Apple-Moto patent punchup can come into court, says judge

But you're not exactly blowing my judicial skirt up here

By Brid-Aine Parnell • Get more from this author

Posted in Law, 15th June 2012 15:51 GMT

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The US judge who "tentatively" dismissed an Apple v Motorola case last week has decided to give the companies another chance to prove each other wrong with an injunction hearing.

Judge Richard Posner said in a court filing yesterday that he had decided to grant Apple's request for an injunction hearing before he makes his final ruling, setting the date for the showdown for 20 June.

Last week Posner said that he couldn't find enough evidence for damages on either side of the patent divide so he cancelled the start of the trial and tentatively dismissed the whole case. But he also said that the ruling wasn't final and he'd issue a fuller opinion this week.

Apple had thrown in a last ditch attempt to keep the case alive with a request for a hearing on injunctions, which Posner has now granted.

"Each party may argue that it would be entitled to injunctive relief as to its patent or patents were the other party found to have infringed," he said.

Either firm can submit briefs by Monday, should they wish to do so, but they'll have to rely on evidence that was already in the existing record.

Posner also warned Motorola, which has just one patent left in the case, that if it was going to argue for an injunction against Apple, it would have to be prepared to "address the bearing of FRAND".

It's unclear why Posner has changed his mind about throwing the case out, he may just want to hear the firms argue once more before deciding on his final ruling or he may want to ensure that the companies have less grounds for appeal by exhausting their legal options now. ®

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Vodafone's small, controversial tax bill validated by UK.gov - The Register

The National Audit Office, asked to look into Vodafone's negotiated tax bill of £1.25bn, has decided it was a reasonable deal considering the cost of taking legal action against the company.

Back in 2010 Vodafone was accused of owing £6bn in tax, and the company had reserved £2.2bn to meet it's UK tax obligations, but George Osborne struck a deal to accept £1.25bn. That sparked national protests, and in December last year the Audit Office was asked to take a look at five deals including the one struck with Vodafone. It has now concluded that all were perfectly reasonable.

The report (pdf, surprisingly readable, but still very dull) doesn't name the companies, but Vodafone admits to being "Company D" whose deal is criticised as breaking the Treasury Department's own guidelines though it concludes that this is because the guidelines themselves aren't very good.

"Litigation and Settlement Strategy" lays out how the 'Department negotiates deals, and specifically prohibits "split the difference" deals where the liability party is asked to pay a mid point between the maximum liability and the minimum. In Vodafone's case that minimum was zero, as the company claimed it owed nothing at all:

"The agreed settlement ... was lower than the tax liability that would have been paid if the Department won in litigation. Given the uncertainties and costs of litigation, it was reasonable for the Department to settle at the amount it did" says the report. Later Sir Andrew Park, consultant to the NAO, went further:

"Sir Andrew Park considered that there may have been a sense in which the settlement [with Vodafone] could be characterised as ‘splitting the difference’, but his view is that, if this is the case, it is the strategy that is at fault rather than the settlement."

So if the guidelines were broken then it's because they aren't very good guidelines, obviously.

Vodafone, of course, can barely conceal its glee at the report:

For more than a year, Vodafone has been falsely accused of improper conduct ... the National Audit Office has now concluded that the outcome was good for the UK taxpayer. We welcome this vindication.

Not only that, but Vodafone points out that in addition to paying its legally-mandated tax it also handed £6.7bn to shareholders this year to the benefit of the UK economy - if you're not a shareholder then you only have yourself to blame.

All large companies avoid paying tax, if they didn't then we could have much lower tax rates for ourselves, but the tricks being applied are getting increasingly complicated - to the point where it's almost impossible for tax offices, let alone ordinary citizens, to understand who must pay what. A recent investigation by The Bureau of Investigative Journalism, working with Private Eye magazine, found a Vodafone office in Switzerland staffed by one part-time employee who admitted he didn't go into the Vodafone room very often.

None of this is illegal, and neither, it seems, was Vodafone's deal with the Revenue: repugnant as that might all be to those of without barely staffed international offices in tax havens. ®

Motorola May Have Succeeded in Reviving the Razr - Businessweek

An astonishing bit of news has come out of a recently released financial research note from William Blair. According to the sources of analyst Anil Doradla, the Motorola Droid Razr Maxx has displaced the iPhone 4S as the bestselling smartphone at Verizon Wireless, Barron’s reported. The iPhone has always been the top smartphone at every North American carrier it has landed on, so for another vendor—in particular a struggling Motorola Mobility—to displace it is quite a feat.

Of course, long before there was an iPhone, Motorola held the title of the world’s iconic device maker. Its Razr phones—and StarTACs before them—were the cutting edge in industrial design, leading customers to buy more than 100 million of the suckers. But Motorola failed to find a suitable replacement for the Razr line, choosing instead to keep retreading the design until it became a bit of a joke (remember the Krzr?).

Since 2011, Motorola has tried to revive the Razr brand, but the Droid Razr and subsequent Razr Maxx aren’t just mere retreads. Motorola referenced the Razr’s slim industrial design (though it had to make some sacrifices to accommodate the Maxx’s fatter battery), but it has otherwise produced a completely different device, powered by Android and its own suite of productivity and entertainment features.

If Doradla is right, and the Razr Maxx has truly begun outselling the iPhone at Verizon, then Motorola and its new Google overlords definitely have cause to celebrate. It’s probably a bit too early to predict a revival of the Razr’s glory days, though. Since, in the U.S., the new Razr line sells only on Verizon’s network, there’s no other carrier to compare its sales to. And there are plenty of reasons why the Razr might do uniquely well on Verizon’s network and not on AT&T’s, Sprint’s, or another operator’s network.

Verizon’s 4G network may not be the deciding factor for most smartphone buyers, but it’s certainly impacting some customers’ decisions. Verizon has been selling LTE hard, launching huge nationwide advertising campaigns. It may even be steering new customers or upgraders away from the iPhone to its Android LTE portfolio. CNET’s Eric Mack wrote that when he contacted Verizon’s customer service to inquire about upgrading to the iPhone 4S, the salesman quickly pointed out that the Apple device didn’t support LTE and suggested the Razr Maxx or Galaxy Nexus as alternatives.

Few carriers have the stake in LTE that Verizon has. In 2010 it was the first major operator to launch its LTE network, and it has rapidly expanded its network to cover more than 200 million people. Verizon has publicly stated it won’t offer any new smartphone model that doesn’t contain LTE radios.

While AT&T is also building out its LTE network, its footprint is much smaller, and Sprint won’t take its LTE network live until this summer. It would much prefer customers to buy 4G phones in order to justify its LTE investments, but it has far less on the line than Verizon.

It’s also important to note Verizon has a special relationship with Motorola: Big Red is one of the main reasons the vendor is still in business. Verizon gets exclusivity on Moto devices and a high degree of customization for its services and branding (hence the Droid moniker), giving the wireless giant every reason to promote Motorola’s devices, while a carrier with a more generic relationship with Motorola might not be so inclined to promote the Razr line. AT&T isn’t exactly gung ho about the Atrix.

Still, if other carriers see the Razr Maxx selling like hotcakes, they may start asking for the device as well, assuming its exclusivity agreement with Verizon is expiring. If not, Motorola will have to try to build momentum for the devices internationally. It just started selling the Maxx in several European countries.

The real U.S. test will come this fall, when Apple is expected to release an LTE version of the iPhone. Motorola is due for an update to the Razr line in the same time frame, meaning the two 4G devices will likely go head-to-head on Verizon’s network during the holiday season. If the Razr’s current success is merely due to customers seeing it as a 4G alternative to the iPhone, or because of Verizon’s LTE marketing gusto, we’ll find out then.

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