Wednesday, July 4, 2012

UK High Court clears HTC of infringement of four Apple patents -- business as usual

The British legal interpretation of Independence Day is... different.

Today the London-based High Court of Justice showed once again why it's the most defendant-friendly patent court in the world and ruled on four Apple patents, finding that none of the four patents-in-suit is both valid and infringed by HTC. According to statistics, only about 15% of all patent infringement claims brought in the UK result in a finding of a violation. Tellingly, the litigation was started by HTC itself as a declaratory judgment action for defensive purposes in hopes of influencing the outcome of German lawsuits Apple had previously brought. In the UK action, Apple also brought offensive counterclaims. Further below I will discuss the implications this ruling has on certain Apple lawsuits in the U.S., Germany and other jurisdictions.

Here's an overview of the High Court's findings :

  1. EP2098948 on a "touch event model"; this is the only one of the four patents to have been added by Apple (as an offensive counterclaim) without a prior declaratory judgment request by HTC

    • the asserted claims (claims 1 and 2) are invalid because they claim patent protection on a "computer program as such" contrary to Article 52 of the European Patent Convention -- this is the first patent in the ongoing smartphone disputes to be declared invalid because it's a software patent (HTC is the only company that I've seen try this defense at all); apart from subject matter, claim 1 would also be invalid for obviousness

    • not infringed by HTC (this is an operating system patent; as a result, it's unlikely that this court would deem any Android device to infringe it)

  2. EP1964022 on "unlocking a device by performing gestures on an unlock image" (aka "slide-to-unlock"); the court ruling states the wrong patent number (2964022); the court ruled on four claims (claims 1, 6, 9 and 18; three more claims were asserted but were not claimed to add anything to other asserted claims for the purposes of this litigation)

    • the four patent claims were declared invalid

      • the court deemed all four claims anticipated by patent application WO/038569

      • the court also deemed all four claims obvious over the Neonode N1m

      • claims 1 and 9 were deemed invalid for even a third reason: obviousness in light of an early 1990s video and paper on "Touchscreen Toggle design" by researchers Catherine Plaisant and Daniel Wallace

      • but the software patent defense failed

    • if the patent had been deemed valid, it would be deemed infringed by an unlocking mechanism described as "Arc mechanism" but not by the other unlock mechanisms HTC implemented; other Android vendors (Samsung, Motorola) have also been able to work around this one

  3. EP2059868 on a "portable electronic device for photo management", aka "photo gallery page-flipping patent"

    • this patent was held valid

      • HTC unsuccessfully argued that it's a software patent (the ruling says "a novel method of manipulating a zoomed image involving gestures having different effects [...] cannot properly be described as a computer program as such, or the presentation of information as such")

      • it also wasn't deemed obvious over an earlier patent application (PCT application WO 03/081458)

    • HTC devices were found not to infringe; other companies (Samsung, HTC) have been able to work around it anyway

  4. EP1168859 on a "portable radio communication apparatus using different alphabets" aka "multilingual keyboard patent"

    • all claims declared invalid

      • all claims were deemed obvious over each of two pieces of prior art (a change request to the GSM standard and a German phone named Hagenuk MT900)

      • but the software patent defense failed

    • if the patent had been deemed valid, it would have been deemed infringed by HTC's Android devices

I expect the UK ruling to have very limited relevance in the United States, but it will have some relevance in other European countries and in Australia. And the UK court was provided with information on litigation over these patents in Germany and the Netherlands.

In the UK, Apple will need a successful appeal (and I'm sure it will appeal) to be able to achieve anything with these four patents. The '948 "touch event model" patent, which was deemed invalid, is likely implemented by all Android devices in the same way. There are differences between vendors and even between devices from the same given vendor with respect to two of the other three patents, but that only matters to the extent that Apple asserts these claims in jurisdictions in which they are deemed valid.

I said before that HTC brough the UK action in order to get a better outcome in Germany. German courts do take note of rulings in other European countries, but they are free to decide differently. In this case, it appears that the London court and the relevant German courts (Munich I and Mannheim) arrived at consistent conclusions for the most part. I attended German hearings and trials over all of these patents.

Apple won injuncions against Google subsidiary Motorola Mobility over the slide-to-unlock patent and over the photo gallery page-flipping patent, but Motorola worked around them, and Apple didn't succeed against Samsung so far. Based on how the first hearings went, HTC appeared reasonably likely to defend itself against these two patents in Munich even without having to point to a favorable outcome in the UK. Trials will take place in September, and the UK decision now makes it even less likely that the Munich court, which was skeptical of Apple's arguments anyway, would be persuaded now.

The multilingual keyboard patent wasn't going to win Apple a ruling against the three major Android companies prior to a separate nullity action in Germany. The touch event model patent was in significantly better shape than the multilingual keyboard patent, but still far from a slam dunk.

The UK decision involves only four of Apple's many patents. In the short term, this means HTC has nothing to fear in Europe (unless Apple wins a preliminary injunction somewhere), but the Apple-HTC dispute will continue, and Apple will find new patents to assert.

Europe has generally been difficult terrain for Apple so far (though it could still score some significant wins after some of its patents come out of those German nullity proceedings, which take longer than the infringement cases). I believe that there are some U.S. patents held by Apple that might have worked pretty well over here but I couldn't find European equivalents of the relevant U.S. patents. I am thinking of the '263 "realtime API" patent and the '647 "data tapping" patent. But those patents are relatively old, and Apple's European patenting activity in the 1990s was very limited. The longer these disputes take, however, the more Apple patents are going to be granted by the European Patent Office and to show up in litigation.

Another strategy for Apple would be to make some more targeted acquisitions of European patents, or of international patent families with European members. The multilingual keyboard patent is originally a Mitsubishi patent, but this one is a difficult one to defend. I think Apple should look for patents that are at the operating system level but not as trivial as the multilingual character set patent (or even the touch event model). For example, low-level patents on operating system functionality for graphics display ("low-level" in terms of being close to the hardware, not triviality), on memory management, or on virtual machines (security, performance optimization) would work much better, especially in Germany but presumably also in some other European countries, than patents of the slide-to-unlock and photo gallery page-flipping kind. Finding the right patents wouldn't be easy, and doing deals with potential sellers isn't always possible, but Apple has the resources to do this, and the benefit of getting more leverage over the Android camp over here would be well worth it.

Compared to Apple, I think the kinds of European patents that Microsoft and Nokia have are, on average, better-suited for Germany. Many of their patents cover the kinds of innovations that European judges are more likely to consider patentable and non-obvious than what Apple has asserted here so far.

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