Wednesday, January 25, 2012

Google authorized Motorola to seek an injunction against the iPhone 4S and iCloud

These days, you can probably hear a pin drop if Apple and Google are in the same room. Tensions are rising high as a direct legal clash increasingly appears to be inevitable. The latest hostility is a new lawsuit filed yesterday by Motorola Mobility, with green light from Google, in the Southern District of Florida, seeking an injunction against the iPhone 4S and the iCloud over a package of six patents previously asserted against older Apple products in the same court.

Google must have authorized this action because this complaint formally represents a new lawsuit (since it was too late to inject supplemental infringement contentions into the first Florida action) and Section 5.01(j) of the Google-Motorola merger agreement does not allow MMI to "assert any Intellectual Property Right in any new Action" without Google's consent (either under the agreement or in a separate document, which is what presumably happened in this case).

All six Motorola patents-in-suit are asserted against the iPhone 4S. All but two (the '987 and the '737 patents) are also asserted against the iCloud.

Here's a list of the patents:

As I mentioned before, Motorola would have preferred to add the iPhone 4S and the iCloud to the list of technologies accused in an action that started in late 2010. However, that litigation is already far along, with a trial scheduled for this summer, and the judge rejected Motorola's supplemental infringement contentions as untimely but said that MMI would be free to accuse those technologies in a separate lawsuit.

It's unclear at this stage how long it will take for this second Florida lawsuit to go to trial. The Southern District of Florida moves relatively fast. The fact pattern will be largely consistent with that of the first Florida action, but there will be some differences. Also, with reexaminations of some of the patents-in-suit ongoing, there could be new information from the patent office that might affect the outcome. But the court will be able to recycle some of the work it did for the first action, such as on claim construction (unless any new evidence relevant to claim construction is presented in the course of this new litigation).

Since the product release cycles of tech companies are much shorter than the average time to trial of U.S. patent infringement lawsuits or ITC complaints, it's the normal course of business that companies look for ways to use previously-asserted patents against new products.

Another example is that Apple, at a recent Mannheim hearing, presented supplemental infringement contentions relating to the Samsung Galaxy Nexus smartphone, the official lead device for Android 4.0 (aka Ice Cream Sandwich). Today I saw that the Korea Herald quotes an unnamed Samsung spokesperson as saying that the Nexus was not on the list of accused products. In this case, I am absolutely convinced that I am right and the Korea Herald's source doesn't have up-to-date information. I attended the hearing and Apple's lead counsel in that action, Dr. Frank-Erich Hufnagel of Freshfields Bruckhaus Deringer, presented contentions and said that they are "new" and relate to "the Nexus" (he mentioned the same at least twice). In an Apple v. Samsung infringement lawsuit, what would "the Nexus" mean, if we talk about "new" contentions, if not the Samsung Galaxy Nexus? Certainly not an HTC phone. Samsung is a large organization and Apple's new contentions may not yet have been received and processed accordingly, but just to be clear, I don't make these things up. There were various other spectators at the hearing, not just me.

Getting back to this new Motorola lawsuit, it's certainly not the same kind of aggressive escalation as a lawsuit over a new set of patents would have been, but this shows that Motorola continues to fight hard.

The fact that Google signs off on an additional lawsuit at this stage -- as opposed to waiting for its purchase of MMI to close -- also says something. Two days ago I blogged about the possibility of Google ratcheting up patent enforcement after the closing of its proposed acquisition of Motorola Mobility.

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