Sunday, November 06, 2011, 09:16 pm PT (12:16 am ET)
Apple likely to get suspension of German injunction from Motorola, lawyers saySeveral German lawyers polled about a recent preliminary injunction against Apple won by rival Motorola Mobility are in agreement that Apple is likely to win a temporary suspension of the order, though they did note that failure to do so could have an impact on its business in the country.
Florian Mueller of FOSS Patent contacted a number of German lawyers about a default judgment that a German court handed down last Friday. The preliminary ruling came because Apple missed a deadline to answer Motorola's patent complaints against it.
News of the injunction made waves on Friday because it appeared to threaten Apple's business in Germany, the largest market in Europe. But, it was quickly revealed that the judgment was made in Motorola's suit against the parent company Apple Inc., while Apple had focused its efforts on vigorously fighting an identical complaint lodged against its local subsidiary Apple Germany.
"This is a procedural issue that has nothing to do with the merits of the case. This does not affect our ability to sell products or do business in Germany at this time," Apple said in a statement late Friday.
However, Mueller was quick to point out the vagueness of Apple's "at this time" qualification, noting that it leaves open the possibility that the injunction could affect the company's sales anytime in the future. In his view, an impact from the injunction could come "within weeks" if Apple is unable to persuade the court to hold off on enforcing the judgment.
The likelihood of that happening is low, though, according to the lawyers that Mueller interviewed. They all agreed on a conservative position that Apple is "more likely than not" to win a temporary suspension until the court can provide a substantive decision. That decision would also then be subject to appeal, though any subsequent appeals would have to evaluate whether to allow the injunction or suspend it until the next ruling.
German law firm Scherer & Körbes believes that the injunction, if it went through, could "probably" result in the prohibition of Apple's supply of devices to its German subsidiary.
Mueller went on to explain possible reasons for why Apple missed the deadline to respond to Motorola's arguments. Though highly unlikely, it's possible a careless mistake or external factors, such as traffic, could have caused Apple's counsel to miss the proceedings. Alternatively, the company may have chosen to let the deadline lapse in order to buy time to submit, or even discover, new pleadings. Under German law, new representations of fact must be submitted a week before a decisive hearing date. It remains unclear, however, what exactly Apple's strategy is in its defense against Motorola.
Following Google's announcement of a deal to purchase Motorola, Apple had filed to put two of the lawsuits between the two companies on hold while the merger was being completed. Both those motions, however, have been denied.
Motorola sued first last October, lodging a complaint with the U.S. international Trade Commission against Apple's iPhone, iPod touch and some of its Mac products. The company also made a preemptive strike against Apple in hopes of invalidating some of the patents that it was already bringing to bear against handset maker HTC. Apple quickly fired back with its own suit, alleging that Motorola had violated patents related to multitouch gestures on the iPhone.
Apple has since complained that Motorola is using Fair Reasonable and NonDiscriminatory encumbered patents as weapons against it. The company argues that Motorola is being anti-competitive by unfairly mixing standards patents with implementation patents in its complaints against Apple.
"By making false commitments that led to the establishment of worldwide standards incorporating its own patents and eliminating competing alternative technologies," Apple wrote in a federal lawsuit, "Motorola [Mobility] has become a gatekeeper, accruing the power to harm or eliminate competition in the relevant markets if it so desires."
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