With the Apple-Motorola Mobility FRAND patent trial set to begin Monday at 1pm, Judge Barbara Crabb responded negatively to Apple’s stated willingness to enter into a licensing agreement with Motorola Mobility for the right to use the latter’s standards-essential patents, only if it didn’t have to pay more than $1 per Apple iPhone. The judge noted her thoughts in an “Opinion and Order” entered with the court on Friday. Judge Crabb does not want to order Motorola to make an offer to Apple if the Cupertino based firm is going to use that offer as a negotiating tool, and she now “believe[s] it would be inappropriate to grant Apple’s clarified request for specific performance”. She added that if ordering Motorola to make an offer to Apple would end all of the patent litigation or extended negotiations, she would have granted Apple’s request for specific performance, but “it is now clear that specific performance would not resolve those concerns”.
Apple didn’t help its cause by using a ‘blackmail’ type approach to the $1 rate it tried to force on Motorola and the court. The Cupertino based firm should have known that those wearing a judge’s robe don’t like being forced into doing anything. We recommend that Apple’s attorneys watch a few episodes of Judge Judy to learn that. A similar statement was made in the Microsoft-Motorola Mobility FRAND case which is going to trial on November 13th. In that case, Judge James Robart told both sides to stop using the court “as a pawn in a global, industry-wide business negotiation”. The difference between the two cases is that Microsoft subsequently agreed to accept whatever rate the court decides, a decision that scares the heck out of Apple. Motorola Mobility pointed out Microsoft’s behavior to Judge Crabb and asked why Apple couldn’t be so agreeable.
Judge Crabb is now considering whether or not to allow a trial on Apple’s other claims. If Apple wins on these other claims, it might be able to prevent Motorola Mobility from enforcing its standards-essential claims against it. Both sides have until noon on Sunday to respond to the order (don’t forget the end of daylight savings time on Sunday morning, guys!) and both sides need to be ready for the possibility that the trial will start at 1pm Monday. On the other hand, Apple has apparently ticked off Judge Crabb enough that she might call off the trial. For once, Apple’s arrogance in a courtroom, which Judge Koh and the jury in the Samsung case seemed to turn a blind eye to, might have worked against it.