Wednesday, March 9, 2022

Ericsson gets first Munich hearing date in 5G patent dispute with Apple--but Apple has earliest Mannheim trial date for one of its countersuits

Germany is a key battleground between Apple and Ericsson (as it is for other major patent spats). I've obtained some further information from the press offices of the three key German courts regarding hearing and trial dates. In Dusseldorf and Mannheim, there's only one actual trial; in Munich, they hold an early first hearing, remotely comparable to a U.S. Markman hearing, and decide after a second hearing, which is a full trial.

In Munich, there's a lot more going on than meets the eye, but so far a first hearing has been scheduled only in one Ericsson v. Apple case. On September 14, 2022, the Munich I Regional Court's 21st Civil Chamber under Presiding Judge Dr. Georg Werner will hear case no. 21 O 517/22 over EP2220848 on "mobile access to internet-based application with reduced polling." The defendants are Apple Retail Germany B.V. & Co. KG and Apple GmbH, i.e., two German Apple subsidiaries, the first one of which is a limited partnership whose general partner is a Dutch legal entity, owing to Apple's famous tax optimization in the EU (which may be debatable from a policy point of view, but which doesn't raise "state aid" issues, though some people in Brussels would beg to differ on that part).

In Mannheim, the guiding principle appears to be "one Apple-Ericsson case a month." An apple a month is not enough to keep the doctor away, not even the lawyers, but such spacing enables the court to serve other parties in between the Apple-Ericsson clashes. Apple is slightly ahead: the first Mannheim Apple v. Ericsson countersuit--on which I reported after Juve Patent discovered it--will go trial on October 18, 2022. The Mannheim Regional Court's Second Civil Chamber under Presiding Dr. Holger Kircher will hear case no. 2 O 9/22 over EP2945332 on an "apparatus and methods for network resource allocation." It's a homegrown Apple patent with a 2008 priority date, and the "network resource" whose allocation the patent focuses on is bandwidth. It's about dynamic bandwidth allocation in a network such as "a routed wireless IP network."

Subsequently, the same division of the Mannheim court will hear half a dozen Ericsson v. Apple cases. In the order of the trial dates:

  • November 8, 2022: case no. 2 O 5/22 over EP2191608 on a "method and arrangement in a telecommunication system"

  • December 20, 2022: case no. 2 O 10/22 over EP1955436 on a "modulation method and apparatus"

  • January 17, 2023: case no. 2 O 27/22 over EP1952560 on a "technique for performing a random access procedure over a radio interface"

  • February 14, 2023: case no. 2 O 28/22 over EP2186371 on "uplink scrambling during random access"

  • March 28, 2023: case no. 2 O 29/22 over EP36593134 on a "subscription concealed identifier"

  • April 25, 2023: case no. 2 O 30/22 over EP3453212 on a "method and apparatus for identifying and using radio resources in a wireless communication network"

The Mannheim court sort of saved the best for last (which may be too late if the parties settle before): the last two patents-in-suit look like 5G patents.

The Dusseldorf Regional Court has scheduled trials in case no. 4c O 3722 (Presiding Judge: Sabine Klepsch) for January 26, 2023, and for cases 4b O 4/22 and 4b O 10/22 (Presiding Judge: Dr. Daniel Voss ("Voß" in German)) for March 2, 2023. There's also case no. 4b O 5/22, but no trial has been scheduled for that one yet. I have not been able to obtain specifics from the Dusseldorf court regarding the patents-in-suit. It's possible that one or two of these cases were filed by Apple. At some point we'll hear about it.

It is interesting, however, that the Dusseldorf court has drastically shortened its time-to-trial. There was a time when it took about two years. This has to do with the growing popularity of the Munich court in two ways: Dusseldorf is less busy now, and it "must try harder" (an obvious allusion to a car rental company's slogan). It's quite possible that the first Ericsson-Apple trial in Dusseldorf will happen before any Munich trial in that dispute, though first hearings in Munich will take place before and usually give the parties a pretty good indication as to what the outcome will most likely be. That's the kind of guidance that facilitates settlements. Anyway, it was a smart move for Dusseldorf to prioritize those Ericsson-Apple cases. It's the highest-profile multi-jurisdictional patent dispute at the moment.

Just two more loosely related tidbits that wouldn't warrant dedicated posts but are worth mentioning:

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