back to article Posner to Apple, Motorola: 'And don’t come back'

Judge Richard Posner of Chicago has ended the Apple-versus-Motorola legal battle, at least in America: not only has he dismissed the case, he has done so “with prejudice”, meaning the two companies can’t defibrillate the lawsuit with a new filing. Earlier this month, Posner had warned the companies that dismissal was likely. At …

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Excellent ruling. Shame they'll just pay off a judge somewhere else.

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Anonymous Coward

So you paid this judge to get a ruling you like? :-)

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Anonymous Coward

Just like the Irish and Greek Governments, just keep going until you get the answer you want...

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Yup Anon 2. They'll just keep filing under marginally different pretexts until they win. Shame your fellow anon is too stupid to understand this.

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Joke

old western joke

Two ranchers were in court contesting grazing rights. The Judge starts off by saying " last night the court received $10,000 dollars from the plaintiff. Last night the court received $15,000 from the respondent".

" The court will return $5,000 to the respondent and continue to try this case on it's merits".

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Costs?

So you paid this judge to get a ruling you like? :-)

No, the taxpayer pays the judge to get the ruling. However, in this case I would like to see the plaintiff and respondent paying the bill.

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Re: old western joke

Now that is exactly the type of lesson in the law I would deem reasonable to encounter in "The Moon Is A Harsh Mistress." Heinlein would approve.

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Re: I would like to see the plaintiff and respondent paying the bill.

Can we bill both of them for the full cost of the trial? Please? Pretty Please?

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Sounds like...

..the judicary are starting to get tired of being used as blunt instruments of commerce.

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Meh

Texass

Good thing the trial wasn't in Texas.

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Re: Texass

"Good thing the trial wasn't in Texas."

Why? A hanging judge might have solved the case once and for all

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Common sense... At last.... Maybe now we can get on with innovating products rather than trying to set legal precedents.....

Unfortunately that blind hope will be extinguished by the next round of law-suits coming soon.

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FAIL

won't you think of the lawyers

They pay these pretentious assholes regardless so why not give them something to do. Ack corporatism sucks monkey balls.

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Anonymous Coward

Umm sorry to nitpick but "So if Apple wants to block Motorola's products, or if Motorola wants to counter-sue" isn't very relevant to this case. Here Motorola tried to block Apple's products first and Apple counter-sued.

Actually Motorola is still ahead in the damages game since they have an active injunction against push iCloud services in Germany.

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attesting to what a terrific product the iPhone is ...

Not only does that have no bearing on the patent dispute, but I'm sure that Motorola could find lots of people who would say that the iPhone is crap.

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Holmes

Re: attesting to what a terrific product the iPhone is ...

Not the best in this context though, since Apple's argument was that the iPhone was popular due to patented features Motorola also used.

Finding media reports saying how terrific Motorola smartphones are might be, on the other hand, challenging.

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Re: attesting to what a terrific product the iPhone is ...

>Finding media reports saying how terrific Motorola smartphones are might be, on the other hand, challenging.

Which is kinda why the judge judged Apple's claims of lost revenue and loss of market share unsupportable.

It cuts both ways.

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Alert

Who rules on what FRAND should be.

If Motorola want 2.25% and Apple want to pay 0.001cent per license and won't pay that until the FRAND holder accepts then who rules on that. Apparently you can't block the competition because your patent is FRAND if you never agree to a really small amount, then how do you get any payment.

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Anonymous Coward

Re: Who rules on what FRAND should be.

Not sure if this is the case in question, but IIRC the 2.5% of total retail cost of an iPhone patent fee requirement, was based on discriminatory behaviour by Moto with respect to FRAND patents, whereby Moto arbitrarily changed their patent contract with a supplier of chips to phones, and made chips bound for iPhones (and ONLY iPhones) excluded, and thereby made APPL in breach by using said chips.

This is nefarious by Moto, and it is very definitely, provably discriminatory - something Moto is prohibited from doing.

Posner is taking the easy way out, avoiding the problem that is festering, which threatens to undermine the FRAND system.

As for Moto, they are Google, and Goole's MO has never involved legal or contractual compliance. If Google wants a law changed, they just breach it on a scale so grand that by the time the legal system catches up, the breach is irrelevant and the law so completely undermined that there is no remedy available. Keep watching this space ...

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Headmaster

Re: Who rules on what FRAND should be.

This judgement actually undermines the value of all patents, not just FRAND.

If you can't present an independently determined dollar value for each of your patents, to calculate calculate appropriate damages, Judge Posner dismisses your evidence and your case is toast.

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Anonymous Coward

Re: Who rules on what FRAND should be.

I mean, imagine I have a patent on making brighter LEDs yet sell them for not much more than other LEDs.

Some other company copies my brighter LED process.

How much would damages be in that case? It's hard to say. Yet, from my cursory reading of the 38 pages , the lack of an adequate damages value seems to be the biggest reason this case was dismissed.

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Re: Who rules on what FRAND should be.

He's saying that if you can't figure out how badly you're damaged, then you're probably not damaged at all.

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Anonymous Coward

Re: Who rules on what FRAND should be.

No, he was specially asking both Apple and Motorola for close, independently confirmed, dollar amounts for the value of the patent, to be used in determined damages.

Like in my brighter LED example above, I would obviously be affected by that competitor. But saying precisely how much sounds next to impossible, especially in the time frame allowed for this case.

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Re: Who rules on what FRAND should be.

As I understand his ruling, the point that exasperated him wasn't so much the lack of a statement of damages as the combination of this with the plea for an injunction. In effect the plaintiff is saying "we can't say what economic damage is being done but we know it is so severe that only an immediate prohibition of the competing product can give acceptable relief". That's a drastic remedy and it seems fair that you have to provide some good justification.

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Re: Who rules on what FRAND should be.

Wouldn't it be easier for a company to find how much damaged is caused by the competitor than people like us?

Though I would rather check out how many products are sold and then calculate how much you could earn from each. Or in the case of Apple check how much other companies license it for, or how much a similar patent can be licensed for then calculate how much money you will lose.

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Anonymous Coward

Re: Who rules on what FRAND should be.

FRAND rates are worked out like this: They just take the value of the patent *before* it became part of the standard. And most of the patents used in the standard are worth very little, because they're a) fairly minor and b) can be worked around.

Simple example: I invent some new encryption system and patent it. There are a million encryption systems out there, only reason you'd license mine is convenience, so it's worth perhaps a penny per product, up to a maximum of maybe $500k/year.

Then somebody decides to pick my system for the 5G phone network. All 5G phones MUST implement my patent or they can't make phone calls - suddenly the patent is very valuable, because you can't pick an alternative. If I can stop you from using it, you can't make a phone. This is why the value is based on the pre-standard value. Which is never, ever 2.25% of the retail price of an iPhone ;)

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Anonymous Coward

@dx - Re: Who rules on what FRAND should be.

So you just pull out of thin air a value so big that you"re sure will drive you opponent out of business. Oh, and you want a judge that will swallow that.

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Anonymous Coward

@BrownishMonstr - Re: Who rules on what FRAND should be.

Do you have any idea how much is Microsoft charging Android OEMs per device for the patents in question ? Who do you think is going to give you that info ?

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@Chris 19 - Re: Who rules on what FRAND should be.

Trouble is you can't work around broad patents. Just from reading the patent you can't tell for sure if your product is infringing or not, you need a judge and a jury to decide that. Then, if you're successful, you continue with the clearing of the remaining 5000 patents. Oh, and if you show to the court you tried to work around the patent, that will make it willfull infringement and you'll be very sorry for that.

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Anonymous Coward

Much more interesting than the article makes it sound!

There's a lot more to this ruling. First, the most obvious one: the article is totally missing the A-word, as that's likely the next step. No, not that one - appeal. Both parties can appeal this. Apple are almost certain to do so. Motorola, no idea.. i suspect it's a bad idea, but that hasn't stopped them before.

Then there's the actual ruling. He basically shot motorola's arguments down in flames, and said "no chance". Apple's side was different - he said they'd failed to prove their case, meaning that if they try again in the appeal they might have better luck.

And finally there's his real point. Let's say motorola had really built an absolute rip-off of the iphone. Apple can't go to court and just say "it's a rip-off of our awesome product" (this is what he criticised apple for the "feel good product" over). They have to sue over individual technical or design patents, then tie that exact patent say loss of market share, and specific financial harm. That's what apple failed to do - and it's incredibly hard to do it. He's saying the patent system is broken right there.

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Anonymous Coward

Re: Much more interesting than the article makes it sound!

You are pretty close! Traditionally, in patent infringement cases it has been very easy for the plaintifs in court, the barrier for them was incredibly low while the defendant had an uphill battle with all the burden of proof. What this judge did was to restore some balance in that the burden of proof must be shared a bit more equitably. The judge did it very well in my opinion in that neither party can be considered as being disadvantaged.

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Never gonna happen

"Both parties can appeal this. Apple are almost certain to do so."

Technically that's true but we are dealing with Justice Richard Posner who sits on the U.S. Court of Appeals in the 7th Circuit. That leaves exactly one court they can appeal to, namely the Supremes. Somehow, considering Posner's weighty reputation as a legal scholar, I think if either company went to the U.S. Supreme Court with this people in Hawaii would hear all nine Justices laughing in D.C. Besides, even if, by some miracle, the Supremes agreed to hear the case by the time it came up for trial it would be about the iPhone 45S and the patents would have expired anyway.

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Re: Never gonna happen

Was this case heard by the entire panel of the Court of Appeals? If not, the option may remain open to have the case reheard before the entire panel of the 7th Circuit. Of course, they could simply refuse to hear the case as well, citing the competence of the original judgment.

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Two US companies

I wonder whether the outcome would've been nothing for anyone if one of the parties had been a non-US company?

With a sufficiently no-nonsense judge like this one it's perhaps unlikely to make a difference (and I wonder if SCO might've been resolved a lot quicker if he'd been presiding?) But more generally when one of the parties is foreign, a travesty of justice like NTP vs RIM seems more than likely.

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Re: Two US companies

Well, well ... what did I just say?

When one of the companies is Samsung, the result is indeed different as reported today at http://www.theregister.co.uk/2012/06/27/apple_wins_tab_ban/

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Go

US Judges Getting Increasingly Smarter

What with the Oracle case judge actually learning basic programming and this cases judge telling both parties to take a walk, perhaps the lawyers will be given a back seat and let the technicians and designers do their thing.

Good ruling, for the public.

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Re: US Judges Getting Increasingly Smarter

He didnt just learn basic programming, he was a programmer with knowledge of a few languages.

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Re: US Judges Getting Increasingly Smarter

The weird thing is that Posner was best known as a legal philosopher -- one of the leading lights of the Chicago School (economic analysis of the common law and related stuff). Lots of people, me included, were surprised that he made an even better judge. Sadly for him, if he'd been a bit less famous as a conservative philosopher, he'd be on the Supreme Court today.

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@ Jeebus "They'll just keep filing under marginally different pretexts until they win."

This assumes that the litigant's lawyers are smart enough to devise "marginally different pretexts" that in no way resemble the claim that Posner dismissed with prejudice. Remember Apple's lawyers didn't even have the brains to discover who the real owner of the trade mark, 'IPAD,' was.

Do you really think that Federal Appellate Court judges sit in their chambers praying for a software patent case? I don't think so.

All they have to do is cite Posner and they'll get a lovely affirmative action case the next day.

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Everybody Talks About The Patent Mess

But nobody ever DOES anything about it. Until now.

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WTF?

Re: Everybody Talks About The Patent Mess

"President’s Commission on the Patent System"

"During the early 1960s, the U.S. Patent and Trademark Office faced a backlog of patent applications and a 4-year pendency for an application prior to issuance as a patent. The PTO and the patent system experienced further difficulties because of a limited budget and processing methods that could not adequately handle this volume of applications. As a result, the President’s Commission on the Patent System was established in 1965 to address these problems and suggest revisions to the Patent Act. Reflecting the policy concerns of the PTO, the Commission recommended against patent protection for computer programs. The Commission report stated:"

“ The Patent Office now cannot examine applications for programs because of the lack of a classification technique and the requisite search files. Even if these were available, reliable searches would not be feasible or economic because of the tremendous volume of prior art being generated. Without this search, the patenting of programs would be tantamount to registration and the presumption of validity would be all but non-existent. ”

Makes you wonder.

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Megaphone

is apple get ten the message yet

when is apple going to learn no matter how many patents you file competition company's counter sue, lets hope we hear the last of it. and you wonder why i don't touch apple with there premium prices overcharge for something with a apple logo on it wow, the only reason why apple went for Motorola and Samsung and htc was cause there the only names they could think of, what about Sony lg acer etc. if apple cant take the competition they should stick to mac computers,

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WTF?

Re: is apple get ten the message yet

Er, Motorola sued Apple, then Apple counter-sued. Or in your parlance "Motorola went for Apple".

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Naughty school children?

Did the ruling also include the phrase: "Grow up and stop bickering?"

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