Last week we brought you news that Judge Richard Posner had tossed out the patent infringement case between Apple and Motorola that was scheduled to begin trial soon. Judge Posner declared that neither company had managed to demonstrate that the alleged infringement was actually causing them harm, and that the case would be dismissed with prejudice, preventing either party from filing suit again over the relevant patents.
In that order, though, Judge Posner declared that he would refrain from filing the judgment until he could prepare a formal opinion, leaving him room to change his mind. Well, it seems that he did change his mind. Sort of. The case is still not headed to trial, but Judge Posner issued another ruling yesterday in which he declared that Apple and Motorola would have one more day in court. At this hearing, scheduled for June 20th, the two companies will have the opportunity to convince Judge Posner that they have enough of a case against each other to justify proceeding to trial. If the judge is not convinced, the case will be dismissed, as per the original order.
Perhaps the most interesting – and worrisome, if you’re Motorola – portion of the ruling is the last sentence, which reads “And if Motorola means to argue for injunctive relief it should be prepared to address the bearing of FRAND on the injunction analysis.” Motorola has gotten a lot of negative attention lately for its habit of suing over infringement on standards essential patents. These patents, which cover technology foundational to an industry, carry with them a requirement that the owner license them on “fair, reasonable, and non-discriminatory” (FRAND) terms, rather than seeking injunctive relief. In other words, Motorola is about to find itself facing some very awkward questions.
You can read Judge Posner’s new order below. Check back next week for information on how the hearing goes.