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Thursday, March 08, 2012, 02:30 pm PT (05:30 pm ET)

Motorola asks court to accept crowdsourced prior art claims against Apple patents

Motorola Mobility has raised five new prior art claims in its defense against Apple patents, using contributions from "numerous individuals," claims that Apple has asked the court to strike "because they assert five new prior art references never before raised by Motorola in expert reports, invalidity contentions, or discovery responses."

The disputes between Apple and Motorola are set to go to trial June 11, a date set by US Circuit Judge Richard A. Posner as he awarded Apple the right to obtain more information about Google's Motorola acquisition plans and the development of Android.

In December, Judge Posner sought to make the trial manageable by asking Apple to "winnow" its claims against Motorola, leaving Apple unhappy about Motorola's new contribution of Supplemental Expert Reports, the latest of which was filed last week.

According to a report by Florian Mueller of FOSSPatents, Motorola argued that it wasn't holding back the prior art claims for a tactical advantage, but that it had only found out about the examples of prior art based on contributions from the Android community.

Crowdsourced legal claims

"Much of the art Motorola has identified," the company told the judge, "was discovered when Apple's allegations against Android recently came to light to the general public, and numerous individuals in the relevant technical fields wrote about prior art invalidating Apple's patents."

Mueller noted, "this is the first time that I see a major player in this industry — a company that is in the process of being acquired by Google — formally tell a court of law about prior art contributions from individuals."

Two patents Motorola is challenging with the new prior art claims are Apple's '949 touchscreen patent and its '647 Data Detectors patent.



Against the '949 patent, Motorola's filing cited a Microsoft patent for "scrolling web pages using direct interaction" and an second related to gesture recognition, as well as an IBM patent "providing a two-dimensional position-sensitive scroll icon in a data processing system user interface."

Against the '647 patent, Motorola cites Borland Sidekick and a program named MHonArc for converting mail or news messages into HTML archives.

Samsung has made similar uses of chatroom and blogger arguments in its legal battles with Apple, picking up the argument of an Android enthusiast who claimed Apple "misled the judge of a Düsseldorf court by filing flawed evidence of the similarity between the iPad 2 and Samsung's Galaxy Tab 10.1 tablets based on an inaccurate picture," and referring to the situation in a US court by saying Apple had "reportedly" doctored evidence.

State of the prior art

Mueller explained that "a prior art contention doesn't have to cover exactly what the challenged patent does. It could be close enough to render the patent in question obvious, or it could be part of a prior art combination over which the relevant patent may be obvious."

However, Mueller also noted that he regularly receives messages that mention "what people believe to be relevant prior art," adding "most of the time it's not."

The report also stated, "I'm sorry to say so, but some of those submitters are so clueless that they think anything that predates the launch of the iPhone is prior art against various Apple patents, though the data tapping patent actually has a priority date in the mid 1990s (it's a Macintosh patent, basically). Others don't look at what the patent claims say but simply base their prior art theories on the titles or abstracts of those patents — another totally misguided approach."

At the same time, Mueller added, "input from independent individuals could make a difference because it's very hard, even with a huge budget, to identify prior art that predates some of those relatively old patents," after noting that Motorola itself had successfully asserted a pager patent against Apple's iCloud in Germany and is also using Apple over the same patent in the US.

"It's very likely that there's some prior art out there somewhere that could be used to take that patent down, even though the patent is relatively old. Motorola is suing Apple over that patent in the United States, so any Apple users there who don't want to see push email disabled may want to volunteer prior art references," Mueller wrote.