Because the oddest thing just happened. Redmond Magazine reveals that Microsoft sent it the news about a claims construction order from the ITC regarding a Microsoft complaint against Motorola, with some talking points, I gather, on what it thinks it means. And at more or less the same time, but slightly before, Mueller published an article on his blog with the same information about the same claims construction order and giving it the same meaning as Microsoft sent to Redmond Magazine. We know the timing because Redmond Magazine links to Mueller.

But I can't make the Redmond-Microsoft/Mueller math -- which is highlighted in both articles as being significant -- line up with the order itself. And while both articles opine that the order means that Microsoft's patent claims against Motorola are going swimmingly, and hence Android is in trouble, the picture is a lot more complex, according to my research. It turns out there are several lawsuits between the parties, and in the patent litigation in district court, the most recent event is that Motorola motions to dismiss were granted in part and Microsoft motions to dismiss were denied. I'll show you my research on all this.

First though, for context, let's take a look at the latest news about Android taking over the world of smartphones. I guess you saw that Android is in the lead and gaining market share, and Microsoft's phone not only isn't growing market share, it's losing it. AT&T's Ralph De La Vega says Microsoft phones aren't doing as well as AT&T or Microsoft "would have liked". Adobe's CEO just told the world Android, in his opinion, will eventually conquer tablets too, surpassing even the iPad.

So that world domination thing Linus used to joke about turns out to be happening in our lifetime. When there is no monopoly plunking its rear end down on the competition's air supply, people choose Linux and Apple quite happily.

So what's a monopolist to do when the world turns upside down and there's no way to sit on everybody any more because it's all about a new market, like smartphones? Maybe put out some hefty spin about a minor patent claims construction ruling?

It wouldn't be the first time something like that has happened. A claims construction order is not a basis for a prediction of doom for anybody. It only matters if in the end one of the plaintiff's claims turns on it. And it's way too early to predict anything about that in the Microsoft/Motorola litigation. Unless one is a propagandist.

Here's the claims construction order by the ITC administrative law judge. It's related to a case Microsoft filed against Motorola in district court at the same time as it filed its complaint with the ITC, and then the case was stayed, pending the ITC investigation. Motorola didn't even file its answer prior to the stay, so this is just starting. Here's the order [PDF] staying that case.

Here's where Redmond Magazine tells us where it got its information from, in its article titled Microsoft Scoring Points in Motorola Lawsuit:

Microsoft let it be known today that it is gaining ground in its lawsuit against Motorola over alleged patent infringements associated with the Android mobile operating system.

Microsoft's attorneys claim that Motorola has infringed intellectual property in nine patents granted to Microsoft. Motorola, which also is a partner with Microsoft on Windows Mobile, got slapped with a lawsuit regarding the alleged Android patent infringements in October, and Motorola has promised to fight back. The lawsuit was filed in both the U.S. District Court for Western Washington, as well as at the U.S. International Trade Commission (ITC).

The case is proceeding in both venues. However, in mid-May, Administrative Law Judge Theodore R. Essex, acting on behalf of the ITC filing following a so-called Markman hearing, ruled on the meaning of terms used in the nine patents. The judge ruled in favor of Microsoft's interpretation of those terms 17 times vs. five times in favor of Motorola's interpretation, according to the publicly released claim construction order (PDF).

But it's also not the only litigation going on between the parties involving patents, so it's simplistic to write that Microsoft's patent claims against Motorola are moving along nicely for Microsoft based solely on the ITC claims construction order in just one case, and a case where Motorola hasn't even filed an answer yet in the stayed parallel district court case.

There are 3 patent infringement claims Motorola brought against Microsoft in a Wisconsin case and some contract claims involving RAND terms that Microsoft brought against Motorola, and the cases are now consolidated. Microsoft sought a dismissal of the patent claims against it, but the motion was denied. It's complicated, but here's a May 31, 2011 order [PDF] in Case 343, now 1843, that explains it all. The cases were consolidated as Case C10-1843 in Wisconsin. Microsoft had sought to have it dismissed, but that was denied. In Washington State, there was another patent infringement case filed by Motorola claiming [PDF] that 5 of its patents are being infringed by Microsoft, and Microsoft counterclaimed with 5 patents of its own, Case #C11-00595. If you read Microsoft's Answer with Counterclaims [PDF], Microsoft says that there was an earlier case Motorola brought citing patent infringement, Civil Action No. 3:10-cv-00700, which was stayed pending an ITC investigation of Motorola's complaint, ITC Investigation No. 337-TA-752. Here's Motorola's response [PDF] to Microsoft's counterclaims. Here's the docket entry on the May 11th order to reassign the case:

The Court REASSIGNS this matter to the Honorable James L Robart for all further proceedings. All future pleadings shall bear the new case number C11-0595-JLR. (TF)

I know. It's too complicated to even know if we're getting it all straight in such a cursory review of cases we haven't been closely following, which is why I'm giving you the PDFs, but that's really my point. This dispute between Microsoft and Motorola is very, very complicated, and the ITC claims construction order is a tiny part of just one case in what is a much bigger picture involving multiple cases and many claims by both sides. It's very early in the process, and not even accurate, to say that Microsoft's patent *case* against Motorola is going well. It's certainly ridiculous to claim that Android is doomed, based on it. There's lots more to come and no way to know if it will even matter to the ultimate outcome.

But let's get back to the ITC order. The source of the math about 17 to 5 in the claims construction order is apparently Microsoft, according to Redmond Magazine. It told at least that one journalist that the judge in the ITC case ruling on the meaning of the terms used in Microsoft's nine patents ruled in favor of Microsoft 17 times and only 5 times for Motorola.

Redmond Magazine also tells us that Mueller is telling the same story, with the same math:

The order goes through each patent systematically in a way that's tedious to relate. However, blogger Florian Mueller, who describes himself as an "intellectual property activist," provides a blow-by-blow scorecard here.

Motorola Mobility suffered a drubbing in its defense against Microsoft's Android-related patent infringement claims. According to an 88-page claim construction order of April 22 that was recently published, an ITC judge -- Administrative Law Judge Theodore R. Essex -- rejected Motorola's proposals to narrow the scope of Microsoft's asserted patents in 17 out of 22 instances. The judge furthermore accepted 12 definitions on which the parties had agreed.

And here's what he concludes from the order -- yes, once again, it's doom for Android in the Florian Mueller crystal ball:

In patent infringement disputes, claim construction is a milestone of major importance. It precedes the determination of whether any valid patent claims are infringed. Any of the wordings in the patent claims that have a less than clear-cut meaning can either be construed more broadly, which makes it more likely that a patent is found to read on the accused products, or more narrowly, which could enable a defendant to escape infringement.

Eight months into the process (which is roughly half the time required by the ITC to take a final decision on a possible import ban), things don’t look too good for Motorola — nor for the Android ecosystem at large, as other Android device makers would face the same or greater challenges if they had to defend themselves against Microsoft.

Microsoft’s asserted patents and the related infringement allegations appear rather strong – in fact, much more solid than the claims made by Apple and Nokia in their ITC battles against each other.

Mueller even seems to suggest a solution for Android vendors:

While we are still a few quarters away from formal decisions, I think Motorola increasingly comes under pressure to settle. Furthermore, these developments probably strengthen those who champion (inside Motorola Mobility) the idea of replacing Android with a new internally-developed operating system. There’s no way to be safe from patent assertions with any smartphone operating system, but Android with its 44 related lawsuits and Google’s purely opportunistic approach is currently a surefire way to get into IP trouble…

Microsoft is misusing these patents as part of a scheme to try to eliminate or marginalize the competition to its own Windows Phone 7 mobile device operating system posed by the open source Android operating system and other open source operating systems.

Since Redmond was honest enough to tell us that it was Microsoft giving its views, let's see what spin they are giving it. My stars -- it's exactly the same as Florian's:

According to a Microsoft spokesperson, the next step in this case will be a full ITC trial in about six months' time. The spokesperson said that the ITC organization is part of this case because Motorola imports technologies created abroad into the United States, and the ITC has the authority to file an injunction to block those imports. The Washington state district court proceeding is a separate and concurrent matter, handling such aspects as rewards for damages.

The Microsoft spokesperson had no information to share about the progress of the district court proceedings. Still, the administrative law judge's confirmatory interpretations of Microsoft's patents appear to bode ill for hardware device makers that use the Android mobile OS. Another device maker and Microsoft partner, HTC, settled with Microsoft rather than go to court, unlike Motorola.

Android Juggernaut

Android-based devices have been far outselling nascent Windows Phone 7 devices. In addition, Android and Apple iOS have maintained strong developer interest….Possibly, Microsoft's approach of suing its hardware partners is designed to slow Android's forward momentum thus far.

How does a judge determine how to construe the meaning of a claim? As it happens, the order tells us, beginning on page 2 and going on for pages and pages, but what it says in plain English is that to determine if a patent has been infringed, you first have to determine what the scope of the patent claim is, what it covers. Then you look at the facts of what happened and see if in fact the claims read on the accused devices. And the way they do that is by steps that the order says go like this:

1. Look at the intrinsic evidence -- the language of the claims in the patent, the specification, and the prosecution history. "The words of the claims 'define the scope of the patented invention'", the judge wrote. Prosecution history here means as the patent application wound its way through the PTO process, there are filings and letters and such that leave a paper trail that can illuminate the inventor's meanings. This matters because sometimes patent owners try to broaden the scope of a patent to fit the nature of an alleged infringement, so the idea is to figure out what the inventor intended the scope to be when he filed his patent application, not what he claims it means a decade later, when he sees someone doing something sorta, kinda like it but not really. If the inventor, then, disclaimed by a statement to the PTO, he can't later broaden his claim and say it meant to cover what he earlier disclaimed.

The law assumes that a term on page 1 means the same as on page 4. So, your first step is to try to figure out what the patent owner meant for his claims to cover when he applied for the patent in the first place. Why, then, would it be a surprise if the patent owner would have more of his suggested claims constructions accepted by a court? Duh. I mean, the whole point is to find out what Microsoft meant by this patent, so of course it would tend to tilt Microsoft's way, one would think.

2. Investigate extrinsic evidence as to what a claim term's specialized meaning is in the particular field of art, if the claim is based on that.

3. Figure out if the patentee clearly meant something that deviates from the conventional meaning of a claim term. He can do that by making his meaning clear in the specification or during the patent's prosecution history. But it must be obvious enough to put a person skilled in the art on notice that he intended to redefine the term.

4. If you can't figure out by looking at the intrinsic evidence what the meaning of a claim is, then you look to extrinsic evidence, like "learned treatises", expert testimony, and inventor testimony. The order says that the Federal Circuit "has generally viewed extrinsic evidence as less reliable than the patent itself and its prosecution history in determining how to define claims" and that any expert testimony that is "clearly at odds with the claim construction mandated by the claims themselves, the patent specification, and the prosecution history should be discounted." I expect those of you who followed the second SCO v. Novell trial can see why that would be so, after listening to the utter claptrap SCO's experts testified to.

5. Finally, if you still, after all the above, can't figure out what a claim terms means, "then the patent claims should be construed so as to maintain their validity." That means that they try to find for the patent owner. As you have seen, the whole patent system is set up in favor of the patent owners. "However," the order concludes in this section, "if the only reasonable interpretation renders a claim invalid, then the claim should be found invalid.

Now, you can read all 88 pages of the order, and I encourage you to do so, but if you want to read instead a summary, you can read the ITCblog's analysis, and if you go down the list of the claim construction order, the two lawyers writing the analysis indicate to me that the ruling agreed with Microsoft's construction of terms 12 times, Motorola 6 times, and neither party 3 times. Mueller linked to this blog, by the way, so he seems to find it useful. Yet the math doesn't match.

I went through the ITCblog post, and I copied out the claims in dispute and how they say each one was decided, then cross checked the order when it wasn't clear to me, and then made a note in purple text showing the math:

The ‘517 and ‘352 Patents….The parties disputed the meaning of three claim terms from the ‘517 and ‘352 patents: “short filename,” “long filename for the file,” and “location of the file.”…

In the Order, ALJ Essex adopted Microsoft’s alternative construction, finding that the specification and claim language supported such a construction….

The ALJ sided with Microsoft, finding that its construction was supported by the specification and the claims….

ALJ Essex agreed with Microsoft as to this term, relying on the specification and finding that Motorola’s proposed construction would exclude the preferred embodiment.

(3 claim terms in dispute - Microsoft 3, Motorola 0)

The ‘054 Patent Four claim terms from the ‘054 patent were disputed by the parties: “while the client is on-line with the server,” “placing the client in an off-line condition with respect to the server,” “the synchronization being performed at least in part by transmitting to the server the copy or the resource stored at the client, and the resource state information,” and “the resource.”….

…ALJ Essex found that the specification provided a clear definition of “on-line,” and agreed with Motorola’s construction….

The ALJ found an express definition of “off-line” in the specification and accordingly construed the phrase as “placing the client in a state in which it is not immediately capable of actively communicating with a server.” [PJ: Motorola's suggestion]…

The ALJ agreed with Microsoft, giving the phrase its plain and ordinary meaning….ALJ Essex agreed with Microsoft and determined that the ‘054 patentees did not use the term in a manner consistent with only a single meaning.

(4 claim terms in dispute - Microsoft 2, Motorola 2)

The ‘746 Patent - The parties disagreed as to three terms from the ‘746 patent: “erase operation,” “physical sector,” and “block.”…

ALJ Essex found the term should be given its plain and ordinary meaning [MS's]….

The ALJ found that the claim language supported Microsoft’s alternative definition, “a portion of a block.”…

ALJ Essex found neither proposed definition appropriate.  Based on the claims and the specification, the ALJ interpreted the term as “contiguous units of memory organized into a larger collective unit.”

(3 terms in dispute: Microsoft 2, Motorola 0, neither 1)

The ‘762 Patent - Three terms of the ‘762 patent were disputed by the parties: “without knowledge of the telephony radio or cellular network,” “proxy layer”/ “proxy,” and “driver layer”/ “radio driver.”

…The ALJ agreed with Microsoft, giving the phrase its plain and ordinary meaning….

The ALJ adopted Microsoft’s proposed constructions….

The ALJ adopted Microsoft’s proposed constructions….

ALJ Essex sided with Microsoft, giving the terms their plain and ordinary meaning, “software that communicates with hardware,” and “software that communicates with a radio."

(3 terms in dispute - Microsoft 3, Motorola 0)

The ‘376 Patent - Three claim terms were disputed by the parties with respect to the ‘376 patent: “data store,” “notification broker,” and “determine.”…

The ALJ agreed with Microsoft’s construction and determined that the plain and ordinary meaning of the term was “something that stores data.”…

With regard to this term, ALJ Essex adopted Motorola’s definition, finding it was supported by the specification….

The ALJ found that the term should be given its plain and ordinary meaning.[PJ: Microsoft's suggestion.]

(3 terms in dispute: Microsoft 2, Motorola 1)

The ‘910 Patent - The claims of the ‘910 patent contained two disputed terms: “contact card” and “replacing the existing contact card in the contact database with the updated contact card”/ “an existing contact card is replaced with the updated contact card.”…

Relying on the disclosure of the specification and the claims, the ALJ adopted Motorola’s definition….

The ALJ found neither proposed construction satisfactory and determined that the plain language of the phrases were sufficiently clear.

(2 terms in dispute: Microsoft 0 , Motorola 1, Neither 1.)

These two phrases are found in Claims 1 and 10 of the '910 Patent, respectively. The dispute between the parties centers on the meaning of the words "replacing" and "replaced." Microsoft proposes that these phrases need no construction, or alternatively that they be interpreted as "saving updated information in the contact database for an existing contact card" and "changing information in a contact card," respectively. (COB at 94-95.) Motorola proposes that these phrased both be construed to mean "deleting the existing contact card in the contact database and substituting the updated contact card." (ROB at 84-85.)

The constructions offered by the parties are not fully satisfactory. Microsoft's constructions are erroneous because they ignore the words "replacing the existing contact card" and "an existing contact card is replaced." Microsoft's proposals merely require "updated information" or "changing information" and do not necessarily require replacing a contact card. Because Microsoft's constructions would effectively eliminate the phrases "replacing the existing contact card" and "an existing contact card is replaced" from the claims, Microsoft's proposals must be rejected. See Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950-51 (Fed.Cir.2006) (rejecting a claim construction that "would read the [disputed] limitation out of the claim altogether").

Motorola's construction is also erroneous. Motorola's construction assumes that the "replacing the existing contact card" necessarily means that the existing contact card is deleted. While it may be true that in some circumstances an existing contact card is deleted when a contact card is replaced, the '910 Patent discloses at least one embodiment that distinguishes between deleting and replacing a contact card: "If a contact card is an updated contact card, the previous contact card is deleted and replaced by the updated contact card." ('910 Patent at 8:59-61 (emphasis added).) While the distinction between deleting and replacing may be thin, the inventors have nevertheless drawn it, and the claims should be interpreted in a manner that gives full effect to the inventors' disclosure.

The ALJ finds the plain language of the disputed phrases is sufficiently clear to require no further construction beyond the rejection of the parties' arguments above. Accordingly, ordinary meaning will be given to the phrases "replacing the existing contact card in the contact database with the updated contact card" and "an existing contact card is replaced with the updated contact card."

"replacing the existing contact card [...]" and "an existing [...] is replaced"

Microsoft supported the plain meaning or other wordings ("saving updated information in the contact database for an existing contact card", "changing information in a contact card"). Motorola wanted to narrow this down to a particular implementation strategy in which the existing contact card would be deleted and then substituted. The judge supported the plain meaning. Knowing that there are different ways for how to replace data in a database, I, too, believe Motorola's proposal was too limiting.

While these are two terms, they are related and were decided by the judge as a single issue, which is why I will count this as only one goal in Microsoft's favor.

Let's go back to ITCblog's list of the decision, patent by patent:

The ‘133 Patent - Four claim terms were disputed as to the ‘133 patent: “a menu selection relating to a class of objects to which the selected computer resource belongs”/ “a menu selection related to the class of objects to which the selected object belongs,” “a menu selection associated with a container in which the selected computer resource belongs”/ “a menu selection that is associated with the container in which the selected object belongs,” “label,” and “file system object menu selection corresponding to a file system object.”…

The ALJ disagreed with both parties proposed constructions and construed the phrases as “a choice or option in a menu based upon or determined by the class of objects to which the selected computer resource belongs.”…

ALJ Essex disagreed with both parties and construed the disputed phrases as “a choice or option in a menu based upon or determined by the environment or context in which the selected computer resource resides.”…

Based on the prosecution history, the ALJ agreed with Motorola and adopted its construction….

In the Order, ALJ Essex determined that the specification supported Motorola’s definition, and he adopted it.

(4 disputed terms: Microsoft 0, Motorola 2, Neither 2)

'133 patent (context menu patent) "a menu selection relating to a class of objects [...]"
and "a menu selection, related to […]"

Microsoft supported the plain meaning ("a menu selection relating to a class of objects to which the selected computer resource belongs"; "a menu selection, related to the class of objects or information related to a contact") or an alternative wording in which "menu selection" would be replaced with "a choice or option in a menu" and "class of objects [...]" with "a category of objects that includes selected computer resource". Motorola proposed "a menu selection connected to a selected object's class", which the judge found too limiting. The judge's own construction used Microsoft's proposed construction of menu selection ("a choice or option in a menu"), followed by "based upon or determined by the class of objects to which the selected computer resource belongs". In terms of the technical meaning, this is much closer to Microsoft's proposal than to Motorola's suggestion that the relevant menu selection should be connected to a particular class.

While these are two terms, they are related and were decided by the judge as a single issue, which is why I will count this as only one goal in Microsoft's favor….

"a menu selection associated with a container [...]"
and "a menu selection that is associated [...]"

Here we have a similar situation as with the previous two terms: the judge adopted Microsoft's proposal to define "menu selection as "a choice or option in a menu" and added a qualifier starting with "based upon or determined by", but rejected Motorola's more limiting definition ("a menu selection provided by the container in which the selected object is located"). Instead, Microsoft's proposal to use the rather broad term "environment [that includes one or more items]" was adopted by the judge -- he even added "or context" to it. So in terms of breadth, the judge essentially came down on Microsoft's side. While these are two terms, they are related and were decided by the judge as a single issue, which is why I will count this as only one goal in Microsoft's favor….

FINAL SCORE:

          Microsoft 17, Motorola 5          

Yet we see articles like this one in Seattle PI with the 17 to 5 figure presented as established:

Mueller took each of Microsoft’s 22 asserted patents in the ITC case and made up a scorecard, based on the judge’s recent findings. Today’s final score: Microsoft 17, Motorola 5.

The last time there were some scary articles about a claim construction order, with some concluding that Oracle's scoring points against Google in the number of claim construction terms the judge agreed with was a leg up for Oracle, I suggested that it was too early to tell what it meant and that journalists could save themselves embarrassment by just reading the filings themselves and not relying on Mueller or on any lobbyist for what they allegedly mean. Sure enough, afterward Oracle's claims were so severely cut back by the judge, from 132 to only 3 with a hope of possible adjustment in the future, it was clear that any claimed "leg up" from the claim construction order was illusory, because it will only matter if on the last lap one of the claims that survived is about a patent ruled valid and which turns on a particular construction that Oracle prevailed on. See what I mean? And at this point, no one knows what will happen in that litigation's last lap or in this one. So I reiterate my advice. Wait and see.