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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

In a press conference that took place at 1pm Eastern time today, the United States Federal Trade Commission announced that it has entered into a consent decree with Google in which Google agreed to forego seeking injunctive relief as a remedy for infringement of SEPs that have been pledged to be licensed on RAND terms.  The FTC voted 4-1 in favor of the decision, with Commissioner Maureen Olhausen dissenting.
Continue Reading Google agrees to forego seeking injunctive relief for SEP infringement as part of FTC settlement

Because so many SEP-related issues have arisen over the past year, we will periodically revisit some of the more important episodes with a brief post.  Judge Richard Posner’s June 22, 2012 ruling in the Apple v. Motorola patent infringement litigation in the Northern District of Illinois, and the subsequent appeal to the Federal Circuit fall into this category.

Even people who don’t routinely follow the smartphone patent wars likely are aware of the patent dispute between Motorola and Apple.  After prior license negotiations failed, the parties filed dueling patent infringement lawsuits in October 2010.  Some of these infringement actions were consolidated in a case before Judge Posner, who sat by designation at the district court.  A jury trial was scheduled for June 2012: Apple asserted Motorola infringed claims of four non-standard-essential patents, while Motorola asserted Apple infringed claims of one patent that was essential to the Universal Mobile Telecommunications Standard (UMTS, a 3G cellular standard).  But as the trial date approached, Judge Posner excluded all of the parties’ respective expert testimony on damages.  Finding that neither party could prove an entitlement to damages, Judge Posner tentatively canceled the jury trial, finding that it would make little sense to hold a jury trial on infringement liability if a party could not receive relief.  However, he allowed the parties to submit further briefing, including relating to the potential for equitable remedies such as injunctive relief.  Because Motorola asserted an SEP that was encumbered by a FRAND licensing commitment, Judge Posner specifically requested that Motorola address the bearing of FRAND on the injunction analysis.Continue Reading Catching up on … Apple v. Motorola (N.D. Ill./Fed. Cir.)

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

Because so many SEP-related issues have arisen over the past year, we will periodically revisit some of the more important occurrences with a brief post.  The recent bench trial before Judge James L. Robart of the Western District of Washington between Microsoft and Motorola a may yield a groundbreaking opinion in the area of standard-essential patents, so this is a case that warrants a review.

The dispute between the parties originated back in the fall of 2010.  Microsoft sued Motorola in the U.S. District Court for the Western District of Washington and the U.S. International Trade Commission, accusing Motorola Android devices of infringing several Microsoft patents.  Motorola in turn sent two letters to Microsoft, offered Microsoft licenses to two of Motorola’s standard-essential patent portfolio – for the 802.11 WiFi standard and the H.264 video coding standard – at a rate of 2.25% of the net selling price of the end products that practice those standards.  Microsoft then filed a complaint in the W.D. Wash. against Motorola for breach of contract – specifically, Microsoft alleged that Motorola’s offers to Microsoft breached Motorola’s prior promises to the IEEE and the ITU to offer licenses to its 802.11 and H.264-essential patents on RAND terms.Continue Reading Catching up on…Microsoft v. Motorola