On Friday (January 10, 2014), the United States Court of Appeals for the Federal Circuit rejected Google's (Motorola Mobility's) September 2012 appeal of an August 2012 ITC decision to toss all patents, except for one, asserted by Motorola against Apple back in 2010. At the time, three patents were thrown out. In this particular appeal, Google's Motorola focused on only one of them: U.S. Patent No. 6,272,333 on a "method and apparatus in a wireless communication system for controlling a delivery of data". The Federal Circuit affirmed the ITC decision (which found that Apple didn't infringe and, based on the same claim construction, Motorola's devices didn't practice the patent) because it was supported by substantial evidence.
Apple successfully intervened in defense of the ITC ruling. Its lead counsel was Orrick Herrington Sutcliffe's Mark S. Davies, and his partner Joshua Rosenkranz was with him on the brief. Mr. Rosenkranz has made himself a name as the "Defibrillator", having resuscitated various lawsuits at the appellate stage after unfavorable district court of ITC rulings, such as Apple's ITC complaint against Motorola (about a week ago the ITC already asked the parties for input on how to handle the remand proceedings). Two even bigger Federal Circuit wins for Mr. Rosenkranz are very likely to materialize soon: Oracle's copyright infringement case against Google appears to be alive and well again despite an erroneous district court ruling, and Apple will almost certainly get a Chicago trial over the "Steve Jobs patent" and other patents as a result of the "Posner appeal". Mr. Davies was/is also involved with the cases in which Mr. Rosenkranz has the lead. These two appellate lawyers and their team defeat Google again and again -- and this time around, on the defensive side as well.
Motorola's offensive patent cases against Apple and Microsoft are a joke, or a waste, or whatever you wish to call it. The $12.5 billion company has zero enforceable injunctions or import bans in place against Apple and Microsoft, after years of litigation. And it's already lost some appeals. For another example, earlier this month, the Federal Circuit issued a mandate in Microsoft's favor, strengthening Microsoft's case for Android patent royalties.
Google (Motorola) is still pursuing a second appeal from the same ITC investigation. Friday's ruling relates, as I mentioned above, to the 2012 appeal of the ITC's dismissal of three patents-in-suit. In April 2013, the ITC finally tossed the sole remaining patent-in-suit, U.S. Patent No. 6,246,862 on a "sensor controlled user interface for portable communication device" (which it found invalid). Google appealed that decision in May 2013. The appellate hearing will be held later this year. The hurdle is reasonably high there as well.
Motorola Mobility has a strong, if not impressive, defensive track record so far. But its attempts to create a situation of "mutually assured destruction" are rather pathetic. It will have its last chance to prevail (not counting appeals) on any of its patent assertions brought back in 2010 in the Southern District of Florida, where a trial in a two-way lawsuit with Apple is scheduled to take place in August.
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