Monday, November 7, 2011

Motorola's ITC case against Microsoft's Xbox delayed by three months

On Friday, Administrative Law Judge David Shaw ordered the extension of ITC investigation no. 337-TA-752 (of Motorola's November 2010 complaint against Microsoft's Xbox gaming hardware in retaliation for Microsoft's Android-related lawsuit) by three months. ALJ Shaw only recently joined the ITC and took charge of this investigation on October 24.

The original schedule required the ALJ to file his initial determination by January 23, 2012 and had a target date of May 23, 2012 for the final decision. A hearing was due to start in less than a month. That schedule had already become too ambitious. The order indicates there were different delays that suggested a postponement of the target date. The new target date is August 23, 2012, and the initial determination will be due by April 23, 2012. A hearing will take place in January.

Microsoft's ITC case against Motorola was recently pushed back by six weeks (the same happened to Apple's case against Motorola). An initial determination in the investigation of Microsoft's complaint is due by December 16, 2011, and the target date for the final decision is April 16, 2012 -- a week before the initial determination on Motorola's complaint, and more than four months ahead of the final decision in that case.

Strategically, Motorola's ITC complaint against Microsoft is disadvantaged: it targets a successful Microsoft division but not Microsoft's core business. By contrast, if Microsoft wins its case, all of Motorola Mobility's smartphones and tablet computers will be affected (since all of them run on Android).

There are multiple lawsuits going between Microsoft and Motorola Mobility, and in mid-August I reported on how the schedules of those various cases clearly favor Microsoft. Of the ongoing federal lawsuits (all of which were either started in or transferred to the Western District of Washington), there's still only one that has a hearing scheduled at all (for late November 2012). I checked again today and PACER didn't show any hearing dates on the "hearings/deadlines" pages of those different cases except for the one I mentioned.

Google lawyers and others have repeatedly claimed that Microsoft, which recently announced a series of patent license deals with Android and Chrome device makers, hasn't yet proven in court that Android infringes any of its patents. I think that's a risky argument for Google to make at this stage, given that, under the current schedule, we're less than six weeks away from the initial determination of ALJ Theodore Essex in the investigation of Microsoft's complaint against Motorola Mobility. There are seven patents-in-suit at this stage (Microsoft dropped only two of the nine it originally asserted, which is a relatively low percentage, and is asserting a total of 25 different patents in various litigations over Android). If any of the seven patents in the ITC investigation are found to be infringed by Android, that will provide Google with precisely the answer it doesn't hope to hear. So why ask the question in the first place?

This is not about siding with one company or the other, or rooting for one company or the other. It's all about whether it makes sense to use an argument in early November that can be refuted by an ITC judge in mid-December. If I were in Google's shoes, I'd rather focus on arguments that are going to be at least equally strong in six weeks as they are today.

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