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Another Spanking for Apple From Judge Posner ~pj
Wednesday, July 04 2012 @ 03:17 PM EDT

Would you like to read something funny? The very intriguing Judge Richard A. Posner has issued another order [PDF], and it's another little spanking of Apple in the Apple v. Motorola patent litigation case, the one he dismissed with prejudice on June 22. If only all judges were as astute about patents!

Some are, of course. In fact, a judge in the UK just ruled that HTC doesn't infringe Apple's slide to unlock patent, as there is prior art from the Swedish phone Neonode N1. This is the same stupid patent Judge Posner mocked, I believe ("Apple’s .. argument is that 'a tap is a zero-length swipe.' That’s silly. It’s like saying that a point is a zero-length line."), and it's definitely the same one that just got Apple an injunction for now on the Nexus, BBC News reports:

Apple has previously defended its slide-to-unlock patent in other disputes against Samsung, HTC and Google's Motorola unit with some success.

Most recently a US court ruled the patent was valid in a dispute that led to a sales ban being imposed on the Google-branded Nexus smartphone.

So maybe in time, reason will prevail. But probably not initiated by Apple, as I'll show what they've been up to after the dismissal, according to Judge Posner, who was not amused. Or maybe he was. I am.

Here's the order, which arose because after the judge dismissed the case with prejudice, Apple tried a workaround, trying to salvage two of its patents from sudden death against Motorola:

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT
OF ILLINOIS EASTERN DIVISION

________________

APPLE INC. and NeXT SOFTWARE
INC. (f/k/a NeXT COMPUTER, INC.),

Plaintiffs,

v.

MOTOROLA, INC. and MOTOROLA
MOBILITY, INC.,

Defendants.

____________

No. 1:11-cv-08540 Judge Richard A. Posner.

ORDER OF JUNE 26, 2012

The case having been dismissed, I am not at all sure that I have jurisdiction to issue this order! Anyway it really isn’t an order, but merely a comment on an email.

The email is from Apple and concerns the judgment of dismissal with prejudice that I directed be entered on June 22, 2012. Much of the email is taken up with rulings that I made in the course of the litigation. On appeal from a final judgment a party can seek appellate review of any interlocutory ruling that has not been rendered moot by the final judgment. There is no occasion for specifying those rulings in the judgment itself.

Apple refers to a January 19, 2012, email in which it said it “will move”—not that it was moving—to sever its claims relating to alleged infringement by Motorola of two patents, the ‘721 and the ‘983, and to stay further action on them in this litigation, pending the Federal Circuit’s resolution of an appeal involving the same patents in a suit between Apple and HTC. Apple v. HTC, No. 2012-1025 (Fed. Cir. filed Dec. 29, 2011). (HTC, like Motorola, is a manufacturer of cell phones that use the Google-developed Android operating system.) The exact language of the January 19 email, so far as pertinent to severance and stay, is: “Apple will move pursuant to Fed. R. Civ. P. 21 to either sever its infringement claims as to U.S. Patent Nos. 5,481,721 and 6,275,983, and/or to stay resolu-

tion of those claims pending the Court of Appeals for the Federal Circuit’s resolution of a pending appeal involving the 721 and 983 patents.” Notice that the email does not commit to sever (“and/or to stay” (emphasis added)). The email itself was thus not a motion for a severance or for a stay, and I took no action in response to it. That was five months ago and until yesterday, June 25, I had not heard a further peep from Apple about these two patents. I assumed it had abandoned its claims.

Apple indicates in its email that it wants me to sever those patent claims and stay action on them. Coyly, it still has not filed a motion to sever, as required by Fed. R. Civ. P. 21. The informal suggestion in the January 19 email, never followed up, of a possible future motion to sever the two patents did not survive the entry of final judgment. Keeton v. Morningstar, Inc., 667 F.3d 877, 882–83 (7th Cir. 2012). At the hearing on June 7, I indicated my tentative decision to dismiss the entire case, yet that did not trigger a motion to sever the ‘721 and ‘983 patent claims either. That decision became final on June 22. By its inaction, which given the quality and resources of Apple’s legal team I must assume is strategic, Apple has forfeited any right to a severance.

June 26, 2012

[Signature of Richard A Posner]
United States Circuit Judge

2

Don't you love the word "coyly"? He misses not much, like Judge William Alsup in the Oracle v. Google litigation.

Judges are definitely beginning to notice that they are being used not to resolve real legal issues, but as a proxy for a competition struggle, and I don't think they much care for it. Judge Posner said the US patent system is "dysfunctional". When judges start to say things like that, the tide can begin to turn. It reminds me a little of Righthaven-style copyright infringement business plans that at first seemed to be working, making a list of gazillions of anonymous infringers at once and asking the courts for their names prior to identifying who actually was or wasn't infringing because it was cheaper than suing them individually, until judges began to figure out what it was all really about and shut it down hard.

Patents are trickier, and Apple isn't Righthaven, but slide to unlock? Apple wants to shut down an entire product line over slide to unlock? Are they kidding? Hopefully, somebody will show the judge who just ruled the patent viable that there is prior art.

Finally, please do watch Dan Ravicher of PubPat's video of a talk he gave at Google in April about patents, why they are such a mess, and what we can do, including helping find prior art. He explains what he has found to be the most useful way to go about finding prior art, patent mapping, which he explains at around the 49:00 mark. Those of you who regularly help in our deep dives into prior art searching at Groklaw may find it useful to add this skill to your repertoire.


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