Today the Munich I Regional Court held two hearings on lawsuits brought by Apple against Motorola in Germany. Motorola extended this dispute to Germany with four complaints filed on April 1, 2011 in Mannheim (about six months after its first U.S. lawsuit against Apple), provoking several lawsuits from Apple in Munich.
The ongoing smartphone patent war continues to be a war of attrition in which no decisive "knockout" blow is likely in the very near term, but Apple is making ever more progress forcing its competitors to modify their products in order to work around some of Apple's original ideas, which is what Steve Jobs wanted them to do. One of the next "trophies" in this regard may very well be handed to Apple by the Munich I Regional Court on February 16 in the form of an injunction against Motorola products that implement a certain method for flipping pages in a photo gallery in a way the court may find to infringe on EP2059868 (EP = European Patent).
The court doesn't have much doubt about the validity of this patent and appears rather convinced (at the end of the hearing even more so than at its outset) that the Android photo gallery constitutes a violation of that patent at least in its "zoom in" mode and possibly (though this is not yet certain) in its "zoom out" mode.
To be clear, I didn't quite get the impression that the prospect of this kind of injunction scares Motorola to death. Motorola is defending itself professionally but there are no signs of panic. After all, Samsung has already worked around that same patent to skirt a preliminary injunction ordered by a Dutch court in August. But if Motorola didn't care at all, it wouldn't have implemented that patented technique in the first place and this particular lawsuit would never have happened.
While one or two wins of this kind won't be enough to change consumer preferences, the aggregate effect of the enforcement of half a dozen or more patents of this kind could make an appreciable difference in user experience. And from a mid-term to long-term point of view, any such patent has more competitive impact than design-related rights. I heard that two design-related court hearings in Düsseldorf this week didn't go well for Apple, with the Galaxy Tab 10.1N, a modified version for the German market against which Apple brought another lawsuit) likely being sufficient to work around an existing preliminary injunction and an appeals court apparently being inclined to interpret the scope of Apple's tablet computer design right more narrowly, which would favor Samsung (and also Motorola, which Apple is suing in Düsseldorf over the design of the Xoom tablet).
Apple is fighting for long-term opportunities. As long as it doesn't come under enormous pressure, it can afford to crack one nut at a time, country by country. In this you-win-some-you-lose-some game, a substantial drop-out rate is less important than steady progress. A high hit rate is of course desirable, and the extent to which Motorola, Samsung and HTC defend themselves successfully is nothing short of impressive, but if the hit rate isn't extremely high, it just means that it takes a patent holder more time and money (both of which is not an issue relative to what's at stake) to get to a certain level of success. With a large and rapidly-growing portfolio, bringing larger numbers of parallel patent assertions in ever more jurisdictions is a justifiable and easily affordable way of compensating for a limited hit rate. Also, the hit rate that patent holders achieve appears to be significantly higher in most other jurisdictions than at the ITC.
Every single patent like the one on flipping pages in a photo gallery can contribute to differentiation and help avoid commoditization. In some cases, users wouldn't ever talk about the difference between a workaround for a patent and the patented method, but several such differences could still have a subconscious effect and make one platform appear more user-friendly and more fun to use than the other.
Slide-to-unlock case could be stayed
In other news from today's doubleheader in Munich, Judge Peter Guntz indicated an inclination to stay another litigation. In that one, Apple is asserting its well-known slide-to-unlock patent, for the duration of a parallel nullity (invalidation) proceeding. A stay is not a given, and the court is weighing at least two other options. The fact that a Dutch judge recently considered that patent invalid, finding on a preliminary basis that it appears obvious over a combination of two pieces of prior art, appears to bear significant weight with the Munich court.
Doubts over the validity of the asserted patent could delay the case considerably, but it would actually be a better outcome for Apple than the inclination the Mannheim Regional Court indicated last week in a case in which Apple is asserting that patent against Samsung. Mannheim is reluctant to stay patent lawsuits on the grounds of suspected obviousness of a patent over prior art, which would be useful to Apple in this case, but last week, at a hearing on an Apple lawsuit against Samsung, Mannheim-based Judge Andreas Voß appeared inclined to interpret the patent more narrowly than his Munich-based colleague today. Motorola and Samsung have different slide-to-unlock implementations (in fact, each company has at least three implementations all by itself), so the infringement analysis isn't directly comparable, but I heard both courts' views on how to interpret the patent claims and Munich's take is more inclusive.
It wouldn't be unusual for two German regional courts to interpret the same patent claim slightly differently. Reasonable people can disagree on this.
Neither court can set binding precedent for the other by being first to rule, but there would certainly be a risk for Apple that if the Munich case gets stayed for as long as validity is being sorted out, the Mannheim case could be decided against Apple on the infringement side. Apple would most likely appeal such a ruling, and the Karlsruhe Higher Regional Court still couldn't set binding precedent for the Munich court (apart from precedent having less weight in Germany, those courts would be in different circuits anyway), but if the appeal went well (and quickly enough) for Apple, it would have major persuasive impact in Munich.
The broadest possible interpretation that Judge Guntz might (or might not) give this patent -- and which may or may not be the right one -- would make it rather difficult to work around without a substantial degradation of the user experience. A moderately broad interpretation would still leave room for non-infringing alternatives offering a substantially similar user experience. A quick win in Germany on this patent is not very likely (though not impossible). If I were Apple, I would fight for a broad interpretation even if it takes time. No one knows how long Apple's disputes with Samsung and Motorola will last. But even if they settled with those two players somewhere along the way, there would still be countless other Android device makers out there, and the scope of that patent needs to be clarified by appeals courts at some point.
In the meantime, various other patent infringement claims can (and probably will) be brought and adjudicated.
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