Motorola Abuses FRAND, Wins Permanent Patent Injunction Against Microsoft

When patents are granted to companies, they are obliged to licence them under FRAND (Fair, Reasonable and Non-Discriminatory) rules to anyone that wants to use them. However, Motorola’s patents EP0538667 & EP0615384 which are central to the H.264 video codec standard were offered to Microsoft at a massive licensing cost of $4 Billion annually, which is anything but FRAND. Microsoft unsusurprisingly, is disputing this, vigorously.

However, in the meantime, Motorola has filed four closely related lawsuits at Microsoft for non-payment due to use of this technology in its Windows 7, Internet Explorer, Windows Media Player and Xbox gaming console, in Germany. Incredibly, Judge Dr. Holger Kircher of the Landgericht Mannheim (Mannheim Regional Court) ruled in favour of Motorola. This means that the above products are subject to a permanent injunction (appealable) barring their sale in Germany, with a requirement that they be recalled from retail and destroyed!

However, luckily for Microsoft, the injunction isn’t immediately enforceable, due to three major challenges for Motorola: they have to wait on the outcome of Microsoft’s appeal and post a large bond, the appeals court can suspend the ruling and the third major challenge for Motorola is probably the steepest one: Judge James L. Robart of the United States District Court for the Western District of Washington won’t allow an end-run around his FRAND case, after the US court ordered a restraining order against Motorola’s near term enforcement of its injunction.

Good luck Motorola actually prevailing with this anticompetitive tactic. Hey, don’t you just love “competition”?