Thursday, August 22, 2013

Verizon, advertising agencies and Ford can't participate in Google-Apple appellate hearing

Today the United States Court of Appeals for the Federal Circuit denied a motion by Verizon, the American Association of Advertising Agencies and the Ford Motor Company to participate in the September 11, 2013 hearing on the Apple v. Motorola cross-appeal of Judge Richard Posner's dismissal of a two-way patent infringement lawsuit. These parties had already submitted a joint amicus curiae brief and support both parts of Judge Posner's ruling, the one relating to Apple's offensive claims over non-standard-essential patents as well as the one relating to Motorola's offensive claims over FRAND-pledged standard-essential patents. As usual, the appeals court did not state the reasons for this case management decision. It appears that amici curiae rarely get speaking time at those hearings.

Apple was flexible about these stakeholders' participation (provided that its own speaking time would remain unchanged). Google's Motorola strongly, and ultimately successfully, opposed it.

Despite the denial, Verizon and friends made a valuable contribution by bringing this motion in the first place. Their motion prompted Google to claim that they support Apple all the way. In their reply brief Verizon et al. clarified that this was simply not true. And in its effort to prevent third-party stakeholders from getting to speak at the hearing, Google surprisingly took a position on the scope of the ruling that is consistent with the one outlined by Microsoft's amicus curiae brief, but runs counter to what Google said in its opening brief. Google now agrees with Microsoft that the issues on appeal are very case-specific, while it originally claimed that Judge Posner established a bright-line rule denying injunctions to SEP holders.

Verizon and friends' initiative also demonstrated to the appeals court and everyone else with an interest in this case that certain neutral third-party stakeholders (Verizon is certainly not anti-Google in general) support Judge Posner's ruling all the way.

I will report on the hearing in three weeks as soon as the recording becomes available.

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