This morning, the Mannheim Regional Court announced a decision against Apple's claim that Android-based devices infringe EP2098948 on a "touch event model". Technically, the panel presided by Judge Andreas Voss ("Voß" in German) ruled on two separate lawsuits: Samsung was the defendant in one of them, and Motorola in the other. The decision on the Motorola case was originally scheduled for August 31 but postponed, aligning the schedules for the two cases.
Unlike the multitouch patents that Apple asserted at the recent California trial, each one of which is specific to a particular gesture, this is a fairly broad patent that covers the way the operating system reports touch events to applications or purposely ignores them. If Apple's proposed interpretation of this patent had been adopted by the court, numerous applications that rely on the attacked operating system functionality would no longer run in a reliable, stable fashion after a workaround. This would have caused logistical complications with the need to rewrite, recompile and reinstall many apps.
The ruling comes as no surprise given the skepticism the court expressed at the related trials. The original trial of Apple's lawsuit against Samsung was held in April, but Samsung successfully objected to the bond Apple had posted to cover Samsung for the event that it would be entitled to the recovery of legal fees (Germany has a strict "loser pays" system) but unable to collect its money from Apple (no matter how unlikely Apple is to run out of cash in the foreseeable future, Samsung can demand a bond). Apple had to present a new bond, and the court held a second Apple-Samsung trial as well as an Apple-Motorola trial over this patent on the same day in July. Earlier that month, the High Court of England and Wales had already cleared HTC of infringement of this patent, and had additionally declared the patent invalid due to the statutory exclusion of patents on computer programs "as such" (Article 52 of the European Patent Convention).
Judge Voss explained that the parties' first non-infringement argument (that Android does not store a multi-touch flag in association with each "view", i.e., user interface component). This non-infringement argument had previously convinced courts in the UK (as mentioned above) and the Netherlands (where a preliminary injunction based on this patent was denied). We will see whether this cross-jurisdictional consensus will survive every one of the various appeals.
As I said in connection with other decisions in favor of different defendants, in these fights someone's successful defense against a particular patent infringement action is a non-defeat for that party and a non-win for the patent holder, but it's not a victory or a loss in strategic terms since there are numerous lawsuits going on. What really gives someone leverage is the ability to win enforceable injunctions based on patents having enough technical scope to be hard to work around without some degradation of the user experience. Apple scored a significant win last week against Motorola when the Munich I Regional Court held Motorola to have infringed the "overscroll bounce", or "rubber-banding", patent. If Apple gets to enforce that injunction (i.e., if the appeals court doesn't stay it), Motorola will have to replace the overscroll bounce with a glow or some other solution that would be clearly inferior to rubber-banding.
Apple would obviously like to maximize its leverage over its rivals and win an injunction over a broad patent, or even a "killer patent". Some of the patents Apple is asserting in different jurisdictions could have that effect, and the touch event model patent would have caused far greater problems to Google's Android operating system than any single-gesture patent ever could. So far, Apple has not been able to enforce broad patents. While it will keep trying and may at some point succeed (especially in the U.S. where it now has a lot of momentum following the California jury verdict), Apple will realistically have to ensure differentiation between its products and their Android-based alternatives by enforcing a multiplicity of patents of the kind that were put before the California jury. With a critical mass of enforceable patents of that kind, Apple will also be in a strong position.
Operating system patents don't even have to be extremely broad to give patent holder serious leverage over a rival. For example, the "soft input panel" patent over which Microsoft won a German injunction yesterday against Motorola Mobility is much more powerful than any of the patents Apple has prevailed on to date. But Microsoft has been at the forefront of operating system development for decades and has over the last 20 years (the maximum term of validity of a patent from its filing date) spent far more money on research and development, not only in total but also on operating systems in particular, than Apple. Fortunately for the Android ecosystem, Microsoft is licensing-oriented, while Apple is primarily interested in differentiation.
I'd finally like to mention that the Munich I Regional Court held three Apple v. HTC hearings (two trials and one early hearing) in a row on Wednesday. The patents-in-suit are the slide-to-unlock patent, the photo gallery page-flipping patent, and the overscroll bounce ("rubber-banding") patent. I attended and took plenty of notes, and will report on this at some point. The first two cases will be adjudged in January, and the rubber-banding case will go to trial in April. Nothing spectacular happened on Wednesday. When I find the time, I will report on this within a week or two because I have some observations to share on Apple's challenges and opportunities in enforcing its multi-touch gesture patents, but it's not urgent. For now I'll just say that there isn't much that HTC has to fear from those three lawsuits.
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