On June 23, Judge Posner issued a 38-page court order dismissing with prejudice the Apple v. Motorola patent case. Apple had four patents and Motorola, now Google, had just one in the case. Perhaps because of this some concluded Google won, but dismissed with prejudice means both Apple and Google will not be able to refile complaints on these patents and products in the future. Although the dismissal is appealable, I would be surprised if the Federal Circuit reversed it.
Judge Posner rejected Apple and Motorola's damage theories due to a failure of proof not because damages were incalculable. Judge Posner faulted the experts and attorneys, and was not willing to fill the evidentiary gaps. For example, one of Apple's expert stated a particular non-infringing chip was worth "a substantial fraction" of a $14.05 chipset, but conceded he could not quantify it. That kind of gap was held up for examination and skewered. Because of gaps like this, Judge Posner concluded neither party was entitled to an injunction nor damages and the case should be dismissed with prejudice, since permitting the parties to refile to fix the damage cases would be ridiculous.
This order is worth reading. It's a sharply worded tutorial on what evidence will be expected to establish damages in a patent infringement case in the future. Specifically, it discusses reasonable royalties, injunctions, and fair reasonable and non-discriminatory (FRAND) licensing of standard essential patents.
Judge Posner noted he wouldn’t ban a product that follows an industry standard unless the party (Apple) refused to pay a fair rate: "Once a patent becomes essential to a standard, the patentee’s bargaining power surges because a prospective licensee has no alternative to licensing the patent; he is at the patentee’s mercy."
Copyright © 2012 Robert Moll. All rights reserved.
