Last week a U.S. Judge raised the possibility of dismissing the patent dispute case between Apple and Google's recently acquired Motorola Mobility, as neither side had established a right to relief. Now, however, the judge has scheduled an injunction hearing.

In an order on Wednesday, June 13, Circuit Judge Richard A. Posner set the hearing for June 20, and said each party may argue for injunctive relief against the opponent's alleged patent infringement. "The parties should be prepared to address the possibility of substitution for an injunction of an equitable decree for a reasonable royalty going forward," said the judge, as cited by PCWorld.

Judge Posner is presiding over Apple's patent infringement suit against Motorola and Motorola Mobility in the U.S. District Court for the Northern District of Illinois, Eastern Division.

Last week, the judge said he had tentatively decided the case should be dismissed with prejudice, saying he would delay entry of judgment for about a week in order to prepare a full opinion, as he may change his mind in the course of the preparation. Posner briefly sketched the grounds for his tentative view, stating that he could not find basis for injunctive relief, as "it would impose costs disproportionate to the harm to the patentee and the benefit of the alleged infringer and would be contrary to the public interest." In the order last week, the judge also tossed Apple's right to declaratory relief as an alternative to injunctive relief, and cancelled a trial scheduled to kick off on Monday, June 11.

FRAND

In his one-page order this week, Judge Posner said Motorola should be prepared to address FRAND (fair, reasonable and non-discriminatory) claims on the injunction analysis if it wants to argue for injunctive relief. FRAND is used to portray slightly easier terms on which companies commit to license patents that are considered standard-essential. Last week, the U.S.Federal Trade Commission (FTC) expressed concerns to the U.S. International Trade Commission (ITC) on FRAND issues, bringing into focus import bans and other exclusions based on alleged infringements of standard-essential patents.

In a submission to the ITC, the FTC expressed concerns that a patent owner can commit to FRAND licensing as part of the standard setting process, and then seek an exclusion order for infringement on the FRAND-restricted standard-essential patent as a means of securing royalties that may be inconsistent with the original FRAND commitment. The submission was part of the ITC investigation into Motorola Mobility's charges of patent infringement against Apple and Microsoft. Companies including Nokia and Verizon Wireless, as well as some U.S. Congressmen, have adopted similar positions before the ITC.