Apple and Motorola both appeal dismissal ruling from Judge Posner

Last month, Judge Posner dismissed Apple's lawsuit against Motorola Mobility. The Judge ruled that neither side could prove it was damaged by the other side which led to the dismissal. But that didn't satisfy either Apple or Motorola. Both sides have filed an appeal which might have a good chance of reversing some of the claims. According to FOSS Patents, the Federal Circuit reverses at least part of an appealed ruling in 40% of cases. And there are a lot of rulings for the appeals court to reverse since both Apple and Motorola appealed every single decision that Judge Posner made against them.

Apple explicitly listed four rulings it is seeking to reverse including portions of the Court's summary judgment and claim construction orders adverse to Apple (including Docket Nos. 176, 526, 556, 671, 691, 706, 724, 751, 767, 826 and 1005); portions of the court's evidentiary orders (including without limitation Dkt. Nos. 960 and 980) that were adverse to Apple in excluding certain evidence Apple intended to offer;those portions of the Court's May 22, 2012 Opinion and Order adverse to Apple in which the Court struck Apple's damages expert and underlying damages theories (Dkt. No. 956); andthose portions of the Court's June 22, 2012 Opinion and Order adverse to Apple granting summary judgment against Apple as it relates to (1) Apple’s damages theories and (2) Apple’s entitlement to an injunction with respect to the Apple patents (Dkt. No. 1038).

Motorola Mobility is seeking reversal of those portions of the Court's summary judgment and claim construction orders that were adverse to Motorola (including without limitation Order of May 20, 2012 not appearing on the docket and Dkt. Nos. 176, 526, 556, 671, 691, 751, 747, 767, 826, 1005, 1038);

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those portions of the Court's evidentiary orders (including without limitation Dkt. Nos. 771, 747, 803, 830, 900, 958, 956, 980) that were adverse to Motorola in excluding certain evidence Motorola intended to offer or in precluding Motorola from supplementing its expert reports or record evidence the Court's order denying Motorola's motion to dismiss or transfer this case (including without limitation Dkt. Nos. 66); those portions of the Court's May 22, 2012 Opinion and Order adverse to Motorola in which the Court struck Motorola's damages expert and underlying damages theories (Dkt. No. 956); and those portions of the Court's June 22, 2012 Opinion and Order adverse to Motorola granting summary judgment against Motorola as it relates to (1) Motorola's damages theories and (2) Motorola's entitlement to an injunction with respect to the Motorola patents (Dkt. No. 1038).

Both Apple and Motorola Mobility claim that the court should rule in their favor based on law, but bringing up these issues could lead to a new trial on some of the claims raised. Another possible outcome could be a decision by the Federal Appeals Court to give both parties another chance in District Court. As pointed out by FOSS Patent, Judge Posner did not give Motorola Mobility or Apple guidance that other Judges have provided. Judge Alsup gave Oracle two do-overs of its damage claim against Google while Judge Sabraw in the Southern District of California told Apple how to fix its filing against Motorola in trhe Qualcomm-related patent exhaustion claim. The Court can help a plaintiff state its case unless it can be shown that there is no merit to the suit. That wasn't the case with Apple as Judge Posner had dismissed its claims for lack of proof, not for the absence of merit.

Judge Posner has made it tough for Apple to get an injunction, which is what the Cupertino based firm is shooting for. Remember, to get an injunction, it must be shown that monetary compensation is not enough to make the damaged party whole. To do that Apple has to balance on a high-wire. If Apple makes the damages conservative, it lessens the chance of the case being tossed out, but it also increases the chance that Apple could be satisfied by a monetary award reducing the chance of an injunction. On the other hand, if Apple says its damages are too high, it raises the chance if the Judge tossing the whole thing out. It's all a huge chess game and no matter where your allegiance lies, it should be interesting to see what happens.

source: FOSSPatents