Unwired Planet, a patent licensing firm that has acquired more than 2,600 patent assets, today announced the filing of parallel patent infringement lawsuits in London and Dusseldorf involving six former Ericsson wireless patents. Samsung, Google, and Huawei have to defend themselves in the UK and in Germany, and HTC only in Germany.
In January, Samsung signed a new patent license agreement with Ericsson, but it appears that patents previously divested by Ericsson were not included because Ericsson presumably could, at that point, not have done anything to prevent Unwired Planet from asserting them against a third party. Transactions such as Ericsson's sale of patents to Unwired Planet, which in turn asserts them against other companies, are sometimes referred to as "privateering". Such agreements frequently come with deal terms under which the NPE and the former patent holders share the royalty income. Buy-back provisions are also common.
Today's UK and German filings by Unwired Planet were made by EIP's Benjamin Grzimek, a patent litigator based in Dusseldorf. Unwired Planet's patent attorney in the German cases is David Molnia, who is also licensed as a U.S. patent agent and counts IPCom, another NPE holding wireless patents that once belonged to a device maker that has meanwhile exited the handset market (Bosch), among his clients.
The press release states that the two venues, London and Dusseldorf, where chosen because they "are among the fastest and most efficient ways to protect intellectual property rights" and "offer strong remedies if a license cannot be reached on FRAND terms, including the potential for injunctive relief". This statement is very interesting when considering that three of the defendants (Samsung, Google, Huawei) are among the members of an industry coalition urging European policy-makers to ensure that Europe's future Unified Patent Court won't have rules of procedure that make it an exceedingly attractive venue for NPEs because of easy access to injunctive relief, coupled with German-style bifurcation (i.e., no full invalidity defense in an infringement proceeding because infringement and validity are determined separately). I guess these companies and their allies in the push for balanced rules, such as Apple, Microsoft and some major European mobile network operators, will point the European Commission and the governments of the EU member states to Unwired Planet's European lawsuits as yet another example of NPE litigation in Europe.
The EU's Internal Market Commissioner, Michel Barnier, did not appear to be impressed by that alliance's first open letter on the subject, but in response to the second one he wrote the following on Twitter: "[I]ndustry letter Unified #Patent Court: We share goal, balanced system closing gap that give way to #trolls. Confident we'll achieve that"
I'm not sure that Mr. Barnier is truly behind the cause of a balanced system, but I'd be happy to see some progress in the months ahead. The European Commission's Directorate-General for the Internal Market is, among other things, responsible for intellectual property policy, and it regrettably has a long-standing tradition of favoring the interests of the patent system (more patents, stronger enforcement) over those of the economy at large (higher-quality patents, balanced enforcement). But I'd be happy to be proven wrong and to see Mr. Barnier deliver on the tweet I just quoted...
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