updated 06:50 pm EDT, Wed May 15, 2013
Google believes FTC consent decree restrictions overstated
A Google-made appeal filing in the Motorola Mobile versus Apple smartphone patent trial in Judge Richard A. Posner's court has been made public. Controversially, the Google-owned Motorola claims that the still-pending FTC consent decree it agreed to does not prevent it from seeking an injunction against Apple products -- claiming that in refusing a 2.25 percent fair, reasonable, and non-discriminatory (FRAND) license, Apple is unwilling to negotiate in good faith for use of the patent.
In the 41-page filing, Google claims that "Apple has been intransigent since it began its infringement in 2007" and that "Apple has gained considerably from its intransigence, while Motorola still has nothing to show for the contributions it made to the standards that have enabled much of the functionality of Apple's devices" despite having not proven that Apple has infringed any of its patents in any US venue.
Google apparently believes that the US Federal Trade Commission is incorrect in stating the reach of the consent order. In the filing, the company states that "if an injunction is granted, then Google understands that it would need to go through the steps outlined in the consent decree in order for the injunction to actually issue." This statement by Google is splitting hairs, suggesting that obtaining an injunction is a different process than seeking one in the first place, believing that the consent decree only applies if Google is granted an injunction by a judge.
Disregarding Google's belief that Apple is an "unwilling licensee" by refusing to pay a steep 2.25 percent licensing fee per device, patent analyst Florian Mueller believes that while Google does have the right to seek injunctive relief on FRAND eligible patents, the exceptions to the FTC consent order don't apply in this case, stating that "I can't see a clear indication in the FTC consent order that it's fine to 'seek' injunctive relief as long as you don't succeed (and 'obtain' it) and, subsequently to succeeding, 'enforce' it."
Mueller notes that the FTC agreement isn't carved in stone, saying that "should there be any ambiguity about this, then the FTC still has the opportunity to provide more clarity -- in the consent order itself (which has yet to be finalized) and not just in a public statement that, as Google accurately notes, can't alter the agreement."
Posner originally condemned Motorola in his original dismissal ruling for pursuing the aforementioned 2.25 percent royalty on what he finds to be a FRAND-eligible patent as an unprovable and speculative figure. He also belittled Motorola's claim that the one patent alone was worth 40 to 50 percent of the value of the entire portfolio of 100 patents related to the one it was suing over. Both Microsoft and Apple have claimed that Google is not complying with the FTC ruling by failing to retract FRAND patent injunctive relief requests.