I expected this outcome in light of the trial I attended in December.
If Apple enforces the ruling, it can even require Motorola to destroy any infringing products in its possession in Germany and recall, at MMI’s expense, any infringing products from German retailers in order to have them destroyed as well.
Motorola Mobility will undoubtedly be able to keep selling its products in Germany by modifying its operating software. Samsung is now also steering clear of infringement of a preliminary injunction ordered by a Dutch court over the same patent in August. There is a certain difference between the infringement findings of the two courts, but the fact of the matter is that Motorola will keep selling devices that will continue to have a photo gallery, though any workaround will definitely degrade the user experience. As a Samsung customer affected by an update following the Dutch injunction, I have experienced this myself.
While Apple won with respect to all of the accused products (including two smartphones as well as the Xoom tablet) in the form in which they were sold at the relevant time (and any future products that would have the same infringement pattern), Motorola successfully defended itself against Apple’s infringement contentions relating to the zoomed-out mode of the Android photo gallery. It appears to me that the court could also have come down on Apple’s side on this one because the outcome-determinative claim constructive issue was whether the edge of a photo is displayed if only a column of a width of a single pixel is visible (which means that formally it is displayed, but in practical terms it is not discernible by the user, a reason for which Apple might as well have won on this one or might win on appeal).
Since Apple brought infringement contentions against both the zoomed-in and the zoomed-out mode of the Android photo gallery, the court determined that either party has to bear 50% of the court fees and 100% of its own legal fees. While this makes formal sense, it would be a mistake to conclude that this game ended in a draw. The glass is clearly more than half-full for Apple in this case (and even more so when considering that Apple also won the drastic remedies of destruction and recall).
There’s no doubt that Apple and the prestigious Bardehle Pagenberg firm, which represents Apple against Motorola Mobility in Germany, are currently on a winning streak;
Two weeks ago, the same court handed Apple an injunction against most of Motorola’s slide-to-unlock implementations. In that case, Apple also prevailed on some but not all of its infringement contentions. The difference is that last time around, the Xoom tablet was not affected by the decision, while it is by today’s ruling.
On Monday, the Karlsruhe Higher Regional Court suspended, for the duration of an appeal that is considered likely to succeed, the enforcement of a Motorola injunction against Apple based on a wireless standard-essential patent. This means that the FRAND defense has finally worked for Apple (after several attempts) in Germany. It deprives Motorola and its future owner, Google, of its only opportunity in the near term to have leverage that might force Apple into a settlement on its rivals’ terms.
Today’s ruling is the second injunction Apple has won against MMI in Germany so far. Those are the first two Apple v. Motorola casees that came to judgment in Germany.
Apple does not have to post a separate bond with respect to Motorola’s smartphones if it seeks enforcement of today’s injunction as well as the one handed two weeks ago. The 25 million euro bond relates to the sale of those products, so there’s no surcharge for blocking the same product on two grounds. If Apple enforces today’s injunction against the Xoom tablet, which was not found to infringe the slide-to-unlock patent two weeks ago, it has to post an additional bond of 10 million euros. It would also have to post an extra 10 million euro bond for the enforcement of the destruction and recall remedies.
One could argue, on a formalistic basis, that none of the three victories Apple scored against Motorola Mobility in Germany was a complete one:
The two injunctions that Apple won were granted with respect to some but not all of the accused embodiments, and those patents aren’t “killer” patents — but the bottom line is that Google itself, which hopes to soon complete the acquisition of Motorola Mobility, is going to be restricted in terms of the functionality it can provide in Germany, the largest market for these products outside the United States.
Also, it obviously make sense for Apple to bring rather ambitious infringement contentions. It can afford this. Who dares wins.
More and more rulings against Android features will come down going forward, and in the aggregate, they will at some point have a very significant effect unless Google becomes constructive and works out a reasonably acceptable solution with the relevant patent holders rather than plan to reach a state of mutually assured destruction by anticompetitive means that regulators can’t condone for overarching reasons.
Concerning the Karlsruhe decision on Monday, a suspension is certainly not a final decision on the appeal, but, as I explained again earlier today with a translation of parts of the Karlsruhe ruling, the court clearly pointed out that the only reason it granted the suspension is because it believes, on the basis of a summary determination, that Apple’s appeal is meritorious.
Two more German patent rulings involving Apple (but not Motorola) are scheduled for tomorrow. The Mannheim Regional Court will decide on an Apple lawsuit against Samsung over the slide-to-unlock patent as well as a Samsung lawsuit against Apple over a patent allegedly essential to the 3G telecommunications standard. Apple has already fended off the first two of Samsung’s German 3G lawsuits. In the Samsung cases, Apple is represented by Freshfields Bruckhaus Deringer, one of Europe’s best law firms. Microsoft also works with Bardehle and Freshfields (in its German litigations with Motorola Mobility).