Maureen O'Gara

Following the consent decree Google signed last week with the Federal Trade Commission limiting its use of standards-essential patents (SEPs), Google satellite Motorola Mobility told the International Trade Commission Tuesday it wants to drop the two remaining video compression SEP claims it's been pushing against Microsoft.

Motorola has already abandoned other SEP claims in the suit.

Microsoft wants to license the H.264 IP for its Xbox gaming console but only on fair and reasonable terms and has rejected Google's demand for billions of dollars a year.

For its part Google wants to block Xbox imports into the US but the FTC told Google it had to license the widgetry to "willing licensees" even if that takes binding arbitration.

Motorola Mobility still wants to pursue Microsoft on a non-SEP infringement charge and wants damages on all the patents. Such a scenario would take an appeal to the Federal Circuit.

Google is also still involved in suits over SEP injunctions in federal court in Seattle and in Germany.

Microsoft anticipated Motorola's dismissal move in a filing Monday.

Motorola is taking evidently the same tack with Apple. In the Apple case it needs the ITC to reverse Administrative Judge Thomas Pender's finding that the non-SEP patent it wants to use to cripple Apple is invalid although Apple appears to tread on it. It concerns deactivating a touchscreen when the phone is held close to the user's ear during a call. Apple may be able to rebuff the charge. It's hard to tell since the motions are sealed.

Then on Tuesday the Justice Department and the Patent and Trademark Office put out an unusual position paper on the SEP remedies that FOSS Patents says "muddies the water" and becomes "part of the problem."

The blog takes issue with the agencies' statement that "if a putative licensee refuses to pay what has been determined to be a F/RAND royalty, or refuses to engage in a negotiation to determine F/RAND terms, an exclusion order could be appropriate. Such a refusal could take the form of a constructive refusal to negotiate, such as by insisting on terms clearly outside the bounds of what could reasonably be considered to be F/RAND terms in an attempt to evade the putative licensee's obligation to fairly compensate the patent holder. This list is not an exhaustive one."

It says the loophole is "totally open-ended" citing the policy statement's unbounded position on this so-called "constructive refusal to negotiate" as grounds for an injunction for SEP infringement.

It figures that the agencies' saying the list is "not exhaustive" means the DOJ and the PTO "aren't serious about curbing SEP abuse." They want to keep the door open to SEP-based injunctions whereas the FTC should realize that "the notion of mutually assured SEP-based destruction" is a bad idea that no one other than Google and its minions would want to support.