updated 06:15 pm EDT, Wed October 10, 2012
June motion by Motorola hoped to torpedo the November bench trial
Ruling on a July filing by Motorola, Federal Judge James L Robart of the Western District of Washington, presiding over the Microsoft versus Motorola fair, reasonable, and non-discriminatory (FRAND) dispute, denied Motorola's motion for a partial summary judgement dismissing Microsoft's request that the court create a license agreement for Motorola's standard patents. The matter will be resolved at the November 13 trial date.
Patent analyst Florian Mueller believes that "This judge means business. He doesn't want more tactical gamesmanship. He wants a definitive solution for this issue." In the spring, the judge warned both companies that they were using his court for pursuing business interests, and not justice. A previous summary judgement has already decreed that Motorola has a contractual obligation to grant a FRAND license to Microsoft and "there's no point in playing games with him" to dodge the judgement.
Motorola may be fighting an uphill battle with the recent attention brought to FRAND abuse during the Motorola and Apple court battle with Judge Posner at the helm. The judge said he couldn't see "how you can have an injunction against the use of a standards-essential patent," a succinct summation of Microsoft's publicly stated position that FRAND patents are being abused in lawsuits such as this one by Motorola, Google, Samsung and others.
Google and Motorola are currently under investigation by the FTC for FRAND abuse, in part because of this case. Motorola has historically asked for 2.25 percent of the cost of an entire device that uses one of their patents, and not just the price of the infringing software. For example, the current requested rate for Microsoft's Xbox 360 is $4.50 of the $200 retail price per base unit sold.
Previous demands for Windows' use of the H.264 patent asked for 2.25 percent of each PC sold, and not just the retail value of Windows. Conservative estimates by Microsoft places the amount they would owe for the video playback patent in the billions of dollars, assuming the average PC was conservatively worth $500. The rate Motorola demands is several orders of magnitude larger than the capped license fee maximum of $6.5 million per year demanded for the patent by the MPEG LA group, and the rate that Motorola's owner Google is said to have promised in a license to Microsoft for the patent, prior to the search engine's acquisition of Motorola Mobile.