CyberTech Rambler

October 3, 2012

Its all about timing, but timing put Motorola at a disadvantage

Filed under: Uncategorized — ctrambler @ 6:43 pm

Poor Motorola, it got its appeal against the ruling that it cannot enforce German court ruling against Microsoft in Germany because a court in US says it cannot based on the timing of both suits. [See this GrokLaw article]. But if one examine the timeline, Motorola cannot avoid this.

So what happened? Motorola US sent Microsoft US letters of offers for the patents in question on the dying days of October (29th to be precise). As one need to give the other party time to evaluate and consider the offer, Motorola gave Microsoft 20 days  to reply. Unfortunately, before the 20 days was up, on November 9th, Microsoft pre-empted by sending Motorola to a US Court, thus manufacturing the unsatisfactory situation we are in today.

Could Motorola had avoided it? It cannot sue Microsoft before the 20 days is up unless Microsoft made the first move. In fact, because Motorola filed the German lawsuit one day after Microsoft filed theirs in US, one can say it did sued Microsoft in a timely fashion. Thus we can safely conclude that once the offer letter was sent, Motorola’s hand were tied. The next question is could Motorola had avoided all this by getting Motorola Germany to send the offer to Microsoft Germany? That won’t help as Microsoft Germany will tell Motorola to send the offer the US instead. Furthermore, it is very likely that in the case of multinationals dealing with products that cross national boundaries,  the offer letter is normally sent from Worldwide HQ to Worldwide HQ.

Given that the whole thing is basically happening in Germany one would had expected the US court to refer the case to the German court as a matter of respecting each other jurisdiction and to prevent jurisdiction shopping. I think we have a “my house is bigger than your house” contest between US courts and German courts. That is why US courts want to retain jurisdiction on the case.

One interesting fact is that the US court is treating FRAND terms an actual contract instead of an offer. Unusual in the fact that the contract binds one party without even knowing who the other party might be. That is unfair to the former. Not that Microsoft is the only one who use this. Apple appears to be doing so as well. While giving kudos to Microsoft’s  and Apple’s lawyers for thinking this up, it does flies against common sense and normal practice in FRAND. It will be interesting to see how this argument on whether FRAND is a contract or not, and if so, how does it works. As FRAND is very important in standard settings, the sooner we have an answer, preferably in the form of US Supreme Court judgement, or highest court to which there is no more appeals in other jurisdiction, the better.

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