Wednesday, February 2, 2022

Nokia 4G patent upheld by European Patent Office, stronger than ever thanks to Daimler's wasteful litigation effort

The dispute with Daimler is the gift that keeps on giving to Nokia. The case settled seven months ago, but yesterday Nokia's EP2550762 on "signalling of channel information" got upheld by an opposition panel of the European Patent Office with only a minor amendment, which still allows Nokia to claim that it is essential to the 4G/LTE standard. The patent relates to carrier aggregation (aggregating bandwidth from different parts of the spectrum).

Nokia didn't assert that standard-essential patent (SEP) against Daimler, but it was on a list accompanying Nokia's infringement notice, so Daimler and its supplier TomTom challenged it, possibly also hoping to drive up Nokia's litigation costs. Daimler wasn't actually listed as a party, but their lawyers (Quinn Emanuel) obviously weren't opposing the patent pro bono.

Let me quote from the EPO's summary and a pagraph that will now be inserted into the patent specification:

"In independent claims 1, 4, 7, 11 and 14 of the present patent, a disclaimer has been included for differentiation from this prior art document"

This makes the patent more valuable for Nokia's future 4G enforcement campaign. It is a significant accomplishment for Nokia's patent attorneys, Cohausz & Florack partners Bjoern Brouwers and Dr. Christoph Walke. It wasn't easy because the opposition board raised some issues in a preliminary opinion. The opposing parties, however, withdrew well in advance of yesterday's oral hearing.

Some automotive companies have yet to learn how to get their money's worth in patent litigation. Sometimes the economically smarted choice is to take a license. Before Daimler reached that conclusion and took an Avanci pool license, it had already paid substantial "tuition fees" in the form of ultimately unsuccessfully defending itself against Nokia, Sharp, and Conversant--and an IP Bridge case against Daimler would have gone to trial in Munich later this month.

Earlier today I also questioned the wisdom of Ford defending itself against Avanci licensors Sisvel, IP Bridge, and Longhorn IP.

When Daimler settled with Nokia, the Finnish wireless company had won "only" one injunction each in Mannheim and Munich. But shortly after that settlement I looked more closely at the state of affairs in various proceedings, only to find that Nokia would probably have been able to enforce the Mannheim injunction without a need to provide security in possibly just a matter of months, and that Nokia would very likely have won several more injunctions. That is not to say that no one can defend against Nokia: sophisticated smartphone companies would do a better job than Daimler. An interesting benchmark: OPPO outperformed Daimler against Sharp.

Daimler's litigation department managed that litigation a bit like people who order whatever item on the restaurant menu is priciest. You could take a burger straight out of McDonald's, put it on the menu, charge $350, and those types of people would order it even if they could get a filet mignon from wagyu beef at half the price at what would still be an upscale restaurant on the other side of the street. There came a point when others in the organization were no longer prepared to support that wasteful spending. Now they just have to realize at Daimler that it's a mistake in German patent litigation not to hire interdisciplinary teams consisting of attorneys at law and patent attorneys. Patent attorneys won this one for Nokia.

Nokia definitely got a lot of value out of the Daimler dispute. But again, sophisticated tech companies, above all smartphone makers, are the real challenge, provided that can come up with a new challenge to EP'762 as merely rehashing Daimler's unavailing arguments won't help.

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