Friday, March 30, 2012

German Apple lawsuit against Samsung over multilingual character sets headed for stay

This afternoon the Mannheim Regional Court held yet another trial involving Apple and Samsung. What was new about today's German trial is that Apple's patent-in-suit originally belonged to a third party: Mitsubishi. Apple acquired it last year, and almost immediately asserted it. (Apple has previously asserted an acquired patent, one that it bought from British Telecom in 2008, in a lawsuit, but this is the first German Apple lawsuit over an acquired patent.)

The patent-in-suit is EP1168859 on a "portable communication apparatus using different alphabets". It's the European equivalent of a patent that was originally filed for in Japan. The patent offices of the United States (USPTO), Europe (EPO) and Japan (JPO) cooperate closely within the so-called "trilateral" framework.

The patent covers the idea of storing a multilingual character set with language-specific sections (for example, the letter "ß", transcribed as a double "s", is a special German character) for the purpose of text messaging. Apple claims that all of Samsung's Android-based devices infringe on this patent. There was a lot of debate over Apple's infringement theories and proposed claim construction. Judge Andreas Voß (there you have the special character I just mentioned, and which I usually transcribe in English-language texts just like I replace the "ü" in my last name with "ue", in accordance with the rules for filling out official U.S. documents) noted that Apple's proposed interpretation is "rather broad".

A key element of Samsung's non-infringement defense is that it claims its devices don't store a unicode table anywhere in memory. Apple identified some XML files that define, for each language a user may select as his preferred one, the location of characters on the virtual keyboard. A patent attorney on Samsung's team argued that one could delete all those XML files and would still get an on-screen keyboard (but would have to know the location of the characters). I doubt that particular theory (deletion of XML files) from a technical point of view, but infringement is not a foregone conclusion unless the court adopts Apple's claim construction and infringement contentions.

But the question is if and when the court will really rule on the infringement question. There is so much doubt over the validity of this patent that Judge Voß is far more inclined to stay the case pending a parallel nullity action that is before the Federal Patent Court. After the discussion of Samsung's invalidity argument he said that he would usually suggest to the parties that they stipulate to a stay, but after half a dozen trials involving these players, he knows that the plaintiff will ask for a decision. And unless a miracle happens, I believe the decision is going to be a stay -- or an outright dismissal if the court concludes that Samsung doesn't infringe, but the court is so inclined to stay that it may not even want to spend too much time on the infringement issue now.

Samsung's two primary prior art references are a standardization document and a European patent application. Apple argues that the standardization document is about encoding rather than keyboard entry, a position that appears plausible. Based on some passages that were cited at the trial, I believe I have tracked down the other prior art reference: European patent application EP19940126 (A2) on a "conferencing apparatus". That one mostly relates to a Windows-based conferencing system that allows the exchange of chat messages in parallel to a conference, and in passing it also mentions the possibility of mobile connections.

There are two ways in which Samsung's prior art references could lead the Mannheim court to order a stay: they could show that the patent-in-suit lacked novelty when filed, or that it's obvious because there's no inventive step between some prior art and that patent. Judge Voß is skeptical of non-novelty since the patent-in-suit discloses certain limitations that are specific to wireless handsets (antenna, modulator/demodulator) and not explicitly mentioned in those prior art references. But he said that the court, which as he reminded everyone is very hesitant to claim to know better than the technically-trained patent examiners who issue patents, is really wondering whether it constitutes an invention to take something that already existed at the time (for general-purpose computers) and to simply file for a new patent that covers a known technique in combination with mobile hardware.

The Mannheim Regional Court has already stayed one Apple v. Samsung lawsuit and is likely to stay another one, but those other cases relate to utility models. Utility models are a German specialty, basically a second-class patent. For those, the threshold for a stay is a 50% probability of invalidity, while it's 80% or more for patents. In this extreme case, it looks like even that high threshold will be met.

Apple and others are clearly struggling to identify patents that are on the one hand broad enough to be infringed (and to be hard to work around) but on the other hand withstand a serious validity challenge from a major player. If you sue, for example, a company the size of Samsung, which presumably gets some assistance in prior art search from Google whenever patent infringement claims against Android are concerned, your patent faces a test that is hugely tougher than pushing multiple patent applications through the original examination process.

This is different in the case of standard-essential patents, which just have to be broad enough to be essential. Most standard-essential patents would be narrow, and many of them even extremely narrow, if they could be worked around like any other patent, but the fact that they cover a mandatory part of a standard gives them so much power that the only way to avoid a disaster is a FRAND licensing obligation -- provided that it is honored or can otherwise be effectively enforced.

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