A venue fight is in full swing between Microsoft and Google's Motorola Mobility, and it comes as no surprise after the Google subsidiary immediately appealed a FRAND breach judgment by the United States District Court for the Western District of Washington to the United States Court of Appeals for the Federal Circuit, despite itself having appealed a previous decision in that litigation to the Ninth Circuit.
I'm not an expert in questions of appellate jurisdiction, but over the years I have seen a fair amount of forum shopping by various parties. Google's (Motorola's) gamesmanship takes the "art" of forum shopping to new heights, at least at the level of appellate proceedings. While it's still trying to get Apple's appeal of the dismissal of a FRAND determination action in the Western District of Wisconsin moved out of the Federal Circuit to the Seventh Circuit, it's all for the Federal Circuit -- and against the regional circuit (in this case, the Ninth Circuit) -- in connection with the Microsoft FRAND case originating from the Western District of Washington. The grass is always greener on the other side of the fence, isn't it? Especially after you've lost on one side of the fence, which happened when Google originally considered the Ninth Circuit to be the proper appellate forum for this matter.
Microsoft responded on Thursday with a motion to transfer Google's FRAND appeal out of the Federal Circuit to the Ninth Circuit (this post continues below the document):
Google has not yet stated its jurisdictional argument and explained its change of mind. Its preference is known, and there's no question that this is a case of forum shopping, but as a matter of fairness, I don't want to take a position on the parties' arguments before Google has justified its about-face, which it will certainly do now in response to Microsoft's motion.
What I conclude (non-judgmentally) from Microsoft's motion is that the following three considerations are going to be key to the further debate over the proper venue:
Microsoft emphasizes the "law of the case" doctrine. Motorola appealed a previous decision in this case to the Ninth Circuit, which then found that it had jurisdiction over the preliminary injunction appeal because it would also have jurisdiction over an appeal from the final ruling. Microsoft argues that this holding is now law of the case, and that the hurdle is very high in the further process to overcome that doctrine. The Supreme Court opinion in Christianson v. Colt Indus. Operating Corp. is cited extensively by Microsoft in this context.
Microsoft argues that its original complaint, which was based in contract law, was a contract action, and the subsequent consolidation of certain patent infringement claims by Motorola into this case for reasons of judicial economy isn't relevant to the determination of the appropriate appellate forum.
Pre-emptively, Microsoft counters an apparently-anticipated argument by Motorola that the application of principles of patent damages law (Georgia-Pacific factors) as well as certain assessments (but not determinations) of validity and essentiality by Judge Robart don't change the fact that this is still a contract case and that certain patent-related considerations only came into play as part of an effort to resolve a contract question.
Regardless of who will ultimately prevail, this jurisdictional argument could cause some delay, especially if a decision by the Supreme Court was required just to clarify which circuit has appellate jurisdiction over this matter.
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