Friday, July 20, 2012

Google's push for U.S. import ban against Apple targets only older iPhones than the 4S

Even if the top-level decision-makers of the ITC affirmed a preliminary ruling by an Administrative Law Judge against major public interest concerns on Capitol Hill and in the industry, and granted Google subsidiary Motorola Mobility an import ban against Apple over U.S. Patent No. 6,246,697 (a patent declared essential to 3G/UMTS), it appears that the iPhone 4S and the new iPad 4G would not be affected (at least not without a decision in a different or subsequent litigation).

I conclude this from the following passage that I found in a filing Apple recently made with the ITC (click on the image to enlarge or read the text below the image):

"Motorola has agreed that Apple's CDMA2000 cellular devices, which operate on Verizon's cellular network, are not accused in this Investigation. This is likely to avoid litigating a dispute over whether Apple's CDMA2000 baseband chip provider (Qualcomm) has a license to the '697 patent, an issue being litigated in another forum. See Apple Inc. v. Motorola Mobility, Inc., No.: 3:12-cv-00355-DMS-BLM (S.D. Cal. Filed Feb. 10, 2012)."

The lawsuit mentioned at the end of that passage is the one in which Apple argues that Motorola's patent rights are exhausted as far as Apple uses Qualcomm baseband chips that implement the relevant patents. The first iPhone to include a Qualcomm baseband chip is the iPhone 4S, and it's widely expected that the iPhone 5 will do so as well. It's also been said that the new iPad 4G comes with a Qualcomm baseband chip.

Motorola has a comprehensive patent license agreement in place with Qualcomm but sent a termination notice to Qualcomm in January 2011 in order to deprive Apple of any third-party benefits from that license. Apple disputes that this actually resulted in the intended termination.

Yesterday I reported that Judge Sabraw, the federal judge presiding over that patent exhaustion lawsuit in the Southern District of California, dismissed Apple's first amended complaint but allowed Apple to refile it and provided plenty of guidance. One of the arguments that Motorola made in its motion to strike or dismiss Apple's case was that there was no actual controversy in terms of Motorola targeting the iPhone 4S with patents that are implemented by Qualcomm baseband chips. The footnote from Apple's ITC filing that I quoted above makes a lot of sense in that light: Motorola Mobility was presumably more interested in getting the patent exhaustion lawsuit dismissed than in launching an immediate attack on the iPhone 4S and the new iPad 4G. That's why it confirmed that its ITC complaint didn't target CDMA2000 chips (even though the '697 patent has been declared to the CDMA2000 standard, not only its predecessor).

Whatever Google's (Motorola's) motivation for not targeting CDMA2000 devices (which in Apple's cases means devices with a Qualcomm baseband chip) may be, this limits the potential impact of an import ban based on the '697 patent.

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