Wednesday, December 28, 2011

Motorola apparently concerned about ITC review of Microsoft decision

[Update] Two and a half months after I wrote the post below, I received information (from a reliable, protected source) about a near-simultaneous event in a different jurisdiction that I was, during that period, entirely unaware of because none of the related documents entered the public domain. That other event suggests to me that Motorola's denial of an extension of a deadline during the Holiday Season was attributable neither to disrespect for another party's litigators nor to concerns over the outcome of this ITC investigation, but rather to circumstances under which neither party was inclined to ease deadline pressures during that particular period. Obviously, I always have to rely on information that I can reasonably find out about with the means at my disposal, and in this case, all of the publicly available documents led me to the now-retracted conclusions stated below. [/Update]

Even during this week, the slowest and calmest one of the year, some judges and lawyers are working on a number of smartphone patent cases. For example, there have been some filings and orders in Oracle v. Google this week. But for the most part, the Holiday Season is also a vacation season and people are spending time with their families.

Procedural rules usually don't declare this last week of the year (except or public holidays) a blackout period for deadlines, but extensions of time are not only common at this time of the year -- from a practical point of view, they are the norm:

  • On Thursday, the Chairman of the ITC granted Apple and HTC their motion to extend the due dates for responding to the Commission's December 16, 2011 notice of review. In light of the Holiday Season, Apple's and HTC's lawyers agreed that an extension made sense.

  • On Tuesday, an Adminstrative Law Judge (ALJ) granted an extension to CVE Technology Group, a non-party subpoenaed in the ITC investigation of Samsung's complaint against Apple. Neither party opposed this request.

  • Also on Tuesday, that same ALJ granted an extension to several consultants to HTC who were subpoenaed by Apple in the investigation of Apple's second ITC complaint against HTC. Again, no one opposed.

All of the extensions mentioned above were requested with reference to the special circumstances of the Holiday Season. All of them were noncontroversial despite the fact that Apple's disputes with HTC and Samsung are bitterly-contested patent wars in which time is of the essence. All of these requests were readily granted by the ITC.

But one smartphone patent litigant stands out as showing no consideration for its colleagues and their families: Motorola Mobility. Look at this (click to enlarge):

I copied that paragraph from a document Microsoft filed yesterday to ask the ITC for an extension by only five business days for filing a petition for review of last week's initial determination finding Motorola in infringement of one of seven Microsoft patents-in-suit. The motion explains that "Microsoft's outside and in-house legal team are largely unavailable at various times during the short period between service of the Initial Determination and the current due date for any petitions for review" and mentions the "intervening Christmas, Hanukkah and New Years holidays". Despite those circumstances, Microsoft wants to have enough time "to adequately digest the many legal and factual findings made by the ALJ and to determine which of these issues should be included in Microsoft's petition".

Motorola's opposition to this request is unusual because lawyers normally treat each other as colleagues even if they represent adversaries. There's a certain, unwritten, code of ethics according to which they fight each other on the issues and will use aggressive rhetoric to the extent that it's necessary, but when it comes to case management matters like this one, they try to be helpful, or at least somewhat cooperative.

By opposing such a request for an extension, Motorola's lawyers disregard their colleagues and, above all, their families.

I have had brief conversations with high-ranking Motorola in-house lawyers before and after some of the recent hearings in German courts. Everyone realizes that the stakes are high in these disputes, but these are definitely not the kind of people I would suspect of disrespecting their colleagues. After all, this here could take years to be resolved, and next time they might be the ones asking for an extension at this time of the year.

The only explanation I have for this is that someone at the highest level of the organization ordered Motorola's legal team to do anything it takes, no matter how inappropriate, to prevent Microsoft from seeking a review of the preliminary ITC ruling. Since Microsoft has seven patents in play, such a review could result in Motorola being found to infringe more than the one patent the ALJ deemed infringed. And even if the Commission, the six-member body at the top of the ITC, didn't overrule the ALJ to that effect, any issues raised at this stage could be appealed to the Federal Circuit. For the ITC as an institution, it wouldn't look good at all if the Court of Appeals for the Federal Circuit (CAFC) identified clear errors in the ITC's reasoning in a way that would run counter to the ITC's mandate. Therefore, should Microsoft have strong legal arguments for a modification of the ALJ's recommendation in its favor, things could get worse for Motorola than they appear right now.

Against that background, I totally understand that Motorola doesn't want Microsoft to have too much time to raise legal issues at this stage. But an affront like this suggests that Motorola isn't comfortable that the ALJ's reasoning is solid enough to withstand serious scrutiny.

I haven't seen the detailed version of the ALJ's initial determination yet. It always takes time before any redacted version enters the public record. I don't even know which of these patents were deemed invalid and which ones not to be infringed, or what role any other defenses may have played (I saw that Motorola at some point brought a motion raising an estoppel-like defense). When the initial determination becomes available, I will certainly take a close look and blog about it. But before I have seen it, I can already see that Motorola is so apprehensive of a possible review (or further appeal) that it has chosen to violate an unwritten code of professional ethics.

[Update] On December 29, 2011, the ITC granted Microsoft an extension, but only by two business days, not five. The deadline for petitions for review is now January 5, 2012. [/Update]

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