Friday, August 2, 2013

Verizon, advertising agencies and Ford want to go to bat for Judge Posner at Federal Circuit hearing

On September 11, 2013, the United States Court of Appeals for the Federal Circuit will conduct a hearing on the Apple v. Motorola cross-appeal of Judge Posner's dismissal of a two-way lawsuit in the Northern District of Illinois in June 2012. The most influential part of Judge Posner's ruling has been the one related to Motorola's pursuit of excessive damages and injunctive relief over standard-essential patents (SEPs), but he also denied those remedies to Apple over certain non-SEPs.

Many major stakeholders have filed amicus curiae briefs in connection with this appeal. Most recently I reported on Microsoft's brief. Three amici -- Verizon Communications, the American Association of Advertising Agencies, and Ford Motor Company -- brought a motion on Thursday evening because they are eager to participate in the September 11, 2013 hearing (this post continues below the document):

13-08-01 Verizon AdvAgencies Ford Motion to Participate in Hearing

Verizon, Ford and the advertising agencies declare themselves in "substantial agreement with Judge Posner's reasoning on the remedial issues in this case", referring to the FRAND SEP and the non-SEP parts alike. They oppose injunctive relief over FRAND-pledged SEPs as well as over "only a minor component in a multi-component device", and they want reasonable royalty damages to be "constrained by the value of the patented technology over alternatives at the time of the design decision". This across-the-board support of Judge Posner's ruling means that Verizon and friends oppose both appeals and, by extension, agree and disagree with either party.

Considering that Verizon, Ford and the advertising agencies take a position that's really in between those of the parties, it's interesting to see that Apple is far more open-minded about their desire to participate in the hearing than Google is:

"Apple has advised that it takes no position on this motion, so long as any time allocation is added to the time that has already been granted, but opposes any accommodation that would decrease the time already allocated. Motorola will file an opposition."

I'm not an expert in the admissibility of oral argument by amici curiae at appellate hearings. Whatever the appeals court will decide, the mere fact that these three amici want to participate in the hearing, which will come with a significant cost including preparation, shows that patent remedies -- especially, but not only, with respect to SEPs -- are of major concern to them and that they are willing to put their money where their mouth is.

Last month, Verizon's general counsel, Randal Milch, wrote an op-ed for the Wall Street Journal entitled "Samsung vs. Apple Needs an Obama Intervention", referring to the otherwise-imminent U.S. import ban of older iPhones and iPads (over a FRAND-pledged, declared-essential Samsung patent) that major industry players and, especially, four United States Senators from both sides of the aisle are also concerned about. Unless that ban is vetoed or stayed, it will take effect this coming Monday. The ITC ruling is totally antithetical to Judge Posner's position, except for Commissioner Pinkert's well-reasoned dissent.

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