Google’s Galaxy Nexus latest victim in mobile patent wars

Apple and Google end up in many litigation battles over smartphone patents.

Monica Goyal, founder, My Legal Briefcase

CNN reported last week that Google has had to remove the Galaxy Nexus from its online store — replacing the “IN STOCK” notice with one reading, “COMING SOON.” As they said, it is “an odd message for a device that customers have been buying since November 2011.”

While the Wall Street Journal reports that in another case between the two tech giants, “one of the country’s most influential judges dismissed the claims between Apple and Google calling them ‘silly’”. Silly? This is a considerable critique coming from a very influential legal mind in the United States.

Apple began its patent war in 2010 with its main goal being to limit the growth of Google’s Android operating system. Android is by far the world’s most successful mobile operating platform. An injunction against Google would strengthen Apple’s position in negotiating cross-licensing deals. These deals, in my opinion, pertain to when companies permit each other to use their patented technologies for a fee.

Apple has been on a lawsuit frenzy, attempting to stifle other Android-like devices. More specifically, Apple began a sweeping intellectual property lawsuit against various Samsung smartphone and tablet products. Currently, the Samsung suit involves 16 patents, six trademarks, five “trade dress” claims, and an antitrust case with 37 products accused of violations. Justice Koh found this to be unacceptable and stated that if the July 30, 2012 trial is to go ahead as scheduled that Apple and Samsung would have to “present a more workable set of claims.”

Google’s Motorola Mobility has made its own claims against Apple, which were all rejected by Judge Posner. This means that Apple is the party that stood to gain the most from the lawsuit.

There were five patents in question: four for Apple and one for Motorola. Apple was at an advantage, not merely in numbers but because one of the patents asserted against Motorola concerns “data tapping”. This patent was successfully used to ban the importation of HTC Android devices in the past. Motorola asserted a “standards patent” against Apple, which would not generally be sufficient to earn an injunction.

Judge Posner was not convinced by the arguments made by either side. It wasn’t clear why Apple was seeking an injunction against certain Motorola products instead of agreeing to a cross-licensing scheme. Such a scheme would allow Motorola to continue using the allegedly infringing technology, while Apple would receive compensation. The reasoning provided by Apple was that they feel that it is their right to choose between granting licensing schemes and seeking injunctions.

Apple also argued at trial that it was not seeking a monopoly by preventing Motorola from selling Android phones. The company merely wants Motorola to create solutions of their own instead of allegedly infringing on Apple’s existing technology.

The case ultimately turned on damages. Judge Posner argued that Apple could not determine, with any certainty, the damages it would suffer. An injunction against Motorola would have had potentially catastrophic effects for the company. Furthermore, Judge Posner felt that it would be preferable to have Motorola pay royalties to Apple since forcing Motorola to use an inferior technology would not be beneficial to consumers. Granting an injunction could also potentially create more litigation since nothing would stop Apple from continuing to file patent infringement lawsuits against Motorola.

It can be argued that this decision had the potential to benefit all parties, albeit some more than others. Motorola can continue to use the Android technology, Apple will be compensated through licensing agreements, consumers will benefit from having a choice among multiple products, and less litigation would mean less of a strain on the judicial system.

As Judge Posner said, “You can’t just assume that because someone has a patent, he has some deep moral right to exclude everyone else from using the technology.”

Judge Posner also addressed some of the deficiencies in the current patent system, including calls for its reform. It’s refreshing to all who are in tech, to hear someone who has some authority and ability to effect change finally speaking plainly about the state of affairs in patent law. Frankly, too much is on the line for too many people and companies to expect this decision to have any meaningful influence, but one can hope that it will in time.

Monica Goyal
Monica Goyal
Monica Goyal, Entrepreneur, Lawyer and Innovator is the founder of Aluvion, a legal solutions company offering technology, paralegal and lawyer-driven solutions with a special focus on the quality, cost, and accessibility of legal services for both businesses and individuals. Monica began her career working as an engineer in R&D for companies like Toshiba, Nortel and Nokia while earning her Masters of Engineering at Stanford. Monica's history conditioned her to solve problems in a efficient and tech-savvy manner, an approach she brings with her to legal solutions. Monica currently sits on the Canadian Bar Association's Futures Initiative, and will be teaching a course on Legal Technology at York University’s Osgoode Hall. She was recently named one of 10 Women to Watch in Tech in the Journal of the American Bar Association.

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