Thursday, January 9, 2014

German court dismisses Nokia lawsuit against HTC over patent related to over-the-air updates

This morning Judge Dr. Matthias Zigann, who presides over the 7th Civil Chamber of the Munich I Regional Court, announced the dismissal of a Nokia v. HTC patent infringement lawsuit over EP0804046 on a "method and apparatus for updating the software of a mobile terminal using the air interface". The patent-in-suit does not cover all over-the-air updates but a particular way of enabling mobile phone users to accept calls while downloading an update.

The court concluded, as Judge Dr. Zigann explained in open court today, that HTC's devices don't meet the claim limitations of a "first memory" and a "second memory", rejecting Nokia's proposed claim construction that would have had scope for different areas of the same memory, organized by software means, to constitute different "memories" within the meaning of the patent.

Since Nokia started its patent enforcement against HTC in April 2012, well over a dozen German cases have come to judgment. Nokia has also won an injunction in the UK (which was stayed pending an appeal), and a preliminary Nokia win at the ITC is under review. Patent litigation is a low-scoring game, and HTC has already been able to fend off many Nokia lawsuits. But Nokia has scored multiple wins, three of them already in Germany. On the Friday before Christmas, a different division of the Munich court had sided with Nokia on a USB-related patent, and on the eve of New Year's Eve, Judge Dr. Zigann's panel entered an injunction over a patent on certain kinds of negotiated data transfer over NFC and Bluetooth connections (which Nokia can enforce if it posts a bond or gives security amounting to 400 million euros).

Nokia's German patent assertions against HTC were brought by different lawyers from two firms. But all three German Nokia wins were achieved by the same lead counsel: Christian Harmsen, the head of Bird & Bird's German IP practice. His firm, but not Mr. Harmsen personally, was involved with the case adjudged today.

When Nokia sued HTC in May 2012, I really wouldn't have thought that this dispute was still going to be in full swing in early 2014. RIM (now BlackBerry), a company Nokia sued at the same time, settled after a few months, though the circumstances surrounding that settlement (an arbitration proceeding over a contract that appeared rather disadvantageous for RIM) were admittedly unique. Nokia also sued ViewSonic at the same time, but it has put much less effort behind the dispute with ViewSonic than the one with HTC, which spans seven countries and three continents and involves more than 50 different patents.

Since the original filings, Nokia has repeatedly stepped up the pressure through additional complaints, not only in new jurisdictions but also in Germany. Also, Nokia's Dusseldorf filings haven't come to judgment yet, but will soon. And over the course of this year, various of Nokia's patents-in-suit will come to judgment at the Federal Patent Court of Germany, where HTC (in some cases in conjunction with Google, which is concerned about Nokia's infringement allegations against Android and related Google technologies) brought nullity (invalidation) complaints.


Nokia has issued the following statement:

"Nokia respectfully disagrees with the judgment of the Regional Court in Munich, Germany, which today ruled that HTC products do not infringe Nokia’s patent EP 0 804 046. Nokia is considering an appeal of this decision.

However, this does not change the fact that the same court found in December 2013 that two other Nokia patents were infringed by HTC products, enabling Nokia to enforce injunctions against the import and sale of all infringing HTC products in Germany, as well as to obtain damages for past infringement.

Nokia began its actions against HTC in 2012, with the aim of ending HTC's unauthorised use of Nokia's proprietary innovations and has asserted more than 50 patents against HTC. Since then, Nokia believes it has demonstrated beyond doubt the extent to which HTC has been free riding on Nokia technologies, with HTC found to infringe six Nokia patents in venues including the Regional Courts in Mannheim and Munich, Germany, the UK High Court and the US International Trade Commission. HTC's first New Year's resolution for 2014 should be to stop this free riding and compete fairly in the market."


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