Motorola Presses Its Case v. Microsoft's FRAND Attack in Seattle and in Germany ~pj

Things are getting interesting in Seattle in the FRAND case between Microsoft and Motorola. At the hearing the other day, our reporters mentioned that the judge had asked for cases to support Motorola's position that the time frame to consider Motorola's good faith in making its initial offer was back when it happened:

Judge asks when duty of good faith bargaining begins and ends. Motorola says it is ongoing. But each breach complaint is pinned to a specific date -- not tied to the progress of the litigations. Mentions FTC order re Google acquisition of Motorola. FTC did not say that *prior* injunctive relief requests had to be dropped.

And our second report added this:

The German action was filed July 2011, MS didn't say they would accept a RAND offer until Sept 2011, and as such breach can't be a moving target. MS is stuck with the facts at the time of the complaint. Robart seemed skeptical of this, "Do you have authority for that?" answer about getting back with more briefing "I think you're wrong, but I'll be happy to read your brief." Sullivan says they have an ongoing duty, but a new breach action would be required, and the litigation in this case can't be included in this current breach action.

So this is about the German action, which Microsoft claims caused it financial damages it would like to recoup, and I'll tell you more about that, because Microsoft is very upset about it all. Motorola has followed up [PDF] with two cases, and Microsoft has provided an excerpt [PDF] from the Daubert hearing that we didn't attend the day before, so that's nice to have.

On Microsoft's side, it naturally immediately filed the USTR's letter [PDF] blocking the injunction against Apple by Samsung, although its cover letter is misleading as to what the USTR said. You knew they would do that. And they are in quite a tizzy [PDF] over the fact that Motorola continues to proceed in the German case, where it already got an injunction against Microsoft, which this Seattle judge purports to have the authority to block. However, Microsoft had already made a financial offer of royalties to Motorola in that case, and Motorola, to Microsoft's horror, accepted them. The rate is higher than what this Seattle judge set, so Microsoft has smoke coming out of its ears about how unfair it is that Motorola accepted its original offer. So Microsoft is asking [PDF] the court to "to renew and expand its anti-suit injunction to curtail Motorola's ongoing efforts in Germany to undercut the jurisdiction of this Court and to attempt to procure inconsistent rulings."

As for the judge, he's maybe starting to realize that some of his assumptions about FRAND requirements conflict with what the experts are now telling him. He expresses a measure of confusion about it in an order [PDF] on what the experts for both sides can tell the jury. Here's what he won't allow Motorola's experts to tell them: that being willing to negotiate is sufficient to meet a FRAND obligation. That contradicts what this judge has already ruled in this crazy case, so he doesn't like that, I suppose. The "reason" they can't say that to the jury is, he says, because he gets to decide what is or isn't a fulfillment of a RAND obligation, in that he's Da Law on Microsoft's obligations under Washington state law which he believes the world must go along with, Germany included. Experts can't opine on legal conclusions. However, Motorola has now informed him via this route that he's been getting some things seriously wrong on what FRAND obligations are and what good faith requires. Perhaps it will influence him. He says that the Motorola experts can input how the jury instructions read. I wouldn't put much faith in that if I were Motorola, and I gather they don't. This German prong is getting interesting, I must say.