Alison Frankel

In a really smart piece last month, my Reuters pal Dan Levine wrote that Steve Jobs’ promise to kill Google’s Android operating system has not been fulfilled. Instead, wrote Levine and co-author Poornima Gupta, Apple’s patent war against Android users Motorola, Samsung, and HTC had become “a costly global war of attrition.” Both sides have won skirmishes, but no battle has been decisive. The Reuters story quoted Judge Richard Posner of the 7th Circuit Court of Appeals, who is overseeing a Motorola case in U.S. District Court in Chicago. “You’re not going to shut down the smartphone,” Posner told Apple’s lawyer. “[And] they’re not going to shut down the iPhone.”

The exact same thing could be said of Microsoft’s patent war with Google and its Android acolytes. When the smartphone patent infringement cases launched in 2009 and 2010, maybe it was feasible that one or two of the big three could kill off another of them. But since then, with Apple and Microsoft teaming up to buy Nortel patents and Google countering with its purchase of Motorola Mobility, this war has become a standoff that can only be resolved with cross-licensing deals.

That’s why antitrust arguments — as opposed to patent infringement claims — have been creeping into the spotlight over the last few months. On Tuesday, the European Union announced that it has opened antitrust investigations of Motorola’s demands for licensing fees on standard-setting patents, following complaints by both Microsoft and Apple. (Google’s Android partners, of course, have lobbed similar allegations of patent extortion at Microsoft.) The goal of such claims is to drive down the cost of licensing one another’s patents. In other words, if you can’t beat ‘em, pay as little as possible to join ‘em.

We should have a much better idea of the strength of Microsoft’s assertions against Motorola by next week, when Microsoft’s lawyers at Sidley Austin will get to air their arguments about Motorola’s alleged abuse of its industry-standard patents at a preliminary injunction hearing before U.S. District Judge James Robart in federal court in Seattle. Microsoft moved for the injunction on March 28, asking the judge to stop Motorola from taking any action to block certain Microsoft products from the German market. Microsoft said it had brought the Seattle suit in 2010 “to force Motorola to honor its commitment to license its standard-essential patents.” Instead, according to Microsoft, Motorola went to German courts, seeking its own injunction against Microsoft. Microsoft argued in its Seattle motion that it needs a restraining order to preserve the U.S. judge’s ability to decide the merits of its case.

It outlined those purported merits in a summary judgment motion filed last Friday. According to Microsoft, Motorola made a “blatantly unreasonable” demand that it pay $4 billion (yes, billion) in annual royalties for the use of 50 Motorola patents in Microsoft Windows. The demand “was so overreaching that no rational company could ever have accepted it or even viewed it as a legitimate offer,” Microsoft asserted. “Motorola’s obvious strategy was … to make an offer that Microsoft was sure to refuse so that Motorola then would be free (in its view) to sue on its standard-essential patents to gain leverage in other disputes with Microsoft.” Microsoft asked for a ruling that Motorola had breached its agreement to license standard-setting patents on fair and reasonable terms.

Motorola is represented in the Seattle case by Ropes & Gray. Ropes partners Jesse Jenner and Steven Pepe didn’t return my calls. I also left messages with Microsoft inside counsel Andrew Culbert and outside counsel David Pritikin of Sidley but didn’t hear back.

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This summer, thanks to NPR’s This American Life, a patent holding company called Oasis Research became one of the most famous patent trolls in the land. The brilliant radio segment, When Patents Attack! (also available as a Planet Money print story), homed in on a sweeping patent for “an online back-up system,” which Oasis acquired from Intellectual Ventures in July 2010 and proceeded to assert in an Eastern District of Texas case against a dozen tech defendants. When NPR’s reporters tried to find out who or what Oasis is, they struck out. No one answered the door at Oasis’s deserted “office” in Marshall, Texas, and the company’s lead lawyer, John Desmarais of Desmarais LLP, politely declined to answer NPR’s questions when the reporters tracked him down at a tech IP conference. (He also declined, via e-mail, to answer mine for this story.)

But even as NPR exposed the troll, Oasis was winning key rulings in the East Texas case, which featured EMC, AT&T, and GoDaddy.com, among lots of other defendants. In May, federal magistrate Amos Mazzant recommended that Judge Michael Schneider deny the defendants’ motions to sever Oasis’s claims. In July, the judge adopted the magistrate’s recommendations. In August, Oasis’s Desmarais lawyers filed an amended complaint, asserting infringement of four patents in more than 100 claims against 12 defendants.

The defendants fought back on two fronts. EMC filed a petition at the U.S. Court of Appeals for the Federal Circuit, asking the appellate court to reverse Judge Schneider’s ruling on the question of joinder. “The district court committed clear error,” EMC’s petition said, “by allowing [Oasis] to join many unrelated companies in a single infringement action based merely on an allegation that the companies each independently offer the same type of service. In doing so, the district court endorses an increasingly common practice of nonpracticing entities who file patent infringement suits in the Eastern District of Texas. Their newest tactic is to sue a large number of unrelated and geographically dispersed defendants, accuse them of infringing the same patent without regard to service or product differences, resist severance, and then oppose transfer of the action to a different forum.”

At the same time, the defendants also asked Judge Schneider to rein in Oasis’s “shotgun” claims. “Plaintiff’s assertion of [between] 88 [and] 121 patent claims under the circumstances of this case is unreasonable, and requires a remedy by the court,” the defendants said in a motion to limit claims to a mere 20.

This week, the Oasis defendants got some good news on both fronts. In the East Texas case, the magistrate cut back the number of claims Oasis can assert. As Docket Report was the first to report, Magistrate Mazzant restricted Oasis to 31 claims across the four patents in the case. He didn’t cut the case down as much as the defendants had asked and said Oasis could later ask to add claims, but the ruling makes the defense more manageable.

More significantly, a coalition of tech industry giants filed an amicus brief at the Federal Circuit, supporting EMC’s arguments against multidefendant troll litigation. (The amicus brief was first reported by The Wall Street Journal.) “This case is only one in a cresting wave of patent-infringement lawsuits over the last few years in which plaintiffs have sought to join in one action numerous unrelated defendants, all of whom sell different products accused of infringing the same patent,” said the brief, filed by Gibson, Dunn & Crutcher. “This case presents an excellent vehicle for this court to put a permanent end to this abuse of joinder.”

As the amicus brief goes on the recount, the new patent reform bill attempts to address the exact kind of sprawling, multidefendant filing Oasis engaged in. But the new law comes too late to help the Oasis defendants-and all of the other defendants named in a rush of troll suits filed in East Texas in the last week, as the patent reform bill awaited President Barack Obama’s signature. EMC alone has been named in three new multidefendant cases since the new law passed.

“Although the new bill, which is expected to be signed into law, should correct joinder abuse going forward, it does not apply to any action filed before it becomes law,” the amicus brief said. “Thus, there is a compelling need for [the Federal Circuit] to address the issue raised in the mandamus petition because it affects numerous pending cases-many filed on the eve of the new statute’s enactment-that involve egregious misjoinders of scores of unrelated defendants.”

Will the Federal Circuit bite? I’ll let you know.

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Last December, when Nathan Myhrvold’s ginormous patent-aggregator Intellectual Ventures filed its first three patent infringement suits, it seemed as though a dam had broken. Between the time IV was founded in 2000 until last December, the company had spent hundreds of millions of dollars to acquire some 30,000 patents — but it had never filed a suit to enforce them. IV instead relied on the leverage of its vast portfolio to make licensing deals. The tech world wondered whether the December infringement suits were the first trickles of what would become a river of litigation.

They weren’t. IV quietly went back to business as usual. But on Monday Intellectual Ventures struck again, filing a new patent infringement complaint in Seattle federal court, as well as a complaint at the U.S. International Trade Commission. The new suits name Hynix and Elpida, the computer memory manufacturers, as well as computer makers that use their products (including Acer, Dell, Hewlett-Packard, and Logitech) and stores that sell them (Wal-Mart and Best Buy). IV accuses Hynix and Elpida of infringing five of its patents and inducing the other defendants to infringe. The five patents in the Seattle case do not overlap with the seven patents IV asserted against Hynix and Elpida in Delaware.

IV has added a new firm to its roster of outside counsel: The Seattle suit will be handled by Irell & Manella, as well as Seattle counsel from Black Lowe & Graham. Weil, Gotshal & Manges represents IV in its Delaware suit against Hynix and Elpida; in the other two Delaware cases, Susman Godrey and Desmarais LLP represent IV.

IV counsel Elliot Brown of Irell referred a request for comment to IV, which sent a link to its blog posting on the new actions against Hynix and Elpida. “Our goal is to reach licensing agreements,” IV chief litigation counsel Melissa Finocchio said in the post. “But when companies like Elpida and Hynix clearly infringe on our patents yet refuse to take a license, we have legal options we can use to protect our interests and those of our investors.

Hynix counsel Sean Pak of Quinn Emanuel Urquhart & Sullivan and Elpida counsel George Badenoch of Kenyon & Kenyon did not respond to requests for comment.