Tuesday, April 03, 2012, 08:04 pm

Judge calls Apple motion to reconsider Motorola ruling 'troubling'

By Mikey Campbell

U.S. Circuit Judge Richard A. Posner shot down Apple's motion to reconsider a ruling of a Motorola patent case, writing that the document's two main arguments are founded on "flagrant misreadings" of the March 29 order.

Judge Posner's order of denial, issued on Friday, comes after Apple won a number of key patent claims regarding touchscreen heuristics in its case against Motorola, reports The Verge

Although the court's claim construction ruling upheld certain claims of Apple's '949 patent, the Cupertino, Calif., company wasn't satisfied with the order's scope and requested Judge Posner to reconsider his findings.

Specifically, Apple's lawyers claimed that "the Court incorrectly concluded that 'there is no basis in either the claim language or the diagrams and descriptions’ for a finger swipe as a structure corresponding to the ‘next item’ heuristic." The request went on to say "the Court erroneously found that a horizontal finger swipe cannot be both a ‘next item’ heuristic (claim 1) and a ‘horizontal screen scroll’ heuristic (claim 10)."

As for Apple's first claim, Judge Posner stated that the quote was taken from another portion of the order and had no bearing on the iPhone maker's argument. He writes that "Apple perceives disagreement where there is none. There can be no substantive response to this argument of Apple’s, for it argues not against my order but against Apple’s mirage of that order."

Apple's second claim was similarly dismissed as irrelevant because it misinterpreted quotes from the March 29 order.

The denial order concedes that the final passage of Apple's motion containing photo manipulation contentions may hold some merit, though Judge Posner can't take the claim into consideration because it was not advanced during the patent construction briefing.

"By failing to raise this argument in claims construction briefing on the ‘949 patent, Apple has forfeited it," Judge Posner writes.

Near the conclusion of Judge Posner's March 30 order, he writes:

Apple presumably spent a nontrivial amount of time drafting its order, and now I have done the same in responding to it. Yet it seems that Apple brought about this expenditure of scarce resources without first making a careful reading of the page or so of my order against which this motion is launched. Such inconsiderate sloppiness is unprofessional and unacceptable.

Overall, Apple's attempt to contest parts of the judge's original order was seen as slipshod. It is unclear why the company's attorneys would seek to oppose the previous order, or how they so blatantly misinterpreted the court's documented findings.