here's the link:
http://westlawnews.thomson.com/National_Litigation/News/2010/11_-_November/Microsoft,_Motorola_dispute_points_to_growing_tech_patent_war/
here's what the link says - look for the the cool rockstar husband I'm not mentioning
NEW YORK, Nov 11 (Reuters Legal) Motorola upped the ante in its patent battle with Microsoft on Wednesday by filing a suit accusing its one-time ally of violating sixteen of its patents that it says are used in a wide range of Microsoft products.
The suit, filed in Wisconsin federal court, comes a day after Microsoft launched a preliminary strike against Motorola by asking a court to declare that the phone maker was demanding excessive royalties for the use of the patents.
This week's lawsuits, which reflect a growing wave of patent litigation among technology firms, concern a group of Motorola patents which cover technologies related to WiFi connectivity and video decoding. Microsoft says the patents affect its Xbox gaming console and "other fields" like Windows 7 and Windows 7 Smart Phone. The lawsuit by Motorola refers to additional products such as Exchange, Outlook and Bing maps that allegedly contain the patented technology.
Relations between the two firms that have partnered on various initiatives have been deteriorating rapidly. Last month Microsoft filed a suit that accused Motorola of using the software giant's patented technology in its Android smart phones. Many in the tech community have interpreted the most recent dispute as retaliation by Motorola for the Android suit.
The litigation that was filed this week turns on what is a fair royalty rate for Motorola's patents. Microsoft claims that Motorola breached commitments it made to standards organizations to license the patents at a reasonable rate.
According to Microsoft, Motorola is demanding "excessive and discriminatory" royalty payments that are based on the overall value of the Microsoft products. Microsoft argues the patent royalties should instead be valued on only the parts of the products covered by Motorola's patents.
The debate is similar to asking whether the value of an intermittent windshield wiper patent should be calculated on the value of the wiper alone or on the overall car.
If Motorola is correct that the royalty fees should be based on the overall value, the price of the Xbox and other Microsoft products could increase significantly.
Mark Lemley, a Stanford University law professor and prominent patent authority, says that Microsoft is probably right in theory but that not may not help the company if the case comes before a jury. A patent claim that demands, say, one per cent of total sales has a lot of "jury appeal" even if the patented technology contributes far less value to the overall product, Lemley said.
Both Microsoft and Motorola have refused to comment about the amount of royalties in dispute. In a short statement, Motorola said it made a "fair offer" and that it would take "all necessary steps" to protect the company's intellectual property.
The Microsoft and Motorola litigation coincides with what appears to be a new willingness among technology companies to sue each other over intellectual property rights. Typically, major players in the industry instead use their patents in a defensive fashion that Lemley compared to the Cold War doctrine of mutually-assured destruction.
"Normally what happens is that companies kind of exist in an uneasy truce," where companies refrain from filing patent infringement suits against each other, Lemley said. "In the smart phone industry, we're seeing that truce collapse."
He added that the recent wave of smart phone lawsuits may trickle into other sectors such as gaming because the intricate nature of phone technology means a wide variety of companies can be drawn into litigation.
Patents allow companies to sue infringers for money and also to seek injunctions that force them to stop selling their products altogether. Lemley predicted that Microsoft and Motorola will ultimately settle their differences to avoid facing an injunction.
"The nightmare scenario for the companies is that both lose their patent suits and each shuts the other down," he said. "That's why these fights may be a flash-in-the-pan with a strategic purpose. The parties will probably come to their senses in a business manner and find a way to co-exist."
The cases filed on Wednesday are Motorola Mobility Inc v. Microsoft Corp, U.S. District Court, Western District of Wisconsin (Madison), Nos. 10-699 and 10-700. Motorola Mobility is represented by Scott Hansen of Reinhart Boerner Van Deuren in Milwaukee and Jesse Jenner and
Steven Pepe of the New York office of Ropes & Gray. Microsoft is represented by Shane Cramer, Arthur Harrigan and Christopher Wion of Danielson Harrigan Leyh & Tollefson in Seattle alongside John McBride, David Pritikin, Richard Cederoth and Douglas Lewis of the Chicago office of Sidley Austin and Brian Nester and Kevin Wheeler of Sidley's Washington, D.C. office.
The royalties suit filed by Microsoft on Tuesday is Microsoft Corp v. Motorola Inc, U.S. District Court, Western District of Washington (Seattle), No. 10-01823. Microsoft is represented by Shane Cramer of Danielson Harrigan Leyh & Tollefson in Seattle. It could not immediately be determined who is representing Motorola.
The Android case filed on Oct. 1 is Microsoft Corp v. Motorola Inc, U.S. District Court, Western District of Washington (Seattle), No. 2:10-CV-01577. Microsoft is represented by Richard Cederoth, Douglas Lewis, John McBride and David Pritikin of Sidley Austin's Chicago office; Brian Nester and Kevin Wheeler of the firm's Washington, D.C. office; and Arthur Harrigan and Christopher Wion of Danielson Harrigan Leyh & Tollefson in Seattle. Motorola is represented by Edward DeFranco of Quinn Emanuel in New York, David Nelson of Quinn's Chicago office, Charles Verhoeven of Quinn's San Francisco office alongside Lynn Engel and Philip McCune of Summit Law Group in Seattle. (Reporting by Jeff Roberts and Terry Baynes)
