Circuit Court Judge Richard Posner, arguably the most brilliant mind on the American bench, threw out the Android infringement litigation between Apple and Motorola Mobility late Friday with prejudice, denying Apple its hoped-for injunction against the Google satellite and its smartphones. <\/p>\n
That goes for Motorola too. <\/p>\n
\u201cNeither party is entitled to an injunction,\u201d Posner said. \u201cNeither has shown that damages would not be an adequate remedy\u201d to an injunction \u2013 (which is usually reserved for cases of imminent irreversible harm) \u2013 but both sides \u201cfailed to make a responsible calculation\u201d of damages. <\/p>\n
\u201cThey had an adequate legal remedy,\u201d he said, \u201cbut failed to make a prima facie case of how much money, by way of such remedy, they are entitled to. That was a simple failure of proof.\u201d<\/p>\n
Apple has the stronger case but \u201cBy failing to present a minimally adequate damages case, Apple has disabled itself from arguing that damages would not provide a complete remedy, going forward in the form of running royalties, as well as backward.\u201d<\/p>\n
With prejudice means the cross-litigation can\u2019t be re-filed, giving Apple, which claims Motorola copied its technology, a powerful thumping. <\/p>\n
There is of course always the probability of appeal or they could go venue shopping. Otherwise, Judge Posner, whose patience was tried more than a little by the case, blasted the strategy of using patents to bar a rival from the market in his 38-page decision. <\/p>\n
After tossing nearly all of Motorola\u2019s patent claims against Apple and leaving Apple with more, the judge cancelled a jury trial that was supposed to start on June 11 on their two-year-old cross-complaints and heard arguments last Wednesday on the possibility of injunctions determined to decide the issue himself. <\/p>\n
He found that Apple had dicey grounds for a ban in the light of possible workarounds and said enjoining Motorola\u2019s phones would be \u201ccatastrophic\u201d for the company.<\/p>\n
It didn\u2019t have a tight enough case. \u201cApple wanted me to allow into evidence,\u201d the judge said, \u201cmedia reports attesting to what a terrific product the iPhone is. I said I would not permit this because the quality of the iPhone (and of related Apple products, primarily the iPad) and consumers\u2019 regard for it have, so far as the record shows, nothing to do with the handful of patent claims that I had ruled presented triable issues of infringement. Apple\u2019s \u2018feel good\u2019 theory does not indicate that infringement of these claims (if they were infringed) reduced Apple\u2019s sales or market share, or impaired consumer goodwill toward Apple products.\u201d<\/p>\n
There\u2019s \u201cdanger,\u201d he said, \u201cthat Apple\u2019s goal in obtaining an injunction is harassment of its bitter rival…The notion that these minor-seeming infringements have cost Apple market share and consumer goodwill is implausible, has virtually no support in the record, and so fails to indicate that the benefits to Apple from an injunction would exceed the costs to Motorola.\u201d<\/p>\n
\u201csmallerAn injunction,\u201d he said, \u201cthat imposes greater costs on the defendant than it confers benefits on the plaintiff reduces net social welfare.\u201d <\/p>\n
Meanwhile, Posner had left Motorola with one FRAND-pledged wireless patent to sue on after weeding out the others. <\/p>\n
He said Motorola\u2019s FRAND pledges barred it from seeking an injunction and that Motorola offered \u201cno reasonable evidence for calculating a reasonable royalty\u201d in light of its gargantuan licensing demands for 2.25% of Apple\u2019s device sales. <\/p>\n
\u201cI don\u2019t see how,\u201d he wrote, \u201cgiven FRAND, I would be justified in enjoining Apple from infringing the \u2018898 unless Apple refuses to pay a royalty that meets the FRAND requirement. By committing to license its patents on FRAND terms, Motorola committed to license the \u2018898 to anyone willing to pay a FRAND royalty and thus implicitly acknowledged that a royalty is adequate compensation for a license to use that patent. How could it do otherwise? How could it be permitted to enjoin Apple from using an invention that it contends Apple must use if it wants to make a cell phone with UMTS telecommunications capability \u2013 without which it would not be a cell phone.\u201d <\/p>\n
Judge Posner also quashed Apple\u2019s proposal to limit the injunction and force Motorola to remove Apple-patented features from its phones within three months of launch. He said it would be too hard and too costly to administer for both Motorola and the court, and forcing Motorola to sell inferior technology would serve no social good and create the unhappy prospect of Apple then filing more lawsuits claiming Motorola still infringed \u00e0 la Apple and HTC.<\/p>\n
He suggested Apple license the relevant patents to Motorola.<\/p>\n
FOSS Patents says the only thing that\u2019s going to stop the worldwide patent disputes that Judge Posner loathes is a global settlement and the only way to achieve a settlement is either through an injunction that endangers sales or draconian damages.<\/p>\n
According to Gartner Android owns 47% of the market and iOS has 23%.<\/p>\n
The Apple-Google relationship is expected to deteriorate further if Google puts out its own branded phone, as widely reported<\/p>\n