Friday, August 30, 2013

German court stays Nokia lawsuits against HTC, ViewSonic over two app data-routing patents

Today the Mannheim Regional Court announced its decision to stay four patent infringement actions: two lawsuits brought by Nokia against HTC over two app data-routing patents and two against ViewSonic over the same patents. The patents-in-suit are from the same patent family: EP0882375 and EP1439723 on "a communication network terminal supporting a plurality of applications".

Nokia asserts that the way in which Android routes push messages from third-party application servers over Google's server to applications installed on an end-user device infringes on these patents. Google intervened in all four cases.

In accordance with the preliminary inclination indicated at the May 7, 2013 trial, the court found HTC and ViewSonic's Android-based devices to infringe these patents, but it also doubts strongly that these patents will come away unscathed from the nullity (invalidation) actions before the Federal Patent Court of Germany. ViewSonic is not pursuing a nullity case against these patents on its own, apparently due to budget constraints, but has benefited from HTC and Google's efforts to take down these patents.

Various other German Nokia lawsuits have been stayed this year over doubts concerning the validity of the patents-in-suit, a couple of them by stipulation (i.e., voluntarily), and in the case of these app data-routing patents the court's assessment of likely invalidity, at least in the form in which it was discussed at the May trial, hinges on a theory that effectively deems the potential novelty of one claim describing a data structure entirely irrelevant to the novelty of another claim referring to that data structure (as if an independent claim could be held against a claim depending from it the way a prior art reference could be). While the result of the nullity proceedings at the Federal Patent Court could be the one the Mannheim court considers highly likely, I wouldn't be surprised to find the Federal Patent Court analyze a dependent claim based on all of its limitations and disclosures, including the ones it incorporates by reference from an independent claim.

Nokia has issued this official statement:

"Nokia is pleased that the Mannheim court has found HTC and Viewsonic to infringe two Nokia patents. These are among more than 50 patents asserted against HTC, which has already been found to infringe other Nokia patents and an injunction is already in effect in Germany as a result of those decisions. HTC needs to end its unauthorized use of Nokia's proprietary innovations."

That statement barely mentions ViewSonic and focuses almost completely on HTC, which is obviously the strategically more important target for Nokia and the larger-scale dispute. I reported on Tuesday that HTC and Nokia have submitted a joint pretrial schedule for the ITC investigation of Nokia's second complaint against HTC, and that they told a U.S. district court that they frequently meet for settlement talks but haven't reached an agreement yet.

HTC, represented by Hogan Lovells in the German Nokia cases, has been defending itself extremely well so far, in some cases with Google's help (represented by Quinn Emanuel), which it may not even need because it's a very experienced, competent and creative litigant in its own right.

Plaintiffs like Nokia typically hope to win some quick, high-leverage injunction(s) in Germany and to settle worldwide disputes on that basis. Nokia has won a German injunction against HTC and is enforcing it, as its statement quoted above mentions, but that one has not made HTC back down. As a result, this dispute, which started in the spring of 2012, may go on for some more time. Next month a couple of rulings on HTC countersuits against Nokia will come down, but I'm not sure that those will lead to a settlement. This means that Nokia's more recently-filed patent assertions (such as the second ITC complaint mentioned before) will be particularly key to the resolution of the dispute. Also, the UK proceedings are behind the Geramn infringement cases and could provide some clarity. And at some point, starting next spring (absent a settlement, of course), the Federal Patent Court of Germany will start to adjudicate numerous nullity (invalidation) complaints targeting Nokia patents-in-suit, including various ones at issue in stayed cases. If HTC has been found to infringe a patent but the case was stayed over doubts concerning the validity of the patent, and the patent actually does survive (contrary to what the infringement court considered the likely outcome), then a tipping point in Nokia's favor could be reached, further down the road.

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