Last month I reported on wholly-owned Google subsidiary Motorola Mobility's petition for a rehearing of the Ninth Circuit's affirmation of Judge Robart's anti-enforcement injunction that bars Motorola from enforcing a German patent injunction while some dispositive FRAND contract issues are being worked out in the Western District of Washington. I mentioned statistics that made this petition for a rehearing a long shot, and indeed, the Ninth Circuit denied Google's request on Tuesday (November 6).
Google had asked for either a rehearing by the same panel of three judges or by the full court ("en banc"). Both requests were turned down:
The panel has unanimously voted to deny appellants' petition for rehearing. Judge Thomas and Judge Berzon have voted to deny the petition for rehearing en banc, and Judge Wallace so recommends.
The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing is denied and the petition for rehearing en banc is rejected.
I already said last month that most of those en banc petitions never even get voted on.
While this outcome was expected, it wasn't certain and its timing is significant as it comes exactly one week before the start of a FRAND rate-setting trial in Judge Robart's court. The Ninth Circuit's affirmation of Judge Robart's anti-enforcement injunction went way beyond the narrow scope of that particular preliminary injunction and more generally endorsed Judge Robart's problem-solving strategy. Now the Seattle-based court knows that its appeals court for this contract case backs its course of action without having second thoughts of any kind.
I explained on Monday that the cancellation of an Apple v. Motorola Mobility FRAND contract trial in the Western District of Wisconsin doesn't affect in any way the Microsoft trial that will go ahead next week. In fact, the Wisconsin case fell apart because Apple refused to make the definitive commitment to take a license on court-ordered terms that Microsoft had made in its own FRAND case, and Motorola's demand that Apple make such a commitment specifically argued that Apple should be required to do what Microsoft had volunteered to do. The Microsoft FRAND case was filed earlier, and most of the time the Wisconsin court, which made clearly FRAND-friendly pretrial decisions, was (while making its decisions independently) following the lead from Judge Robart.
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