The Federal Circuit has just ruled in Apple's appeal of a final ruling of the ITC, which had ruled in Motorola's favor, overturning the ITC in part and remanding the case:
Apple appeals from the final decision of the International Trade Commission (ITC) that the asserted claims of U.S. Patent No. 7,663,607 (’607 patent) are invalid and that Motorola does not infringe the asserted claims of U.S. Patent No. 7,812,828 (’828 patent). Apple challenges the ITC’s claim construction and its determinations of obviousness, anticipation, and noninfringement. For the following reasons, we affirm-in-part, reverse-in-part, and vacate-in-part the ITC’s decision and remand for further proceedings. So the ugly dance continues. Apple started the show in this particular tent of the overall smartphone patent wars circus, suing Motorola at the ITC for infringement of various claims of Apple's ’607 and ’828 patents, which are about touchscreens and multi-touch. The ITC found that Motorola didn't do what the claims cover, and Apple appealed. As you know, the Federal Circuit never saw a patent it didn't love, or at least rarely do they, and in their opinion, the ITC didn't correctly throw out certain prior art or come up with the correct construction of another patent, blah blah, and under the new Federal Circuit definitions and guidance, Motorola might infringe, so back it has to go to the ITC to reconsider the Federal Circuit's way:
We remand so the ITC can consider that evidence in conjunc- tion with the evidence of secondary considerations and determine in the first instance whether claim 10 would have been obvious to one of skill in the art at the time of the invention.... So back it goes. If you want to know what is going wrong in patent law, just read this ruling. Seriously.
We thus vacate the ITC’s decision that Motorola does not infringe the ’828 patent claims and remand the case to allow the ITC to consider in the first instance whether the accused products infringe under the correct construction of “mathematically fitting an ellipse.”
Here's the ruling:
08/07/2013 - 74 - OPINION and JUDGMENT filed. The judgment or decision is: Affirmed-in-Part, Reversed-in-Part, and Vacated-in-Part. (Precedential Opinion). (For the Court: Moore,Circuit Judge; Linn,Circuit Judge and Reyna,Circuit Judge). Opinion concurring-in-part and dissenting-in-part filed by Circuit Judge Reyna. 
Here's one example of the type of reasoning:
Secondary considerations evidence can establish that “an invention appearing to have been obvious in light of the prior art was not” and may be “the most probative and cogent evidence in the record.” Transocean, 699 F.3d at 1349 (quoting Stratoflex, Inc. v. Aeroquip Corp., 713 F.3d 1530, 1538 (Fed. Cir. 1983)). This evidence guards against the use of hindsight because it helps “turn back the clock and place the claims in the context that led to their invention.” Mintz, 679 F.3d at 1378. Apple presented compelling secondary considerations evidence that may have rebutted even a strong showing under the first three Graham factors, and the ITC failed to grapple with it. Apple made a lot of money and Time Magazine said the iPhone was the invention of the year, so it must be new and innovative, no matter what prior art you present. Sigh.
For example, Apple presented evidence of industry praise by business publications. Time Magazine hailed the iPhone as the 2007 “Invention of the Year” in part because of the phone’s touchscreen and its multitouch capabilities. J.A. 7483–84. Bloomberg Businessweek issued a 2007 article entitled “Apple’s Magic Touch Screen,” in which it labeled the “sophisticated multipoint touch screen” as “[t]he most impressive feature of the new iPhone.” J.A. 7826. Around the same time, Wired Magazine recounted that, after Apple demonstrated the iPhone and its “brilliant screen,” an AT&T executive praised the iPhone as “the best device I have ever seen.” J.A. 8259 (internal quotation marks omitted). The ITC failed to address this evidence and the record does not appear to contain any contrary evidence.
Apple also presented evidence of copying. The ITC failed to address this evidence as well.
Lastly, Apple presented evidence that the iPhone has achieved a high degree of commercial success. Apple presented financial information that showed that the iPhone and related products received billions in dollars of revenue from 2008 to 2010. J.A. 14184. Apple also presented evidence showing a nexus between the undisputed commercial success of the iPhone and the patented multitouch functionality, namely evidence that Apple’s competitors copied its touchscreen and that those in the industry praised the iPhone’s multitouch functionality. The ITC did not address any of this evidence.4
For the foregoing reasons, we vacate the ITC’s decision that claim 10 of the ’607 patent would have been obvious and remand the case for further proceedings.
Could somebody please nominate some geek judges? This is unbearable for software developers to watch.
Now you know why patent infringement lawsuits cost so much money. Nobody ever gives up, because nobody actually knows where the real line is. One entity says X, the appeals court looks at the same evidence and facts starting from GO, and then they say not X, Y. So parties never give up trying, in that you simply never know what is a valid patent and what is not.
They could solve this madness by simply noticing that
software patents are algorithms, which are mathematics (working on data), and mathematics is not patentable subject matter.
For those of you who like to track things in detail, here are the briefs the court was considering: Motorola is intervenor because the appeal was against the ITC, so that made the two parties Apple, appellant, and the ITC, appellee, but Motorola asked to file also as intervenor, and without objection, the court said fine.