Tuesday, July 16, 2013

German court inclined to stay Nokia v. HTC case over multiple-homescreen patent

Today the Second Civil Chamber of the Mannheim Regional Court (Judge Dr. Kircher's panel) held a trial on one of numerous Nokia v. HTC lawsuits. Today's patent-in-suit was EP0882347 on "a radio telephone". The patent is obviously not as insanely broad as its title suggests, but it is very broad in the court's opinion (which appeared perfectly plausible to me). As a result, while Nokia will probably prevail on infringement, the case is going to be stayed over serious doubt concerning the validity of the patent. A decision has been scheduled for August 6, 2013, which is unusually soon (typically German courts make decisions 6-8 weeks after trial). Neither party requested the right to file post-trial briefs, as HTC is happy about the prospects of a stay and Nokia merely wanted to preserve its record.

This is what the patent is about: the original idea (which does not limit the scope of the claims as they stand today) was, at some point back in the mid-1990s, to have a mobile phone with buttons to which different functions can be assigned depending on whether the user is a dummie or an advanced user. All users are, of course, provided with basic telephony. The screen would always display a text describing the functionality assigned to a key that may have one function in beginner's mode and another one in a more advanced mode. But claim 1 does not specifically refers to different categories of users. It broadly covers selectable homescreens with a dial button.

HTC's phone provide different homescreens. This may be an HTC Sense rather than stock Android feature. Google did not appear officially as an intervenor today, but a Quinn Emanuel lawyer was in the audience. (Samsung is also a Quinn Emanuel client, provides this kind of feature, and has recently had some secretive patent talks with Nokia.)

HTC's lead counsel in this action and almost all other Nokia v. HTC cases in Germany, Hogan Lovells' Dr. Martin Chakraborty, is very hard to beat. So far every case in which he was lead counsel for HTC against Nokia has been dismissed or stayed, and I believe this case will be the next. A stay is more likely than an outright dismissal, as Judge Dr. Kircher and his chamber (panel) consider the asserted claim rather broad even though they recognize that the description is more specific. It's very difficult to narrow a patent based on its description when the Federal Patent Court rules on a nullity (invalidation) complaint. The Federal Patent Court is very claim-focused. So when the infringement courts assess the likelihood of a patent's survival (most patents in this industry are declared invalid by the Federal Patent Court, though some are then reinstated by the Federal Court of Justice in the final appeal), they have to apply the Federal Patent Court's criteria.

Even HTC's highly-effective defense team was unable to convince the court that the patent should be interpreted narrowly in connection with infringement. Judge Dr. Kircher was quite surprised about HTC's denial that its Desire HD represents a "radio telephone" within the meaning of the patent-in-suit. Dr. Chakraborty argued that when the patent application was filed in the mid-1990s, phones were just phones, while today's smartphones are portable computers. Nice try. Didn't work. The primary non-infringement argument related to the interpretation of "default modes" (as compared to a "function" or "functionality"), and again the court is more likely to come down on the side of a broad claim construction.

The prior art reference that the court considers to anticipate the patent-in-suit is a European patent. The full number was not mentioned today -- only the final three digits (516). Nokia argues that the other invention relates to different operating modes of a phone and display a mode but not a specific function of a key. Patent attorney Dr. Gunnar Baumgaertel of the Berlin-based Maikowski & Ninnemann firm argued on HTC's behalf that the content of on-screen information is irrelevant because "instructions directed to the human mind" are not patent-eligible.

So far Nokia has won one German patent injunction (of limited impact) against HTC, but various other cases have been dismissed and most of them stayed (some of them even voluntarily). Absent a settlement a number of Nokia patents are going to go to nullity trials at the Federal Patent Court. If Nokia can defend a particular patent previously found infringed in the form in which it was granted, an injunction can issue quickly. If Nokia has to amend a patent to salvage it, then a new infringement analysis is necessary. And this takes time, especially since the Federal Patent Court's rulings can be appealed as a matter of right to the Federal Court of Justice. In the meantime, HTC is making headway with its countersuits against Nokia (rulings will come down in August and September). Nokia may also get leverage from the ongoing ITC investigation of its complaint against HTC. A preliminary ruling on that one is scheduled for late September. But HTC has proven to be a tough and resilient target.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Share with other professionals via LinkedIn: