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Appeal Nos. 2012-1548, 2012-1549

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

A

PPLE

I

NC

.

AND

N

E

XT

S

OFTWARE

,

I

NC

.

(formerly known as NeXT Computer Inc.),

Appellants

, v. M

OTOROLA

I

NC

. (now known as Motorola Solutions, Inc.)

AND

M

OTOROLA

M

OBILITY

,

I

NC

.,

Appellees-Cross-Appellants

, Appeals from the United States District Court for the Northern District of Illinois in case no. 11-CV-8540, Judge Richard A. Posner

APPELLEES-CROSS-APPELLANTS MOTOROLA MOBILITY LLC AND MOTOROLA SOLUTIONS, INC.'S OPPOSITION TO AMICI CURIAE VERIZON COMMUNICATIONS INC. ET. AL'S MOTION FOR LEAVE TO PARTICIPATE IN ORAL ARGUMENT

Kathleen M. Sullivan Edward J. DeFranco Q

UINN

E

MANUEL

U

RQUHART

&

S

ULLIVAN

,

LLP 51 Madison Ave., 22nd Floor New York, NY 10010

(212) 849-7000

Charles K. Verhoeven Q

UINN

E

MANUEL

U

RQUHART

&

S

ULLIVAN

,

LLP 50 California St., 22nd Floor San Francisco, CA 94111 (415) 875-6600 David A. NelsonStephen A. Swedlow Q

UINN

E

MANUEL

U

RQUHART

&

S

ULLIVAN

,

LLP 500 W. Madison St., Suite 2450 Chicago, IL 60661 (312) 705-7400 Brian C. Cannon Q

UINN

E

MANUEL

U

RQUHART

&

S

ULLIVAN

,

LLP 555 Twin Dolphin Drive, 5th Floor Redwood Shores, CA 94065 (650) 801-5000

Attorneys for Motorola Mobility LLC and Motorola Solutions, Inc.

Case: 12-1548 Document: 209 Page: 1 Filed: 08/15/2013

02426.51761/5461935.3

1

OPPOSITION TO AMICI CURIAE'S MOTION FOR LEAVE TO PARTICIPATE IN ORAL ARGUMENT

Appellees-Cross Appellants Motorola Mobility LLC and Motorola Solutions, Inc. ("Motorola") oppose Amici Curiae Verizon Communications Inc., the American Association of Advertising Agencies, and Ford Motor Company's ("Amici") request for leave to participate in oral argument in this case. This case involves,

inter alia

, Apple and Motorola's appeal and cross-appeal from the district court's orders excluding the parties' respective damages experts' opinions under Federal Rule of Evidence 702 and

Daubert

, and dismissing the parties' claims for damages and injunctive relief on summary judgment. These are record-intensive issues relating to specific patents asserted by Motorola and by Apple, and expert opinions offered by the parties. In particular, with respect to the district court's treatment of the parties' claims for damages and injunctive relief, on both sides, the issues the Court has been asked to decide relate to whether the district court failed to consider relevant evidence supporting the parties claims, and whether the district court failed to properly apply this Court's damages and injunction law to the facts of the case. These are fact-specific issues, and should not involve the sort of broad policy pronouncements that Amici seek to argue. These issues have been fully briefed by the parties and will be adequately addressed by the parties in oral argument.


2

Though Amici suggest that neither party has adequately defended the district court's reasoning regarding damages and equitable relief, and only Amici stand ready to defend the entirety of the district court's reasoning, that is simply not true. Amici styled their brief as in support of "neither party," but every argument made in their brief supports Apple. Amici's brief raises three arguments: (1) injunctive relief is inappropriate for RAND-encumbered Standards-Essential Patents (Dkt. 116 at 3); (2) injunctive relief is inappropriate when the patent at issue covers a minor component in a multi-component device (

id.

at 11); and (3) reasonable royalty damages should not exceed the value of the patented technology over alternatives at the time of design (

id.

at 17). Each of Amici's arguments echoes an argument made by Apple in response to Motorola's cross-appeal of Judge Posner's rulings dismissing Motorola's claims for damages and injunctive relief. Apple Response and Reply Br. at 24-32 (arguing that Motorola's reasonable royalty damages must be limited to the incremental value of the claimed features over available alternatives), 32-36 (arguing that Motorola's patents relate to "trivial" features used by Apple's iPhone and iPad), 40-54 (arguing that Motorola's FRAND commitment bars injunctive relief). Apple has fully briefed these arguments, is represented by capable counsel, and can adequately address these issues at oral argument. It would be fundamentally unfair to allot Amici argument time that in effect will give another
