Microsoft Motorola Patent Dispute Goes To Second Trial

Microsoft and Google are set to go to court this week in the second of two trials relating to Microsoft’s use of Motorola Mobility patents.

A federal court in Seattle will determine whether Motorola Mobility breached a contract with Microsoft to license its standards essential patents (SEPs) relating to wireless and video technology used in the Xbox 360 on Fair, Reasonable and Non-Discriminatory (FRAND) terms.

The two patents in question are essential to the IEEE 802.11 Wi-Fi and H.264 video codec standards.

Microsoft Motorola patent dispute

In a previous trial last November, US District Judge James Robart ruled Microsoft should pay a royalty of $1.8 billion a year for use of the patents – more than the $1 billion Microsoft said it should pay, but much less than the $4 billion Motorola was demanding.

Motorola cannot appeal that ruling until this latest phase of the case is completed, but it has been suggested the company will have a hard time convincing a jury it did not renege on its commitment to provide the patents on a FRAND basis given Robart’s decision.

Microsoft is also seeking compensation after it closed a German distribution centre after Motorola won an injunction in Europe that could have affected its supply chain. Motorola was later ordered not to enforce that injunction and Microsoft wants to be reimbursed for the costs related to the closure. It also wants its legal fees paid.

‘Schizophrenic Google’

Microsoft also accuses Google’s Android operating system of infringing a number of its patents and has sought royalty payments from a number of smartphone manufacturers, including Samsung, HTC and ZTE. The only major Android manufacturer not to agree such a deal is Motorola, which was acquired by Google for £8 billion last year.

Observers have called the inconsistencies in Google’s attitude towards SEPs as “schizophrenic”.

“It’s not just hard but squarely impossible to reconcile the two prongs of Google’s patent strategy,” said analyst Florian Mueller. “At the trial starting tomorrow, its lawyers are going to argue that intellectual property must be respected and that patent enforcement must be strong, and that FRAND promises don’t really mean much. At the same time, there are Google lobbyists running around in Washington DC telling lawmakers that patent law is broken and that enforcement should be weakened.

“To me, this is just schizophrenic. If Google could take a consistent position, one way or the other, there wouldn’t be a need for this jury trial.”

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