Wednesday, March 14, 2012

Judge Posner praises Apple's claim constructions as 'superior', calls a Motorola proposal 'ridiculous'

In a recent post on key patent trials that will involve Apple in June, I said that claim construction in a very important federal lawsuit against Motorola in the Northern District of Illinois (Motorola's home court) worked out very well for Apple. In particular, Apple's proposed constructions succeeded with respect to two high-impact patents, the realtime API patent and the touchscreen heuristics patent. Two new orders by Judge Posner (dated March 12, but entered into the electronic court records only today) provide further indication that claim construction -- a key intermediate step in U.S. patent lawsuits -- is going very well for Apple in that Chicago litigation.

One of the orders urges the parties to write up claim constructions (phrases that explain the meaning of key terms in the languages of the patent claims "in ordinary English intelligible to persons having no scientific or technical background". The judge says that "the court‐appointed experts could explain opaque claims constructions to the jurors, but that would waste a lot of trial time". On Monday, the parties will present their proposals to Judge Posner.

While the order expresses concern that "many of the proposed claims constructions are not in language intelligible to jurors", it notes upfront that "[s]ome are; and in this respect Apple's proposed constructions are on average superior to Motorola's". This definitely bodes well for Apple, though Motorola still has the chance to heed the judge's advice.

A second order relates to Motorola's proposal concerning the interpretation of a term from one of its three asserted standard-essential patents (U.S. Patent No. 6,359,898 on a "method for performing a countdown function during a mobile-originated transfer for a packet radio system" (related to GPRS, the data transmission standard built on top of GSM); Motorola has already won and temporarily enforced an injunction against Apple over the European equivalent of this patent in Germany).

Here's the text of the order, which dismisses Motorola's related claim construction argument as "ridiculous", a term that judges use sparingly:

"Motorola is hereby ordered to propose a claim construction of the term 'predetermined number of channel resources' in patent '898 at tomorrow's Markman hearing. Motorola's contention that the term has a 'plain and ordinary meaning' is ridiculous; Motorola seems to have forgotten that this is a jury trial. The term 'predetermined' means 'determined prior to some other event,' and what that 'other event' is is not obvious in context and certainly will not be obvious to a jury. If Motorola does not want Apple's proposal to be accepted, it must propose some alternative."

Not only is Judge Posner's use of the term "ridiculous" unusual but his just-in-case reminder that "this is a jury trial" also shows some frustration with Motorola's approach to claim construction in this lawsuit.

I wonder why MMI apparently made proposals that would only serve to complicate the jury's efforts to understand the meaning of those patents. Does Motorola believe that the less the jury understands the issues, the more likely it is to decide in Motorola's favor? Again, Motorola now has the chance to amend its proposed contructions, and I guess it will.

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