Apple v. Moto In Germany: One iPhone Injunction Ordered, Another One Lifted

iPhone 4S

Apple (NSDQ: AAPL) in the last 24 hours has been dealt not one but two blows in court cases involving Motorola (NYSE: MMI) and patents in Germany, one involving IP licensing on older iPhone models (not the 4S) and one involving iCloud. However, as the day progressed, an injunction on the sale of the older iPhone models was lifted as the cases continue to develop.

Today’s ruling in a Mannheim court granted Motorola a permanent injunction on Apple products that use its iCloud technology, specifically around push email services, and, like many patent cases, is not based on a recent patent but an older one — in this case, one that Motorola holds around paging devices (one of the company’s earliest wireless products).

Update: Motorola has issued a formal response to the decision:

“We are pleased that the Mannheim court has recognized the importance of our intellectual property and granted an enforceable injunction in Germany against Apple Sales International,” it said in an emailed statement.

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Apple, meanwhile, said that it is already appealing in this case:

“Apple believes this old pager patent is invalid and we’re appealing the court’s decision,” Apple told paidContent in an emailed statement.

But before you start thinking that this might mean that various new, iCloud-enabled Apple products will be disappearing from German retailers, think again. PaidContent understands that the injunction applies only to a specific function: the instant, push email service that Apple offers via MobileMe/iCloud, and there are only a limited number of users in Germany actually taking that service. Plus, there are already at least two workarounds available: for customers to either download the email manually; or to set up a script to check email regularly anyway.

The case is still developing so it remains to be seen how the injunction will play out.

More pressing, it seems, is the outcome of another Motorola court case that dates back from December, and which has been in the works for even longer, which has resulted in Apple pulling some older models of the iPad and iPhone from its online store in Germany.

These products were pulled overnight and are indeed absent when paidContent visited the online store this morning. They are, however, still being sold offline through Apple stores and other retailers.

Update: The temporary injunction has now been lifted, but Motorola says the case continues:

“We are pleased that the Mannheim court has recognized the importance of our intellectual property and granted an enforceable injunction in Germany against Apple Sales International. Although the enforcement of the injunction has been temporarily suspended, Motorola Mobility will continue to pursue its claims against Apple.”

Earlier, Apple said it would appeal the decision:

“While some iPad and iPhone models are not available through Apple’s online store in Germany right now, customers should have no problem finding them at one of our retail stores or an authorised reseller. Apple is appealing this ruling because Motorola repeatedly refuses to license this patent to Apple on reasonable terms, despite having declared it an industry standard patent seven years ago.”

This case, essentially, is another chapter in Apple’s European battle over FRAND patents, which fall under rules that require equipment makers to license IP on “Fair, Reasonable and Non-Discriminatory” terms, in order to make sure that IP that has been declared industry standard is not intentionally made more expensive for competitors than non-competitors in a field like smartphones.

Apple has been facing other issues over FRAND terms in Europe, specifically with Samsung. That case looks like it may have taken a turn in Apple’s favor: this week the European Commission said that it would start an antitrust investigation into Samsung and whether it has violated FRAND rules in its dealings with Apple. The EC cautions that it has not yet declared a judgement in this investigation so it could still go either way.

In this Motorola FRAND case, Motorola Mobility says that it approached Apple in 2007 with its FRAND licensing terms and attempted to negotiate a license with Apple for over three years.

“Apple’s refusal to negotiate in good faith, as well as their aggressive litigation campaign against Android, left Motorola Mobility with no option other than to seek to enforce the Company’s rights and patent portfolio. Motorola Mobility remains committed to licensing rather than litigation as the proper vehicle for resolving intellectual property disputes,” Motorola told paidContent in an emailed statement.

You might recall that disputes over FRAND licensing was the issue in the FRAND dispute with Samsung — the case that spurred the EC investigation

Whether this will result in a FRAND investigation of Motorola by the EC remains to be seen, but if it does that could have wider implications since the Commission is already investigating antitrust issues regarding the proposed merger between Motorola and Google.

Given that this is all really about stabbing at your competition on a legal level, one possible outcome might be particularly ironic: if what people want are Apple products, by not being able to buy the less expensive, older models, they may end up opting for the 4S in the end and boost sales of the company’s highest margin, priciest device. A Win-Win in that case?

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