Since I was in Mannheim during large parts of Thursday and Friday, I'm a few days late in noticing that Apple scored a strategically important legal victory on Wednesday that could have enormous impact on Apple's patent assertions against Android. The order I mean came down in litigation between Apple and Motorola, but the issue is also relevant to Apple's spat with HTC and could play a very important role in Apple's dispute with Samsung as well as its dealings with any other Android device makers in the future.
In a federal litigation with Motorola in the Northern District of Illinois, an extremely influential, high-ranking U.S. judge agreed with Apple's interpretation of the most important term, "realtime API", in its '263 patent. Under this interpretation, Android most likely infringes on the patent, and a workaround appears difficult to say the least. I published the original infringement claim chart from Apple's complaint against HTC and Apple's allegation, based on this patent, that Andy Rubin got the inspiration for Android while working at Apple (which might enable Apple at some point to have Google found liable for willful infringement).
Last summer, an Administrative Law Judge (ALJ) at the ITC already held HTC's Android-based devices to infringe that patent, but the Commission, the six-member decision-making body at the top of the ITC, reversed his related finding of a violation and limited Apple's victory to a technically narrower patent covering what I call "data tapping". While the ITC was conducting its review, I already agreed with the ALJ (and, by extension, with Apple) that the approach suggested by the ITC staff (and ultimately adopted by the Commission) was "formalistic wordplay" that simply made no technical sense to me. I was not surprised to find that Apple appealed the ITC ruling, and expressed my belief that Apple's appeal may very well succeed. With the order that came down in Chicago on Wednesday, Apple's chances have further increased.
Here's the final part of that order (click to enlarge):
The interpretation ordered above is the one Apple proposed. In my opinion, a jury is very likely to find Android to infringe the patent based on that construction but much less likely to deem the patent invalid (unless someone comes up with better invalidity contentions than HTC did, presumably with help from Google).
The Apple v. Motorola litigation in Chicago is going to be the next occasion on which this patent is asserted against Android at trial (probably in the summer). With Google hoping to close its acquisition of Motorola Mobility in the near term, that dispute is going to be very important in and of itself. But the high profile of the judge who entered and signed the above order lends it importance beyond that particular dispute.
You can read about United States Circuit Judge Richard A. Posner on Wikipedia. According to the Journal of Legal Studies, he was the most-cited legal scholar in United States in the 20th century. From 1993 to 2000 he was the Chief Judge of the United States Court of Appeal for the Seventh Circuit and still sits on that court, and in addition, he serves on the Chicago-based district court "by designation", which is why he presides over Apple's lawsuit against Motorola.
While patent appeals go to the Court of Appeals for the Federal Circuit (CAFC), Judge Posner is technically a peer of the CAFC judges who will rule on Apple's appeal against the ITC and HTC. He's primarily known for his work on legal economics, not for patent law, but he's a living legend of U.S. law and his understanding of the '263 patent will clearly bear more psychological weight with the CAFC than the final ITC ruling (or the position of the ITC's Office of Unfair Import Investigations). Apple convinced an ALJ at the ITC and convinced a legendary, high-ranking judge. If the CAFC also agrees to interpret the '263 patent in a technically logical way, Android may face a major problem.
[Update] This post was factually correct but has led to misunderstandings that I'd like to address now. The order by Judge Posner was entered in litigation between Apple and Motorola in the Northern District of Illinois. While Judge Posner is an appellate judge, he is sitting, for this case, on the bench of a district court, which is a first-instance (as opposed to an appeals) court. The fact that he is a circuit (i.e., appellate) judge is nevertheless important: it means he's a high-ranking judge. The relevance of all this to Apple's dispute with HTC is that the same patent was also asserted against HTC in Apple's first Android-related ITC complaint ever, and Apple is appealing the related ITC ruling, which was negative on this patent. Apple's appeal of the ITC ruling is before the CAFC (Federal Circuit), while Judge Posner's circuit is the Seventh Circuit. In the next step, Judge Posner's order increases Apple's chances of winning a (district court) ruling against Motorola based on this patent. But in addition, it also increases Apple's chances of the CAFC overruling the ITC on this one (where HTC, not MMI, is the defendant). [/Update]
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