Sunday, August 12, 2012

Microsoft keeps pushing for a third German injunction against Google's Motorola Mobility

Microsoft has thus far won two German injunctions against Google subsidiary Motorola Mobility's Android-based devices, one over a multi-part message layer patent in Munich and another one over a file system patent in Mannheim. It's already enforcing the former and declared its intent to enforce the latter as well. In the meantime, Microsoft is carrying on with its efforts to prove Android's wide-ranging infringement of its patents. A third German injunction is only a matter of time, though I'm not sure that it will still happen in 2012. It may be next year.

On Friday (August 10), the Mannheim Regional Court held a trial on a Microsoft v. Motorola Mobility lawsuit over a radio interface patent: EP1233343 on a "method and radio interface layer comprising a set of application programming interfaces (APIs)". This is the European equivalent of U.S. Patent No. 6,826,762, which Microsoft asserted against Motorola in its ITC complaint (here's the claim chart). The ITC deemed the patent valid but not infringed, a decision that Microsoft has meanwhile appealed.

The judge presiding over the trial, Judge Andreas Voss ("Voß" in German), has already adjudicated more smartphone and tablet computer patent cases than any other judge in the world, and he and his colleagues serving on the same panel enjoy a reputation for their excellent grasp of technical issues. When they walk into the courtroom for a trial, they usually don't need much explanation from counsel, but they do give all parties a fair chance to make their case.

Judge Voss's introductory remarks at this trial raised several issues, especially three major ones, the first one of which suggested that the court is inclined, depending on one particular claim construction issue, to deem the patent either invalid or not infringed, but not valid and infringed at the same time. In most situations of this kind, a plaintiff can already look past the court of first instance to the appeals court. I have yet to see a case in which a court decides in favor of a patent holder if the preliminary opinion was that validity and infringement appeared mutually exclusive. Here, a dismissal also appears more likely than not, but two of the three major issues have the same root cause, and based on what was discussed in open court, I don't see the remaining one as an insurmountable hurdle. That's why I'm not sure the decision, which was scheduled for October 5, 2012, will be a dismissal.

The key issue is a matter of perspective. The patent covers the idea of introducing a layer of abstraction between applications on the one hand and mobile communications hardware and cellular networks on the other hand. For example, an app should be able to send a text message the same way irrespectively of whether the phone incorporates a Qualcomm or Intel baseband chip, or whether the mobile service provided is a 2G (GSM), 3G (UMTS), or 4G (LTE) network. The patent describes an abstraction layer that is itself divided into two layers, a proxy layer (which the apps communicate with) and a hardware-specific (and/or network-specific) driver layer. A narrow interpretation of the patent (which is advocated by Motorola, in no small part based on the prosecution history of this patent, and appeared to resonate with the court) requires the proxy layer to remain unchanged, while a less narrow construction is that the patent is infringed if the applications benefit from abstraction.

The narrower interpretation suggests, in the court's preliminary opinion, a finding of non-infringement and potentially also a failure of proof since Motorola argues that the Android code published on the Internet does not necessarily ship on its devices, pointing to differences that Microsoft argues are irrelevant (which is plausible to me under the broader interpretation, given that apps utilizing the relevant functionality run across multiple Android versions, but there could be an evidentiary issue under the narrower one).

Whether or not Judge Voss was persuaded on Friday to favor the broader interpretation, he certainly didn't give any indication of a change of mind.

In this context as well as the one of whether Android translates commands from the apps into "standard telephony radio hardware commands" or non-standard commands, I was wondering why the judge never mentioned a principle of claim construction and infringement analysis that he cited at several other trials: a patent covers what it covers, and the presence of additional elements does not constitute non-infringement. For one example, Apple was reminded of this principle when it argued with the existence of a fourth channel while a patent covered three channels. At the very least I believe that this principle should apply to the question of standard commands: if Microsoft proves that at least one "standard telephony radio hardware command" is generated, the existence of additional non-standard commands shouldn't undo the infringement that occurs. Such non-standard commands are just like the fourth channel in the Apple case: they're around, but they shouldn't matter.

For a lack of information, I don't have a firm opinion on whether it should similarly be sufficient for Microsoft to prove that there are some contexts in which Android provides the benefit of abstraction to apps, even if there may still be, in addition, certain hardware-specific or network-specific API calls made by Android apps. I certainly believe one could view it that way.

The initial determination of an ITC judge (the relevant part of which was not reviewed by the Commission) was that, based on his claim construction, "the proxy layer is independent of the network characteristics of the hardware" (though he accepted the possibility of "modifications of the proxy layer for different hardware"). He then held that "Motorola presented specific evidence that the stack that is built and used by [a given Motorola Android-based] device varies depending on the 'PreferredNetworkMode' that is selected". The ITC ruling was not mentioned at the Mannheim trial, but I'm sure Motorola had previously submitted the ITC position to the German court, which showed a potential inclination on Friday to apply an even narrower interpretation of the patent than the ITC did. The Mannheim court reached a different conclusion than the ITC concerning the validity of Microsoft's FAT patent and held that a Linus Torvalds email was not clear and convincing evidence of the alleged invalidity of that patent, but it may agree with the ITC (or even go beyond the ITC's position) on the radio interface patent. For Microsoft, the FAT patent is presumably the much more important one anyway since the related technology has been licensed by countless high-tech companies around the world. And with the two German injunctions Microsoft has already won, it already has a considerably higher hit rate (relative to the number of cases filed) in this jurisdiction than Apple (let alone Samsung).

The Munich I Regional Court will rule on a Microsoft v. Motorola Mobility lawsuit in September, and hold a hearing on another one in October. This will continue until Google's Motorola Mobility takes a license.

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