In April, the Munich Higher Regional Court affirmed the Munich I Regional Court's May 2012 decision to grant Microsoft a Germany-wide patent injunction against Motorola Mobility's Android-based devices implementing a multi-part text messaging (SMS) layer. The patent-in-suit is EP1304891 on "communicating multi-part messages between cellular devices using a standardized interface". In rejecting Google's (Motorola's) appeal, the Munich-based circuit court also denied the wholly-owned Google subsidiary the right to appeal the case further to the Bundesgerichtshof (Federal Court of Justice). It's common for circuit courts to deny leave, but it's not necessarily the last word: a would-be appellant can lodge a Nichtzulassungsbeschwerde (complaint over denial of leave to appeal), which is the closest thing under German law to a petition for writ of certiorari to the Supreme Court of the United States.
Today a spokeswoman for the Federal Court of Justice confirmed to me that Motorola Mobility has filed two Nichtzulassungsbeschwerden with respect to the Munich Higher Regional Court's rulings. Formally these are two cases: same patent, same accused products, but different legal entities on the defendants' side. The case record will be transferred by the Munich Higher Regional Court to the Federal Court of Justice next month. Motorola has until late September to file the memorandum of law supporting its petition. Then Microsoft will have two months to file an opposition brief. A decision on whether the Federal Court of Justice takes the case will be made subsequently -- most likely toward the end of this year or early next year. The fact that two patent-savvy courts have already agreed with Microsoft's counsel from the Bardehle Pagenberg firm that Android infringes Microsoft's patent-in-suit makes it less likely that a third court will take a look at the infringement issues in this case, but it's not impossible if Google's counsel from Quinn Emanuel manages to raise a legal issue that ignites the interest of the high court.
In the event that certiorari is granted, the appellate proceedings will take approximately 18 months (there's no hard time limit, but this is the usual duration of patent infringement appeals to the Federal Court of Justice). It would be the first patent infringement case from the current wave of smartphone patent disputes between major players (which started with Nokia's lawsuit against Apple, settled in 2011) to be heard by the Federal Court of Justice. Other petitions for certiorari are definitely going to follow. No smartphone patent case has reached the Supreme Court of the United States yet, but it may very well happen at some point in the not too distant future.
If certiorari is denied, the infringement ruling per se becomes final. But under Germany's bifurcation regime, the validity of patents is challenged in separate nullity proceedings that start before the Federal Patent Court. Google's Motorola is attacking the patent-in-suit there. The Federal Patent Court's decisions can be appealed, as a matter of right, to the Federal Court of Justice. Typically the nullity proceedings lag behind the infringement cases. In such cases as this one, there are even two infringement rulings (regional court and higher regional court) prior to the Federal Patent Court's decision; in other cases, the Federal Patent Court's decision comes in just about in time for the appellate hearing. Assuming that Motorola can't reverse the infringement finding (it could be "game over" in that regard before the end of the year if cert is denied), its only chance is to take down an asserted patent claim. If a patent claim-in-suit is invalidated entirely, the infringement ruling becomes irrelevant. If it survives only in an amended form, infringement has to be re-evaluated in light of the modified claims.
Google can't afford to leave a stone unturned in this context. While Google executives try to dissuade Android device makers from taking royalty-bearing patent licenses from Microsoft, 20 companies (including leaders like Samsung, HTC, ZTE, LG, and Foxconn) have chosen to pay for legal certainty that Google just can't provide. They simply don't believe Google that Android doesn't have serious patent infringement issues. Google has not yet won any enforceable ruling against Microsoft (neither in the U.S. nor in Germany), while Microsoft has already won three German injunctions (the multi-part SMS layer case is the first one of the German cases Microsoft won, and was followed by a file system injunction and a soft input panel injunction) and a U.S. import ban, which it will try to broaden at the appellate hearing in early August. And numerous Microsoft patent assertions against Motorola haven't even come to judgment yet because things take time in U.S. courts.
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