U.S. Magistrate Judge Paul Grewal, Northern District of California (Jason Doiy / The Recorder)
SAN FRANCISCO — As it approaches trial in San Jose federal court, a suit over Apple technology that slices up streams of video data may itself be suffering death from a thousand cuts.
Tel Aviv-based Emblaze Ltd. has sued Apple Inc. over its HTTP Live Streaming technology, which Apple uses to improve audio and video streaming in iPhones, iPads and other mobile devices. U.S. Magistrate Judge Paul Grewal, who is presiding over the case, has compared the technology to the Veg-o-Matic once touted on late-night TV for slicing and dicing. “But rather than carrots or celery, this contraption chops up streams of data for upload and download,” the judge wrote in an order earlier this year.
The U.S. Supreme Court cut into a big chunk of Emblaze’s claims with its June 2 ruling on induced infringement in Limelight Networks v. Akamai Technologies. And on Wednesday, Grewal pared Emblaze’s theory of damages, excluding evidence of licenses or license demands from Apple’s litigation with Motorola and Samsung. Emblaze will, however, be allowed to admit publicly available information about standards-essential licenses on video compression technology.
Grewal also granted Apple’s request to prevent what it calls “Apple bashing” by Emblaze expert Catherine Lawton, including her contention that Apple has “turned into paranoid security Nazis.”
“This is an easy call,” Grewal wrote. “Lawton will not be permitted to engage in such emotional appeals.”
The Supreme Court ruled in Limelight that all steps in infringement of a method claim must be attributable to a single party. Because third parties typically provide the video content that is streamed on Apple devices, Emblaze conceded eight of its 12 method claims. But it argued that the remaining four should go before a jury, because expert witness Vijay Madisetti had offered “parallel analyses” of those claims, one that would survive Limelight and one that may not.
Grewal agreed, though he didn’t sound enthused about Emblaze’s chances on these claims. “Perhaps this hedging will expose Madisetti in cross examination. But that is Emblaze’s problem, not Apple’s,” he wrote in a June 18 order. “In any event, Apple can examine his theories and the jury can assess whether they credit his opinion.”
Emblaze also has been advancing 10 apparatus claims that are not affected by Limelight. The company, which is represented by Cozen O’Connor, Davis Wright Tremaine and two other firms, is scheduled to present a narrowed set of claims Thursday, with trial set to begin Friday.
Apple is represented primarily by DLA Piper and Greenberg Traurig.
Grewal’s order on damages Wednesday had something for both sides. Lawton will be allowed to construct a hypothetical negotiation based on all of the Apple products that infringe Emblaze’s patent, not just those products that directly infringe.
On the other hand, Grewal forbade Lawton from referring to Apple’s gross profit margins following the introduction of HTTP Live Streaming as a “starting point” for the negotiation. That, the judge said, is “plainly and nothing more than a big number used to justify a small number.”
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