The United States Court of Appeals for the Federal Circuit, which has jurisdiction over (among other things) all appeals from district court rulings on U.S. patent infringement cases, has just given notices of its scheduling decision in Apple and Google's (Motorola's) cross-appeal of Judge Richard Posner's dismissal of a two-way Apple v. Motorola lawsuit in Chicago in June 2012. The parties have raised some highly strategic issues with respect to FRAND-pledged standard-essential patents (SEPs) as well as in connection with remedies for infringement of non-SEPs, though Microsoft argued in an amicus brief supporting Apple and Judge Posner on FRAND that Judge Posner did not create a bright-line rule prohibiting SEP-based injunctions, so his fact-specific decision should not be blown out of proportion on appeal.
The hearing will take place on a day that is easy to memorize -- 9/11 (click on the image to enlarge or read the text below the image):
07/22/2013 205 NOTICE OF CALENDARING. Panel: 1309G. Case scheduled Sep 11, 2013 10:00 a.m. in United States Court of Appeals for the Federal Circuit (Howard T. Markey National Courts Building 717 Madison Place, N.W. Washington, DC 20439), Courtroom 201. Response to oral argument order due: 08/15/2013. Counsel should check-in 30 minutes prior to the opening of the session. Please review the Oral Argument Order.  [13-1156, 12-1548, 12-7151, 13-5028]
Judge Posner is an appeals judge himself (Seventh Circuit), but in this particular case he was sitting on the United States District Court for the Northern District of Illinois after volunteering to handle a patent infringement case that was transferred out of the Western District of Wisconsin in order for him to take over. Judge Barbara Crabb, who later dismissed a FRAND contract/antitrust case between the same parties that didn't involve infringement issues per se (and has been appealed to the Federal Circuit), wrote at the time that the case would be put before "a kind judge in Chicago who enjoys trying patent cases". The case wasn't tried: instead, it was dismissed, and that's what the parties are appealing. Judge Posner explained, in different words, that he determined he couldn't take a trial to the case only for his own edification. And Judge Posner's passion for adjudicating patent cases does not mean that he's in favor of the patent system. Ever since that Apple v. Motorola ruling, he's been one of the most vocal critics of the state of affairs of the patent system. He clarified at a conference a few months ago that he's not advocating "abolition or anything", but he's given interviews such as this one to Reuters, spoken at different events, authored opinion pieces (such as Why There Are Too Many Patents in America), and just this weekend the Becker-Posner blog (co-authored by Judge Posner and Nobel Prize-winning economist Gary Becker) published two posts relating to the current patent reform debate (Posner, Becker).
With respect to FRAND, Google is the appellant and Apple the appellee urging affirmance. Google challenges Judge Posner's denial of injunctive relief and argues that its agreement with the FTC does not prevent it from seeking injunctions against Apple, an allegedly-unwilling licensee. Google's Motorola furthermore fights against an alleged devaluation of SEPs because Judge Posner also threw out Motorola's damages claims.
The same remedies were also denied with respect to Apple's non-SEPs-in-suit, but the related decisions were even more fact-specific and partly of a more procedural nature. According to Google, Judge Posner's ruling is like a "policy paper on what FRAND should or could be".
I've heard from a patent law professor that there is doubt in the legal community about some of the most strict aspects of Judge Posner's approach to damages theories, and experts believe that at least parts of his decision may be reversed or vacated. I, too, expressed doubts in my initial analysis of Judge Posner's ruling about his strict handling of the case, while supporting the FRAND part all the way.
The FRAND part of this appeal has, quite expectedly, given rise to various amicus curiae briefs, which I reported on:
Pro-Posner: Microsoft and Intel; subsequently I published and commented on Microsoft's brief, which correctly stresses that standard-setting itself would be a blatant antitrust violation without FRAND; BSA and four law professors; Cisco, HP, Wal-mart et al. (focusing on damages for SEPs and non-SEPs, not injunctions)
Judge James Robart's Microsoft v. Motorola FRAND rate-setting decision in the Western District of Washington is separate and in many ways different from the Chicago case on appeal here, but Apple filed a notice to draw the Federal Circuit's attention to this landmark ruling, and in its reaction, Google told the appeals court what it actually likes about the Seattle decision.
Two other hearings relating to high-profile smartphone patent cases have previously (and very recently) been scheduled by the Federal Circuit for this summer. On August 6 the Federal Circuit will hear the Microsoft-Google cross-appeal of last year's Microsoft v. Motorola ITC ruling, and on August 9, Apple and Samsung will square off over last year's denial of a permanent injunction against multiple Samsung products despite Apple's major trial win.
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