Wednesday, August 10, 2011

Apple is also suing Motorola in Europe over the Xoom tablet's design

Here's a very interesting news item that is hidden deep inside Apple's complaint against the Samsung Galaxy Tab 10.1 that led to an EU-wide preliminary injunction:

Prior to or simultaneously with the motion for a preliminary injunction against Samsung, Apple also filed a complaint with the same court over the design of the Motorola Xoom tablet. Here's a passage from the Samsung complaint that mentions two other lawsuits Apple instigated against iPad competitors -- Motorola and a local German company named JAY-tech (click to enlarge):

That passage says that Apple filed with the same court (district court of Düsseldorf) a complaint over the design of the Motorola Xoom, but it doesn't state whether that complaint included a request for a preliminary injunction. While it's not stated explicitly, I suppose that the complaint against Motorola also asks the court for an EU-wide injunction -- but perhaps just for a permanent injunction without a previous preliminary one.

The other company that Apple sued in Germany, JAY-tech, was served a preliminary injunction, and according to Apple's representations, it was upheld by the court "in its entirety" even after a hearing. The complaint doesn't say on which operating system JAY-tech's banned tablet was going to run, but Android would be by far and away the most likely option.

Getting back to Apple and Motorola, those two companies are suing each other over more than 40 U.S. patents. I produced a "battlemap" along with reference lists in December -- you can view it on (and download it from) this Scribd page. That visualization also contains the early part of Apple's dispute with HTC. I have meanwhile produced a separate visualization of the Apple/HTC/S3 conflict.

Apple's dispute with Motorola began in October 2010, but so far it was not known that it has also branched out to Europe -- just like Apple's disputes with Samsung and HTC. In the U.S., an ITC hearing was due later this month on Motorola's complaint against Apple, but due to the retirement of Chief Administrative Law Judge Paul Luckern it was postponed. A new date hasn't been set yet because the ITC firstly needs to assign the case to a new judge. Apple also has an ITC complaint going against Motorola.

It's clear that Apple is determined to assert its different intellectual property rights -- hardware patents, software patents, and design-related rights -- against Android device makers. While Apple appears to place particular emphasis on lawsuits over tablet computers in its European design-related lawsuits, I believe the reason is that a preliminary injunction can't be requested in Germany if the right holder has been aware of an infringement for too long. There isn't a clear statutory limit, but German lawyers usually discourage such motions unless they are filed within one month of finding out about an infringement. It's possible to get permanent injunctions even against older products, but for preliminary ones there must be a particular sense of urgency. It's possible that Apple has also been aware of the Xoom for too long to file for a preliminary injunction at this stage.

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