On Monday, a Google-led group of companies also including HTC, SAP, Rackspace and Red Hat filed a motion for leave to submit an amicus curiae brief to the United States Court of Appeals for the Federal Circuit in connection with Apple's appeal of a district court's denial of a permanent injunction despite a multiplicity of infringement findings by a federal jury. Samsung filed its opening brief last week. The motion by Google et al. already indicated that Apple had declared its intent to oppose it. Apple was quick and filed its opposition only a day later (this post continues below the document):
Apple's argument is based on the fact that Google is "the developer of the Android operating system running on the Samsung smartphones that Apple seeks to enjoin in this case", an interest that conflicts with the traditional role of an amicus as 'an impartial friend of the court--not an adversary party in interest in the litigation.'" (citation to other case omitted; emphasis in original)
Apple then cites cases in which courts denied permission to submit an amicus bief "to prevent 'an end run around court-imposed limitations on the length of parties' briefs.'" This was just a quote from a decision by Judge Posner, who also expressed concern about cost implications. Apple cites other cases as well. The law firm of Duane Morris has a good blog post on this topic, Can You Ever Have Too Many Friends (of the Court)?, which notes that "someone who contemplates taking the position of a 'friend of the court' needs to find a way to rise above the din".
Apple doesn't raise objections with respect to Google's co-submitters (HTC, SAP, Red Hat, Rackspace). It also doesn't say what Google should do instead, but there's one thing that Apple obviously means to suggest and another thing that I'd like to add. Apple apparently believes that if Google has anything to say, it should cooperate with the Samsung entities that have to defend themselves in this litigation because that would be the appropriate channel. Basically, Google is a co-defendant. But the Federal Circuit rejected a similar argument last year in connection with the Galaxy Nexus smartphone, a device Samsung and Google officially co-developed. Google's submission was deemed admitted at the time.
Regardless of whether the Federal Circuit will accept Google's amicus brief this time around, I believe amicus briefs are a rather weak kind of support for Google to lend to its partners. In August 2011 Google announced the $12.5 billion acquisition of Motorola Mobility and promised the Android ecosystem that it would use Motorola's patents to "protect" Android, specifically naming Apple and Microsoft as parties that Google wanted to use those patents against. But that strategy hasn't worked out and probably never will. Google has had far more (and far more important) losses than wins on the smartphone patent front. Its desperate reliance on standard-essential patents (SEPs) has created antitrust problems (on Monday the European Commission issued a Statement of Objections, a preliminary ruling finding Google's Motorola guilty of abusive conduct). The Guardian has a report entitled "Google under pressure to cut $5bn valuation of smartphone patents". Google thought it had acquired a patent arsenal with which it could solve Android's court-established, wide-ranging patent infringement issues. By now it's pretty clear that Google lacks leverage to get away with infringement and can't help its partners other than in purely defensive terms (searching for prior art, developing non-infringement arguments, intervening in certain lawsuits, and filing amicus curiae briefs that struggle to rise above the din).
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: