This afternoon I attended, at the Munich I Regional Court, a first hearing (the second hearing will be a trial) on one of Apple's various German lawsuits against Motorola Mobility. In this action, Apple is asserting EP2126678 on "list scrolling and document translation, scaling, and rotation on a touch-screen display", the European equivalent of U.S. Patent No. 7,469,381, which I once dubbed "Apple's favorite make-Android-awkward patent" and often just refer to as the "overscroll bounce patent" (such as in the headline of this post).
This was already the third time for this patent to be brought up in a German courtroom. In February, a different chamber (panel of judges) of the Munich I Regional Court denied Apple a preliminary injunction against the Galax Tab 10.1N and Galaxy Nexus, but preliminary injunctions don't put a legal issue to rest: that always takes a full-blown main proceeding. Apple decided to pursue the matter against Samsung in Mannheim, where it has roughly half a dozen other lawsuits pending against its number one rival among device makers. Nine days after the Munich decision, Apple amended one of its pending Mannheim actions in order to assert that patent against Samsung in a main proceeding. The Mannheim Regional Court immediately severed that new assertion from a photo gallery patent case.
Now the patent is back on the Munich agenda as well, but against a different defendant: Motorola Mobility.
At today's hearing, the judge presiding over this lawsuit, Judge Dr. Peter Guntz, outlined the court's preliminary understanding of the infringement issues. He noted that this patent is quite easy to understand and described Motorola's only non-infringement argument (apparently MMI says that the edge of the relevant document scrolls along with the content and claims this is inconsistent with the teachings of the patent), which doesn't appear to impress the court. Motorola's counsel at today's hearing, Quinn Emanuel's Dr. Johannes Bukow, said that he took note of the court's assessment and agrees that this case will primarily be about the validity of the patent-in-suit.
The denial of a preliminary injunction against Samsung was, in fact, based on serious doubt about the validity of this patent. But the hurdle for fending off a motion for a preliminary injunction is much lower than in a main proceeding, in which German regional courts only stay the proceedings if the likelihood of invalidation is 80% or higher.
Even though Judge Lucy Koh in the Northern District of California denied Apple a U.S. preliminary injunction against Samsung over this patent, she thought this patent was most probably valid. For now I'm skeptical that the 80% threshold for the likelihood of invalidation can be met with respect to this patent. Maybe I'll change mind after seeing some really good prior art references, but so far I believe Motorola will probably have to work around this one, which is possible (for example, stock Android, the version of Android Google publishes on the Internet, sports an overscroll glow) but comes with a degradation of the user experience.
A second hearing was scheduled for July 19. There will be an in-depth discussion of Motorola's invalidity contentions at that time. I will certainly go there and report. At approximately that time of the year, Apple's first U.S. lawsuit against Samsung will go to trial, and the overscroll bounce patent is being asserted in that litigation. And later this year there will also be Mannheim trial on Apple's assertion of this patent against Samsung. This patent is all over the place.
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