Thursday, March 12, 2015

Some almost-forgotten, still-pending Android-related patent cases involving Apple, Microsoft

Long gone are the days (in 2010 and 2011) when major players in the smartphone industry brought seemingly-spectacular patent infringement suits against each other. Such cases have still been filed ever since, but less frequently so. And they lack something. When Microsoft sued Motorola or Apple sued Samsung, this looked like a huge war--"thermonuclear" war according to the official Steve Jobs biography. Nowadays, it's just about money, not market share. There's Apple and Ericsson fighting over money (but Ericsson does not compete with Apple) and Microsoft suing Kyocera, which demonstrates that the new CEO still backs the intellectual property and licensing department's Android patent business but won't really have an impact on the market at large no matter what happens there.

In 2010 and the following few years, it was really about Android's rivals (Apple, Microsoft) asserting patents against Android companies, and about countersuits. Motorola v. Apple was special because Motorola wanted to achieve two things: extract royalties from Apple (no longer a strategic priority after Google bought it) and launch a preemptive strike against Apple's Android patent assertions (which is why Motorola asked for declaratory judgment concerning more than a dozen patents Apple had previously asserted against HTC). But after the first few months of 2011 (when Microsoft brought its second Android-related suit, against Barnes & Noble, and Apple sued Samsung), neither Microsoft nor Apple brought a new infringement case (Microsoft's Samsung contract case was only a contract case) against another Android device maker--until Microsoft sued Kyocera this month.

Microsoft settled with Barnes & Noble (as part of a wider-ranging partnership) and, as everyone expected, with Samsung. In 2012, Apple settled with HTC, and last year it entered into second-class settlements (withdrawals without a license) with Google/Motorola and, with respect to the ex-U.S. part of the once-earth-spanning dispute, with Samsung.

If "second-class settlements" just sounded a bit derogatory, that's because comprehensive settlements involve a license deal for at least a certain number of years--or maybe a covenant not to sue, which can have the same or a similar commercial effect. But a mere withdrawal without prejudice is somewhere between a ceasefire and a real settlement.

What demonstrates the limited effect of Apple's armistice with Google/Motorola is the fact that they these parties are actually still fighting against each other in at least one context. Yesterday the European Patent Office started the two-day hearing on Motorola's opposition (Samsung and HTC withdrew their opposition as part of their deals with Apple) to Apple's European rubberbanding patent. I'll try later, or tomorrow, to find out about the result. The preliminary opinion was negative. I'm sure Apple will fight hard to at least salvage the patent in a narrowed form.

I guess the reason why Google (through Motorola) is still fighting against that patent is because it would remain a threat to the Android ecosystem at large, not just Motorola, and if the opposition was dropped, the opportunity to do away with the patent on a Europe-wide basis would be lost: any new filing could only challenge the patent in one particular country at the time, such as Germany or the UK, so it would take multiple suits to attack it in all European jurisdictions in which it has been registered.

One could almost forget that Microsoft v. Motorola is still ongoing after almost 4 1/2 years. This dispute was definitely one of the most interesting smartphone patent spats especially after Google announced (and later consummated) the merger agreement with Motorola Mobility. At some point, there was even the possibility of Google Maps being shut down in Germany (which didn't happen, and the patent will expire soon). Now it appears that neither party is interested in escalation. Rather than bringing additional cases against Motorola (which it hasn't in years, unless there's something going on in stealth mode at courts in jurisdictions that are less transparent than the U.S.), Microsoft apparently picked Kyocera as a new Android-related target. To the best of my knowledge, Google hasn't brought any new infringement case either in quite a while. This looks like an informal non-escalation agreement (which sometimes happens even without parties coordinating merely because they see each other's behavior and draw their conclusions from it).

I also suspect some kind of informal agreement--in this case, between the court and the parties--in the case Microsoft brought against the U.S. government (and, by extension, Motorola Mobility) in July 2013. Microsoft wanted a preliminary injunction that would force the administration to interpret and enforce an import ban (which Microsoft won against Motorola over a meeting scheduler patent in May 2012) the way Microsoft would like to see it interpreted and enforced. The ITC said Microsoft should instead request an ITC enforcement proceeding.

The last item on that docket of the United States District Court for the District of Columbia is a procedural order (allowing some filings) of March 31, 2014. I haven't previously seen a case in which a preliminary injunction has been requested and no decision has come down in almost two years--and no progress of any kind is shown on the docket in almost a year. This even more remarkable when considering that the Federal Circuit affirmed the import ban in question well over a year ago, so there's no need to wait for further progress on the merits side before adjudicating an enforcement dispute. As the saying goes, justice delayed is justice denied. Here, it may work the other way round: the case is delayed forever because it could only result in a denial.

Lest we forget, Motorola is still appealing Judge Robart's FRAND determination. It originally wanted to take that case to the Federal Circuit, which didn't work out (Motorola itself had originally brought an appeal relating to this lawsuit in the Ninth Circuit), so now it's pending in the Ninth Circuit, which ruled against Motorola in 2012 with respect to an anti-enforcement injunction that prevented it from enforcing a couple of German patent injunctions against Microsoft. Pleading is complete and the appellate hearing has been scheduled for April 8, 2015.

In Germany, Microsoft lost (except for one patent it salvaged in a narrowed form) all of its patents-in-suit against Motorola in the Federal Patent Court of Germany and appealed several of those cases to the Federal Court of Justice. Maybe some final rulings on those nullity actions will come down this year. I'll try to find out about that.

So some clean-up is still needed--and ongoing--with respect to certain disputes that are 4 to 5 years old. That obviously applies to the U.S. part of Apple v. Samsung, too.

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