Thursday, August 16, 2012

Nokia's patent enforcement campaign off to a good start: first hearing on German RIM lawsuit

In early May, Nokia filed patent infringement lawsuits over a total of more than 40 different patents against HTC, Viewsonic and RIM. The disputes with HTC and Viewsonic take place in the United States and in Germany, while the one with RIM is at this point limited to Germany, with Munich being its center of gravity.

Today the Munich I Regional Court held a first hearing on the first one of various Nokia v. RIM lawsuits. This court holds at least two hearings per case, the second one of which is frequently referred to as a trial because it's usually the last one prior to a decision.

Today the court and the parties discussed EP0867967 on an "antenna for wireless communications devices". It's a hardware patent, and a fairly broad one based on the court's first impression.

RIM disputes infringement but at today's hearing, which is still early enough in the game that things could change, its non-infringement contentions didn't appear very likely to succeed. RIM also contests the validity of this patent, and that may be the more interesting battleground, but it will only come up at the second hearing, so I don't know whether RIM has identified any prior art that really serves to take this patent down. If RIM can convince the court that there's a high probability of invalidity, the case will be stayed, but if RIM fails to meet that threshold, it will depend on its non-infringement arguments, which the court appears unconvinced of at this stage (though this may change in the further process).

A third line of defense is that RIM claims it has a license under some other patent agreement with Nokia (presumably one that covers standard-essential patents, which this antenna patent does not appear to be) with an arbitration clause. An arbitration proceeding has been initiated in the United States, presumably by RIM, and a decision is expected to issue at the end of October. Whatever the outcome of arbitration may be, the parties will then analyze it and it's not clear yet whether they will accept that result as binding. Also, they haven't yet shown the relevant license agreement to the court. RIM's counsel cited confidentiality obligations, but such agreements are shown to courts all the time if a defendant believes it's helpful. I guess RIM thinks it needs a favorable outcome of arbitration in order for this license-based defense to get any traction in Germany.

Besides raising defenses, RIM also tries to stall. The court would actually like the second hearing (the trial) to take place in mid-December, but RIM asked for more time in order to be able to digest the outcome of arbitration, and its counsel declared himself unavailable on most Thursdays in January and February (Dr. Guntz's panel holds all of its hearings on Thursdays). The presiding judge felt compelled to remind him that he can certainly have blackout dates but he can't claim to be unavailable for an extended period of time. RIM's counsel's blackout dates even included Thursdays followed by a hearing in Mannheim (involving the same parties) on the following day. We're talking about only a three-hour train ride. Companies like Apple, Microsoft and Motorola have handled this situation before, and I never heard anyone complain. Defendants are always interested in delay, but in RIM's case today it was too obvious.

There will be dozens of German court hearings over the next five months on Nokia's May 2012 lawsuits. For the next three months, the venue is going to be Munich, but hearings in Mannheim (starting in December) and Düsseldorf will follow.

More detail on claim construction and infringement analysis

Claim 1 (one of the asserted claims) is short because the claim is, in its granted form, quite broad:

An antenna for a wireless communications device comprising

  • an antenna plate functioning as a radiator,

  • a feed element to feed the radiator, and

  • attachment elements to attach the antenna to a wireless communications device, which comprises an electrically conductive earth plane,

characterized in that the attachment elements comprise a cover structure for bracing the antenna plate on the wireless communications device, and that the antenna further comprises means for keeping the antenna plate at a distance from the earth plane.

Most of the patents-in-suit in the cases I watch are software patents, and those are much easier for me to understand than antenna patents. But this claim is relatively easy to understand because it's so short, and the judge presiding over the litigation, Judge Dr. Peter Guntz, and both parties' counsel explained everything very well during the two-hour hearing, which furthered my understanding.

The two non-infringement arguments that the court was most interested in at this stage are that RIM says its BlackBerry phones don't come with an "antenna" in a narrow sense of the word, and that there is no "bracing" of the antenna plate. Most of the two hours were spent on RIM's efforts to persuade the court of the first of the two arguments (the second one is viewed very skeptically by the court). Nokia's counsel got only about 15% of the speaking time but that shows the extent to which RIM was on the defensive: if the court had needed a lot of explanation from Nokia, Judge Dr. Guntz would certainly have ensured that the parties get more or less equal amounts of time.

The hurdle RIM faces with its "no antenna" argument is that not only marketing material (including RIM's own corporate website) but also plenty of technical documents do refer to the kind of radio hardware used in RIM's devices as an "antenna". If RIM can prevail on this non-infringement argument at all, it appears that the court may be willing to interpret the term "antenna plate" narrowly enough for RIM's ring-shaped antenna technoloqy to fall outside of the scope of its meaning for the purposes of this case. But Nokia argues that the patent document is clear in using the term "antenna plate" only to distinguish the type of antenna covered by the patent from an old-fashioned antenna pole or helix.

RIM's counsel complained about the breadth of the patent based on Nokia's interpretation. Judge Dr. Guntz acknowledged that it has broad scope but RIM will either have to present evidence (especially intrinsic evidence as opposed to extrinsic evidence like expert testimony on how a person skilled in the art defines the word "antenna", an effort the court would rather avoid) or show a high probability of invalidity.

All in all, Nokia has the upper hand, for now. With dozens of patents-in-suit, it will win some and lose some. This antenna patent lawsuit could be a winner, and since it is a hardware patent, it would be impossible for RIM to work around it with a mere software change. If Nokia prevails on this one, RIM may have to take a royalty-bearing license.

Law firms

Nokia's lead counsel in this litigation is Klaus Haft, an attorney who also studied physics, of Reimann Osterrieth Köhler Haft, a firm that played a key role in the German part of the dispute between Nokia and Apple. RIM's lead counsel in this action is Dr. Martin Faehndrich, who also has an engineering degree, of Hogan Lovells. Hogan Lovells also represented Apple against Nokia in Germany, but Apple is now working with other firms, at this stage primarily Freshfields Bruckhaus Deringer, against Samsung and Motorola.

Juve, a German legal website, also listed other firms involved with these disputes. For example, Bird & Bird, which is doing a great job for Nokia against patent monetization entity IPCom, is also handling some of Nokia's lawsuits here against HTC, RIM and Viewsonic. HTC, like RIM, is working with Hogan Lovells on its defense against Nokia's German lawsuits.

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