* Injunction against Motorola would be "catastrophic"-judge
* Judge Richard Posner says U.S. patent system is "chaos"
* Apple says court order would ensure even playing field
By Dan Levine
CHICAGO, June 20 A U.S. judge on Wednesday
strongly questioned Apple Inc's bid for an injunction
against Google Inc's Motorola Mobility unit, as the
iPhone maker tries to salvage its position on a key front in the
smartphone patent wars.
Federal Judge Richard Posner in Chicago did not make any
formal rulings from the bench during the hearing, which was a
chance for Apple to plead its case for an injunction against
Motorola phones that allegedly use its technology. But Posner
called the U.S. patent system "chaos" and said an order barring
the sale of Motorola phones could have "catastrophic effects."
Posner earlier this month tentatively canceled an impending
trial between the two technology companies, but scheduled the
Wednesday hearing so Apple could argue for the injunction.
Apple has waged an international patent war since 2010 as
part of its attempt to limit the growth of Google's Android
system, the world's best-selling mobile operating platform. A
decisive injunction in one of the U.S. legal cases could
strengthen Apple's hand in negotiating cross-licensing deals,
where companies agree to let each other use their patented
Opponents of Apple, meanwhile, say the iPhone and iPad maker
is using patents too aggressively in its bid to stamp out the
Motorola sued Apple in October 2010, a move widely seen as a
preemptive strike. Apple filed its own lawsuit against Motorola
the same month. Apple is also slated for trial against Samsung
Electronics Co Ltd next month in California.
Posner issued a series of pretrial rulings that eliminated
nearly all of Motorola's patent claims against Apple, while
maintaining more of Apple's claims against Motorola. That meant
Apple had more to gain at the trial, which had been set to start
But Posner tentatively ruled that neither side could prove
damages and scrapped the trial. An injunction would be "contrary
to the public interest," Posner wrote.
In court on Wednesday, Apple attorney Matthew Powers said it
is not seeking an order barring the sale of Motorola phones.
Rather, Apple would be satisfied with an injunction requiring
Motorola to remove Apple's patented technology from Motorola
phones within three months.
That outcome would ensure the Android phones do not share
some of the same features as the iPhone, a differentiation that
could help Apple in the marketplace. One of the patents at
issue, for instance, covers technology to stream real time video
without glitches or delays.
"It means we're not competing with them where they are using
our technology against us," Powers said.
But Posner said it may be preferable to direct Motorola to
pay Apple a compulsory royalty. Forcing Motorola to adopt
inferior technology, as opposed to paying a royalty, would not
benefit consumers, he said.
In addition, nothing would stop Apple from coming back into
court after three months to claim Motorola is still infringing.
"That's all we need is new actions, new suits, because
there's not enough litigation worldwide between Apple and
Android," Posner said.
Motorola had also asked for an injunction on the one patent
it is still asserting in the case against Apple. However,
Motorola had pledged to license that patent - which covers an
aspect of wireless communication - on fair and reasonable terms
to other companies in exchange for having the technology be
adopted as an industry standard.
"I don't see how you can have injunction against the use of
a standard essential patent," Posner told Motorola's attorneys.
Overall, Posner questioned the worth of many software
patents, noting deep systemic problems with the U.S. patent
"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, Posner said.
The case in U.S. District Court, Northern District of
Illinois, is Apple Inc and NeXT Software Inc v. Motorola Inc and
Motorola Mobility Inc, 11-cv-8540.