With its crushing court defeat of Samsung, Apple won a key battle in its fight against Google, but the war remains far from over.
I. Motorola Hit Back
Previously, Google (via its subsidiary Motorola Mobility) and Apple had fought each other to a standstill with Judge Richard A. Posner, a Seventh Circuit Court of Appeals judge moonlighting in the U.S. District Court, Northern District of Illinois (Chicago). Posner twice dismissed the pair's suits/countersuits with prejudice arguing that both side effectively just wanted to ban the other's products and wasn't looking for legitimate damages.
That stalemate left Google with limited options. However, it is now pursuing its biggest and best opportunity to hurt Apple -- a U.S. International Trade Commission complaint. With the complaint Google is looking to hit Apple hard, banning nearly every single one of its products, including all its best-selling devices.
The ITC independent investigates patent dispute claims. And as most mobile device makers -- including Apple -- manufacture their products exclusively in China, its panel of judges essentially have as much power as a federal judge and jury, as they can order a blockade on imports -- an effective sales ban -- if they feel infringement occurred. That's precisely the route Apple used to temporarily stifle the sales of Android phonemaker HTC in May.
For its new complaint Google-Motorola was careful not to use one of its 3G or 4G patents, which may be illegal to sue Apple with, given that they were developed for industry standards. Instead, Google-Motorola is using U.S. Patent No. 6,983,370, a broad patent that describes cross-platform messaging to a "plurality of messaging clients". The patent was filed in 2001 and granted to Motorola in 2006 by the U.S. Patent and Trademark Office (USPTO).
Apple may be treading on dangerous ground, given how broad Motorola's patent is. Its best bet may be to try to find cracks in certain Motorola claims and then try to challenge the patent on the grounds of invalid claims construction. Otherwise it could find almost of its products -- the iPhone, most iPods, the iPhone, the iPad, and Mac computers -- banned from import into the U.S.
II. Vague, Yes, But Motorola Could Win
To be clear Google's patent is almost laughably ubiquitous -- it's basically claiming that any messaging client that uses Wi-Fi or cellular data connections is in violation of its patent.
But again, logic and reason have long since left town in patent land in the U.S.
For example Apple's big win against Samsung in part came thanks to a pair of patents that were equally ridiculous, if not more so. One patent was a design patent covering a broad array of smartphone shapes (rectangular with curved edges), while a second was the so-called "rubber-band" patent, which granted Apple exclusively rights to have its graphical user interface mirror a kind of commonly occurring natural phenomena (a transient effect). That would be like if you patented making a graphical element move in a spiral.
In addition to the messaging patent, Motorola also is claiming iOS and OS X infringe on several other patents -- U.S. Patent No. 5,883,580 (COVERS: geo-tagging and time-stamping messages FILED: 1997 GRANTED: 1999); U.S. Patent No. 6,493,673 (COVERS: markup language for user messages and input FILED: 2000 GRANTED: 2002); U.S. Patent No. 5,922,047 (COVERS: processing control signals from multimedia/telephony apps FILED: 1996 GRANTED: 1999); U.S. Patent No. 6,425,002 (COVERS: interapplication message passing FILED: 1998 GRANTED: 2002); U.S. Patent No. 7,007,064 (COVERS: memory management for wireless communications FILED: 2002 GRANTED: 2006); and U.S. Patent No. 7,383,983 (COVERS: pausing messaging content FILED: 2005 GRANTED: 2008).
If you see a central theme it's because there is one -- basically Motorola has patents that cover virtually every single aspect of wireless messaging and it's looking to use that non-FRAND portfolio to punish Apple.
If Apple can win on such confounding patents, it would not surprise for Google-Motorola to potentially score a similar logic-defying win, assuming luck is in their favor at their day in court.
The ITC has voted to investigate the claim against Apple, so the filings are now on the public record and win, lose, or draw Motorola will at least have its day in court.