I just returned from the Munich I Regional Court, where Presiding Judge Dr. Peter Guntz publicly announced a decision in Apple's favor: most of Motorola Mobility's products were found to infringe on Apple's slide-to-unlock image patent, EP1964022 on "unlocking a device by performing gestures on an unlock image". Today's ruling is a permanent injunction that Apple could enforce at its own risk (against a bond).
The court evaluated three different embodiments. Apple won on the two that Motorola's smartphones implement. It did not prevail on the third one, which the Xoom tablet uses. That implementation is very similar to what I have on my Samsung Galaxy Note: the user has to make a swiping gesture from the inside of a circle to the outside. It requires a relatively large screen to work somewhat well, but even then it's not very intuitive. (I'm a very happy Galaxy Note user, but it has its shortcomings and the slide-to-unlock circle is one of them.)
[Update] I said that it was a "safe assumption" that Motorola would appeal this decision and it has meanwhile confirmed this intent to the BBC. [/Update] On appeal, Apple will presumably try to win on the third embodiment as well since it could be seen as covered by Apple's patent. But even with the current scope, this is largely a win for Apple that will result in a noticeable degradation of the user experience of Motorola's products.
[Update] The aforementioned Motorola statement quoted by the BBC says that "no impact" on sales is expected. There's no question that they can keep their products available by modifying them. That's why I said from the beginning that this is about a "degradation of the user experience" (see the end of the previous paragraph). If MMI wants to play it safe in Germany, it implements embodiment #3 (the slide-to-unlock circle) across its entire product range. That one was cleared by the regional court and is safe at least until the end of the appeals proceeding. But for the reasons I explained above, it's not very intuitive, and I don't think it can work well on typical smartphone screens. It remains to be seen what this workaround looks like. If I am positively surprised and convinced that they have implemented a workaround that does not come with a noticeable degradation of the user experience, then I'll report on that finding here. For now, the shortcomings of embodiment #3 and the fact that MMI will appeal indicate that Apple made some progress today. After all, it's the first ruling that Apple has won against MMI, and most likely, several more of them will follow this year. [/Update]
Motorola's German business is rather small so far. But MMI is in the process of being acquired by Google, and after the acquisition, Motorola will likely gain market share everywhere at the expense of third-party Android device makers. Google will certainly treat Germany as a priority market. Furthermore, Apple is asserting the same patent as well as a related utility model against Samsung in Mannheim, and can always bring claims against more Android device makers in this jurisdiction. Today's ruling is significant bad news for Android at large, and Google.
After losing two Mannheim cases against Motorola, Apple's German counsel in the Motorola cases, the high-profile Bardehle Pagenberg firm (which is a leader in Germany in both patent litigation and the prosecution of patent filings), may have achieved a trend reversal. Last Friday, a third Motorola lawsuit was dismissed, and now Apple has prevailed on its first offensive claim against Motorola in this country.
Germany has become a key battleground because of the size of the market, the speed of the process, and due to the fact that infringement findings entitle patent holders to injunctive relief. The fact that hardly any smartphone-related claims have succeeded at the ITC in recent years has made U.S. patent litigation dependent on federal courts. German courts move roughly twice as fast as the ITC, but the gap between them and U.S. district courts is even wider.
In December, I watched and reported on the trial related to today's decision. As far as today's infringement findings are concerned, they are not at all surprising in light of the trial. However, the court appeared somewhat inclined to stay the case pending the resolution of a parallel nullity (invalidation) proceeding. It appears that Apple's post-trial brief made a persuasive case for the likelihood of this patent being valid. German regional courts stay infringement cases only if they see a high probability of invalidity (similar to the "clear and convincing evidence" standard in the United States).
In this case, Motorola was hoping to benefit from the fact that a Dutch judge had concluded (though only in connection with the denial of a preliminary injunction against Samsung) that this patent was invalid for obviousness over a combination of two pieces of prior art. Within the EU, courts do take note of such decisions by courts in other member states, but they have the right to reach their own conclusions. In this case, the Munich court decided differently than The Hague.
In two weeks, Apple may win another Munich decision against Motorola, over a photo gallery page-turning patent. That ruling was also scheduled for today, but postponed. Also in early March, one of Apple's slide-to-unlock cases against Samsung will be adjudicated in Mannheim.
As a side note, the Munich court not only handed down a ruling today but also held an early first hearing (the second will be the equivalent of a trial) to discuss another German Microsoft case against Motorola Mobility that I wasn't previously aware of. The timing of today's first hearing suggests that the complaint was brought roughly three months ago. In that litigation, Microsoft is asserting EP1040406 on a "soft input panel system and method" against Motorola's Android-based devices. I listened to most of the introductory part. I will attend the trial and then report in more detail. Those first hearings are very preliminary.
Today's ruling and the revelation of this new Microsoft lawsuit show that the noose keeps tightening around Android's neck in many ways. With more and more patents being asserted against Android in different courts, Google needs to come up with a better way to address its intellectual property issues than possibly trying to reach a state of mutually assured destruction on the basis of FRAND-pledges standard-essential patents, a kind of misconduct that antitrust regulators won't tolerate because standard-essential patents are a fundamental issue, unlike Google's desire to get away with infringement.
If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.
Share with other professionals via LinkedIn: