After a hearing at which Motorola defended itself successfully against a Microsoft motion for a preliminary injunction against the RAZR smartphone, I also watched two Apple v. HTC hearings at the Munich I Regional Court. Those were first hearings. Second hearings (which are effectively trials under Munich's local patent rules) will take place in September.
Apple is also asserting (at least) two other patents against HTC in Mannheim. HTC brought declaratory judgment actions against those patents in the UK. While a UK court cannot declare a European patent invalid with respect to other countries, defendants often hope that a declaration of invalidity and/or non-infringement by a UK court has persuasive power in other jurisdictions.
HTC's counsel mentioned today that S3 Graphics, a company HTC decided to acquire in no small part because of the patents it holds, has brought patent infringement lawsuits in Germany against Apple.
In the Munich actions against HTC, Apple is asserting the same two patents based on which the same court recently granted preliminary injucntions against some of Motorola's implementations of the claimed inventions:
The Mannheim Regional Court tossed out an Apple lawsuit against Samsung over the slide-to-unlock image patent.
It would be a mistake to assume that the same court's prior decisions on these patents in cases in which Motorola was the defendant make Apple's claims against HTC a mere formality, or a slam dunk:
The Motorola cases were decided by a different "chamber" (panel of judges) than the one that will rule on the HTC cases. At the Munich I Regional Court, both the 7th and the 21st chamber of civil jurisprudence hear patent cases. Today's hearings were held by the 21st chamber, whose president is Judge Andreas Mueller. This panel is not bound to its colleagues' decisions.
While there's substantial overlap between Motorola's and HTC's (and Samsung's) defenses, especially in connection with their invalidity theories, each of those parties works with different lawyers in Germany and raises different arguments.
At least with respect to slide-to-unlock, the infringement issues differ significantly.
Judge Mueller, unlike Judge Dr. Guntz (7th chamber of civil jurisprudence), might stay the slide-to-unlock case over doubts about the validity of the patent. Interestingly, the Neonode N1m, which played a key role in a Dutch decision, does not (at least not yet) appear to the court to be an outcome-determinative prior art reference. Judge Mueller attaches far more importance to a French document (which I haven't been able to track down so far).
Three different HTC implementations of slide-to-unlock were discussed. On a very preliminary basis, the court is inclined to find HTC in infringement of Apple's patent with respect to only one particular implementation. Judge Mueller's preliminary position on infringement is closer to the Mannheim Regional Court's narrow interpretation of the patent claims than to the perspective of the other Munich chamber. But those first hearings are really the early stage of patent litigation in Munich, and such positions can still change significantly before a decision is made.
A rather unusual issue came up in the discussion of the photo gallery page-turning patent: one of the HTC devices Apple's lawyers bought in preparation of this lawsuit had been inadverently updated with a newer firmware that behaved differently in what would likely be an outcome-determinative aspect of the implementation.
On this patent, I believe Apple may well be able to replicate the result it achieved against Motorola: a finding of infringement with respect to the zoomed-in mode, but not the zoomed-out mode. Validity does not apear to be an issue i this case. Again, all of this is just preliminary. The second hearings are more than five months away.
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