U.S. Court of Appeals for the Federal Circuit. | Source: U.S. Courts
The CAFC filing, an opening brief from Apple regarding the dismissal of a FRAND-related action from Wisconsin, is one of the first developments in the case likely to be heard by the court in early 2014, reports FOSS Patents' Florian Mueller.
Motorola is appealing the partial summary judgment win for Apple over a FRAND contract and antitrust case leveled in Wisconsin, which was ultimately dismissed without prejudice in 2012 by Judge Barbara Crabb.
A portion of Apple's brief states Motorola "demand[ed] that Apple take a license at a rate that was more than 12 times what Motorola was charging other licensees for the same technology--a rate that was unfair, unreasonable, and decidedly discriminatory." At the time, Motorola was asking Apple for 2.25 percent, a rate unsupported by previous deals. Apple says the demand would represent approximately $12 per iPhone, or "12 times what Apple was already paying to license Motorola's SEPs," possibly referencing the indirect licensing of technology used in baseband chips and other components.
On that point, Apple notes that a previous proposal to pay Motorola $1 per iPhone was meant to "buy litigation peace and move on." The company says Google's leveraging of Motorola patents has been wholly unsuccessful.
From Apple's opening brief:
Motorola has sued Apple in various forums for infringement of eight SEPs (presumably, its eight strongest SEPs) and is batting 0-for-8 in establishing liability in U.S. actions.
In light of this information, Mueller points out that Apple's proposal was perhaps reasonable, especially considering Motorola's litigation track record. Barring that deal, Apple wants Motorola to actually offer a FRAND rate, a bone of contention that has so far been largely avoided due to the possible negative repercussions of a court rate-setting decision.
While a hearing date has yet to be set for the Wisconsin appeal, Apple is scheduled to begin another CAFC hearing as part of a cross-appeal with Motorola. That hearing, slated for Sept. 11, is in regard to Judge Richard Posner's dismissal of a patent infringement case in 2012.