Attorneys for both Apple and Motorola appeared before renowned judge Richard A. Posner this morning in a Chicago federal courtroom in an attempt to explain why the court should order an injunction against the other's products. Posner made headlines recently for tentatively dismissing the case altogether before ultimately deciding to give both parties another chance to prove that either side has demonstrated the need for an injunction against the other's products that could prevent sales and shipments, present and future.

The ongoing case currently involves four Apple patents:

  • 6,493,002 — covers a status window, such as a notification window, laid over the top of the regular program / app display window and having one or more interactive icons or display modules.
  • 6,343,263 — covers signal processing APIs, such as video-image processing, allowing for realtime interaction between two or more subsystems.
  • 7,479,949 — covers multi-dimensional scrolling heuristics. For instance, an upward or downward finger swipe that starts off along an angular path, that's not perfectly vertical, will still be interpreted and locked in as a pure vertical movement to prevent horizontal scrolling.
  • 5,946,647 — this is the infamous "data tapping" patent for automatically converting things like phone numbers and email addresses into actionable links that open a menu of options, like calling the number or adding the number to your contact list.

Meanwhile, Motorola is asserting US patent 6,359,898, which is frequently referred to as "the countdown patent" and involves some efficiency tweaks in cellular communications that are considered standards-essential to GSM.

"Great, that's all we need, new suits. There aren't enough lawsuits worldwide between Apple and all the Android manufacturers."

Posner didn't make any rulings at the hearing — instead, he used the roughly two-hour session to ask questions of both sides and get clarifications on briefs that they'd filed earlier in the week. The judge has earned a reputation for being animated, entertaining, and easily frustrated by the minutiae of the case, and he delivered once again during an exchange with Apple's lawyers. Posner sought information on why Cupertino wouldn't be satisfied with a compulsory licensing scheme that would require Motorola to pay a lump sum and / or an ongoing royalty for one or more of the patents allegedly being infringed upon rather than an outright injunction, which he says could have "really catastrophic effects" for the infringing company:

Posner: "So would you be asking for an injunction that would give them three months to substitute real-time..."

Apple: "Exactly. We're not asking them to stop selling Android phones, we're asking them to do something that they've said they could easily do. Use their technology, not ours."

Posner: "Would you consider an ongoing royalty as a satisfactory substitute?"

Apple: "No."

Posner: "Why not?"

Apple: "The law says" that companies should not be subject to compulsory licensing. [Paraphrasing.]

Posner: "That's not what the law says. The law says that it's a type of injunctive relief."

[...]

Posner: "You can't just assume that just because someone has a patent, he has deep moral right to exclude everyone else from using it. That's why we have this principle that the equity judge can substitute a compulsory license for an injunction."

Apple: "The practical reason is the difficulty in measuring harm. None of the party's attempts to measure what such a royalty would be are adequate."

Posner: "But that's because you didn't prepare a good damages case. You certainly believe it's possible to compute damages for the infringement today, so why doesn't that apply that you could've established a reasonable royalty for the future?"

Apple: "The right to exclude is something that shouldn't be taken away lightly."

Posner: "Well, you think you have a right to Motorola's patents because they're standards-essential..." After three months, Motorola comes up with its own solution, and you have nothing. With licensing, you establish a stream of income. [Paraphrasing.]

Apple: "Respectfully, it's the patent holder's choice."

Posner: "But you have to explain to me why it's a rational choice. [Laughing.] "What's to prevent you after three months from suing them again and saying it's still infringing?"

Apple: We can file a new suit. [Paraphrasing.]

Posner: "Great, that's all we need, new suits. There aren't enough lawsuits worldwide between Apple and all the Android manufacturers."

Motorola has just one patent claim remaining against Apple — the so-called '898 patent, which is essential to GSM and has been licensed under FRAND terms, Apple says, to several dozen companies in the past. Posner came right out and stated that he didn't "see how you can have an injunction against the use of a standards-essential patent." To use Apple's phraseology, the patent has become Motorola's "last stand" against the patent claims looming against it. Interestingly, though, Apple says that the '898 is standards-essential in name only, claiming that the feature defined by it isn't actually used in practice and has "an effective value of zero":

"Here we have a feature with an effective value of zero. That's the sole benefit that the '898 in theory provides, is that the base station might have a little bit more advance notice to reallocate its resources and be more efficient. That supposed benefit of the 898 patent is not used by the base station to do so. There are no benefits from it because they don't use that feature at all. They reallocate resources when the countdown timer is zero. So here you have this feature whose value is infinitesimally small [...] this is attempted extortion and an attempt to drive up the value, which is zero."

"Here we have a feature with an effective value of zero."

Though Posner left the bench today without tipping his hand, he showed a lot of skepticism toward the notion that an injunction would be an appropriate relief, suggesting that a full-on ban of sales would be a severe punishment for features that few customers likely care about enough to affect "goodwill" toward either company. Talking about Apple's '002 patent — which dates back to 1994 and may be infringed by Android's notification window because of the way it is visually unobstructed by other applications — Posner said "I find it hard to believe anyone would care about such a thing," noting that "this may be just a minor annoyance to consumers, and maybe we should have a small royalty for the one in one thousand customers who are annoyed by this. That would be fine."

There's no indication yet when Posner may make a final ruling.

Matt Macari contributed to this report.