Last week I reported on Apple's recent assertion of six patents against Motorola and HTC in the same lawsuit in the Southern District of Florida. At the time of my post, Motorola had already brought a motion to amend its second Florida complaint in order to introduce another six patents. Parity by the numbers. But there was confusion about when and in which particular lawsuit this would happen: Motorola originally said that Apple did not oppose this, only to clarify a day later that Apple's consent to this amendment was subject to a broader agreement on case management in Florida. I thought this would be resolved more quickly and didn't blog about immediately, but a few days ago Apple finally responded to Motorola's motion, and I now feel it's time to report on this, even though it will still take the court and the parties some time to sort out these case management issues.
These are the six additional Motorola patents that I'm sure will be asserted soon, in one way or another (and most likely in Miami, but Motorola can always try to do so in another district):
U.S. Patent No. 5,689,825 on a "method and apparatus for downloading updated software to portable wireless communication units"
U.S. Patent No. 6,002,948 on a "method and apparatus for radio system with mode based subscriber communications"
U.S. Patent No. 6,463,534 on a "secure wireless electronic-commerce system with wireless network domain"
U.S. Patent No. 7,024,183 on a "communication device with intelligent communication management and method therefor"
U.S. Patent No. 7,243,072 on "providing assistance to a subscriber device over a network"
U.S. Patent No. 7,509,148 on a "message alert system and method of providing message notification"
Just like in the case of the original second Florida complaint, Google must have authorized these additional assertions because, under the merger agreement, Motorola needs Google's consent for new IP assertions during the current period (i.e., while the parties are waiting for the deal to close). That doesn't mean that Google told Motorola to bring these additional claims: formally, Motorola is still independent, but the merger agreement is clear that new IP assertions require Google's prior consent.
One reason why it will take a while before the organization of those Florida lawsuits gets sorted out is that there's a new party, HTC, which must be heard as well. Apple's preference is to consolidate both Florida lawsuits and set a new schedule. Instead of trials in October 2012 and January 2013, Apple proposes to merge the two cases, conduct all of the necessary preparations for the new claims (especially claim construction), and go to trial approximately 260 days after a claim construction order is issued, which would happen in November 2012 at the earliest, so the trial date would be somewhere in the second half of 2013. Motorola would like to get a Florida ruling sooner rather than later. In that action, Motorola is asserting non-standard-essential patents.
Having read Apple's latest Florida filing, I think Apple doesn't share Motorola's sense of urgency (though it has now also asserted some patents in Florida that I guess it would like to see adjudicated in the not too distant future), and HTC's preference is presumably to delay everything to the extent it can. The court wants to resolve cases swiftly but also wants to use its scarce resources (including the time of Florida citizens who will ultimately have jury duty) wisely. In light of those circumstances, I'd be surprised if any of Apple's and Motorola's Florida claims went to trial in 2012 or even in early 2013. I believe there will be some delay.
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