16
Nov
motorola-logo-big

After the dismissal of two of its cases against Motorola - one in Wisconsin, one in Illinois - Apple hasn't exactly been on a roll when it comes to Google's newly-purchased hardware arm. Motorola, too, hasn't done very well, with its own counterclaims in the same Illinois case also being dismissed, and by making an unexplained last-minute withdrawal of a major ITC case it was filing against Cupertino.

At the time, my first instinct when Motorola withdrew its software patent case against Apple was "settlement talks are on the table." While today's news still doesn't shed too much light on that particular event, it comes with its own bright spots of hope. According to filings that happened during the lead up to the now-dismissed Wisconsin case, Apple and Google's legal counsels were hammering out an arbitration agreement. So, what in the heck is arbitration?

Arbitration is one part court case, one part private settlement negotiation, and has become rather popular in the US in recent decades. The massive civil case load affecting most federal courts has made arbitration an extremely appealing option for judges looking to send parties away from the courtroom, and toward reconciliation. Arbitration is faster, the result usually more mutually agreeable, and the cost generally lower to the parties involved.

While I won't get into the niceties of American arbitration, suffice to say, it has all of its own intricacies, complexities, and rules that make judgments (known as "awards") issued in arbitration hearings binding in most courts. Much like a settlement, an arbitration award can be legally enforced (if the arbitration is "binding arbitration") should one party break their end of the deal down the line. The difference between arbitration and a lawsuit, however, is that both parties must agree to arbitrate the dispute - whether as a contractual obligation, or through mutual consent.

So, why would Google (Motorola) and Apple want to arbitrate their dispute over patents? That's actually a pretty good question, one to which the answer isn't clear. Typically, when two parties seriously consider the possibility of engaging in binding arbitration, they're at a point in their disagreement where it's not so much a matter of the merit of the claims, but how much one party or another should be paying at the end of the day.

Motorola's standards-essential patents are undoubtedly strong legal tools. Apple has yet to convincingly discredit Motorola's assertion that it infringes those patents, and while it has offered up tiny amounts of royalties for them, Apple was continuing to pursue a finding of non-infringement in its now-dismissed Wisconsin case. So, what exactly have the parties said? First, in a filing earlier this week, Google's General Counsel Kent Walker said:

“We have long sought a path to resolving patent issues and we welcome the chance to build on the constructive dialogue between our companies ... While we prefer to seek a framework for a global (rather than piecemeal) resolution that addresses all of our patent disputes, we are committed to reaching agreement on a license for our respective standard-essential patents."

Apple's counsel then said this in a filing just yesterday:

“Apple is also interested in resolving its dispute with Motorola completely and agrees that arbitration may be the best vehicle to resolve the parties’ dispute."

Holy cow - did you just read what I did? Apple is also interested in resolving its dispute with Google completely. This is good news. And let's not forget, Apple just settled with HTC on Saturday, so they're in the settling mood, if you will.

A broad licensing agreement with Googlerola (MotoGoog?) would have significantly wider implications than a settlement with HTC, and that's entirely because Google's name is now in the mix. By settling with Apple through Motorola, Google would signal to the last major holdout - Samsung - that settlement is indeed an option.

While Google has made a few amicus (supporting) filings as a part of the upcoming Samsung v. Apple case in California, scheduled for trial in 2014, it rather carefully avoided commenting on or getting involved in the first spat between the two that ended in a billion-dollar verdict. That lawsuit was far more about Samsung's aesthetic choices in regard to its software and hardware than it was about features or functionality. The next lawsuit is focused squarely on software, with patents on universal search, "data tapping," and others coming into play.

Were Moto-Google to settle disagreements over similar patents (possibly some of the same exact ones) with Apple, sympathy for Samsung would almost certainly wane. As something of a dark horse when Apple filed its original lawsuit back in 2010, many people were willing to cheer for Samsung as "standing up" to Cupertino's bullying. But if HTC and Motorola both end up settling out with Apple, Samsung's position as a "defender of innovation" will become increasingly difficult to defend as anything but obstinance in the face of a bitter rival. And let's not forget, smaller manufacturers like LG, Sony, and ZTE have managed to avoid such entanglements entirely.

I, for one, look forward to the day we can put these patent wars firmly behind us.

via Bloomberg

David Ruddock
David's phone is an HTC One. He is an avid writer, and enjoys playing devil's advocate in editorials, imparting a legal perspective on tech news, and reviewing the latest phones and gadgets. He also doesn't usually write such boring sentences.

  • abhisahara

    Thanksgiving !!

    • http://twitter.com/misterE33 Mr E

      +1 Can someone photoshop the Motorola and Apple logos to wear pilgrim and native american outfits? I'll give you all of my day's internet points :)

      • fixxmyhead

        your internet points are worthless

        • QwietStorm

          And your "point?"

  • Dima Aryeh

    This is.... unsettling

  • Asphyx

    Well at the end of this Google will most likely have gotten everything they wanted from the buying of Moto.
    As for the difference between lawsuit and arbitration, The main difference is both sides put thier requested settlement on the tablein arbitration and make a case for those terms and if you ask for too much while the other seems more reasonable it's very easy to lose the case and be forced to agree to the other side's terms.
    It better as far as both sides have to abandon being too greedy and asking for too much or offerring too little because it might be judged unfair and then the other side wins.
    In a lawsuit you can ask for the moon and lose nothing as the worst that happens is they reduce the amount from what you asked for which is why they ask for the moon in the first place.
    I think it's good for Google to get Apple lawsuits out of the way so they can focus on what they do best, innovation. I also think that Apple is starting to see the weakness of losing Jobs and now that they had that bad apology ridden and management shaking Maps fiasco which has also resulted in thier stock price plummeting I think they are starting to get the idea that big friends can be good for them and cheaper in the long run than trying to re-invent someone else's wheel that doesn't really need re-inventing and could cost you if you try and fail the way they did with thier maps.

  • gk1984

    Google had said they wanted to see an end to these stupid patent wars a while ago. Perhaps Jobs' war on Android isn't viewed the same by Cook and the rest of Apple. Or at least, don't think it's worth every penny of Apple's like Jobs did.

    Is it me or would Steve Jobs be rolling around in his grave if he had seen what Apple has done since he passed? Maps, two iPads within a few months of each other, a half-assed iPad Mini, and now truce with the "enemy" as he would have seen it. But I'll take the truce. I welcome innovation and that can be further progressed with a truce.

  • http://www.facebook.com/vivecuervo7 Isaac Dedini

    Googorola.

  • sccarlin

    The author is utterly wrong about the nature of arbitration. It has nothing to do with, and is not "part", settlement negotiations. He is obviously thinking of mediation, which is a non-binding settlement effort without a trial or any rulings by any third party. Arbitration, on the other hand, is a process with a trial infront of non-judges. It result in a ruling and a judgment, just like in court. Also, while it is sometimes faster, the arbitrators are paid by the hour, and have no incentive to "speed things up". Arbitration is also no less expensive than court litigation. And since there is virtually no right to appeal an arbitration award, the parties are putting their fate in the hands of people who may or may not apply the law, because failing to do so is NOT a basis for vacating an award. In short, arbitration sucks, especially when complicated issues are involved.

    • hot_spare

      Interesting.. Good information. I was wondering what actually is arbitration and how different it is from a normal court battle.

    • DCMAKER

      arbitration has to follow US law so i don't know what your talking about because if it doesn't follow US law than it can't be held in court which means the process would be a waste

  • http://twitter.com/ToysSamurai Toys Samurai

    One thing for sure, though. If Google settles with Apple, and the stock Android becomes patent trouble-free, it's up to the OEM to defend any infringements of their skins.

  • stefn

    Apple, please buy Google before Samsung does.

  • crankyd00d

    You, for one, do not have millions upon millions to lose from any of this