Friday, September 7, 2012

Apple and Google need more time for appeal of Judge Posner's ruling and in a Miami litigation

In July, both Apple and Google subsidiary Motorola Mobility filed notices of appeal of Judge Posner's dismissal of their two-way Chicago lawsuit. Yesterday, the parties jointly asked the United States Court of Appeals for the Federal Circuit for 60 additional days to file their initial pleadings. And as I'll discuss further below, there's another litigation -- a case in the Southern District of Florida -- in which the one thing they've been able to agree upon is -- guess what -- that they want more time, which provoked a biting comment by a federal judge. Let's first look at the Posner appeal.

In the consolidated appeal before the Federal Circuit, Apple and its subsidiary NeXT Software are the appellants, and Motorola (now known as Motorola Solutions) and Google subsidiary Motorola Mobility are the cross-appellants. Under Federal Circuit rules, the Apple/NeXT opening brief is currently due on September 28, 2012, and the Motorola/MMI brief would be due 40 days later, i.e. on November 7, 2012. Citing "the complexity of this case and the press of other matters", the parties' lawyers now ask for a 60-day extension of both deadlines. If this motion is granted, which I believe will happen, Apple's brief will be due on November 27, 2012, and Google's (Motorola's) brief will be due on March 11, 2013.

There can be no doubt about the magnitude of the task these parties face. They are going to challenge not only the dismissal of the last half a dozen patents but also Judge Posner's numerous summary judgment orders. They are going to fight not only the dismissal of their requests for injunctive relief but also the outright denial of a jury trial on damages.

The joint motion notes that "the record in this case is massive":

"There are over 1000 entries on the district court docket, the parties filed over 125 motions and applications to the court, the district court issued 107 orders, and the record contains over 8.5 gigabytes of pleadings and over 72.4 gigabytes of expert reports and supporting materials."

The collective document size of more than 80 gigabytes is due to the format in which those documents are stored (PDF). In terms of plain text, we'd be talking about a small fraction of this quantity, but still a lot. (By comparison, in the HTML format, which is much, much closer to plain text than PDF, a current archive of this entire blog -- at the time of writing this post -- is only about 11 megabytes, or 0.011 gigabytes, large).

In a Motorola Mobility v. Apple lawsuit in Florida that started in October 2010 but has been affected by different procedural twists and turns (including the temporary involvement of HTC as a counterclaim defendant), things are also taking more time, but for a different reason.

On Tuesday, the parties filed a stipulation asking to extend the deadline for their mutual infringement contentions from September 7, 2012 to November 7, 2012, and the deadline of their mutual invalidity contentions from October 5, 2012 to December 5, 2012. The desire for more time was driven primarily by the fact that both companies are in the process of launching new products, and they want to be able to tackle those new products. One thing on which they could not agree is whether it would be acceptable to add new items to the list of accused products after the deadline for the original contentions. Motorola would like to be able to, while Apple wants to close the door to new contentions.

A day after the motion, i.e., on Wednesday, Judge Robert Scola, the Miami-based federal judge presiding over this lawsuit, granted this joint motion, but the irony of Motorola's push for more time wasn't lost on him, and he also made reference to the fact that the parties previously proposed completely divergent schedules:

"The parties indicate that they have agreed to extend the deadlines to exchange infringement and invalidity contentions. Motorola, who so vehemently protested the longer schedule advanced by Apple and adopted by the Court, now (without a hint of irony) joins in a request to further extend deadlines. The Court is nonetheless pleased that the parties have been able to reach agreement on something. Therefore, in the spirit of rewarding the parties' efforts to confer and reach agreement, the Court finds good cause for the requested extension and hereby grants the same."

I understand Judge Scola's perspective, but Google's Motorola Mobility isn't being inconsistent here. It's not like Motorola was originally in a hurry and now wants to take it easy. The whole scheduling conflict has its roots in Motorola's filing of a second Florida lawsuit against Apple in January 2012 in an effort to attack newer Apple products after the court had not allowed it to update its infringement contentions. Motorola still wants to get decisions as quickly as possible, but it wants decisions that relate to whatever Apple products will be commercially relevant at that point. It would always be possible for Motorola to attack newer Apple products with contempt motions or, if the fact patterns are more than colorably different, new lawsuits. But Motorola wants to make as much headway as possible in the original infringement case and not rely on enforcement disputes or subsequent filings of new lawsuits. A deadline extension that slows down the case by 60 days but increases the likelihood of a ruling that may be useful by the time it comes down is a perfectly reasonable tactical choice, even if most plaintiffs would rather have their first infringement case adjudicated at the earliest opportunity and cross other bridges when they get there.

While it takes ever more time to resolve different Apple-Motorola cases, Apple's patent enforcement against other Android device makers (Samsung and HTC, and possibly others in the future) continues unabatedly without Google having the leverage it needs to force Apple into a broad settlement.

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