It's a common misconception that software patents are an exclusively American phenomenon and don't exist in Europe. There are different definitions of what constitutes a software patent. My definition of software patents certainly includes the following nine European patents asserted by Apple in its lawsuits against Nokia in the UK and in Düsseldorf, Germany:
EP0664021: menu state system
EP0760131: method and apparatus for distributing events in an operating system
EP0760126: pattern and color abstraction in a graphical user interface
EP0760122: switching between appearance/behavior themes in graphical user interfaces
EP0769172: method and apparatus for handling I/O requests
EP0727076: object-oriented graphic system
EP0664027: program modeling system
EP0719487: object-oriented telephony system
EP1964022: unlocking a device by performing gestures on an unlock image
All of those patents make reference to hardware components -- the "object-oriented telephony system" patent and the unlock patent do so very extensively. But the hardware components aren't novel. All the difference is made by software-related ideas.
The fact that Apple holds those patents and is suing Nokia over them doesn't mean that they are indeed enforceable. In fact, Nokia disputes the validity of those patents, and the German manifestations of those European patents (note that European patents are bundles of national patents) will be reviewed by the Federal Patent Court of Germany next year. But German courts tend to uphold software patents.
Last May I blogged about a landmark case in which the highest German court in patent (and many other) matters, the Bundesgerichtshof, upheld a Siemens patent on an XML document generator and explained that software inventions taking into account the characteristics of a computer on which they are running (such as memory and CPU speed constraints) are potentially patentable.
Nokia and Apple are embroiled in a huge, world-spanning patent dispute that may take years but could also be settled anytime. The Federal Patent Court of Germany has scheduled its first hearing in the nullity proceedings instituted by Nokia for February 9, 2012, so if the case isn't settled before, this conflict could also lead to some further clarity concerning the status of software patents in the largest European market.
How the information came to light
It's much easier to obtain information on lawsuits in US federal courts (via PACER) than on their European counterparts. Usually, complaints filed with European courts are not published. But Apple's Düsseldorf complaint against Nokia was published on the website of the European Patent Office in connection with a reexamination request.
Besides the list of patents it also contains the interesting information that Apple moved to set the value in dispute (the amount relative to which the court determines its fees) to 5 million euros for each of the nine patents, or 45 million euros in total. And that's just for Germany -- not for the entire European market.
Last week Nokia published its annual report for its fiscal year 2010. Its pages 166 and 167 talk about Nokia's ongoing litigation with Apple, and make it clear that the 9 patents asserted by Apple in Düsseldorf and the 9 patents asserted in London (before the High Court of England and Wales) are identical sets:
"On September 27, 2010, Apple commenced proceedings against Nokia in the Düsseldorf District Court in Germany. Apple alleges infringement of the same nine patents asserted in the UK action."
That's the fragmented European patent system: at this stage there isn't any way to litigate over a European patent in one court; instead, patent holders have to enforce the local manifestations of those European patents in different markets. In this case, Apple made the UK and Germany its strategic priorities. Nokia counterclaimed in those countries and additionally filed a lawsuit in the Netherlands.
Different outcomes even over the same issues are possible. For example, the German manifestation of a European patent could be upheld while the UK equivalent is thrown out. Similarly, Nokia or Apple could be found to infringe a valid patent in the UK but not in Germany.
Nokia's European patent assertions
I haven't been able to obtain any of Nokia's European complaints. All the information I have about the asserted patents is this Nokia press release issued on December 16. It describes the European patents asserted against Apple as being related to "touch user interface, on-device app stores, signal noise suppression and modulator structures", "antenna structures, messaging functionality and chipsets", "on-device app stores, caller ID, display illumination and the integration of multiple radios", and "data card functionality".
Some of those patents are probably also patents of the kind I refer to as software patents, but at least several of those patents will be hardware patents. Nokia has always been careful to describe the claimed inventions for which it seeks patent protection in Europe as "computer-implemented inventions". By contrast, Apple's patent applications appear to have been drafted with the requirements of the US Patent and Trademark Office in mind, and the USPTO generally considers software inventions patentable. In other words, Apple jumped high enough for the hurdle that exists in the US but possibly not high enough for the European requirements.
This could give Nokia a strategic advantage in Europe because Article 52 of the European Patent Convention doesn't allow patents on "programs for computers [...] as such". While that exclusion hasn't prevented tens of thousands (or by some counts, even hundreds of thousands) of software patents from being granted in Europe, it's key for patentees to draft their patents carefully around that formal exclusion. Comparing Apple's patents-in-suit to the general descriptions of Nokia's patents-in-suit, I believe Apple faces a considerably higher risk than Nokia that some of those patents could be declared invalid in Europe. Nokia probably did a better job at positioning its innovations as "technical" inventions that just happen to have a software component, as opposed to software being the essence of the claimed inventions, which is rather obvious in the case of most (if not all) of Apple's nine patents-in-suit listed above.
What I just explained could play a very important role in the further process. Since both Apple and Nokia haven't been too successful with their ITC complaints against each other so far, it's possible that the first actually enforceable court decision in that dispute will be handed in Europe, not in the US (where it all started in 2009). And the first one to hold an injunction against his rival in his hands will be in a strong position to negotiate a favorable settlement in exchange for lifting the blockade.
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