Friday, 25 May 2012

Latest Microsoft v. Motorola News - Judge Recommends 360 Import Ban

Not the best news for Microsoft, but also not completely unexpected, or even necessarily bad.

Right, I told you that I'd keep you updated on the whole Microsoft v. Motorola thing that's been developing. Well, earlier this week an International Trade Commission (ITC) judge ruled that Microsoft has in fact infringed on four of Motorola's patients.

In light of this, judge David Shaw ruled that Microsoft should stop importing and selling the Xbox 360 slim systems until this matter is settled, on top of posting a bond of 7% of the value of all unsold 360 systems already in the US. Now, it could have been much worse, Motorola was shooting for a higher number on that bond to the tune of literally all of it: 100%. While the bond is certainly higher then the 2.5% Microsoft was hoping for, I certainly believe that they're pleased that it's not a number closer to what Motorola would have liked.

Now, before a panic sets in it's important to note that the prohibition on 360 is a recommendation not a court issued order. There's a big difference between those two things.

A day after the ruling patent expert Florian Mueller talked to gamesindustry about the decision, and these are some of the key points that he had to say about the matter:

"Unlike judges at courts, ITC judges don't make the decisions: they merely recommend them. Their recommendations are very frequently not adopted by the Commission, the six-member decision-making body at the top of the ITC. Not only does the Commission overrule those judges with respect to the actual violations but the Commission also has the final say on remedies." 

Basically this decision may be overturned or changed completely by the time it gets finalized. There are also other factors in deciding just what is going to happen, consumer interest weighing heavily among them:

"Even if the Commission agreed with the judge on some or all of the violations, there are public interest considerations for which an exclusion order should not be entered, or at least not before or during the Christmas Selling Season. The more Xbox games makers write to the ITC about this, the less likely an import ban will be.  

"If many games makes write to the ITC, then I doubt that there will be ever be an actual Xbox import ban. What's more likely to happen is that a federal court in Microsoft's home state of Washington will set the terms of a license agreement that Motorola and Microsoft will have to enter into. As a result, Microsoft will be licensed and the Xbox won't be an infringing product." 

Some measure of power is now in the hands of the game companies that no doubt would like to see the 360 to continue to be available in the United States. The risk is still there of course, but it seems like at the moment we might finally be moving to settle this matter once and for all.

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