Tuesday, March 12, 2013

ITC affirms dismissal of one of nine Nokia patents-in-suit in HTC case

About a month ago an ITC judge threw out a Nokia patent (one of nine patents Nokia is asserting in that investigation) because HTC had argued that U.S. Patent No. 7,366,529 on a "communication network terminal supporting a plurality of applications" (basically, a patent on a way to route data to apps) fell within the scope of a standard-essential patent (SEP) license agreement between the companies and that the question of arbitrability (i.e., whether the arbitration clause of that license agreement applies) must be referred to arbitration.

In late February Nokia asked the Commission (the six-member decision-making body at the top of the U.S. trade agency) to review the judge's decision, claiming that HTC's allegation of arbitrability was indeed "wholly groundless". Yesterday the Commission declined to review the order, without citing any reasons for the decision. The notice of this determination entered the public electronic record today.

I doubt very much that the patent is standard-essential, but the referral of this question to an arbitrator causes enough of a delay that Nokia won't be able to enforce this patent against HTC too soon. Before this patent would play any role in litigation again, these two companies will most probably have settled.

This is already the fifth Nokia patent that HTC doesn't have to fear in the near term. On Friday the Mannheim Regional Court dismissed two Nokia patent lawsuits (I believe Nokia will appeal these rulings). Previously, Nokia stipulated to stay two other Mannheim actions, so those patents won't be adjudged for a couple of years while their validity is at issue in a parallel nullity action before the Federal Patent Court. And now the ITC has definitively dropped the '529 patent from the ongoing investigation.

But next Tuesday the Mannheim-based court will announce a decision on another Nokia v. HTC case, and a win for Nokia is fairly likely in that one. All in all, Nokia has asserted 40 different patents against HTC (some of them in the U.S. as well as in Europe, and many of them in Germany as well as the UK).

In May 2012 Nokia filed patent infringement complaints against RIM (BlackBerry), HTC and ViewSonic. RIM has already settled, and a settlement with ViewSonic is in the making. I don't think it will take long before HTC settles as well, but so far its defensive efforts are going pretty well, and it has also countersued (1, 2).

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