These days, Apple is generally proactive on the litigation front with a new ITC complaint against HTC (an enforcement-related follow-up to the first one) and a preliminary injunction request against Samsung's Galaxy S III smartphone.
Apple's legal team also appears to be quite excited about the opportunity to attack Google subsidiary Motorola with four patents at next week's trial in Chicago while its rival has only one patent left -- a standard-essential patent that Motorola will have to license to Apple on FRAND terms.
On Sunday, Judge Posner, the famous circuit judge sitting by designation on the United States District Court for the Northern District of Illinois to preside over the Apple v. Motorola trial, asked the parties whether he would still have jurisdiction on a request for declaratory judgment (of invalidity or non-infringement) with respect to a patent if a determination is made on summary judgment that the relevant patent entitles its holder neither to monetary nor to injunctive relief. The parties were asked to comment on or before Wednesday.
The parties' replies are diametrically opposed. While Motorola argues that the court doesn't have jurisdiction in that scenario, Apple emphasizes the discretion the court enjoys and efficiency considerations: with all the work that the parties have already done, Apple wants clarification on all of the pending claims, including declaratory judgment claims. Apple furthermore argues that this would avoid the need for a new trial if the Federal Circuit remands the matter.
Here's a paragraph from Apple's filing that I'd like to highlight:
"Both teams are ready and eager for trial. Apple and Motorola have expended considerable resources and effort to prepare this matter for trial. As the Court is well aware, this case is at the center of a wide-ranging dispute regarding the Android and Apple mobile platforms. The parties would benefit enormously from the clarity that only a verdict can provide. No other court is as close to reaching a decision on these issues between Motorola and Apple, and a determination regarding liability would greatly aid the parties in bringing their dispute to a resolution. Not to have a trial at this stage would be a waste of both sides' resources, and a waste of the considerable energy this Court has expended in getting this case ready for trial."
The first sentence is effectively contradicted by Motorola's argument: while Team Apple certainly appears to be "ready and eager for trial", Team Motorola knows that it has more to lose than to gain.
It's fair to say that the situation was almost exactly the opposite in the Southern District of Florida, where Apple complicated a case (which was supposed to go to trial later this year) by adding HTC as a counterclaim defendant, resulting in a new schedule that favors Apple and that Motorola doesn't like at all. Whenever the Florida case goes to trial, there will be likely be much more of a balance between the parties than in Chicago, where Apple has four patents in play (for now) and Motorola only one. The patents that Apple asserts in Florida are reasonably good, but Apple appeared much more interested in a delay than Motorola (though not as much as HTC).
The second sentence of the passage I quoted above puts the Chicago litigation into the wider context of the smartphone patent wars. For Motorola itself it actually wouldn't matter if the court entered a declaratory judgment on a patent over which Apple wouldn't win any remedies anyway. But those same patents are also being asserted against other Android device makers. Google, which owns Motorola and calls the shots, doesn't want Apple to win jury verdicts that it may be able to leverage, in one way or another, against other Android device makers.
The question of declaratory judgment over patents that won't result in remedies may be a non-issue if Judge Posner rules that each party is entitled to at least one kind of remedy (monetary or injunctive relief). I think the parties' anti-remedy motions should fail with only one exception: Motorola really isn't entitled to injunctive relief over a FRAND-pledged standard-essential patent. But it's possible that this question will be decided later, at a FRAND trial. Apple's argument against Motorola's pursuit of injunctive relief just received some very significant support from the Federal Trade Commission.
With the trial scheduled to start on Monday, I guess Judge Posner will decide on the final scope of the issues to be tried during the course of today (Thursday).
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