Thursday, February 24, 2022

Munich trial canceled as Apple settles with Japan's national patent licensing firm IP Bridge; ITC assigned Apple's case against Ericsson to ALJ Bhattacharyya

This morning's patent licensing and litigation news comes from the world's #1 patent enforcement hotspot, the Landgericht München I (Munich I Regional Court):

The Munich trial in IP Bridge v. Apple that was scheduled to take place today and tomorrow before the Seventh Civil Chamber (Presiding Judge: Dr. Matthias Zigann) has been vacated as per a joint stipulation by the parties.

The only plausible explanation is that Apple and IP Bridge have settled. Otherwise plaintiffs want to get their day in court.

Previously, Daimler (which was also going to be among the defendants in this week's megatrial) also settled--by means of taking an Avanci pool license (which became known in December).

The two remaining defendants are now Ford (see my report on case no. 7 O 9572/21) and Chinese smartphone maker OPPO (case no. 7 O 8133/21). The patent-in-suit is EP2294737 on "control channel signalling for triggering the independent transmission of a channel quality indicator"). EP'737 was originally obtained by Japanese electronics maker Panasonic, which declared it essential to 4G/LTE and later assigned it to Japan's national patent licensing firm IP Bridge. IP Bridge was set up by Japan to help the country's innovators monetize their intellectual property more effectively, comparable to entities like France Brevets or Korea's ETRI. In order for IP Bridge to have standing, companies like (in this case) Panasonic must assign patents to the non-practicing entity, which can then go out and sue implementers and infringers.

The trial is taking place in a courtroom below Munich's Stadelheim prison. That spacious room is mostly used for criminal trials, but since the outbreak of the pandemic the Munich court has sometimes held patent trials there.

Enforcement in Germany--above all, in Munich and Mannheim--gives patent holders decisive leverage. Just yesterday I reported on the unavailability of most Nokia-branded smartphones (which are made by trademark licensee HMD Global) as a result of the ongoing enforcement of a Mannheim injunction by Fortress-funded VoiceAge EVS. Apple settled with VoiceAge EVS and other Fortress-financed entities last year--and with its past experience, particularly Judge Dr. Zigann's 2018 Qualcomm v. Apple injunction relating to some older iPhone models, Apple apparently didn't want to take its chances.

One of the world's largest cellular SEP holders, Ericsson, is also suing Apple in Germany (as well as the U.S. and a few other jurisdictions, with preliminary injunction requests pending in Brazil and the Netherlands, including a recently discovered case against a Brazilian Apple distributor).

In the U.S., the closest jurisdiction to Germany in terms of leverage from injunctive relief is the United States International Trade Commission ("USITC" or just "ITC"). The ITC's Chief Administrative Law Judge assigned Ericsson's SEP case to ALJ Shaw, and the first of Ericsson's two non-SEP cases to ALJ McNamara. The second Ericsson non-SEP case (third Ericsson case in total) was assigned to ALJ Elliot. An investigation of Apple's countersuit was instituted last week as well, but only today have I been able to access a document according to which the investigation has been assigned to ALJ Monica Bhattacharyya, who became an ALJ only a few months ago but has been with the U.S. trade agency for a long time as a staff attorney with the Office of Unfair Import Investigations (OUII) and previously worked in private IP litigation practice. The OUII participates in some ITC investigations as a third party representing the public interest, which does not mean that the OUII focuses on the parties' public-interest argument concerning the appropriateness of limited exclusion orders (import bans): the OUII's job is to increase the likelihood of correct decisions on the merits. Apple's attempt to get mobile base stations banned does raise public-interest concerns, however.

Interestingly, ALJ Bhattacharyya "studied comparative legal systems as a Bundeskanzler [Federal Chancellor] Scholar at Goethe University in Frankfurt, Germany" (quoting from an ITC press release), so when she hears about patent injunctions handed down by German courts or other litigation events in that jurisdiction, she may be in a privileged position to draw parallels between the world's two most important jurisdictions for patent injunctions.

The likelihood of an Ericsson-Apple settlement will definitely increase around trials and rulings by the ITC and by German courts, as well as when certain courts in Brazil and the Netherlands adjudicate Ericsson's preliminary injunction motions.

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