The mainstream opinion was that Judge Posner dealt a blow to Apple with his dismissal of an Apple v. Motorola lawsuit in Chicago last month. In reality, it was a two-way lawsuit, and the strategic implications of the dismissal of Motorola's case (even though only a single patent was at issue) far outweigh the more tactical implications of what happened to Apple's four patents.
Apart from the fact that Apple recently scored a couple of wins that show it's still possible to win patent injunctions in the United States (post-eBay and even "post-Posner"), the way in which both parties, Apple and the Google subsidiary, have followed up on Judge Posner's decision in their filings with other judges speaks volumes:
In stark contrast to that, Apple just made a filing with the United States District Court for the Western District of Wisconsin, where Apple brought a lawsuit last year to enforce Motorola's FRAND licensing obligations (as counterclaims to Motorola's ITC case), in which it presents three pieces of supplemental authority, and guess what the first one of them is? Judge Posner's Chicago ruling, and specifically its FRAND part.
The Wisconsin-based court is currently looking at Apple's and Motorola's summary judgment motions.
It also happens to be the court that gladly transferred this case to the Northern District of Illinois in late 2011 when Judge Posner volunteered to be assigned.
Apple's other two supplementary authorities are the Federal Trade Commission's statement to the ITC concerning import bans over FRAND-pledged standard-essential patents (meanwhile, the FTC is reportedly investigating Google's/Motorola's related conduct) and the FRAND part of a summary judgment ruling by Judge Lucy Koh. Last week, Judge Koh denied all 12 of Samsung's summary judgment motions, including one targeted at Apple's antitrust claims. One of Samsung's failed motions argued that Apple couldn't prove antitrust damages, but Judge Koh determined that Samsung's enforcement of FRAND-pledged patents resulted in litigation expenses to Apple, which she considered sufficient to state an antitrust claim (though not necessarily the only kind of damage inflicted on Apple).
If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.
Share with other professionals via LinkedIn: