Robart didn't support that reasoning. "The court is not persuaded by this argument," Robart said.
In addition, Jenner argued that the U.S. could set different rates for different regions of the world.
Motorola has offered Microsoft a worldwide license that would require Microsoft to pay Motorola 2.25 percent of the end-user price of the product. Motorola assumed that that percentage would change and that Microsoft would ask for different rates in different countries, Jenner said. "Parties in a negotiation situation always make an opening offer. Nobody assumes that Microsoft will say 'that's great, where do we send the check,'" he said. Typically, the licensee examines each company's patent holdings in different countries and negotiates different rates in different markets, he said. Motorola has negotiated "dozens" of license agreements like that, he said.
But both Microsoft and the judge noted that Motorola's offer to Microsoft was for a worldwide license. The judge also pointed out that Motorola's offer included both U.S. and international patents. "If Motorola didn't want foreign patents subject to this court it would not have offered them to Microsoft," he said.
Art Harrigan, an attorney with Danielson Harrigan Leyh and Tollefson who is representing Microsoft, suggested that Motorola filed the case in Germany for leverage. "They want the threat of an injunction so they can extract something," he said. Otherwise, he argued, it doesn't make sense for Motorola to choose just two patents to charge infringement of in Germany, out of the 100 patents the companies are disputing.
Motorola argued strongly against the U.S. injunction. "You are being asked to interfere with a German court," Jenner said. "It's an intolerable intrusion on another country's prerogative."
In the end, the judge seems to have decided that preserving his power to rule on this issue was too important. But he implied it was a difficult decision in part because there is little precedent to guide him. "Jenner's description of this as a murky area is a bit of an understatement," he said.
The next hearing in the U.S. court is scheduled for May 7. A jury trial is scheduled for late November.
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