Original URL: http://www.theregister.co.uk/2012/11/13/microsoft_motorola_sep_trial/

Microsoft v Google judge could shape the world in new patent punchup

Redmond: Damn Oompa Loompas are eating all the chocolate

By Brid-Aine Parnell

Posted in Law, 13th November 2012 16:55 GMT

The next case that could finally tell tech companies how much a standards-essential patent is worth is about to kick off in the US.

Microsoft filed a lawsuit in 2010 that challenges Google-owned Motorola over the its use of standards-essential patents (SEP) in court cases. The trial starts today at 9.00 PST (17.00 GMT).

Apple tried to do the same with Googorola in a case that got thrown out by the judge a week ago, when the fruity firm said it wouldn't stick with the court's decision on a patent rate unless the rate was less than $1.

Microsoft and Apple have tried to argue that Samsung and Motorola shouldn't be allowed to use their SEP in court cases. Both European and US authorities have also been investigating whether any firm should be allowed to get the law involved in SEP but haven't come to any conclusions yet.

SEP-holders say they should be able to use the law if companies refuse to agree on a licensing deal for using their IP.

Motorola has tried to get 2.25 per cent per device out of Apple and Microsoft, an amount that's widely considered too high and which both firms have refused to pay.

Microsoft already gets licensing fees from nearly all Android manufacturers for its patents and is suing Moto for infringing these. Motorola has countersued with its SEP, spurring this suit, where Redmond is accusing the mobile-maker of violating its responsibilities to standards organisations to license the patents at fair, reasonable and non-discriminatory rates (FRAND).

Microsoft says it will pay $1.21m a year to Motorola for a licence, but claims that Motorola's demand for 2.25 per cent would add up to billions every year. The judge will now have to determine a rate, or at least a way to come up with a rate, in the next few weeks. The decision could help other companies get what they want out of FRAND negotiations. ®