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Judge complains of too many patents in Apple case against Motorola

post #1 of 20
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Circuit Judge Posner has expressed dissatisfaction with the number of patents Apple is arguing against Motorola, asking the company to "winnow" its claims.

Apple originally brought 15 patent claims against Motorola, which itself had six patents it claimed Apple was infringing. Over the past month, the judge has thrown some patent claims out and both parties have voluntarily dropped claims "order to be cooperative and narrow the case," according to a report by Florian Mueller of FOSS Patents.

The patent claims "winnowing" has resulted in what appears to now be six claims by Apple and three by Motorola. All three of Motorola's, according to Mueller, have been "declared essential to certain standards," and are therefore encumbered by FRAND terms.

Apple claims Motorola isn't honoring is commitment to such "fair, reasonable and nondiscrininatory" licensing terms on the three patents, which relate to messaging, CDMA networking and a GPRS timing system. The company has previously raised concerns about Motorola and Samsung using FRAND patents in an attempt to monopolize markets, as patented standards can't be worked around.

Mueller noted that it's not yet clear which of Apple's patents are represented the six remaining active complaints, but he notes that they likely include '002 related to displaying status information (a claim also being brought against Samsung in a California case); '263, the realtime API patent tied to Andy Rubin's tenure at Apple prior to Android; '647 involving Data Detectors (below); '949 related to multitouch sensing, a patent that credits Steve Jobs and other patents related to operating system technologies that have played a role in ITC complaints.




Mueller notes "the strongest ones of those patents could give Apple major leverage against Motorola, especially if Motorola can't overcome Apple's FRAND defense."

Motorola has been losing money in the smartphone business even as Google prepared to acquire the company for $12 billion, ostensibly to obtain its patents to "defend Android," a curious idea given that the patents Motorola has brought against Apple so far have nearly all been FRAND encumbered patents with little potential for bargaining.

It appears more likely that Google sought to buy Motorola to preserve its status as the only significant mobile manufacturer to be exclusively backing Android, and among the few remaining licensees that hasn't already agreed to broadly license Microsoft's patents, a step that erases Android's main attraction as being "free" software and which tends to make paying for Windows Phone 7 more attractive as an alternative.

Potential unintended consequences of legal action

Were Apple to win a series of patent claims against Motorola related to core operating system features and user interface elements in Android, it would subsequently make it easier for the company to also go after other Android licensees and, at the same time, increase the interest in alternative mobile platforms such as WP7 and, potentially, HP's open source webOS or Intel and Samsung's Bada/Tizen.

In a series of Macintosh "look and feel" lawsuits brought by Apple in the late 80s targeting Microsoft Windows, HP's NewWave, DRI's GEM/1 and other products, Apple effectively suppressed the development of a variety of rival graphical computing environments on the IBM PC that Apple claimed were in violation of its copyright and trademarks.

Because Microsoft had manage to escape Apple's legal actions due to an agreement that was interpreted to give Microsoft broad rights to Apple's technology, Windows allowed PC makers to all converge upon a single platform which subsequently had no effective competition.

This suggests a similar outcome that could benefit Microsoft's WP7 today, if Apple managed to significantly hold back adoption of Android, and if phone makers could shift their efforts from Android to WP7 and still remain profitable, something that Nokia, LG and other significant WP7 partners have not yet accomplished.

It's also possible that Apple could win over and hold the majority of the phone market, just as it did with music players with the iPod and in tablets with iPad. Even without winning any sales bans on Android in the US, Apple has managed to take 70 percent of the smartphone sales of AT&T and Verizon in the last quarter, despite the availability of WP7 and other alternatives.

[ View article on AppleInsider ]
post #2 of 20
Actually, the judge complained that both sides had too many patents in the suit.

I don't think that a judge should be allowed to decide that. If a patent doesn't stand up then it should be removed. Otherwise, every patent should be allowed in the case. Who knows which will be the deciding factor?
post #3 of 20
It's not Apple's fault that Motorola chose to violate many patents and Apple should not be punished for defending itself.

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post #4 of 20
Quote:
Originally Posted by melgross View Post

Actually, the judge complained that both sides had too many patents in the suit.

I don't think that a judge should be allowed to decide that. If a patent doesn't stand up then it should be removed. Otherwise, every patent should be allowed in the case. Who knows which will be the deciding factor?

Exactly. This sounds more like a lazy judge than anything else.

"I don't want to have to do a bunch of work, nor do I care what you have patented, pare it down so I can hit the golf course after lunch."
post #5 of 20
Quote:
Originally Posted by melgross View Post

Actually, the judge complained that both sides had too many patents in the suit.

I don't think that a judge should be allowed to decide that. If a patent doesn't stand up then it should be removed. Otherwise, every patent should be allowed in the case. Who knows which will be the deciding factor?

Apple should insist on a change of venue or demand a new judge.

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post #6 of 20
Quote:
Originally Posted by SpamSandwich View Post

Apple should insist on a change of venue or demand a new judge.

Posner is a well-respected jurist. My guess is that he was concerned both parties were employing a "kitchen sink" strategy to obfuscate the real issues, and wanted them to come forward with the real points of contention.
post #7 of 20
Quote:
Originally Posted by F1Ferrari View Post

Exactly. This sounds more like a lazy judge than anything else.

"I don't want to have to do a bunch of work, nor do I care what you have patented, pare it down so I can hit the golf course after lunch."

Being familiar with Judge Posner and his work, I have to speak up and say that your comment is ignorant and offensive. He's one of the hardest working, most respected members of the federal judiciary.

http://www.law.uchicago.edu/faculty/posner-r

http://en.wikipedia.org/wiki/Richard_Posner

Perhaps you had in mind your own state judges?

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post #8 of 20
Quote:
Originally Posted by melgross View Post

Actually, the judge complained that both sides had too many patents in the suit.

I don't think that a judge should be allowed to decide that. If a patent doesn't stand up then it should be removed. Otherwise, every patent should be allowed in the case. Who knows which will be the deciding factor?

On the surface, it might be grounds for an appeal. A judge can't unilaterally decide to throw out complaints just because he thinks there are too many patents being cited.

However, I don't think that would work in this case. If Apple thinks that Motorola has infringed 9 of its patents and the judge says "I only want to hear 5 of them", Apple can always file a separate case for the other 4, so Apple or Moto are not being deprived of anything. Patents are not additive - the judge could actually investigate them one at a time and the end result shouldn't be any different.

Sounds like a move to try to keep the case manageable and get a decision soon enough that it will matter.
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post #9 of 20
Quote:
Originally Posted by jragosta View Post

... A judge can't unilaterally decide to throw out complaints just because he thinks there are too many patents being cited. ...

... Sounds like a move to try to keep the case manageable and get a decision soon enough that it will matter.

As a practical matter, do folks really think that this Apple-Motorola case is the only legal game in town and that the judiciary has unlimited amounts of time to deal with it? Any idea how many cases are currently listed on the Seventh Circuit docket? More than 15,000. Any idea how many judges serve on the Seventh Circuit? Ten, plus seven more on senior status.

Here are this court's operating procedures: http://www.ca7.uscourts.gov/rules/rules.htm#opproc

Individual complaints are consolidated all the time if they are essentially duplicative. What's important is that all of the legal issues significant to the matter are fairly presented and heard in open court so that justice is obtained.

If the plaintiff's or respondent's counsel have a real problem with being instructed to streamline their case, you can be sure that they will be heard from, so your ending comment is right on target.

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post #10 of 20
Quote:
Originally Posted by Kibitzer View Post

Being familiar with Judge Posner and his work, I have to speak up and say that your comment is ignorant and offensive. He's one of the hardest working, most respected members of the federal judiciary.

Perhaps you had in mind your own state judges?

No, he had Posner in mind. Key word is "sounds". Obviously, we don't know the judge like you lead us to believe you do.

The point is, if many of Apple's patents have been violated, then each violation ought to get a hearing.

If you take your new car in to remedy a long list of problems, and the repair guy at the dealer says, "Dude, you've got too many things on your list! You need to cut this list in half. Hey, we've only got 2 mechanics!" I think you might question the fairness (or even the legality) of it. Chill.
post #11 of 20
Quote:
Originally Posted by drandel View Post

If you take your new car in to remedy a long list of problems, and the repair guy at the dealer says, "Dude, you've got too many things on your list! You need to cut this list in half. Hey, we've only got 2 mechanics!" I think you might question the fairness (or even the legality) of it. Chill.

Comparing court cases to warranty car repairs is totally inapt and inept. Can you seriously imagine that a new car dealer today would dare to shortchange you on your warranty service by saying he didn't have the resources to resolve your issues? Get real.

I don't question the fairness or legality of case consolidation at all. Any lawyer will set you straight. And as to ignorant and mean-spirited insults against hard-working individual jurists - I'll stand up against that every time.

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post #12 of 20
Quote:
Originally Posted by Kibitzer View Post

Comparing court cases to warranty car repairs is totally inapt and inept. Can you seriously imagine that a new car dealer today would dare to shortchange you on your warranty service by saying he didn't have the resources to resolve your issues? Get real.

But these comments reflect some of the best legal minds in the country. These folks know *everything*: law, commerce, marketing, design, distribution, accounting, why, the list goes on and on!
post #13 of 20
Quote:
Originally Posted by Kibitzer View Post

I don't question the fairness or legality of case consolidation at all. Any lawyer will set you straight. And as to ignorant and mean-spirited insults against hard-working individual jurists - I'll stand up against that every time.

A company spends time, resources, and employees' hard work to come up with patentable innovations, and you're ok with those tossed by the wayside by a judge 'just because'? I'm sorry but I feel that if Apple has been granted valid patents for each of the complaints in this case, then each patent should be looked at for it's merit, validity, and if it's being infringed upon. To my knowledge, there is no limit on the number of patents a company can include in an infringement case, so why should the judge be allowed to willy-nilly toss out claims he doesn't want to hear?

If that's the attitude this judge has, he isn't as hard working as you present him. If he takes his judicial appointment seriously, he should WANT to hear these cases to uphold the integrity of the both the patent and the legal systems. If this judge were randomly throwing out murder, DUI, or assault charges in order to 'winnow' claims, would you still be as supportive of him?
post #14 of 20
Quote:
Originally Posted by umumum View Post

*none* of you know the judge

*none* of you are experts in this field

fanboy/fandroid, you know nothing, you don't count, stfu

actually, hang on, don't stfu, keep posting pompous pontification, it keeps you sadfucks occupied, away from the rest of us

But aren't you in here with us?

(Why does that 'Watchman' quote spring to mind when I say that?)
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post #15 of 20
Quote:
Originally Posted by melgross View Post

Actually, the judge complained that both sides had too many patents in the suit.

I don't think that a judge should be allowed to decide that. If a patent doesn't stand up then it should be removed. Otherwise, every patent should be allowed in the case. Who knows which will be the deciding factor?

It is standard practice for Judges to apply considerable pressure on both sides to reduce the number of patents to be decided before a jury. Don't forget that when the case goes to trial it goes before a lay jury who have to try and understand and decide about often highly technical evidence and arguments. Each patent almost has its own trial which may take many days, even weeks or months. If there are too many patents this can make a trial last many months,even years, if all the initial patents were allowed to go forward, wearing down and exhausting the jury.

Both parties tend initially to throw the kitchen sink at each other. Sometimes this may be to confuse. Other times one side may believe they have a strong patent, only to find the other side can effectively destroy their case on this patent in the the pretrial process with their own evidence and arguments. The Judge does his or her best to sort the wheat from the chaff and apply pressure on both parties to winnow down their patents to their strongest few, with most likelihood to succeed.

What has really surprised me has been just how weak Google's band of pirates' counterclaims against Apple have been. It appears that Samsung and Motorola, with Google behind them, have been misusing FRAND patents as a ploy to try to unlawfully apply pressure on Apple in breach of their agreements relating to their FRAND patents.

It seems to me this is a clear breach of anti-trust law and a prima face case of a cartel at work, with Google as the moving hand behind Motorola, Samsung and HTC. Under the terms of the takeover Google controls Motorola's litigation. This apparent misuse of FRAND seems to be an almost suicidal tactic by Google. After preliminary enquiries by the Commission, Samsung is now under formal anti-trust investigation by the EU relating to FRAND abuse. There now appears a real danger that Motorola and Google will fall into same investigation. This can have extremely serious consequences, because the EU can fine each company 10% of their global annual revenue - something which might be tempting to buttress the Euro! Google also has a long history of IP abuse. Worse still there is now talk of a possible investigation in the US regarding their monopolistic behaviour.

Another serious aspect for Google is that patent '263 ties Andy Rubin, head of Android, into the heart of both the Motorola and HTC cases, because he was an engineer working at Apple in the very same team which developed '263. If this patent is upheld it seems Rubin and Google cannot escape being found guilty of wilful infringements, which has the effect of an almost automatic injunction as well as well as triple damages. It is hard to imagine how Rubin could convince a jury that he was not aware of patent '263!

To make matters worse for Google, this same Judge Posner has recently ruled in another case in favour of Apple against HTC on the latter's main defence argument about their interpretation or meaning of "realtime" in patent '263. It will be interesting to see if Google/Motorola can come up with a new defence to ''263. If not this could have devastating effects on Google and all Android OEMs.

Florian Mueller explains in this link:

http://fosspatents.blogspot.com/2012...ey-patent.html
post #16 of 20
Quote:
Originally Posted by Secular Investor View Post

It is standard practice for Judges to apply considerable pressure on both sides to reduce the number of patents to be decided before a jury. ...

Excellent post. Thank you.

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post #17 of 20
Quote:
Originally Posted by SpamSandwich View Post

Apple should insist on a change of venue or demand a new judge.

Really? The judge just handed Apple a major victory in favorably defining the terms of one of Apple's patents. If the definition holds, Android will be in trouble. Plus Posner is one of the most respected and intelligent sitting judges in the Country. His opinions are repeatedly cited in law schools across the Country. Apple can't have a better judge.

Some of you guys don't seem to understand, the Judge is presiding over a jury trial. Juries are not comprised of patent experts, but regular people. Complex patents are not easy to understand. Accordingly, to many issues confuse juries. The judge isn't claiming Apple can't bring another action with the excluded patents. He just wants to narrow the scope of the lawsuit so that the issues aren't too complicated for a jury.
post #18 of 20
Quote:
Originally Posted by F1Ferrari View Post

If that's the attitude this judge has, he isn't as hard working as you present him. If he takes his judicial appointment seriously, he should WANT to hear these cases to uphold the integrity of the both the patent and the legal systems. If this judge were randomly throwing out murder, DUI, or assault charges in order to 'winnow' claims, would you still be as supportive of him?

The problem with your view is the Judge doesn't hear the case. A jury does. The Judge's job is to make sure the jury can do its job. Asking the parties to narrow the scope of the lawsuit is common. As another poster said, it is also common for parties to throw everything at the wall to see what sticks. Often, on its face, some patents are not relevant.


You just have to look at the Oracle versus Google matter to understand this fact. The judge in that case is the same one who ruled in Apple's favor against Psystar. Oracle and Google both have had to reduce the scope of their lawsuits.

For what is worth, judges often do toss out criminal charges when a prosecutor throws everything at the wall. Especially, when certain charges are duplicative. I wish judges would do it more because prosecutors often try to force settlements out of defendants by filing a plethora of charges designed to scare a settlement out of a defendant. Would you put your fate in the hands of a US jury (where there is no educational requirement) if you were facing 20 years in jail (even if you were innocent) when there was an offer on the table to plead to a much lessor offense and maybe only get probation?
post #19 of 20
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Originally Posted by Elian Gonzalez View Post

But these comments reflect some of the best legal minds in the country. These folks know *everything*: law, commerce, marketing, design, distribution, accounting, why, the list goes on and on!

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post #20 of 20
"*Sigh* I dont want to read all this bullshit.

Just give me one bullshit so that I can reject it"

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