Monday, January 20, 2014

German court puts Google's appeal of Apple's rubber-banding patent injunction on hold

On Thursday (January 23, 2014), the Oberlandesgericht M√ľnchen (Munich Higher Regional Court) originally planned to hold a hearing in an Apple v. Motorola Mobility case over the European version of the famous "rubber-banding" (overscroll bounce) patent, EP2126678 on "list scrolling and document translation, scaling, and rotation on a touch-screen display". In September 2012, the Munich I Regional Court ordered an injunction against Google subsidiary Motorola Mobility's devices over this patent. Presumably the Moto X, which will become available in Germany soon, does not have this iconic feature.

Today I found out that the Munich appeals court has vacated the Thursday hearing (technically, these are two hearings: one lawsuit targets Motorola Mobility, the U.S. company, and the other one the German subsidiary). The court prefers to await further developments in an opposition (reeexamination) procedure pending before the European Patent Office (EPO), in which Motorola Mobility and Samsung are challenging the validity of this patent. Apple also asserted this patent against Samsung -- not only in Germany, where the Mannheim Regional Court identified an infringement but stayed the case pending the EPO opposition proceeding, but also in other jurisdictions. Apple prevailed on this patent in Japan last year and, the year before, a federal jury in the Northern District of California deemed it valid and infringed. An injunction hearing will be held in San Jose on January 30 over this patent and two other multi-touch software patents.

The United States Patent and Trademark Office (USPTO) terminated a reexamination proceeding last year and confirmed several claims, including the one at issue in the California Apple v. Samsung case. The outcome of the European proceeding could be different due to the "technicity" requirement under European patent law, which is, however, interpreted less rigidly by the EPO (which views patent filers as customers whose demands for monopoly rights it has to meet) than, for example, the Federal Patent Court of Germany.

The appeals court's decision to wait until there is further news from the EPO (at which point either party will be free to request that the court set a new hearing date) makes sense considering that Google's Motorola had hardly any non-infringement defense: the whole case hinges on validity.

Apple has an injunction in place (I don't know whether it's enforcing it, but it may very well be). In that regard, it has nothing to gain from this appeal being resolved ahead of the EPO proceeding. At some point it will also seek damages for past infringement, but I guess it has no problem with doing so at a later stage.

Google would like to get the injunction lifted, but this would probably not have happened even if the appellate proceedings had been stayed: in Germany, it's easier to get the appellate proceedings stayed over doubts concerning validity than to get an injunction lifted, as Apple experienced in the push notification case.

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