The patent trial between Microsoft and Motorola, which officially began yesterday, continues to evolve in new and interesting ways. The two tech companies have been at battle over patent issues for current Windows devices and the Xbox 360, but the new Surface tablet from Microsoft is now part of the conversation, as well.
Motorola has argued that the 802.11 WiFi technologies are a critical component of the new Surface since the tablet does not have an Ethernet port or access to cellular networks.
In the brief filed last week, Motorola lawyers said,
"Microsoft's new Surface tablet will use only 802.11, instead of cellular or wired connections, to connect to the internet. Without 802.11 capability, the Surface tablet would be unable to compete in the market, because consumers can readily select tablet devices other than the Surface that have 802.11 capability."
According to Motorola, the decision of the court "would need to account for the likely use of Motorola 802.11 SEPs [standard-essential patents] in future products (e.g., Microsoft's recently released Surface tablet product)."
Establishing the significance of the technology in relation to the overall value of the device will likely be crucial to the case as Microsoft is arguing that the company should pay lower license fees based strictly on the contributed value of the technology. Motorola, on the other hand, pointed to a Wall Street Journal piece with news that Windows was likely working on a smart phone that implemented the same disputed technology. Motorola wants a higher standard based not only on current usage but also on Microsoft's likely plans for the tech.
All told, Motorola's licensing patents (including one for H.264 video tech) for 2.25 percent of the the final cost of devices implementing the technologies could total $4 billion annually from Microsoft alone. Microsoft feels that the hefty price tag hardly qualifies for "fair and reasonable terms."
In response, Motorola feels that Microsoft gave up its rights for "fair and reasonable" by filing a lawsuit in the first place.
The results of this case will be hugely important, not only for Motorola / Google and Microsoft, but also for patent cases in the future.