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United States Court of Appeals for the Federal Circuit

Nos. 2012-1548, 2012-1549 A

PPLE

I

NC

.

AND

N

E

XT

S

OFTWARE

,

I

NC

.

(formerly known as NeXTComputer, Inc.),

Plaintiffs-Appellants,

v. M

OTOROLA

,

I

NC

.

(now known as Motorola Solutions, Inc.)

AND

M

OTOROLA

M

OBILITY

,

I

NC

.,

Defendants-Cross Appellants.

Appeals from the United States District Court for the Northern District of Illinois in Case No. 11-cv-08540, Judge Richard Posner

MOTION OF

AMICI CURIAE

VERIZON COMMUNICATIONS INC., AMERICAN ASSOCIATION OF ADVERTISING AGENCIES, AND FORD MOTOR COMPANY FOR LEAVE TO PARTICIPATE IN ORAL ARGUMENT

C

RAIG

S

ILLIMAN

G

AIL

F.

L

EVINE

V

ERIZON

C

OMMUNICATIONS

I

NC

. 1300 Eye Street, NW Washington, DC 20005 (703) 351-3028 P

AUL

D.

C

LEMENT

D.

Z

ACHARY

H

UDSON

B

ANCROFT

PLLC 1919 M Street, NW, Suite 470 Washington, DC 20036 (202) 234-0090 pclement@bancroftpllc.com August 1, 2013

Case: 12-1548 Document: 206 Page: 1 Filed: 08/01/2013

MOTION FOR LEAVE TO PARTICIPATE IN ORAL ARGUMENT

Pursuant to Federal Rule of Appellate Procedure 29(g), Amici Curiae Verizon Communications Inc., the American Association of Advertising Agencies, and Ford Motor Company (“Amici”) respectfully request leave to participate in oral argument in this case. Counsel for Amici has discussed this motion with the parties. Apple has advised that it takes no position on this motion, so long as any time allocation is added to the time that has already been granted, but opposes any accommodation that would decrease the time already allocated. Motorola will file an opposition. On December 4, 2012, Amici moved this Court for leave to file an amicus brief, and that motion was granted on December 27, 2012. As Amici explained in that brief, in order for the patent system to foster innovation and avoid distorting competition, it must employ remedies that replicate the reward the patentee would have earned absent infringement. Making injunctive relief available in suits involving RAND-encumbered patents and patented technology that does not drive demand for the product does far more. It allows patentees to capture more than the economic value of their patents—they are able to obtain the costs of after-the-fact switching to noninfringing alternatives. By the same token, awarding reasonable royalty damages in an amount exceeding the value of the patented technology over alternatives at the time of design allows patentees to obtain profits in excess of the


2 economic value of their inventive contribution. That overcompensation injures competition, threatens innovation, and is fundamentally inconsistent with the patent bargain. Judge Posner’s treatment of remedial issues appropriately takes these concerns into account. Judge Posner correctly concluded that injunctive relief should be unavailable when the patent in suit is RAND-encumbered. Along the same lines, Judge Posner’s submission that injunctive relief should not be awarded when the patent at issue reads on only a minor component in a multi-component device is well-grounded in traditional equitable principles and sound economic methodology. Furthermore, as Judge Posner suggests, the correct measure of reasonable royalty damages is constrained by the value of the patented technology over alternatives at the time of the design decision. Nonetheless, neither party to the appeal has defended Judge Posner’s reasoning nor the judgment below. In comparable circumstances, the Supreme Court routinely appoints an amicus curiae to ensure that the Court receives the full benefit of adversary presentation and that the reasoning of the decision below is adequately defended. Given Amici’s substantial agreement with Judge Posner’s reasoning on the remedial issues in this case, Amici respectfully request that they be allowed argument time to perform a similar function.
