’ making counteroffers in license negotiations."
The above paragraph is the very opposite of the German courts' application of the Orange-Book-Standard line to FRAND standards. In Germany, the patent holder doesn't even have to make an offer: he can just sue, and all that matters is whether the implementer of the standard made an offer that couldn't be refused without violating antitrust law. A middle ground would be to argue that FRAND negotiations come with obligations for both parties to act in good faith. But Judge Posner goes beyond and simply concludes that the implementer of the standard doesn't have any obligation other than ultimately paying a FRAND royalty.
I like this approach very much, but there's no guarantee that other judges and regulators will adopt it.
What's also very noteworthy about the above paragraph is that Judge Posner basically explains that being sued for damages is enough of a reason for infringers to negotiate rather than litigate. In a recent post I criticized a German ruling according to which a patent has no value unless the patent holder can enforce injunctive relief, which is intellectually just wrong. Judge Posner provides a perfect explanation as to why the denial of injunctive relief over FRAND-pledged patents is not going to incentivize infringement: the disincentive of possibly having to pay more, and of incurring litigation expenses, is more than sufficient to protect patent holders. At some point even German courts may start to figure this out -- maybe with a little help from the EU.
"Motorola argues further that deprived of the possibility of injunctive relief, it will not be able to extract a reasonable royalty from Apple. Suppose, hypothetically, that the maximum reasonable FRAND royalty would be $10 million. If Motorola therefore demanded such a royalty, Apple, knowing that litigation is costly, would refuse, and Motorola would accept a lesser amount. Of course litigation would also be costly for Apple, and this might induce it to pay the $10 million rather than fight. But the deeper objection to Motorola’s argument is that the 'American rule,' which with immaterial exceptions makes the winning party in a litigation bear his litigation costs rather than being able to shift them to the loser, does not deem damages an inadequate remedy just because, unless backed by a threat of injunction, it may induce a settlement for less than the damages rightly sought by the plaintiff. You can't obtain an injunction for a simple breach of contract on the ground that you need the injunction to pressure the defendant to settle your damages claim on terms more advantageous to you than if there were no such pressure."
The above paragraph focuses on the situation in the United States. Even in the U.S., where a prevailing litigant can hardly recover his expenses, Judge Posner thinks that economic parameter doesn't serve to justify injunctive relief over standard-essential patents. It follows from this that the denial of injunctive relief should be an even easier decision in "loser-pays" jurisdictions like Germany.
Judge Posner describes workarounds for some of Apple's patents
One of the various effects of Judge Posner's ruling is that he just outlined ways in which Android device makers could work around some of Apple's patents. It's key to consider that Judge Posner's workaround guidelines apply only within the context of his claim construction decisions. If the patent claims at issue are interpreted differently, then those proposed workarounds don't work. But his suggestions will be influential at any rate.
The most important suggestion relates to the "data tapping" ('647) patent, which is still at issue between Apple and HTC as well as one of the four patents over which Apple is seeking a preliminary injunction against the Samsung-Google Galaxy Nexus smartphone:
"[...] or inventing around the '647 patent by reprogramming Motorola's smartphones to avoid at least one claim limitation, for example by simply creating copies of the code that performs structure detection and linking for each particular program rather than using a common code module for all programs, because if there is no common code there is no 'analyzer server,' as required by the patent claim."
The proposed workaround might have the desired legal effect (of steering clear of further infringement), but replicating the relevant code in each app would not be enough because Android provides such code as part of its Linkify library (see Apple's claim charts). Google would have to throw out the Linkify library and provide app developers with a code segment to insert into its apps. That's possible, but comes with logistical issues.
As for the '949 (touchscreen heuristics) patent, that one is actually very difficult to work around, but in this particular litigation all that was at issue was the Kindle e-reader app.
Interestingly, Judge Posner didn't have a suggestion for how to avoid infringement of the '263 (realtime API) patent. But Judge Posner stresses that the '263 patent "is not a claim to a monopoly of streaming video!"
Distinction between imitation of entire technologies vs. infringement of specific intellectual property rights
Both parties failed to persuade Judge Posner of the idea that proving some exemplary patent infringements is a basis for awarding damages and/or injunctive relief based on the concept of larger-scale (alleged) infringements.
Judge Posner dismissed Motorola's suggestion that the first SEP that is shown to be infringed entitles it to pretty much all, or at least a large part, of a royalty for all of its patents essential to the same standard ("it only takes on bullet to kill" is what one of Motorola's expert reports submitted in various litigations says). I quoted in the previous section the part according to which Motorola argued that it wouldn't be practical to sue over all of those patents, or over 70 of them. But Judge Posner simply doesn't accept that argument.
He applied the same standard to Apple's theory of harm:
"Apple is complaining that Motorola's phones as a whole ripped off the iPhone as a whole. But Motorola's desire to sell products that compete with the iPhone is a separate harm--and a perfectly legal one--from any harm caused by patent infringement."
This is comparable to Judge Alsup's position in Oracle v. Google. He argued throughout that litigation that Oracle needed to base its claims on very particular patents and copyrights that had to be both valid and infringed in order to entitle Oracle to anything. Also, Judge Koh's denial of a preliminary injunction against four Samsung devices last December required Apple to show a "nexus" between the alleged infringements and the harm it claimed to have suffered. And the Federal Circuit did not overrule Judge Koh with respect to that particular line of thought, though it is a relatively exacting standard.
Judges Posner, Alsup and Koh all put a lot of pressure on parties to narrow their claims. But if they base their decision only on the specific IPRs that are at issue at the end of the case, their expectations to narrow cases actually expect parties to give up potentially legitimate claims. Those judges have different approaches to narrowing. Judge Alsup has the most radical one. He doesn't seem to worry at all about putting case management considerations above the interests of justice. Judge Koh is fairer: she allowed Apple to reassert its withdrawn claims in a separate proceeding. And Judge Posner didn't explicitly tell the parties to drop claims they considered valid: he clearly focused on the elimination of claims that he felt had no merit. That's why he issued a number of summary judgment decisions (unlike Judge Alsup, who simply wanted Oracle to drop claims even before there were any final decisions on validity and didn't make his own contribution to the winnowing process with summary judgments).
I'm just trying to point out that pressure to narrow and the requirement to prove each and every detail of a large-scale infringement are in an inherent conflict that must be resolved, and it isn't always resolved as well as it could be.
There's another, more strategic/political, implication of this exacting standard of "show me each and every infringement and prove a nexus between it and the sales you think you lost or will lose". There definitely is a protection gap: the IPR regime does not and cannot protect everything that even a majority of people might believe should be afforded protection.
Apple's "rip-off" claims are right. Judge Posner's decision doesn't prove that there was no "rip-off". He just cannot see that the patents that were shown to him, and the related infringement allegations and damages theories, substantiated a "rip-off" of the illegal kind. At the most he felt that Apple might have been entitled to a limited amount of money, if it had done a better job of proving economic harm.
But in all of those cases it becomes clear that there is a lot of intellectual achievement that does not get intellectual property protection, at least in the eyes of certain judges. Judge Alsup again took the most extreme position by holding a highly complex and creative set of APIs uncopyrightable (as opposed to holding it copyrightable but developing other theories that give third parties a right to implement those APIs in legitimate ways). Judge Posner is more specific about this. For example, he tells Apple that it cannot expect him to award remedies based on a "feel good" theory:
"Apple wanted me to allow into evidence 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."
Yes, Apple's unique look-and-feel has limits. Its design patents can be designed around. Its utility (technical) patents can be engineered around -- at least that's true of all the ones that have been deemed valid and infringed so far. Forcing its competition to be different, and to come up with its own innovations, is nevertheless a strategic priority for Apple, and it always will be.
Judge Posner's skepticism of the patent system in general and of some of Apple's claims in particular is well-founded. But he doesn't propose a better alternative for Apple, or for other innovators. Remember what I said above about how he wanted to contribute to peace but won't achieve that? He can criticize the patent system and Apple's patent lawsuits as much as he wants, but that still doesn't mean that everyone will just go home and stop fighting. The patent system is extremely imperfect to say the least. Copyright, in connection with software, is also problematic in different ways. Patent and copyright law were created a few centuries before the first computer, and have adjusted to new technological and commercial realities only in part -- and actually to a very dissatisfactory degree in some people's (presumably including Judge Posner's) opinion.
Still, Apple's leadership has to make business decisions under the framework that exists. Yes, there is no government-granted monopoly on a "feel good" concept. All there is boils down to intellectual property rights. In Apple's case, that means patents (technical patents and design patents). Judge Posner's ruling doesn't change the fact that Apple has to try to get as much leverage as possible out of the intellectual property rights that are available to it. The alternative would be unfettered copying, which would ruin Apple's margins and, still worse, bring an unstoppable erosion of its market share. Yesterday's ruling asks the right questions but doesn't necessarily give a helpful answer to each and every one of them (though I definitely agree with some of them, such as the part on FRAND). Apple is going to continue its quest for the answers it likes to get. It didn't get them from Judge Posner. It may get them from the Federal Circuit, or from German courts, or somewhere else.
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