Friday, June 1, 2012

Judge Posner forbids Apple to turn this month's Motorola jury trial into a popularity contest

Ten days prior to the start of an Apple v. Motorola trial in the Northern District of Illinois, Judge Richard Posner entered an order on the parties' motions in limine (motions to preclude testimony, arguments and evidence if it's confusing to the jury or of insufficient probative value). The decision was made yesterday, and the document entered the public record today. Both parties had filed a long list of motions, and some objections to particular pieces of evidence. Many of those motions were denied in their entirety, and most of those that succeeded were granted only to a limited extent. But some of the decisions were interesting, and some of the judge's reasonings provide a useful update as to what the key issues will be at the trial.

Apple will have to focus on technical issues, must not turn the jury verdict into a popularity contest

A couple of decisions appear to indicate that Apple had a trial strategy in mind that was centered around the question of whether people like Apple's products and admire Steve Jobs to a greater extent than they like Google and Motorola. If Apple hadn't had any such plans, Motorola probably wouldn't have brought motions in limine to thwart this strategy, and there's nothing in the decision that indicates Motorola merely speculated about this being Apple's intention. It looks like there was at least a reasonable apprehension.

It actually makes sense that Apple would try to capitalize on the popularity of its products relative to Motorola's, given that Apple outsells Motorola by a huge factor. And even though the number of jurors who have used Google will likely be greater than that of people who own any Apple products, there's more of an emotional attachment to the iPhone, iPad, iPod or the Mac computers than to any given search engine. Presumably Apple hoped that appealing to jurors' allegiance to its brand would more than offset Motorola's home court advantage in the Chicago area.

In the latest order, Judge Posner reminds Apple of a previous order according to which "Apple will not be permitted to present media articles or equivalent publicity praising features of the iPhone or iPad (or the Apple company, Steve Jobs, or Apple products in general) unless they mention (or can be shown to be referring to) claim elements that Apple alleges Motorola infringes or that Motorola argues were anticipated or obvious and that are actually in dispute" since everything else "can only confuse the jury". Then the new order expands on this concept:

"More broadly, I forbid Apple to insinuate to the jury that this case is a popularity contest and jurors should be predisposed to render a verdict for Apple if they like Apple products or the Apple company or admire Steve Jobs, or if they dislike Motorola or Google."

Conversely, that prohibition also applies to Motorola. Apple also brought a couple of motions in limine to that effect. It's possible that Apple is fine with simply getting as much of a level playing field as possible, given that this is Motorola's home court.

No matter what arguments the parties actually intended to make, it would really be a problem for the justice system if Apple could appeal to the allegiance of its numerous fans, especially since Apple fans are particularly loyal. In the near term, it would be hard for anyone to win a trial against Apple on that basis.

Apple will also be barred from referring to the '949 "touchscreen heuristics" patent as "the Jobs patent". In light of how the '949 patent has been gradually marginalized in this litigation, that's not a huge loss with respect to this particular patent, though Apple might have hoped that references to Steve Jobs in connection with one patent also increase its chances of getting support from some jurors on other patents.

Key issues at the upcoming trial

Motorola asserts two FRAND-pledged standard-essential patents, and while it's too early to be sure, there's at least some indication that Judge Posner is a reasonably "FRAND-friendly" judge. The motions in limine were completely focused on technical (infringement and validity) issues. FRAND will be discussed at a later stage if there's any finding of liability on Apple's part for one or both of Motorola's patents-in-suit.

Apple is asserting four patents, three of which are fairly well-known from other litigations against Android device makers: the "touchscreen heuristics" patent which is now under massive reexamination pressure, the "data tapping" patent over which the ITC ordered an import ban against HTC, the "realtime API" patent that an ITC judge (but not the Commission, the actual decision-making body) deemed violated. The fourth Apple patent-in-suit is the '002 ("status bar") patent. Apple recently dropped that one (without prejudice) from its California lawsuit against Samsung.

In terms of Apple's chances of gaining serious leverage, I think it now depends almost entirely on the '263 "realtime API" patent, possibly followed by the status bar patent. In January, Judge Posner interpreted the realtime API patent quite favorably to Apple. In the latest order, Judge Posner reiterates that "if either the playback clock or the video-processing constraints ar communicated to the hardware accelerator via a realtime API, Apple has a plausible claim that Motorola's devices infringe the 'realtime signal processing subsystem' claim in the patent" and notes that Apple's expert "has identified 'OMX codec node' and the 'PVMF Node API' as realtime APIs that do that." Accordingly, a Motorola motion aiming to limit Apple's infringement arguments was denied.

For some time it appeared that the '949 touchscreen heuristics patent (which Apple won't be allowed to refer to as "the Jobs patent", as I metioned above) might be the most impactful Apple patent in this litigation, but a series of Motorola motions render this patent almost irrelevant with a view to the upcoming trial. It was invalidated to a significant degree, and the sole remaining infringement issue is Motorola's distribution of a preinstalled Kindle app supplied by Amazon. If Apple prevailed, there would be a limited amount of past damages and a potential injunction wouldn't hurt Motorola too much, though it would prevent Motorola from shipping apps that implement a certain "next item" gesture.

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