Apple 2.0

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Apple v. Motorola: Tentatively tossed out, bounces back

June 14, 2012: 4:17 PM ET

The judge left open the possibility that he might change his mind, and that's what he did

Judge Posner

FORTUNE -- When last we visited Judge Richard Posner's court in the Northern District of Illinois he had issued an order dismissing "with prejudice" the Apple v. Motorola patent infringement case -- an order that was widely reported as the end of the line for both parties.

But the order was tentative, and it came with the caveat that the judge might, in the process of writing his opinion, change his mind.

And that's exactly what he did.

In a new order filed Wednesday and entered into the record Thursday, Judge Posner scheduled a hearing, as requested by Apple (AAPL), where both parties would have one last chance to make the case for an injunction banning the sale of the other side's product.

FOSS Patents' Florian Mueller spotted the filing and posted the text in full:

"I have decided to grant Apple's request, made at the June 7 hearing, for 'a hearing at which the parties could attempt to satisfy the eBay factors and do a traditional injunction hearing.' The hearing will be held next Wednesday, June 20, in a courtroom, to be announced, of the Dirksen Federal Courthouse, at 10 a.m. Each party may argue that it would be entitled to injunctive relief as to its patent or patents were the other party found to have infringed. The parties may submit briefs, if they wish, no later than the close of business on Monday, June 18. The parties should be prepared to address the possibility of substitution for an injunction of an equitable decree for a reasonable royalty going forward. They should indicate any evidence in the existing record (for it is too late to supplement the record) bearing on the question of injunctive or other equitable relief. And if Motorola means to argue for injunctive relief it should be prepared to address the bearing of FRAND on the injunction analysis."

According to Mueller, "eBay factors" are the four factors that courts consider in their analysis of whether or not to grant an injunction, so-named because of the Supreme Court's 2006 ruling on eBay v. MercExchange.

He adds that Motorola will have a tough time persuading any judge that patents that the company submitted to be part of an industry standard under so-called fair, reasonable and non-discriminatory (FRAND) licensing terms can be used against Apple in a case like this. See his analysis here.

It makes you wonder what Google (GOOG) got for the $12.5 billion it spent to acquire Motorola Mobility.

For more on Judge Posner -- one of the most colorful, influential and apparently unpredictable jurists in the U.S. Court of Appeals -- see here.

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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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