Microsoft vs. Motorola: A look ahead to next week's ITC patent trial

Google may have announced plans to acquire Motorola Mobility, but that purchase (if approved by regulators) won't be official for months -- or maybe even a year-plus. In the interim, as Google officials said this week, Motorola will be going it alone against Microsoft in the various patent suits in which the two already are engaged.

The first of those suits begins winding its way through the courts as of next week, the week of August 22. This one involves the complaint lodged by Microsoft with the U.S. International Trade Commission (ITC) last fall over Motorola's alleged infringement of nine Microsoft wireless patents.

The ITC pre-conference hearing is slated for today, August 19, and the trial is slated to run from August 22 to August 31.

If you want a refresher on what's at stake, FOSS Patents' Florian Mueller is one of the go-to guys in this space.

"At the ITC, each case is a one-way street, unlike federal lawsuits, where you often have counterclaims, in other words, patents being asserted by both sides," explained Mueller, who has been keeping close tabs on the various, interrelated patent cases in the mobile market.

"The ITC staff makes a recommendation that isn't binding on the judge, but it's always awaited with great interest," Mueller added.

According to the proposed schedule in the case, initial determination in the case is set for November 2011. The final judgement target date is March 2012. Only the final judgement is enforceable.

Mueller has been tracking every twist and turn in the Microsoft Motorola patent battle, which kicked off in October 2010, when Microsoft filed two patent-infringement complaints against Motorola (one in the Western District of Washington and the other with the ITC). Both related to the same nine patents:

• 5,579,517 ("517") Common name space for long and short file names
• 5,758,352 ("352") Common name space for long and short file names
• 6,621,746 ("746") Monitoring entropic conditions of a flash memory device as an indicator for invoking erasure operations
• 6,826,762 ("762") Radio interface layer in a cell phone with a set of APIs having a hardware-independent proxy layer and a hardware-specific driver layer
• 6,909,910 ("910") Method and system for managing changes to a contact database
• 7,644,376 ("376") Flexible architecture for notifying applications of state changes
• 5,664,133 ("133") Context sensitive menu system/menu behavior
• 6,578,054 ("054") Method and system for supporting off-line mode of operation and synchronization using resource state information
• 6,370,566 ("566") Generating meeting requests and group scheduling from a mobile device

In November, Microsoft filed a second complaint against Motorola involving wireless and video-codec patents in the Western District of Washington, alleging Motorola's failure to comply with RAND (reasonable and non-discriminatory) licensing commitments Motorola made to certain standard-setting organizations (IEEE-SA and ITU) and their members.

Motorola shot back with three complaints against Microsoft in two different federal courts. And Microsoft, in late December, made counterclaims in southern Florida, asserting seven patents, Mueller said. The complaints were modified, court venues shifted, patents dropped and counterclaims filed in the ensuing months. This week, on August 17, the Southern Florida lawsuit between the pair was transferred to Washington.

In Mueller's opinion, "this venue transfer decision gives Microsoft not only the home court advantage but, far more importantly, thwarts Motorola's plan to have at least one federal decision that might work out in its favor before the ITC takes its final decision on Microsoft's ITC complaint."

To me, all of this makes it clearer why Motorola allegedly was talking to Microsoft about a potential patent purchase --and why Google was so interested in keeping those patents out of Microsoft's hands....