A few weeks ago I reported on a FRAND-related summary judgment order by the United States District Court for the Western District of Washington. Microsoft didn't immediately prevail on all of the counts of its motion for partial summary judgment against Motorola Mobility's assertions of standard-essential patents, but the order indicated that the FRAND defense was very much alive. In particular, the order stated that Microsoft could bring additional motions, and a FRAND "mini-trial" (for factual disputes that require a jury verdict) was going to be scheduled (presumably in the spring or summer).
About a week ago, the court entered an order on a hearing that was mostly a claim construction (Markman) hearing, and the order contains, among other things, the following FRAND-related paragrapha:
3. The court authorizes Microsoft to file a summary judgment motion on the two RAND-based issues remaining in this litigation after the Courts February 27, 2012 Order [...]. Microsoft shall file this motion by March 30, 2012. Motorola shall respond by April 13, 2012 and Microsoft shall reply by April 20, 2012. The court schedules a HEARING for argument on Microsoft's motion for summary judgment on the RAND issues on May 7, 2012 at 9:30 a.m.
4. The court authorizes Microsoft to file a motion with respect to enforcement of injunctive relief sought by Motorola.
The May 7 hearing is not the same as the envisioned FRAND jury mini-trial. After the May 7 hearing, the court will decide on Microsoft's new FRAND-related summary judgment motions, and that decision could narrow both Motorola's case and the issues to be put before a jury at a mini-trial.
The court clearly takes FRAND very seriously. After allowing and adjudicating a first (four-part) motion for partial summary judgment, it now allows three more motions, and still plans to hold a FRAND mini-trial ahead of the main trial.
I will keep an eye on the parties' briefs. Motorola's reply brief will be particularly interesting since anything Motorola says at this stage about its FRAND licensing obligations can be relevant not only to that particular U.S. lawsuit but also to the European Commission's decision on Apple's and Microsoft's EU antitrust complaints.
We may also see some FRAND-related decision soon in the ITC investigation of Samsung's complaint against Apple. On March 5, a sealed motion with the following (non-sealed) title was brought:
Respondent Apple Inc.'s Motion for Summary Determination Terminating the Investigation as to the '644 and '348 Patents Based on Samsung's Agreements with Chip Suppliers and Frand Commitments
On March 15, Samsung filed a response to Apple's Statement of Material Facts in support of that summary judgment motion. That response is also sealed. I hope that public redacted versions of those pleadings (or at least of the ITC's upcoming decision) will become available. I will also keep an eye on that.
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