We saw this week just how powerful an import ban can be as US Customs officials enforced an ITC exclusion order delaying the importation of new HTC One X and Evo 4G LTE smartphones into the country, and it looks like Motorola Mobility could be facing a similar fate. On Friday, the full commission of the ITC sided with Microsoft in ruling that Motorola Android devices infringe US patent no. 6,370,566, issuing an order that could keep products like the Razr, Atrix, Xoom tablet, and several other models off US shelves in the future. The '566 patent claims priority back to 1998 and covers appointment scheduling using email addresses and contact information, and synchronizing those events across phones and PCs.
Motorola must post a bond of 33 cents per Android device
However, as bad as this all sounds for Motorola, a lot can still change. First of all, the exclusion order doesn't take effect immediately. As always, a final ITC ruling of this sort is subject to review by President Obama, and while that almost never results in a reversal, it does afford Motorola up to two months to focus on a workaround to Microsoft's patented feature — much like HTC claims to have done in response to Apple's recent import ban. In the interim, the ITC order allows Motorola to import and sell its devices in the US, with one caveat: "Motorola is required to post a bond set at a reasonable royalty rate in the amount of $0.33 per device entered for consumption during the period of Presidential review."
Will Motorola eventually take a license?
We're not exactly sure how the commission arrived at that particular royalty rate, but we are fairly certain it's much lower than the final number Microsoft would accept from Motorola — with the Redmond company allegedly demanding between 5 dollars and 15 dollars per device under its current patent licensing deals with Android OEMs. However, unlike Apple's current patent litigation strategy around the world, Microsoft has made it clear from the beginning that a licensing arrangement is the ultimate goal here, not a ban on devices in the market. Microsoft reiterated this licensing strategy in its official statement on the ITC ruling:
Microsoft sued Motorola in the ITC only after Motorola chose to refuse Microsoft's efforts to renew a patent license for well over a year. We're pleased the full Commission agreed that Motorola has infringed Microsoft's intellectual property, and we hope that now Motorola will be willing to join the vast majority of Android device makers selling phones in the US by taking a license to our patents.
In the end, one thing is certain: the dispute between these two companies will go on, at least for now. In the absence of a settlement, which we have no reason to believe will come easily, each side has issues it will likely want to take up on appeal, and that can add months or even years to the process. And, of course, there's always the question of just how much Google's acquisition of Motorola Mobility will influence the strategy and duration of this particular patent fight. There's a lot still in flux, but we'll keep you updated of future developments.