Judge Richard Posner, the Seventh Circuit judge sitting by designation on the United States District Court for the Northern District of Illinois to preside over an Apple v. Motorola lawsuit, tentatively dismissed the litigation last week because the parties weren't able to prove their entitlement to remedies, but he pointed out (as did I in my reporting, unlike many others who wrote about the same thing) that he had not made up his mind on a definitive basis. And indeed, Judge Posner has now granted Apple's request for an injunction hearing, which will take place next Wednesday at 10 AM local Chicago time:12-06-13 Order Granting Apple-Motorola Injunction Hearing
The order came down yesterday and entered the public record a few minutes ago. Here's its text again in a format that will be more legible on certain devices:
"I have decided to grant Apple's request, made at the June 7 hearing, for 'a hearing at which the parties could attempt to satisfy the eBay factors and do a traditional injunction hearing.' The hearing will be held next Wednesday, June 20, in a courtroom, to be announced, of the Dirksen Federal Courthouse, at 10 a.m. Each party may argue that it would be entitled to injunctive relief as to its patent or patents were the other party found to have infringed. The parties may submit briefs, if they wish, no later than the close of business on Monday, June 18. The parties should be prepared to address the possibility of substitution for an injunction of an equitable decree for a reasonable royalty going forward. They should indicate any evidence in the existing record (for it is too late to supplement the record) bearing on the question of injunctive or other equitable relief. And if Motorola means to argue for injunctive relief it should be prepared to address the bearing of FRAND on the injunction analysis."
As I explained in my previous blog post on this case, injunctions are an equitable remedy and, therefore, decided by judges, not juries.
The order points out that Motorola may also seek an injunction over the 3G-essential patent it still has in play in this litigation, but will have to "address the bearing of FRAND on the injunction analysis". This could be a very interesting discussion. Judge Posner may already be aware of recent statements made by Members of Congress, the Federal Trade Commission and a variety of industry players and associations on the question of injunctive relief over standard-essential patents.
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