Judge Posner tossed the cases that Motorola Mobility and Apple had filed against each other in June, both claiming patent infringement against the other. The judge said that both sides had failed to prove that they had been materially injured, nor were they able to formulate alleged damages. Both companies appealed, and the amicus brief was directed at the court hearing the appeals. "Patent [lawsuit product bans in SEP cases] risks harming competition, innovation, and consumers because it allows a patentee to be rewarded not based on the competitive value of its technology, but based on the infringer's costs to switch to a non-infringing alternative when an injunction is issued," the commission wrote in its brief. The agency is seen to be siding with Apple's public position on FRAND-based patents -- that they should not be allowed to be used as legal weapons in infringement suits or licensing negotiations. Judge James Robard ruled last week in a different case that Motorola Mobility was not allowed to obtain a sales embargo, also on standards-essential patents. He ruled that "as a matter of logic, the impending license agreement will adequately remedy Motorola as a matter of law," a concept that has been gaining some traction in recent months.

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