Monday, April 22, 2013

Google keeps losing: ITC finally tosses Motorola's complaint against Apple

This week begins for Google like last week ended: with another failure to convert the $12.5 billion purchase of Motorola Mobility into leverage against a major rival. On Friday a German court denied Google's Motorola an injunction against Microsoft over a push notification patent that is most likely invalid. Today the United States International Trade Commission (USITC, or just ITC) threw out the last patent-in-suit remaining in the investigation of Motorola's October 2010 complaint against Apple. U.S. Patent No. 6,246,862 on a "sensor controlled user interface for portable communication device" was found invalid. The patent relates to the feature that a touch screen ignores touches if the user is on a phone call and holds the device close to his head. Google wanted the ITC to ban the importation of any iPhones with that feature into the U.S. market.

Google can appeal this decision to the United States Court of Appeals for the Federal Circuit, where an appeal of the ITC's previous decision to throw out three other Motorola patents is underway. In August 2012 the Commission, the six-member decision-making body at the top of the U.S. trade agency, had remanded the investigation to the Administrative Law Judge with respect to the sensor-related patent but terminated it with respect to three other patents. Judge Pender had fon the sensor-related patent invalid for indefiniteness, but the Commission overruled him on this question. On December 19, 2012 Judge Pender issued his remand initial determination, which for the first time (since the later-reversed indefiniteness finding had all by itself taken care of this patent in the pre-remand initial determination) took a look at prior art-based invalidity contentions and Motorola's infringement claim. On remand Judge Pender identified an infringement but also found that another, earlier-filed Motorola patent rendered the sole remaining patent-in-suit invalid for lack of novelty. In February the Commission decided to review the remand initial determination. In its opening brief in response to the Commission's review quesions, Google's Motorola quoted Walter Isaacson's Steve Jobs biography.

In its final decision rendered today the Commission basically just modified Judge Pender's invalidity finding. It disagreed with him that the aforementioned earlier-filed Motorola patent in and of itself anticipates (renders non-novel) the patent-in-suit. But it agreed with Apple on two other invalidity theories involving the same patent and found the patent obvious over the earlier-filed Motorola patent in combination with either common general knowledge or another patent. The outcome is the same, and on appeal Google would have to overcome these two obviousness theories as well as varous other defenses Apple will raise, including the invalidity theories Judge Pender previously adopted (indefiniteness and non-novelty).

Last summer Google apparently realized that Motorola's first ITC complaint was unlikely to give it leverage against Apple and filed a second one, but it surprisingly withdrew that one in October 2012.

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