updated 11:45 pm EDT, Wed March 20, 2013
BlackBerry also files amicus brief, takes no side in the conflict
Two of the industry's heaviest hitters on Wednesday filed amicus curae ("friend of the court") briefs with the Court of Appeals for the Federal Circuit (CAFC) in support of Apple's position in its appeal over the dismissal last year of a two-way lawsuit with Motorola over patents and FRAND licensing. Microsoft and Intel, who were not involved in the original case, have filed briefs with the court supporting Apple's position that companies should not be allowed to sue over possible infringement of FRAND-eligible patent use.
Last summer, federal Judge Richard A. Posner dismissed two simultaneous cases of alleged patent infringement from Apple and Motorola against each other, saying neither company could prove that any harm had been done to them by any potential infringement. Google (as owner of Motorola) has appealed the ruling, saying that Posner's ruling -- which barred the company from seeking injunctive relief on SEPs -- was incorrect, and that the move devalues SEPs by basing value of a "fair, reasonable and non-discrimatory" (FRAND) license on the intrinsic value of an invention rather than post-standardization hold-up value (how much it would cost companies to create a workaround).
Google and its subsidiary Motorola have been actively seeking ways around such rulings, even defying a consent decree the search giant signed with the FTC promising it would withdraw injunctive-relief requests from litigation involving SEPs. Most recently it has justified one continuing lawsuit by suddenly claiming that Apple was an "unwilling licensee" in order to dodge the decree's restrictions.
Apple is seeking to appeal the portion of Posner's ruling that said Apple had failed to show any significant damage it needed relief from in its non-SEP patent claim against Motorola. The company also seeks to rebuff Google's position, and have the SEP and FRAND portions of Posner's ruling upheld. The latter portion is what Microsoft and Intel have filed briefs in support of. BlackBerry also filed a brief but did not take sides, instead asking the CAFC to rule definitively on whether injunctive relief can ever be available to holders of SEPs as a remedy for infringement.
Microsoft's motion to file an amicus brief argues that the issues Google and Motorola are asking the court to address -- including a standard for valuing SEPs and a ruling on the question of injunctive relief are not actually relevant parts of the appeals. It adds that "beyond that, the positions Motorola asks this Court to adopt" -- the 2.25 percent Google-pushed "standard" royalty and the ability to sue "unwilling licensees" as it chooses -- "are contrary to law and inimical to sound public policy."
It continues, saying "Microsoft's interest in this appeal goes beyond its interest as Motorola's adversary in other cases involving standard-essential patents. While both Microsoft and Apple have publicly declared that they will not seek injunctions on standard-essential patents, other holders of such patents are, like Motorola, actively pursuing injunctions in both the federal courts and the International Trade Commission.
"As an active participant in many SSOs, as well as an implementer of many technical standards in its products, Microsoft has an interest in ensuring that these standards are broadly implemented, and that the public is able to reap the benefits of standardization. These aims would be frustrated by adoption of the approaches to injunctions and damages urged by Motorola."