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Business | June 06, 2011

Microsoft thumps Motorola 17-5 in ITC patent claim construction

Motorola Mobility suffered a drubbing in its defense against Microsoft's Android-related patent infringement claims. According to an 88-page claim construction order of April 22 that was recently published, an ITC judge -- Administrative Law Judge Theodore R. Essex -- rejected Motorola's proposals to narrow the scope of Microsoft's asserted patents in 17 out of 22 instances.
The judge furthermore accepted 12 definitions on which the parties had agreed.

In patent infringement disputes, claim construction is a milestone of major importance. It precedes the determination of whether any valid patent claims are infringed. Any of the wordings in the patent claims that have a less than clear-cut meaning can either be construed more broadly, which makes it more likely that a patent is found to read on the accused products, or more narrowly, which could enable a defendant to escape infringement.

Eight months into the process (which is roughly half the time required by the ITC to take a final decision on a possible import ban), things don't look too good for Motorola -- nor for the Android ecosystem at large, as other Android device makers would face the same or greater challenges if they had to defend themselves against Microsoft.

Microsoft's asserted patents and the related infringement allegations appear rather strong -- in fact, much more solid than the claims made by Apple and Nokia in their ITC battles against each other. At this stage of the process, Nokia had already dropped one patent from its complaint, and Apple even felt forced to give up four of those at issue in ITC investigation no. 337-TA-710. Later they both lost even more of them. By contrast, all of Microsoft's nine asserted patents are still standing, and I haven't seen any indication in the ITC docket that would suggest an impending withdrawal of any Microsoft patent.

It's worth noting that Motorola is represented by the law firm of Quinn Emanuel and, in particular, that firm's Charles Verhoeven, a true rock star among patent litigators in the United States. In other words, Motorola's difficulties in defending itself can't just be blamed on its attorneys.

As I reported yesterday, Microsoft and Motorola are also embroiled in various federal lawsuits, and while nothing substantive has happened in them yet, Motorola's attempts to shift the center of gravity of that dispute to the Western District of Wisconsin have failed. Motorola has to defend itself mostly (or even entirely, subject to the outcome of another transfer motion) in Microsoft's home state of Washington. Against the assertion of three Motorola video codec patents, Microsoft has brought defenses and counterclaims related to possible contractual obligations on Motorola's part to license those patents on reasonable and non-discriminatory terms -- a circumstance that could, as the court pointed out, limit the amount of damages Motorola could obtain in a best-case scenario.

While we are still a few quarters away from formal decisions, I think Motorola increasingly comes under pressure to settle. Furthermore, these developments probably strengthen those who champion (inside Motorola Mobility) the idea of replacing Android with a new internally-developed operating system. There's no way to be safe from patent assertions with any smartphone operating system, but Android with its 44 related lawsuits and Google's purely opportunistic approach is currently a surefire way to get into IP trouble...

The score card of a drubbing

If you're interested in more detail concerning the judge's claim construction decision, I have summarized it like an annotated score card of a ball game. (which can be found here) That format isn't meant to downplay the seriousness of the situation, but I thought it's a presentation with which many people are familiar.

Note that I'm against software patents, so I'm not "cheering" on anyone here like in a soccer game -- if it were up to me, those patents wouldn't exist and there wouldn't even be a dispute over them. But I do want to convey the information in an understandable and maybe even entertaining fashion.

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