Wednesday, March 6, 2013

Nokia files amicus brief supporting Apple's pursuit of a permanent injunction against Samsung

Nokia supports Apple's efforts to ensure that U.S. patent holders have access to injunctive relief even if a defendant can argue that the accused products potentially implement (or infringe) vast numbers of patents. Just like Apple, Nokia also appears to be very concerned that U.S. case law on patent injunctions, particularly in the Apple v. Samsung dispute, has recently been leading to a "compulsory-licensing system wherein patent holders are forced to license patented technology to competing firms, which could in turn harm incentives to innovate". Apple is appealing Judge Koh's mid-December denial of a permanent injunction against multiple Samsung products over half a dozen intellectual property rights (mostly patents) a jury found Samsung to have infringed.

In mid-February Apple filed its opening brief with the United States Court of Appeals for the Federal Circuit approximately two weeks ahead of the deadline under the applicable appellate rules. This surprised Nokia, which was planning all along to submit an amicus brief but thought Apple was going to file its brief on the deadline. Briefs in support of appellant must be filed within seven days of the appellant's opening brief, so Apple's sense of urgency messed up Nokia's schedule. Nokia asked the Federal Circuit for an extension to file its own brief, which it was granted.

As I recently explained in connection with Oracle v. Google, amicus curiae briefs are usually just about issues, not about interests to harm particular competitors. Nokia competes with both Apple and Samsung. It settled a patent dispute with Apple in June 2011. As I am closely following Nokia's ongoing patent assertions against Android device makers HTC and ViewSonic, in which Nokia is making steady progress in German courts (it recently also sold a patent license to the BlackBerry company), I believe Samsung still needs a license to many non-standard-essential Nokia patents. Nokia's SEPs are broadly licensed, so I presume Samsung has a license to those, but its non-SEPs are not. But again, this here is just about the issue, not about a war of ecosystems. Nokia is ultimately interested in enforcing its own intellectual property rights, and at some point further down the road, after the current settlement expires, it may have to assert some patents against Apple again (and vice versa).

Nokia filed its amicus brief yesterday. For now the brief is sealed, but Nokia's simultaneous motion for leave (it was granted an extension but for formal reasons it still needs to ask for permission to submit an amicus brief) is not, and it clearly states the broad lines of Nokia's position. I will now quote in full the two sections of the motion for leave that outline Nokia's position -- the rest is just procedural detail and boilerplate. When the actual amicus brief becomes available, I will publish and comment on it.


Nokia Corporation ("Nokia") is one of the largest manufacturers of wireless telecommunications equipment in the world.

Nokia employs approximately 38,000 people worldwide. Nokia has cumulatively invested over $50 billion in research and development relating to mobile communications. As a result of this substantial commitment to technological progress, Nokia currently owns more than 10,000 patent families.

Nokia has recently been involved in numerous U.S. patent lawsuits, as both a plaintiff and defendant. Nokia is thus both a significant patent owner that might seek an injunction to protect its patent rights, and a manufacturer in an industry in which patent owners routinely issue threats of injunctions for patent infringement.

Nokia's interest in this case is to advocate for patent laws that (i) protect patent rights as a means for promoting the constitutional goal of developing technology for public benefit; and (ii) foster and encourage innovation by allowing patent holders to obtain permanent injunctions against infringing competitors in appropriate circumstances. Nokia therefore supports the Appellant’s request for reversal of the District Court’s denial of a permanent injunction based on application of the wrong legal standard. Nokia takes no position on any of the other substantive issues on appeal in this matter.


The district court's ruling that in order to obtain a permanent injunction against an infringing competitor, a patent holder must also establish a "causal nexus" between the patented feature and the source of demand for the infringing product could cause wide-ranging damage to the United States patent protection landscape. By creating such a rule, the district court has diverged from the precedent of this court and could severely restrict, if not outright eliminate in some circumstances, the ability of a patent holder to obtain injunctive relief.

Amici urge this court to reverse the district court’s order denying permanent injunctive relief, because the new “causal nexus” requirement set forth therein sets a dangerous precedent. This Court has previously determined that while the Supreme Court’s decision in eBay v. MercExchange, L.L.C., 547 U.S. 388, 393 (2006) eliminated any presumption that the holder of an infringed patent is automatically entitled to a permanent injunction, that decision was in no way intended to eliminate the availability of injunctive relief altogether. See Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1149 (Fed. Cir. 2011). The "causal nexus" requirement as applied by the district court here, making the evidentiary standard for obtaining a permanent injunction so burdensome and strict that it may rarely, if ever, be met, will essentially lead to a compulsory-licensing system wherein patent holders are forced to license patented technology to competing firms, which could in turn harm incentives to innovate.

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