802.11

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An issue that often comes up in standard-essential patent litigation is “essentiality” — whether the asserted claims are actually necessary to practice the technological standard that forms the basis of the infringement allegations.  This is important for at least two reasons: first, because if the claim is not actually necessary to practice the standard, an implementer could (at least theoretically) design around the patent to create a non-infringing implementation of the standard; and second, because the RAND obligations set forth in the patent policies of many SSOs are often limited only to truly “essential” patent claims.

This issue of essentiality has come to the forefront in the ongoing multidistrict litigation between non-practicing entity Innovatio and several WiFi suppliers (Cisco, Motorola Solutions, and Netgear).  You may recall that Innovatio, in winning (in part) a motion to dismiss some unfair competition and RICO claims, had argued that many of the asserted claims are not actually “Essential Patent Claims” as defined by the IEEE — and therefore cannot be subject to any existing RAND obligation.  Earlier this month, the court ordered the parties to meet and confer and submit a joint statement regarding disputes over whether, based on Innovatio’s infringement contentions, the asserted claims of Innovatio’s patents are actually essential to the IEEE 802.11 wireless networking standard.  Yesterday, the parties submitted their stipulation regarding the essentiality of Innvatio’s asserted patent claims.
Continue Reading Innovatio, WiFi suppliers clash over over “essentiality” of Innovatio 802.11 patents

Big news today in the Microsoft-Motorola RAND breach of contract dispute taking place before the U.S. District Court for the Western District of Washington.  After the November 2012 bench trial and significant post-trial briefing between the parties on a variety of issues, we finally have an order from the court.  However, we will need to…

Just like with cellular standards, the widespread use of the IEEE 802.11 wireless networking (“WiFi”) standard often makes WiFi-compliant devices easy targets for patent infringement lawsuits — particularly suits brought by non-practicing entities.  The most infamous of these NPEs targeting WiFi is probably Innovatio IP Ventures LLC, who has accused thousands of businesses of…

Last month, Judge James F. Holderman dismissed various claims brought by Cisco, Motorola Solutions, and NETGEAR against Innovatio IP Ventures, LLC over Innovatio’s vast licensing and litigation campaign relating to the IEEE 802.11 Wi-Fi standard.  These suppliers claimed that Innovatio — in threatening the suppliers’ customers and bringing litigation over standard-essential patents — violated various unfair competition laws, and even the Federal Racketeering and Corrupt Organizations Act (“RICO”).  But the court found that Innovatio’s conduct was protected petitioning activity under the Noerr-Pennington doctrine, and that the suppliers did not properly plead that the conduct was a “sham” that would exempt this activity from protection.  Yesterday, the suppliers filed a motion for entry of final judgment under Federal Rule of Civil Procedure 54(b), which indicates that the suppliers want to appeal the dismissal of these claims as soon as possible to keep the heat on Innovatio.
Continue Reading Wi-Fi suppliers seek to facilitate quick appeal of dismissal of RICO, unfair competition claims against Innovatio

ITC LogoWe’ve previously covered the bilateral standard-essential patent battle brewing between Ericsson and Samsung in the U.S. International Trade Commission (as well as the Eastern District of Texas).  The ITC has instituted two investigations surrounding the parties’ claims: Inv. No. 337-TA-862 (based on Ericsson’s complaint) and Inv. No. 337-TA-866 (based on Samsung’s complaint).  Yesterday, Samsung filed the public version of its Response to the Complaint and Notice of Investigation (essentially, an answer to Ericsson’s complaint) in the -862 investigation.  Below is an overview of this filing, in which (surprise!) F/RAND-related issues and defenses have a starring role.
Continue Reading Samsung responds to Ericsson’s ITC complaint, accuses Ericsson of violating F/RAND obligations (337-TA-862)

Yesterday Apple filed its opposition to Motorola’s motion to dismiss or transfer for lack of jurisdiction in Federal Circuit appeal No. 2013-1150.  This is Apple’s appeal of Judge Crabb’s dismissal of the Apple-Motorola FRAND/antitrust action (W.D. Wis. No. 3:10-cv-00178)).  Apple contends that the Federal Circuit has jurisdiction over Apple’s appeal of the dismissal of its declaratory judgment claims because (1) the hypothetical Motorola complaint at which Apple’s declaratory judgment claim was directed would be for patent infringement, and (2) the district’s court’s decision to dismiss the patent-specific DJ claims without prejudice does not deprive the Federal Circuit of jurisdiction.  As we anticipated in our post on Motorola’s motion to dismiss/transfer, some of Apple’s arguments in its opposition raise some interesting questions about whether jurisdiction over this appeal will be consistent with past and potential future appeals of orders in the Microsoft-Motorola RAND case.
Continue Reading Apple: Federal Circuit has exclusive jurisdiction over Apple-Motorola FRAND/antitrust appeal

gavelWe’ve previously discussed the wide-ranging assertion activities of Innovatio IP Ventures LLC, a non-practicing entity that has targeted thousands of companies across the country over patents related to the IEEE 802.11 wireless networking (Wi-Fi) standard.  And due to an amended complaint filed in October 2012 by Motorola Solutions, Cisco, and Netgear in the Northern District of Illinois, Innovatio has been facing a litany of charges relating to this licensing and litigation campaign.  These charges include breach of contractual RAND obligations, state law unfair competition, civil conspiracy, and even violation of the federal civil RICO statute.  In November, Innovatio moved to dismiss these claims.  This week, Chief Judge James F. Holderman granted much of Innovatio’s motion, dismissing all of the claims except for the RAND-based breach of contract and promissory estoppel claims.  This ruling is indicative of the substantial hurdles that potential licensees of standard-essential patents face in attempting to show when patent holders’ assertion of rights and licensing demands may cross legal boundaries — and it may also further muddy the already murky waters surrounding the scope of RAND obligations.
Continue Reading Innovatio Update: Wi-Fi manufacturers’ RICO, unfair competition claims targeting Innovatio rejected, but RAND issues remain

Late last week, Apple Inc. filed a notice of appeal with the United States District Court for the Western District of Wisconsin, announcing its intent to appeal to the Federal Circuit Judge Barbara B. Crabb’s dismissal of Apple’s SEP-related contract and antitrust claims against Motorola Mobility (case No. 3:11-cv-00178-bbc).  This presents us with an opportunity to do a brief “catching up on” post on this particular portion of the larger Apple-Motorola dispute.
Continue Reading Catching up on … Apple v. Motorola Mobility (W.D. Wis.)

Lost in the all of the publicity surrounding the FTC’s consent decree that ended its investigation of Google and Motorola Mobility yesterday is the fact that while the FTC’s decision not to proceed with action against Google for its search practices was unanimous, its decision to issue a complaint and order relating to Google’s enforcement of its SEPs was not — Commissioner Maureen K. Olhausen submitted a dissenting statement.  (Commissioner J. Thomas Rosch issued a separate statement, but voted in favor of issuing the complaint).  The mere fact that the decision was not unanimous isn’t that remarkable in and of itself, as the five-member Commission often reaches split decisions.  However, Commissioner Olhausen’s dissent raises some issues about the FTC’s action that warrant mentioning here.
Continue Reading A dissenting voice from the FTC/Google consent agreement

On November 29, Judge James L. Robart of the U.S. District Court for the Western District of Washington issued an order granting Microsoft’s motion for partial summary judgment and dismissing Motorola’s claims for injunctive relief. Judge Robart found that under the circumstances of the case – where the patents-in-suit were subject to a RAND licensing promise from Motorola, and where Microsoft sought enforcement of that promise in Judge Robart’s court – Motorola could not satisfy either the irreparable harm or inadequate remedies at law prongs of the eBay test. But the court’s order is even broader, barring any claims of injunctive relief that Motorola might seek against Microsoft with respect to any patents essential to the ITU H.264 video coding or 802.11 wireless networking standards.
Continue Reading Injunctive Relief Precluded for Motorola’s SEP Infringement Claims