Judge Posner continues to act like a winnowing machine in his efforts to reduce the scope of the Apple v. Motorola Mobility trial that will start on Monday (June 11). Yesterday I reported that he asked questions that could point to some further reduction of the scope of the upcoming trial (or theoretically get the trial canceled in its entirety). Today, Judge Posner started the day by granting an Apple motion for summary judgment of non-infringement of U.S. Patent No. 6,175,559 on a "method for generating preamble sequences in a code division multiple access system". Motorola declared that patent essential to the 3G (UMTS) standard.
I saw this coming in March. In this section of a post on a claim construction order I said that "Judge Posner adopted two Apple constructions and rejected Motorola's counterproposals" and said that Apple had won "constructions that make [an] infringement finding unlikely". Judge Posner just agreed.
By now, the newly-acquired Google subsidiary has only one patent (out of six that it originally asserted in this action) left to assert at the upcoming trial: U.S. Patent No. 6,359,898 on a "method for performing a countdown function during a mobile-originated transfer for a packet radio system". This one is related to GPRS, the data transmission standard built on top of GSM. Motorola won (and temporarily enforced) an injunction against Apple over the European equivalent of this patent in Germany.
According to its own claim that "it only takes one bullet [i.e., standard-essential patent] to kill", Motorola would still be able to achieve its objectives with the sole remaining patent. But it will then depend entirely on the jury's assessment of its claims with respect to a single patent. That's a gamble. And even if it prevails, there will be a FRAND trial.
Apple goes into next week's trial with four patents (out of the 15 it originally asserted) as of now, but Judge Posner isn't necessarily done winnowing. There may be more to come. In Judge Posner's court, patents-in-suit are an endangered species.
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