Thursday, November 21, 2019

Apple joins Intel in suing Softbank-owned Fortress for anticompetitive patent abuse through web of trollish subsidiaries

Last month, Intel brought an antitrust ocmplaint in the Northern District of California over Softbank-owned Fortress Investment's patent aggregation, obfuscation, and litigation tactics. Fortress's web of hyperaggressive patent assertion entities includes a huge and growing number of legal entities, some of whom have such names as Uniloc (which sued Apple 25 times and Google even 35 times), VLSI, DSS, Inventergy (which threatened an alleged infringer with an "IP bloodbath"), IXI, Seven Networks, and KIP CR (the CR in that name stands for "crossroads").

The good news for the trolls is that Intel withdrew its complaint. The bad news for them--but excellent news for product-focused companies who feel that enough is enough--is that the complaint came back with a vengeance as Intel and Apple made a joint filing yesterday as Reuters's Stephen Nellis was first to report (this post continues below the document):

19-11-20 Intel-Apple Antitr... by Florian Mueller on Scribd

In terms of the claims and prayers for relief, what's changed is mostly that Apple alleges FRAND violations. Uniloc is mostly or exclusively asserting--against Apple--standard-essential patents (SEPs) that previously belonged to Philips. (I've just recently become aware of a Philips patent licensing tactic in the LED segment that raises some very serious questions as well.)

The new complaint states some numbers I hadn't seen in the original one. For an example, there are estimates that tens of billions of dollars have been invested in patent litigation, and "the largest litigation investor reported having investments of $2.8 billion in 2019."

The amounts that some Fortress trolls are seeking from Apple are shocking. For an example, "VLSI claims up to $7.1 billion in connection with eight patents in the California Action and multiple billions of dollars in damages in the Delaware I Action." And that's just a small and limited part of the overall litigation activity by Fortress-controlled companies against Apple. Another group of Fortress entities, Uniloc, is seeking damages from Apple in the range of $2.6 billion to %5.1 billion from only 4 (!) of the 25 aforementioned Uniloc v. Apple cases as you can see on pages 30 and 31 of the complaint. According to Apple, "Uniloc "simply adopted the amounts that Apple sought from Samsung in litigation for Apple's patents." What Apple means is what Uniloc wants on a per-unit basis. I've criticized Apple very strongly for some of its damages claims against Samsung, but even if one agreed with what Apple wanted from Samsung at the time, it just wouldn't make sense to copy and paste an amount when it's about completely unrelated patents.

The fact that Apple has thrown its weight behind the case--in addition to Intel, which took the initiative last month--has several effects:

  • Intel's complaint already mentioned the cases against Apple, but having the target of dozens of the relevant cases directly involved raises the profile of the problem.

  • While most Silicon Valley jurors will likely have heard of Intel, Apple is more of a household brand.

  • It would presumably have been difficult for Intel to make some of the FRAND breach arguments that Apple, as a target of SEP assertions by Softbank, has brought in the joint complaint.

  • With both Intel and Apple based on the outskirts of San Jose, it should be easiser this time to keep the case in San Jose (where the complaint was filed) rather than having it reassigned within the district to San Francisco.

Now I only wish Google--another target of dozens of Fortress-funded patent lawsuits--could also join so the industry presents a united front to those industrialized patent trolls. But even if Google elected to stay on the sidelines, the combination of Intel and Apple will put Fortress and--by extension--Softbank under serious pressure.

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Wednesday, November 20, 2019

Short summary of November 12, 2019 Brussels conference on Component-Level SEP Licensing

This is the final part of a post-conference "trilogy." After publishing the slide decks used by seven panelists and an abstract of one presentation and reporting on the patent injunctions panel (with a particular focus on the German reform project) (where I just added the German-language version of Maurits Dolmans's slides), I'll now summarize the component-level licensing panels.

It's normally easier to report and comment on other people's conferences. What makes it equally easy in this case is simply that all the feedback I received was extremely favorable on the bottom line. There was one panel where maybe things appeared a bit repetitive during the last third or quarter to parts of the audience, but that was the only criticism I heard.

It was part of the plan to kick off the day in a way that would energize everyone. With Pat Treacy (Bristows), Paul Lugard (BakerBotts), Jay Jurata (Orrick, Herrington & Sutcliffe) and Professor Christian Donle (Preu Bohlig & Partner) I had four great lawyers--well-respected in the legal community including some of their adversaries--whom I was able to ask a few questions on component-level licensing and the royalty base. Like all other lawyers who spoke at my conference, they didn't express the views of any particular client (nor did Mrs. Treacy speak for the England & Wales High Court, on which she serves as a Deputy Judge).

The first question to them was about component makers' entitlement to a SEP license on FRAND terms under the antitrust laws. Mr. Jurata and Professor Donle explained their conclusion that it's necessary for competition to work. In those opening statements, Professor Donle made the funniest remark of the day when he said that SEPs are like railroad station toilets--not that nice, but you need to use them.

Mrs. Treacy and Mr. Lugard didn't rule out categorically that there might be circumstances under which there could be an antitrust case, but spoke out against the notion of a bright-line rule. Mrs. Treacy said that as a competition lawyer she'd like the idea of competition law being able to solve all of the world's problems, but doesn't view it that way. What she said came down to saying that an antitrust injury would need to be proven in a particular case, and otherwise contract law (FRAND declarations) might be the answer in some additional cases. Mr. Lugard used different terms to express a view that was materially consistent with this: to him, too, it's a case-by-case question. Mr. Lugard stressed the deference afforded to intellectual property rights in an antitrust context.

After the first round of statements, there appeared to be a sharp divide between Mrs. Treacy and Mr. Lugard on one side of the table (their seats hadn't been pre-assigned) and Mr. Jurata and Professor Donle on the other side. But as we went back and forth, it turned out they weren't worlds apart. All four panelists were extremely constructive, and I had the impression that one statement by Mr. Jurata--who in his introduction noted that his clients included licensors as well as licensees--was key to starting the partial "rapprochement".

The second panel addressed a fundamental question: access to licenses under contract laws. PacTechLaw's Dave Djavaherian made an initial presentation (with slides) before asking Professor Philippe Stoffel-Munck from Universite Paris I - Panthéon Sorbonne and Marc Hansen (Latham & Watkins) questions. Professor Stoffel-Munck explained contract interpretation principles under French law, which sounded familiar to California-based Mr. Djavaherian because they make universal sense. There was consensus on that panel that component makers are entitled to licenses under the ETSI FRAND declaration. (Needless to say some parties have presented expert testimony to the contrary in U.S. cases.)

The "experiences from the field" session with three medium-sized companies on the panel and Cisco's Ief Daems as the moderator addressed the issue of SEP licensing from an angle that should (and hopefully will) matter to policy makers. Metin Taskin (AirTies), Svein-Egil Nielsen (Nordic Semiconductor) and Rasmus Søby Dupont (Kamstrup) shared with us how difficult it is for companies their size to deal with patent licensing issues--and how much better things would be if all SEP holders licensed chipset makers.

One of them gave an example of 200 patents a troll wanted to license to them on the basis of those patents having been declared to be essential to the WiFi standard--but the company so approached could easily rule out for 180 (90%) of them that they were WiFi-essential. The claims were simply not closely related to the specification of the WiFi standard.

I wish someone could conduct a research project on the difficulties facing such companies in patent licensing. Apparently a lot of funding goes into efforts to get companies like that to file more patents of their own. But the unreasonable burden placed on them impedes innovation.

Professor Joachim Henkel (Technical University of Munich) presented the economics perspective on patent licensing in the IoT business. The advantages that component-level licensing offers over device-level licensing in his view are that royalties are directly tied to the implementation quality of patented technology (example: high-end vs. mid-tier or low-end baseband chip), the lower transaction cost, the fact that startups and small-volume device makers (which would include the panelists I just mentioned, though AirTies has sold tens of millions of devices and still struggles to deal with patent issues), and that all tiers of the supply chain are then licensed consistently.

In the second half of the conference, Mr. Jurata provided a quick overview of the FTC v. Qualcomm ruling by Judge Lucy H. Koh and the next procedural steps, followed by presentations by Eric Stasik (licensing practitioner's perspective on the fallout from that decision) and the Secretary-General of the Fair Standards Alliance, Evelina Kurgonaite, who applied EU statutes and case law to the facts in FTC v. Qualcomm based on Judge Koh's findings of fact and conclusions of law.

Mr. Stasik made it clear that he's not a lawyer, but he has extensive licensing experience (as a former Ericsson licensing director and, more recently, a consultant and expert witness). He's not of the opinion that component-level licensing is the answer, and he basically made the case against the case against Qualcomm. Mr. Stasik is a gifted speaker, and everyone could see his strong background in technology, standards, and licensing.

Mrs. Kurgonaite demonstrated that she's a competition lawyer, but also an articulate exponent of her organization's interpretation of FRAND. Assuming that the facts underlying an EU competition case would be the same as in FTC v. Qualcomm, Mrs. Kurgonaite concluded that such behavior would also be deemed anticompetitive in Europe.

At some point Mrs. Kurgonaite made reference to something Mr. Stasik had said before (and disagreed), but then came a point when Mr. Stasik agreed with her on an important part of her analysis, prompting Mr. Jurata to say: "Who says we can't find consensus."

It had been my goal to bring together panelists representing a diversity of views. What complicated that effort is the fact that companies who just don't want to engage in component-level licensing turned me down when I invited themn. But we still had some lively debate (not on each panel, but on multiple occasions).

Intel's director of IP policy in the EU, Dr. Rebekka Porath, moderated a panel on some antitrust complaints over component-level licensing. Professor Rafal Sikorski (Adam Mickiewicz University) gave an overview that went back to the first antitrust cases in the U.S. about 100 years ago were (F)RAND was established as a principle. His cross-jurisdictional knowledge is impressive, and since SEP cases are generally not litigated in Poland for practical reasons, he's neutral, though it appeared to me that his views on FRAND weren't far from my own. After Professor Sikorski's presentation, I filled in for Kent Baker of u-blox, who wasn't able to travel that week, to give a quick overview of the Continental v. Avanci et al. case pending in the Northern District of California. (As we were running behind schedule, I requested to hold a vote, but there was a lot of interest in that part, too, and maybe that's because Continental is also among the five companies who complained to the European Commission's Directorate-General for Competition over Nokia's refusal to license component makers.)

Thereafter, the bonus session on access to injunctive relief (which I covered a couple of days ago) took place.

I wish to thank once again all moderators and panelists, and a wonderful audience.

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Tuesday, November 19, 2019

Report on Berlin SEP licensing and injunctions workshop released by ACT | The App Association: AllThingsFRAND

The patent injunctions panel at the Brussels conference I organized last week and the SEP licensing workshop hosted by ACT | The App Association in Berlin on September 30 had hardly any overlap, despite both having much to do with the ongoing German patent reform process. Some of the relevant SEP injunctions case law had to be summarized on either occasion for context, but apart from that, the focus in Brussels was very much on (i) the proportionality principle under the EU's IPR Enforcement Directive (IPRED) and (ii) the state of affairs in the German process (with the ministry's draft bill still being on the drawing board), while the Berlin event covered the subject from a multiplicity of angles. Another difference is that ACT's event--under the ALlThingsFRAND label--was subject to the Chatham House Rule (no attribution of quotes to speakers), enabling some people to participate and share their views who otherwise couldn't have done so.

Yesterday, ACT uploaded its official "Report from Berlin" in English (the language in which the event was held) and in German.

The underlying idea of ACT's event was multi-stakeholder collaboration, and the following roadmap is laid out in the report:

  • Communicate cross-sectoral multi-stakeholder consensus views on the interplay of patents, standards, and innovation in a public letter to EC leadership

  • Seek broad cross-sector multi-stakeholder collaboration in developing specific recommendations for German policy-makers on needed patent reforms to prevent SEP abuse

  • Continue support for CEN-CENELEC CWA 95000, Core Principles and Approaches for Licensing of Standard Essential Patents, through advancing its recommendations to EC policymakers and EU member states and seeking reedback on new venues and opportunities for this purpose

  • Replicate the goals of the Berlin workshop to be the beginning of further standards, patent, and SEP-related dialogue, scholarship, and ingenuity

With respect to SEP abuse, one of the speakers (whom I can't name due to Chatham though I'd like to give him credit for a first-rate presentation) gave a variety of examples of unfair conduct by SEP holders in connection with FRAND determinations and royalty negotiations. Those schemes were all known to me in principle because they surface all the time. But what I found really shocking is that even with the means of U.S. discovery at attorneys' disposal, some of those side agreements that effectively reduce royalty rates way below the nominal one (but the nominal one is then demanded from everybody else) don't show up easily. The panelist talked about one case (without naming the parties) in which even after extensive discovery they still hadn't seen the whole picture, but because of some oddities and irreconcilable numbers it dawned on them that some important element was missing. And then it turned out there was indeed yet another (not originally produced) agreement that changed the whole picture.

What others had previously told me is that SEP holders--with a view to future FRAND determinations in negotiations, arbitration or litigation with other parties--initially seek out small, financially weak and unsophisticated companies so they can easily impose high royalty rates on them and use those later in discussions or disputes with larger, deeper-pocketed and more experienced players as points of reference.

Another very well-known issue is that the confidentiality obligations imposed on potential licensees are often designed to just prevent--rather than enable--an actual analysis of the infringement allegations.

The mix of practicioners, policy experts, and academics at ACT's Berlin event was very good. Also, a European Commission speaker outlined the EC's perspective, and the audience agreed with most if not all of what he said.

What both ACT's Berlin event and my Brussels conference had in common is that, while "SEP" was in both titles, the injunction reform discussion inevitably includes non-SEPs. One can't help in the injunction context but touch on the problem of Germany's automatic patent injunctions over non-SEPs. Even for SEPs, despite the CJEU's Huawei v. ZTE ruling, more balance is needed in Germany. Those opposed to meaningful patent injunction reform in Germany try to argue that injunctions were only (or largely) a SEP-related issue that the CJEU allegedly solved years ago. But that's not true. The situation with respect to SEPs is still troubling, and non-SEP injunctions can wreak logistical havoc, too--not always, but sometimes.

ACT's Berlin event was designed to start and inspire discussion--not to solve the issues, but to contribute to the quest for solutions. The Federal Ministry of Justice and Consumer Protection will soon put a first draft bill on the table for stakeholders to comment on; thereafter, a second proposal will be sent to the Federal Parliament (Bundestag). There'll be more patent policy events in Berlin next year in all likelihood, and some of the information exchanged at ACT's event will be referenced on such future occasions, I guess.

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Monday, November 18, 2019

German patent reform discussed at Brussels conference: automatic injunctions contravene EU law

Apologies for being a bit slow to report on my own conference (held last week). On Friday I published all seven slide decks and an abstract. But there's so much going on that I have quite a backlog, which besides the component-level licensing parts of last week's conference also includes a DOJ amicus brief and a couple of SEP-related position papers as well as the Supreme Court's grant of certiorari in Oracle v. Google.

Not only have I received plenty of positive feedback to last Tuesday's conference from attendees but there was also an unmistakable sign: even though we were running one hour behind schedule, the room was still almost full at the end of the day. That speaks to the way the conference as a whole was received, and also to the popularity of the "bonus session" (as I called it because it wasn't exactly about component-level licensing, and not even SEP-specific, apart from Bram Nijhof's highly informative overview of the evolution of case law since Huawei v. ZTE) at the end of a long day.

Edmund Mangold, patent counsel at BMW and personally very much involved with the German patent reform debate at the level of industry bodies, provided an introduction. After Taylor Wessing's Bram Nijhof's case law overview, Cleary Gottlieb's Maurits Dolmans made an unequivocal statement in the title of his presentation: "We Need Proportionality Review for Patent Injunctions under German Law"

It's no secret that I couldn't agree more. Having observed well over 100 German patent trials this decade (SEP and non-SEPs alike), I've seen too many situations in which injunctions came down that probably--and sometimes most probably--wouldn't have been granted in other jurisdictions. All too often it's easy for an experienced litigation watcher to figure that some plaintiffs are playing the lottery by asserting a bunch of mostly dubious patents in Germany (typically, the most questionable ones are selected for complaints brought in Munich) in hopes of a lucky punch that allows the winner to take it all: a favorable settlement.

What we learned from Mr. Mangold was that the German government had originally planned to put forward a proposal by now, and that in his observation there was some political momentum toward closing the injunction gap, which is due to the fact that infringement cases are adjudicated much faster than nullity actions before the Federal Patent Court.

But what most companies in the automotive industry, but also the mobile communications industry, would like to see is a reform that would update Germany's Patentgesetz (Patent Act) to the effect of requiring a proportionality analysis--in each individual case--prior to ordering an injunction.

Mr. Dolmans--just like all the other speakers, expressing his personal views and not those of any particular client--had a nice analogy to the issue of royalty stacking in his presentation [Update] After the conference, Mr. Dolmans thankfully made a German-language version of the slide deck available, too. [/Update]: at some point there were so many robber barons along the Rhine river, with each of them imposing his tax on boats passing by, that transporting goods over long distances became economically unviable on that particular river.

Compared to what Preu Bohlig's Professor Christian Donle had said on the first panel of the day (he likened SEPs to railroad station toilets--not that nice, but you need to use them; I'll report on that panel in another post), this was still a flattering comparison.

The focus, however, was on proportionality, and how clear-cut both the EU's Intellectual Property Rights Enforcement Directive (IPRED) and the Court of Justice of the EU's case law are.

To bookend the day, I asked the three panelists questions with a particular focus on the German reform process. They all had very interesting answers (for an example, Mr. Nijhof explained to what extent courts in other jurisdictions do or do not believe that Huawei v. ZTE inherently takes care of proportionality), but I'll highlight two soundbites from Mr. Dolmans with a view to the further debate:

  • When I asked him whether the European Commission could take Germany to task in case the forthcoming reform fails to incorporate the proportionality principle into German patent law, his answer was clear: yes, if the Commission wanted, it could. It could even impose fines on Germany.

  • In response to my reference to one of Germany's highest-ranking judges arguing that German patent remedies are inherently proportionate because difficulties in obtaining damage awards counterbalance easy access to injunctions, Mr. Dolmans said: "Structural is nice, but you need individual justice in each case." His co-panelists agreed as far as I could see. And (now Lord) Justice Richard Arnold from the UK also made this very clear, without naming Germany, earlier this year.

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Friday, November 15, 2019

Slide decks from Brussels conference on Component-Level SEP Licensing (November 12, 2019)

During and after the Brussels conference on Component-Level SEP Licensing that I organized on Tuesday, I've received various requests for the panelists' slide decks. Fortunately, all the speakers who used slides have provided them to me by now and authorized their publication.

I'll also do a follow-up in the form of a summary (with some soundbites).

Now, let me provide links to the slide decks in the chronological order of the presentations:

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Munich appeals court schedules ruling on Nokia's anti-antisuit injunctions against Continental for December 12

Just a quick follow-up to yesterday's report on the appellate hearing in Munich on Nokia's anti-antisuit injunctions against Continental:

The Munich I Higher Regional Court's press office told me today that a ruling has been scheduled for December 12.

I still predict the same outcome: reversal. The court's position on the irreconcilability of an antisuit--including anti-antisuit--injunction with German law didn't appear to change at any moment during the hearing that lasted well over two hours. What I attribute the delay to is simply that this appeals court--at least when it comes to patent cases--tends to write very comprehensive opinions. Those judges won't necessarily address each and every argument they don't have to reach. But unlike their U.S. counterparts, they do cover a lot of ground beyond the shortest path to a particular outcome when fundamental questions are at stake. Earlier this year, an injunction Qualcomm had won and enforced against Apple in Germany was tossed on three independent grounds, any single one of which would have been self-sufficient.

The practical effect of this target date is that Continental can't make a third attempt at a U.S. antisuit injunction for another four weeks. Meanwhile, on December 10, the first Nokia v. Daimler trial will be held in Mannheim (there have been first hearings in three Munich cases, but the second hearings there are the actual trials and the soonest one of them will take place in February). In all those years I've seen only one bench ruling in Mannheim, so realistically, there won't be any German patent injunction in place against Daimler before sometime in January. Meanwhile, a renewed motion for an antisuit injunction in the U.S. could be resolved if a motion to shorten time succeeded--which it might if a Mannheim injunction loomed large after the December 10 trial, especially since the issues have been briefed before, even if not by Sharp and Conversant.

The Mannheim Regional Court is more likely than the one in Munich to be receptive to the argument that Nokia shouldn't be granted injunctive relief against an end-product maker (Daimler) only because of a refusal to extend an exhaustive license to upstream companies in the supply chain. I'm cautiously optimistic it may work out that way (or Nokia's Mannheim case might also fail on the merits and be rejected or stayed). In that case, a U.S. antisuit injunction won't even be needed before the first final Nokia v. Daimler judgment is entered in Munich.

Nokia may lose everything in the end. Huawei is probably going to win its private antitrust lawsuit against Nokia in Dusseldorf. The European Commission might launch formal investigations anytime. And if Nokia can't gain decisive leverage over Daimler in the short term, it will probably end up paying tens of millions of euros under Germany's "loser pays" rule as there's an army of intervening companies on Daimler's side and Nokia has to pick up the bill for all those legal entities if it loses. Statistically, most of those types of complaints don't go anywhere, so Nokia needs a lucky punch, but it faces some hurdles. I was less optimistic about Daimler and its suppliers' ability to fend off Nokia's patent assertions, but Huawei's Dusseldorf action is a game changer: even if Nokia could force Daimler to take a license (be it from Nokia or from the Avanci pool as a whole), Huawei's lawsuit would continue unabatedly.

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Thursday, November 14, 2019

Munich appeals court likely to reverse Nokia's anti-antisuit injunction against Continental: Judge Koh may have to rule on third antisuit motion soon

Before we go to today's Munich appellate hearing, let me just say that this week's Component-Level SEP Licensing conference in Brussels exceeded expectations, which applies to the quality of the presentations of those who strongly advocate component-level licensing obligations under antitrust and contract law as well as of those who are skeptical of, or even adamantly opposed to, at least one of those legal bases--everyone I invited was terrific. I'll publish the slides no later than this coming weekend. Now, the latest from Nokia v. Continental.

3 1/2 months ago I voiced a concern over what appeared to be a contradiction in the Munich I Regional Court's decision to grant Nokia an ex parte (i.e., without notice or hearing) anti-antisuit injunction against Continental, barring the automotive supplier from shielding Daimler from Nokia's numerous German patent infringement actions:

There's something odd about the anti-antisuit-injunction injunction. The order notes that antisuit injunctions of the kind that exists in the U.S. are not known in Germany. But then the court somehow threads the needle and actually does issue an antisuit injunction for the purpose of thwarting a potentially-upcoming antisuit injunction from overseas.

A month later, when the Munich court entered another such injunction (against a different Continental legal entity), I wrote "[t]he appeals court may very well find that two wrongs don't make a right."

That's precisely what's most likely to happen this evening by Central European Time (morning by Pacific Standard Time), though it won't become known until tomorrow morning local time.

To be fair, Presiding Judge Tobias Pichlmaier of the 21st civil chamber of the lower court--in a speech delivered a couple of weeks ago--as well as the late-August decision (which came after briefing and hearing, unlike the ex parte in July) were definitely more nuanced than the first, hastily-prepared decision. Still, Presiding Judge Konrad Retzer of the 6th Civil Senate of the Oberlandesgericht Muenchen (Munich Higher Regional Court) started today's appellate hearing with a summary of the factual and legal issues that included two grounds of reversal:

  1. A preliminary injunction might not be warranted as no Continental antisuit motion against Nokia is currently pending in the United States. But Nokia's lead counsel, Arnold Ruess's Cordula Schumacher, accurately pointed out that Judge Lucy H. Koh of the United States District Court for the Northern District of California had not resolved the issue on a definitive basis: Continental could refile. I would file under lawyer's hyperbole that she said Judge Koh had twice "invited" Continental to refile. Once: yes. Twice: well, the denial of Continental's motion for an anti-anti-antisuit temporary restraining order merely noted that Continental had been told they could bring another motion for a preliminary injunction, but it's in the eye of the beholder whether that's an invitation.

  2. Judge Retzer appeared to be unconvinced by the attempt to distinguish the German anti-antisuit injunction from a U.S. antisuit injunction only because of a narrower scope (relating to a motion rather than an entire litigation). While he credited the lower court for its diligent analysis of some other aspects of the matter, he appeared to view this part as reversible error. Also, being the incarnation of equanimity, he did not appear receptive to an equality-of-arms argument (U.S. court can issue antisuit injunctions, so--Nokia said--German courts should provide a countermeasure). Neither did Nokia's self-defense argument get much traction: Judge Retzer explained that self-defense is when a court can't help you before it's too late, and not when you can still go to or defend yourself in court. The analogy he used was somewhat similar to Second Amendment activists' "when seconds count but the cops are minutes away" argument.

    Recent anti-antisuit decisions in Paris and London didn't bear any non-negligible weight with the German appeals court either as they didn't (because they couldn't) address the questions to be resolved under German law.

The court declared its intent to reach a decision today, but it would be late, so Judge Retzer asked parties, counsel, and the general public (like me) to go home and call his chambers tomorrow morning.

The decision will be final as preliminary-injunction rulings cannot be appealed to the Federal Court of Justice.

Affirmance of Nokia's anti-antisuit injunction would be a major surprise. Also, while the presiding judge's initial outline also mentioned the intermediary or complicit liability of Continental AG with its indirect U.S. subsidiary Continental Automotive Systems as a potentially outcome-determinative issue with respect to one of the two injunctions, that question wasn't discussed in the hearing--presumably because it won't have to be reached.

Nokia voluntarily joined two U.S. standard-setting organizations--ATIS and TIA--and made U.S. FRAND declarations. In doing so, Nokia submitted to U.S. in personam and in rem jurisdiction, which entails, ínter alia, the possibility of antisuit injunctions. Continental couldn't have enforced its rights as a third-party beneficiary in any other jurisdiction than the U.S., where the automotive supplier has significant business activity in the Wolverine State as well as the Golden State. Assuming that Nokia's anti-antisuit injunction (which was in any event a brilliant tactical move and definitely had an impact, though probably a short-lived one) gets lifted, Continental is likely to refile in the U.S.--where the standard for an antisuit injunction is fairly high and may not be met in this case.

In a related development, Judge Koh canceled the hearing on the Avanci-Nokia venue transfer motion, which she often does when the parties' briefs constitute a sufficient basis for adjudication. But there may be a hearing--in a week from today--on the defendants' joint motion to dismiss.

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