Wednesday, January 16, 2013

German Nokia cases against HTC and ViewSonic over messaging patent will go to joint trial in May

Lately I've been reporting a lot on Nokia's patent assertions, and unless there are some more license deals, there will be numerous hearings, trials and (increasingly) rulings in and by German court in the weeks and months ahead. RIM has settled and accepted to pay royalties to Nokia, but for the time being HTC and ViewSonic are still defending themselves vigorously (as RIM was until it gave in).

Some of the pending cases are of relevance not only to HTC and ViewSonic but to the entire Android ecosystem. Google only appears to intervene when its closed-source mandatory components of licensed Android distributions, such as the Google Play store app or the Google Talk client app, are at issue, but not when closed-source components of Android that all OEMs use (even if some of those may theoretically be modified) are being accused of infringement. Yes, the bottom line is that Google is, in the litigation context and generally, far more committed to the closed-source parts of Android than to its open-source code -- and above all, Google is interested in its revenue-generating online services, of course.

At a court hearing today in Munich relating to EP0982959 on a "mobile telephone user interface for short messages", Google was notably absent, but HTC asked the court to hold a joint trial over Nokia's assertions of a text message user interface patent (basically the patent covers the concept of pre-sorting text messages, also known as SMS, by a given contact or group) against HTC and ViewSonic because this is an Android patent issue. In the ViewSonic case, a first hearing (the second one in Munich is a trial and followed by a decision) was already held in late November. HTC's first hearing took place today. Service of Nokia's complaint to HTC's headquarters in Taiwan took longer than to US-based ViewSonic. But the court already said at the time of the ViewSonic hearing that it intended to schedule the second hearings (i.e., trials) for the same day: May 29, 2013.

The court's original plan was to hold the ViewSonic trial at 11:15 AM and the HTC trial at 2 PM (both on May 29), but HTC's lead counsel in this action, Dr. Martin Chakraborty of Hogan Lovells, said that there are no technical differences between the cases concerning the infringement analysis since "this is about Android" and suggested a joint trial to avoid duplicative discussion. Nokia agreed, and the court gladly adopted the proposal (German courts don't manage cases through imposed consolidation the way their U.S. counterparts do). But if it's about Android, as everyone in the courtroom agreed today, then Google has just as much of a reason to intervene as it has in certain other cases, such as the ITC investigation of Nokia's complaint against HTC (in which Google even wanted to be named as a co-defendant but was allowed to participate only as an intervenor).

The issue of Google's involvement in Android patent infringement actions is also going to be front and center at a March 7 Munich trial over the alleged infringement of a Microsoft patent by Google Maps.

As for the substantive part of the discussion today, it appears to me that Nokia's lead counsel in the two lawsuits over this patent, Klaus Haft of Reimann Osterrieth Koehler Haft, is gradually inching closer to a favorable decision. The court still expressed skepticism based on the infringement contentions provided in and along with the original complaint against HTC (which was also the case at the ViewSonic hearing), but Nokia has not yet had the opportunity to reply to HTC and ViewSonic's answers to the complaint. Mr. Haft assured the court that Nokia would provide infringement contentions of greater specificity. Apparently, the complaint was largely based on screenshots that show the functionality provided to end users, but the patent-in-suit is not necessarily infringed by a user interface that sorts text messages by conversation: under the court's interpretation of the patent, an incoming message must be stored in a conversation-specific folder.

HTC and ViewSonic stress functional differences between the concept of a folder in a file system's directory structure and a database (Android uses SQLite for this purpose), but Nokia argues that the very same technical functions needed to store a file in a directory on a storage medium are also performed by a database. Obviously, an SQL database can do much more than that, but under patent law, the presence of additional functionality is not sufficient to avoid an infringement finding. At the ViewSonic hearing in November, Nokia presented this logic for the first time.

It would be a gross exaggeration to say that Nokia is now on the winning track, especially since Judge Andreas Mueller ("M├╝ller" in German) generally appears to be very difficult to persuade of infringement contentions (other plaintiffs also struggled in his court), but today I got the impression that Nokia's functional infringement contentions have more than enough traction that the May 29 Nokia v. HTC and ViewSonic joint trial is going to be a very interesting fight. A lot will depend on the infringement arguments Nokia is going to file in the meantime. The court would like to see information on Android's inner workings, and the related source code is available, so Nokia, with its vast experience in patent litigation, should be able to substantiate its assertions in detail.

To the extent that Android's SQLite text message database uses an index column for the thread ID, meaning that it actually keeps a list of all database records belonging to a given conversation, I think there's no functional difference whatsoever (except for irrelevant additional functionalities) between a directory in a file system and a grouping of database records by means of an index column. In that case I don't think HTC and ViewSonic can argue that they sort the records only at display time as if they performed a full table scan (opening and evaluating every single database record) on demand. An index table is, for the purposes of this patent, the same as the directory information on a storage information. Both contain pointers to records/files and represent a grouping, and both are updated immediately if the composition of the grouping changes. Some of you may know about my past involvement with a database company (MySQL), so it won't surprise you that I'm particularly interested in the technical issues presented by HTC and ViewSonic's shared non-infringement argument.

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