Friday, August 2, 2013

Google's Motorola intervenes in Microsoft lawsuit against U.S. Customs, moves for outright dismissal

Last month Microsoft filed a complaint (and a simultaneous motion for a preliminary injunction) with the United States District Court for the District of Delaware to ensure enforcement of a May 2012 ITC exclusion order against Motorola's Android-based devices implementing a particular patented invention (the patent relates to scheduling meetings from a mobile device). Microsoft disagrees with a decision by the United States Bureau of Customs and Border Protection, which enforces ITC import bans through border seizures, and complains that the decision came down before it was heard the way an affected right holder should be.

It comes as no surprise that Google's Motorola Mobility wants to participate in the proceedings. Today it brought two motions: a motion to intervene (which Microsoft does not oppose) and a motion to dismiss Microsoft's complaint. Today is also the (extended) deadline for the government agencies and officials defending themselves in this action to respond to Microsoft's request for a preliminary injunction.

This is the motion (this post continues below the document):

13-08-02 Motorola Mobility Motion to Dismiss Microsoft Complaint Against U.S. Customs

Motorola's motion to dismiss makes a legal argument. Primarily (though not exclusively), the Google subsidiary says that the key issue -- whether the ITC exclusion relates only to use of the relevant patent in connection with the ActiveSync protocol or also (as Microsoft says) in connection with Google Calendar -- should be resolved by the ITC, and if Microsoft disagreed with the ITC's decision, it could always appeal to the Federal Circuit. So there's a disagreement on the proper procedural path, but Google's motion doesn't allege that Microsoft's factual representations were wrong. If there are any disagreements on the facts, we'll only find out about them after some other filings are made.

The motion also doesn't address one of the things I'd particularly like to know: how can Microsoft have waived or abandoned its infringement allegations relating to Google Calendar (which it made at the outset in the form of a detailed infringement claim chart) if Motorola (as it appears) never disputed infringement (it focused just on the alleged invalidity of the patent)? At some point the defendants and the intervenor will have to explain this.

On a related note, the Federal Circuit will hold a hearing on the parties' cross-appeal of the ITC ruling next Tuesday (August 6, 2013). It's a cross-appeal because Google wants to overturn the ban, while Microsoft wants to broaden the scope of its victory, arguing that several more patents are also valid and infringed.

[Update] Later on Friday, the government of the United States and Google's Motorola Mobility filed their opposition briefs to Microsoft's motion for a preliminary injunction (Government's brief, Google's brief). I will go into more detail on this as the process unfolds. [/Update]

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