Apples motion for an increase in the jurys damages award is DENIED. The Court declines to determine the amount of prejudgment interest or supplemental damages until after the appeals in this case are resolved.

Because the Court has identified an impermissible legal theory on which the jury based its award, and cannot reasonably calculate the amount of excess while effectuating the intent of the jury, the Court hereby ORDERS a new trial on damages for the following products: Galaxy Prevail, Gem, Indulge, Infuse 4G, Galaxy SII AT&T, Captivate, Continuum, Droid Charge, Epic 4G, Exhibit 4G, Galaxy Tab, Nexus S 4G, Replenish, and Transform. This amounts to $450,514,650 being stricken from the jurys award. The parties are encouraged to seek appellate review of this Order before any new trial.

The jurys award stands for the Galaxy Ace, Galaxy S (i9000), Galaxy S II i9100, Galaxy Tab 10.1 WiFi, Galaxy Tab 10.1 4G LTE, Intercept, Fascinate, Galaxy S 4G, Galaxy S II Showcase, Mesmerize, Vibrant, Galaxy S II Skyrocket, Galaxy S II Epic 4G Touch, and Galaxy S II T-Mobile. The total award for these 14 products is $598,908,892.

This jury goofed. The End. That's how it goes down in history. Because they did. And when you see something that you know is a mistake in a courtroom, you have a journalistic duty to call it like you see it, even if the whole world stands against you. That is what journalism is. And that is what Groklaw did. And now time has, once again, proven that Groklaw called it right.

I say sort of, because three times the brief, filed by Microsoft with EMC and NetApp, they say they take no position on whether or not Google infringed:

Although amici do not take a position on the ultimate question of whether the software packages at issue in this case are copyrightable and whether any copyright has been infringed, amici urge this Court (1) to hold that the district court's copyright analysis was fundamentally flawed and (2) to decide this case in light of the settled copyright principles discussed below.

This case tests the copyrightability of computer programs, specifically packages of source code that are part of the Java software platform used by third-party software developers to write applications for computers, tablets, smartphones, and other devices running Java.

Congress has determined that computer software is eligible for copyright protection. 17 U.S.C. 101. Copyright protects computer software in several important respects. It covers the literal lines of code that comprise software, generally preventing their reproduction or distribution without permission from the rightsholder. But copyright also covers certain non-literal elements of the software as well. For example, the "structure, sequence, and organization" of a software product -- above and beyond the 1s and 0s that make up the program at its literal level or the exact words of the human-readable source code -- can, in some instances, be protected by the copyright in the work. As a result, copyright infringement in a software case can occur even when the defendant did not copy the underlying developers' code, where the defendant has copied some other, non-literal element of the software subject to copyright protection.

Novell's arguments are clear and powerful. "A reasonable jury could find that Microsoft's conduct was anticompetitive because it harmed Novell, was not competition on the merits, and was reasonably capable of contributing significantly to maintaining Microsoft's monopoly power in the operating systems market," Novell writes. Nowhere, it says, does Microsoft defend Microsoft's conduct as competition on the merits. And Microsoft's brief neglected to mention to the appeals court, or respond to, the District Court's conclusion that a jury could have found Microsoft's justifications for its conduct "to be pretextual." Worse, Microsoft is asking the appeals court to confer immunity on it "for deception of competitors regardless of the effect on competition."

By withdrawing its support for namespace extension APIs, Microsoft destroyed Novell's economic viability, and it did it on purpose to harm a competitor. The Bill Gates email [PDF] proves it, they believe. The whole point of documenting APIs and releasing betas is to induce reliance, so Microsoft can't credibly argue that it didn't know this change on its part would impact Novell negatively.

And again, as in Novell's opening brief (p. 38, footnote 5), Novell references Microsoft using a "deceptive script" which it says is mentioned in the email thread in which a Microsoft employee reported to his company that WordPerfect appeared to be "OK" with the change. Novell says was used to justify the change and persuade companies like Novell that Microsoft had to make the change. (Cf. this Groklaw article and this email thread [PDF] for context.) I'm sure we'll hear more about this at oral argument. So if you attend the event, and I know some of you are trying to make arrangements to attend, please watch for this in particular.

And then Novell says Microsoft ignored a great deal of the evidence that favors Novell, and so did the District Court, but the applicable standard for summary judgment under Rule 50 is that the court was required to view the evidence in the light most favorable to Novell, which it failed to do. Microsoft also ignored evidence that its conduct harmed competition in the operating systems market, including evidence from binding Findings of Fact from the US v. Microsoft case, and the testimony and statements of Microsoft executives (cf. Groklaw). And finally, Microsoft disregarded applicable substantive law, Novell argues.

Does the government come and tell you, "You have to move out and abandon the house. Sorry for the loss of the value of your house, but that's life. The public interest comes ahead of your individual property rights."

Is that how it works?

Of course not. The government may be able, under certain circumstances, to tell you to move in order to build the highway, but it has to *pay* you reasonable compensation. You don't have to just gulp and swallow such a loss. Why? Because no one, not the government or anyone, has the right to rob you of your property rights. It's your house. You paid money for it, and if they take it away to benefit the larger good, you should at least be paid compensation.

What about taking away certain property rights from FRAND patent holders? Why is that any different than taking away a man's house? Patents, they tell us, are property, and patents come with certain property rights, such as the right to seek injunctive relief against willful infringers and the possibility of treble damages. If you take that away, without compensation, where is the fairness in that?

At the hearing, the presiding judge, the Hon. Lucy Koh, told the parties they have to narrow their cases against each other to 25 patent claims against 25 products, with more narrowing to come. And she asked if it would be wise to just table this case until the Federal Circuit rules on a pending appeal. Samsung told the judge it will, in fact, be offering a motion to do exactly that, but Apple piped up that it will oppose that motion.

I'm happy to tell you we had a volunteer in the courtroom again, the same Debra B. who told us about the February 14th hearing where the parties explained the technology of their various claims to her, and once again, we get more details about this hearing than we got from the media reports alone. For example, it's clear that Judge Koh has learned from the first Apple v. Samsung trial:

Koh suggested that she would not follow the pattern of the Apple-Samsung case held last summer with the parties superabundance of motions, filings, and efforts to expand the scope of the case. This is going to be a streamlined case, she said. "As this case is currently framed, I'm refusing it to go on. I am willing to let it simmer for five years.

So now we know.

The royalty Microsoft offered to pay is so low, you'd think Microsoft would be thrilled Motorola said yes -- 2 pennies per unit up to 10 million units, and 1 penny afterward, figures that Motorola accepts while stating clearly that it's not a FRAND rate in Motorola's eyes. Motorola earlier refused the offer. Why the change? And why is Microsoft going ballistic and whining to the judge [PDF] and to the FTC [PDF], telling the FTC that Motorola is violating the FTC's January order? Here's the part in Motorola's letter to the judge that seems to be causing Microsoft so much anxiety, and where you see GI, it means General Instrument Corporation, of which Motorola is a subsidiary the parent and GI the subsidiary [PJ: Sorry for the confusion.]:

Pursuant to German law, Microsoft owes GI the royalties specified in the license agreement as well as past damages to compensate GI for Microsoft's prior infringing use of GI's patents. See Exhibit B.

Past damages will be calculated in further proceedings in the German courts pursuant to German damages law.

Motorola recognizes that Microsoft appears to dispute that the Orange Book license is executed and enforceable in Germany. That issueas well as past damageswill be decided by the German courts in due course.

Under Federal Circuit Rule 26(b), appellee and cross-appellant Google Inc. (Google) moves for an extensionfrom the current due date of March 25, 2013 to the revised due date of May 23, 2013to file its combined Appellees Brief and Cross-Appellants Brief (Googles First Brief). Appellant Oracle America, Inc. (Oracle) does not oppose this motion and previously received an equivalent extension for its opening brief.

Yesterdays order concerns the terms of Googles license with the MPEG LA AVC/H.264 patent pool, which Microsoft claims are dispositive of the appropriate RAND rate for Motorolas H.264 patents.... Judge Robart has now allowed the parties to submit letter briefs of up to six pages by March 1 in light of certain novel arguments regarding the MPEG LA agreement that were apparently raised by the parties at the January 28 oral argument.

02/20/2013 - 1475 - Certification of Counsel Regarding Chapter 7 Trustee's Motion for Entry of an Order Authorizing Abandonment, Disposal, and/or Destruction of Property and Payment of Related Expenses (related document(s)1474) Filed by Edward N. Cahn, Chapter 7 Trustee. (Attachments: # 1 Exhibit A # 2 Exhibit B) (Tarr, Stanley) (Entered: 02/20/2013)

02/20/2013 - 1476 - HEARING CANCELLED/RESCHEDULED. Notice of Agenda of Matters Scheduled for Hearing. Filed by Edward N. Cahn, Chapter 7 Trustee. Hearing scheduled for 2/22/2013 at 10:00 AM at US Bankruptcy Court, 824 Market St., 6th Fl., Courtroom #3, Wilmington, Delaware. (Attachments: # 1 Certificate of Service) (Tarr, Stanley) (Entered: 02/20/2013)

02/20/2013 - 1477 - Order Authorizing Abandonment, Disposal, and/or Destruction of Property and Payment of Related Expenses (related document(s)1474, 1475) Order Signed on 2/20/2013. (SB) (Entered: 02/20/2013)

Microsoft has filed one, together with EMC Corporation, and NetApp, Inc. Scott McNealy has filed one with Brian Sutphin. Can McNealy be a witness for Oracle at trial, which he was [PDF], and also file an amicus brief? Well, he has. The Picture Archive Council of America, Inc. has filed one with the Graphic Artists Guild. Also there's one from the BSA. And finally Eugene Spafford, Zhi Ding, and Lee A. Hollaar have filed an amicus in support of Oracle. Hollaar seems to file a lot of amicus briefs.

So why do these entities and individuals care about this Java API case, do you suppose?