Friday, August 31, 2012

German court postpones ruling on Apple-Motorola lawsuit targeting 'core Android operating system'

In early July, the Mannheim Regional Court held two trials on Apple lawsuits against Motorola Mobility and Samsung over EP2098948, a multi-touch event model patent, and scheduled decisions for today in the Motorola case and for September 21 in the Samsung case.

I went to the court, but there has been a rescheduling. The decision concerning Motorola will now come down on the same day as the one on the Samsung case, i.e., in three weeks.

There can be situations in which the same patent targeting the same technology -- in this case, we're talking about the Android operating system itself -- is adjudged differently by the same court in parallel lawsuits involving different defendants. For example, one party may fail to bring certain infringement or invalidity contentions in time. But based on how those two trials went, there is no obvious reason why the two cases might have different outcomes. And the consistent outcome is more likely than not to be a finding of non-infringement.

A three-week delay is no big deal in the greater picture. By comparison, Apple obtained a highly favorable jury verdict against Samsung in California a week ago, but the court is unwilling to consider Apple's request for injunctive relief before December, with a decision possibly not even coming down before the end of the year. I'll talk about that in my next post.

I mentioned the "core Android operating system" -- in quotes -- in the headline because Google used this term in its official reaction to last week's Apple v. Samsung verdict, and I thought this touch event model patent is a good example of what a reasonable decision of the "core Android operating sstem" should include. I think Google's use of that term has confused a lot of people out there, and that confusion was anything but unintended.

Google's statement made one very good point. Several of the patents the jury deemed valid and infringed are undergoing reexamination by the USPTO. I, too, believe that this is likely to change the situation, to some degree, in Samsung's favor further down the road.

Also, Google actually admitted that some of the trial patents do affect the "core Android operating system". Google said this:

"Most of these [patent claims] don't relate to the core Android operating system [...]"

"Most" means "not all, but some". It's not Google's fault that some people later said that none reads on core Android.

Obviously, design patents covering the shape of a tablet or smartphone are not an Android issue. Note that I usually refer to patents that Android-based devices have been found to infringe, which is not the same as saying that Android itself has been found to infringe -- but there are also some people who ignore that distinction.

While Google is not responsible for the shape of Samsung's tablets or smartphones, it is indirectly affected by Samsung's infringement. Apple's coherent story of "copying" ranging from packaging design to operating system functionality was clearly a key factor that helped Apple obtain last week's verdict.

It's unclear what Google considers to be the "core Android operating system". The narrowest definition of the core of Android would be... Linux. Android is a Linux derivative. But none of Apple's trial patents reads on Linux itself, so it's clear that Google defines "core Android operating system" more broadly than that.

The touch event model patent that was scheduled to be adjudged today would undoubtedly have to be considered a patent that reads on the "core Android operating system". It covers the way Android informs applications of touch events. All applications receive touch events. Not all applications rely on the specifics of the patented technique (such as selective sending of events if more than one touch is identified at the same time), but this is an operating system patent, not just an application patent that would be relevant only to a particular app, such as the photo gallery or the YouTube client.

The fact that Google CEO Larry Page is talking to Apple CEO Tim Cook about intellectual property matters including Android-related patent litigation shows that Google has problems in this area. How many of those problems relate to the "core Android operating system" depends on how one defines that term.

Whether or not a particular patent reads on what Google includes in its definition of the "core Android operating system" is not the most important thing. What really matters is what technical changes are necessary in the event of an injunction. Will the workaround result in degradations of the user experience, or a loss of functionality, performance, security, or stability? Google has not commented on this yet, but at some point it will have to. After now-Google-owned Motorola won a German injunction over a push notification patent, Apple was very clear about the implications. It explained on its website how this affected some of its customers accessing the iCloud or MobileMe email service from Germany, and how users were able to mitigate the impact. If Apple wins a post-trial injunction against Samsung, I hope Samsung and Google will also be very specific about their workaround strategy -- and not just refer us to an arbitrary distinction between the "core Android operating system" and Android as a whole.

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