Just when we thought it was over, Motorola and Apple are heading back to the courts. This time it is to Appeal a ruling
by Judge Posner last month. According to FossPatent
, Apple and Google subsidiary Motorola Mobility have both decided to appeal every single decision that Judge Posner made that wasn’t in their favour.
Mueller reports, “When Judge Posner dismissed an Apple v. Motorola Mobility
patent infringement lawsuit in Chicago about a month ago, I analyzed his decision in detail
and agreed with him in many ways, though I also predicted that the parties would appeal — which they did yesterday — and warned that the Federal Circuit, which is quite patent-holder-friendly, might
reverse parts of it. Actually, given the large number of claims at issue in that action and the fact that the Federal Circuit reverses at last part of an appealed ruling in more than 40% of all cases, it would be a statistical anomaly if each and every one of Judge Posner’s decisions was affirmed. I believe the FRAND part of the decision
is much more robust, thus more likely to be affirmed, than the part relating to Apple’s claims. Not only is it extremely well-reasoned but Judge Posner is much more of an expert in antitrust law than in patent law. He volunteered to preside over this case because he “enjoys” patent cases, and was sitting on a trial court “by designation”, but as an appellate judge he never gets patent cases because they are all appealed to the Federal Circuit in Washington DC.”
Mueller continues, “One possible outcome — and it’s not too unlikely — would be for the Federal Circuit to determine that the parties should have been given more than one bite at the apple as far as their damages claims are concerned. Judge Posner’s criticism of the parties’ damages reports was well-reasoned as far as I can see, but he could have given the parties the benefit of his guidance as opposed to basically saying, “you had your chance to do it right and failed, tough luck for you”. By contrast, Judge Alsup (who was not a particularly plaintiff-friendly judge) gave Oracle two chances for a do-over of its damages claims against Google. And while a complaint is a different type of filing than a damages report, I think Judge Sabraw in the Southern District of California did the right thing by telling Apple how to fix its Qualcomm-related patent exhaustion complaint against Motorola. It’s in the interest of justice that parties get guidance from the court to state their claims, unless it can be ruled out that there is any merit to those claims (which was not the case in the Chicago action, where Judge Posner based his dismissal of Apple’s claims only on “failure of proof”, not on a definitive absence of merit).”
This is a clear sign that there wouldn’t be a let up in patent lawsuits soon.
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