Apple's patent case against Motorola dismissed 'with prejudice' - Page 2

 

Apple has only two choices:  Appeal, or don't.  I suspect that they will appeal.

Your flippant responses to a substantive set of points -- quite aside from whether the points are right or not -- betrays the silliness and small-mindedness on the other side of the debate.

There's no debate here people. Unless you're really that good in this kind of matter which means you won't be the kind of people who'd waste time posting here. I know I've no expertise to judge on this matter myself, and I doubt anyone here (pro ruling or not) has the ability to do so.

 

Here I'll break it down, this Posner guy is saying it's ok to steal from someone who's rich because unless you steal everything, at the end of the day they are still rich and can buy anything they want so no damage has been done.

 

Others have addressed your first points. As to the last point, it took the Federal Circuits 5.5 months to decide from Judge Koh’s denial of the motion for a preliminary injunction.

Actually, they didn't. Several people threw out ad hominem attacks and a few others threw out totally nonsensical comments, but no one addressed the substance of my comments.

 

 

Can you quote the language from his decision that supports your contention?  I read it, and I must have missed that part.

Not even 'no', but 'less than they (subjective they and subjective amounts) should care about'. And that's even more sickening.

 

Not at all Skil. They just lost because they didn't have what they thought they had.

OK. Now, by the same logic, since you and all the other Apple haters do not have experience in running a multibillion dollar company, no one should believe any of your whining complaints against Apple or Apple products.

So can we count on you to disappear from this forum or, at least, to stop second guessing Apple?

He's on his fourth account, so I doubt that.

 

 

I will believe Posner before I will believe someone with no credentials at all.  That is not a reason to do what you propose.

Similarly, I believe Apple before I believe someone with no credentials at all. So are you and your Apple-hating buddies going to stop posting here?

 

 

Ok, you win.  I'm glue and you are rubber.

No, you're ConradJoe, Zither Zather Zuzz, and Hyram Gestan.

Your argument, by default, has no weight. You are a multi-repeat offender troll who we will chase and ban to the ends of the Earth. Best part is, you'll never know when it's coming. You'll wake up one morning, spit out your cereal, and log on to find that yet another account is banned. You'll never be able to establish a presence here, because you'll always be outed as soon as you've created a new account and banned before you can get enough posts to be seen as legitimate.

ROTFLMAO. This troll can't even get his second grade taunts right.

"I'm polymerized tree sap and you're an inorganic adhesive, so whatever verbal projectile you launch in my direction is reflected off of me, returns on its original trajectory and adheres to you."

Judge Posner's actions over the last month or so have seemed like a long cycle of "I'm sick of seeing these guys in my court, what is the next step in getting them out of it".  Cut down the number of claims you all are arguing over.  Why are you filing all these motions (when there is nothing against the law about their actions).  You guys have lots of money, you don't look too hurt, game over.  This doesn't look like legal deliberation to me. 

 

PS No I'm not a lawyer, but that is the impression I get from reading lots of articles about the case from a variety of websites.

You missed the point - instead of the common 2nd grade taunt that my attacks would bounce off him and stick to me, he got it backwards - all of his taunts bounce off me and stick to him.

He's apparently not even as bright as the average 2nd grader.

It actually goes beyond that. Posner has an aversion to patents and has publicly stated that patent owners should not have exclusivity (discussed at length with references in FOSS patents). That goes contrary not only to legislation, but to the Constitution. All of his actions in this case make sense with that background. He is doing what he can to weaken any patents enough to make them useless.

He's entitled to his own opinion, of course, but when he thinks that his opinion trumps actual law as well as the Constitution, he's wrong.

I got it, I just wanted to add that fun quote.

No, I reversed it intentionally.  Combine the reversed adage with the "you win" statement, think about it, and if you still can't figure it out I'll explain it in detail.

 

No.  On second thought, I'll be content with whatever you conclude.

Court of Public Opinion says: "That was dumb."

 

And please enlighten us to the name of the school that issued your law degree.  If you don't have one, could you kindly shut the hell up and quit bitching that you didn't get the decision you wanted in the case? Judge Posner has forgotten more about law then you've ever learned.

 

Is that why he gets reversed by the SC so often?  Or is that why he is such a respected jurist?  Because he doesn't follow the law?

One doesn't need to have a law degree to see the error in his public statements. He has publicly stated that he thinks patents should not be allowed to create exclusive rights. The Constitution and statute are quite clear on the fact that patents DO provide for exclusivity. Therefore, Posner's views are in opposition to the law of the land.


Which multibillion dollar company have you run that is at least as successful as Apple? If you can't show us one, then could you kindly shut the hell up and quit bitching about things you don't understand?

Oi. Stop the insults. There's no point continuing the argument in this fashion (or at all) unless someone has some new evidence to present. If it has all been covered until the retrial, let it die.

Or maybe I can't say the word 'evidence' because I don't have a law degree…

At any rate, this isn't getting anyone anywhere.

+1. Thank you

Posner has gone beyond the pale, again. It truly is the end of patent enforcement if this case goes to the 7th Cir. and they uphold followed by the SCOTUS denying cert.

I wonder if Posner would be satisfied by merely poisioning the well in his Circuit, or if he would actually sit on either the appellate panel, or en bank?

I could easily see a case of this importance being heard en banc at the outset.

A man willing to ignore the Constitutional right of exclusivity afforded inventors must believe that he acts without limitation.

Article 1, Section 8, Clause 8. U.S. Const.

Nobody has amended the Constitution to exclude the exclusivity component - QED, Posner is ignoring the Constitution.

I am a trial lawyer and I've argued before the late J. Giles Sullivan Rich, the first scientist/patent lawyer appointed to the Federal Circuit.

You might be mistaken in your understanding on the legality of a compulsory licensing order, even in the US. See United States vs. Besser Manufacturing, 1952. If that one doesn't suit you try United States vs. Microsoft, 2002.

 

Links if you don't have 'em.

http://www.justice.gov/atr/cases/f200400/200457.pdf

http://supreme.justia.com/cases/federal/us/343/444/case.html

Edited by Gatorguy - 6/26/12 at 12:01pm

This coming from someone who doesn't even know the most basic consumer law in their own country yet is in sales. You shouldn't be breaking down anything for anybody.

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

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
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.

Constitutional concerns

Injunctive relief pursuant to 35 U.S.C. §283
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

Excellent and detailed reply. Now you sound like an attorney. :)

 

Yes, agreed the two cases I linked are not "on point" with Judge Posner's comments, but they weren't intended to be.  They were simply to note that compulsory licensing is an appropriate remedy under certain circumstances, no matter the property guarantees afforded under the Constitution. That strict guarantee has already been breached years ago. With that said, if any judge were to rule for compulsory licensing in the Apple Motorola case, with a written statement that passed muster with SCOTA, I'd like Posner's chances. 

 

The argument for compulsory licensing, even under Title 35, is farther along than you may realize. I don't know how much study you've done on it. And it's not certainly not a new idea with at least one paper I came across from the Chicago School of Law (?)  from 1935. If you're interested in that one I'll try to find it again. In any case Judge Posner isn't suggesting a new idea.

 

http://patentmath.com/compulsory-licensing-of-u-s-utility-patents/

http://www.cptech.org/ip/health/cl/hr4151-103.html

 

In copyright law it's already a well-entrenched legal policy. I'm sure you're aware of it, but others may not be.

http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1447&context=lawreview&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dcompulsory%2

 

Thank you again for the well-written reply!

Frankly, I will belabor the point: J. Posner has made trial court rulings that, if upheld on appeal, will set the precedent that parties to a Title 35 action may properly be denied a trial on the merits by a sua sponte determination by the court that damages are de minimus and public injury is possible. If upheld on appeal (lord help us if the SCOTUS follows this holding) the precedent could find wide adoption among the federal judiciary as a docket-clearing mechanism for any civil cause of action pending before any federal trial court.

I can find no precedent, under any civil cause of action, that even comes close to the holding in the instant case. It is currently binding precedent only for other cases brought in the N.D. Ill (assuming no appeal is taken), but the holding is unprecedented in its scope. Used as persuasive authority in sister jurisdictions, absent an appeal, this holding could still wreak havoc across the entirety of our district courts.

J. Posner's ruling establishes judicial authority permitting Art. III Judges the power to deny parties their right to a trial on the merits by judicial fiat. This isn't a 12(b)(6) dismissal, nor a rule 56 dismissal, nor a dismissal by stipulation of the parties, nor any other previously recognized rule, or procedure, by which a case can be dismissed (with prejudice!); it is an act that greatly expands the trial court's authority to deny parties to litigation their fundamental right to a trial by jury, absent any mechanism to challenge the dismissal short of taking an appeal (I suppose that for a brief period writs of mandamus or prohibition may serve to reverse the holding, but I'd doubt that the circuits would permit the proliferation of the practice for very long.).

This holding is a fundamental rejection of well established principals of jurisprudence and it bodes ill for more than just the parties to the case.
Edited by Bought_it@AAPL - 6/29/12 at 4:27am

Thank you again for another well-argued and polite response. I also appreciate the restatement of a point you had made but I didn't absorb from your previous post. I do understand where you're coming from a bit better now.

Edited by Gatorguy - 6/28/12 at 9:59am

Really?  I would think that the court of Public Opinion actually said: "What lawsuit?"