Last Friday, Apple and Google reportedly agreed to dismiss all current lawsuits between them, including standard essential patent cases involving Motorola Mobility that Google recently sold to Lenovo.  The three-sentence joint statement by Apple and Google indicates that their agreement does not include any cross license (to SEPs or otherwise), stating:

Apple and Google have

CAFCLast week, the Federal Circuit granted a motion by Microsoft for permission to file an amicus brief in the Apple-Motorola appeal (No. 12-1548, Judge Posner edition).  Microsoft then filed its amicus brief, becoming the latest in a long time of companies (see, e.g., here, here, here, and here) to weigh in on the case.  Today, the public version of Microsoft’s brief became available.  In it, Microsoft supports Apple and Judge Posner, but cautions the Federal Circuit against making an overly broad ruling and deciding issues related to standard-essential patents and RAND licensing obligations that are not present before the court.

[2013.06.04 Microsoft Amicus Brief (12-1548)]

Microsoft pulls no punches — it argues at the outset that Motorola’s positions “are wrong as a legal matter and terrible as a policy matter.”  That should come as no surprise, given Microsoft’s current litigation disputes with Motorola (as well as ongoing competition with its parent company, Google).  But Microsoft claims that its interest in this case goes far beyond its adversarial relationship with Motorola, arguing that as an active participant in many SSOs and implementer of many standards, Microsoft wants to ensure that standards are broadly implemented for the benefit of the public.


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In the wake of the ITC’s landmark exclusion order barring imports of certain Apple 3G products, we noticed an interesting question raised by Prof. Brian J. Love of Santa Clara law school, among others:

BrianJLove

Professor Love is referring to one of several legislative recommendations and executive actions related to the patent system and patent litigation

A couple weeks ago, Apple directed the Federal Circuit’s attention to the Microsoft-Motorola RAND-setting opinion.  Apple claimed that in a variety of ways, Judge Robart’s decision supported Apple’s arguments on appeal.  This past Friday, Motorola filed a brief response to Apple’s citation of supplemental authority — and in it, Motorola claims that the reasoning of

Earlier this week, we noted that Apple directed the Federal Circuit’s attention to Judge Robart’s Microsoft-Motorola decision in Apple-Motorola “Posner Appeal.”  (For a recap of the parties’ FRAND-related appellate briefing in the case thus far, see our prior posts on Motorola’s opening brief and Apple’s responsive brief).  Yesterday, Motorola’s reply brief became publicly available.

[2013.05.13 Motorola Reply Brief (12-1548)]

In its brief — summarized after the jump — Motorola reiterates its prior arguments to the Federal Circuit that Judge Posner erred in concluding that Motorola could not prove entitlement to either monetary or injunctive relief as compensation for Apple’s alleged infringement.  But Motorola does not just repeat the same arguments it made in its opening brief — it also attempts to address arguments raised by Apple concerning patent hold-up and the effect of the January 2013 FTC-Google consent decree.


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CAFCEarlier this week, both Nokia and BlackBerry (formerly Research In Motion) were both granted leave to file amicus briefs with the Federal Circuit in the Apple v. Motorola appeal of Judge Posner’s June 2012 decision to dismiss the parties’ respective infringement claims.  BlackBerry’s brief is still confidential, but Nokia’s is now publicly available.

[2013.05.06 Nokia Amicus Brief]

While Nokia’s amicus brief is styled as being “in support of neither party,” it’s clear that Motorola should be the one happy here — Nokia asks the Federal Circuit to reverse Judge Posner’s decisions relating to Motorola’s standard-essential patents at issue, both with respect to damages and injunctive relief.  Nokia claims that Judge Posner’s ruling (1) creates a bright line rule against injunctions that violates Supreme Court precedent, and (2) unnecessarily devalues standard-essential patents by mandating that any damages be based on the smallest salable unit, which runs contrary to industry practices in SEP licensing.  A summary is after the jump.


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Much of the activity and attention in the standard-essential patent world over the last few days has been focused on Judge James L. Robart’s groundbreaking decision in the Microsoft-Motorola RAND breach of contract case.  But that wasn’t the only RAND-related bit of news happening this past Thursday — that same day, in the Federal Circuit, Apple filed its response to Motorola’s appeal of Judge Posner’s decision to deny both damages and injunctive relief to Motorola in a case involving Apple’s alleged infringement of Motorola standard-essential patents.

Due to the fact that the Federal Circuit has consolidated appeals by both parties, Apple’s brief is technically both a response brief and a reply brief — but we will only deal with the SEP-specific issues here.  In the brief, which we’ll delve into after the jump, Apple urges the Federal Circuit to uphold Judge Posner’s findings that, even if infringement could be proven: (1) Motorola failed to introduce a cognizable damages theory for infringement of the SEPs at issue; and (2) Motorola could not show entitlement to injunctive relief for its FRAND-encumbered patents.

Link: [Apple April 25, 2013 Appellate Brief]


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CAFCBack in January, we summarized a number of amicus briefs filed by a diverse group of companies and organizations concerning the issues in the Apple v. Motorola Inc. Federal Circuit appeal of Judge Posner’s decision to dismiss the parties’ respective patent infringement cases.  We noted that because the Federal Circuit extended the deadline to file amicus briefs until seven days after Motorola’s opening brief was due, more parties were certain to make their views on standard-essential patent and FRAND issues known to the court.  Sure enough, several others filed amicus briefs last week.  Yesterday, the amicus brief filed by Intel became publicly available.

As you can see from our summary below, Intel’s brief clearly supports Apple, at least with respect to Apple’s cross-appeal of the standard-essential patent issues in the case.
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Late last week, Motorola Mobility filed its Responsive and Opening Brief in Federal Circuit Appeal No. 2012-1548 (the appeal from Judge Posner’s June 2012 decision to dismiss competing infringement claims in a case between Apple and Motorola).  We’ve previously discussed the large number of amicus briefs filed with the Federal Circuit by a wide variety of parties addressing the issues of damages and injunctive relief with respect to standard-essential patents.  Here, Motorola characterizes Apple as an “unwilling licensee” who wants to change the rules of how standard-essential patent licensing has long been done in the cellular industry.  Motorola claims that Judge Posner’s rulings — which barred injunctive relief for Motorola’s FRAND-pledged standard-essential patent at issue, and limited damages to ex ante (pre-standard) value of the patent — “devalue essential patents,” “upset the settled expectations” of patent holders who contribute to industry standards, and “create disincentives” to participate in standard-setting activities.
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Later this year, in the case of Apple Inc. v. Motorola Inc. (Nos. 2012-1548, -1549), the Federal Circuit is set to address several issues that could have a big effect on future licensing and assertion of standard-essential patents.  As explained in our previous post “catching up on” the details of this dispute, this appeal follows Judge Posner’s dismissal of both Apple’s and Motorola’s dueling infringement claims, which was based on the parties’ failure to prove entitlement to the remedies sought.  Because Motorola had asserted a FRAND-encumbered standard-essential patent against Apple’s UMTS-compliant products, the Federal Circuit is likely to decide at least two issues that may have widespread implications for SEP licensing and litigation for years to come: (1) whether injunctive relief may be an appropriate remedy for Apple’s alleged infringement of Motorola’s FRAND-pledged SEPs; and (2) how to calculate damages for Apple’s alleged infringement of Motorola’s FRAND-pledged SEPs.
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