Stating that an order barring the sale of Motorola phones could have "catastrophic effects" for the mobile marketplace, Judge Richard Posner has given Apple his strongest hint yet that the iDevice maker’s attempt to have a ban enforced on a number of Motorola handsets is doomed.
Judge Posner had previously stated his view that such an injunction would not be in the public interest. In response to the jurist’s lack of empathy toward Apple’s case for injunctive relief, Apple’s attorney, in an apparent attempt to appear more conciliatory, resorted to the position that an injunction might alternatively force removal of the technologies that it alleges Motorola has infringed, within three months.
Unconvinced, the Judge pointed out that there would be nothing to prevent Apple from beginning a new action after that three-month period, claiming Motorola to be still infringing whether or not that was actually the case. And the likely upshot of that scenario would be yet another attempt at banning Motorola’s devices. "That's all we need…” the judge said, “new actions, new suits, because there's not enough litigation worldwide between Apple and Android."
Further, Judge Posner suggested that it might be preferable, if Apple won, for the court to direct Motorola to pay a royalty for each infringed patent. He added that Apple’s position, that of making Motorola use inferior technology instead of paying royalties, would disadvantage consumers, stating that "You can't just assume that because someone has a patent, he has some deep moral right to exclude everyone else from using the technology.”
It’s not in Apple’s marketing interests to license patents to its competitors though, particularly Android-using OEM’s, as it’s currently being outsold in the mobile phone space at a rate of nearly three to one. The Cupertino colossus would much prefer to block sales of its competitors’ devices than earn the relatively trifling sums that the patent royalties in question might provide.
In the iPhone maker’s view, forcing removal of Apple-patented technologies from Motorola’s hardware would eradicate feature parity and help differentiate its devices in the marketplace. Confirming the company’s approach to avoiding marketplace competition, Apple attorney Matt Powers stated "It means we're not competing with them where they are using our technology against us”.
The only possible takeout from such an unambiguous statement of position is that Apple has absolutely no intention of licensing its technology to any genuine competitor.
While this action is specifically against Motorola Mobile at present, a win for Apple would set precedent for trial against any Android OEMs who were found to infringe. In this way, Apple would have the possibility of removing all of its major competitors from the US market at a stroke, so you can see how much this ‘marketing by litigation’ approach means to the iPhone maker.
Judge Posner made no formal rulings during the hearing.