It would be an oversimplification to think that a lawsuit is over after the presiding judge says it's dismissed. There may still be different attempts to ask for reconsideration and a need for some clean-up, and the parties often keep jockeying for position with a view to the appeal. All of this applies to the situation in the Western District of Wisconsin in the aftermath of Judge Barbara Crabb's dismissal with prejudice of an Apple FRAND contract lawsuit against wholly-owned Google subsidiary Motorola Mobility.
On Monday, at or right after the hearing that resulted in the dismissal decision, Apple filed a nine-page bench memorandum regarding the court's jurisdiction over the matter and the nature of any dismissal. Apple made some really good points in it, which I'll discuss below, and that's why Google's (Motorola's) lawyers can't just sit back and wait. At this point it's realistically not about what the judge will decide -- she spoke clearly on Monday and will most likely stand by it -- but about how she's going to put things in the written order that the parties believe she will issue in addition to Monday's minute order that just referred to the record (i.e., hearing transcript). That can still make a major difference on appeal, or even while the appeal is ongoing it could affect which conclusions other courts with related cases before them (for example, if Motorola brought a new SEP enforcement lawsuit against Apple in the U.S.) draw from the Wisconsin dismissal.
Yesterday, Motorola asked the court for leave to file (no later than next Wednesday) a response to Apple's bench memorandum. Today Judge Crabb granted that motion.
Apple's memorandum sought to convince the court that it had jurisdiction, even under Apple's original "$1 max." stance but especially after Apple proposed a cross-license, to order Motorola to make Apple a FRAND offer. The other key aspect of Apple's memo was to argue that any dismissal for lack of jurisdiction should be a dismissal without prejudice. This is important because Apple didn't and doesn't want the Wisconsin dismissal to have res judicata effect on certain theories it may use as affirmative defenses against Motorola's infringement claims.
On the jurisdiction question, Apple draws an interesting comparison between Motorola's FRAND promises -- which are promises to offer a license on FRAND terms -- and options contracts, which are enforceable. Apple argues that Motorola needs to make a FRAND offer in order to comply with its FRAND promise, but whether or not Apple accepts such an offer is irrelevant to Motorola's obligations under its FRAND pledge. Motorola opposed the notion of having to make Apple an offer that Apple could look at and accept if and when it feels like it, or reject if it wants to use it as a starting point for bringing the royalty rate down. Apple's bench memorandum essentially says that Motorola's concerns don't count because a promise to make a FRAND offer must be enforceable regardless of a particular third-party beneficiary's future reaction to it.
I'm sure this options contract theory will be a cornerstone of Apple's appeal. Motorola's response will also address it.
Concerning the question of prejudice, it's hard to imagine that Judge Crabb's written order will differ from Monday's post-hearing minute order, but even if Judge Crabb formally still said it's a dimissal with prejudice, she might explain the scope of this prejudice in a way that Apple can still succeed with certain FRAND-related affirmative defenses to infringement claims.
After Motorola's response I wouldn't be surprised if Apple asked for leave to file a reply brief.
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