Import ban on Motorola's Android products takes effect Wednesday

But Motorola has a plan to maintain device availability in the US.

The Motorola Xoom is one of 18 Android products affected by a pending import ban.
Motorola
An import ban on Motorola Android devices ordered by the US International Trade Commission is scheduled to take effect tomorrow. Motorola Mobility says it has a plan to make sure its Android phones and tablets remain available to US consumers—but the company isn't revealing just what that plan is.

The ITC ordered the import ban two months ago, after ruling that 18 Motorola Mobility products infringe a Microsoft patent. The patent is related to Exchange Active Sync and covers the generation of meeting requests and group scheduling from a mobile device. The ruling was subject to a 60-day Presidential review period, which will expire Wednesday.

Motorola, which is owned by Google, has several options. It could pay Microsoft for a license to the ActiveSync technology, just as it did between 2003 and 2007 before deciding that it wouldn't do so anymore. Motorola could also remove the infringing feature, or issue a software update that implements it in another way that doesn't infringe Microsoft's patent.

Motorola hasn't said what option it will choose, but told Ars in a statement that it will make sure US customers can still buy the devices.

"In view of the ITC exclusion order which becomes effective Wednesday with respect to the single ActiveSync patent upheld in Microsoft's ITC-744 proceeding, Motorola has taken proactive measures to ensure that our industry leading smartphones remain available to consumers in the US," Motorola said. "We respect the value of intellectual property and expect other companies to do the same."

As Motorola did not say whether it will import more devices into the US after Wednesday, it's possible the company has just stocked up to the point where it can meet US demand without more imports. However, Motorola was required to post a bond of 33 cents for each import that occurred during the 60-day Presidential review period.

UPDATE: We asked Motorola for more information, and got a slightly more specific response on Wednesday. "We can't share specific details, but we have employed a range of pro-active measures to ensure there is no continuing infringement under the ITC's interpretation of this single Microsoft patent," the company said. That statement is still vague, but seems to imply a software update that either strips out the calendar syncing functionality or implements it in another way.

The ITC proceedings have centered on these products: the Motorola Atrix, Backflip, Bravo, Charm, Cliq, Cliq 2, Cliq XT, Defy, Devour, Droid 2, Droid 2 Global, Droid Pro, Droid X, Droid X2, Flipout, Flipside, Spice, and Xoom.

"The exclusion order is not limited to these devices at issue in the ITC, but will cover all infringing devices from now until to the expiration of the patent, April 10, 2018," a Microsoft representative said.

Microsoft's complaint to the ITC in October 2010 named several of the above products, while saying Motorola's alleged violations weren't limited to those devices.

The ITC's exclusion order doesn't mention specific Motorola phones and tablets, but states broadly that "Mobile devices, associated software and components thereof covered by claims 1, 2, 5, or 6 of United States Patent No. 6,370,566 that are manufactured abroad by or on behalf of, or imported by or on behalf of, Respondent [i.e. Motorola] or any of its affiliated companies, parents, subsidiaries, successors, assigns, or other related business entities, are excluded from entry for consumption into the United States, entry for consumption from a foreign trade zone, or withdrawal from a warehouse for consumption, for the remaining term of the patent."

Microsoft and Motorola have various lawsuits pending against each other. Motorola has sued Microsoft using standards-essential patents, and is trying to get an import ban on the Xbox 360.

Microsoft is already paid royalties on more than 70 percent of Android smartphones sold in the US, with the Google-owned Motorola the lone major holdout.

"Microsoft brought this case only after Motorola stopped licensing our intellectual property but continued to use our inventions in its products," David Howard, Microsoft’s deputy general counsel, said in a statement sent to Ars. "It’s unfortunate we’ve been forced to pursue legal action, but the solution for Motorola remains licensing our intellectual property at market rates as most other Android manufacturers have already done."

Given Motorola's promise to maintain device availability in the US, we asked Microsoft if it knows how Motorola will comply with the ITC exclusion order, and whether the two companies have come to some kind of agreement. It appears that no settlement has occurred, and Microsoft is also in the dark on how Motorola will ensure compliance.

"We do not have information on how they will comply," a Microsoft representative told us.

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