Tuesday, November 29, 2011

Motorola not allowed to attack iPhone 4S, iCloud and iTunes in ongoing litigation in the Southern District of Florida

Today the United States District Court for the Southern District of Florida granted an Apple motion to strike Motorola Mobility's supplemental infringement contentions, i.e., accusations of infringement that Motorola brought into the game at a rather late stage.

Motorola filed those contentions on October 28, 2011. The document didn't enter the public record, but Apple filed a motion to strike, Motorola replied to it (too late), and the court issued an order. From the pleadings, I've gathered that Motorola's supplemental contentions not only raised new issues with respect to certain originally-accused products but also brought three new products into that lawsuit: the iPhone 4S, the iCloud, and iTunes.

In its (belated) opposition brief, Motorola Mobility said that "[i]f the motion to strike were granted [as it now has been], Motorola seemingly would have to file an entirely new case against Apple to claim that these products infringe exactly the same patents at issue here". MMI furthermore complained that it "would risk having its new case heard before a new Court lacking in familiarity with claim construction principles or the technology at hand—in other words, Motorola would have to present its case all over again, and risk an inconsistent verdict on claim construction and other legal and factual questions".

We will see what the outcome of this litigation is. The trial is scheduled for August 2012. There are ways in which rulings concerning the infringement of a given patent with a given kind of technology can also affect more recent products. It's possible that MMI somewhat overstated the impact of Apple's motion to strike, but there's no doubt that it would have been in MMI's interest to inject those new issues into this ongoing litigation.

While today's court order is favorable to Apple's interests, previous case management orders worked out better for MMI. In particular, Apple couldn't get this Southern Florida lawsuit transferred to the Western District of Wisconsin, and, more recently, the court denied an Apple motion to stay this litigation pending the consummation of Google's proposed acquisition of MMI.

With respect to the ability of a party to attack new products at a late stage in a lawsuit, there are clearly differences between the various jurisdictions in which those two companies are litigating. In Mannheim, Germany, injunctions are typically phrased in a way that does not name particular products. Apple is still trying to convince the court that the iPhone 4S does not infringe two Samsung baseband patents, and the judge is willing to take a look at a brief that Apple will file until December 23. Motorola, however, appears fairly likely to win an injunction against Apple in Germany that will probably affect the iCloud.

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