A U.S. judge has scheduled an injunction hearing in a patent dispute between Apple and Motorola Mobility, after raising the possibility last week that the case may be dismissed as neither side had established a right to relief.
Judge Richard A. Posner said in an order on Wednesday that the hearing would be on June 20, and each party may argue for injunctive relief against alleged patent infringement by the other. "The parties should be prepared to address the possibility of substitution for an injunction of an equitable decree for a reasonable royalty going forward," the judge said.
Posner, a circuit judge, is presiding over Apple's patent lawsuit against Motorola and Motorola Mobility in the U.S. District Court for the Northern District of Illinois, Eastern Division, a trial court.
While stating last week that he had tentatively decided that the case should be dismissed with prejudice, Judge Posner said in his order that he would delay entry of judgment until he had prepared a full opinion in about a week, as he may change his mind in the course of the preparation.
The judge limited himself to briefly sketching the grounds for his tentative view, in which he stated that he could not find basis for injunctive relief, as it would impose costs disproportionate to the harm inflicted on the patent holders or benefit to alleged infringer, and would be contrary to the public interest. He also canceled a trial scheduled to begin this week on Monday.
Motorola should be prepared to address the bearing of FRAND (fair, reasonable and non-discriminatory) on the injunction analysis, if it means to argue for injunctive relief, Judge Posner said in his one-page order this week. FRAND is used to describe the relatively easier licensing terms on which companies commit to license standards-essential patents.
Import bans and other exclusions on the basis of alleged infringements of standards-essential patents have come into focus after the U.S. Federal Trade Commission last week expressed concern to the U.S. International Trade Commission on this issue.
In a submission to the ITC, the FTC said it was concerned that a patent owner can make a FRAND commitment as part of the standard setting process, and then seek an exclusion order for infringement of the FRAND-encumbered standards-essential patent as a way of securing royalties that may be inconsistent with the FRAND commitment.
FTC made the submission in the context of the ITC investigation into Motorola Mobility's charges of patent infringement against both Apple and Microsoft. Some U.S. congressmen and companies including Nokia and Verizon Wireless have adopted similar positions before the ITC.