Tuesday, April 17, 2012

Apple keeps up pressure on Motorola Mobility with multilingual alphabet patent

Today the Mannheim Regional Court held another Apple trial -- in this litigation, Motorola Mobility is the defendant -- a few hours after an Apple v. HTC trial (over the same patent) that resulted in a stipulated stay.

I thought that the most likely outcome of the afternoon trial was also a stay, but no: Apple's lawyers, from the renowned Bardehle Pagenberg firm, demonstrated their incessant commitment to achieving the best result possible for their client: during the lunch break between the trials, they followed up on one of Judge Dr. Kircher's tentative claim constructions and identified a potential indication of an infringement of the multlingual alphabet patent Apple acquired from Mitsubishi. In particular, they found out that one or more of Motorola's accused devices have a Russian keyboard map that offers 100% of all Cyrillic characters actually used in the Russian language, and nothing more than that. Under the tentative claim construction, supersetting and subsetting would be deemed to put one particular language-specific keyboard just outside the scope of protection of the patent-in-suit. Supersets were identified in connection with at least three languages (English, German, French). The finding does not yet constitute a complete infringement theory under the judge's claim construction, but if Apple found only one or more keyboard map that meets this criterion, it would have a chance to win an infringement ruling (the validity of the patent is nevertheless an issue).

Why didn't this come up before? Because Apple's lawyers previously built their infringement allegations on a different legal interpretation of the asserted patent claim, and they didn't know about the judge's understanding of the patent until this morning's HTC trial. By U.S. standards, this situation will appear very odd. Under the Markman procedure in the United States, judges construe disputed claim terms (at least up to a certain maximum number of terms) well ahead of trial. Both plaintiffs and defendants can then amend their infringement-related arguments if necessary. But in Mannheim, there is usually only one hearing, which amounts to a trial, and claim construction is not clarified beforehand. The process here is condensed and much faster than in the U.S., but every upside has a downside. (By the way, the Munich I Regional Court conducts two hearings before a decision, giving parties the benefit of an early first hearing at which the court takes a preliminary position on the key issues.)

Judge Dr. Kircher granted Apple's request (which Motorola opposed) to file a post-trial pleading related to the question of such keyboard maps that are neither supersets nor subsets of the standard alphabet of a given language. He noted that this would likely require a second trial further down the road, and the case would probably be stayed at that stage for the same reason he outlined earlier today in connection with the HTC case. But Apple's lawyers want to make headway with the infringement part of the case and therefore asked for a decision based on their amended contentions.

It appears to me that Apple won't find another language with a Latin alphabet that meets the neither-superset-nor-subset criterion. But it might find a language-specific keyboard with some other, non-Latin, alphabet that does.

If Apple's legal team finds a second keyboard map of this kind (or a third, fourth etc.), the court might still conclude that there' no infringement, depending on whether its final interpretation of the patent comes down to requiring this for each keyboard map. And even if the court concluded that it's enough to have two or more such keyboard maps (one would definitely not suffice given the way the patent is phrased), an infringement ruling would entitle Apple to damages for past infringement but Motorola could easily work around an injunction by simply adding characters to such keyboard maps as the Russian one.

It was probably a bad design choice by Motorola (or Google) in the first place not to offer additional characters for the Russian keyboard map: in Russian texts, it's fairly common to see individual words in the Latin alphabet. For example, while names are frequently transcribed to Russian by simply spelling them in Cyrillic letters according to the phonetics of each name in its original language, names are sometimes additionally or alternatively spelled out in Latin letters. Here's a guest article I wrote for Russia's leading financial daily, Kommersant. It contains such names as Apple, iPhone, iPad, Nokia and Samsung in Latin letters. (While I learned Russian a long time ago, for four years, I authored this op-ed in English and a Russian editor translated it.)

Besides an entitlement to damages for past infringement and implications for litigation expenses under the German "loser pays" rule, an injunction would give Apple some tactical options going forward -- and would probably be a much better basis for an appeal (that would seek to widen the scope of the injunction) than a complete non-infringement decision. It could also save time. At any rate, what these lawyers did during the break between the two trials, and the way they fought for their right to amend their contentions even though the judge urged them to consider that the patent will probably be deemed invalid, is honors the legacy of Steve Jobs.

No one is ever beaten unless he gives up the fight.

The Mannheim court will make a decision on this case on June 22, 2012, the same day on which it will rule on the lawsuit against Samsung over the same patent. This timing doesn't imply identical decisions, especially since the Motorola case now clearly raises different issues. The most likely outcome for the Motorola case is that the court orders a second trial. The judge noted that it might appear odd to observers and the parties if there are seemingly inconsistent rulings in the end, but even though the patent and the accused technologies may suggest consistent decisions, these cases didn't evolve in identical ways.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Share with other professionals via LinkedIn: