Thursday, September 13, 2012

German court hands Apple rubber-banding patent injunction against Google's Motorola Mobility

After the billion-dollar California verdict against Samsung, and one day after the launch of the iPhone 5, Apple just dealt Google and its Android ecosystem the next significant blow.

At the Munich I Regional Court, Presiding Judge Dr. Peter Guntz announced his panel's decision, which had been pushed back by five weeks, on an Apple v. Motorola Mobility lawsuit over the "overscroll bounce", or "rubber-banding", patent. The accused Motorola Mobility tablets and smartphones were all found to infringe EP2126678 on "list scrolling and document translation, scaling, and rotation on a touch-screen display", the European equivalent of U.S. Patent No. 7,469,381.

Apple can enforce a Germany-wide permanent (but appealable and, therefore, preliminarily-enforceable) injunction now by posting a 25 million bond (or making a deposit of the same amount), which it undoubtedly will. Motorola doesn't have to look far for a workaround: stock Android (the version of Android that Google makes available for download) comes with a glow effect instead of the overscroll bounce. Samsung's current devices also have a blue glow. But the glow does not solve the problem that the rubber-banding patent solves: by the time a user notices the glow, he or she has already instinctively pressed harder because of the impression that the device is not responding. This injunction spells further degradation of the Android user experience.

If Apple posts another 10 million euros, it can also obligate Motorola to destroy any infringing material, and for yet another 10 million euros it can get a recall. Furthermore, Motorola was held to owe Apple damages for past infringement. But Google will definitely appeal the decision to the Munich Higher Regional Court, and additionally it will keep pursuing its opposition to the grant of this patent by the European Patent Office. The opposition proceeding before the EPO is still ongoing and could lead to the partial or complete revocation of this patent. Judge Dr. Guntz does not rule out that this might happen, but in Germany, infringement cases are only stayed if there is a high probability (80% or higher) of a patent being invalid, and Motorola's invalidity defense did not meet that threshold in the court's opinion.

Earlier this year, Apple won two other injunctions against Motorola in Munich, one over the slide-to-unlock patent and another one over the photo gallery page-flipping patent. Motorola also lost a patent infringement action in Munich that Microsoft brought over a multi-part text message (SMS) layer patent, and one in Mannheim over a file system patent. It was Motorola who decided to attack Apple and Microsoft in Germany at a time when those companies were suing Motorola only in the United States. Now Motorola has already been found by German courts to infringe three Apple and two Microsoft patents. Since it doesn't have much market share in Germany, the immediate business impact of these decisions is asymmetrical to the impact of any ruling against Apple or Microsoft in this country. But the outcome of those cases shows that Android has far bigger patent infringement problems than any piece of computer software has ever had in the history of the industry, and this has many of Google's hardware partners profoundly concerned.

The infringement part of today's ruling was pretty clear. At a first hearing in April, Motorola had virtually conceded infringement and indicated that its defense was going to be almost entirely based on denying the validity of the patent, but at the August trial, it disputed both its infringement and the validity of the patent-in-suit.

Due to certain intricacies of German civil procedure, the Mannheim Regional Court is going to hold a trial on Apple's assertion of this patent against Samsung on December 7, while Apple failed in Munich in February to win a related preliminary injunction against Samsung and also lost its preliminary injunction appeal in Munich. Apple opted to pursue the full-blown main proceeding in Mannheim, but it additionally appealed the preliminary injunction decision in Munich. This type of forum-shopping is not permitted in all jurisdictions, but it made sense for Apple. Having enforced this patent against Android in three jurisdictions, Apple has every reason to be optimistic about the Mannheim trial against Samsung.

In making today's decision, the Munich court faced a number of partly consistent and partly (at least seemingly) conflicting rulings, opinions and verdicts concerning Apple's assertion of this patent against Samsung. While it appears that there are minor implementation differences between Apple and Motorola's implementations of the overscroll bounce effect, the relevant sets of issues are overwhelmingly congruent, and the respects in which a different panel of the Munich court (presided by Judge Andreas Mueller) as well as an appeals court in the same town (the Munich Higher Regional Court) differed from decisions in the U.S. (where Judge Koh identified a likely infringement last year but denied injunctive relief only for reasons of equity and a jury found in Apple's favor last month) and South Korea are all about the validity and construction of the patent-in-suit.

Apple's preliminary injunction motion against Samsung was denied mostly because of doubts about the validity of the patent. But the appeals court affirmed the denial and argued that if Apple's defense of the validity of the patent was adopted, the patent would have to be viewed as having a narrower scope, apparently defining the claim term "document" in a peculiar way. A decision on a preliminary injunction appeal is, due to the non-final nature that the word "preliminary" signals, not formally binding on a lower court, but it can be highly persuasive. Still, Judge Dr. Guntz decided differently, and it's worth nothing that a preliminary injunction is easier for a defendant to avoid than a decision at the end of a full-blown main proceeding. Also, Judge Dr. Guntz's panel is free to reach partly different conclusions from those of Judge Mueller's panel, and as a matter of fact, this cuts both ways: at a first hearing, Judge Mueller appaeared to take a more skeptical perspective on Apple's assertion of a couple of other multitouch patents (slide to unlock, photo gallery page-flipping) against HTC than Judge Dr. Guntz's panel in the related decisions against Motorola Mobility.

For a passionate patent litigation watcher, these complex relationships between different decisions made by different panels of the same court, or different courts in the same country, or courts in different countries, are truly fascinating. But for most people, the worldwide smartphone patent wars are confusing enough, and probably a bit too confusing in a case like this. However, there can be no confusion about the fact that Google is losing the smartphone patent war in the United States and in Europe. That's simply a fact that no reasonable person can deny when looking at the decisions that came down on both sides of the Atlantic.

Today's winning law firm is Freshfields Bruckhaus Deringer. The lead trial attorney was Dr. Markus Gampp. Freshfields also helped Microsoft win a Mannheim injunction against Motorola. Motorola was, as usual, represented by Quinn Emanuel Urqhart & Sullivan, the firm that also represents Samsung in the California litigation and generally handles most of the Android camp's high-profile patent litigation.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Share with other professionals via LinkedIn: