Patents are inherently anticompetitive: In our system, the payoff for invention and innovation is a limited-duration monopoly. That doesn't mean, however, that patents can't be at the heart of antitrust claims. Consider pay-for-delay cases, for instance, in which brand-name pharmaceutical makers supposedly pay generics manufacturers to drop challenges to their patents, thus assuring their monopolies. Or, in the smartphone wars, supposed abuse of patents that are essential to wireless technology as leverage against competitors. As I've discussed many times, Google rivals Microsoft and Apple have made antitrust claims based on Motorola's assertion of standard essential patents a centerpiece of their litigation strategy.

For Apple, that strategy suffered a setback last November, when U.S. District Judge Barbara Crabb of Madison, Wisconsin, dismissed its breach-of-contract case against Motorola. Crabb, who had previously dismissed Apple's antitrust claims, said that because Apple would not agree to abide by her determination of a reasonable licensing fee for Motorola's patents, there was no point to trying the case. Over Apple's objections, Crabb tossed the contract claims with prejudice. Earlier this month, Apple filed an appeal at the Federal Circuit Court of Appeals, which, as you know, hears patent appeals from federal district courts across the country.

But according to a new brief by Motorola's lawyers at Quinn Emanuel Urquhart & Sullivan, Apple's appeal doesn't belong in the Federal Circuit because Apple's antitrust and contract claims do not arise from questions of federal patent law. Yes, Motorola conceded, the claims are based on its use of patents, but that doesn't make Apple's case a patent case, at least not in the way Congress and the U.S. Supreme Court have defined the jurisdiction of the Federal Circuit. "None of Apple's claims is based on patent law, nor does Apple's right to relief depend on resolving a substantial question of patent law," the brief said. "To be sure, Apple's claims may allege external grievances (unfair competition, tortious interference, breach of contract) surrounding Motorola's patents, but that is quite different from calling for adjudication of Motorola's actual patents themselves." (Apple did assert a claim based on Motorola's supposed patent abuse, but Motorola's brief said that because Judge Crabb dismissed that claim without prejudice, it could not be the basis of Federal Circuit jurisdiction.)

Motorola cited the Federal Circuit's own 2010 ruling in Laboratory Corporation v. Metabolite, which also involved an alleged breach of a patent licensing agreement. In that case, the Federal Circuit determined it did not have jurisdiction and transferred the appeal to the 10th Circuit. Motorola urged the court to apply the same reasoning and either dismiss Apple's appeal or send it the 7th Circuit.

If you've been paying attention to smart device litigation, you'll probably recall that cross-appeals of another case involving Apple, Motorola and standard essential patents are already under way at the Federal Circuit. (I wrote last month about the Federal Trade Commission's amicus brief, which backed Apple's argument that injunctions shouldn't be based on essential technology.) Motorola, which is also represented by Quinn Emanuel in that appeal, did not challenge the Federal Circuit's jurisdiction, but that case, unlike the case from Judge Crabb's court, also involved Motorola's alleged infringement of Apple patents.

One curiosity is why Motorola would rather be at the 7th Circuit than at the Federal Circuit. The 7th Circuit, after all, is the home of Judge Richard Posner, who, in a stint as a trial judge in Chicago federal court last summer, took a dim view of cross-claims by Motorola and Apple. (Posner's pox-on-both-your-houses dismissals are before the Federal Circuit, in the case in which the FTC filed the aforementioned amicus brief.) There are 14 judges on the 7th Circuit, so even if Posner didn't step aside, the odds would be against him being assigned to Apple's antitrust and contract appeal even if the Federal Circuit did transfer it. Still, it's fun to imagine that prospect.

Apple is represented in the antitrust and contract appeal (as in the other Motorola case at the Federal Circuit) by Orrick, Herrington & Sutcliffe. (Covington & Burling, which worked on the case when it was before Crabb and filed the notice of appeal, submitted a letter to the Federal Circuit stating that it would not be further involved.) I emailed Apple and Motorola for comment but didn't hear back from either of them.

(Reporting by Alison Frankel)

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