Last summer, Motorola sued Microsoft in Germany (in the United States, Microsoft was first to sue). But Microsoft has responded with several German lawsuits of its own. Among other things, Microsoft is asserting EP1304891 on "communicating multi-part messages between cellular devices using a standardized interface" against Motorola in two German lawsuits.
Originally, Microsoft filed one lawsuit over this, simultaneously targeting both Motorola Mobility Inc. (the U.S. parent company) and the German subsidiary. But it takes longer to serve complaints on overseas companies through a diplomatic process, which is why German courts routinely split up cases in order to start proceedings against the local defendant(s) at the earliest opportunity. Depending on the extent of the delay, there's always the possibility that the parties optimize the "laggard" case based on how the "vanguard" case plays out. Sometimes -- such as today -- the trial in the "laggard" case takes place prior to a decision on the "vanguard" case. While new factual representations cannot be taken into consideration for a case that has already gone to trial and is just waiting for its final decision, any legal argument may still influence the decision on the earlier case.
I had to provide this background information so that the procedural circumstances of today's trial (and the further implications of what happened there) are clear. Most of my readers live in other jurisdictions than this one. But with all of the smartphone-related patent litigation that's going on in Germany and continues to be filed here (for example, Nokia just brought a number of assertions against HTC, ViewSonic, and RIM), German procedural rules are of interest to a growing number of readers.
Today was the third time the Munich I Regional Court heard the parties' argument concerning this patent:
On December 15, 2011, the court held first (non-trial) hearings on Microsoft v. Motorola lawsuits over three patents including the one at issue today. At the time, only Motorola's German subsidiary was defending itself.
On March 15, 2012, there was a trial against the German subsidiary that at the same time served as a first hearing on the lawsuit against the U.S. parent company.
Today's trial related to the lawsuit against the U.S. entity, and with a decision on the case against the German entity scheduled for next week and then rescheduled for the week after next (Thursday, May 24, 2012, to be precise), it also represented an opportunity for the parties to make some last-minute legal argument that cculd still sway the judges ahead of that decision.
After the March 15 hearing, I thought the court was more likely than not to stay these cases over doubts concerning the validity of the patent-in-suit. The infringement claim itself always looked quite strong to me (even back in December). There's no doubt that Microsoft's lawyers, from the Bardehle Pagenberg firm, gained ground between the last hearing and today's court session. At the outset of today's hearing, Judge Dr. Peter Guntz, the judge presiding over this litigation and a growing number of smartphone-related cases, outlined the court's inclination, and it appeared that Microsoft's legal team had satisfactorily addressed any validity-related concerns the court had.
Today's trial took more than four hours (including a 30-minute break), which is unusually long by German standards. During the last few minutes the atmosphere in the room was semi-heated because both sides were fighting hard over case management issues.
It appeared to me that Motorola's denial of infringement is a lost cause (the non-infringement argument it spent most of its time on is astoundingly unpersuasive, as I'll explain below), and its invalidity defense regained a bit of traction again during the course of today's session, but Motorola is unlikely to defend itself successfully against both lawsuits over this patent.
Microsoft may overcome Motorola's invalidity defense with respect to both cases, but just to eliminate any unnecessary risks, Microsoft's lawyers today modified their prayers for relief (yes, in Germany that's possible at trial time) and announced a corresponding filing with the Federal Patent Court (with which Motorola had filed a nullity action) to narrow the scope of the patent-in-suit by focusing it entirely on text messages (SMS) sent over GSM networks, a tactical move that doesn't reduce the value of this patent to Microsoft but considerably ups the ante for Motorola's invalidity defenses (Motorola hopes that the narrowed claim will be easier to defeat with an "obviousness" argument, but that's easier said than done -- and it's an attack vector that I'm sure Microsoft's lawyers fully considered).
This modification only affects the "laggard" case -- the "vanguard" case will have to be decided based on the old prayers for relief and claims.
In practical terms, Microsoft gets most of the benefit (especially with a view to injunctive relief) if it wins just one of the two cases, and a ruling against the U.S. parent company will be even harder to circumvent.
The court will make decisions concerning both cases in two weeks (May 24, 2012). The "vanguard" case (against the German subsidiary) will either be stayed pending the nullity proceeding or there will be a ruling, which in my opinion would almost certainly be an injunction. The "laggard" case could also be stayed or adjudicated (again, given that infringement is pretty clear, this scenario corresponds to an injunction) on the 24th -- but in the "laggard" case it's also possible that Motorola will firstly be allowed to file a post-trial brief to respond to today's developments concerning the scope of the claims. Microsoft's counsel opposes leave for a post-trial pleading because the patent was simply narrowed within the scope of has been discussed since the outset of this litigation, as opposed to a modification of the claims that would alter the nature of the asserted claims.
Judge Dr. Guntz is usually generous when it comes to post-trial briefs, but in this particular case he was, at least at the end of the trial, somewhat unconvinced of the need for this. That's how I interpret the fact that he didn't grant leave right away but instead said that a decision, which could even be a final ruling, would come down on the 24th.
Tomorrow, Motorola may (or may not) win another Mannheim injunction against Microsoft. I'll report right after the announcement. In the remaining sections of this post on today's Munich trial, I'll explain the practical implications of an injunction over the multi-part text message layer/interface patent, my reason for doubting that Motorola's primary non-infringement argument can succeed, and present the two most important prior art references (which I was able to find, with Google, based on the court's and the parties' quotes from those documents).
Practical implications: injunction would require a (manageable) modification of Android and of all apps making use of the patented technique
The lead patent attorney on Microsoft's legal team, Peter Hess, was unequivocal in stating that Microsoft doesn't claim, and never intended to claim, to have invented multi-part text messages (Short Message Service, SMS). Instead, the invention claimed by way of the patent-in-suit is a separate text message (SMS) lawyer that provides a service, via an interface, to multiple applications by enabling them to have long messages divided into sequences of shorter ones (with all of the necessary header information) on the sending end and to have íncoming multi-part messages reassembled on the receiving end.
It's an operating system patent. Since it doesn't cover multi-part text messages per se, it's not standard-essential. Motorola and Google can modify their products in many ways that will still allow them to send and receive multi-part text messages, and to properly display them and save them. But they will have to change the wy this is done. And by changing the operating system, there will be a need to modify any app that makes use of the patented technique.
It won't be hard for Motorola and Google to modify Android's default text messaging app accordingly. And it's not going to be a Herculean challenge for app developers to make the same kind of modification. But Google and Motorola will have to talk to those developers because their apps would produce error messages on German Motorola devices if multi-part messages go out or come in over a layer that will have to be eliminated. Many Android users like certain third-party text messaging apps. They will only be able to use them for multi-part messages after those have been modified. In the meantime, they'll still get messages on the default messaging app, which I believe Google and Motorola will modify immediately after a possible injunction.
Most of the hundreds of thousands of Android apps out there don't send or receive text messages, let alone multi-part messages. But it's possible that the number of apps making use of that SMS layer is greater than most people would think. Besides dedicated messaging apps, there may also be other apps (games, social network clients etc.) that send or receive text messages and require modification. Google and Motorola can handle this, but they might as well consider the benefits of settling with Microsoft and taking a license to Microsoft's portfolio with respect to Android.
The workaround effort here would simply be a function of the extent to which Motorola's Android-based devices currently benefit, without a license, from the fundamental value proposition of that patent: the more apps use that SMS layer, the more of an infringement issue there is.
Motorola's primary non-infringement argument: "two function calls in Android while the patent discloses only one"
At each of those three trials, Motorola primarily (even if not exclusively) argued that Android's multi-part SMS functionality doesn't fall within the scope of the patent-in-suit because Android apps need to make two system calls: "divideMessage" and "sendMessage".
The judges accurately noted that, based on their preliminary thinking, Android nevertheless essentially practices all limitations of the patent claims in question. Maybe this modification is a deterioration in some way (less convenience) and/or an improvement in another way (apps can, if they so desire, interfere with the process), but none of that makes it a non-infringing implementation.
From my own programming experience, I wholeheartedly agree with the court's preliminary but consistent assessment (and, by extension, Microsoft's lawyers). We really talk about something that is purely a question of syntax, and the purpose of patents is not to protect a particular syntax (that's what copyright is for) but an inventive way to solve a technical problem.
Even if someone decides to make two such system calls in a row, it's a ridiculously small effort. It takes a few seconds of typing.
If an app developer doesn't like this, he can just add to one of his own libraries a single function that does nothing more than combine those two calls in a single call. Such a function can be created in, say, a minute. Or maybe two minutes. That's all. And then it can be reused an infinite number of times.
In the programming languages I know, it actually isn't even necessary to add another line if one wishes to make one call that divides and sends. The divideMessage call returns an array. Any programming language I know, such as C-style or BASIC-style languages, allows function calls that use a function call as a parameter. The call would look like this:
sendMessage(senderNumber, recipientNumber, divideMessage(messageString, senderNumber, recipientNumber))
That call would invoke sendMessage, but since a divideMessage call is part of the parameter list, it will be executed first, and its return value (the array) is then provided).
There's some duplicity there because the two phone numbers are used as arguments for both functions. But that's merely a cosmetic issue and can be solved in the way I described above: by designing a single function, such as "sendanddivideMessage" that gets only the two numbers and the string as parameters, and then makes the call I showed above -- or two calls in separate lines.
Also, if I as a programmer wrote the entire code that divides and sends a message, I would be almost certain to organize my related code in just the same way: with one subroutine for dividing, and another one for sending the result. The code using my function wouldn't see that internal organization, but it's the most obvious way to organize it internally (unless one likes to write functions that span thousands of lines, which is never recommended).
This is all about about code organization at the syntactical level, not about the gist of the patent-in-suit (or of any other patent, for that matter).
Prior art references
These are the two prior art references discussed in detail today (like I said, I googled those patent documents based on the quotes I wrote down at today's trial):
U.S. Patent No 5,983,265 on a "system for controlling electronic messaging protocol between plurality of computer system by using identical electronic messaging system"
U.S. Patent No. 6,728,548 on a "method and apparatus providing teleservice segmentation and reassembly"
The first one is about heterogeneous networks. There's another one that was described as similar to that, but they didn't quote from it, so I don't know how to find it. The second one is a Nokia patent, that unlike the first one deals very clearly with wireless communications, but it appears to cover a reasonably distinct solution from the one covered by Microsoft's patent. Maybe that second prior art reference would provide Google and Motorola with an idea for a workaround, but in that case they should talk to Nokia about a license deal.
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