Tuesday, October 1, 2013

After 19 months of patent trolling by Motorola, German iCloud users get push email back

More than 19 months after now-Google-subsidiary Motorola Mobility forced Apple to deactivate push email notifications for German iCloud users (over a patent that should never have been granted in the first place), Apple has finally been able to make the feature available again. I'm happy to share this piece of good news with end users, who were unfortunately held hostage in this context. The feature came back at approximately 9 PM local time in Germany (that's 3 PM Eastern Time in the U.S.). Apple's support website confirms the reactivation of the feature.

The unavailability of the feature had only a limited effect on users of the iCloud's email service. No email was lost. But it is more convenient to get instant notifications upon receipt of a new message than to have one's email client check periodically.

Considering just how weak this patent is, it's amazing that it took so long -- and that Apple had to post a $132 million bond only to stop Motorola from causing further inconvenience to iCloud users. To put this into perspective: the main claim of his patent is the only patent claim in the entire ongoing wave of smartphone patent disputes to have been found invalid for four independent reasons by a court of law (in the UK, last December). Even if Google's Motorola -- a convicted patent troll -- overestimated the quality of this patent when it originally sued over it, the UK ruling should have made it recognize its error and cease enforcement. The next splendid opportunity for this presented itself in early April 2013 when the Karlsruhe Higher Regional Court urged Google's counsel to stipulate to a stay of the appellate proceedings in light of his assessment of likely invalidity. Then the Mannheim Regional Court -- the same court that granted the push notification injunction against Apple in February 2012 -- stayed a Motorola v. Microsoft case in April 2013 over doubts concerning the validity of this patent. And finally, on July 9, 2013, the Federal Patent Court of Germany communicated in writing its inclination to hold the patent invalid over at least two of the prior art references that had defeated the patent in the UK.

But, very disappointingly, Google again and again refused to stipulate to the only appropriate thing to do under the circumstances: an unconditional stay of the enforcement of this injunction. For a company that has criticized assertions of "bogus patents", this behavior is, to say the least, inconsistent. And it's not in its own best interest. It will owe Apple damages for premature enforcement of an improper injunction. Also, most iCloud users are also users of Google's products and services.

After the Federal Patent Court's preliminary ruling, Apple filed with the Karlsruhe-based appeals court a motion to stay enforcement against Google's will. In early September, the Karlsruhe Higher Regional Court granted it. I published my own (obviously unofficial) English translation of the order. The order revealed that Apple had to post a 100 million euro ($132 million) bond to get the injunction actually lifted. The paperwork for all of this apparently took a few weeks and presumably Apple's technical staff conducted some internal tests before finally reactivating the push notification feature for end users -- which it did today.

The Federal Patent Court, which is based in Munich, will hold a nullity (invalidation) hearing concerning this patent on November 13, 2013. I will attend the hearing, but the outcome is clear. This patent is finished.

This is one of many examples of the unnecessary damage (sometimes massive, unlike in this case) that the enforcement of injunctions over invalid patents can cause in jurisdictions that allow infringement rulings to come down ahead of (in)validity determinations, an approach called "bifurcation". This is also a major concern in connection with Europe's future Unified Patent Court. In that political context, Google is actually on the good side and has joined Apple, Microsoft, Samsung and others in promoting more balanced rules of procedure for the UPC. The UPC would be able to grant Europe-wide injunctions in cases like this one.

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