Thursday, April 25, 2013

Google loses appeal against Microsoft's German injunction over multi-part text message interface

As far as patents are concerned, Google keeps losing all the way against Microsoft. Yesterday (by Asian and European time) Microsoft's patent agreement with China's ZTE -- the 20th company to have taken a royalty-bearing Android patent license -- became known. The previous week, Microsoft announced a similar license agreement with Foxconn parent Hon Hai, defeated Google's pursuit of an injunction over a push notification patent in Germany, and obtained a FRAND rate-setting decision relating to Google's (Motorola's) standard-essential patents. As I wrote in the context of yesterday's decision by a German appeals court to stay a Motorola v. Apple case over the aforementioned push notification patent, Motorola has nothing to show but a lot of zeroes, including zero enforceable injunctions against Microsoft. By contrast, Microsoft has already won three German injunctions against Motorola, will probably win a fourth one in early June, and won a U.S. import ban last year.

The first of Microsoft's German injunctions was ordered by the Landgericht München I (Munich I Regional Court) on May 24, 2012 and is based on EP1304891 on "communicating multi-part messages between cellular devices using a standardized interface". This morning the Oberlandesgericht München (Munich Higher Regional Court) rejected Google's (Motorola's) appeal. Now that the lower court's ruling has been affirmed by the appeals court, the injunction -- which forced Motorola out of the German Android device market for four months last year -- stays in force unless the infringement finding is overturned by the Bundesgerichtshof (Federal Court of Justice), which may not even hear a further appeal (apart from nullity cases, it only rules on legal issues of fundamental importance to the development of consistent case law, and the Munich-based appeals court did not allow a further appeal, which means that Motorola would have to appeal the decision not to allow an appeal on the merits), or the patent is invalidated by the Bundespatentgericht (Federal Patent Court), which won't adjudge Motorola's nullity (invalidation) complaint anytime soon (and the Federal Patent Court's decision can be appealed, as a matter of right, to the Federal Court of Justice).

For the sake of accuracy, one of the defendants, Motorola's (and other companies') "after-sales service partner" Bitronic, is currently under administration (comparable to Chapter 11 in the United States). For this formal reason, a final ruling with respect to Bitronic has not come down yet. Bitronic firstly needs to appoint a new counsel.

Today's affirmance ruling is yet another success for Microsoft's counsel in the Munich cases against Motorola, a team of Bardehle Pagenberg lawyers led by litigator Dr. Tilman Mueller-Stoy and patent attorney Peter Hess. Google's Motorola is represented against Microsoft by Quinn Emanuel's Dr. Marcus Grosch.

Google's inability to overturn this injunction on appeal does nothing to dissuade Android device makers from licensing Microsoft's Android- and Chrome-related patents. In a blog post published on Tuesday Microsoft's Corporate Vice President and Deputy General Counsel Horacio Gutierrez expressed hopes that "the few global companies who have yet to take a license" would "join the rest of the industry in the near future". One of them is Motorola, which I believe would have taken a license a long time ago if Google had not acquired it. Whoever else needs a license will certainly take note of Microsoft's successful enforcement of patents against Android in situations in which litigation can't be avoided despite Microsoft's efforts to conclude a license agreement.

There are still some commentators on the Internet who complain that Microsoft's announcements of license deals with companies like Hon Hai (Foxconn) and ZTE don't list the patents Microsoft claims are infringed by Android. Those commentators appear clueless and biased at the same time. They don't know -- and apparently don't even want to know -- how things work. If they weren't biased, they would at least take note of the fact that Microsoft has asserted more than two dozen patents against Motorola (most of them in the United States, and several more in Germany), and they would realize that Microsoft has already prevailed over Motorola on four patents. But the deniers don't want to know the facts. They also refuse to accept the fact that no announcement of such a license deal ever comes with a list of patents. These license deals frequently don't even list patents but instead refer to the licensor's entire patent portfolio to the extent it reads on particular products. That's in the licensee's best interest because there would always be the risk of an infringed patent being forgotten when the list is put together. Microsoft's patent holdings are fully transparent. The companies who have taken Android- and Chrome-related patent licenses from Microsoft include a number of very sophisticated companies that hold many patents themselves -- which is more than the deniers can say.

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