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IP, Patent

Strength? Or Just Numbers?

When it comes to Patent Strength, Florian Mueller gets it:

One thing that’s important to consider when looking at all of the suits and countersuits is that the quantities of patents asserted are a factor of limited importance.

via FOSS Patents: No surprise here: Motorola countersues Microsoft over alleged patent infringement. (A Law.com article calls FOSS Patent’s post “really smart.”)

As I pointed out in my post about assessing patent value, quantity does not equal quality.  Nevertheless, Florian also provides a decent introduction into the general subject matter of each of the 16 patents.  Assessing the strength of Motorola’s lawsuit should, at a minimum, invite at least a routine examination into the claims of each of the patents.  However, a cursory review suggests that Motorola’s counter-punch was deliberate and well thought out, in that most of the patents appear to be well written and relate to a diverse array of products and services. For example, a patent titled “Method and apparatus for communicating an optimized reply” survived a re-exam in March of this year, with only one change made to the first independent claim:

wherein the store comprises a mailbox an inbox of a user associated with the communication unit

Of course, they may also have “borrowed” from their earlier patent assessments. From Florian:

I have looked at the complaints and found that 3 of the patents Motorola asserts against Microsoft have previously been asserted against Apple:

Those are 6,272,333, 5,311,516 and 5,319,712. Well, don’t let quality work go to waste, I suppose.

Nevertheless, this is a serious response to the opening 9 patent-salvo from Microsoft (a one-two combination, involving the Wisconsin District Court and the ITC).  Microsoft also appears to have asserted some solid patents, but they do not seem as “top heavy” as the Motorola assertions.  For example, for every “Context sensitive menu system/menu behavior” which (at a high level) involves presenting commands in pop-up menus, there seems to be a patent like “Method and system for managing changes to a contact database” which is a multi-step method specific to updating contact lists (as opposed to the more abstract “commands”).

Of course, validity is going to be tested as well, and (generally speaking) broader claims are more likely to be vulnerable to validity challenges than narrower claims (logically, there’s fewer things that the party claiming invalidity has to prove).  Without knowing the specifics of each party’s strategy call, one possible speculation is that Microsoft has opted for a more “balanced” attack, blending narrower patents with broader ones to assure that something survives on the validity side.  Of course, if those patents that survive aren’t actually being infringed by Moto, then it all may be for naught.  Meanwhile, Moto might be opening up the war-chest and daring Microsoft to dodge 16 silver bullets.

Thenagain, it could all be a letdown, with both sides dropping their claims and cross-licensing their portfolios, which is always a possible outcome when the proverbial heavyweights do battle.

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