Tim Nash, a reader of my blog who writes for other sites (such as lowendmac.com), contacted me with some theory for Apple's strategy that is very interesting. I'm not saying that this necessarily is indeed Apple's strategy, but what Tim suggests is plausible per se.
Tim thinks that this is about timing. Apple knew that the European Commission was considering an investigation into the use of FRAND patents by Samsung. And indeed, on Thursday I discovered a reference to an EU investigation in a court filing, and the European Commission has meanwhile confirmed what amounts to a preliminary antitrust investigation.
Tim's theory is that Apple didn't want a court ruling in Mannheim to adversely affect the probability of such an investigation being started. He says that if the court in Mannheim had adjudicated this matter on its merits and had dismissed Apple's FRAND defense, this would have meant that courts in different EU member states rule differently on these FRAND issues. Previously, a Dutch court agreed with Apple and dismissed a Samsung request for an injunction based on a FRAND licensing obligation. In Tim's opinion, Apple didn't want to take any risk of inconsistent rulings.
Tim thinks inconsistent rulings could have discouraged the Commission (and ETSI, the relevant standard-setting organization) from looking into the broader issue. Now that there's at least a preliminary investigation going on, Apple has made some headway.
Apple can't avoid that the Mannheim court decides on the merits of the case at some point. Maybe that will happen within a few months anyway. But the Mannheim hearing was on October 21, and maybe that was a critical juncture in the decision-making process at the Commission.
How likely is Tim to be right? It's impossible to know without more information on the EU process. I agree with Tim that an unFRANDly ruling by the Mannheim court, on or shortly after October 21, might have been disadvantageous for Apple in Brussels, and playing for time (by accepting a default judgment for the time being) could have made sense. I also think that a favorable resolution of the EU antitrust case involving Samsung would help Apple against Motorola.
Timing can be key when interdependent processes take place in parallel. In this case, Apple may actually have a better chance of prevailing on a FRAND defense in Mannheim now that it can show the German court that the European Commission is concerned about the enforcement of standards-essential patents. That's also part of what Tim thought. And this part is also plausible.
That said, Apple has enabled Motorola Mobility to win, in formal terms, a favorable ruling. Whatever its reason(s) might have been, it doesn't make things easier.