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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