Saturday, August 18, 2012

Google opts for escalation: Motorola Mobility files new ITC complaint against Apple

Bloomberg just reported that Google's Motorola Mobility filed a new ITC complaint against Apple. The complaint is not yet available on the ITC's document system. Bloomberg cites an announcement by Motorola and says the complaint targets "the iPhone, iPad, iPod Touch and various Apple computers". According to the Wall Street Journal, Google/Motorola is asserting seven patents, all of which are claimed to be non-standard-essential.

This means Google's strategy to address Android's serious intellectual property issues -- Android-based devices have already been held by courts in different jurisdictions to infringe, among other things, nine valid Apple patents -- is further escalation in hopes of such developments forcing cross-license agreements or mutual covenants not to sue.

The announcement comes six days before the target date for a final decision on the ITC investigation of Motorola's first ITC complaint against Apple (July 23). A preliminary ruling by an ITC judge held Apple to infringe only one of Motorola's asserted patents, which is a standard-essential one that raises competition issues and is, therefore, less likely to result in an actual import ban. United States Senators and Representatives, the Federal Trade Commission and various major industry players, including companies that have no involvement with the ongoing smartphone wars as well as some of Apple's competitors, have argued that exclusion orders should not issue on the basis of standard-essential patents (except under extraordinary circumstances that are not the case here, such as a company's refusal to pay a court-determined FRAND royalty rate). Even if Motorola won an import ban next week, it would not affect the iPhone 4S and the new iPad 4G, nor the widely-anticipated iPhone 5, which is also expected to incorporate a Qualcomm baseband chipset.

The announcement of this new complaint may be driven in part by a desire to demonstrate that Motorola isn't finished even if its first ITC complaint against Apple may fail (in its entirety, or for the most part). Another possible motivation on Google's part is that the acquisition of Motorola Mobility has not been money well spent so far. And a third reason could be that Apple has the upper hand in its dispute with Samsung and may receive a favorable verdict, possibly as early as next week, which would call into question Google's ability to bring about the patent peace it promised a year ago when it announced the Motorola deal.

Apple and Motorola Mobility, whose acquisition by Google was announced a year ago and formally closed in late May, are embroiled in litigation in multiple venues in the United States and in Germany. Neither party has so far dealt a knockout blow to the other. So far, any court wins have occurred only in Germany, where Apple won two injunctions that Motorola has been able to work around, and where Motorola also won two injunctions, one of which it cannot presently enforce and the other one of which is still being enforced but has very limited impact on Apple's business.

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