Microsoft and Motorola Mobility are nearing two key decisions on patent infringement. But the software giant might have just played an important card to keep its products on store shelves.
Microsoft yesterday filed in U.S. District Court a motion to get a temporary restraining order and preliminary injunction against Motorola Mobility in order to try to prevent Motorola from getting Microsoft's products banned from use in Germany until a U.S. court also rules on the matter. To make it right, Microsoft says that it will offer up a $300 million bond to guarantee any lost revenue Motorola might incur by allowing the software company's products to remain available.
FOSS Patents' Florian Mueller was first to report on this story.
The issue is a complicated one that includes the U.S. District Court in Washington state and another court in Mannheim, Germany. Motorola is suing Microsoft, arguing that the latter infringes its video standard H.264 patents in Windows 7, the Xbox 360, and Internet Explorer. According to Mueller, the German court is expected to rule on the issue on April 17 and is likely to side with Motorola.
Back in the U.S., Microsoft has found an opening, thanks to Judge James L. Robart saying earlier this month that Microsoft could stop Motorola from banning its products, as long as it posted a bond. A hearing on the matter will be held April 20, according to Mueller.
Motorola's H.264 patents are "essential," meaning they are governed by Europe's FRAND (fair, reasonable, and nondiscriminatory) terms. Companies that hold FRAND patents are expected to make licensing terms fair and reasonable to companies that need them. For its part, Microsoft says that Motorola isn't offering its patents on a FRAND basis.
"In legal proceedings on both sides of the Atlantic, Motorola is demanding that Microsoft take its products off the market, or else remove their standards-based ability to play video and connect wirelessly," Microsoft deputy general counsel Dave Heiner wrote in a blog post last month. "The only basis for these actions is that these products implement industry standards, on which Motorola claims patents. Yet when the industry adopted these standards, we all were counting on Motorola and every contributor to live up to their promises."
Heiner added the Microsoft currently uses 50 of Motorola's H.264 patents and must pay the company $22.50 in royalties for each $1,000 laptop. Heiner also said that his company licenses 2,300 H.264 patents from 29 other companies, and pays just 2 cents for those for every $1,000 laptop.
For its part, Motorola has said time and again that it wants to license patents with any and all companies that come along, and views litigation as a final option. In a similar case with Apple over essential patents, Motorola said that it was left "with no option other than to seek to enforce the company's rights and patent portfolio."
Both the German court and U.S. court are expected to rule on the cases between Motorola and Microsoft next month. After that, though, don't expect the fight to be over. If history is our guide, these fights don't end quickly and usually come with a host of appeals.
Neither Microsoft nor Motorola Mobility immediately responded to CNET's request for comment.