Monday, March 7, 2011

Motorola says 'Android-based products are increasingly competing in the gaming market' with Microsoft's Xbox

On December 24, 2010 I published my last update on the patent dispute between Microsoft and Motorola over Android-based smartphones and, to a lesser degree, set-top boxes and the Xbox gaming console. At the time there were 35 patents-in-suit. Meanwhile that number has increased to 44 as Motorola asserted another two patents and Microsoft another seven. Microsoft's new assertions relate not only to Android-based phones but also to two Motorola networking products, the Mesh Wide Area Network AP 7181 and the CPEi 150 (also known as "CLEAR Home Modem").

There is not only escalation but also some consolidation: one of the three suits filed by Motorola in the Western District of Wisconsin (note that Motorola also filed one in the Southern District of Florida and lodged a complaint with the ITC) has been transferred to the Western District of Washington, which is where the dispute started with a Microsoft complaint six months ago. This is a procedural win for Microsoft, which had asked for that transfer to it home field -- Motorola opposed it unsuccessfully. After the transfer, the case might be consolidated into Microsoft's second Washington suit against Motorola, in which Microsoft alleges Motorola's failure to honor commitments to make patents available on RAND (reasonable and non-discriminatory) terms.

The fight over the proper venue for one of the suits has led Motorola to make the claim I mentioned in the headline, but before I get to that one, let me give you a graphical overview of the current battlelines:

Microsoft vs Motorola 11.03.01

It's recommended to view the document above -- which shows the escalation of the dispute in 11 steps and contains 7 reference pages that list the asserted patents and accused products -- in full-screen mode. You can also download it from Scribd, where I have set up a folder that contains such visualizations and reference lists for several major smartphone disputes.

Motorola claims smartphones compete with video game consoles

Microsoft has already succeeded in having one of Motorola's three Western Wisconsin suits transferred to its home state of Washington. Microsoft asked for such transfer in the other two cases as well. The second Wisconsin suit was stayed because with the exception of one patent it now relates only to patents that Motorola also asserted in its ITC complaint. Microsoft's motion for transfer of venue has not been turned down -- it simply won't be decided for the time being since the case is stayed anyway. And in the third Wisconsin suit, which Motorola brought just before Christmas, the battle over a possible transfer is raging, and has produced an amusing anecdote:

Arguing against Microsoft's motion for transfer of venue, Motorola claimed that such a transfer would result in a later trial date (not a strong argument anyway since the Western District of Washington isn't much slower than the Western District of Wisconsin) and that such a delay would be unacceptable because Motorola needs a decision quickly for competitive reasons.

But we're talking about a dispute in which Motorola asserted patents against the Xbox and some related products. If Sony or Nintendo claimed to compete with the Xbox, I guess many people could understand that. But Motorola? What game console do they have which would compete with the Xbox (and which would be a reason for them to ask for a quick decision)?

Here's the answer: on page 15 of its February 24, 2011 filing in opposition to a motion for transfer, there's the claim that "Motorola’s Android-based products are increasingly competing in the gaming market."

Motorola then points to a list of "thousands of games [...] available on Android phones, including Motorola's Android phones." Motorola also refers to the fact that Windows Phone 7 users can connect with Xbox Live (which is, however, something different than actually playing Xbox games on a large TV screen).

I've previously seen stories about how smartphones absorb the functionality of other devices. For example, they can be used as alarm clocks, although I certainly can't recommend using my Android-based Samsung Galaxy S i9000 for that purpose (it proved unreliable). And I rarely wear a wristwatch these days because I can just look at my smartphone, which I do frequently anyway (and unlike the alarm feature, the clock is dependable).

But the notion of a tiny smartphone touchscreen being described as an alternative to gameplay on a large screen and with game control devices (including, among other things, the Kinect), renders me speechless.

In its March 3, 2011 reply to that claim, Microsoft points out that a consumer looking to buy a phone won't buy an Xbox instead: "obviously, no consumer carries an Xbox around to make mobile phone calls, which it cannot make in any case." Imagine that -- wouldn't it look funny? And how much funnier would it look after a, say, one-hour call?

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