Apple v. Motorola: Injunction Hearing - General Point of Interest for Practitioners

 Another note of interest to IP practitioners also came up during Judge Posner’s questioning of Apple’s argument about Motorola’s infringement causing harm in the form of loss of consumer goodwill.  Apple’s attorneys had sought to bring in multiple news articles and reviews of the iPhone as evidence.  Judge Posner questioned Apple as to the relevance of these articles, because they generally did not relate to the specific features that were the technology of the four patents at issue.  He asked for articles that dealt specifically with the features that were being protected in the patents, because such articles could demonstrate how important those specific features were to consumers and their purchasing decisions.  For example, one of the patents at issue had to do with a feature for a notification bar.  The Judge seemed highly dubious of the value or importance of that feature to consumers, and he indicated that he would have wanted to see some articles about the notification bar feature, which could support Apple’s argument that infringement of that feature harmed its goodwill or market share.

One suggestion is that parties should really focus on providing concrete, direct proof of how the infringement is leading to the harms being asserted.  Especially with patents that deal with one tiny part of a larger machine and/or device; some direct evidence of the importance of the patented technology to consumers would be helpful.  Apple argued that Judge Posner was being too “granular” in his focus.   I am not sure that persuaded him.