Motorola Loses Injunction Bid - The UpStream

Motorola Loses Injunction Bid

posted Saturday Dec 1, 2012 by Scott Ertz

Motorola Loses Injunction Bid

It has been about 6 months since the Microsoft vs Motorola case really started getting good. As we know, Microsoft sued Motorola for using its patents within Android without permission - the same ones used on other Android manufacturers. Motorola, now owned by Google, counter-sued Microsoft for using its patents in the Xbox 360. The case was headed for both court and the International Trade Commission. For a while it looked scary for Xbox with the ITC, maybe even a pre-holiday import ban.

Then came the news that the ITC wouldn't decide until next year whether or not to prevent Microsoft from selling Xbox consoles within the United States. This week, however, a judge in Seattle, who has been dealing with the related case between the two companies, semi-invalidated Motorola's claims, claiming the patents were tied to widely used technology standards and therefore could not be used to get an injunction against Microsoft.

Bad break for Googorola, who was really hoping to deal a harmful blow to the now clearly-defined Microsoft ecosystem of Windows 8, Windows Phone 8 and Xbox with this sales ban. To add insult to injury, the case also ended up with the determination that Motorola could not penalize Microsoft through licensing fees for the suit. Since the patents are used in accepted standards, in this case WiFi, it must adhere to the RAND (Reasonable and Non-Discriminatory) rules whether or not they feel they have been insulted by this suit.

This trial was a bad sign for Motorola in the first place, as it indicated that the judge was already considering preventing injunctive relief, which can only be granted if the judge believes that the company or individual has been harmed in a way that money alone cannot account for. In this case, the judge wanted to talk licensing terms, which would certainly indicate that he wanted to know how much money Motorola would get, from the time of infringement until the statute of limitations. Obviously, from his ruling, he believed money was enough.

Because Microsoft will pay royalties under any license agreement from the time of infringement within the statute of limitations, this license agreement will constitute Motorola's remedy for Microsoft's use of Motorola's H.264 standard essential patent portfolio to include the Motorola Asserted Patents. Accordingly, Motorola cannot demonstrate that it has been irreparably harmed.

Motorola still has a chance with the ITC, though it would be very unusual for the ITC to rule differently on patent matters from the judge. It also doesn't bode well for Motorola that the ITC has shown issues with import bans based on standards-based patents. My guess is, when the ITC rules, we will see a very similar response to the Seattle court decision.

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