Fair, Reasonable, And Non-Discriminatory Dismissal? (With Prejudice)

by Adam Philipp on July 5, 2012

Judge dismisses case
For both Google and Apple;
Appeals to follow?

The late Steve Jobs threatened to "go thermonuclear" over Google’s Android technology and told his biographer, "our lawsuit is saying, ‘Google you f***ing ripped off the iPhone, wholesale ripped us off.’"

But in a June decision, Judge Richard Posner dismissed one Apple lawsuit claiming that Motorola’s Android phones “ripped off” the iPhone, as well as Motorola’s claim that Apple had infringed a Motorola patent.

Judge Posner has been called the most cited legal scholar of the 20th century, and he normally sits on the Seventh Circuit Court of Appeals.  He reportedly volunteered to preside over the Apple-Google dispute in federal district court.

After cancelling a trial between Apple and Google-owned Motorola originally scheduled for June 11, Judge Posner agreed to hear Apple’s request for an injunction involving certain Motorola phones.  Two days after the June 20 hearing, he issued a 38-page opinion in which he dismissed all claims with prejudice.

By the time it ended, the case involved four Apple patents (out of an original 16) and one Motorola patent (from the original six).  The remaining Motorola patent is considered standards-essential to GSM (a mobile communications standard) and is known as a “FRAND” patent, since it must be licensed on “fair, reasonable, and non-discriminatory terms” to be accepted as a standard. 

Judge Posner questioned whether it was even possible to seek an injunction against the use of a FRAND patent:

How could [Motorola] be permitted to enjoin Apple from using an invention that it contends Apple must use if it wants to make a cell phone with UMTS telecommunications capability — without which it would not be a cell phone?

Motorola subsequently filed a letter with the ITC, where it has a case involving FRAND terms related to Microsoft’s Xbox pending, calling Judge Posner’s ruling "a recent non-final, non-binding district court decision" – presumably signaling Google’s intention to appeal.

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