A few hours ago I attended a first hearing held by the Munich I Regional Court on a Nokia v. HTC patent infringement complaint. The patent-in-suit is EP1246071 on a "method of configuring electronic devices". Unless this patent is invalidated, which won't happen to the German part of this patent before 2014 at the earliest, it's hard to see how any Android device maker would not want to license it. Workarounds are possible but would come with reductions in functionality and/or easy of use for USB connections of smartphones and tablet computers to desktop computers.
As an Android user I make use of the patented functionality on almost a daily basis. I use a USB cable to connect my phone (presently, a Galaxy Note II) to my Windows desktop. Windows then offers several choices for the purpose of the connection. Most of the time I just want to access files (photos etc.) stored on the phone, using it like an external USB storage medium. Alternatively, I could run a synchronization program. Or a user might want to use a smartphone as a USB wireless modem. These different use cases require different device drivers, and depending on my choice, the right one will be activated (and, if necessary, installed in the first place). I can also select a default connection type, which will then be activated automatically.
Nokia's EP'071 patent claims that the prior art had an important downside: each device used to appear to the PC "as a single function device", and the device driver tied to the device would always be limited to that single function, which the patent says "abrogates the multifunctionality of the device". For a single-function device like a mouse, there's no need for different device drivers: one driver can do the job. But a modern-day smartphone is the epitome of multifunctionality.
I wouldn't say in a headline that a technology "appears to infringe" a particular patent without some extraordinarily strong indications. HTC, represented by the Hogan Lovells firm, didn't make much of a non-infringement argument at today's hearing. Nokia's lead counsel in this action, Christian Harmsen of Bird & Bird, characterized HTC's non-infringement theories as "tactics"(rather than substance), and that was also my impression. HTC's lead counsel started by disputing infringement but toward the end of his statement it became clear that his (and his client's) hopes primarily rest on a nullity (invalidation) action filed in early October with the (also Munich-based) Federal Patent Court ("Bundespatentgericht"), which definitely won't go to trial before 2014 (HTC has until April 2013 to substantiate its complaint) and which was not discussed at today's first hearing (validity issues will come up at the second hearing, tantamount to a trial, on September 18, 2013). And even though the court's preliminary inclination came with the caveat that the complaint had not laid out Nokia's infringement theory with the degree of particularity that Judge Andreas Mueller ("Müller" in German) and his fellow members of the panel would have liked to see, the court does see a credible infringement claim here. Yesterday I mentioned that Judge Mueller is hard to convince of any infringement theory. Of all German patent infringement judges I know, he's by far and away the most challenging one for plaintiffs. So if even he believes, on a preliminary basis and even without a sufficiently self-explanatory complaint, that there is an infringement, that means something. It's like that famous line from "New York, New York": "If you can make it there, you can make it anywhere."
Nokia is accusing particular HTC devices of infringement, but its infringement contentions also include two Android versions. I don't know which ones, but I've used numerous Android versions since 2010 and all of them allowed the multifunctional USB connections I described above. Right now this patent is only HTC's problem, but Google and its entire Android ecosystem have reason for concern. But they don't need to be concerned since Nokia is willing to extend a license covering its portfolio of non-standard-essential patents (it has already broadly licensed its SEPs) to Android device makers like HTC.
This week Microsoft announced Android patent license deals number 16 and 17. 16 of those 17 deals cover Microsoft's patents, one of them relates to Apple's patents and comes with an anti-cloning provision. HTC was first to take a royalty-bearing license to Microsoft's patents, first to take a royalty-bearing (and anti-cloning) license to Apple's patents, and HTC will also license Nokia's non-standard-essential patents (again, it has already licensed the standard-essential ones) in the near term. And there are other right holders, such as Ericsson, who also want to get paid for the use of their intellectual property. Google and its ecosystem are standing on the shoulders of giants from an intellectual property point of view.
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