Thursday, March 7, 2013

Google about to lose patent spat with Microsoft: German court inclined to ban Google Maps

[BREAKING NEWS during break at Munich patent trial; may still add more detail later]

Judge Dr. Matthias Zigann of the Munich I Regional Court just told Google and its Motorola Mobility subsidiary in no uncertain terms that his court is at this point (prior to counsel's argument on claim construction, infringement and validity) inclined to hold Google Inc., its subsidiary Motorola Mobility LLC and MMI's German subsidiary liable for infringement of a key Microsoft patent, EP0845124 on a "computer system for identifying local resources and method therefor", which is the European equivalent of U.S. Patent No. 6,240,360.

Google has not been able so far to convince the court that the patent is highly probable to be invalidated at the end of a parallel nullity proceeding. Its pre-trial arguments for a narrower interpretation of the patent did not convince the court either. Judge Dr. Zigann, the judge presiding over the chamber (panel of judges) hearing this case, said that this patent, which has an August 1995 priority date, covers a "big idea" (the combination of search results with map data) that deserves a "construction commensurate with said big idea".

Microsoft is seeking, and now very likely to obtain, a German patent injunction against the Google Maps service, the Google Maps Android client app, and web browsers providing access to Google Maps. In order to comply with the injunction that looms large, Google would have to disable access to Google Maps from computers using a German IP address, discontinue shipping the Google Maps Android app in the German market, and distribute web browsers in Germany only if they block access to Google Maps in a way comparable to Internet filters used for the purpose of parental controls.

Microsoft originally sued only Motorola Mobility and its German subsidiary over the distribution of the Google Maps Android app. At a first hearing held in October, Motorola Mobility denied knowledge of the way in which Google's server operate, in response to whih Microsoft amended its complaint so as to accuse Google Inc. (and not only its subsidiary) of infringement (requiring Google under German procedural rules to admit or deny the infringement contentions).

A decision will likely come down in approximately two months. Google may now realize that its Motorola Mobility subsidiary needs to take a royalty-bearing patent license from Microsoft as virtually the whole Android ecosystem already has. Samsung, HTC, LG and many other Android device makers have already recognized the fact that Android incorporates technology patented by Microsoft and have elected to address these infringement issues through license agreements. But Google denies that Microsoft holds patents that Android infringes, and its Motorola Mobility subsidiary has so far refused to enter into a license agreement with Microsoft. With an injunction against Google Maps in Germany on the horizon, Google may soon reconsider. Google's own counsel told the court today that Google would suffer irreparable harm if it had to shut down a key part of its Google Maps service in Germany and that customers who then use competing services (such a Microsoft's Bing Maps, which Judge Dr. Zigann mentioned) may never return to Google Maps. But in Germany, injunctions are a legal remedy and not a matter of equity. Motorola Mobility itself has tried and continues to try everything in its power to enforce a German injunction against Microsoft over H.264 standard-essential video codec patents.

The court had announced today's trial as the "climax to date in the so-called smartphone wars, and the significance of this case is beyond reasonable doubt.

Interestingly, it was Motorola's -- not Microsoft's -- choice to litigate in Germany. Motorola filed four German lawsuits against Microsoft, and Microsoft only countersued. (In the United States, Microsoft was first to assert patents after an older license agreement had expired and negotiations of a new license weren't progressing well.)

Microsoft's lead counsel in this action is Dr. Tilman Mueller-Stoy ("Müller-Stoy" in German); its lead patent attorney is Peter Hess. Both are partners of the Bardehle Pagenberg firm, which previously won four injunctions against Motorola Mobility's Android devices (two for Apple and two for Microsoft). Google and Motorola Mobility are being represented by Quinn Emanuel's Dr. Marcus Grosch.

Tomorrow morning the Mannheim Regional Court will announce a decision, which may or may not be a final ruling, on a Nokia lawsuit against HTC targeting the Google Play app and content store.

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