Saturday, March 17, 2012

German courts appear inclined to halt one Microsoft-Motorola and another Apple-Samsung lawsuit

A busy smartphone-related court schedule in Munich (yesterday) and Mannheim (today) has resulted in a backlog of trials for me to report on. I always prioritize decisions over trials and pleadings.

I've previously blogged about an Apple-Motorola case in which the Munich I Regional Court isn't prepared to grant Apple an injunction prior to further clarification of the validity of the asserted patent, Friday's decision by the Mannheim Regional Court to stay an Apple-Samsung case (over a slide-to-unlock utility model) pending a parallel revocation proceeding at the German patent office, and a decision by the Karlsruhe Higher Regional Court not to suspend the enforcement of a Motorola injunction against Apple (over push notifications). Presumably, Apple's primary argument was its invalidity defense.

Now that we're on the subject of stays over doubts about the validity of asserted intellectual property rights, I'm going to report on two German cases that went to trial these days and need not but may very well be stayed. One is a Microsoft v. Motorola case in Munich, and the other one an Apple v. Samsung case in Mannheim. Subsequently, I'll do a blog post on a complex Motorola v. Microsoft case in which a trial took place today, at which Microsoft raised a diversity of defenses (including, but not limited to, non-infringement, invalidity, a covenant not to sue, and prior use).

Microsoft lawsuit against Motorola Mobility over multi-part text messages

On Thursday afternoon (a couple of hours after the Apple v. Motorola "dynamic ornamental appearance" trial), the Munich I Regional Court also tried a case in which Microsoft is suing Motorola over EP1304891 on "communicating multi-part messages between cellular devices using a standardized interface". This patent relates, quite specifically, to multi-part text messages (Short Message Service, SMS).

It appears that the primary benefit of the claimed invention is to provide applications with a separate layer that handles multi-part message-related functions, particularly the tasks of sending (after dividing) and receiving (and passing along in an aggregated form) such messages.

Motorola's primary non-infringement argument is that Android splits up into two function calls what the patent refers to as "the" function call. In doing so, Android gives some control back to the application level (the application could perform operations on data after the first operation), but also requires the application to make another call. While the court took an even stronger position earlier that day on the infringement of an Apple patent by Motorola, it also appeared to be rather firmly on the side of an infringement finding in this case.

From my own programming experience I would agree that the difference between a single call and two subsequent calls shouldn't be outcome-determinative in a case like this. In terms of what this looks like in practical terms, it's more of a syntactic issue than anything else. Most of the time, a function call with multiple parameters spans the same number of lines as two calls, each of which has a subset of the list of parameters. As far as additional ways to interact with data during the call is concerned, those could even be provided under a single function call by means of asynchronous callback parameters. Therefore, I think the court's inclination is right that this can't be a way out of infringement.

But Motorola's invalidity defense has much more traction. While the court didn't support it to the same extent that it did in the Apple case earlier that day, Judge Dr. Guntz did express serious doubt about the validity of the asserted patent. Motorola's primary prior art reference relates to data communication in a heterogeneous network (i.e., a network connecting computers running two or more different operating systems), and Microsoft's lawyers stressed significant technical differences between the invention claimed by the patent-in-suit and network communications (in which a mobile device could fulfill the function of a modem). Still, if the court had had to decide immediately, I believe it would have ordered a stay until a parallel nullity (invalidation) action yields results.

Recognizing that this case hinges on validity more so than on infringement, Microsoft's lawyes asked for leave to file a post-trial brief. In that case, Motorola would have been granted the same right. The court told the parties the next morning that this motion was denied. The parties can always make legal arguments, but this means that new facts won't be considered anymore.

The court is now going to consider the next step. It would be an exaggeration to say that a stay is a foregone conclusion, but that's where the court was leaning at the end of the trial. However, there was a similar situation at a December trial involving Apple's slide-to-unlock patent, but Apple ended up winning an injunction. The threshold for a stay is high: the court orders it only if it believes there's a probability of at least 80% of the patent being invalid. If that probability estimate is pushed below the 80% threshold, even if only slightly, in the weeks following trial, then the case can be adjudicated immediately.

Apple asserts utility model against Samsung's pinch-to-zoom functionality

Apple has so far sued Samsung in Mannheim over at least seven different intellectual property rights (only one of which has ended, but most likely been appealed already). On Friday, another one of those matters went to trial: Apple's lawsuit over German Utility Model ("Gebrauchsmuster") No. DE 21 2008 000 001, which is related to U.S. Patent No. 7,469,381, which I dubbed "Apple's favorite make-Android-awkward patent". In this lawsuit, Apple particularly accuses the "pinch-to-zoom" functionality of Samsung's Android-based devices of infringement.

While the '381 patent is primarily known for its relevance to list scrolling, it also has claims that read on "pinch to zoom". As far as list scrolling is concerned, most Android devices now come with workarounds. Even "stock Android" (Android as published by Google) provides a different kind of list scrolling. But Apple still asserts that patent, and its international equivalents such as this German utility model, against Android's pinch-to-zoom feature.

As I explained on previous occasions, a utility model is a German intellectual property right that comes with significant limitations relative to a patent. There is no presumption of validity, so the threshold to convince a regional court of a stay is only a 50%+X probability of invalidity, as opposed to 80%.

This is the first Apple v. Samsung lawsuit in which I've seen Samsung concede infringement and focus entirely on its invalidity defense. The judge recalled this fact, and Samsung's counsel didn't object.

Samsung's primary prior art contention is this article, entitled "Precise Selection Techniques for Multi-Touch Screens", by a researcher from Columbia University and two of his colleagues at Microsoft. It was published in 2006, well ahead of Apple's 2007 application.

The article doesn't describe exactly the pinch-to-zoom gesture known from Apple's devices and all those who copied it. Also, it refers to operations performed on a part of the screen content (as opposed to an electronic document that is often much larger than the screen). But Judge Andreas Voss of the Mannheim Regional Court pointed out that the two most important terms in the language of the claims, "gesture" and "electronic document", are very broad, a fact that makes him doubt whether the relevant claims of this utility model are valid.

In case of doubt, Judge Voss appears inclined to stay such a case pending the resolution of a parallel revocation proceeding. He prefers to let the technical judges of the Federal Patent Court (whose primary education is in engineering) detemine whether the differences between Apple's asserted utility model claims and the referenced prior art constitute an inventive step of sufficient height.

A decision (which could be a final ruling or a stay, or an order to appoint an independent technical expert) has been scheduled for May 4, 2012. I would be surprised if the court decided right away. I think that a stay or the appointment of an expert are much more likely options.

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