There's been some back-and-forth in a Southern Florida lawsuit involving Apple and Motorola Mobility over the question of whether Motorola was still allowed to add, as it recently did, the iPhone 4S, iCloud and iTunes to its list of accused products, and to amend its infringement allegations with respect to other and older products. On November 29, 2011 (exactly one week ago), the court granted an Apple motion to strike Motorola's supplemental contentions, only to vacate the decision the next day in light of the fact that Motorola had replied in time but the court had ignored Motorola's reply because it was, mistakenly, considered to have been filed after the relevant deadline.
After Motorola's response to Apple's motion was accepted, Apple had until yesterday to reply to it. Apple defended its original motion and also opposed a Motorola request for an oral argument (a hearing in court or, which Motorola indicated it would consider sufficient, a conference call).
Today, Judge Ursula Ungaro has entered a new decision, once again granting Apple's motion to strike Motorola's supplemental infringement contentions. In other words, the iPhone 4S, iCloud and iTunes are once again outside the scope of this litigation, presumably on a definitive basis.
The judge found Motorola's arguments in opposition to Apple's motion "unpersuasive":
Motorola argued that a deadline for filing those additional contentions, which was set in a Scheduling Order by the court, was never described as a "final" deadline. The court, however, tells Motorola that deadlines are deadlines with or without the word "final".
Motorola also argued that "Apple’s conduct gave Motorola the
impression that the infringement contentions could be supplemented after the June 1, 2011, deadline", but Apple denied this, and even if Apple had consented to a belated filing of those contentions, the parties would have had to file a motion to ask the court, for "good cause", to extend the deadline.
Motorola also pointed to the way the United States District Court for the Western District of Wisconsin handled another litigation between the same two parties, and to a lawsuit involving other parties (Biax Corp. v. Nvidia Corp.) in the District of Colorado. However, the court found that those case were distinguishable from the Florida action.
Motorola argued that there's still time for discovery until January 17, 2012, and apparently argued that as long as that deadline can be met (though new contentions result in new discovery requests), the deadline for supplemental infringement contentions shouldn't matter. The judge found "the logic of Motorola's argument [...] wanting" and doesn't want to open the door to unpredictable delays that could result from discovery issues arising from late supplemental infringement contentions.
the court also tells Motorola that it isn't "prejudice" if Motorola needs "to file an entirely new case against Apple" to go after those additional products and services, given that "Motorola has already filed several cases against Apple" anyway and that the related filing fees are not substantial to such a large corporation.
If Motorola adopts the judge's advice, we may see yet another lawsuit between those two companies. They are already suing each other in multiple fora in the United States and in Germany.
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