Apple 2.0

Covering the business that Steve Jobs built

Judge bars Apple from turning court into reality distortion field

June 2, 2012: 11:21 AM ET

Forbids lawyers from trying to make patent case an Apple-Android "popularity contest"

FORTUNE -- If you're following the smartphone patent wars and have never run into Judge Richard A. Posner before, you're in for a treat.

The federal judge who drew Apple v. Motorola is one of America's most respected -- and outspoken -- jurists. He's had a hand in everything from the Microsoft antitrust trial to the Monica Lewinsky case. He once called the War on Drugs "quixotic" and wrote that anyone who wouldn't use torture if that were the only way to prevent detonation of a nuclear device in Times Square shouldn't be in a position of responsibility. (See here.)

The patent dispute that brought Apple (AAPL) and Motorola to Posner's court is scheduled to begin in less than two weeks, and the judge has already made it clear that he will brook no nonsense.

Three weeks ago, he ordered both sides to rewrite their briefs in language intelligible to laypeople. "There's no point in giving jurors stuff they can't understand," he wrote. He also forbade Apple from presenting newspaper articles or other media praising the iPhone or iPad unless they specifically refer to patents Apple claims Motorola infringed.

Judge Posner

Last week, according to FOSS Patents' Florian Mueller, he went even further:

"More broadly, I forbid Apple to insinuate to the jury that this case is a popularity contest and jurors should be predisposed to render a verdict for Apple if they like Apple products or the Apple company or admire Steve Jobs, or if they dislike Motorola or Google."

Ironically, Posner denied an earlier Apple motion that Motorola be prevented from entering into evidence any references to Walter Isaacon's Steve Jobs biography, in which Jobs is quoted saying Google's (GOOG) "f---ing ripped off the iPhone, wholesale ripped us off" and threatening to "go to thermonuclear war."

Apple could still argue that Jobs' intemperate remarks are hearsay and therefore inadmissible.

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About This Author
Philip Elmer-Dewitt
Philip Elmer-DeWitt
Editor, Apple 2.0, Fortune

Philip Elmer-DeWitt has been following Apple since 1982, first for Time Magazine, and now on the Web for Fortune.com.

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