I just learned from a spokeswoman for the Munich I Regional Court that a Microsoft v. Google and Motorola Mobility patent retrial over Google Maps (the service as well as the Android client app) was postponed yesterday from November 7, 2013 to March 13, 2014. The spokeswoman said that Microsoft had moved for this postponement, and Google and Motorola Mobility supported it. She did not state the reasons, but looking at my list of German court hearings I can easily answer this one: the postponement gives the court and the parties the benefit of knowing the outcome of a Bundespatentgericht (Federal Patent Court) nullity (invalidation) hearing concerning this patent on February 27, 2014.
The Federal Patent Court is also based in Munich. So far none of the patents-in-suit in the cases I watch has survived a Federal Patent Court hearing in its granted form, and only one patent (a different Microsoft patent) was salvaged in an amended (narrowed) form. Decisions by the Federal Patent Court can be appealed to the Federal Court of Justice. If the Federal Patent Court upholds Microsoft's patent in February (and this is not an easy one to challenge because it's from the early days of the World Wide Web), the retrial will go forward in March and the question will be whether there is an infringement under the construction applied by the BPatG. So far the regional court appeared strongly inclined to find an infringement, though it stressed the preliminary nature of that assessment.
Originally, Microsoft was suing Motorola Mobility over its Google Maps Android app. But at a first hearing in October 2012, Microsoft's counsel announced an amended complaint adding Google itself to the case as co-defendant alongside the original defendant, Google's wholly-owned and micromanaged Motorola Mobility. This was necessitated by Motorola Mobility's dogged denial of knowledge of how Google's servers operate in connection with the Google Maps service -- a denial that seemed preposterous to me in light of the fact that a Google (not Motorola) in-house lawyer represented Motorola Mobility at that hearing. The amended complaint forced Google to come clean: as a defendant in a German civil lawsuit, you have to deny a patent infringement allegation or you are deemed to concede the facts at the heart of an infringement contention. It also resulted in an increased commercial risk to Google from a possible injunction. Motorola Mobility's German business is small, but Google Maps is obviously a key Google offering, and an injunction would likely result in a global settlement of the Microsoft-Motorola patent dispute.
A decision (which could have been a final ruling, including a permanent injunction provisionally enforceable during appeal) had already been scheduled for June 3, 2013. The announcement was then canceled in favor of a retrial because Google had raised some invalidity contention in post-trial briefing that the court thought warranted a closer look before deciding. The retrial was originally scheduled for yesterday, but last week the court told me that it had been postponed to November 7. And today it turns out that there has been a procedural agreement that a retrial in November discussing the likelihood of one outcome or another of a nullity hearing in February is not a good use of court and party resources. With a nullity trial so close, the hurdle for Google to win a stay would have been relatively low -- at leas psychologically. It's obviously more efficient, as Microsoft apparently suggested, to let the nullity trial take place. The BPatG usually rules at the end of a full-day hearing, and issues its detailed written decision a few months later.
I politically support the idea of low hurdles for stays pending parallel nullity proceedings. I therefore welcome this decision as a matter of principle. However, Google/Motorola trollishly enforced a dead patent walking for 19 months against the push email notification feature of Apple's iCloud service and required Apple to post a $132 million bond in order to give this feature back to its German users. Seeing Google Maps deactivated in Germany before the BPatG rules on the asserted patent would have been an appropriate punishment for Google's unfair behavior against Apple. But let's hope that Google learned its lesson well from merely having had to fear a pre-nullity-ruling injunction against Google Maps, and that it won't apply double standards again next time it asserts a patent against someone in a jurisdiction with bifurcation. I applaud Google for criticizing bifurcation, jointly with Microsoft, Apple and other industry leaders, in connection with Europe's future Unified Patent Court.
Getting back to the Microsoft-Google/Motorola dispute, the postponement of the Google Maps ruling substantially reduces the likelihood of a settlement between these parties for the next several months. Patent litigation can be slow. In the U.S., there will likely be some more activity between these companies after a final FRAND breach ruling is issued. The United States District Court for the Western District of Washington will then likely unstay a number of pending infringement actions between these parties. But there's no firm, near-term trial date in sight.
Motorola Mobility's approach to refuse licensing when 22 royalty-bearing Android patent license deals are publicly-known (20 of them with Microsoft being the licensor who gets paid) is unusual. In fact, the latest Android patent license deal was just announced yesterday, with LG paying Vertical Computer Systems. Only Motorola says no to reasonable licensing and yes to endless litigation, again and again and again. But that doesn't mean Motorola has come up with a superior strategy. It's just that Google, as the company owning and controlling the Android platform, has a broader agenda. It's prepared to spend millions and millions only to continue to claim that Android is "free", when it's not. For example, it can easily afford not to sell any Motorola devices in Germany -- for several months, for years, or even forever -- because it makes most of its money with its search engine monopoly. So what works for a wholly-owned Google subsidiary is still not a viable approach to IP for a Samsung, HTC, LG, Huawei, you name them. Despite its unique parameters,Motorola, too, will ultimately pay Microsoft patent royalties on its Android devices.
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