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updated: 3/8/2013 7:12 AM

Apple seeks to revive patent claims against Motorola

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Bloomberg News

Apple Inc. asked a U.S. appeals court today to reinstate patent-infringement claims it filed against Google Inc.'s Motorola Mobility unit over touch-screen technology used in mobile phones.

"This is Apple's first touch-screen patent," Apple lawyer Joshua Rosenkranz of Orrick Herrington in New York told a three- judge panel of the U.S. Court of Appeals for the Federal Circuit in Washington. The patent was for "a key invention and it drove the iPhone phenomenon and later the iPad. It claims something that no one had ever done."

Apple is appealing a U.S. International Trade Commission decision over transparent screens that can sense multiple touches in different locations, enabling users to operate a mobile phone by touching or swiping its screen. Motorola Mobility persuaded the agency to rule that one of the patents was invalid and the other wasn't infringed.

Commission lawyer Megan Valentine defended the agency's decision, saying the Apple multitouch invention was very similar to earlier technology, including a patent issued in 2008 and a Sony Corp. paper for a product called SmartSkin.

"The algorithms are nearly identical in the two patents," she told the panel. She also defended the commission's finding that the commercial success of the iPhone wasn't proof of the uniqueness of the patented invention.


"There are so many features of the iPhone," Valentine said. "Taking this one feature out without a showing of a tie is not sufficient."

Motorola Mobility lawyer David Nelson of Quinn Emanuel in Chicago said the two patents "describe that same sensing device." He also urged the court to uphold the finding of non- infringement, saying the judge's interpretation of that patent was correct.

In its filings with the court, Apple said figuring out how a device with a transparent screen could accurately detect multiple touches was a "head-scratcher." Apple said Motorola Mobility tried and failed to develop its own useful touchscreen.

When the iPhone went on sale, reviewers cited the "magic touch screen" of the device and Time magazine singled out the touchscreen when it named the iPhone its "Invention of the Year," Rosenkranz said.

"The moment Apple unveiled its invention, we all know what happened," Rosenkranz told the court. Cupertino, California- based Apple has claimed other handset makers copied the iPhone and has filed patent-infringement lawsuits around the world.

Part Fiction

Motorola Mobility, in its filing, called Apple's description of its inventive process as "equal parts fiction, hyperbole, and litigation-inspired hindsight."

"Apple is asking this court to believe that the success and popularity of its iPhone and iPad devices must mean Apple actually invented all of their individual components," Motorola Mobility said in its filing with the court. "The major hardware components for the iPhone and iPad all existed prior to Apple's entry into the mobile device market, and the facts show that Apple borrowed copiously from the work of others."

The case targeted Motorola Mobility's Droid, Droid 2, Droid X, Cliq, Backflip, Devour and Charm phones, as well as the Xoom tablet. Mountain View, California-based Google bought Motorola Mobility last year, after the commission issued its decision.

The ITC in Washington has the power to block imports of products that violate U.S. patents. Since most smartphones are made in Asia, the trade agency has become a central front as handset manufacturers use patent litigation as part of an overall effort to increase their own market share.

Smartphone Rivalry

Mobile devices have grown in popularity worldwide, with one in seven people having a smartphone, and another billion people are expected to get them within the next three years, according to researcher Strategy Analytics.

In the fourth quarter, Motorola Mobility had 4 percent of the U.S. smartphone market, compared with Apple's 45 percent, said Neil Shah, an analyst with Boston-based Strategy Analytics.

Apple and Motorola Mobility have sued each other in Wisconsin and Florida. In a March 1 filing in the Florida case, the two sides said they have "engaged and continue presently to engage in informal settlement negotiations" and will meet at least once before a May 31 court-ordered mediation deadline.

The Wisconsin cases, some of which were transferred to Chicago, were thrown out by two different judges and are on appeal before the Federal Circuit. The ITC is reviewing whether Apple infringed a Motorola Mobility patent for a sensor that detects how close a phone is to the body so it doesn't accidentally dial a call or hang up. A final decision is scheduled to be issued April 22.

The case is Apple Inc. v. ITC, 12-1338, U.S. Court of Appeals for the Federal Circuit (Washington). The ITC case is In the Matter of Mobile Devices and Related Software, 337-750, U.S. International Trade Commission (Washington).

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