Tuesday, March 12, 2019

Munich I Regional Court schedules additional June trial over Qualcomm's four zombie patent lawsuits against Apple

Four of Qualcomm's eight Spotlight-related patent infringement actions against Apple in Munich were dismissed in January for non-infringement, while the proceedings relating to the other four cases (two lawsuits per patent targeting different Apple entities) were reopened because Qualcomm had not yet had the opportunity to argue that a panel of three examiners at the EPO's Opposition Division erred when they preliminarily agreed with Apple and Intel that those patents are invalid.

I checked again with the press office of the Landgericht M√ľnchen 1 (Munich I Regional Court) and was told yesterday that "for the time being" the court scheduled another trial session for June 13, 2019. The parties already argued (non-)infringement at a first hearing as well as a trial last year, so presumably the sole focus of the additional June session will be on (in)validity.

Five and a half month later, on November 26, 2019, the EPO's opposition panel will hold a hearing and make its decision (click on the image to enlarge; this post continues below the image):

In German infringement proceedings, defendants' ability to argue invalidity is limited. As opposed to a full invalidity defense, there is bifurcation: full invalidity challenges must be brought in separate fora (the EPO for "young" patents, or the Federal Patent Court of Germany), and the courts deciding on infringement will, at best, stay a case pending the resolution of a parallel invalidation proceeding. The decision on a request for a stay is based on limited analysis as opposed to a full trial. In practical terms, obviousness arguments are hard to prevail on; stays are usually based on indications of non-novelty.

However, when a competent forum deems a patent invalid, its findings bear significant weight with the infringement court. A credible invalidity opinion from a forum within the European Patent Organization (the international organization running the EPO) often has the practical effect of reversing the burden of proof, requiring the patent holder to persuade the court that the related findings are either not well-reasoned or, should a patent not be young enough that the EPO can revoke it Europe-wide, are based on a legal standard that German courts don't apply to the German parts of EPO patents.

Here, the EPO's opposition panel took a preliminary position, with the actual hearing taking place later this year. A preliminary holding like this obviously has significantly less weight than a final (but appealable) revocation decision. But it was important enough to warrant a reopening of proceedings.

Qualcomm isn't going to gain any leverage from those Spotlight (a search feature) cases anyway as iOS 12 contains a workaround. Any "win" would be purely symbolical, as would any potential damages. But Qualcomm is facing huge problems in its patent infringement actions against Apple, which is presumably the reason why it keeps spending a lot of money on cases that won't result in any serious leverage. Qualcomm is desparately trying to prove that its patents (in these cases, non-standard-essential patents) have value, and to portray Apple as an infringer--even when there's already a workaround in place.

Maybe Qualcomm will stipulate to a stay so the Munich court won't have to hold the mid-June trial session and write up an order to stay the case. Given that the EPO will decide only five and a half months later, it's hard to imagine (though I have no idea of what Qualcomm told the court as to why it believes the EPO got it wrong) that Qualcomm will be able to dissuade the court from staying the cases. It's also very, very likely that the EPO will revoke those patents, in which case Qualcomm will have to appeal the Opposition Division's decision to a Technical Board of Appeal. All of his is taking time, but those cases are pretty clearly going nowhere.

Later this month a first hearing in a later-filed Munich Qualcomm v. Apple case over an antenna patent will be held.

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