We're only five days away from the first Apple v. Google trial in history (given that Motorola is now a wholly-owned Google subsidiary, a fact that Google just notified to courts throughout the United States), and the exact number of patents to be put before a Chicago jury is still in flux. Early on Tuesday, Judge Posner threw out one of Motorola's two patents-in-suit. Later in the day, he denied 11 summary judgment motions the parties brought on May 30 to gain some advantages. The denied motions include
an Apple motion to have Motorola's sole remaining patent-in-suit (the '898 "GPRS countdown" patent) declared invalid;
Motorola motions to have the asserted claims of Apple's '949 "touchscreen heuristics" (two separate motions, one of them based on an indefiniteness theory) and '263 "realtime API" patents declared invalid;
Motorola motions to find the asserted claims of the '002 "status bar", '263 "realtime API", '647 "data tapping" and '949 "touchscreen heuristics" patents not to be infringed; and
Apple motions to throw out certain invalidity contentions targeting its '002 "status bar" and '647 "data tapping" patents.
According to the order, Apple's lawyers made a filing mistake. Apple brought two motions against Motorola's invalidity contentions for the '647 "data tapping" patent, one relating to a prior art reference named Perspective and another one related to Sidekick. Apple filed the memorandum in support of its Perspective-related motion twice, but failed to provide a memo on Sidekick. Judge Posner said it's "now too late for Apple to brief its motion on Sidekick, so the motion is denied". Given that all similar motions were denied, this one would most likely have failed anyway. These kinds of clerical errors happen, especially when a large number of summary judgment motions (with lots of supporting documents) gets filed on the same day. Those summary judgment motions were sealed, so observers like me couldn't have pointed Apple to this clerical issue.
Other than that, Judge Posner didn't provide reasons for his denials, citing a lack of time. The parties can still renew those motions (unless the legal basis for a given argument is refuted a trial) in the form of motions for judgment as a matter of law later on.
At this stage, there's only one category of summary judgment motions left to be decided. Later today, the parties will file their opposition briefs to each other's relief-related motions. Each party argues that the other is neither entitled to damages (since Judge Posner's Daubert rulings dismissed all damages theories) nor to injunctive relief. I wrote about this on Monday because Judge Posner was wondering whether he'd have to throw out even more patents ahead of trial if there are any patents with respect to which there's no entitlement to relief of any kind. For now I think there'll be four Apple patents and one Google/Motorola patent at the trial starting next week. The anti-relief motion that I would like to see succeed becaue of the importance of the issue is Apple's claim that Motorola isn't entitled to an injunction over its FRAND-pledged standard-essential patent-in-suit. A bipartisan majority of the Federal Trade Commission is also against SEP injunctions, and so are industry leaders including Apple, Microsoft and Cisco. But unlike Apple I think Motorola should get paid at a FRAND rate (Moto's 2.25% royalty demand and $347 million claim for past damages obviously aren't FRAND) if Apple is found liable for infringement of that patent.
If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.
Share with other professionals via LinkedIn:
