Friday, September 6, 2013

Guilty verdict in Microsoft v. Motorola FRAND breach case published

I've already commented twice on Wednesday's Microsoft v. Motorola jury verdict (initial reaction, further analysis of economic and reputational implications). Meanwhile the verdict form has entered the public record (this post continues below the document):

13-09-04 Microsoft v. Motorola FRAND Breach Jury Verdict by Florian Mueller

The jury had to reach unanimity, and it was able to do so in less than four hours, which I attribute to the overwhelming weight of the evidence.

While Google's Motorola is now (as I wrote yesterday) a convicted patent troll (see also AllThingsD and Computerworld), its lawyers succeeded in part because the jury awarded Microsoft only about half of the claimed damages. The damages award has two parts, $11,492,686 for distribution center relocation costs and $3,031,720 for attorneys' fees and litigation costs. For the strategic situation between these two companies, the difference between $14.5 million and $29 million doesn't really matter, and it's not clear why the jury granted Google a 50% deduction. It could be that Google convinced the jury that Microsoft could have mitigated these damages and/or had other benefits from relocating its European logistics center. There could also be any number of other reasons.

Janet Tu (Seattle Times) has written an interesting story on the jury forewoman, Mary-Claire King, "a University of Washington professor and a renowned geneticist who played a leading role in the identification of breast cancer genes". Mrs. King, who declined to talk to the press about the jury deliberations (a smart move in light of what happened after the Apple v. Samsung trial last year), is "also the subject of an upcoming movie called 'Decoding Annie Parker,' in which she is portrayed by actress Helen Hunt".

This is an impressive person who I'm sure was easily able to see through all the smokescreens such as the less than credible "empty head, pure heart" defense. But a smart jury foreperson alone isn't enough: in last year's Oracle v. Google trial, the jury foreman accurately concluded that this was not a case of "fair use", but he was almost alone among jurors in doing so (and he didn't change mind, which is why the jury was ultimately hung). I don't want to blame those other jurors because the court's instructions were misleading in my opinion, especially with respect to what constitutes "transformative" use, and fair use could have been thrown out on summary judgment, which the judge declined but which would have been appropriate and would have simplified things for the jury. I wanted to mention this because "fair use" raises similar psychological issues as the "duty of good faith and fair dealing" issue in the Microsoft-Motorola case.

Both parties had moved, even before the jury verdict, for judgment as a matter of law (JMOL). I guess those JMOL motions will be denied. Motorola will try to get the jury overruled -- if not by Judge Robart, then by an appeals court. But it should actually be grateful for the fact that the court instructed the jury on "good faith and fair dealing" in a way that gave Google a wide variety of opportunities to defend its behavior. The problem is not that the jury was misinstructed or erred -- it's that Motorola's conduct, which continued after its acquisition by Google, is simply indefensible in this context. $54 million for a standard Ford Taurus -- how many judges would even consider it necessary to ask a jury whether this could have been a good-faith demand? This judge did defer to the jury, and the answer was the one to be expected: the guilty verdict I published further above.

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