Approximately thirteen months after filing patent infringement lawsuits against HTC, ViewSonic and BlackBerry (then named Research In Motion), Nokia has a settlement with BlackBerry and an injunction it is enforcing against HTC to show. That's a decent -- but not stellar -- result at this stage. It looks like this effort may be more of a marathon than a sprint, especially when considering that few industry players currently have a license to any of Nokia's non-standard-essential patents, sitting on the sidelines and watching how Nokia's assertions against HTC and ViewSonic play out.
At a Mannheim trial in March relating to two standard-essential patents (while HTC has a license to Nokia's SEPs, ViewSonic does not), ViewSonic appeared to be very close to settling. Its German counsel even called the court to suggest that the trial could be canceled. But no deal has happened yet, and one of the two SEP cases tried in March -- over EP0754395 on "location udpating for a packet-switched data service in a mobile communication system" -- was dismissed today as the court determined there was no infringement. Nokia issued the following comment on the Mannheim ruling:
"Nokia was one of the originators of the GPRS standard and this patent is one of Nokia's many contributions to that standard. This is a technically complex area and we respectfully disagree with the court's understanding. We will consider our options to correct this. We continue to call on Viewsonic to pay fair compensation for its use of Nokia’s standards essential patents and cease using Nokia's other innovations."
Even if Nokia had won that case, the impact of a ruling would have been limited: ViewSonic has exited the European smartphone market. The impact would mostly have been the cost implications of losing a case, and damages, the amount of which would have had to be determined subsequently. ViewSonic defended itself inexpensively. It didn't even bring any challenge to the validity of this patent, and it's the only defendant not to raise any FRAND defense against SEPs in all of the cases I've watched so far.
Subsequently to today's Mannheim ruling, a trial was held over Nokia's assertion of a patent against ViewSonic's distribution of the Google Play app store. A different chamber (panel) of the same court dismissed Nokia'a assertion of that patent against HTC in March. Today's trial was conducted by the Second Civil Chamber, which Judge Dr. Holger Kircher presides over, while the March ruling, following a December trial, was made by the Seventh Civil Chamber, whose president is Judge Andreas Voss ("Voß" in German), the world's number one wireless patents judge in terms of the number of cases handled.
I didn't attend the announcement and trial in Mannheim because I went to a couple of Nokia v. HTC hearings at the Munich I Regional Court. The Munich court holds a first hearing in each patent infringement action, at which it discusses claim construction and infringement issues on a very preliminary basis. The second hearing is then tantamount to a trial. Today's hearings were first hearings and related to patents Nokia previously asserted, in the same court, against BlackBerry:
EP0804046 on a "method and apparatus for updating the software of a mobile terminal using the air interface" (allows users to receive calls while downloading software updates)
EP1148681 on a "method for transferring resource information" (sending URLs from one device to another over different types of connections including NFC)
Judge Dr. Matthias Zigann outlined in his introductory remarks which concerns Nokia would have to address satisfactorily in order to prevail on these claims. Based on the original complaints and HTC's responses, but prior to Nokia's reply and a full trial (to be held in the fall), both cases would have to be dismissed for failure to prove infringement. In both cases Nokia has to overcome certain hurdles relating to claim construction and present evidence of infringement going beyond screenshots that show what happens from the end user's perspective but not what goes on inside the devices (for example, in what kind of memory downloaded files are stored).
Nokia can still prevail on one or both of these cases. First hearings are very preliminary, and Nokia can amend its infringement contentions and strengthen its claim construction arguments. But once again, this is no walk in the park.
While HTC recently said the value of Nokia's patent portfolio had been "greatly exaggerated", it told a UK court last year that it would no longer be able to sell smartphones in Germany if Nokia prevailed on certain patents-in-suit. The breadth and depth of Nokia's patent portfolio is recognized in the industry. But you can't sue over a portfolio of thousands of patents. You have to pick a few, or maybe a few dozen (Nokia is asserting 40 or more different patents against HTC), and then gain leverage in court. Nokia will get there, and settlements can always happen overnight (think of Apple and HTC), but this could still take a while. Nokia and HTC have been defending themselves jointly, in close collaboration, against IPCom, a patent monetization entity from Germany, for more than five years. I don't believe Nokia and HTC will still be suing each other five years down the road, but unless it gets decisive leverage in the near term, Nokia may have to file even more infringement actions and/or wait until the Düsseldorf Regional Court (which is statistically very plaintiff-friendly but slower than Mannheim and Munich), the England and Wales High Court, and the Karlsruhe and Munich appeals courts adjudge some of the key cases. Also, HTC is challenging Nokia's patents at the Bundespatentgericht (Federal Patent Court), and if infringement cases take long enough, nullity (invalidation) trials will also take place (though sometimes about two years after the infringement trials).
There will be more Nokia-HTC encounters in court in the weeks ahead. Next week a different chamber (panel) of the Munich I Regional Court will hold a trial on Nokia's assertion of a text message (SMS) sorting patent, and the ITC will commence its evidentiary hearing (trial) in the investigation of Nokia's complaint against HTC, involving among other things a tethering patent. In mid-June the second Nokia v. HTC case targeting Google's VP8 video codec will go to trial in Mannheim. And HTC's own assertions against Nokia (1, 2) in Mannheim and Munich will also go to trial soon in Munich and Mannheim.
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