I am currently at a Munich I Regional Court hearing on an IPCom complaint alleging patent infringement by mobile operator Telefónica through the resale of Nokia and HTC phones. I don't intend to blog about that case (I'm here for a different reason) but I do wish to post, during a break, a quick follow-up to last week's report on the same court's inclination to hold Google and its Motorola Mobility subsidiary liable for infringement of a Microsoft mapping patent.
Judge Dr. Matthias Zigann, the judge presiding over today's action and the Microsoft-Google Maps case, stressed in his introductory outline of the court's position on the IPCom complaint that any statements made prior to oral argument by counsel should not be understood as though the court was unreceptive to argument that may persuade it to modify its position. Judge Dr. Zigann said that the court's analysis of a matter based on written pleadings can, for example, be based on a misunderstanding of a technical issue, and counsel has ample opportunity to tell its version of the story to the court. In this context Judge Dr. Zigann pointed out that this also applies to the introductory outline he gave a week ago. He didn't mention the names of any parties, but was obviously referring to the high-profile Google Maps case.
I believe that my reporting was clear and accurate. I wrote:
"[Judge Dr. Zigann's} court is at this point (prior to counsel's argument on claim construction, infringement and validity) inclined to hold Google [...] liable [...]" (emphasis added)
Obviously the court can always reconsider its position, which is why I wrote what I wrote. But it's possible that some other articles (possibly also including some that quoted me) appeared to suggest that the court had decided the Google Maps case before oral argument. I still believe that Microsoft is going to win the Google Maps case, and at today's IPCom v. Telefónica hearing (which is only a first hearing while last week's event was a trial that will be followed by a decision in May) Judge Dr. Zigann also noted that injunctive relief is a legal remedy in Germany, not a matter of equity (as I wrote in the Google Maps context, too). But I want to ensure that there are no misunderstandings concerning the receptiveness of the panel of judges over which Judge Dr. Zigann presides: this is an extremely open-minded patent infringement court.
Last week's trial lasted approximately six hours. My blog post went live after the first 3.5 hours. Counsel for Google/Motorola was given 90 minutes to challenge the court's preliminary position. Then counsel for Microsoft replied, and a debate ensued. I wasn't able to stay until the end because I had to take a train to Mannheim for three decisions that were announced the following morning. But reporters for two news agencies stayed longer, and neither their reports nor any other information I've been able to obtain suggest that Google's defenses are sufficiently strong to fend off Microsoft's infringement allegations, which have been substantiated with the help of additional experiments performed since the first hearing that took place in October. That said, Google had every opportunity to argue. In fact, I've seen many German patent trials (trials, not just hearings) that lasted only the 90 minutes the court granted counsel for Google alone.
If I were in Google's situation, I would give serious consideration to a settlement before the Google Maps decision comes down in Munich. But the court hasn't ruled yet, and it certainly hadn't ruled before Google got its day in court. In such a high-profile and potentially high-impact case, it is, however, nothing unusual that media reports and blog posts report on the court's preliminary inclination.
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