Non-final invalidation of James Gosling patent is major blow to Oracle's case against Google

Yesterday, Oracle and Google filed a joint update regarding the ongoing reexaminations of certain patents-in-suit. The patent part of Oracle's case is in greater trouble than ever. In fact, there isn't much left of it except that U.S. patent litigation still creates opportunities even for the holders of patents of doubtful validity.

What comes as little surprise is that the USPTO confirmed, on a "final" basis (final as far as reexamination is concerned, but it can still be appealed to the Board of Patent Appeals and Interferences, and even up to the Court of Appeals for the Federal Circuit), the rejection of all of the asserted claims of the '702 and '205 patents. So far, all preliminary rejections of patent claims were ultimately confirmed by the USPTO in its "final" actions.

But what I didn't necessarily expect is that the USPTO believes, on a non-final basis, that all of the asserted claims of U.S. Patent No. RE38,104 on a "method and apparatus for resolving data references in generated code" -- an invention claimed by Java creator James Gosling -- are also invalid.

Out of the seven patents Oracle originally asserted, it has withdrawn two, and of the remaining five, only one (the '520 patent) survived reexamimation at least to the extent that Oracle could still assert some of its claims, though infringement is not a given.

The Gosling patent was the last one of the seven on which the USPTO issued a first Office action. This took very long, and for a long time I was thinking that Oracle might be able to get a lot of mileage just out of the Gosling patent. It appeared pretty fundamental to me. But this patent appears to be bound for invalidation, given that Oracle has so far not been able to dissuade the USPTO from turning any non-final rejection into a "final" one.

Two days ago I reported on Oracle's withdrawal of a second patent (of which it was only asserting one claim at this stage) and said that "[a] certain degree of streamlining ahead of trial is nothing unusual in such multi-patent cases". Note that I said "certain degree". With the latest bad news for Oracle, especially concerning the Gosling patent, I believe a tipping point has finally been reached for the patent part of Oracle's case. Now there's serious doubt that even one of Oracle's originally-asserted claims is both valid and infringed by Android's Dalvik virtual machine. Last month, Oracle already proposed to focus on the copyright part of the case, and at the time, there was still a limited amount of hope for its patents. By now, the patent part of the case is pretty much lost except that a jury might nevertheless determine that there isn't clear and convincing evidence for the invalidity of some patent claims. But that is increasingly unlikely to happen. A jury will likely see that Oracle's patents-in-suit have a serious validity problem.

As I pointed out in my previous blog post on this subject, it's another question whether Oracle might be able to prevail with other patents. Sun filed for many patents related to Java, not just the seven that Oracle elected to assert in the summer of 2010.

The devastating outcome of those reexaminations is a major success for Google and its legal team. But it can't really be blamed on Oracle's internal and external lawyers. If there was prior art because of which those patents should never have been granted in the first place, then the problem is that Sun wasn't as technologically cutting-edge as it often claimed. Theoretically, Oracle could have run a search for prior art against its own patents prior to asserting them in August 2010, but plaintiffs usually don't make as much of a related effort as high-profile defendants like Google do. Most companies overrate the value and validity of their patents until the rubber hits the road in the form of litigation.

Oracle now finds itself in a situation in which common sense clearly shows that Google didn't want to respect its intellectual property (as the Lindholm email demonstrates), but in order for Oracle to prevail in court, it must prove that Google infringes on valid intellectual property rights belonging to Oracle. The patent part of the case appears pretty much lost for Oracle in the near term. Maybe the USPTO Board of Appeals for Patent Appeals and Interferences or the Court of Appeals for the Federal Circuit will overrule the USPTO's central reexamination division on some counts, but that will take rather long. On the copyright side, Oracle must overcome Google's claim that its API-related source files aren't copyrightable. The copyrightability of API-related materials is a controversial issue. Oracle may or may not win on this count. Judge Alsup wanted the copyright trial to start in mid-April if possible, so we may find out soon.

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After Apple, Microsoft also files an EU antitrust complaint against Motorola Mobility over FRAND abuse

Less than a week after Apple's EU antitrust complaint against Motorola Mobility became publicly known, Microsoft has also filed formal competition charges against MMI with the European Commission.

With two industry leaders complaining about MMI's alleged abuse of FRAND-pledged, standard-essential patents, the prospects of formal investigations have certainly increased. Under its best practice guidelines, the European Commission will presumably make a determination on the launch of full-blown investigations within a few months. European regulators are already investigating Samsung's related conduct, which is largely consistent with what MMI is doing in Europe. When the Commission cleared Google's proposed acquisition of MMI last week, it stressed that it did not "bless[] all actions by Motorola in the past [...] with regard to the use of [its] standard essential patents". (I published the full text of European Commission Vice President Joaquín Almunia here.)

Since I follow MMI's aggressive litigation and enforcement activities in Germany closely (I watch all of the related court hearings), I can see what Apple and Microsoft are complaining about. If every owner of standard-essential patents behaved like Motorola, this industry would be in chaos, and grind to a halt. Just in the field of wireless telecommunications standards, there are hundreds of essential portfolios, and Motorola's assertions also include related technologies such as the H.264 video codec.

Standard-essential patents aren't powerful because of their technical merits. Most of the time they aren't particularly innovative. They're just critical because they cover mandatory parts of standards. That's the only reason they can't be worked around once they are part of an industry standard. It's key that the owners of such patents act responsibly, and if some of them don't, antitrust intervention is needed.

I'm profoundly concerned about the new and growing phenomenon of "FRAND abuse tourism": companies like Samsung and Motorola start litigation in places like Germany only because they see better chances of winning injunctions based on standard-essential patents than, for example, in the United States. As a European consumer, I don't want to be held hostage by companies that use industry standards as a nuclear weapon and restrict choice. As a European citizen, I'm reasonably confident that the Commission will make those companies (and countless others who are watching these high-profile smartphone cases and harboring similar plans) realize that Europe is not a good destination for FRAND abuse tourism.

Motorola has already won and enforced against Apple an injunction based on a standard-essential patent. The Mannheim Regional Court will rule on another Motorola lawsuit over the same patent (but against a different Apple legal entity) and on a Motorola video codec patent lawsuit against Microsoft in April. I don't dispute any company's right to defend its intellectual property vigorously, but when standard-essential patents are involved, there must be clear limits.

Apple and Microsoft have definitely enhanced their credibility on the issue of standard-essential patents by making concise and clear statements on how such patents should be used. Two weeks ago, I published a letter that Apple had sent to ETSI, a major European standards body, in November 2011, and a subsequent letter from Cisco in support of Apple's position. That same day, Microsoft made clear that it won't seek injunctions based on standard-essential patents. The United States Department of Justice took note of the fact that Apple and Microsoft spoke out clearly on this issue while Google was beating around the bush:

"During the course of the division’s investigation, several of the principal competitors, including Google, Apple and Microsoft, made commitments concerning their SEP licensing policies. The division’s concerns about the potential anticompetitive use of SEPs was lessened by the clear commitments by Apple and Microsoft to license SEPs on fair, reasonable and non-discriminatory terms, as well as their commitments not to seek injunctions in disputes involving SEPs. Google’s commitments were more ambiguous and do not provide the same direct confirmation of its SEP licensing policies."

I had voiced very similar criticism of Google's letter to standard-setting organizations (I also did a follow-up post on additional ambiguities that I identified after my initial analysis).

Google will probably be in control of MMI soon. Google itself is, according to media reports such as this FT story, going to receive a Statement of Objections from the European Commission spanning more than 400 pages, just relating to Google's conduct in the search and online advertising markets. Google should think hard about whether it wants to get another 100- or 150-page Statement of Objections at some point relating to standard-essential patents. Abidance by competition rules may be a much better choice.

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Once again, confusion and misinformation about Oracle's damages claims against Google abound

Over the last eight months, there has repeatedly been speculation about the amount of Oracle's damages claims against Google.

Unfortunately, some of the numbers that were presented as reliable facts were not even speculation but simply the result of fundamental misconceptions. The latest round of reports on what some believe is a huge reduction of Oracle's claims once again reflects that most of the people who talk about these issues don't even make a good-faith attempt to understand them.

There has probably been some reduction, but it's most likely much less than some people thought.

The challenge here has always been (and still is) that only a very few people who are directly involved with that litigation have actually seen the different damages reports (by now there are three of them) submitted by Oracle's expert, Professor Iain Cockburn. And those who have seen are not allowed to speak out, without exceptions. All those of us who are free to talk about this have access to only a limited subset of the information. We can glean data points from publicly-accessible filings in which the parties make reference to those reports. But then we must also be realistic and acknowledge what we don't know.

By now, everyone has had the opportunity to learn that such data points can be very incomplete, and potentially misleading if taken out of context. I contradicted almost everyone else reporting on this case when I said that the second Cockburn report didn't necessarily arrive at a substantially lower damages figure than the first -- and last month I was proven right (the number had even gone up from $2.6 billion to $2.7 billion). But there are people out there on the Internet who simply don't want to learn. Their approach comes down to this: why even try to think if you can talk anyway?

If you read in recent days that Oracle allegedly "sharply reduced the amount of damages" it seeks, let me tell you that such bold claims are, once again, not based on facts or accurate analysis. They quote from a letter Google sent to the court on Friday, February 17. That letter doesn't claim or pretend to summarize the entire third Cockburn report. It just focuses on certain legal questions.

No one can rule out that Oracle reduced its damages amount. But the thing is that Google's February 17 letter falls far short of anything that would prove it. Adding up the numbers cited in that letter paints an incomplete picture, and comparing a subset of the claims to the total of what was demanded in the past is a moronic apples-to-oranges comparison.

In a September 22, 2011 letter, Oracle outlined three key elements of its damages claims (referring to its second report):

1. Patent Damages

2. Copyright Actual Damages

   (calculated alternatively with a License Method and a Lost Profits Method)

3. Copyright Infringer's Profits

The Google letter of February 17, 2012 that gets some people so very excited says that the third Cockburn report arrives at "final patent-damages figures of $17 million to $57.1 million under the group and value approach and at least $43.7 million under the independent significance approach." Google's letter also refers to "alternative total damages figures for both patent and copyright infringement [...] between $52.4 million and $169 million under the group and value approach [...] and [...] at least $129.2 million under the independent significance approach."

Any numbers that are preceded by the words "at least" can't be interpreted as specific demands, and therefore can't be compared to specific numbers or to the higher ends of ranges. Those are lower ends of ranges, with the higher ends not being specified at all.

In the September 22, 2011 letter, Oracle referred to patent damages between $176 milllion and $202 million, and copyright actual damages of either $102.6 million or $136.2 million (two alternative calculations). The latest figures for those particular elements of the damages claim appear somewhat lower -- but not necessarily much lower -- than the corresponding numbers back in September. We're talking about "a couple hundred million dollars" either way.

I have no idea what Oracle's third damages report demands on the basis of other theories than those. But unlike some others, I acknowledge that there are things we don't know and can't know. Those claims can have components that are not mentioned in each letter. For example, Oracle's demand for a disgorgement of infringer's profits (provided that copyright infringement is proven) may have been dropped but it may also still be in Oracle's report. The fact that Google's February 17, 2012 letter doesn't mention it certainly doesn't prove that Oracle has given up on that one.

When Oracle was allowed to produce a third damages report, Judge Alsup primarily insisted on apportionment: he wanted Oracle to break down the commercial value of each of the asserted intellectual property rights all the way down to the level of a single patent claim. Apportionment isn't necessarily a reduction. It can indirectly have that effect in the end (if some claims aren't deemed valid or infringed), but you can apportion something without reducing its total value.

I saw Google's letter back on Friday, but in my opinion, there was far too much uncertainty here to speculate about what Oracle's damages claims are at this stage. Again, some reduction is likely, and it would make sense for Oracle given its set of priorities. Last month, Oracle proposed to take the copyright part of the case to trial without a third damages report being put in place at that stage. Those damages claims are important enough that Oracle spent money on the creation of a third damages report, but they aren't nearly as important to Oracle as a swift resolution of the question of whether it's entitled to an injunction against Android.

Lastly, let me mention that Oracle withdrew the sole remaining claim of the '476 patent. Oracle is still asserting claims from five out of the original seven patents. A certain degree of streamlining ahead of trial is nothing unusual in such multi-patent cases. We may even see some more of this before this case goes to trial. But as I mentioned before, Oracle's set of priorities is clear, and last month's proposal to take the copyright part to trial very soon but potentially stay the patent infringement claims for an extended period of time shows what Oracle is now focusing on. In light of that, its withdrawal of another patent comes as little surprise (if any at all).

This case has its challenges for Oracle, but it hasn't fallen apart. Furthermore, it's possible that Oracle still has many other Java-related patents that it can assert in a subsequent lawsuit, but if it did so at this stage, there could be a huge delay of the resolution of the ongoing litigation. I once heard that Sun claimed to hold about 2,000 patents related to Java. Even if that number was an overstatement, we're certainly talking about hundreds of patents in this area, and it remains to be seen if the seven patents that Oracle picked in August 2010 are really the only ones it believes Android infringes.

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Apple brought formal EU antitrust complaint against Motorola Mobility over FRAND abuse

Late on Friday, Motorola Mobility filed its annual report with the SEC. The following important passage starts on page 37 and ends on page 38:

On February 17, 2012, the Company received a letter from the European Commission, Competition Directorate-General, (the 'Commission') notifying it that the Commission has received a complaint against Motorola Mobility, Inc. ('MMI') by Apple, Inc. ('Apple') regarding the enforcement of MMI's standards-essential patents against Apple allegedly in breach of MMI's FRAND commitments. Apple's complaint seeks the Commission's intervention with respect to standards-essential patents.

Earlier this week, the Commission had cleared Google's proposed acquisition of MMI, but it simultaneously clarified that this was only because it did not believe the merger would make things worse. Even greater clarity was provided by a parallel statement by European Commission Vice President Joaquín Almunia, who pointed out (in other words) that merger clearance shouldn't be misunderstood as the wholesale approval of a company's past (let alone future) actions.

Apple has a three-tiered approach to MMI's conduct:

• It is trying to reach a point at which German courts won't allow any further enforcement of injunctions against Apple based on MMI's standard-essential patents (SEPs). Apple has repeatedly amended a proposal to MMI for taking a FRAND license to its SEPs. The problem is that German courts, especially in one part of the country, continually try to move the goalposts in favor of FRAND abusers and against the public interest in true innovation (SEPs are just a matter of market power, not of huge technological advance) and competition.

  It's not acceptable for Apple (and it wouldn't be good for the economy and society at large) to let FRAND-hostile judges in only one EU member state (albeit the largest one) make the whole idea of FRAND fail. There are some other policy areas in which many European countries look to Germany for guidance and where that's probably a good idea. But when it comes to case law on a FRAND defense against injunctive relief, "Made in Germany" doesn't stand for quality. Instead, it stands for anticompetitive dogmatism favoring even invalid patents over the public interest.

• Apple has recently brought an "antisuit lawsuit" against MMI in the Southern District of California. That one is about patent exhaustion and only relates to Apple products incorporating Qualcomm chips. Antitrust plays a role to the extent that MMI's attempt to terminate its patent license agreement with Qualcomm with respect to Apple as a third-party beneficiary looks like a fairly clear violation of the "ND" ("non-discriminatory") part of FRAND.

  Patent exhaustion raises difficult questions and those vary between jurisdictions. It has served Apple well against Samsung (especially in French and Italian courts), and it may work here, but MMI's approach to its past FRAND commitments must be addressed at the regulatory level regardless of whether patent exhaustion may make the issue moot with a view to the iPhone 4S and future Apple products. Also, MMI doesn't use only baseband-related SEPs: H.264 and WiFi are other standards at issue, and patent exhaustion can never solve all such problems.

• Now we know that Apple also brought a formal EU antitrust complaint against Motorola. There were no formal complaints (though presumably a fair amount of informal correspondence) on the table when the EU recently launched a full-blown investigation against Samsung. If Samsung's conduct warrants an investigation, so does MMI's in my view. I watch the litigation activity of both companies and differences are only gradual. One difference is simply that MMI has won an injunction based on an SEP, something that Samsung has so far failed to get, but if Samsung keeps asserting such patents, it will eventually also win one somewhere, I'm sure.

Apple isn't the only company that is facing MMI's aggressive quest for injunctive relief based on SEPs. A wholly-owned MMI subsidiary, General Instrument Corp., is suing Microsoft over patents allegedly essential to the H.264 video codec standard. At a trial earlier this month, it turned out that an official MMI court filing explains the value of a single SEP with the analogy of a bullet in a gun ("it only takes one bullet to kill") in the context of bank robbery.

I have no idea if Microsoft will also lodge a formal antitrust complaint against MMI with the European Commission. Microsoft brought a formal EU antitrust complaint only once so far: against Google's conduct in the online search and advertising market (in March 2011, at a time when an investigation was already ongoing). Even if Microsoft doesn't complain, Apple will certainly point the Commission to publicly-known facts about MMI's actions against Microsoft.

Motorola will now have to respond to the complaint. I am sure that Brussels will take the time it needs to understand the issue, but time is of the essence because of what's already going on, so I think a decision on whether or not MMI will be formally investigated is only a few months away. While I can't second-guess the Commission, I monitor those lawsuits and evaluate the information that surfaces in them, and on that basis, I think formal investigations are reasonably likely here.

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ITC dismisses HTC's first complaint against Apple: final ruling consistent with initial determination

After Apple brought its first ITC complaint (and an unrelated federal lawsuit) against HTC in March 2010, HTC fired back in May 2010 with an ITC complaint of its own. It was a "me, too" kind of complaint: HTC wanted to demonstrate its willingness to fight. It probably never expected too much to come out of this. Today, the ITC has closed the investigation and found no violation.

Here's some background:

In October 2011, an Administrative Law Judge made an initial determination that identified no violation of four of HTC's asserted patents. HTC had originally also asserted -- but meanwhile withdrawn -- a fifth patent.

HTC asked the Commission, the six-member decision-making body at the top of the ITC, to review the ALJ's preliminary ruling. In December, the Commission granted a review, but with respect to only one of the patents. Today's ruling terminates the investigation with respect to the sole remaining patent. HTC could appeal the ITC's final decision to the Federal Circuit, but that may not be a good use of its resources because it looks that this case is fundamentally weak.

In November, a final ITC ruling dismissed S3 Graphics' complaint against Apple. S3 Graphics' complaint was most likely motivated by Apple's action against HTC's Android-based devices. S3 Graphics and HTC are basically part of the same family of companies. At a time when it looked like S3G might win something against Apple, HTC decided to make an offer to buy S3G.

Smartphone-related patents have a very high drop-out rate at the ITC. In my observation, only about 1 out of 20 asserted patents is deemed violated. The challenges that patent holders face at the ITC have contributed to the popularity of certain German courts, especially the Mannheim Regional Court and the Munich I Regional Court, among patent plaintiffs.

One of a very few patents to have succeeded at the ITC is Apple's "data tapping" patent, the '647 patent. In December, Apple won an import ban against HTC Android devices infringing that patent. HTC's sales in the U.S. won't be interrupted: the feature was removed. HTC claims it's rarely used. I would disagree because I frequently tap on phone numbers to call people back, but there's no question that this ruling was too narrow to force HTC out of the U.S. market. Apple is hoping to broaden the technical scope of the ruling (by having at least one other patent deemed violated) through an appeal to the Federal Circuit. I actually think Apple may succeed with that effort, but it will take time.

Since all of Apple's federal lawsuits against HTC have been stayed by the United States District Court for the District of Delaware, there probably won't be any final ruling on any of Apple's claims against HTC in the U.S. in 2012. There may be some other developments in the U.S., such as a preliminary ruling on Apple's second ITC complaint against HTC (currently scheduled for early November), but I don't anticipate anything enforceable before next year except in Germany, where Apple is suing HTC over four patents (apparently two in Mannheim and two in Munich; no trial dates known yet).

Last summer, HTC brought a set of new claims against Apple, most of them relating to nine patents it received from Google for the specific purpose of suing Apple. It's too early to tell, but at the outset those claims certainly looked stronger than the complaint that was dismissed today -- whether they're strong enough is another question.

While I'm sure that Apple still plans to prove HTC's alleged wide-ranging infringement at some point and that HTC remains concerned, both parties have higher priorities than this dispute:

• For Apple, the dispute with Google subsidiary-to-be Motorola and the world-spanning ten-country court fight with Samsung are much more important battles. If, hypothetically, Apple hadn't previously sued HTC and had to choose a third Android device maker besides those two to sue today, the choice might be HTC, but it could also be Amazon at this stage.

• HTC's management is probably more concerned about market momentum than about Apple. The Taiwanese company was a rising star that made itself a worldwide brand name coming almost out of nowhere. I know many people who use HTC phones, and all of them are satisfied customers. But more recently, Samsung has absorbed pretty much all of the profits of the Android ecosystem, Amazon is heavily subsidizing its Kindle Fire, and Google will probably soon own Motorola, which will make that one a much more important force in the market than it is now. Cannibalization within the Android ecosystem is a far greater concern to HTC in the short term than Apple's patent assertions.

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Apple wins German injunction against most of Motorola's slide-to-unlock implementations

I just returned from the Munich I Regional Court, where Presiding Judge Dr. Peter Guntz publicly announced a decision in Apple's favor: most of Motorola Mobility's products were found to infringe on Apple's slide-to-unlock image patent, EP1964022 on "unlocking a device by performing gestures on an unlock image". Today's ruling is a permanent injunction that Apple could enforce at its own risk (against a bond).

The court evaluated three different embodiments. Apple won on the two that Motorola's smartphones implement. It did not prevail on the third one, which the Xoom tablet uses. That implementation is very similar to what I have on my Samsung Galaxy Note: the user has to make a swiping gesture from the inside of a circle to the outside. It requires a relatively large screen to work somewhat well, but even then it's not very intuitive. (I'm a very happy Galaxy Note user, but it has its shortcomings and the slide-to-unlock circle is one of them.)

[Update] I said that it was a "safe assumption" that Motorola would appeal this decision and it has meanwhile confirmed this intent to the BBC. [/Update] On appeal, Apple will presumably try to win on the third embodiment as well since it could be seen as covered by Apple's patent. But even with the current scope, this is largely a win for Apple that will result in a noticeable degradation of the user experience of Motorola's products.

[Update] The aforementioned Motorola statement quoted by the BBC says that "no impact" on sales is expected. There's no question that they can keep their products available by modifying them. That's why I said from the beginning that this is about a "degradation of the user experience" (see the end of the previous paragraph). If MMI wants to play it safe in Germany, it implements embodiment #3 (the slide-to-unlock circle) across its entire product range. That one was cleared by the regional court and is safe at least until the end of the appeals proceeding. But for the reasons I explained above, it's not very intuitive, and I don't think it can work well on typical smartphone screens. It remains to be seen what this workaround looks like. If I am positively surprised and convinced that they have implemented a workaround that does not come with a noticeable degradation of the user experience, then I'll report on that finding here. For now, the shortcomings of embodiment #3 and the fact that MMI will appeal indicate that Apple made some progress today. After all, it's the first ruling that Apple has won against MMI, and most likely, several more of them will follow this year. [/Update]

Motorola's German business is rather small so far. But MMI is in the process of being acquired by Google, and after the acquisition, Motorola will likely gain market share everywhere at the expense of third-party Android device makers. Google will certainly treat Germany as a priority market. Furthermore, Apple is asserting the same patent as well as a related utility model against Samsung in Mannheim, and can always bring claims against more Android device makers in this jurisdiction. Today's ruling is significant bad news for Android at large, and Google.

After losing two Mannheim cases against Motorola, Apple's German counsel in the Motorola cases, the high-profile Bardehle Pagenberg firm (which is a leader in Germany in both patent litigation and the prosecution of patent filings), may have achieved a trend reversal. Last Friday, a third Motorola lawsuit was dismissed, and now Apple has prevailed on its first offensive claim against Motorola in this country.

Germany has become a key battleground because of the size of the market, the speed of the process, and due to the fact that infringement findings entitle patent holders to injunctive relief. The fact that hardly any smartphone-related claims have succeeded at the ITC in recent years has made U.S. patent litigation dependent on federal courts. German courts move roughly twice as fast as the ITC, but the gap between them and U.S. district courts is even wider.

In December, I watched and reported on the trial related to today's decision. As far as today's infringement findings are concerned, they are not at all surprising in light of the trial. However, the court appeared somewhat inclined to stay the case pending the resolution of a parallel nullity (invalidation) proceeding. It appears that Apple's post-trial brief made a persuasive case for the likelihood of this patent being valid. German regional courts stay infringement cases only if they see a high probability of invalidity (similar to the "clear and convincing evidence" standard in the United States).

In this case, Motorola was hoping to benefit from the fact that a Dutch judge had concluded (though only in connection with the denial of a preliminary injunction against Samsung) that this patent was invalid for obviousness over a combination of two pieces of prior art. Within the EU, courts do take note of such decisions by courts in other member states, but they have the right to reach their own conclusions. In this case, the Munich court decided differently than The Hague.

In two weeks, Apple may win another Munich decision against Motorola, over a photo gallery page-turning patent. That ruling was also scheduled for today, but postponed. Also in early March, one of Apple's slide-to-unlock cases against Samsung will be adjudicated in Mannheim.

As a side note, the Munich court not only handed down a ruling today but also held an early first hearing (the second will be the equivalent of a trial) to discuss another German Microsoft case against Motorola Mobility that I wasn't previously aware of. The timing of today's first hearing suggests that the complaint was brought roughly three months ago. In that litigation, Microsoft is asserting EP1040406 on a "soft input panel system and method" against Motorola's Android-based devices. I listened to most of the introductory part. I will attend the trial and then report in more detail. Those first hearings are very preliminary.

Today's ruling and the revelation of this new Microsoft lawsuit show that the noose keeps tightening around Android's neck in many ways. With more and more patents being asserted against Android in different courts, Google needs to come up with a better way to address its intellectual property issues than possibly trying to reach a state of mutually assured destruction on the basis of FRAND-pledges standard-essential patents, a kind of misconduct that antitrust regulators won't tolerate because standard-essential patents are a fundamental issue, unlike Google's desire to get away with infringement.

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Last week's Apple-Samsung lawsuit involves eight patents, 17 products -- bid for Nexus ban is based on only a subset

On Saturday, I reported on Apple's request for a U.S. preliminary injunction against the Samsung Galaxy Nexus (co-developed by Google) based on four patents. At the time, the main complaint was not publicly accessible, but I expected it to involve a broader set of allegations. I have now downloaded the full complaint. These days I'm a bit slow, but trust me, that's only temporary :-)

For the preliminary injunction bid, Apple focused on only one out of 17 products (all of them are listed further below), and on four out of eight patents.

It's also worth noting that Apple's complaint is very concise. Last year's complaint against Samsung had a lot of (very well-crafted) narrative on Samsung's alleged copying of Apple's products. The new complaint doesn't have to repeat much of that. It basically just explains that the alleged problem has exacerbated, and brings new claims.

List of four more patents (that are not at issue in the preliminary injunction bid)

• U.S. Patent No. 6,847,959 on a "universal interface for retrieval of information in a computer system"

  The related application was filed 12 years ago, and according to TUAW, Apple's Spotlight search technology implements it.

  Search patents asserted by Apple against Android must be of particular concern to Google. Two of the four patents asserted in both this complaint and the preliminary injunction bid are search-related: one on Siri-style search and another one on word completion. The Siri patent, in fact, has the same title as this one; it's an evolution.

• U.S. Patent No. 8,014,760 on "missed telephone call management for a portable multifunction device"

  My first understanding of the claims is that this patent covers a list of missed calls with interactive elements (buttons etc.) that provide direct access to functions (call back immediately or bring up contact card information).

  The related application was filed in 2007.

• U.S. Patent No. 5,666,502 on a "graphical user interface using historical lists with field classes"

  I haven't yet looked at this in full detail, but my first impression is that the list of potentially relevant, previously used URLs presented by browsers as a user enters the first characters of a URL is the most well-known implementation of this patent. If Apple enforced this one successfully against Chrome, it might create serious problems for Google.

  The related application was filed in August 1995.

• U.S. Patent No. 7,761,414 on "asynchronous data synchronization amongst devices"

  This appears to cover multi-threaded synchronization that would allow data to be synchronized in the background even though the relevant database is being edited by the user at the same time.

  The related application was filed in 2007.

I haven't seen those patents asserted by Apple against other companies yet. Apple's complaint states that four of the eight patents asserted in the new complaint "were issued after Apple filed the Earlier Case {against Samsung]". Those are four patents with a number above 8,000,000.

I don't think that the patents listed above are, on average, less strong than those that Apple asserts for both purposes. For the preliminary injunction bid, Apple had to focus on patents that can succeed on the fast track, where the judge only has limited time to understand a patent and the parties' related arguments.

List of identified products

Apple's infringement allegations are not limited to the following list of products, but the fact that Apple names them in the complaint certainly makes them the immediate target:

• Smartphones:

  • Galaxy S II Skyrocket

  • Galaxy S II Epic 4G Touch

  • Galaxy S II - T-Mobile

  • Galaxy S II - AT&T

  • Galaxy Nexus

  • Illusion

  • Captivate Glide

  • Exhibit II 4G

  • Stratosphere

  • Transform Ultra

  • Admire

  • Conquer 4G

  • Dart

• Media players:

  • Galaxy Player 4.0

  • Galaxy Player 5.0

• Tablet computers:

  • Galaxy Tab 7.0 Plus

  • Galaxy Tab 8.9

This lawsuit is going to be huge.

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