Tuesday, December 11, 2012

BlackBerry Enterprise Solution security feature may infringe Nokia patent

Last Wednesday I attended a first hearing on one of various Nokia v. RIM lawsuits at the Munich I Regional Court. While nothing happened that would have required an immediate report, there are a couple of tidbits worth sharing.

First post-arbitration Nokia-RIM court hearing

This was the first Nokia-RIM encounter in a courtroom after the recent announcement of Nokia's arbitration victory with respect to WiFi (WLAN) patents. RIM had mentioned the arbitration proceeding twice to the Munich court. It appears that RIM was trying to argue that even non-standard-essential patents could somehow fall under a Nokia-RIM SEP license agreement with an arbitration clause. So far the court is unconvinced. Last week, no reference was made to the outcome of the arbitration proceeding, but Judge Andreas Mueller ("Müller" in German) told RIM that the court can only form an opinion on the related issues if RIM provides a complete translation of the agreement and further briefing on the implications of that agreement under Swedish law, the law governing the license agreement.

RIM now has to adjust its litigation strategy in the Nokia dispute in light of the arbitration ruling. It appears that this takes RIM some time, considering that it sent a public letter to the ITC in support of SEP injunctions even after the arbitration decision.

Packet-mode transmission security

The patent-in-suit is EP0824813 on "improving security of packet-mode transmission in a mobile communication system". Its description makes reference to GPRS (General Packet Radio Service), the data transmission enhancement of GSM (2G cellular standard), but the patented invention isn't limited to that standard. GPRS is not mentioned in the claims. Even if the patent had been declared essential to the GPRS standard, it wouldn't matter in this case: Nokia is not accusing RIM of infringing this patent with its implementation of GPRS, but with the implementation of the security mechanism it covers by the BlackBerry Enterprise Solution and client devices used to access the BlackBerry service.

The court did not express a preliminary inclination. Judge Mueller outlined some of the key issues that the parties need to address in the further process. At this stage, the court was primarily interested in further discussion of, and briefing on, the implications of the different messaging layers (the lowest layer being the physical transmission of bits over a radio network) for Nokia's infringement theory and RIM's non-infringement arguments. RIM argues that the patented method, which is basically about adding a data field to frame headers that prevents other parties than the intended recipient to intercept or manipulate the content of such frames (for example, the data field could be relevant to encryption), is specific to the second layer, and claims that the alleged infringement occurs only at a higher layer. While this multi-layer architecture wasn't discussed in open court, it appears that RIM also considers network protocols such as te Internet Protocol a layer. But Nokia's infringement argument focuses on what RIM does, not on where it does it.

Another issue that could be outcome-determinative relates to network topology and is, as Nokia's counsel in this action (Christian Harmsen of Bird & Bird) noted, comparable to an issue raised in connection with Nokia's assertion of a different patent against RIM, HTC and ViewSonic. Judge Mueller is not inclined to consider servers such as the BlackBerry server to be part of a telecommunications network (though his position may still change between now and the time his court will decide) .

It's too early to predict the outcome of this action. What cn be said at this stage is that Nokia is reasonably likely to win if the court focuses on the sustance of the patented invention, but RIM can defend itself successfully if the court bases its decision on network topology and/or the question of where on a multi-layer stack of protocols the alleged infringement resides.

Two-speed Munich

A second hearing, tantamount to a trial, was scheduled for September 18, 2012. The court would also have had an opening on July 31, but this date was inconvenient to counsel for both parties. Even July 31 would have been almost eight months after the first hearing, and almost 15 months after the filing of the complaint. I have seen the Mannheim Regional Court as well as the Munich I Regional Court adjudicate entire cases within eight months, and frequently within 10 months, of a complaint. Everyone knows that things take longer than that in Dusseldorf, which is nevertheless the most popular patent litigation venue (though not in the smartphone space) in this country. The problem for Munich as a patent litigation forum is that plaintiffs face a lottery in terms of whether their cases to one division (called "chamber") of the court or another, with very different schedules and different chances of prevailing:

  • The 7th civil chamber, over which Judge Dr. Peter Guntz presided until recently (for the time being and possibly for more time, its president is Judge Dr. Matthias Zigann), adjudicates patent infringement cases fairly swiftly, basically at Mannheim speed or even faster. While I haven't yet seen any rulings by Judge Dr. Zigann, plaintiffs had a pretty good rate of success in Judge Dr. Guntz's court and reasonably promising first hearings in Judge Dr. Zigann's court.

  • By contrast, the 21st civil chamber, Judge Mueller's court, takes about twice as long and tends to interpret patents extremely narrowly, which makes life difficult for plaintiffs. The courts in Düsseldorf and Mannheim are much more consistent. At the time of filing complainants roughly know what to expect. In Munich it's a gamble unless they already have a dispute between two parties before one chamber and file new lawsuits through amendments to the initial complaint.

Apple even experienced the odd situation that the 21st chamber adopted a much narrower interpretation of a patent (slide to unlock) that the 7th chamber had previously adjudged.

Nokia brought a variety of lawsuits in Munich against RIM, HTC and ViewSonic, with some pending before the 7th chamber and some others before the slower and more difficult 21st chamber.

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