According to a report from Geekwire (via Slashdot), Microsoft’s new surface tablet has been a topic of conversation today on the opening day of patent trial between Microsoft and Motorola. The case previously focused mainly on Windows and Xbox 360. Now Motorola’s lawyers want the judge to consider Microsoft’s new Surface tablet, arguing the Wi-Fi-related technology at the heart of the case is critical to the device:

It turns out that Motorola wants the judge to also consider new and future Microsoft products that implement Motorola’s patented technology as he figures out how to set the royalty rates that Microsoft should pay for Motorola’s patents. In a brief filed in advance of the trial, Motorola contends that 802.11 WiFi technologies are critical to Surface, because it doesn’t have an Ethernet port or cellular broadband.

Motorola’s lawyers provided the following statement in the document:

 “Microsoft’s new Surface tablet will use only 802.11, instead of cellular or wired connections, to connect to the internet. Without 802.11 capability, the Surface tablet would be unable to compete in the market, because consumers can readily select tablet devices other than the Surface that have 802.11 capability.”… Motorola contends that the judge’s deliberations “would need to account for the likely use of Motorola 802.11 SEPs [standard-essential patents] in future products (e.g., Microsoft’s recently released Surface tablet product).”

As for how much Motorola is asking for, it appears to still seek a 2.25-percent royalty. However, Microsoft’s lawyers argued this figure was “outrageous”:

Microsoft argues that Motorola’s original offer to license patents to Microsoft for 2.25 percent of the end product price was outrageous — potentially totaling $4 billion a year — considering Motorola’s promise to standards bodies to offer access to the “standard essential” patents on fair and reasonable terms… Motorola contends that Microsoft gave up its right to a reasonable royalty by filing the lawsuit in response to Motorola’s initial royalty demand.