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Posner Takes a Swipe at Lawyers in Smartphone Patent Dispute; Will Other Judges Cite His Reasoning?

Posted Jun 26, 2012 5:30 AM CDT
By Debra Cassens Weiss

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Sitting as a trial judge in a patent dispute between Apple and Motorola, Judge Richard Posner dismissed the case Friday, saying neither company is entitled to an injunction. His opinion also criticized the lawyers who, in his view, failed to garner adequate proof of damages.

Posner, a judge on the Chicago-based 7th U.S. Circuit Court of Appeals, had already indicated he planned to dismiss the case, a patent dispute over technology used in Android mobile phones in which both sides alleged infringement. In a pretrial ruling, Posner had excluded testimony from damages experts for both Apple and Motorola. In an order earlier this month, Posner said neither side would be able to prove damages with remaining expert testimony and disclosed he had tentatively decided to dismiss the case.

Posner followed through Friday, when he ruled neither side would be entitled to an injunction, report the Wall Street Journal (sub. req.), TechDirt, Reuters and Bloomberg News. His ruling (PDF) took a hit at the lawyers representing Apple.

“Apple claims that Motorola profited from infringement by incorporating the desirable features of Apple’s patented technology into its own devices without either paying a royalty for a license to use the patents or incurring the cost of investing around them,” Posner wrote. “Apple has never contended that these benefits to Motorola of infringement cannot be quantified. It merely has failed, despite its vast resources and superb legal team, to do so in a minimally acceptable manner—failed whether because of mistakes in trial preparation (which even the best lawyers can make), or because too many cooks spoil the stew (Apple is represented by three law firms in this litigation), or maybe because the infringements did not deprive Apple of any profits."

Posner said there was no evidence of a loss of goodwill or market share by Apple entitling it to an injunction. "To suggest that it has suffered loss of market share, brand recognition, or customer goodwill as a result of Motorola's alleged infringement of the patent claims still in play in this case is wild conjecture," he wrote.

He also cited a related reason for denying the injunction: It would likely impose costs on Motorola disproportionate to the benefits gained by Apple. “An injunction that imposes greater costs on the defendant than it confers benefits on the plaintiff reduces net social welfare,” he said.

Will Posner’s reasoning catch on with other judges considering patent infringement claims? The Wall Street Journal spoke to experts about the impact of Posner’s opinion.

Some said that judges souring on the patent wars could follow Posner’s lead and dismiss cases because damages can’t be proven and injunctions aren’t justified. But others thought Posner’s decision was long on his own opinion and short on precedents, lessening its persuasive value.

Stanford law professor Brian Love was among those who questioned the reach of the opinion. "The ruling was more like a 'what Judge Posner thinks' rather than writing something that can be cited broadly or that other judges can use for their rulings," Love told the Wall Street Journal.

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