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Latest Patent Volley Against Apple Could Boost Google-Motorola Merger Chances

Latest Patent Volley Against Apple Could Boost Google-Motorola Merger Chances

It may be true that Google approved Motorola's latest patent-infringement suit against Apple, as IP expert Florian Mueller has suggested. If that's the case, it might not mean much -- the suit is largely an extension of a previous legal action. However, it could help Google win European approval of its acquisition of Motorola, by showing that Google and Apple would be competitive following the proposed merger.

By Erika Morphy
01/26/12 12:49 PM PT

Motorola Mobility has filed yet another lawsuit accusing Apple of infringing several of its patents for wireless antennae, software, data filtering and messaging technologies.

The suit, filed in the U.S. District Court for the Southern District of Florida this week, follows a similar lawsuit Motorola filed in another Florida court, alleging the same patent violations.

In the new lawsuit, however, Motorola is seeking injunctions against the sale of newer products -- namely, the iPhone 4S and the iCloud remote storage service.

What is interesting about this case is that it must have been greenlighted by Google, which is seeking to acquire Motorola Mobility, according to IP expert Florian Mueller's FOSS Patents blog.

The merger agreement Motorola entered with Google prohibits Motorola from taking this type of legal action without Google's consent, Mueller noted.

Apple and Motorola did not respond to our request for further details. Google declined to provide further details.

Practicing to Go After Apple

The new suit, if nothing else, illustrates that Google plans to use the Motorola patent portfolio aggressively when and if it closes the acquisition, Peter Toren, a partner at Weisbrod, Matteis & Copley, told the E-Commerce Times.

"It is clear that Google intends to go after Apple with the Motorola portfolio," he said.

Previous Arguments Extended

It may be a mistake to jump to the conclusion that Google was a driving force behind the new suit, Joseph R. Englander, a partner with Shutts & Bowen, told the E-Commerce Times.

"While it has not been confirmed that Motorola has been forbidden to take action against Apple without Google's blessing, it can be argued that the new suit is merely an extension of the previous case," he noted.

The reason for the new suit is in large part because the judge in the prior case denied a petition to include the iPhone 4S and the iCloud package as infringing goods and services, Englander said.

Convincing the EC

Another reason for the new suit, according to Englander -- not the main one, as he does see it as primarily a procedural extension -- is that it could help convince the European Commission to approve the merger between Google and Motorola Mobility.

"There are already comments before the Commission stating that the merger would hurt competition," he pointed out.

"Since this patent infringement case could be considered a partnership between Motorola and Google, if that case is seen as a fair fight, then Google can argue that the merger would be good for competition," Englander explained.

"Parity in the state of the patent litigation would indicate apparent parity in the post-merger market for smartphones and remote storage services," he said. "This parity would indicate that Google and Apple would be competitive after the merger."

At bottom, though, the new lawsuit was indeed filed as the result of a setback that Motorola experienced in the other case, Will Trueba, a founding partner with the law firm of Espinosa Trueba, told the E-Commerce Times.

"In many federal courts, in order to streamline the issues for the case, the court will order the parties to disclose details regarding the particular 'claims' of the patent that are infringed, and which of the defendant's products infringe those patent claims," Trueba noted.

"In the prior lawsuit, Motorola attempted to supplement those infringement contentions," he said, "but the court denied Motorola the ability to amend its infringement contentions. Thus, they filed a new suit that included the new allegations of infringement in order to seek relief for those claims not allowed in the prior suit."

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