Friday, May 24, 2013

Google's $12.5B Motorola fails to win ITC import ban against Microsoft's Xbox gaming console

On April 3 I explained that Google faced (at least) a double hurdle in its quest for a U.S. import ban against Microsoft's Xbox gaming console after a March 22 preliminary ruling on remand by an Administrative Law Judge. The remand initial determination found that Google had waived its indirect infringement arguments, but even if it had not, the outcome would have been the same: a dismissal due to a finding of no violation whatsoever.

The Commission, the six-member decision making body at the top of the U.S. trade agency, yesterday -- one year and one day after Google's formal closing of the $12.5 billion acquisition of Motorola Mobility -- gave notice of its decision not to review Judge Shaw's remand initial determination, thereby terminating the case. Petitions for review are frequently granted, but in a minority cases, such as this one, they are denied.

Since mid-January this ITC investigation had been down to only one (non-standard-essential) patent after after Google withdrew four standard-essential patents (SEPs) from this case. Should Google appeal the Commission's final ruling to the Federal Circuit (where it would also face the double hurdle I outlined, even heightened by the deference that the ITC will be afforded), it can't assert the withdrawn patents. Meanwhile a federal district court has determined a FRAND royalty rate for Google's (Motorola's) SEPs, so Microsoft will be licensed anyway -- for an amount of money that is tiny compared to the $12.5 billion Google paid for Motorola.

Last year Microsoft won an import ban against Motorola's Android-based devices.

About a month ago the ITC also threw out whatever little was left of Google's (Motorola's) complaint against Apple. Like in the Microsoft case, that decision related to only one remaining patent. Last year the ITC had already tossed three other patents in a decision that Google is appealing.

On April 26 I listed Google's major losses and minor wins on the patent front during that month (and toward the end of the post also linked to the key results in March, which weren't really better for Google). My initial count was seven major losses, and I had even forgotten the dismissal of the ITC complaint against Apple. I have since corrected that oversight.

So far May appears to be the third bad month for Google in a row as far as its Android patent strategy is concerned. Earlier this month the European Commission issued a Statement of Objections (SO), a preliminary antitrust ruling, against Google's Motorola Mobility. A Motorola Mobility v. Apple patent trial in the Southern District of Florida was pushed back by four months (from April to August 2014). Google's proposed FRAND-zero patent license for the VP8 video codec has drawn criticism from a leader of the open source community. Now this ITC ruling. And next month may start with a blow of major proportions for Google: on June 3 the Munich I Regional Court will announce a decision on a Microsoft case against Google Maps.

I've said before that Google should license, not litigate. And others feel that it's time to formally write down the $5.5 billion book value of Motorola's patent portfolio. Its litigation results are too miserable to justify even a fraction of that amount.

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