Google spent lavishly last year to acquire Motorola Mobility and
its portfolio of patents, dozens of which were adopted by
standard-setting bodies and are thus essential to smart device
technology. Right now, that's looking like a great investment.
On Monday, Administrative Law Judge David Shaw issued an initial
determination that Microsoft's Xbox infringes three Motorola standard-essential patents (and one other, to boot). Tuesday,
ITC Administrative Law Judge Thomas Pender piled on with an
initial determination that Apple's iPhone also infringes a
standard-setting Motorola patent.
It's not terribly surprising that the Xbox and iPhone were
found to infringe Motorola IP -- standard-essential patents are,
by definition, essential -- and an ALJ initial determination
isn't a final ruling by the full ITC. Nevertheless, the rulings
raise the stakes in a pair of breach-of-contract cases (known as
RAND suits) in which Microsoft and Apple accuse Motorola of
failing to live up to promises to license those standard-setting
patents on fair and reasonable terms.
Apple's suit, filed in San Diego federal district court in
February, is still in such preliminary stages that it's hard to
predict how effectively the case can mitigate Motorola's
infringement allegations. But Microsoft's contract case is teed
up for a summary judgment hearing in Seattle federal court on
May 7. Depending on how U.S. District Judge James Robart rules,
Motorola could be forced to license to Microsoft three of the
four patents Microsoft was found to infringe in the ITC initial
Robart has already shown no reluctance to meddle in other
disputes between Microsoft and Motorola. As I reported earlier
this month, the judge enjoined Motorola from acting to enforce
any relief it's granted in a German infringement suit against
Microsoft. After Robart's ruling, Microsoft's counsel at Sidley
Austin asked the ITC administrative law judge to postpone his initial determination until the Seattle summary judgment motion
is decided. Motorola's lawyers at Ropes & Gray and Steptoe &
Johnsoncountered that Microsoft's motion was "untimely,
presumptuous, and unnecessary," since, among other things,
Microsoft had already asked the ITC judge to consider its
unreaso nab le licensing terms defense.
Shaw not only denied Microsoft's motion, but also ruled that
Microsoft had "not prevailed on any equitable or RAND defense."
Both Microsoft and Motorola told Reuters Monday that they expect
ultimately to prevail at the ITC, but the ITC judge's rejection
of Microsoft's defense puts a lot of pressure on the company to
prevail on its Seattle summary judgment motion.
May 7 is going to be a very important day in the smartphone
(Reporting by Alison Frankel)
Follow us on Twitter: @AlisonFrankel, @ReutersLegal