Thursday, June 14, 2012

Microsoft appeals unfavorable parts of ITC ruling in Motorola case to Federal Circuit

A month ago, the ITC ordered an import ban against Google subsidiary Motorola's Android-based devices that implement a technique for scheduling meetings from mobile devices protected by a Microsoft patent. But the ITC also said that Motorola didn't violate the other patents Microsoft was asserting. The initial determination related to seven out of originally nine patents; Microsoft's petition for a review raised issues with respect to five of the six patents the ALJ didn't deem violated.

Microsoft filed an appeal with the Court of Appeals for the Federal Circuit (CAFC) on Monday (click on the image to enlarge):

It's unknown with respect to how many of the patents-in-suit Microsoft lodged its appeal, but I guess this is about a handful of patents. If the CAFC overrules the ITC and identifies additional violations, the import ban will have a broader technical scope. In that case, there would be more pressure on Google to settle and take a royalty-bearing license as most of the Android ecosystem already has.

According to the latest statistics, the median time from docketing to disposition of Federal Circuit appeals from the ITC is 14.6 months. I think the parties are fairly likely to settle their dispute before the end of the appeal, but if Google remains adamant about its refusal to pay patent royalties on Android, it could still be ongoing in the second half of 2013 when the Federal Circuit will issue its opinion on this appeal.

Motorola could still file an appeal of the import ban. After the mid-May decision, Motorola said that it was considering that option.

Apple has already filed two appeals against ITC rulings on Android-related complaints. In December, Apple appealed the ITC decision on its complaint against HTC (which held only one of the four patents asserted at that stage to be violated) and in April appealed the ITC's dismissal of its complaint against Motorola (three patents-in-suit).

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