Tuesday, May 1, 2012

Judge Posner scolds Apple's lawyers: 'I’ve had my fill of frivolous filings by Apple'

Judge Richard A. Posner, the most-cited U.S. legal scholar of the 20th century, is actually a circuit judge (appeals judge) but he is sitting "by designation" on the United States District Court for the Northern District of Illinois to preside over an Apple v. Motorola patent lawsuit that will go to trial in June. He's a character, and he's outspoken. For example, he called a claim construction proposed by Motorola "ridiculous" and criticized that Motorola's claim constructions, as submitted at the time, generally weren't helpful.

Now Apple has drawn his ire (click on the image to enlarge or read the text below the image):

This order is dated April 26, 2012 but entered the public record only yesterday (April 30). Here's the text of this passage again:

"I deny the second half of Apple’s motion (seeking prohibition of the deposition) as frivolous and the first half (seeking substitution) as untimely. I've had my fill of frivolous filings by Apple. The next such motion, and I shall forbid it to file any motions without first moving for leave to file."

The motion itself is still sealed. What I understand from the order is that Apple brought a motion to prevent Motorola from deposing a particular expert. Apparently the judge denied a similar with respect to the same expert only a few days before. Apple came back and claimed that health problems of Mr. C's wife had just cast doubt on his ability to testify at the June trial. I am calling him "Mr. C" here because this here because of the context and because his full name isn't relevant to this post. Judge Posner actually doesn't take the health story at face value: "Apple is now attempting to use the medical problem of [Mr. C]'s wife to block the deposition."

It's not just that the judge believes this is a pretext. He also doesn't like that Apple made a second attempt only three days after the judge denied a similar motion (that didn't cite health issues), and he blames Apple for turning this into an "emergency" motion (the deposition is scheduled for this coming Friday, May 4, 2012) instead of bringing the motion at a time and in a way that would have enabled Motorola to respond. It appears that Apple wanted to deprive Motorola of this opportunity.

The sanction that Judge Posner threatens at the end of the passage quoted above could put Apple at a practical (but not substantive) disadvantage relative to Motorola as the case is fast approaching trial. In that event, Apple would have to file a précis letter first in order to seek permission to file an actual motion. That slows things down -- and it can ultimately be even more paperwork for the court as well. I guess this is just a warning and I doubt that things will get to that point. If it did happen, it wouldn't be a disaster for Apple. For example, in Oracle v. Google the parties had to file précis letters all the time because that's the way Judge Alsup wanted things to work. But here it would affect only one party, Apple, while the other one, Motorola, could still file motions without having to request prior permission.

By the way, Circuit Judge Posner is not the first high-ranking judge in 2012 to have reproached Apple in no uncertain terms. In early January, Chief Judge Gregory M. Sleet of the United States District Court for the District of Delaware entered took Apple to task for making a "disingenuous" argument. He wanted that one to serve as a warning to any "other parties" going forward, telling everyone "to refrain from extending their advocacy to arguments that, as was the case here, appear less than forthright".

Two such incidents aren't a basis for claiming generally that Apple's lawyers, whether in-house or outside counsel, make more disingenuous arguments or bring more frivolous motions than many other litigants, including its rivals such as Samsung, but just like Apple has recently been very good at dropping infringement claims that weren't promising, it may also have to focus on fewer but stronger arguments in such contexts as depositions and venue transfers. It's not in Apple's interest to have judges look at every one of its motions with huge skepticism. That said, there's no question that Judge Posner will give Apple a fair chance going forward.

In other news from the Chicago litigation, Motorola just scored a partial victory with a summary judgment motion relating to the extremely important touchscreen heuristics ('949) patent. Judge Posner has further narrowed Apple's infringement claims by throwing out some that he believes don't have merit. There's no question that Motorola has made headway but I have to look at it in more detail to assess the scope and strengths of the claims remaining in play after this latest ruling (which also entered the public record only yesterday). I will try to do so later today, or at least before the end of the week.

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