Thursday, May 3, 2012

Motorola appeals Microsoft's temporary restraining order to the Ninth Circuit

In a filing made yesterday in the Western District of Washington, Motorola gave notice of its appeal to the United States Court of Appeals for the Ninth Circuit against the temporary restraining order that prohibits, for the time being, the enforcement of the German patent injunction Motorola won in Mannheim yesterday.

In a footnote of its notice of appeal, Motorola says that the order, even though it's called a temporary restraining order, should be treated as a preliminary injunction. That's because temporary restraining orders issued by federal courts are not appealable, while preliminary injunctions are. I guess the first thing the Ninth Circuit will have to decide is whether to hear this appeal at all. Motorola says that this order was a preliminary injunction because it is "of unlimited duration" and was ordered "after full briefing and oral argument". Actually, the "unlimited duration" may very well be over on Monday, but there could be a new order, and that one could be a preliminary injunction.

Motorola presumably appeals this order to the Ninth Circuit and not the Federal Circuit since Microsoft's original lawsuit was about Motorola's FRAND-related contractual obligations. Appeals in patent matters go to the Federal Circuit.

Appeals against preliminary injunctions (should this temporary restraining order be considered a preliminary injunction) are usually adjudicated relatively quickly, but in practical terms, it's hard to see how this appeal will be heard before the temporary restraining order expires or is replaced by a new order. On Monday (May 7, 2012), there will be a hearing in Seattle on the parties' motions for partial summary judgment relating to the alleged breach of Motorola's contractual obligations. A decision on those motions may come down later the same day, or not long thereafter. If Motorola is found to have breached its FRAND-related contractual obligations by making blatantly unreasonable demands, I don't think it will then be allowed to go ahead and enforce the German injunction. Whatever the court in Seattle will then do to prevent Motorola from frustrating the process in the Western District of Washington, Motorola would need to bring a new appeal.

So what does Motorola hope to achieve with this appeal just a few days before the next Seattle hearing? The only near-term effect is that Motorola sends a message to Judge James L. Robart, the federal judge presiding over the Seattle FRAND case. And the message is neither strong nor surprising. When Judge Robart explained the reasoning behind the temporary restraining order, he was clearly aware of the possibility of an appeal. He was also aware of Motorola's transparent tactical plan of going to Germany (approximately eight months after Microsoft's complaint) for the purpose of an end run around the FRAND contract case in the Western District of Washington.

Maybe the purpose of this appeal will become clearer at the Seattle hearing on Monday.

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