Friday, December 2, 2011

After judge recognizes error, Motorola may still be allowed to attack iPhone 4S, iCloud and iTunes in Southern Florida

Earlier this week I reported on an order in a litigation between Motorola Mobility and Apple in the Southern District of Florida. The federal judge presiding over that case granted an Apple motion to strike Motorola's supplemental infringement contentions, which included newly-minted accusations of patent infringement targeting the iPhone 4S, iCloud, and iTunes.

When I saw the order, I noticed that it made reference to Apple's motion but not to Motorola's reply filed the previous day. The judge initially considered that reply untimely: it appeared to be late by one day.

District courts set motion briefing deadlines in their local rules.

But on Wednesday, Judge Ursula Ungaro entered an "order vacating [the] order granting [Apple's] motion to strike [Motorola's new accusations]". What had happened is that the judge got confused about the exact deadline:

"The Court neglected to grant Motorola the full time to respond to Apple's Motion (D.E. 178). Since the response deadline fell during the Thanksgiving holiday, Motorola filed a timely response when it submitted its response on the first business day following the holiday."

The judge (or whoever keeps track of those deadlines for her) is probably a bit embarrassed now, but these things can and do happen.

The net effect is that the original order was based only on Apple's side of the argument, with Motorola's opposition brief having been erroneously ignored. The judge will therefore make a final decision taking into consideration both sides of the argument. This also means that Apple, as the moving party, gets the chance to reply to Motorola's finally-accepted opposition brief. Apple has until Monday to do so.

The judge may very well reach the same conclusion as last time. According to Apple, Motorola brought those supplemental infringement contentions involving the iPhone 4S, iCloud and iTunes (and also some new contentions involving previously-accused products) five months after a deadline set by the court.

But it's always easier to win without resistance (in this case there was resistance, but it was erroneously ignored). Motorola's opposition brief raises various issues that could now result in a reversal, and Motorola is now trying to capitalize on the opportunity presented by the reopening of the motion briefing process: Motorola has asked the court for a hearing, which Motorola said wouldn't take more than 30 minutes per party and could be held by telephone. Apple, however, disagrees with Motorola's argument that this would help "narrow the issues" and, in a brief filed today, asks the court to decide based on the parties' written pleadings.

The court will presumably hand a ruling on Motorola's supplemental infringement contentions shortly after Apple files its reply brief.

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