Friday, February 10, 2012

Apple sues Samsung in Mannheim over patent based on which a Munich court denied a preliminary injunction last week

Apple does not let anyone off the hook too easily when it comes to patent litigation. Samsung, which has so far also shown quite some perseverance, knows exactly what I mean.

A few days ago I read that Apple injected roughly 20 new patents into its Australian litigation with Samsung (I have not yet seen a complaint or a list of patents), and this morning I saw that Apple has brought another U.S. lawsuit against Samsung in the Northern District of California, with a simultaneous motion for a preliminary injunction (still waiting to find out more about that).

Photo gallery patent trial

Today I attended a trial in Mannheim, where Apple scored a defensive win earlier today -- its first one so far against Motorola Mobility. In the afternoon, the court heard the parties' arguments with respect to an Apple lawsuit filed last June over the photo gallery page-turning patent (EP2059868 on a "portable electronic device for photo management") based on which Apple already won a preliminary injunction against Samsung in the Netherlands six months ago (which Samsung has worked around but the German understanding of the patent could be significantly broader, which could have important implications for any workaround). Apple is also suing Motorola over this patent in Munich and could get a favorable ruling next week. Apple is also using this patent in the United States and presumably also in other jurisdictions not mentioned herein.

Since the photo gallery scrolling patent and the related arguments have been mentioned here before, I'll keep this part brief. I'm rather skeptical of Samsung's argument that it doesn't infringe. The court didn't provide a preliminary indication on this one, but Apple's counsel made very strong points and Judge Andreas Voss said that he was more interested in the question of the potential invalidity of the patent. Concerning validity, the Mannheim court might stay its infringement case for the duration of a parallel action in Munich (an opposition proceeding against the relatively recent grant of this patent), but on this count I also think Apple is more likely than not to prevail. The Mannheim court usually considers invalidity contentions (as an argument for a stay) only in connection with novelty. The judges there are reluctant to take a position on obviousness since they are legally and not technically trained (unlike the judges at the German Federal Patent Court). On an obviousness basis, Samsung might have an argument (not a slam dunk, but at least a certain chance of success), but I don't think Samsung has been able to show a lack of novelty.

All in all, I think Apple has a chance above 50% of getting a favorable Mannheim ruling on this patent on April 20, 2012.

At the beginning of today's trial, Apple filed an extension to its original complaint. In Germany, this is possible at a late stage of the proceedings when U.S. courts would no longer allow an amended complaint. An extension is not an amendment in the sense of a do-over but a way to bring new claims. Companies frequently do this even though they expect that the court will be inclined to immediately sever such late extensions (i.e., make them the subject of a separate lawsuit) -- or plaintiffs even suggest such a split-up themselves, which is exactly what Apple did today. The benefit of an extension is that it accelerates the process: if the extension is allowed by the court and severed, proceedings can begin without a potentially time-consuming process of serving documents on a foreign defendant through a process that often involves the defendant's national government.

Apple's extension today relates to the list-scrolling patent I once described as "Apple's favorite make-Android-awkward patent" -- in this case, its European manifestation, EP2126678 on "list scrolling and document translation, scaling, and rotation on a touch-screen display".

There's a close substantive relationship between this general overscroll bounce patent and the photo gallery page-turning patent. The latter could be seen as a more specific application of the former, but that's an oversimplification that doesn't pay tribute to other differences that may very well exist.

Just last week, another German court -- the Munich I Regional Court (Munich I is the regional court for the city of Munich, while Munich II is the one for the surrounding areas) -- denied Apple a preliminary injunction against the Galaxy Tab 10.1N and Galaxy Nexus based on this same patent.

It appears that Apple has withdrawn its Munich lawsuit without prejudice. Otherwise, the fast-track process that resulted in a denial of a preliminary injunction would not have been the end of the road there. The final decision in Munich would have required a full-blown main proceeding. By withdrawing its claim instead of pursuing the main proceeding in Munich, Apple was free to effectively transfer this claim to Mannheim.

The Munich and Mannheim courts have different local ground rules for patent cases, but despite divergent approaches to case management, they're comparably fast. Main proceedings in either place appear to take about 8-10 months for the kinds of patent cases I monitor. Mannheim may still be a bit faster, but the difference isn't huge.

I believe Apple was afraid that the Munich court would now be less receptive to Apple's arguments concerning that patent because it took a rather strong position, deciding that it was rather likely to be invalid. I was surprised because this patent has so far performed pretty well in litigation. Maybe I will also consider it invalid one day if someone shows much better prior art than what has been on the table so far. At any rate, the Munich court may want to reach the same conclusion at the end of the main proceeding just because of the conclusions it reached on Apple's motion for a preliminary injunction. I heard that the judges in Munich decided after a recess toward the end of the court session. Rulings from the bench are highly unusual in such cases in Germany (except at appeals courts).

Also, with the Mannheim case on the related photo gallery page-turning patent having been far along, Apple may have had some idea of how the Mannheim court is inclined to interpret key terms that are found in the language of either patent.

Even if it was just because of the decision on the preliminary injunction motion, I fully understand Apple's decision to transfer this matter from Munich to Mannheim.

If we leave aside any design-related disputes, this means Apple and Samsung have each asserted seven different intellectual property rights in Germany. Samsung has lost decisions concerning the first two, and is relatively likely to lose a third case as well. Judge Voss mentioned that certain material related to the dispute between these parties may now already have been forwarded to the Karlsruhe Higher Regional Court. This suggests to me that Samsung has appealed at least one of the two rulings it lost.

So much for German litigation tactics and procedures. Tactical decisions can make a difference. And let's not forget that this is a fight between the number one and the number two in the industry (also, as far as profitability is concerned, there isn't much left besides them at this stage) in the jurisdiction that is the number two battlefield in the major smartphone and tablet computer patent disputes, far ahead of any other country outside the United States.

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