Apple 2.0

Covering the business that Steve Jobs built

Apple goes after Motorola and Google with legal guns blazing

February 12, 2012: 3:42 AM ET

Seeks billions in damages and an injunction against the flagship Android 4.0 phone 

One measure of how quickly events are unfolding in the smartphone patent wars is the number of typos appearing in Florian Mueller's FOSS Patents dispatches. The German-born blogger's coverage of the "thermonuclear war" Steve Jobs promised to unleash against Google's (GOOG) Android operating system are closely read by all sides in the cross-continental disputes, and lately he's hardly had time to breathe, never mind spellcheck.

"There's just too much going on these days," he wrote in the second of two long reports filed Saturday, "and contrary to popular misbelief (which I've seen on Twitter), I do sleep."

As Mueller sees it, the subject of his two latest reports, a pair of federal lawsuits filed by Apple (AAPL) in two California district courts, are signal events that could turn the tide in Cupertino's favor.

Galaxy Nexus

In the Northern District: In the first suit, Apple is asking for a preliminary injunction against the Galaxy Nexus -- the official "Ice Cream Sandwich" lead device developed by Samsung in close cooperation with Google -- based of four court-tested "high-powered" patents that Mueller dubs the Four Horsemen of the Apocalypse.

Google's decision to keep using one of them -- the so-called "data detector" patent -- in the latest version of Android, even after the U.S. International Trade Commission ruled that an HTC Android phone had infringed it is, in Mueller's words, "unfair vis-à-vis HTC..., snubs Apple, and shows disregard for intellectual property in general and the ITC in particular. This is a case of willful, extremely reckless infringement."

In the Southern District: Here Apple is trying to shut down Motorola Mobility's (MMI) legal strategy -- endorsed implicitly and "irrevocably" last week by Google, which is about to purchase MMI -- of blocking sales of iPhones in Germany on the grounds that they infringe industry-standard broadband patents that Motorola pledged years ago to license to all comers on so-called FRAND (fair, reasonable and non-discriminatory) terms. Motorola licensed the patents to chipmaker Qualcomm (QCOM) and that license would normally extend, by the principle of "patent exhaustion," to a company like Apple that buys Qualcomm chips.

But in an exchange of letters revealed in Apple's suit, Motorola asked Qualcomm "to terminate any and all license and covenant rights with respect to Apple, effective February 10, 2011."

Mueller writes that "even though Qualcomm may benefit from weak patent exhaustion defenses in other situations because it is a major patent holder who could do a lot of 'double-dipping', it appears that it supports Apple, and I don't think that's just because Apple is a customer. I think it's most likely because MMI's discriminatory termination relating to only Apple is, quite probably, unjustifiable and ineffectual."

"If it's true that patent exhaustion is a valid defense in Apple's favor," Mueller concludes, "Google-MMI is playing with fire here." Apple was forced to temporarily remove the iPhone 3G and 4 from its German online store based on Motorola's FRAND complaint, and now sales of the iPhone 4S could be at risk. The company is seeking damages that could run to many billions of dollars.

Both cases are getting extensive coverage in the trade press -- for example at AppleInsider here and here -- but for their detail, deep expertise and passion, we recommend Mueller's reports, typos and all. See here and here.

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About This Author
Philip Elmer-Dewitt
Philip Elmer-DeWitt
Editor, Apple 2.0, Fortune

Philip Elmer-DeWitt has been following Apple since 1982, first for Time Magazine, and now on the Web for Fortune.com.

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