Judge Richard Posner has been telling Apple and Motorola for a few months that he wanted them to continue to "winnow" their claims, and significant progress was made. The case once involved 15 Apple and 6 Motorola patents and is now down to only about a third of those quantities.
On Wednesday, Apple dropped yet another patent: U.S. Patent No. 5,566,337 on a "method and apparatus for distributing events in an operating system". This comes as little surprise to me: in my analysis of Judge Posner's recent claim construction order, I wrote that "[t]his Apple patent [was] a pretty good candidate for withdrawal" since claim construction went so well for Motorola that this patent had "become a long shot for Apple".
Just like in a recent withdrawal of two patents from a Miami litigation between the same two parties, Apple reserved the right to reassert the patent if an appeals court overruled the district court's claim construction. Judge Posner is a circuit judge, but in this case he is "sitting by designation" on the district court. Like in Florida, Motorola supported this approach. In the specific case of the '337 patent, it's not too likely that an appeal would lead apple to reassert the patent later. Apple would need more favorable interpretations of three or four terms; also, appeals take time and the patent will expire in about two years.
This Chicago case is scheduled to go to trial in June.
In another Apple lawsuit, the original one against Samsung in the Northern District of California, a claim construction order was entered late on Wednesday. I have taken a cursory look and it appears that Apple generally wins much more favorable claim constructions in federal courts than at the ITC, in general and especially when the same patents are at issue -- in this case, it happened with a patent on "ellipse fitting for multi-touch interfaces". An Administrative Law Judge at the ITC construed the most important term from that patent in a way that I thought was less clear and useful than the original term. But the Commission, the six-member decision-making body at the top of the ITC, didn't overrule the ALJ, and Apple will almost certainly appeal this case to the Federal Circuit (if it hasn't already). Judge Lucy Koh, the federal judge presiding over the two Apple v. Samsung cases in California, agreed with Apple that the plain and ordinary meaning of that term was appropriate. She also agreed with Apple on a number of other claim construction issues, and with Samsung on only a couple of items. I will analyze the California order later today, or tomorrow, in a follow-up post.
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