Yesterday I wrote that Nokia's patent enforcement against HTC and ViewSonic was progressing, but not as fast as Nokia presumably thought when it brought the original complaints in the U.S. and Germany in late April 2012. Nokia appears to agree that it needs to unleash more patents from its vast portfolio in order to get HTC to settle: it filed a new complaint, over three patents (from the same patent family) related to RFIC (radio frequency ID), in the Southern District of California (this post continues below the document):
The three patents in suit are U.S. Patent No. 7,775,432, U.S. Patent No. 8,308,065 and U.S. Patent No. 8,366,000, all entitled "Terminal, Method and Computer Program Product for Interacting With a Signaling Tag". This patent family also has some European members (such as EP1685689 and EP1965555), which Nokia might assert in the UK, Germany or other European countries. Here's claim 1 of one of the U.S. patents:
A method, comprising: receiving, at an apparatus, information regarding an electronic device including a radio frequency identification transceiver through a radio frequency identification interface; determining whether the apparatus is actively operating an application in a state of presenting data; and in an instance in which the apparatus is actively operating an application in a state of presenting data, transmitting data associated with the active application to the electronic device including the radio frequency identification transceiver.
The accused products include (but are not limited to) the HTC One S, HTC One V, HTC One X, HTC Evo 4G LTE, Droid Incredible 4G LTE, Droid DNA, HTC One X+, HTC First, HTC One, and HTC One VX. Nokia is seeking an injunction as well as damages.
Nokia has previously asserted approximately 40 different patents against HTC in the U.S., UK and Germany. The most recent German filing was made in mid-April and mentioned in a Nokia statement. The two Nokia v. HTC hearings I watched at the Munich I Regional Court yesterday had 2013 case numbers and were apparently filed only about three months ago.
Simultaneously with its new U.S. RFID-related complaint Nokia also filed the mandatory notice of related cases and pointed to the ITC investigation of its complaint against HTC (which will go to trial in about a week and involves, among other things, a tethering patent) as well as some Delaware lawsuits. Nokia stresses that there's no overlap between those cases pending on the East Coast and the new complaint brought in Southern California, where Nokia's U.S. operation has an office. Technologically that's true (it also appears that Nokia purposely selected very new products for the California filing), but HTC will presumably try to get the new cases transferred to Delaware and consolidated into the cases pending in that district, arguing that it promotes judicial efficiency, conserves party resources, and saves travel time for third-party witnesses (if it can argue that there will be any overlap with respect to such witnesses; with RFID at issue, it's actually more likely that third-party witnesses, such as employees of chipset makers, are based in California).
The Delaware court is proceeding on a schedule that comes down to a 2015 trial, and if any additional patents had to be consolidated into the Delaware case, there could be further delay. HTC also played this kind of game with Apple, which at the time of the parties' settlement had 32 patent assertions against HTC waiting to be adjudged in that district. Like Nokia, but with a weaker case for denying technology overlap, Apple had also tried to assert patents in another district (Southern District of Florida) but HTC won a transfer (it also got a case over standard-essential patent issues transferred) to Delaware. Apple was frustrated and said "HTC's transfer-and-stay strategy treats [the Delaware-based court] as a dumping ground for Apple's offensive cases". That's a scenario Nokia will definitely try to avoid, but courts enjoy considerable discretion in ordering transfers to other districts in which earlier-filed patent cases involving the same parties are pending.
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