Thursday, December 12, 2013

Federal Patent Court of Germany invalidates keyboard patent Apple acquired from Mitsubishi

The Bundespatentgericht (BPatG, Federal Patent Court of Germany) yesterday struck down yet another smartphone patent: EP1168859 on a "portable radio communication apparatus using different alphabets", a multilingual keyboard patent Apple acquired from Mitsubishi a couple of years ago and asserted (unsuccessfully because the courts didn't believe it was valid) against Samsung, Google's Motorola Mobility, and HTC. Samsung and Google were pursuing nullity (invalidation) complaints against it; the dispute between Apple and HTC was settled globally more than a year ago, resulting in the withdrawal of HTC's nullity action.

Apple had brought its infringement cases over this patent in Mannheim, Germany. The cases against all three defendants were stayed. Apple stipulated to a stay of the case against HTC; the court stayed the Samsung and Motorola Mobility cases because it considered this patent highly probable to be invalidated.

A few months after the German infringement trials, the England and Wales High Court adjudicated a declaratory judgment complaint by HTC relating to a total of four patents and found this multilingual keyboard patent invalid (and, which therefore didn't matter, infringed by HTC).

Apple can appeal yesterday's BPatG ruling to the Bundesgerichtshof (BGH, Federal Court of Justice). Given the fact that two different European courts have already held it invalid, I wouldn't have much hope for this patent before a third court. I believe Apple's appeals relating to some of its "homegrown" patents present more interesting issues.

Samsung, Google and HTC also asserted (and Samsung and Google are still asserting) numerous patents against Apple that they acquired from third parties -- far greater numbers in fact. So I don't blame Apple for having tried its luck with an acquired patent just like its rivals do all the time, and this one could have given Apple leverage because it's unbelievably basic and broad (but those patents are particularly susceptible to invalidation challenges).

So far not even one of the patents in all the disputes I watch has survived the BPatG proceedings in its granted form, calling into question the quality of the examination process of the European Patent Office (EPO). Only two of those patents survived in a substantially-narrowed amended form (yesterday's patent was invalidated in its entirety, including the rejection of any proposed amendments).

I found out about the latest decision today because I contacted the court about it. I anticipated this outcome, thus didn't attend yesterday's full-day nullity trial, at the end of which this decision was announced from the bench.

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