PJ on Moto vs MS in WA/Germany.
A lot of you have been asking questions about Friday's decision [PDF] in Microsoft v. Motorola by the 9th Circuit Court of Appeals. Motorola lost its appeal of the district court's decision that it can't enforce currently the German permanent injunction it won against Microsoft for infringing Motorola's patents. Of course, after the trial in Washington State, it can appeal again then, ot it can ask for reconsideration and for en banc review, but for now, that door is closed by this decision.
This is a FRAND [fair reasonable and non discriminatory] case, and the court noted that Microsoft filed in Washington State before Motorola filed in Germany, and the court views it as a contract case, following Microsoft's interpretations. So Motorola has to wait until it's resolved, and it may resolve in such a way that the German injunction, which would have banned Microsoft's Xbox and other software from Germany, will become moot.
I've done the ruling as text for you, and I'd like to point out one glaring issue I see.
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How Microsoft can refuse to negotiate and unilaterally decide that an opening offer is "unreasonable" when there is no ruler's edge and it's specifically left to the parties to work out, is the mystery in this picture. Meanwhile, Microsoft's using the Motorola patents and paying nothing to Motorola. Not one penny. Not one counteroffer that I know of.
It wants the courts to decide what is a fair price, which isn't the ITU procedure as I'm reading it, and it wants Motorola to be toothless in the face of a user of the patents who simply won't pay and won't even negotiate. And it wants the friendly local home court in Washington State to set the price for the whole world.
So far, Microsoft is prevailing, even though it sounds unfair just to describe it. Microsoft is taking advantage of some mistakes Motorola made: 1) it listed all its patents worldwide in its letter to Microsoft offering to license, including the two it later sued Microsoft over successfully in Germany, thus giving the court an excuse to say that the Washington State litigation can resolve all issues based on the alleged contract; and 2) Motorola's lawyer agreed verbally in court that Motorola agreed to license on RAND terms, without -- at least in the excerpt quoted by the court -- fine-tuning it to say it agreed to *negotiate* such a license. It's not automatic, so how it's a contract before the negotiations have even happened and a deal is struck is a mystery to me. I've called it a shell game, and so far everyone is indeed looking under the wrong shell in both the district court and now in the court of appeals.
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MS didn't get to where it is today by having poor lawyers. Moto needs to up their game.
Cheers,
Scott.