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As we told you last week, there will be a free upcoming webinar in conjunction with the AIPLA Standards and Open Source Committee.  The webinar will feature a panel of attorneys and industry professionals discussing the consequences that may stem from decisions in some recent standard-essential patent cases of note, including the RAND breach…

Last week, we noted that the Federal Circuit will hold a September 11 oral argument in Apple and Motorola’s appeals of Judge Posner’s June 2012 decision to dismiss the parties’ competing infringement suits.  The “Posner appeal” will provide the Federal Circuit with the opportunity to weigh in on SEP issues in a patent infringement context, such as how the FRAND framework may constrain damages, and whether a party with a FRAND commitment can ever satisfy the eBay standard for an injunction.  But this appeal is not the only one involving Apple, Motorola, and FRAND/SEP issues that is pending before the Federal Circuit.

Also last week, Apple filed its opening brief in this other Federal Circuit appeal — the appeal of Judge Barbara Crabb’s November 2012 decision to dismiss Apple’s FRAND-related breach of contract suit on the eve of trial (after, at least in Judge Crabb’s eyes, Apple failed to commit to entering into a FRAND license at the rate she might set — see this link for a brief refresher on the details of this particular case).  The case before Judge Crabb (and consequently, this appeal) is more like Microsoft’s original complaint in the Microsoft-Motorola case, as opposed to the case before Judge Posner — there are no infringement claims, only claims brought by Apple that relate to Motorola’s alleged violation of its FRAND commitments (breach of contract, antitrust, etc.).  Apple frames the issues in this appeal as follows:

  1. Apple provided evidence that Motorola violated § 2 of the Sherman Act by making deceptive FRAND commitments and by failing to timely disclose its intellectual property. The Noerr-Pennington doctrine immunizes a party from antitrust liability only where the challenged conduct is the petitioning of a government entity. Did the district court err in holding that Apple’s antitrust claim was barred by the Noerr-Pennington doctrine?
  2. Apple would not commit to accept a license offer from Motorola without knowing the price. Did the district court err by dismissing Apple’s contract claims on that basis, where Apple had no contractual obligation to accept any offer from Motorola?
  3. Apple asserted three declaratory judgment claims that would have settled uncertainty regarding Motorola’s patent rights and obligations. Did the district court err in refusing to adjudicate those claims?
  4. Does this Court have exclusive appellate jurisdiction over this appeal because the suit encompasses declaratory judgment claims relating to Motorola’s patent suit?

According to Apple, the answer to each of these questions is a resounding yes.  After the jump, we’ll take a look at Apple’s brief in a bit more detail.
Continue Reading Apple files opening appellate brief in second Motorola/FRAND-related Federal Circuit appeal

FTCToday, the Federal Trade Commission announced that it has approved a modified final order that settles its investigation into Motorola Mobility’s alleged anti-competitive practices surrounding its standard-essential patent licensing and enforcement program (for more background, see our original post on the case).  Here’s the Commission’s final decision and order, as well as a final…

Earlier this week, we caught up on summary judgment motions filed by both Microsoft and Motorola in advance of next month’s breach of contract jury trial, set to take place in Seattle.  Yesterday, both parties filed reply briefs in support of these motions:

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It’s July (and brutally hot on the East Coast), so you’ll have to excuse us if we’re moving a little slower than normal catching up on all the SEP litigation going around.  Earlier this month we posted about submissions by Microsoft and Motorola concerning the meaning of the “duty of good faith and fair dealing,” specifically as it applies in RAND-encumbered standard-essential patent licensing.  Not surprisingly, the parties followed up these briefs with dueling summary judgment motions, seeking to narrow issues or even potentially completely eliminate the need for the breach of contract jury trial set to take place next month in Seattle.  Last week, the parties also filed their respective oppositions to these motions.  You can take a look at the parties’ motions and oppositions below — and after the jump, we’ll give a brief synopsis of the arguments that each is making.

13.07.03 (D.E. 727) Microsoft Motion for Partial SJ and 13.07.15 (D.E. 758) Motorola Response to MS Partial SJ Motion

13.07.03 (D.E. 720) Motorola Motion for SJ and 13.07.12 (D.E. 740) MS Response to Motorola SJ MotionContinue Reading With dueling summary judgment motions, Microsoft and Motorola seek to eliminate issues from next month’s RAND trial

Later this summer, the second phase of the Microsoft v. Motorola RAND breach of contract trial will take place in Judge James L. Robart’s courtroom in Seattle, WA.  A jury will decide whether Motorola breached its SSO-related RAND licensing obligations by offering what Microsoft deems “blatantly unreasonable” licensing terms for its 802.11- and H.264-essential patents, and then following up with patent infringement suits.

In a prior summary judgment order, Judge Robart already concluded that in order to be permissible under its RAND obligations, Motorola’s license offers “must comport with the implied duty of good faith and fair dealing inherent in every contract.”  He noted that this inquiry is heavily fact-intensive, and best left to the jury to decide.  To this end, Judge Robart recently requested that both Microsoft and Motorola present background briefing on the parameters of what is required by the duty of good faith and fair dealing in contractual disputes.  This week, the parties complied with this request:

Both parties acknowledge that the issue of good faith and fair dealing is complicated — but understandably, the parties also differ quite a bit in their views on what should be considered.  After the jump, we’ll take a brief look at the filings.


Continue Reading In Microsoft-Motorola RAND dispute, “good faith and fair dealing” is in the eye of the beholder

This past Tuesday, Judge James L. Robart held a telephonic hearing in the Microsoft-Motorola RAND breach of contract dispute taking place in his W.D. Wash. court.  As we discussed last week, the hearing centered on Microsoft’s request that the court release a previously-ordered $100 million bond — a bond that it had required Microsoft to…

Yesterday we noted that Microsoft and Motorola are arguing over a couple of issues in the lead-up to the August breach of contract jury trial taking place in Judge Robart’s court in Seattle.  The two issues are only tangentially related: Microsoft would like Judge Robart to release the $100 million bond that he previously required Microsoft to post as security for the preliminary injunction that prevented Motorola from enforcing a German standard-essential patent injunction; Motorola argues that Microsoft has failed to produce discovery that supports its claim for RAND breach-related damages that stems from measures Microsoft took to move its German distribution center, in case Motorola did obtain and enforce an injunction.

Judge Robart set an expedited “letter-briefing” schedule on these issues and will hold a telephonic oral argument next week.  After the jump, we’ll take a quick look at the parties’ briefs and arguments.


Continue Reading Microsoft-Motorola update part two: “Bond. $100M Bond.”

It’s been relatively quiet in the Western District of Washington over the past couple weeks, as Motorola and Microsoft move forward toward an August jury trial on Microsoft’s RAND-based breach of contract claims.  But according to a minute order filed by the court this past Tuesday, this week the parties raised two separate disputes for…

CAFCLast week, the Federal Circuit granted a motion by Microsoft for permission to file an amicus brief in the Apple-Motorola appeal (No. 12-1548, Judge Posner edition).  Microsoft then filed its amicus brief, becoming the latest in a long time of companies (see, e.g., here, here, here, and here) to weigh in on the case.  Today, the public version of Microsoft’s brief became available.  In it, Microsoft supports Apple and Judge Posner, but cautions the Federal Circuit against making an overly broad ruling and deciding issues related to standard-essential patents and RAND licensing obligations that are not present before the court.

[2013.06.04 Microsoft Amicus Brief (12-1548)]

Microsoft pulls no punches — it argues at the outset that Motorola’s positions “are wrong as a legal matter and terrible as a policy matter.”  That should come as no surprise, given Microsoft’s current litigation disputes with Motorola (as well as ongoing competition with its parent company, Google).  But Microsoft claims that its interest in this case goes far beyond its adversarial relationship with Motorola, arguing that as an active participant in many SSOs and implementer of many standards, Microsoft wants to ensure that standards are broadly implemented for the benefit of the public.Continue Reading Microsoft amicus brief supports Apple, cautions Federal Circuit about breadth of ruling in Apple-Motorola appeal