Patent, patent, quite so legal–How does your litigation go?

My Disclaimer is that I really don’t understand the legalese and, quite frankly, I haven’t the attention span to figure them out; HOWEVER, we certainly are in an age of patent litigation where the technology companies are concerned, especially with the technology used in mobile devices.  So, here is a bit of an update on some patent litigations involving Android (they’re losing big time), care of Foss Patents:

Android devices have already been found to infringe 11 valid Apple and Microsoft patents

Patent litigation takes time. Most of the patents that large companies have asserted against Android haven’t even come to judgment yet, and new assertions continue to be made. But the time has passed for any reasonable, unbiased person to deny that Android has a serious patent infringement problem that continues to exacerbate. Whether or not one subscribes to Steve Jobs’s description of Android as a "stolen product", the plot is definitely thickening that Google and its hardware partners face IP issues.

Here’s a list of the related findings by courts and the ITC (a trade agency with quasijudicial authority) according to which Android devices infringe no less than 11 different Apple and Microsoft patents that the same courts deemed valid, in chronological order of the decisions and excluding any rulings that were overturned on review or appeal:

1. EP2059868 on a "portable electronic device for photo management"

   I call this one the "photo gallery page-flipping" patent.

   The Rechtbank ‘s-Gravenhage (a court in the Dutch city of The Hague) deemed this patent valid and infringed in an August 24, 2011 decision granting Apple a preliminary injunction against certain Samsung smartphones. On March 1, 2012, the Munich I Regional Court granted Apple a permanent injunction over this patent against Motorola Mobility, now a wholly-owned Google subsidiary.

2. U.S. Patent No. 7,469,381 on "list scrolling and document translation, scaling, and rotation on a touch-screen display"

   Also known as the "overscroll bounce" or "rubber-banding" patent. I once called it "Apple’s favorite make-Android-awkward patent".

   The United States District Court for the Northern District of California deemed this patent valid and infringed in a December 2, 2011 decision denying an Apple motion for a preliminary injunction against four Samsung devices. The denial was based on an insufficient showing of the nexus between the identified infringement and the alleged harm to Apple’s business. Nevertheless, if the infringement and validity findings are upheld, Apple can still win an injunction after the upcoming trial or at a minimum seek damages for past and future infringement.

3. U.S. Design Patent No. D618,677 on an "electronic device"

   This is an iPhone-related design patent.

   In the aforementioned December 2, 2011 decision, the United States District Court for the Northern District of California deemed this design patent valid (with a narrowed scope) and infringed, calling it a "close question" and denying an injunction for balance-of-hardship reasons.

4. U.S. Patent No. 5,946,647 on a "system and method for performing an action on a structure in computer-generated data"

   I dubbed this one the "data tapping" patent, a term that has since been adopted by a number of journalists.

   The United States International Trade Commission (ITC) deemed this patent valid and infringed in a December 19, 2011 order of a U.S. import ban against HTC.

   I published the winning claim chart.

   In a June 29, 2012 order of a preliminary injunction against the Galaxy Nexus smartphone, the United States District Court for the Northern District of California deemed this patent valid and infringed, but denied an injunction on the basis of this patent for balance-of-hardships reasons.

   Motorola Mobility failed with summary judgment motions in a litigation in the Northern District of Illinois to prove this patent invalid or not infringed. The recent dismissal of that lawsuit was based on other reasons than the merit of Apple’s infringement claims.

5. EP1964022 on "unlocking a device by performing gestures on an unlock image"

   This is the first slide-to-unlock patent.

   On February 16, 2012, the Munich I Regional Court granted Apple an injunction over this patent against Motorola Mobility.

6. U.S. Patent No. 6,370,566 on "generating meeting requests and group scheduling from a mobile device"

   On May 18, 2012, the ITC ordered a U.S. import ban against Motorola’s Android-based devices that infringe this Microsoft patent.

7. EP1304891 on "communicating multi-part messages between cellular devices using a standardized interface"

   On May 24, 2012, the Munich I Regional Court granted Microsoft an injunction over this patent against Motorola’s Android-based devices. This was the first Microsoft v. Google decision ever. It came down only days after Google completed its acquisition of Motorola Mobility. The ruling is already being enforced in Germany.

8. U.S. Design Patent No. D504,889 on an "electronic device"

   This is an iPad-related design patent.

   On June 27, 2012, the United States District Court for the Northern District of California granted Apple a preliminary injunction against the Galaxy Tab 10.1 following a partly-successful appeal to the Court of Appeals for the Federal Circuit.

   In the summer of 2011, the Düsseldorf Regional Court had granted Apple a preliminary injunction against the same product over the European equivalent, a so-called Community design, of this U.S. design patent. The appeals court, the Düsseldorf Higher Regional Court, later upheld the injunction but did so on the basis of German unfair competition law, not on the grounds of the asserted Community design.

9. U.S. Patent No. 8,086,604 on a "universal interface for retrieval of information in a computer system"

   This is a patent on Siri-style unified search.

   On June 29, 2012, the United States District Court for the Northern District of California granted Apple a preliminary injunction against the Samsung/Google Galaxy Nexus smartphone over this patent.

   Oddly, earlier that week Google placed a lot of emphasis on voice search at its Google I/O developer conference, where it announced that more than 1 million Android-based devices are now activated on a daily basis.

10. U.S. Patent No. 8,046,721 on "unlocking a device by performing gestures on an unlock image"

    This is the second slide-to-unlock patent.

    In its aforementioned Galaxy Nexus decision, the United States District Court for the Northern District of California deemed Samsung and Google to infringe on this patent, which it considered valid. The injunction was not based on this patent only for balance-of-hardship reasons. Apple may still win a permanent injunction or, at least, seek damages if the preliminary findings of infringement and validity are upheld.

11. U.S. Patent No. 8,074,172 on a "method, system, and graphical user interface for providing word recommendations"

    This is an autocorrect patent.

    In its aforementioned Galaxy Nexus decision, the United States District Court for the Northern District of California deemed Samsung and Google to infringe on this patent, which it considered valid. The injunction was not based on this patent only for balance-of-hardship reasons. Apple may still win a permanent injunction or, at least, seek damages if the preliminary findings of infringement and validity are upheld.

I said before that this list doesn’t include decisions that were successfully appealed or otherwise overturned. For example, an ITC judge found HTC’s Android-based devices to infringe a second Apple patent, the ‘263 "realtime API" patent. Judge Posner turned down Motorola’s repeated, vehement attempts to have this patent declared invalid or not infringed. Also, an Australian judge had banned the Galaxy Tab 10.1 over a multipoint touchscreen hardware patent and a touchscreen heuristics software patent, but the injunction was lifted following an en banc rehearing.

A significant number of dismissals of patent infringement claims against Android have been appealed. Some of those appeals may very well succeed (appellate statistics suggest that this will happen in at least some cases). Also, most of Apple’s German lawsuits have been stayed pending further analysis of their validity. Some of those patents may come back with a vengeance if proven valid.

The list above is limited to (nine) Apple and (two) Microsoft patents. I don’t follow litigation by non-practicing entities anymore. As far as other major players are concerned, Oracle is certain to appeal its case against Google to the Federal Circuit, British Telecom is still suing Google, Nokia has recently asserted dozens of patents in the U.S. and Germany against HTC and Viewsonic, and BlackBerry maker Research in Motion (RIM) is in such dire straits that it’s probably only a matter of time (the company appears to be in a serious disarray right now) until it also asserts some of its wireless email patents against Google and/or Google’s hardware partners.

Finally I’ll address a point that people often make, though it’s mistaken based on the current set of facts no matter how often it is stated. I mean the claim that Android just has these problems because it’s so popular. Well, Apple’s iOS is similarly popular, and from an economic point of view a far more lucrative target. But so far, there’s only one non-standard-essential patent that a court of law (in this case, the Mannheim Regional Court) has held Apple to infringe: Motorola’s push notification patent. Most of the assertions that Android device makers bring against Apple are based on standard-essential patents, which has already resulted in several antitrust investigations (one in the U.S., three in the EU) and resulted in only one injunction (Mannheim again), the enforcement of which was almost immediately stopped by an appeals court. Also, a Dutch court denied an injunction even prior to looking at the technical details of the patents and later determined that Samsung is entitled to damages and FRAND royalties, which will likely amount to only a few hundred thousand dollars/euros given the court’s position on Samsung’s original royalty demands and the size of the Dutch market — not even chump change for Apple.

Google (Motorola) has so far won only one ruling against Microsoft (in, guess where, Mannheim), which is based on two standard-essential patents and cannot be enforced anytime soon. And Google (Motorola) is probably going to lose its bid for an Xbox import ban at the ITC.

While patent litigation is a "you win some, you lose some" kind of game, there can be no doubt that Google and its partners are losing this one on the bottom line. Google’s $12.5 billion acquisition of Motorola Mobility hasn’t been a game-changer.

The original article can be found here.