Software patents suck. That was my first thought in hearing about this case between Motorola and Microsoft, the latter of which is being tried on four counts of patent infringement. The patents are related to wireless connectivity and transmission of video content between controller devices and a console. Motorola has been fighting for these patents since November 2010, and has already won in European courts.
Yesterday, Judge David Shaw recommended that the International Trade Commission ban the import of all Xbox 360 4GB and 250GB consoles to the United States, and that Microsoft should be forced to pay a bond equal to seven percent of all unsold consoles to Motorola. When Microsoft claimed that the ban would negatively affect consumers, and would not improve the technology space either, Judge Shaw argued that it was more important for him to uphold intellectual property rights. He went on further to say that Nintendo and Sony would be able to meet increseased demand if the American holiday season was suddenly without an entry from Microsoft.
Fortunately, Judge Shaw’s recommendation is just that, a recommendation, and doesn’t mean much in the grand scheme of things. The International Trade Commission would still have to act on Judge Shaw’s decision, and they would certainly be open to keeping the interests of the consumer at heart in their decision. Wireless patent technology blogger Florian Mueller, speaking to GamesIndustry, believes it is highly possible that consumers, developers, and publishers could petition the ruling and have it overturned. But of course, as with all things legal, it gets more complicated than that.
At the same time these International Trade Commission (ITC) cases are going on, Microsoft is fighting two other lawsuits against Motorola: one in Europe, and one in the US. Microsoft claims that Motorola is withholding patents that are necessary to software innovation, and violate Fair-use, Reasonable and Non-Discriminatory Licensing (FRAND) agreements.
So all in all We have two separate legal battles whose fates are connected. On the one hand, Motorola believes Microsoft is guilty of patent infringement in the Xbox 360 (The ITC case). On the other, Microsoft deems that it is unfair to uphold these patents, and that they should be fair use (the FRAND case).
What are the possible outcomes here? Florian Mueller explains on blog Foss Patents better than I can.
” If Motorola wins in both venues, U.S. consumers may not be able to buy the Xbox gaming console during the Christmas Selling Season (unless the parties settle, of course). If Motorola wins at the ITC but loses in Seattle, it will, at best, achieve an import ban against the Xbox with respect to a non-standard-essential patent that can be worked around. If Microsoft defeats the non-essential patents in the further ITC process and wins on the FRAND issues, the Xbox will continue to be sold without a need for even the slightest modification, and Motorola still won’t get its annual $4 billion royalty payment.”
Mueller goes on to say that Microsoft has made a pretty strong case with FRAND that requires action soon.
More on this story as it develops.