Tuesday, October 26, 2021

Dutch court rejects Ericsson motion for anti-antisuit injunction, but Apple may still be enjoined if need be: another jurisdiction adopts Munich approach

Ericsson means business, and it's not going to undervalue its patents in the renewal of its license agreement with Apple. Earlier this month, Ericsson filed a declaratory judgment action--on its own FRAND compliance--in the Eastern District of Texas. I've now become aware of a decision the Rechtbank Den Haag (Court of The Hague) published (in Dutch) last week. Judge D. Nobel denied an Ericsson petition for an anti-antisuit injunction against Apple. It may be counterintuitive, but all things considered the decision is clearly better for Ericsson--though it's "the loser" at first sight--than for Apple. As matter of fact, Apple itself has a history of bringing cases that serve a strategic purpose even if a court rejects a motion or complaint (such as when it demonstrated to the rest of the industry that it would enforce its design rights around the globe, even though it ultimately failed everywhere but in its home court).

There are three ways in which the decision from the Netherlands--even though technically negative--helps Ericsson:

  • Judge Nobel did not rule out in the slightest that an anti-antisuit injunction could be granted in order to pre-empt a foreign antisuit injunction that would prevent a party like Ericsson from enforcing its Dutch patents.

    The Munich I Regional Court's pre-emptive strike doctrine, which the 7th Civil Chamber under Presiding Judge Dr. Matthias Zigann laid out earlier this year in InterDigital v. Xiaomi, is clearly spreading to more and more jurisdictions. In the summer, the Dusseldorf Regional Court, whose FRAND case law used to be at the other end of the German spectrum, granted General Electric and Mitsubishi a pre-emptive anti-antisuit injunction against Xiaomi.

    The Dutch Ericsson v. Apple decision shows that other courts are also prepared to prophylactically shield patentees like Ericsson from foreign antisuit injunctions.

  • Ericsson didn't prevail this time (I'll talk about the missing link further below), but it might succeed next time: Apple now knows that the moment it seeks an antisuit injunction anywhere in the world, be it against Ericsson or anybody else, not only the Munich and Dusseldorf courts but also the Court of The Hague may strike down and protect their jurisdiction against foreign interference.

    While the Dutch decision is narrowly focused and doesn't address whether the pursuit of an antisuit injunction would weigh against an implementer's willingness to take a FRAND license (as the Munich court explained), there is--at a minimum--considerable risk for Apple that such an inference would be drawn.

  • Ericsson demanded from Apple a written declaration that it would not seek an antisuit injunction against Ericsson. Apple declined to do so, but as a result of Ericsson going to court, Apple then told the court that it had no intention of doing so. That is different from a firm written commitment because Apple could theoretically say at a later point that its representations to the Dutch court were truthful at the time, but something warranted a change of mind later on. While legally possible, such an about-face would have serious implications.

    Sometimes chess analogies can be used to explain litigation strategies. Here, Ericsson's motion--while technically unsuccessful for the time being--forced Apple to make a move (telling the court that it had no intention of seeking an antisuit injunction) that doesn't "cost" Apply anything in the short term, but just like a pawn can never go back to a previous position, this is also a one-way street for Apple: it can't seek an antisuit injunction anymore without potentially bringing up the Dutch court against it.

In a complex multifactorial type of decision, no two courts will ever apply identical standards. But in principle, the Dutch court took a similar approach as the Munich and Dusseldorf courts by looking at Apple's conduct vis-à-vis Ericsson as well as what Apple may have done in comparable situations involving other defendants. Not even in Munich would the refusal to promise in writing not to seek an antisuit injunction be dispositive all by itself: it's just a factor, and it appears to me (at least so far) that a patentee is deemed entitled to such a written declaration only if there are one or more other circumstances that give rise to a reasonable apprehension of an antisuit injunction being imminent.

In the Dutch case, Ericsson apparently made a representation that its own lawyers later conceded was erroneous: Ericsson said Apple previously sought an antisuit injunction in the Southern District of California against Qualcomm, but in reality, Qualcomm (unsuccessfully) moved for an antisuit injunction against Apple. And it wasn't even an antisuit injunction against patent enforcement, by the way...

However, there still is a possibility that Apple was somewhat involved with the pursuit of an antisuit injunction. In 2018, a consumer class action that attached itself to the FTC v. Qualcomm case in the Northern District of California (where Apple officially had a common interest agreement in place with the FTC) tried to prevent Qualcomm from the enforcement of a hypothetical U.S. import ban. The court denied the motion as premature. Class actions are normally all about money, and even if Qualcomm had gotten leverage over Apple by means of an ITC exclusion order, the FTC could still have carried on with its case. Therefore, the "cui bono?" analysis makes it at least plausible--and, to be honest, in my opinion even very likely--that the consumer class action was a proxy for Apple, and that Apple paid the class action lawyers. Maybe there is a way that Ericsson could find out about that by means of U.S. discovery for use in foreign proceedings.

The Dutch anti-antisuit case isn't even over. The decision indicates that some interim measures were ordered earlier in the month. I guess this was like a temporary restraining order in order to prevent Apple from seeking an antisuit injunction before the Dutch court would have made a decision on Ericsson's motion for a preliminary injunction). If so, they are not in force, but the main proceeding, which will culminate in a full trial, will continue on November 18. Apple already announced that it would then challenge the court's jurisdiction.

I'm pretty sure that Ericsson sought such an anti-antisuit injunction not only in The Hague but at least in Germany, and possibly in other countries as well. I will try to find out more, though ex parte motions are usually not discoverable until a decision comes down.

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Saturday, October 23, 2021

Intellectual Ventures predicted 'IP reckoning' for auto sector, then filed patent suits against General Motors, Toyota, Honda in Texas--even involving a former Daimler patent

This is the third post with an automotive industry topic in a row. On this occasion, I'd like to mention that I plan to attend the afternoon panels of the Auto IP Europe conference hosted by IAM in Munich on November 2, and point you to my two previous automotive posts:

The automotive industry must license more patents. Some patent holders are patient because they recognize that car makers are relatively new to the wireless patent licensing business--but that doesn't mean everyone will wait forever. On October 13, IAM published an opinion piece by Arvin Patel, the COO of non-practicing entity Intellectual Ventures ("IV"): "Why the auto sector is heading for an IP reckoning" (paywalled)

IV is not going to take the alleged wholesale borrowing of technology in the connected-car era anymore. On October 19, less than a week after that op-ed, IV filed patent infringement complaints against General Motor in the Western District of Texas (over 12 patents), and against Toyota and Honda in the Eastern District of Texas (over 11 patents each).

Let me show you the GM complaint as am embedded document (ths post continues below the document):

21-10-19 Intellectual Ventu... by Florian Mueller

I've also uploaded the Toyota complaint and the Honda complaint to Scribd.

These are the patents-in-suit:

  1. U.S. Patent No. 6,832,283 on a "method for addressing network components"; originally filed by Daimler; asserted against all three defendants

  2. U.S. Patent No. 7,382,771 on a "mobile wireless hotspot system"; originally filed by In Motion Technology, a company that Sierra Wireless acquired in 2014; asserted against all three defendants

  3. U.S. Patent No. 7,484,008 on a "apparatus for vehicle internetworks"; same family as '004 patent; asserted against Toyota

  4. U.S. Patent No. 7,684,318 on "shared-communications channel utilization for applications having different class of service requirements"; asserted against all three defendants

  5. U.S. Patent No. 7,891,004 on a "method for vehicle internetworks"; same family as '008 patent; asserted against GM and Honda

  6. U.S. Patent No. 8,811,356 on "communications in a wireless network"; asserted against all three defendants

  7. U.S. Patent No. 8,953,641 on "methods and apparatus for multi-carrier communications with variable channel bandwidth"; asserted against all three defendants

  8. U.S. Patent No. 9,232,158 on "large dynamic range cameras"; asserted against all three defendants

  9. U.S. Patent No. 9,292,475 on a "device, system and method for controlling speed of a vehicle using a positional information device"; asserted against all three defendants

  10. U.S. Patent No. 9,602,608 on a "system and method for notifying a user of people, places or things having attributes matching a user's stated preference"; asserted against all three defendants

  11. U.S. Patent No. 9,681,466 on "scheduling transmissions on channels in a wireless network"; from a patent family originally obtained by IPWireless, a company that General Dynamics acquired in 2012; asserted against all three defendants

  12. U.S. Patent No. 9,934,628 on a "video recorder"; asserted only against GM

  13. U.S. Patent No. 10,292,138 on "determining buffer occupancy and selecting data for transmission on a radio bearer"; from a patent family originally obtained by IPWireless, a company that General Dynamics acquired in 2012; asserted against all three defendants

I find it very interesting that even Daimler apparently divested IP assets to non-practicing entities. Daimler itself gets sued by NPEs all the time now, and can't credibly complain about any NPE's business model...

The complaints do not describe any patent as standard-essential. Reference to WiFI and 3GPP standards like LTE is made, but there is no indication of a FRAND licensing obligation. For the vast majority of the patents-in-suit, standard essentiality can be ruled out just based on what techniques those patents cover.

Even though the profile of IV's patents-in-suit is, therefore, rather distinct from the types of patents in the Avanci pool, it is interesting that patent holders (SEP and non-SEP holders alike) appear less likely to sue Avanci licensees. IV is not an Avanci licensor, so it could even assert SEPs against Avanci licensees.

For SEP holders that are not Avanci licensors there is a serious issue if they sue Avanci licensees: those patent holders tend to seek far higher royalties relative to the value and size of their portfolios, and defendants would then point to the Avanci rate on a per-patent basis as a comparable license (the "ND" ("non-discriminatory") in "FRAND"). Anyone can point to Avanci's published royalty rates--but someone who doesn't even want to license patents at that rate just comes across as an unwilling licensee or even as an unrepentant infringer.

If a non-SEP case is put before a jury, U.S. judges might not accept a SEP pool rate as a relevant point of reference on patent valuation--but at a minimum the judges can see that the defendant is, in principle, a willing licensee. That, in and of itself, has value.

Another possibility is that companies with an Avanci license are also more likely to reach a negotiated agreement with other licensors.

I'll keep an eye on automotive patent infringement cases, and will pay attention to whether there is a pattern of Avanci licensees being sued less than non-licensees.

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EU competition chief's tough talk on cartels doesn't bode well for automotive SEP licensing negotiation groups

This is my second of at least three consecutive posts on automotive patent licensing issues. The previous one discussed the L2 Mobile Technologies v. Ford Motor Company case that is pending in the District of Delaware.

At the annual conference of the Italian Antitrust Association, the European Commission's Executive Vice President and competition commissioner Margrethe Vestager gave a speech yesterday that ushered in--as its title promised--"a new era of cartel enforcement." The manuscript was published on the Commission's website.

1+1+1=3. Mrs. Vestager vowed to crack down, inter alia, on (i) novel types of cartels and (ii) buyer cartels, and (iii) recalled recent enforcement action against (German) car makers. Automotive standard-essential patent (SEP) licensing negotiation groups (LNGs) are the combination of all of that. Further below I'll quote the relevant passages, which speak for themselves. If this doesn't serve to discourage car makers from advocating a solution that is inherently worse than the alleged problem it purports to solve, what else will?

If you haven't previously read my thoughts on collective licensing negotiation groups, here are the links to all parts of my late-July trilogy:

  1. SEP Licensing Negotiation Groups -- Part I: analogy to patent pools entails false symmetry between facilitating and complicating automotive patent licenses

  2. SEP Licensing Negotiation Groups -- Part II: justice delayed is justice denied when unwilling licensees can hide behind a consensus-building effort

  3. SEP Licensing Negotiation Groups -- Part III: legalization of buyers' cartels would invite group boycott and collective hold-out

In the passages from the speech that you find below, any emphases were added by me to highlight certain keywords.

Novel types of cartels (i); automotive cartels (iii)

In one way or another, most of the cartels we deal with are still fundamentally about fixing prices. But sometimes, what we want as consumers is not so much a cheaper product as a better one. More and more, for example, we want to be sure that the products we’re buying won’t harm the environment. So a cartel that holds back improvements in the quality or the sustainability of the products we buy can be just as harmful as one that fixes prices.

This is why we took our decision in July against the five German carmakers who limited competition between them on how effectively they would clean the exhaust of their diesel cars. The cartel took place within what was otherwise perfectly legal, even beneficial, technical cooperation. The companies were developing a new cleaning technology that used an additive, which they called AdBlue, to remove harmful nitrogen oxides from car exhausts. And they needed to cooperate to tackle the practical challenges – to set up a network of AdBlue filling stations, for example, or to design a standard pump nozzle that would fit any car.

But they crossed the line into illegal collusion when they indicated to each other that they wouldn’t aim at cleaning beyond the level required by the legal standard. They knew they could remove even more pollution than the law required, by injecting more AdBlue into the exhaust. So they could have competed to attract environmentally-conscious consumers, by making even cleaner cars. But instead, they chose not to compete for the best possible cleaning performance.

A case like this can be a powerful deterrent, showing companies that they can’t escape the rules, by colluding in novel ways.

...

[...] And at a time like this, it’s more important than ever that we keep our markets working fairly and well – not least, by taking firm action to tackle cartels.

That’s why we’re investing so much at the moment, to make sure our work stays relevant. It’s why we’re developing new ways to spot cartels, and why we take an interest in new types of cartel, as well as more familiar ones.

Buyer cartels (ii)

In the last few years, for instance, we’ve dealt with several cartels that manipulated industry reference prices, rather than fixing final prices. Last year, we fined four ethylene buyers more than 260 million euros, for conspiring to reduce the reference price that was applied in long-term contracts.

Buyer cartels like this one may not raise prices for consumers. But that doesn’t make them some sort of victimless crime. They still make our economy work less efficiently. And they still have direct victims – even if it’s suppliers, not consumers, who suffer.

And some buyer cartels do have a very direct effect on individuals, as well as on competition, when companies collude to fix the wages they pay; or when they use so-called “no-poach” agreements as an indirect way to keep wages down, restricting talent from moving where it serves the economy best.

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Friday, October 22, 2021

L2 Mobile Technologies claims Qualcomm chips in Ford, Lincoln cars infringe 3G standard-essential patents originally obtained by ASUSTeK

Ford Motor Company appears to have a history of standard-essential patent (SEP) hold-out. It was unwilling to take an actual long-term license from Nokia a few years ago, so the parties entered into what was more of a standstill than license agreement. Last week I found out about an IP Bridge v. Ford infringement action in Munich. An injunction looms large, and just today Germany's chief patent judge said that a recent amendment to the patent injunction statute was merely "a clarification and consolidation of the case law". One of his side judges told another audience that any proposals to soften patent enforcement should be directed to the legislature. Therefore, Ford can expect to be enjoined in Germany unless it agrees to take a FRAND license or is cleared of infringement of any valid SEP.

Three weeks ago, L2 Mobile Technologies, a subsidiary of a Texas-based non-practicing entity named Longhorn IP, sued Ford in the District of Delaware over a handful of 3G SEPs (this post continues below the document):

21-10-01 L2 Mobile Technolo... by Florian Mueller

L2 announced the complaint on its website, on which it also recently reported a favorable validity determination on one of its Chinese patents and, about six months earlier, an infringement lawsuit against Google. Against Ford, L2 is not seeking an injunction, at least not at this stage, but treble damages. In order for such willfulness enhancement to be awarded, L2 must prove an objective and a subjective prong. The latter is about whether Ford actually had knowledge of its infringements of these patents. It appears that the underlying theory is based on Ford's decision not to take an Avanci pool license:

ATTEMPTS TO LICENSE FORD

17. L2MT is a member of the Avanci LLC patent pool. On information and belief, Avanci LLC made Ford a FRAND offer to patents that are essential to the 3G wireless communications standard. On information and belief, Ford declined to take a license to the Avanci LLC patent pool.

The Avanci pool contains the cellular SEP portfolios of dozens of companies, a number of which are way bigger than L2. If L2 prevailed on this objective-willfulness theory, all car makers with significant U.S. sales would have to be extra cautious when rejecting an Avanci licensing offer as they might be liable for treble damages when any Avanci licensors sue them in the United States.

A willful infringer and an unwilling licensee are the same type of market actor, just from different angles. In Germany, courts increasingly deem implementers unwilling licensees if they decline to take a pool license. Therefore, I wouldn't be surprised if a U.S. court considered Ford a willful infringer of any patents in the Avanci pool that the iconic car maker hasn't licensed bilaterally either.

L2's infringement allegations involve Qualcomm chips. Qualcomm is an Avanci contributor as well, but apparently does not have a license from L2. The patents-in-suit were originally obtained by ASUSTeK, a subsidiary of Taiwanese device maker ASUS, and later assigned to a non-practicing entity named Innovative Sonic (also based in Taiwan). That one brought some infringement litigation many years ago, such as against BlackBerry, and in 2018 joined Via Licensing's LTE pool. Via welcomed Innovative Sonic as an innovative leader. Somewhere along the way, Innovative Sonic assigned a bunch of former ASUSTeK SEPs to L2. Maybe Qualcomm had a cross-license in place with ASUSTeK, but Innovative Sonic and L2 obviously never needed a license or chipsets (which wouldn't be available without taking a license first) from Qualcomm.

These are the patents-in-suit:

  1. U.S. Patent No. 7,266,105 on a "method for determining triggering of a PDCP sequence number synchronization procedure" (PDCP means Packet Data Convergence Protocol)

  2. U.S. Patent No. 8,179,913 on a "method and apparatus of handling variable of RLC reset procedure during receiver-side-only re-establishment in wireless communications system" (RLC means Radio Link Control)

  3. U.S. Patent No. RE47,200 on "preventing shortened lifetimes of security keys in a wireless communications security system"

  4. U.S. Patent No. 8,054,777 on a "method and apparatus for handling control PDUs during re-establishing receiving sides in a wireless communications system" (PDU means Protocol Data Unit)

  5. U.S. Patent No. 8,064,460 on a "method and apparatus of delivering protocol data units for a user equipment in a wireless communications system"

The complaint correctly describes these patents as 3G-related. However, its third paragraph confuses 2G (GSM) and 3G--an unusual (but merely clerical) error in a wireless SEP complaint:

"The wireless communications devices in Ford's connected vehicles comply with the GSM wireless communications standard. This standard is also referred to as the '3G' wireless communications standard."

The costs of patent infringement litigation in the U.S. add up, and in the German IP Bridge case, Ford faces the threat of an injunction. It could take an Avanci pool license, but so far appears to have been opposed. It can also enter into bilateral license agreements.

Avanci itself doesn't hold patents and can't assert them, nor does it have the power to direct its licensors to enforce. Patent pools always have an obligation to inform their contributors (licensors) of any license agreements they conclude, and normally also keep them updated as to ongoing negotiations. For example, if Ford had been close to signing a deal with Avanci, L2 and IP Bridge would presumably have known and might then have waited instead of suing. But ultimately those companies are in the licensing business, and they can't let all car makers get away with unlicensed use forever. By suing Ford, they send out a clear message to others.

No coordination is needed for an independent patent holder to decide to sue the same entity after someone else decided to do so. Those companies do not mean to drive Ford out of business; they merely want to get paid. The more patent cases a given company has to defend against, the greater the incentive to settle at least some of them. A company like Apple or Samsung has to deal with numerous NPE cases in parallel, so one more wouldn't make a difference--but Ford is much smaller, and has much less expertise in the field of cellular SEP litigation. To me it just seems a logical choice that companies holding patents in the same field (regardless of whether they're even contributors to the same pool) would be more inclined to sue someone who is already embattled than pick another target.

For that reason alone, I would not attribute to malice (such as conspiracy) what can be adequately explained with natural litigation choices--and which Ford may have had coming because it apparently passed on licensing options of any kind, be it the Avanci pool or bilateral licenses such as with Nokia. Also, Qualcomm is a far bigger contributor to the Avanci pool than L2 (in fact, Qualcomm's portfolio dwarfs L2's), so the mere fact that L2's case against Ford accuses Qualcomm chips of infringement makes it impossible to imagine that Avanci would have orchestrated anything here.

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Germany's chief patent judge: amended injunction statute is merely a 'clarification and consolidation of the case law'

This is a quick but important follow up to my two previous posts on the CIPLITEC conference on Germany's recently-enacted patent "reform" bill:

The final part of the conference provided definitive clarity. First, Presiding Judge Dr. Matthias Zigann of the 7th Civil Chamber of the Munich I Regional Court said that it's his task to apply the law as it is, and it's clear that this year's amendment to the German Patent Act is designed to ensure continuity. In other words (my words), there's nothing disruptive or revolutionary there.

During his closing remark, Munich-based law professor Ansgar Ohly shared the latest information he had just received from a co-worker. At a Shanghai conference, Presiding Judge Klaus Bacher of the 10th Civil Senate of the Federal Court of Justice--the highest-ranking German patent judge--reported said that the 2021 patent bill is merely "a clarification and consolidation of the case law" (i.e., Heat Exchanger).

Let that sink in. It's game over for all those who thought infringers could avoid patent injunctions in Germany. There's not going to be any change on the bottom line. What the judiciary is concerned about is the potential for delay of some proceedings, and I'm not even worried about that: the courts will figure out shortcuts.

Germany's chief patent judge has spoken, as have several other important judges these days (Judge Fabian Hoffmann of the 10th Civil Senate of the Federal Court of Justice, Presiding Judge Andreas Voss ("Voß" in German) of the 6th Civil Senate of the Karlsruhe Higher Regional Court, and Presiding Judge Dr. Matthias Zigann of the 7th Civil Chamber of the Munich I Regional Court and soon--most likely--of the 6th Civil Senate of the Munich Higher Regional Court).

This is a hard reality check for the patent "reform" movement. On June 11, lobby group ip2innovate celebrated the German Federal Parliament's adoption of the "reform" bill with a press release that was as triumphant as it was detached from reality (or maybe we should just call it "spin"). Nvidia's Ludwig von Reiche said that "German patent law has finally arrived in the 21st century" and that "a change in the law is now being implemented that for the first time takes into account the complexity of modern products in the digital age." I'm not at all blaming Mr. von Reiche for trying to give the new statute a certain interpretation. But his interpretation doesn't matter. Nor does mine. What matters is what the judges say. And that just happens to be consistent with what I've been saying for a long time.

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STUNNING: High-ranking German judge publicly states that patent law may do more harm than good, but critics would have to lobby for fundamental reform

Yesterday I reported on the first panel of the CIPLITEC online conference on German patent reform, where it became very clear once again that injunctions will remain the customary patent remedy as I had been predicting all along. The conference is continuing today, and what just happened this morning was nothing short of astounding.

In a virtual panel discussion, Judge Fabian Hoffmann of the patent-specialized 10th Civil Senate of the Bundesgerichtshof (Federal Court of Justice) replied to certain infringer-friendly positions taken by others on the question of how punitive the compensation owed by an infringer to a patentee should be in cases in which an injunction is denied or, far more likely, tailored by means of a use-up or workaround period. Here are the most amazing parts of what he said:

  • Judge Hoffmann acknowledged that "patent law may indeed do more harm than good."

  • He said he could see why some would like to see "more competition."

  • He even went as far as to say thathe was "politically with [those who voice such demands]."

  • Having said that, he explained--and I concur with him--that this year's German patent reform bill is not designed to bring about fundamental change.

  • Judge Hoffmann not only followed but even contributed to the legislative process, such as by participating in a parliamentary hearing (my report on that one did not mention him as I focused on other aspects than the ones he addressed). He recalled today that on the one hand there are academics and lawyers who claim that most companies would rather see a "more balanced" and "more moderate" patent enforcement regime, but at the said hearing--which I had accurately described as a total victory for reform opponents due to a miserable failure by pro.reform forces--there was a widespread consensus in favor of strong patent enforcement.

  • The result is that the legislative intent is clear: there was no political will to depart from German patent enforcement tradition. And that's the law that he as a judge has to apply faithfully (I'm paraphrasing him here, but not straying far from what he actually conveyed).

  • I've previously criticized the absolutely pathetic lobbying and campaigning effort on the part of pro-reform forces like German automotive industry association VDA, the misguided ip2innovate lobbying group, and Apple. It was a mix of amateurs, (in a very few cases) saboteurs, and people who meant well but could not get their companies or their (idiotic) industry associations to make the right decisions. They also had a budget that was not even 5% of what would have been needed to bring about serious change. You won't be surprised that Judge Hoffmann obviously wouldn't make statements like that. But what he said nevertheless validates my scathing remarks on that pro-reform lobbying effort. Judge Hoffmann told the audience that if they wanted to fundamentally rethink patent law, which may indeed be warranted even in his opinion, they need "a second reform" and will have to do what it takes to get a different outcome.

This is a lot of food for thought for some people, and I'd like to leave it at that for the time being. I'm going to continue to make the very same distinction as Judge Hoffmann made today: there's the question of what innovation policy is desirable, and there's the question of what the law--in its current form--says. There's the world in which some would like to live, and the world in which we actually live. The German patent enforcement system is going to be the same except that time and money will be wasted on proportionality arguments (mostly by defendants). There's room for lots of academic discussion, and parts of the CIPLITEC conference--with the greatest respect--were more about the trees than the forest. But patentees will still get the same leverage from bringing infringement cases in Germany as before. In fact, compared to where statutory and case law stood when the reform process began, patentees even have a lot more leverage now.

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Thursday, October 21, 2021

Patent injunctions remain the norm in Germany, judges from Federal Court of Justice and Karlsruhe Higher Regional Court clarify

Today and tomorrow, the Munich-based Center for Intellectual Property Law, Information and Technology (CIPLITEC) is holding an online conference on the impact of this year's German patent "reform" bill.

The short version is that what's been said so far is pretty consistent with the rather skeptical views I have expressed on the botched injunction statute. I'll keep it very brief because the rest is just detail:

  • Professor Axel Metzger from Berlin's Humboldt University diplomatically voiced criticism of the status quo and especially the practical reality of "forum selling." Without a doubt, German courts are so popular with plaintiffs because they give patentees great leverage. Just this week I showed that Germany is the center of gravity of what is presently the biggest 5G patent dispute: Nokia v. OPPO (and vice versa, as OPPO is countersuing--mostly in Germany as well, plus in China, as I reported earlier today).

    However, his opinion on how to strike the right balance in patent enforcement Professor Metzger did not prevent him from a brutally realistic portrayal of the post-reform situation:

    • "no paradigm shift"

    • "injunction remains the norm"

    • "no constraint on effective enforcement: while lawyers will plead [on proportionality] and costs will increase, courts will develop boilerplate (copy-and-paste) passages"

  • Judge Andreas Voss ("Voß" in German), the Presiding Judge of the Patent (and Antitrust) Senate of the Karlsruhe Higher Regional Court (which hears all patent infringement appeals from Mannheim), gave a presentation that I already interpreted as dashing hopes for major change. Shortly thereafter, University of Luxembourg law professor Martin Stierle asked him the key question of whether he believed that much was going to change. For example, to him the most logical interpretation of the term "under the special circumstances of a singular case" is that an injunction can be denied only under the most egregious of circumstances (which has been my perspective all along). Judge Voss really does not expect a departure from Germany's near-automatic injunction regime. He is, however, concerned that defendants may seek to delay the resolution of infringement cases by attempting to "force" courts to take proportionality-related evidence.

    Just like I said on other occasions, Judge Voss noted that the statutory language does not suggest a wholesale denial of injunctions but normally the discussion is going to center on use-up/workaround periods. Judge Voss rightly noted that even though the statute says the claim for injunctive relief is "excluded," the very next word ("soweit") means "to the extent that...".

  • Judge Fabian Hoffmann is widely regarded as the relatively defendant-friendliest judge of the patent-specialized 10th Civil Senate of the Federal Court of Justice (where the patent litigation buck effectively stops in Germany). But even Judge Hoffmann had no good news for the injunction reform movement. First he explained that the hurdle for third-party interests to counsel against the grant of an injunction is not going to be lower than the one that is applicable to a petition for a compulsory license. Judge Hoffmann argues that a compulsory license results in legal use of a patent, but if someone has been convicted of infringement and seeks to be permitted to continue an illegal use, there is no reason why the standard should be easier to meet.

    Then he pointed out that this year's amendment to the German Patent Act was explicitly meant to just codify the case law, and if the legislature says that it wants to preserve the status quo, no one should expect the courts to decide to any different effect. He went on to say that the law would have had to be phrased differently, and certainly wouldn't have been enacted during the last legislative term--if lawmakers had wanted to establish an eBay v. MercExchange type of injunction standard in Germany. That is 100% spot-on whether one likes to hear that simple truth or not. I absolutely concur with Judge Hoffmann that those who wanted to move the patent injunction needle would have had to convince the legislature of the need for a paradigm shift. They failed to do so; they didn't even seriously try. They thought a narrow, limited exception was going to be sufficient. What they got is only a perpetuation of the status quo ante, enshrining the Wärmetauscher (Heat Exchanger) case law by the Federal Court of Justice. Now they'll have to live with the result, which is going to be, plain and simple, more of the same. Plus ça change...

Those judges only spoke for themselves, not for their courts. But what they said spoke for itself.

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Nokia's patent assertions against OPPO in India, Russia, and Indonesia -- and OPPO countersuing in China (in addition to Germany)

5G standard-essential patent (SEP) litigation has already arrived in emerging markets, on top of the traditional venues for wireless SEP disputes. In fact, Nokia and OPPO are now embroiled in 5G patent litigation in three of the four BRIC countries (all but Brazil, and who knows when that might happen as well).

I've discovered four OPPO v. Nokia counteractions in three German courts, and I've now learned from a major Chinese website that OPPO is also countersuing Nokia in China. That article notes that Nokia generates about 8% of its worldwide revenues in China, and attributes the outbreak of litigation to a disagreement on reasonable royalties, especially since OPPO executives have publicly stated their willingness to take license on FRAND terms. It also points out that most of the companies targeted by Nokia with patent assertions don't countersue, but OPPO does have a very significant 5G patent portfolio of its own.

As a follow-up to my list of Western European Nokia v. OPPO cases, here are the lawsuits in India, Russia, and Indonesia that I've been able to find out about:

  • India: Delhi High Court

    • Case no. CS(Comm) 3042021 oover Indian non-SEPs no. 264783 (method for controlling the graphical display of a portable electronic device), 266531 (reduce interference in a terminal device based on information type), and 259932 (arranging handover; same patent family as EP1702486, which Nokia is asserting in Paris)

    • Case no. CS(Comm) 3032021 over Indian SEPs no. 286352 (system and method for providing AMR-WB DTX synchronization), 269929 (method providing multiplexing for data non-associated control channel), and 300066 (additional modulation information signaling for high speed downlink packet access; same patent family as EP2087626, which Nokia is asserting in Mannheim)

  • Indonesia: Commercial Court of Central Jakarta (Pengadilan Negeri Jakarta Pusat)

    • Case nos. 40/Pdt.Sus-HKI/2021/PN.Niaga.Jkt.Pst. and 41/Pdt.Sus-HKI/2021/PN.Niaga.Jkt.Pst over Indonesian Patent No. 000031184 (same patent family as EP2087626, which Nokia is asserting in Mannheim, and Indian Patent No. 300066, which Nokia is asserting in Delhi)

    • Case nos. 46/Pdt.Sus-HKI/2021/PN.Niaga.Jkt.Pst. and 47/Pdt.Sus-HKI/2021/PN.Niaga.Jkt.Pst. over Indonesian Patent No. 000030632 (livik.net media report; apparently from the same patent family as EP3396868, which Nokia is asserting in Munich)

  • Russia: Moscow City Court (Московский городской суд)

    • Case nos. А40-139518/2021 and А40-139528/2021 targeting different defendants (with OPPO and Realme having intervened) over a pair of Russian patents: RU2377742 (arranging handover, from the same patent family as the aforementioned EP'486) and RU2582854 (method and device for providing quick access to device functions; it appears that the European equivalent has not been granted by the EPO so far)

Nokia v. OPPO is already a huge dispute. By comparison, Nokia v. Daimler was just a warm-up exercise. But more escalation unfortunately appears likely and may already have occurred. Nokia's enforcement campaigns against HTC (until 2014) and Apple (until 2017) were even bigger by the time those settlements fell into place--and I don't even want to speculate on what might happen should Apple engage in hold-out against Ericsson...

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Tuesday, October 19, 2021

Nokia tries to drown OPPO in patent infringement lawsuits, makes Germany (15 patents-in-suit and anti-antisuit injunction) center of gravity of multijurisdictional enforcement campaign

Nokia v. OPPO is presently the most massive 5G-centric patent dispute out there. In July, Nokia sued the Chinese smartphone maker--one of the largest in the world--in a multiplicity of European and Asian jurisdictions, and has made additional filings since. OPPO, which holds many 5G patents itself, has started to bring counteractions against Nokia, four of which I have found out about in Germany. The stakes are even higher in Ericsson v. Apple, but those two parties still have a license agreement in place (while the one between Nokia and OPPO expired at the end of June), which is why there aren't any Ericsson v. Apple infringement cases yet.

There is consensus in the wireless industry that Apple underpays. In a UK litigation it turned out that Apple's cumulative patent royalty costs are--and this is just an order of magnitude--at a level of about 1% of its sales. If major standard-essential patent (SEP) holders like Nokia and Ericsson can't seize the 5G opportunity to get Apple to pay a lot more this time around, it won't ever happen--or at least not for approximately another decade.

Compared to major smartphone patent disputes, Nokia v. Daimler (10 patents-in-suit) was just a B movie, though it had an effect of transcendental importance as it proved that the automotive industry can and will take car-level patent licenses in the end. OPPO is no Daimler, though. First, while car makers generally exhibit behavior that exposes them to ever more credible accusations of being unwilling licensees, OPPO does not have any history of infringement: it merely appears to disagree with some patent holders on royalty rates, but there are no signs of hold-out. Second, OPPO alone is a more sophisticated and effective litigant than the totality of Daimler and its tier 1 (i.e., direct) suppliers.

For both Nokia and OPPO, their dispute is about much more than the substantial volume the deal will ultimately represent. Nokia is known to have major renewals coming up with Samsung (where only some sideshows have been resolved) and, especially, Apple. It would benefit from a quick settlement with OPPO--on Nokia's preferred terms--with a view to those other negotiations and potential litigations. OPPO, however, will face royalty demands all the time, from a diversity of patent holders large and small, given its market position. There is no question that both Nokia and OPPO would benefit from a quick settlement, but they wouldn't be fighting each other in courts around the globe if they had already identified a royalty rate that works for either party's purposes.

In late July I found out about the first three Nokia v. OPPO trial dates (all of them in Mannheim and over a total of four patents-in-suit). I'm now in a position to provide further information on the dispute, though I fear that this is already outdated--in the sense of "non-exhaustive"--at the time of publication as Nokia may have made additional filings that haven't become discoverable.

In some cases, Nokia accuses OPPO and OnePlus devices of infringement at the same time, but there are also patents that Nokia asserts against the two affiliate entities in different venues. Presumably, OnePlus devices have higher margins on average than OPPO devices, so Nokia expects to get leverage even from an enforcement against just one of the two product brands (if the courts reach divergent conclusions or if one ruling comes down far ahead of the other). In terms of venue choices, Nokia doesn't have faith in Dusseldorf anymore with respect to SEP cases, though this may change as the Dusseldorf judges are apparently trying to make their forum more attractive for SEP litigation.

  • Anti-antisuit injunction (Germany)

    In case no. 21 O 8690/21, the Munich I Regional Court's 21st Civil Chamber (Presiding Judge Tobias Pichlmaier) granted Nokia an anti-antisuit injunction ("A2SI")--along with the usual A4SI--against OPPO. The Munich court (and more recently even the Dusseldorf court) grants A2SIs/A4SIs to prevent any interference with German patent infringement actions in the form of antisuit injunctions issued by foreign courts, and the factors that go into the analysis include a defendant's conduct in other disputes. OPPO once sought a global royalty determination by a Chinese court in its (meanwhile settled) dispute with Sharp. The Munich anti-antisuit injunction also shields Nokia's actions in other German venues (Mannheim, Dusseldorf).

  • Mannheim enforcement actions

    Mannheim SEP cases:

    • against OPPO and its affiliate OnePlus, a pair of cellular standard-essential patents from the same family: EP2981103 (which won Nokia an injunction against Daimler) and EP3220562 on an "allocation of preamble sequences"

    • against OPPO and OnePlus, EP2145404 on a "method and apparatus for providing control channels for broadcast and paging services" (last year Nokia felt forced to stipulate to a stay of a case against Daimler over this patent, but fared better in the parallel nullity proceeding than the Mannheim court had expected)

    • EP3557917 on a "method and apparatus for providing efficient discontinuous communication", targeting OnePlus devices here while OPPO devices are being accused in a Munich action

    • against OPPO and OnePlus, EP2087626 on "additional modulation information signaling for high speed downlink packet access" (Nokia originally asserted this patent against Daimler in Dusseldorf, but withdrew it on the eve of the trial--as the Dusseldorf court had made a preliminary reference to the ECJ, which potentially would have resulted in further stays--and refiled in Munich, where the case never went to trial due to the settlement)

    Mannheim non-SEP cases:

    • EP1700183 on a "method for secure operation of a computing device", targeting OPPO devices here while OnePlus devices are being accused in a Dusseldorf action

    • EP1741183 on a "front-end topology for multiband multimode communication engines", targeting OnePlus devices here while OPPO devices are being accused in a Dusseldorf action

    • against OPPO and OnePlus, EP1704731 on a "method and apparatus for indicating service set identifiers to probe for" (a WiFi patent)

  • Munich enforcement actions

    Munich SEP cases:

    • against OPPO and OnePlus, EP2070217 on an "apparatus, method and computer program product providing multiplexing for data-non-associated control channel" (not previously seen in litigation, hearing scheduled for June 23, 2022)

    • against OPPO and OnePlus, EP2080193 on "pitch lag estimation" (not previously seen in litigation)

    • EP3557917 on a "method and apparatus for providing efficient discontinuous communication", targeting OPPO devices here while OnePlus devices are being accused in a Mannheim action listed further above

    • against OPPO and OnePlus, EP3396868 on a "method and apparatus for conveying antenna configuration information" (not previously seen in litigation)

    • against OPPO and OnePlus, EP1671505 on a "redundancy strategy selection scheme" (the Munich court previously showed a strong inclination to consider this patent standard-essential and pushed back the trial date in order to await developments in a parallel nullity proceeding, where Nokia fared better than one might have expected; meanwhile Nokia and Daimler settled)

    Munich non-SEP case:

    • EP1728352 on "secure data transfer", targeting OnePlus devices here while OPPO devices are being accused in a Dusseldorf action

  • Dusseldorf enforcement actions

    No Dusseldorf SEP cases discovered so far

    Dusseldorf non-SEP cases:

    • against OPPO and OnePlus, EP2728964 on a "distributed multiradio controller"

    • against OPPO and OnePlus, EP3716560 on "processing transmission signals in radio transmitter"

    • EP1700183 on a "method for secure operation of a computing device", targeting OnePlus devices here while OPPO devices are being accused in a Mannheim action listed further above

    • EP1741183 on a "front-end topology for multiband multimode communication engines", targeting OPPO devices here while OnePlus devices are being accused in a Mannheim action listed further above

    • EP1728352 on "secure data transfer", targeting OPPO devices here while OnePlus devices are being accused in a Munich action listed further above

  • High Court of Justice in England (EWHC)

    London SEP cases:

    • EP2087626 on "additional modulation information signaling for high speed downlink packet access" (also being asserted in Mannheim, listed further above)

    • a pair of cellular standard-essential patents from the same family: EP2981103 (which won Nokia an injunction against Daimler) and EP3220562 on an "allocation of preamble sequences" (also being asserted in Mannheim, see further above)

    London non-SEP case:

    • EP3716560 on "processing transmission signals in radio transmitter" (also being asserted in Dusseldorf)

  • Tribunal judiciaire de Paris

    • EP1702486 on "arranging handover"

    • EP1704731 on a "method and apparatus for indicating service set identifiers to probe for" (a WiFi patent that is also being asserted in Mannheim)

  • Juzgado de lo Mercantil nº 5, Barcelona

    • EP1574024 on "an apparatus and a method for providing information to a user" (not previously seen in litigation)

    • EP2615570 on "a method for secure operation of a computing device" (from the same patent family as EP1700183, a non-SEP that is being asserted in Mannheim)

These are just four Western European jurisdictions, and cases are pending elsewhere, but I have yet to obtain more information.

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Sunday, October 17, 2021

First four OPPO v. Nokia countersuits over 5G patents have been docketed in Mannheim, Munich, and Hamburg

About a month ago, Gizmochina reported on OPPO having filed countersuits over 5G patents against Nokia in China and an unspecified number of European jurisdictions. This is what I expected to happen, especially after I became aware of the litigation prowess the Chinese smartphone maker demonstrated in its recently-settled dispute with Sharp. OPPO is to be reckoned with, and as OPPOsed to letting others push it around, it fights back. I don't know whether OPPO brought any patent infringement counteractions against Sharp, but I have been able to find out about a couple of Dutch declaratory judgment proceedings, such as one targeting Sharp's EP'181.

Now, against Nokia, OPPO is also claiming that its own 5G patents are infringed. While I haven't yet been able to find out enough about the cases in China and other European jurisdictions that I could meaningfully write about them, OPPO's first four offensive cases in Germany have been docketed--by three different courts:

  • Mannheim Regional Court:

    • Case no. 2 O 112/21 (Presiding Judge Dr. Holger Kircher) over EP3624524 on "wireless communication methods, network device, and terminal device"

    • Case no. 7 O 125/21 (Presiding Judge Dr. Peter Tochtermann) over EP3547772 on "data transmission method and apparatus"

  • Munich I Regional Court:

    • Case no. 7 O 11301/231 (Presiding Judge Dr. Matthias Zigann) over EP3563600 on "separate configuration of numerology-associated resources"

  • Hamburg Regional Court:

    • Case no. 315 O 217/21 over EP3557938 on a "method and device for random access"

Three aspects of these first four discoverable OPPO v. Nokia cases stand out, the first two of which relate to venue selection:

  1. Wireless patent cases are very rarely filed in Hamburg. That's why this blog has so far not reported on a single Hamburg patent case other than mentioning an Avago (Broadcom) case against BMW two years ago. In that case, the law firm of Bardehle Pagenberg was on the defending side. Bardehle is one of two law firms representing OPPO against Nokia in Germany. The other is Hogan Lovells.

    For lack of local case law, the Hamburg Regional Court is a dark horse with respect to standard-essential patent (SEP) enforcement--and a case like this is an opportunity for that court to make a decision that might get a lot of attention and attract more filings of that kind.

  2. Both Hogan Lovells and Bardehle have offices in Dusseldorf, and Nokia brought some of its own cases against OPPO in that city. In Mannheim (the center of gravity of that dispute) and Munich, suits are flying bidirectionally. In Dusseldorf, OPPO doesn't appear to have responded to Nokia's cases yet (maybe because it's a much slower court than Munich and Mannheim), and instead elected to go north and open another battle front in Hamburg.

  3. The patent numbers immediately struck me as high: OPPO's patents-in-suit are very young. The window for filing an opposition with the European Patent Office is still wide open.

    This has an interesting procedural effect: even if Nokia makes its opposition filings pretty soon (which I guess it will), the EPO is not going to start the opposition proceedings until the opposition period has expired. That's because it would be inefficient for the EPO to commence the process while there is a possibility of further filings being made with respect to the same patent. As a result, OPPO's infringement cases are almost certainly going to be adjudicated before the EPO's opposition division renders any preliminary validity assessments.

    By the way, the six-month target (merely wishful thinking by lawmakers, not a hard and fast rule) under this year's German patent reform for the Federal Patent Court to hand down a preliminary opinion wouldn't apply anyway (too early for that)--and due to a gaffe by the lawmakers and governmental officials involved with the drafting of that reform bill, patents young enough to be opposed before the EPO wouldn't have been affected anyway. It's a blunder--it's what happens when those make patent law don't really understand how things work in practice. The ministry officials told stakeholders they hoped the incoming government (most likely a new government coalition in light of the outcome of recent elections and early-stage negotiations between the parties) would take an initiative to amend the law during this new legislative term. But that's another story, as these cases were filed too early to be affected by the reform even if Nokia had been able to challenge those patents in the Federal Patent Court.

Nokia tends to double down once someone countersues. Escalation is presumably inevitable in this dispute. There is a lot at stake given the huge unit volume that OPPO and its affiliates (Realme, OnePlus etc.) represent, and at a point at which Nokia has some major renewals coming up (Samsung--with whom they appear to have resolved only peripheral licensing questions, but haven't tackled the real issue (5G) yet--as well as Apple). At the same time, OPPO can't afford to appear to be a soft target: otherwise it will face a neverending barrage of patent assertions by patent holders of all sizes, not just the Nokias of the world but also numerous non-practicing entities.

From a cross-licensing point of view, Nokia's advantage is minimal expose. Nokia's own unit volumes are low because there's a huge number of handsets sold in the world per each base station, and Nokia is only in the latter business now. Today's Nokia phones are made by a third party named HMD, which has a trademark license but is otherwise independent from Nokia. OPPO can therefore sue only over Nokia's base stations.

An escalating multi-jurisdictional SEP dispute between one of Europe's two most important wireless companies on the one hand and a high-volume rising-star Chinese electronics company on the other, while the other European wireless giant--Ericsson--is apparently meeting resistance by Apple to a royalty demand that is tiny compared to Apple's sales and margins, is definitely not the context in which the European Union would be prepared to reduce SEP holders' leverage by weakening enforcement. Europe's automotive industry and other net licensees won't get their way. At the end of the day, policy makers can see clearly that the automotive industry is in a position to resolve its SEP licensing woes at a manageable cost, but car makers largely even refuse to take Avanci's $15/unit pool license. Whether the European economy as a whole is a net licensor or net licensee of SEPs doesn't matter: the thing is that European net licensors very much need to generate revenues from licensing, while for car makers it's just a minor cost of doing business, no matter how much they may be crying--and whatever European car makers end up paying will also have to be coughed up by their competitors on the world stage. Therefore, industrial policy considerations are going to dissuade the European Commission from tampering with SEP enforcement at this juncture.

I'll keep researching and monitoring the Nokia-OPPO dispute, and hope to be able to provide more litigation data in the not too distant future.

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Thursday, October 14, 2021

OPPO outperformed Daimler and its numerous suppliers in litigation with Sharp, will likely give Nokia a run for the money now

Like my previous two posts (also published today) on IP Bridge v. Ford and Thales v. Avanci & Nokia, this one stems from my research into high-profile Munich patent cases.

Six days ago, Sharp announced a global cross-license agreement with Chinese smartphone maker OPPO. In connection with the Chinese part of the dispute, the Supreme People's Court of the People's Republic of China had made an interesting jurisdictional decision. Sharp was suing OPPO over alleged infringements in Germany, and it appears that OPPO defended impressively well.

The Munich I Regional Court has confirmed to me that Sharp's complaint over EP2854324 on a "communication system and mobile station apparatus (case no. 21 O 3514/20) was dismissed: the patent was not found to be infringed by OPPO.

OPPO defeated two other Sharp complaints by prevailing on its own nullity actions in the Federal Patent Court of Germany:

  • EP2312896 on a "base station device, mobile station device and corresponding communication methods using carrier aggregation" was invalidated further to a nullity hearing on June 24, 2021 (decision (PDF, in German)). Sharp was asserting that patent in Munich (case no. 21 O 2917/20).

  • Sharp's Mannheim case no. 2 O 34/20 suffered the same fate: EP2154093 (same title as the aforementioned EP'896) died in the Federal Patent Court (decision (PDF, in German)) on July 8, 2021.

The remaining two Sharp v. OPPO cases had not been decided at the time of the settlement, but it appears that OPPO was in pretty good shape based on its invalidity arguments. This applies to EP2129181 , which Sharp was asserting in Mannheim case no. 2 O 52/20, and--which is absolutely remarkable, EP2667676 on a "base station device, mobile station device, and uplink synchronization requesting method." EP'676 won Sharp an injunction against Daimler last year, which triggered a settlement. OPPO, however, came up with new prior art, and it looks like Sharp preferred to settle with OPPO rather than take any risks with respect to that patent in Munich case no. 7 O 2919/20.

OPPO is going into its next--and much larger--dispute as an undefeated defendant.

Just like Sharp, Nokia sued Daimler before it brought patent infringement complaints against OPPO. Given OPPO's patent litigation track record, it's probably not going to be an easy win. It also appears that Nokia sued OPPO very shortly after the expiration of a previous license agreement, which is different from Daimler, whose behavior over the years was characteristic of an unwilling licensee, and ultimately inconsistent. There's no reason to assume OPPO would underperform Daimler this time. It's probably going to challenge Nokia's patents-in-suit with greater sophistication than Daimler; it won't be easily portrayed as an unwilling licensee; and unlike Daimler it holds many wireless patents and is already known to be countersuing. This is going to get interesting, admittedly more interesting than I thought when it started back in July. Bring the popcorn!

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French industrial conglomerate Thales suing Avanci and Nokia in Munich over alleged antitrust violations by refusing to grant component-level patent licenses

Just like my previous post (on a newly-discovered IP Bridge v. Ford Motor Company case pending in Munich), this post relates to automotive standard-essential patent (SEP) licensing issues.

The Nokia v. Daimler dispute lasted almost two years, and only toward the very end did French industrial giant Thales intervene. Thales makes network access devices (NADs), which other companies then incorporate into their telematics control units (TCUs). Thales is a tier 2 supplier by automotive supply-chain terminology, and its customers are tier 1 (i.e., direct) suppliers.

A couple of weeks ago, OffshoreAlert listed a U.S. discovery request that Thales made from InterDigital in order to use the information so obtained in an antitrust litigation in Munich against the Avanci patent pool and Nokia. InterDigital is an Avanci licensor (as are Nokia and roughly three dozen other companies).

I've looked at the German complaint and expect it to go nowhere. I won't elaborate on any details today, but I did want to publish a couple of documents and share a few high-level observations. First, the memorandum of law in support of the U.S. discovery request (this post continues below the document):

21-09-30 Memorandum of Law ... by Florian Mueller

A copy of the Munich antitrust complaint was attached to the U.S. discovery request (this post continues below the document):

21-07-01 Thales v. Nokia &a... by Florian Mueller

Thales filed that lawsuit with the Munich I Regional Court's 37th Civil Chamber, which hears antitrust cases. However, the case has since been reassigned to the same court's 21st Civil Chamber (Presiding Judge: Tobias Pichlmaier), which specializes in patents. The court's patent judges are already intimately familiar with automotive supply-chain licensing by virtue of having heard and decided a number of other automotive cases, including but not limited to Nokia v. Daimler. Not only would it have been grossly inefficient to have a different division of the court familiarize itself with the issues but there would also have been a clear and present danger of inconsistent decisions between the court's different divisions. Also, one of the members of the 21st Civil Chamber--Judge Dr. Anne-Kristin Fricke--is a former antitrust judge.

Thales is not seeking a license but asks for a finding that it is entitled to antitrust damages, the exact amount of which would be quantified at a later stage. Given that Thales is not praying for injunctive relief, the case is a lot less urgent than virtually all patent infringement cases filed with the same court.

Finally, here's the English translation of the complaint that Thales provided to the U.S. court:

21-07-01 (en Translation) T... by Florian Mueller

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Japanese patent licensing firm IP Bridge is suing Ford Motor Company in Munich over former Panasonic SEP

On the first of the month, L2 Mobile Technologies LLC, an entity affiliated with non-practicing entity Longhorn IP (named after the official state large mammal of its home state of Texas), sued Ford Motor Company over patent infringement in the District of Delaware (Courtlistener docket overview).

Ford is not the most willing licensee among car makers. With Nokia, it once entered into a short-term license agreement that was more of a standstill agreement, and provided material to Daimler for use in its (meanwhile settled) dispute with the Finnish wireless company. Ford may prefer to lock horns with Longhorn over signing up for a license quickly, but whether that is an economically wise decision is in the eye of the beholder.

I've now been able to find out, thankfully, from the press office of the Munich I Regional Court that there is at least one standard-essential patent (SEP) action pending against Ford in Germany (and I guess it's not even the only one). In case no. 7 O 9572/21, a patent licensing firm that belongs to the Japanese government, IP Bridge, a hearing has been scheduled for late February. The patent-in-suit (EP2294737 on "control channel signalling for triggering the independent transmission of a channel quality indicator") was originally obtained by Japanese electronics maker Panasonic, which declared it essential to 4G/LTE. The same patent has previously been asserted against Taiwanese smartphone maker HTC and possibly other defendants.

Both Longhorn IP and IP Bridge are contributors to the Avanci SEP pool. Ford could kill not only two but literally dozens of birds with one stone by taking an Avanci license. This, however, does not conversely mean that Avanci itself, which doesn't hold patents and thus lacks standing to assert them, is responsible for these infringement cases in any way. IP Bridge, which is also suing Daimler, and Longhorn are licensing firms who have to deliver. They have to make deals that generate licensing income: whether they acquire patents and need to recuperate that investment and/or have a royalty-sharing agreement with those who assigned those patents to them, it's their job to sign deals and if that's not possible without going to court, they have to sue. There is no plausible theory under which Avanci would control them; much to the contrary, Avanci can only do business on terms that licensors and licensees deem acceptable. Ford seems to be extremely difficult to please, though.

Car makers can't just infringe the Avanci licensors' patents forever. If they don't take a pool license, they need bilateral licenses. If they're unwilling to do either type of license deal, it's only a matter of time until SEP holders sue them--and Ford now has to ask itself how it wants to try to persuade the courts in various jurisdictions, particularly Germany and the UK, of its willingness to take SEP licenses on FRAND terms...

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