Friday, December 7, 2012

Federal Circuit grants FRAND supporters more time to file amicus briefs in Apple-Google case

This blog usually doesn't report on scheduling orders that are neither about trial dates nor about ruling dates. But yesterday's Federal Circuit decision on motions brought by Apple and the Business Software Alliance (BSA) is worth an exception, especially since many members of the standards community are among the most loyal readers of this blog.

I reported last month that the information and communications technology industry at large is extremely interested in the FRAND part of the cross-appeal of Judge Posner' Apple v. Motorola Mobility ruling. In a way it's regrettable that Google (through its wholly-owned and micromanaged subsidiary Motorola Mobility) is fighting against the best FRAND ruling to date. But there's an upside to every downside, and if the Federal Circuit upheld the substance of Judge Posner's position on FRAND, the industry would gain a far higher degree of legal certainty than a district court ruling provides. (Judge Posner is a circuit judge but he was sitting on a district court by designation to preside, as a volunteer, over the Apple v. Motorola Mobility case in Chicago.)

Apple's motion proposed a modification of the briefing schedule for amici curiae (third-party stakeholders submitting comments) with respect to the standard-esential patents issues in the case. Apple just filed its opening brief a few days ago, and amicus briefs in support of Apple's position would be due at around this time. But the FRAND issues won't come up in Apple's brief since Apple is appealing only certain non-FRAND parts of Judge Posner's ruling. Google's (Motorola's) brief, however, won't be due before March 20, 2013. And that will be the first pleading in which the FRAND issues get raised at all.

Apple ideally wanted the pro-Posner amici curiae to have until shortly after Apple's reply to Motorola's appeal (due in early May 2013). Google opposed this initiative categorically. More recently the Business Software Alliance (BSA) also brought a motion for an extension of time, but it said that this motion would be moot if Apple's motion was granted.

At first sight it appears that the appeals court has given Apple only a limited part of what it asked for and denied the BSA's motion entirely. At a closer look, however, Apple got roughly 90% of the benefit it was looking for, and the denial of the BSA's motion is a mere formality that means nothing at all. In fact, the BSA now has far more time than the extension it asked for. The appeals court just couldn't deny the BSA's motion as moot because it had not granted Apple's motion in its entirety. If the BSA had worded its motion in a way that would have applied to this scenario (such as declaring that its motion is moot in the event of any scheduling order that grants more time than requested), the motion would simply have been declared moot.

Apple has overwhelmingly prevailed here for the following reasons:

  • The most important thing is that the pro-Posner amici curiae will get to see Google's (Motorola's) anti-Posner argument before they have to file. They will presumably prepare their filings, but they can then make adjustments (especially in terms of prioritization) based on what Google (Motorola) submits.

  • This is far more important than for the amici to see Apple's filing. Any amici who will support Apple can coordinate their argument with Apple's counsel anyway, but not with Google.

  • If one additionally looks at this as an extension of time (more time for Apple to marshal support, which is what Google's opposition brief says Apple is interested in and which is perfectly appropriate, as well as more time for the amici), the extension requested by Apple (early December to early May) would have been a five-month extension, and the extension that has now been granted (until late March) is almost a four-month extension.

The Federal Circuit took its time to rule on Apple's scheduling motion, and in the meantime some amici had already filed their briefs. I will report more on the positions that different industry players take on this important matter. There are also some public interest statements filed with the ITC (in the Samsung v. Apple investigation) that I have yet to blog about.

In connection with patent enforcement, the appeal of the FRAND part of Judge Posner's ruling will be the biggest issue in the Federal Circuit next year. In the wider intellectual property context, the API copyrightability part of the Oracle v. Google appeal will be no less important (it's hard to compare the two cases, but the transcendental improtance of the issues raised is enormous in both cases).

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