Thursday, April 11, 2013

Appeals court likely to give German iCloud users push email back on 24th, lift Google's injunction

Due to an injunction Google's Motorola Mobility won against Apple over a dubious patent in Germany in February 2012 and started to enforce that same month, Apple was forced to deactivate push notifications for users accessing the iCloud (or its predecessor, MobileMe) from Germany. This relates primarily to push email but also includes contact and calendar updates, and it's not about whether users can access their email and other data but only about whether it is automatically sent to them or whether they have to configure their devices to check periodically for updates. Still, a hassle is a hassle, and this hassle has been caused for well over a year. But there's light at the end of the tunnel: the Karlsruhe Higher Regional Court will announce a decision on Apple's appeal on April 24, and based on how yesterday's hearing went, my prediction is that the enforcement of this injunction will come to an end:

The most likely outcome is a stay pending a parallel nullity (invalidation) action before Germany's Bundespatentgericht (Federal Patent Court). In fact, there are two nullity actions that will be heard together: one brought by Apple and another one brought by Microsoft. Over the last eight days the Federal Patent Court has already invalidated two other patents asserted in high-profile wireless disputes: Apple's slide-to-unlock patent and -- making yesterday a doubly successful day for Apple's defensive litigation in Germany -- a Samsung 3G (UMTS) declared-essential patent. I can't imagine that Motorola's push patent, which a UK court found invalid last year for multiple independent reasons, will survive the nullity proceeding unless its claims are amended to the extent that its scope is narrowed to what the claimed invention originally related to: ensuring the delivery of messages to pagers attached to different garments. Such a narrowing amendment would, of course, render the patent commercially valueless in today's market.

I wasn't able to attend yesterday's hearing in person (I fully intended to, but for reasons beyond my control I couldn't). But I've been able to obtain information on how it went, and I learned from a reliable source that the court expressed doubts about the validity of the patent in light of at least one of the prior art references underlying Microsoft's resounding victory in the UK. I published the UK ruling in February. Its paragraphs 89-97 discuss the prior art reference the Karlsruhe-based court is mostly interested in, Internet Message Access Protocol (IMAP) version 4, described in RFC 1730 dated December 1994 and published by the Internet Engineering Task Force (IETF). Look at it this way: Google, which claims to be all for open Internet standards and against proprietary technologies, has been enforcing an injunction for more than a year against Apple, and has been (unsuccessfully) pursuing one against Microsoft since 2011, over a feature that an open and universal Internet standard already described before the priority date of the relevant patent. This is like filing a patent on hyperlinks and suing Apple and Microsoft over it.

The court even suggested to Google's counsel to stipulate to a stay pending the nullity action, but Google declined. The fact that the court encouraged a stipulated stay is yet another indication that Google doesn't have much of a chance to continue its enforcement of this injunction come April 24. Also, it's not common for a decision to be scheduled so soon after the appellate hearing, suggesting that the appeals court wants to put an end to illegitimate enforcement.

It's also possible that the court will clear Apple of infringement. The court spent a considerable amount of time discussing Apple's non-infringement defense, but did not indicate an inclination, and certainly not as clearly as in connection with the obvious (in)validity of the patent-in-suit.

If Google ultimately loses this case, as I believe it will, then it will owe Apple damages for enforcement of an improperly-granted injunction.

A few months after suing Apple over this patent, Motorola also asserted it against Microsoft. Not only was the case against Microsoft filed later but it also took much more time as it involves some additional defenses Apple did not and could not raise (Exchange-specific prior user rights and grant-back obligation under ActiveSync license). The Mannheim Regional Court will announce a decision on that one in a week from tomorrow (April 19), and the way I see it, Google's case will be stayed or dismissed right away. The Mannheim court is presumably in close contact with its appeals court and well aware of it position now following yesterday's hearing.

Google's German push email injunction against Apple is presently the only injunction any "Android company" is presently enforcing anywhere in the world against Apple (and nothing is being enforced against Microsoft). In two weeks' time, even this one will likely be history. There are people out there saying that there are wins and losses on both sides, but the fact of the matter is that the only "wins" the Android camp scores are non-defeats, not true wins in terms of offensive achievements. That's why licensing -- not litigation -- is the only pragmatic solution for Android device makers to address their platform's infringement problems.

Google's Motorola is represented by Quinn Emanuel. Both Apple (in the appellate proceedings) and Microsoft are represented by Freshfields Bruckhaus Deringer, and Bird & Bird scored a strategic victory over this patent for Microsoft in the UK.

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