19 April 2013Patents

Motorola denied German injunction in Microsoft patent row

Google-owned Motorola Mobility failed to secure a German injunction against Microsoft on Friday in their dispute over a push notification patent.

The Mannheim Regional Court rejected the request because Google owes Microsoft a licence under an agreement over the ActiveSync protocol.

It has stayed the case amid a pending hearing at the Federal Patent Court on the patent’s validity.

The patent protects a “multiple pager synchronization system and method” for sending push notifications, but its validity is being challenged by both Apple and Microsoft. The patent was invalidated at the England & Wales High Court last year for being obvious.

There must be a high probability of a patent being invalidated for an infringement dispute to be stayed in Germany.

But in this case, the threshold was lowered because Google failed to pay a licence fee to use Microsoft’s ActiveSync protocol, which covers push notification technology. The deal was signed before Google acquired Motorola in 2010.

“The court found that Microsoft has a right to license this patent, so an injunction was out of the question,” said Hosea Haag, a lawyer at Ampersand in Germany. “The threshold therefore lowered tremendously.”

Friday’s ruling is part of a much wider attempt by Google to use its Android system as a weapon to force other companies into cross-licensing, said Haag, but many of these companies are using unrelated technologies.

Google’s Android patent litigation has been largely unsuccessful and other companies using the platform have begun negotiating licensing deals with rivals, as they don’t trust that Google’s litigation will be successful, according to Haag.

He added: “Google hoped that if they had lots of patents from the Motorola acquisition then they would just regarded as a player with enough IP weight to be accepted as someone to cross license with. Google might have overestimated the willingness of the others to do so.”

Motorola used the push patent to win and enforce an injunction against Apple last year, meaning it had to turn off its push email service in Germany. But that order is expected to be lifted next week, according to Florian Müller on the FossPatents blog, because of doubts about the patent’s validity.

“This patent doesn't withstand even a modicum of scrutiny,” Müller wrote. “It's hard to see how it will survive in any commercially valuable form the nullity proceedings before the Federal Patent Court.”

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