Trends In Mobile And Consumer Electronics
Blackberry, Senior Licensing Counsel
Rolling Meadows, IL
Greenblum and Bernstein PLC, Of Counsel
I. Mobile Industry & Business Trends
The wide adoption of smartphones and tablets in recent years is undeniable. In the second quarter of 2013, the total global install base of smartphones and tablets is predicted to exceed those of PCs.1 Mobile is more than just the latest fad in tech innovation; it is fundamentally reshaping marketplaces, business models and operating models. This year, Yankee Group values the market for mobile and connected devices at U.S. $485 billion.2 By 2017, that number will have increased to surpass U.S. $919 billion—growing at a much quicker pace than previously thought.3 Mobile communication is continuing to replace traditional fixed communications across the world.4 This is evidenced by the fact that as of December 2012, 13 percent of all Internet traffic originated from mobile devices.5 Every business is largely embracing a variety of mobile initiatives that allows for increased productivity and effective engagement of customers.6
The introduction of LTE services along with the availability of improved video compression technologies have begun to address the bandwidth and image quality concerns to run advanced high-definition video applications on mobile devices. In addition, as the cost of Bluetooth and WiFi chipsets continues to drop, devices that typically did not have much intelligence have suddenly become capable of being networked through wireless means. Furthermore, several natural user interfaces such as voice and gesture are also creating new modes of user engagement. Society in general is trending towards connectivity everywhere and some form of computing embedded in every device around us.
Mike Brinker and Shehryar Khan of Deloitte Consulting LLP, in a recent report, have identified four forces that are taking shape, defining the new face of mobile: Convergence, Ubiquity, Transparency, and Extending Reality. Convergence implies having a centralized, connected, always-with-us hub for services, information, entertainment, and convenience across our personal and professional lives. Ubiquity means virtually everything and everyone we interact with will most likely soon have the potential to be wired by containing embedded sensors and mobile technologies that allow new and advanced tracking of and interaction with physical things. Transparency involves unlocking new use cases for commerce, back-office, and personal lives by making different operations a user-free interaction. Extending reality involves moving out of games, military and scientific environments into the mainstream—meaning being able to read, hear or feel being delivered based on how you gesture, move, and talk that is sensitive to location and context, with information you need or want in a format that can adapt to the environment at hand.7 Although, the concept of "Extending Reality" has been around for a little over a decade now, it sure seems that it has started rapidly approaching a tipping point in the last few years.
II. IP Strategy Concerns for a Converged Mobile Space
Smartphones, tablets and other mobile devices have essentially come to the market due to the con- vergence of different technologies including various radio standards (such 3G, 4G, LTE, etc.), audio and video codecs, low power processors and transceivers, media players, L iquid Crystal Display (LCD), digital camera modules and a plethora of mobile applications that are capable of running on such mobile computing platforms. Condensing various complex technologies into a small form factor device leads to making the device open to a greater number of infringement claims from IP owners of individual technologies. This is further evidenced by the increased patent litigation that the mobile and consumer electronics industry has seen in recent years. Additionally, the landscape of the various parties involved in high-tech patent licensing and litigation has also changed.
A. Offensive Patent Aggregators & Patent Privateering
Recently, we have seen a rise in the number of offensive aggregation entities formed by patent privateers. In the current patent ecosystem, large operating companies accumulate patents in part for defensive purposes. These companies are typically unwilling to use their patents in certain strategic fashions because they fear that the same will be done to them. These patent portfolios help assure patent peace because they assure that any strategic conduct will be met with a similar response—often known as "mutually assured destruction." However, more recently operating companies have begun to look at a so-called privateering model to monetize their pat- ent portfolio without directly engaging their patents against other operating companies. According to David Balto8 an antitrust attorney, "Privateering is the practice by which established operating companies arm trolls with patents and deploy them to engage in expensive, incessant litigation against competitors. This Trojan horse approach allows companies to accrue the benefits of the egregious troll conduct without incurring any of the risks. And more often than not it is used as a competitive weapon to try to raise costs and dampen competition from rival operating companies."
Some legal scholars have argued that outsourcing of patent litigation might "form part of a scheme to maintain or obtain monopoly power" in violation of Section 2 of the Sherman Act which prohibits mo- nopolization.9 A plaintiff would have to prove that transfers to patent trolls are a part of an exclusionary strategy to obtain or maintain monopoly power by raising rivals costs.10 The first part of the strategy is to create patent-holdup by making FRAND commitments to get patents into a standard and then evading those FRAND commitments through transfers to patent trolls. The second part of the strategy is to raise licensing fees by arming patent trolls that have no incentive to negotiate license rates because they have no risk of patent counter-suits or injury to their reputation. If proven, a private plaintiff could receive an award of treble damages and the government can secure injunctive relief.11
Privateering allows operating companies to evade reputational constraints to raising rivals' costs and FRAND or other licensing commitments, and provides a method to strategically outsource to Patent Assertion Entities (PAEs) as a hindrance to rivals. Some of the recent examples include the patent transfers from Nokia and Microsoft to MOSAID and that from Ericsson to Unwired Planet. In the MOSAID transaction, Microsoft and Nokia orchestrated a transfer of 2,000 of Nokia's patents, 1,200 of which were standards essential patents (SEPs) with FRAND commitments, to MOSAID for a nominal fee. Nokia also later transferred portions of its SEP portfolio to PAEs such as Sisvel and Vringo. Transfers like these typically lead to a royalty stacking problem to rivals of such transferors.
B. Defensive Patent Aggregators & Patent Defense Service Providers
Several defensive entities that enable operating companies to mitigate patent risk from Non-Practicing Entities (NPEs) and Patent Assertion Entities (PAEs) have formed over the last few years. Some examples of such entities include the following:
Rational Patent Exchange (RPX):12 RPX launched in 2008 has grown to over 150 member companies and provides risk mitigation and cost reduction for any company experiencing NPE litigation. RPX members pay an annual fee (scaled to reflect the size of the member company) that is used to acquire and clear high-risk patents from the open markets and remove members from active litigations.
Allied Security Trust (AST):13 AST, launched in 2007, allows member companies to monitor for high technology patents available in the secondary market and provides a system for collaborative purchasing of such assets.
Open Innovation Network (OIN):14 OIN, launched in 2005, provides a fully paid-up royalty free license to OIN's defensive patent pool in exchange for a commitment to forbear litigation around Linux and to cross-license its own patents to other members. OIN holds over 400 U.S. patents and applications and has nearly 600 licensees that are part of its growing com- munity of entities committed to patent non-aggression in open source and Linux.
Unified Patents: 15 Unified Patents, launched in early 2013, reduces the risk and cost of NPEs on behalf of companies in specific technology areas and uses annual subscription fees to proactively defend against NPE activity through purchase and re-examination of patents. Rather than encourage NPEs through settlement, Unified deters or eliminates future NPE activity, thereby reducing NPE risk and cost.
Syndicated Patent Acquisition Corp (SynPat):16 SynPat, launched in early 2013, provides a patent acquisition syndication mechanism that allows companies to acquire licenses to high-risk-patents. License cost to client is SynPat's purchase price divided by the number of clients in each buying group. SynPat does not have a membership requirement and as a result any operating company can take part in a syndicated acquisition of patents.
Patronus:17 Patronus, launched in 2012, provides IP- related services to operating companies, particularly those subject to lawsuits from NPEs. Patronus seeks to combine the latest developments in data analytics with new opportunities created by the America Invents Act. Patronus Patent Tracking Service, which is currently in beta testing, uses advanced analytics to identify those patents and applications most likely to be litigated and licensed.
III. Legislation Against Trolls
In the United States, patent litigation that is tradi- tionally governed by federal law has become quite a nuisance in some instances that state officials have started looking for ways to address the problem. Recently, Vermont and Nebraska have begun using state law to shield local businesses from frivolous lawsuits by patent holders who engage in "baseless harassment" that ends up being costly and destructive litigation. Vermont, a state having a history of political activism by companies, has emerged as a hotbed of anti-troll activism. Vermont's legislation provides the recipient of a "bad faith" accusation of patent infringement the right to counter-sue in state court. The legal theory being that such bad faith accusations are a violation of Vermont's consumer protection laws.18
Although currently no specific definition of bad faith is offered, the law offers several criteria that a judge can use to determine whether a threat was made in bad faith. Some of the possible
signs of bad faith include a lack of specificity about an alleged infringement, demands for excessive licensing fees, and unreasonably short deadlines for payment. Firms that do not themselves use the technology claimed by the patent are likely to be more vulnerable to accusations of bad-faith litigation.
Critics may argue that the legislative push against patent trolls will fail due to preemption, the legal principle that bars states from interfering with the enforcement of federal law. However, this might not be entirely true because federal courts have generally allowed states to police bad-faith patent assertions, but only if the state courts apply the same legal stan- dards that would apply in federal courts. If a patent is obviously invalid or plainly not infringed, then an accusation of bad faith is likely to prevail against the patent holder. However, in situations where the pat- ent is stronger in terms of validity and a clearer case of infringement is shown, then the stricter federal standards may work in the patent holder's favor.
The idea of using state consumer protection law against patent trolls could spread to additional states in the coming months. If the other forty-eight states follow Vermont and Nebraska's lead, it could make the legal system much less hospitable to nonpracticing entities (NPEs).
IV. U.S. Courts are Addressing FRAND Related Issues
A. Microsoft v. Motorola (W.D. Wash, No. C10-1823)
This is an important case because it is the first decision that sets a framework for determining "fair, reasonable, and non-discriminatory" (FRAND) royalty; and provides guidance for calculating the value of a Standards Essential Patent (SEP), affecting (1) SEP holders and potential licensees negotiating FRAND licenses; and (2) patent holders deciding whether to declare a patent essential to a standard.
The case involved Motorola's patents covering IEEE's 802.11 (WiFi) standards and ISO/IEC's and ITU's H.264 video codec standards. Motorola offered to license patents to Microsoft at a proposed royalty of 2.25 percent of the end product (i.e., each Xbox 360, PC/laptop or smartphone implementing the standard). Microsoft did not take a license, sought declaratory relief that Motorola breached its FRAND obligations to the Standards Development Organizations (SDOs), and Motorola sued Microsoft for patent infringement. On April 25, 2013, Judge James L. Robart issued a 207 page opinion. The Judge stated that to decide whether Motorola's opening offers were in good faith, a fact-finder must be able to compare them with a reasonable RAND royalty rate and because more than one rate could conceivably be RAND, a reasonable royalty range (Order p. 5). A bench trial was held from November 13, 2012-November 20, 2012 to determine (1) a RAND royalty range for Motorola's Standards Essential Patents (SEPs) and (2) a specific RAND royalty rate for Motorola's SEPs. Testimony from 18 witnesses was taken.
The Court's analysis is separated into six parts:
- First, the court introduces the parties and their relation to one another;
- Second, the court provides background on standards, SSOs and the RAND commitment;
- Third, the court develops a framework for assessing RAND terms;
- Fourth, the court analyzes the H.264 Standard and Motorola's H.264 SEPs and their importance to Microsoft's standard-using products;
- Fifth, the court analyzes the 802.11 Standard and Motorola's 802.11 SEPs and their importance to Microsoft's standard-using products; and
- Sixth, determines the appropriate RAND royalty rate for Motorola's SEPs.
The Court applied a modified Georgia–Pacific analysis to account for the purpose of the RAND commitment. The court stated that the owner of an SEP is under the obligation to license its patents on RAND terms, whereas the owner of a patent uncommitted to RAND has monopoly power over its patent and may choose to withhold licensing. The court stated further that the hypothetical negotiation almost certainly will not take place in a vacuum: the implementer of a standard will understand that it must take a license from many SEP owners, not just one, before it will be in compliance with its licensing obligations and able to fully implement the standard. This methodology is based on a conventional Georgia-Pacific patent royalty analysis, as modified to give substantial weight to royalty stacking, relative value and public interest considerations.
"Economic Guideposts" for assessing RAND terms: Beyond the actual RAND royalty rate determinations, this order is also important for the precedent it sets in how to determine RAND terms for a patent portfolio. Judge Robart lays out what he terms several "economic guideposts":
- A RAND royalty should be set at a level consistent with the SSOs' goal of promoting widespread adoption of their standards.
- In the context of a dispute concerning whether or not a given royalty is RAND, a proper methodology used to determine a RAND royalty should therefore recognize and seek to mitigate the risk of patent holdup that RAND commitments are intended to avoid.
- Likewise, a proper methodology for determining a RAND royalty should address the risk of royalty stacking by considering the aggregate royalties that would apply if other SEP holders made royalty demands of the implementer.
- At the same time, a RAND royalty should be set with the understanding that SSOs include technology intended to create valuable standards... . To induce the creation of valuable standards, the RAND commitment must guarantee that holders of valuable intellectual property will receive reasonable royalties on that property.
- From an economic perspective, a RAND commitment should be interpreted to limit a patent holder to a reasonable royalty on the economic value of its patented technology itself, apart from the value associated with incorporation of the patented technology into the standard.
The court examined the importance of Motorola's H264 SEPs to the H.264 Standard and to Microsoft's products. Court concluded that 14 of the 16 Motorola H.264 SEPs are directed only to interlaced video. The court concluded that (1) interlaced video is becoming less prevalent in the marketplace; (2) little evidence suggests that Microsoft products often encounter interlaced video; (3) and Motorola demonstrated that support for interlaced video in coding tools is important to Microsoft so that its products will seamlessly play any video encountered by users. The court determined that Motorola's H264 SEPs provide only minor importance to the overall functionality of Microsoft's Windows product. The court determined that Motorola's H264 SEPs provide only minor importance to the overall functionality of Microsoft's Xbox product. The court examined the importance of Motorola's 802.11 SEPs to the 802.11 Standard and to Microsoft's products.
Calculating the RAND royalties, the Court held:
- The RAND royalty rate for Motorola's H.264 SEP portfolio is 0.555 cents per unit; the upper bound of a RAND royalty range for Motorola's H.264 SEP portfolio is 16.389 cents per unit; and the lower bound is 0.555 cents per unit. This rate and this range are applicable to both Microsoft Windows and Xbox products. For all other Microsoft products using the H.264 Standard, the royalty rate will be the lower bound of 0.555 cents.
- The RAND royalty rate for Motorola's 802.11 SEP portfolio is 3.471 cents per unit; the upper bound of a RAND royalty range for Motorola's 802.11 SEP portfolio is 19.5 cents per unit; and the lower bound is 0.8 cents per unit. This rate and this range are applicable to Microsoft Xbox products. For all other Microsoft products using the 802.11 Standard, the royalty rate will be the low bound of 0.8 cents.
Royalty rate estimated: Initially, Motorola had sought from Microsoft as much as $4 billion a year for use of its standard, essential wireless and video patents, while Microsoft argued its rival deserved about $1 million a year. Judge Robart decided that appropriate payment was about $1.8 million.19
B. Apple v. Motorola (N.D. Illinois, Eastern Division, No. 1:11-cv-08540)
The parties filed patent infringement lawsuits in October 2010 after prior licensing negotiations failed. Some of these infringement actions were consolidated in a case before Judge Posner. Apple asserted Motorola infringed claims of four nonstandard- essential patents, while Motorola asserted Apple infringed claims of one patent that was essential to the Universal Mobile Telecommunications Standard (UMTS, a 3G cellular standard). As the trial date approached, Judge Posner excluded all of the parties' respective expert testimony on damages. Since neither party could prove an entitlement to damages, Judge Posner tentatively canceled the jury trial, finding that it would make little sense to hold a jury trial on infringement liability if a party could not receive relief. However, he allowed the parties to submit further briefing, including relating to the potential for equitable remedies such as injunctive relief. Because Motorola asserted an SEP that was encumbered by a FRAND licensing commitment, Judge Posner specifically requested that Motorola address the bearing of FRAND on the injunction analysis.20
In his opinion, Judge Posner found that neither Motorola nor Apple was entitled to damages or an injunction, and dismissed the case with prejudice. In addressing Motorola's damages claims, he set forth a clear opinion of what he considers to be the proper way to determine a reasonable royalty for SEPs:
"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."
Judge Posner ruled that Motorola could not obtain damages for any infringement of its asserted standardessential patent because Motorola did not provide evidence for calculating a royalty consistent with the above framework.
Additionally, with regard to injunctive relief, Judge Posner similarly found that Motorola's FRAND commitment precluded such relief:
"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?"
Apple and Motorola have appealed Judge Posner's dismissal of their respective cases to the Federal Circuit (Docket Nos. 2012-1548, -1549). As this case and similar cases go through the appeals process, more to using SEPS to obtain an injunctive relief, as well as finding a methodology for calculation of a reasonable royalty.
In re Innovatio IP Ventures, LLC21
Plaintiff and patent-owner Innovatio IP Ventures, LLC ("Innovatio") had sued a number of entities including coffee shops, restaurants, hotels, supermarkets, large retailers, transportation companies, and other commercial users of wireless internet technology located throughout the United States. Innovatio alleged that the users provide wireless internet access to their customers or use it to manage internal processes, and by doing so infringe various claims of twenty-three patents owned by Innovatio. Judge James F. Holderman in Chicago (Northern District of Illinois) largely adopted Judge Robart's approach, and in at least one respect—the royalty base—he actually took a licensee-friendlier approach, focusing completely on the price of WiFi chipsets because the patent holder failed to convince him of a royalty based on the price of an entire end product.22
Numerically, Innovatio IP Ventures, LLC, a patent assertion entity that has sued numerous defendants throughout the United States, is deemed entitled to a per-unit royalty of "9.56 cents for each Wi-Fi chip used or sold by the Manufacturers in the United States, subject to the terms of the patents, the applicable statute of limitations, and a finding of infringement for a license to its portfolio of 19 patents essential to the IEEE 802.11 (WiFi) standard. This is a victory for the manufacturers whose products are actually at issue in this case, such as, Cisco Systems, Motorola Solutions, SonicWALL, Netgear, and Hewlett-Packard. According to the order, "Innovatio's proposed method, for example, would have resulted in royalties on average of approximately $3.39 per access point, $4.72 per laptop, up to $16.17 per tablet, and up to $36.90 per inventory tracking device (such as a bar code scanners)." Based on the non-weighted average of those four examples of $15.30, this means Innovatio got 1 percent less of what it wanted.
Toward the end, Judge Holderman's ruling explains why the 9.56 cents per unit Innovatio is (subject to the conditions quoted further above) entitled to "is approximately three times Judge Robart's [F]RAND rate of 3.471 cents per unit." There's a reason for this difference. Judge Robart concluded that Motorola's patents were only of minimal value to the standard, [...] whereas the court here has found that Innovatio's patents are of moderate to moderate-high importance to the standard. A multiplier of about three is a reasonable difference between the two royalties to account for the greater importance of lnnovatio's patents to the 802.11 standard."
There's a clear and strong trend in U.S. courts toward rationality in connection with SEP royalty rates. Conversely, irrational demands fail consistently these days.
Impact of these decisions—With standardization of increasingly complex technology becoming more widespread in mobile and consumer electronics, decisions regarding current and potential standardessential patents will be increasingly important to a company's intellectual property strategy. Judge Robart's decision sets forth the first ever framework to setting a FRAND royalty. Only time will tell if other courts approve of and adopt Judge Robart's framework. For patents already declared standard essential, the patent holder and potential licensees can refer to Judge Robart's analysis when making initial license offers and negotiating FRAND licenses. Finally, companies holding patents that could potentially be declared standard essential can look to the court's decision to guide their decision-making process when determining whether to declare them essential and subjecting them to a FRAND obligation.
V. U.S. President Vetoes ITC Decision
On August 3, 2013, the White House invoked a 'veto' perogative and overturned a decision by the International Trade Commission that would have barred Apple Inc. from importing some older iPhone and iPad models.23
In his letter, the U.S. Trade Representative (USTR) told the ITC Chairman that he had substantial concerns about owners of standard-essential patents, such as Samsung Electronics, in this case, using the ITC to engage in 'hold up' obtaining a higher price for use of a patent because of the inclusion of its related technology in the standard.
The last time that this reversal option was invoked under Section 19 U.S.C. §1337(j),24 was under President Ronald Reagan.
The Patent, Trademark and Copyright Journal (PTCJ) correctly notes that the president's reversal in cases similar to this could be a serious blow to SEP holders' access to injunctions, after two highly publicized court cases have concluded that monetary damages are the more appropriate—and perhaps now the sole remedy. The letter did not go so far as to suggest that the ITC should not hear such cases or that it should be faulted for hearing this case. Instead, the letter provides examples of circumstances where an ITC exclusion order might be appropriate, and called on the ITC to investigate 'relevant factors' early in its review in future cases. One such factor is 'hold-out,' the prospective licensee's refusal to negotiate a reasonable royalty with the SEP holder.
The letter from U.S. Trade Representative disagreed with the position taken by the ITC and cited the relevance of the public interest factors to SEP and FRAND analysis, without either endorsing or criticizing the rest of the commission's judgments.
The letter relied extensively on the January 8 joint policy statement issued by the Department of Justice's Anti-trust Division and the U.S. Patent and Trademark Office. According to USTR, this "Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments": expresses substantial concerns which I strongly share, about the potential harms that can result from owners of [SEPs] who have made a voluntary commitment to offer license SEP's on [FRAND] terms…, gaining undue leverage and engaging in patent 'hold-up,' i.e., asserting the patent to exclude an implementer of the standard from a market to obtain a higher price for use of the patent than would have been possible before the standard was set, when alternative strategies could have been chose. At the same time, technology implementers also can cause potential harm by, for example, engaging in 'reverse hold-up' ('hold-out'), e.g., by constructive refusal to negotiate a FRAND license with the SEP owner or refusal to pay what has been determined to be a FRAND royalty.
Nevertheless, the Trade Representative went on to state that an exclusion order may still be an appropriate remedy as well when a putative licensee is not subject to the jurisdiction of a court that could award damages. He urged that the commission in the future develop a factual record from the onset of each proceeding involving SEP on "the presence or absence of patent hold-up or reverse hold-up."
VI. Mobile Patent Wars Have Gone Global
Over the past decade, patent infringement suits and countersuits are no longer being initiated solely in U.S. district courts or the U.S. International Trade Commission (ITC). Instead, they are also simultaneously being brought in forums across Europe and Asia. This is typified by the so-called "smartphone patent wars," including, most recently, Apple's ongoing worldwide battle with Samsung over the parties' competing smartphones and tablets.25
Filing patent infringement suits against an alleged infringer in more than one jurisdiction provides the patentee with major strategic advantages. However, a successful global patent litigation campaign requires the careful selection of intellectual property (IP) to use, as well as complex strategic planning that takes into account the differences between key jurisdictions in timing, procedure and substantive patent law.
Foreign patent infringement awards tend to be much smaller than that available in the U.S. Enhanced damages are not common outside of the U.S. and are not available in some key jurisdictions, such as Germany and Japan. Injunctive relief that can ban imports or sales in a given country is also available as a remedy across jurisdictions. Moreover, although this practice is controversial and may be curtailed in the future, the Dutch courts have historically issued cross-border injunctions in IP cases. This greatly broadens the potential impact of an infringement decision in the Netherlands.
European customs proceedings can also be used as a powerful and cost-efficient tool for patentees to block infringing goods from the European Union. In 1999, the European regulations were broadened to include patents as a class of IP that the patentee can use to block importation of infringing products. 26 However, the utility of customs proceedings is limited, because the detained goods' owner can obtain their release by paying a security sufficient to protect the patent owner's interests.
- See Mary Meeker, 2012 Internet Trends, http://kpcb.com/insights/2012-internet-trends (May 30, 2012), Slideshare.
- See Boris Metodiev et al., Yankee Group's Market Vision Report. Mobile and Connected Devices: A Market Moving at the Speed of Light, July 9, 2013.
- Yankee Group predicts "the drivers of growth during the next two to three years will include exploding machine-to-machine opportunities, new entrants in the mobile OS wars, surging popularity of tablets, OEMs recognizing the potential of emerging markets and enterprise service providers working to solve the Bring Your Own Device (BYOD) puzzle. See Yankee Group's Market Vision Report titled "Mobile and Connected Devices: A Market Moving at the Speed of Light," July 9, 2013.
- Google's YouTube is now delivering 25 percent of its content to mobile devices and the figure is likely to rise in tandem with mobile broadband subscriptions. In Korea, for example, which has 91 mobile broadband subscribers for every 100 people, You- Tube's mobile delivery is closer to 50 percent, according to Shiva Rajaraman, YouTube's director of product management. See Tofel, K., Futureof mobile: 5 takeaways from Mobilize 2012. Retrieved September 7, 2013 from http://gigaom.com/2012/09/24/future-of-mobile-5-takeaways-from-mobilize-2012/.
- See Mary Meeker, 2012 Internet Trends, http://kpcb.com/insights/2012-internet-trends (May 30, 2012), Slideshare.
- As of September 2012, Square is processing $8 billion on an annualized basis, up from $1 billion a year ago; and 35 million Americans have completed purchases using Square. See Tofel, K., Future of mobile: 5 takeaways from Mobilize 2012. Retrieved September 7, 2013 from http://gigaom.com/2012/09/24/future-of-mobile-5-takeaways-from-mobilize-2012/.
- See Brinkler, M and Khan, S. Mobile Only (and beyond),2013 Technology Trends–Disruptors. Retrieved September 8, 2013 from https://documents.deloitte.com/techtrends2013.
- David Balto is a former policy director of the Federal Trade Commission, attorney-adviser to Chairman Robert Pitofsky, and antitrust lawyer at the U.S. Department of Justice.
- See http://www.abajournal.com/mobile/mag_article/small_companies_pick_up_the_cost_of_patent_privateering_litigation.
- See http://www.patentlyo.com/patent/2013/06/guest-post-on-using-the-antitrust-laws-to-police-patent-privateering.html.
- See http://www.ropesgray.com/~/media/Files/arti-cles/2013/04/Antitrust-Attacks-on-Patent-Assertion-Entities.pdf).
- See http://www.leg.state.vt.us/docs/2014/Acts/ACT044.pdf.
- "Microsoft gets upper hand in first Google patent trial." See http://www.reuters.com/article/2013/04/26/us-microsoft-google-trial-idUSBRE93P0BA20130426.
- See http://essentialpatentblog.com/wp-content/uploads/2012/12/12.06.22-D.E.-1038-Order-and-Opinion-of-June-22-2012.pdf.
- See http://www.scribd.com/doc/173132403/13-10-03-Inno-vatio-v-Mult-Def-WiFi-Patents-FRAND-Determination.
- See http://www.fosspatents.com/2013/10/federal-judge-determines-19-wifi.html.
- See http://online.wsj.com/article/SB10001424127887324136204578646192008412934.html.
- See http://www.justice.gov/civil/docs_forms/C-IP_19usc1337.pdf.
- See http://www.economist.com/blogs/babbage/2011/12/intellectual-property-and-mobile-devices.
- See http://www.arelaw.com/downloads/ARElaw_PatLit_Mapping_PracticeNote.pdf.