First off, neither of the cases that you cite are "on point". Moreover, nobody here has seen fit to discuss the scope of litigation of, and between, Apple and various Android OS implementations (something I'll address after discussing your two case citations).
I also want to clearly point out that the judge in this case, Richard Posner, is sitting "by designation" and, as you well know, his normal judicial seat is as a senior-status member of the 7th Circuit Court of Appeals - the very court that would hear any appeal of J. Posner's trial rulings. This is a fact that I think is lost to the lay readers of these posts. A powerful member of the Appellate Court (arguably, the most powerful) has issued these rulings and his colleagues on the 7th Cir. will constitute the appellate panel that hears the appeal.
Turning to your two case citations:
(1) The Final Judgment in U.S. v. Microsoft
is a consent decree in which the second paragraph expressly states, " AND WHEREAS, this Final Judgment does not constitute any admission by any party reframing any issue of fact or law;…
" The central COA in U.S. v. Microsoft
arises under the Sherman Act, antitrust law: not Title 35.
(2) Besser Mfg. Co. v. United States
343 U.S. 444 (1954) is also a pure civil action brought pursuant to § 4 of the Sherman Act with the issue of compulsory patent licensing the direct a result of antitrust acts. See,
Bessler at 447
Appellants contend that the provisions of the judgment requiring them to issue patent licenses on a fair royalty basis and requiring them to grant to existing lessees of their machines an option, on terms "mutually satisfactory to the parties concerned," (1) to terminate their lease, (2) to continue their lease, or (3) to purchase leased machines, are punitive, confiscatory and inappropriate.
However, compulsory patent licensing is a well recognized remedy where patent abuses are proved in antitrust actions, and it is required for effective relief. Hartford-mpire Co. v. United States, 323 U. S. 386, 323 U. S. 413, 323 U. S. 417-418; United States v. National Lead Co., 332 U. S. 319, 332 U. S. 338; United States v. United States Gypsum Co., 340 U. S. 76, 340 U. S. 94.
Once again the case turns on the Sherman Act and not Title 35. Both cases are inopposite to the procedural posture/remaining causes of action in the instant case.
PATENT REMEDIES (Title 35 of the United States Code)
In the instant case, Motorola Mobility, Inc. v. Apple, Inc.
11-cv-8540 (U.S.D.C. N.D. Ill), the claims remaining viable post the Court's rulings on cross motions for summary judgment are Apple's patent infringement/misuse claims - all Title 35 causes of action.
J. Posner, in the SJ ruling, held that the Plaintiff, Motorola
failed to state a case as a matter of law on all of the counts then before the court. That was not the case where Apple's counterclaims for Patent Infringement/misuse were held, as a matter of law, to be valid, and infringed, as a part of J. Posner's ruling on Apple's F.R.Civ.P. 56 Motion. Moreover, J. Posner held that facts remaing in question precluded summary judgment on all issues remaining before the court (Title 35 infringement/misuse causes of action), entitled Apple to a trial on the merits before a finder of fact.
That was the procedural posture earlier this month when J. Posner first dismissed the case, sua sponte
within ten (10) days of trial.
The amount in controversy is not an issue where the case turns on a federal question (28 U.S.C. § 1338 (a)), and here we have a holding by the Court that actual infringement of Apple's valid patents has occurred. Damages "shall be" awarded for infringement pursuant to 35 U.S.C. § 284
Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.
When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. Increased damages under this paragraph shall not apply to provisional rights under section 154(d) of this title.
The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances.
Fundamentally, the law that has developed concerning patent infringement damages differs from damages available in other types of intellectual property infringement in that it has not embraced the concept of "disgorging" an infringer's profits. See, Aro Mfg. v. Convertible
, 377 U.S. 476 (1964), ["[T]he present statutory rule is that only 'damages' may be recovered. These have been defined by this Court as 'compensation for the pecuniary loss he [the patentee] has suffered from the infringement ....' They have been said to constitute "the difference between his pecuniary condition after the infringement, and what his condition would have been if the infringement had not occurred." Id.
, at 507 (1964) (citations omitted).].
While the Federal Circuit has looked to an infringer's profits as a guide to assessing damages, See, e.g. Kori Corp. v. Wilco
, 761 F.2d 649 (Fed. Cir. 1985), cert. denied
, 474 U.S. 902 (1985) and Beatrice Foods v. New England Printing
, 899 F.2d 1171 (Fed. Cir. 1990), there is no statutory basis for the process. See, 35 U.S.C. § 284 supra
. The statute clearly mandates that the finder of fact determine damages with the court assessing damages only in the absence of a jury trial. Id.
Apple certainly never waived its jury demand. J. Posner's ruling in Apple's favor on Summary Judgment makes this last-minute dismissal prior to the scheduled jury trial a substitution of the Court's judgement of the measure of damages due Apple for the damage determination of a jury.
Clearly, J. Posner did not want the case heard by a jury. Posit another rationale for the precipitous dismissal months after ruling on Summary Judgment when J. Posner would have had some tangible basis for dismissing both parties? This holding is fundamentally a denial of Apple's Constitutional right to a trial by jury.
Injunctive relief pursuant to 35 U.S.C. §283
The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.
Arguably, J. Posner has the authority to deny a statutorily-granted right to equitable relief by the plain reading of the statute: "may grant" - but, he lacks the authority to deny a trial on the merits before a finder of fact to determine statutory damages.
At the core of the argument turns on my original citation to the Constitutional mandate of Art. I, § 8, Cl. 8, U.S. Const., "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" implemented by Congress through adoption of Title 35 of the United States Code. Where the U.S.C. or a court's holding does not adhere to the Constitutional mandate, then the statute or ruling is unconstitutional on its face, or as applied. J. Posner has clearly denied Apple the "exclusivity" right to the company's "discoveries" making both the amendments to 35 U.S.C. § 283 and his refusal to hold a trial, if, for no other reason than to determine the proper measure of damages, then the result is unconstitutional.
Furthermore, J. Posner, the father of the "Law & Economics" doctrine arising out of the University of Chicago School of Economics policy has substituted his preferred damage calculation standard without affording any deference to the holding in the landmark case, Eastman Kodak Company v. Image Technical Services, Inc.
, 112 S. Ct. 2072 (1992), a case frequently cited for its impact on the standard for summary judgment. It was, in chief, the beginning of the end of the ascendancy of the highly theoretical Chicago School of Economics. Instead of unsupported economic theories, the Supreme Court held that the facts would determine the ultimate issues. It is clear that J. Posner has made his factual determination in the in the absence of the jury even after ruling in Apple's favor on Summary Judgment. The holding is unprecedented and, arguably, plain error.
Multiplicity of Actions
Perhaps the more troubling aspect of the disputes between Apple and Google (via Google proxies (Motorola Mobility) and licensees (Samsung)) are the number of cases, the varying jurisdictions and authorities hearing essentially the same facts and holding differently.
A brief review of the pending actions would include the instant case as well as:Motorola Mobility, Inc. v. Apple Inc., In the Matter of Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof
, ITC Inv. No. 337-TA-745, 2010-10-6; Motorola Mobility, Inc. v. Apple Inc. and NeXT Software, Inc.
, U.S. Dist. Ct., Dist. Del., 2010-10-8; Apple Inc. v. Motorola, Inc. and Motorola Mobility, Inc.
, U.S. Dist. Ct., W.Dist. Wisc.(consolidated with the instant case), 2010-10-29; In the Matter of Certain Mobile Devices and Related Software
, ITC Inv. No. 337-TA-750, 2010-10-29; Apple v. Motorola
, 337-TA-750, 2012-3-16; Apple, Inc.; Apple Sales International v. Motorola Mobility, Inc.
, case 12CV0355 JLS BLM, U.S. Dist. Ct., S.D. Cal., 2012-2-10; Motorola Mobility, Inc. v. Apple Inc., In the Matter of Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof,
ITC Inv. No. 337-TA-745, 2010-10-6.
And, this list, while far from exhaustive, does not address cases before the European Commission and foreign states.
No End in Sight
It seems clear that Apple has a war on its hands very similar to the war that Polaroid fought against Kodak. Kodak copied Polaroid's "instant camera" and did significant damage to Land Corp. It is an apt analogy where Google is baldly attempting to leverage its way into the markets that Apple created by the use of artifice and conversion. It is unfortunate that Apple has to fight so many battles to hold onto its substantial innovations, the iPhone & iPad. Steve Jobs is famous for his promise to go to "thermonuclear war" over these Apple innovations and I think that Mr. Jobs was entirely correct. What good is masterful innovation and design if the knockoffs can invade the markets you create without bearing the cost to innovate? Apple needs to keep fighting.
Why is this battle so protracted and exists on so many fronts? Because we have a substantially different Judicial Branch in 2012 than Polaroid & Kodak did in 1984. I fully expect that the final resolution will not come through a United States judicial determination. Apple is truly a multi-national corporation and it is battling for its intellectual property rights across the entire planet. China may be the 900 lb gorilla. Well, go for it Apple! I'm long on AAPL and plan to stay there.Edited by Bought_it@AAPL - 6/27/12 at 3:23pm