Thursday, April 11, 2019

Munich I Regional Court lifts Qualcomm's deceptive-advertising injunction against Apple (indirectly related to patent injunction)

After this week's news of an EU General Court ruling against Qualcomm (related to the European Commission's enforcement of compliance with a couple of antitrust information requests) I also checked again with the Munich I Regional Court, mostly because I was curious about Qualcomm's recent contempt motion against Apple, alleging non-compliance with the injunction Apple has meanwhile worked around. Please check out my mid-February post on that matter because it summarizes the unusual circumstances (procedural shenanigans) under which an agnostic patent injunction came down and explains the workaround, which involved replacing an Intel baseband processor with a Qualcomm chip even though the accused component was a Qorvo envelope tracker chip.

Not only did Qualcomm bring a contempt motion, which a spokeswoman for the court tells me hasn't been adjudicated yet, but in January it also became known (as I once mentioned in passing) that Qualcomm obtained a preliminary injunction from a different chamber (= panel of judges) of the same Munich court against Apple's public statements that the iPhone&nbsmp;7 and the iPhone 8 would remain widely available in Germany notwithstanding Qualcomm's enforcement.

Meanwhile the court has confirmed to me that the deceptive-advertising injunction was based in the UWG (Germany's unfair competition law). I also have a case number now (1 HK O 257/19; the "HK" means it's a commercial dispute). And I learned that just on Tuesday the court lifted the competition law-based injunction, but hasn't stated the reasons yet.

That one is a sideshow (deceptive advertising) of a sideshow (a fake patent injunction that had no serious impact), while the one that really matters is the Apple, Foxconn et al. v. Qualcomm antitrust case going to trial in San Diego on Monday over tens of billions of dollars. I still wanted to mention it because Qualcomm made some noise about this preliminary injunction when they obtained it, and by now it's an injunction that has ceased to be.

I wouldn't rule out at all that Qualcomm's pursuit of that injunction was driven by some emotions on top of PR considerations (though they are extremely PR-oriented, and very good at playing that game).

Qualcomm and its German lawyers--their lead counsel, Quinn Emanuel's Dr. Marcus Grosch, is really an amazing patent litigator--had fought very hard to win anything in Germany. Most of their German patent infringement cases against Apple went nowhere. Then, after several setbacks, they finally got one--though I consider it a highly illegitimate one, despite otherwise having great respect for the judge who handed it down and for counsel--and they thought it would give them leverage. They laid down more than $1.5 billion, an insane amount given that this case probably has an official value in dispute (based on which court fees are calculcated) somewhere in the range from 5 to 10, maybe 20, million euros (like the other German Qualcomm v. Apple cases). And then they saw that Apple removed those olders iPhones from its own German stores (for six weeks or so), but its major resellers (carriers like T-Mobile, Vodafone, and Telef√≥nica/O2, but also retailers like MediaMarkt) just kept on selling as if nothing had happened, with some smaller resellers even mocking the injunction in their ads.

It's a typical situation where each side of a cube has a different color and if you stand on one side, it looks green, and from the other side it looks red. I just described Qualcomm and Quinn Emanuel's perspective. They probably were upset about Apple seemingly disrespecting the injunction. But then my perspective is that it should be beneath the likes of Qualcomm and Quinn Emanuel--two world-class Q's--to obtain and enforce (!) an agnostic patent injunction when professional judges in the U.S. actually agreed with what was Apple's primary non-infringement argument. QE has a tremendous reputation for vigorously representing clients, and there's not even the slightest indication of them having done anything illegal here, but it's highly likely that this was an egregious case of utterly abusive, wrongful patent enforcement.

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