Apple responds to the Department of Justice's antitrust lawsuit, Judge Posner gets a little snarky, and "somebody" is dragging Cupertino's two best patents back to court.
Will Cupertino's strategy against the DOJ work? Did Motorola really think Judge Posner would allow that? And who could it be that has such an interest in seeing Apple's patents tossed? Join us for another week of Law & Apple!
When the Department of Justice filed an antitrust suit against Apple and five other publishers last month, the initial response from Cupertino was that it was innocent. Last week, however, Apple filed a scathing official response with the court that pokes a lot of argumentative holes in this particular case.
Court cases are not won or lost with such filings, but the document [PDF link] does shed some light on what position Apple is going to take in this dispute, and perhaps how aggressive Cupertino is prepared to get.
Pretty sure we created the actual ebook "market", but, you know, whatever.
"The Government starts from the false premise that an eBooks 'market' was characterized by 'robust price competition' prior to Apple's entry," asserts Apple in the document. This is followed by a claim that the government "ignores a simple and incontrovertible fact: before 2010, there was no real competition, there was only Amazon."
Apple goes on to accuse the government of ignoring "inconvenient facts" and proceeds to point out the flaws in every one of the DOJ's arguments. If any of this will help Cupertino remains to be seen -- when the DOJ sues you for violating the Sherman Antitrust Act, you are in a tough spot. But if Apple goes down in this fight, at least they'll be going down swinging.
Judge Posner, handling the case between Apple and Motorola, took a look at the way each company was planning to claim damages last week and had some interesting, if not flat out funny, things to say about both companies.
First, looking at the way Apple arrived at the cost numbers Cupertino may have faced if they had invented around Motorola's patents, Judge Posner took issue with the fact that Apple used its own engineers to arrive at the extremely high estimates. The theory was tossed out by Judge Posner, who believed that if someone was looking for a legitimate estimate, asking an employee of the company that has an interest in overstating the cost doesn't seem the most objective course.
Really kids? These are your arguments??
Motorola, however, caught even more snark from the judge. In describing a theory Motorola used to claim damages of $347 million, Judge Posner stated the claim was based on a "alternative‐universe approach" that was pure "science fiction." When Motorola bolstered its argument by claiming that $347 million is fair because Apple already has billions of dollars, Judge Posner went on somewhat of a rant about the silliness of that retort and eventually categorized Motorola's logic as "nonsense."
Apple is under attack by anonymous. No, not that Anonymous, but rather two anonymous reexamination requests against Apple's two most important Multi-Touch software patents filed last week. A reexamination request can be brought when an interested party has new evidence and would like a specific patent reexamined by a patent examiner to verify if the patent is even valid anymore. The two patents now in question, U.S. Patents No. 7,469,381 (overscroll bounce) and 7,479,949 (touchscreen heuristics) are arguably the two most important in Cupertino's intellectual property portfolio.
If we wear these masks in court, no one will recognize us!
Apple is currently asserting these patents against the three top Android manufacturers: Samsung, HTC, and Motorola. That fact that these patents are so important, and that they were submitted ex parte, leads Florian Mueller of FOSS Patents to suspect that Google is actually behind the filings.
Regardless of the source, these are critical patents in Apple's ongoing lawsuits. The '949 patent, which deals handling gestures on a touchscreen based on the angle of the initial touch, has been considered by many to be somewhat iffy. Apple could realistically see some of '949's potency stripped by the court, and this could impact Cupertino's courtroom strategies around the world.
Adrian writes the weekly Law & Apple column and the occasional feature story for MacLife.com. Follow him on Twitter, or subscribe to him on Facebook.
