In light of uncertainty surrounding the U.S. government's ability to operate after Monday (September 30) due to a budget impasse in Congress, the United States International Trade Commission (USITC, or just ITC) today filed a contingent motion with the United States Court of Appeals for the Federal Circuit, requesting in the event of a government shutdown a postponement of a Motorola v. Google appellate hearing scheduled for October 11. At that hearing, the ITC and intervenor Apple will defend the U.S. trade agency's August 2012 finding that Apple did not infringe three Motorola patents against Google's (Motorola's) appeal.
Only one of the three patents tossed by the ITC last year is at issue on appeal: U.S. Patent No. 6,272,333 on a "method and apparatus in a wireless communication system for controlling a delivery of data", which according to Google's lawyers "solves the critical problem of controlling the effective delivery of data to applications on a wireless device". Google (Motorola) is pursuing, on the basis of claim 12 of this patent, an import ban. The exemplary accused devices in the investigation are the iPad 3G, iPad 2 3G, iPhone 3GS, and the first-generation iPhone, but the scope of an ITC exclusion order would not be limited to those products: any other Apple smartphone or tablet infringing the patent would also be excluded.
Apple and Google understand the ITC's situation. The ITC argues that its counsel "will not be authorized to represent the Commission should a shutdown occur". Possibly, its counsel could not even "attend the oral argument should the shutdown extend through October 11, 2013". In any event, a shutdown starting Tuesday would affect "counsel's ability to adequately prepare for the argument". For as much as Google would like its appeal to be adjudicated sooner rather than later, it has to accept this reality.
Here's the ITC's contingent motion (this post continues below the document):
This is only the first of two appeals Google's Motorola brought against the ITC's determinations on its complaint against Apple. In May 2013 Google also appealed the dismissal of another patent-in-suit, which relates to the use of a proximity sensor.
Apple's appeal of the ITC's dismissal of its case against Motorola succeeded in very significant parts last month. Earlier this month Google then asked the Federal Circuit to reconsider its decision at a panel rehearing or even in the form of a full-bench review. The court invited Apple to submit a response, which it did yesterday. Apple counters Google's various arguments for a rehearing by saying that the petition for a rehearing is largely based on arguments it failed to make while it had the opportunity. I have uploaded Apple's filing to Scribd. I said before that I doubt Google will win a rehearing (these are rare), but I thought it did raise an interesting point when it proposed a claim-by-claim analysis of market success of an invention (a secondary consideration of non-obviousness). Apple explains now why it doesn't consider this reasonable, but I still believe that if any question raised by Google in its petition appears interesting, it's this one.
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