Federal Judge Sorts Expert Witness List in Motorola-Microsoft Patent Dispute

A federal judge in Seattle has swept through a list of experts that both Microsoft and Motorola want to testify in the continuation of their contentious court battle over a technology licensing dispute related to wireless technology used in the Xbox 360. The back and forth between Microsoft and Google subsidiary Motorola is about how much Microsoft should pay for essential technology on a reasonable and nondiscriminatory (RAND) basis.

Microsoft contends that Motorola demanded exorbitant licensing fees that are in breach of industry-wide agreements, while Motorola claimed patent infringement against Microsoft over the technology it is using in the Xbox 360. This battle has been going on for over three years.

U.S. District Judge James Robart issued rulings on which expert witnesses on both sides would be allowed and which would be excluded. While going through this hearing, the judge expressed the court's disapproval of the game-playing on both sides.

"At the outset, the court takes the rare opportunity to note that this order may not be as helpful as it could be because after expert discovery the parties continued to modify the expert reports and proffered expert testimony that was the subject of their motions," Robart wrote. "Matters were complicated further at oral argument when both parties represented that they would further modify certain expert reports based on arguments raised in the motions. The court has found it difficult to gain solid footing on the ever-shifting sands of information contained in the parties' expert reports. Ruling in this context has been a challenge because the court has been forced to examine newly submitted testimony without the benefit of argument or briefing. At this point, the court must rule in order for the trial to move forward; there is no time to order supplemental briefing or argument. In light of this reality, the court can only express its disapproval of the parties' conduct and warn that similar conduct by either party in the future will not be well received."

Earlier this year, the judge rejected Motorola's initial $4 billion demand (in royalties owed by Microsoft) for a figure half that size. Microsoft owes Motorola about $1.8 million a year under Robart's plan, according to estimates.

In the second phase of the trial Microsoft will attempt to prove that Motorola breached its RAND contract with the $4 billion demand. That will begin on Aug. 26 and will be a jury trial, as request by Motorola.

Source: Courthouse News

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