Thursday, March 31, 2022

Munich court schedules five additional Ericsson v. Apple patent infringement hearings: one for September, four for November 2022

This is an update to March 9 post on German Ericsson v. Apple hearing and trial dates. In that one, I wrote that there was a lot more going on, but the only first hearing date I was able to report was the following one:

  • September 14, 2022 (morning): case no. 21 O 517/22 over EP2220848 on "mobile access to internet-based application with reduced polling"

I am now in a position to report five other first-hearing dates (Munich trials always involve a first hearing followed after several months by a second hearing, which is a full trial leading to a decision). All of those cases will also be heard by the Munich I Regional Court's 21st Civil Chamber (Presiding Judge: Dr. Georg Werner):

  • September 14, 2022 (afternoon): case no. 21 O 515/22 over EP3119141 on a "technique for performing a random access procedure over a radio interface"

  • November 23, 2022 (morning): case no. 21 O 2922/22 over EP2991430 on "uplink scrambling during random access"

  • November 23, 2022 (afternoon): case no. 21 O 2925/22 over EP2712236 on a "method and arrangement in a telecommunication system for neighbour cell measurements"

  • November 30, 2022 (morning): case no. 21 O 2926/22 over EP3618547 on a "method and apparatus for identifying and using radio resources in a wireless communication network"

  • November 30, 2022 (afternoon): case no. 21 O 2927/22 over EP3245744 on "codebook subset restriction signaling"

The same panel of judges held a Nokia v. OPPO/OPPO v. Nokia FRAND hearing last week, which I didn't attend, but I read Juve Patent report this week and shared my observations yesterday. I wish to reiterate that there is no reason to be concerned about standard-essential patent (SEP) plaintiffs' chances in Munich. It's still a great venue for that purpose (as is Mannheim). However, the Federal Court of Justice of Germany made it clear in Sisvel v. Haier II that a certain symmetry is a requirement for what some call the "FRAND dance" to lead to the conclusion of a license agreement. Negotiations are dynamic, not static, and the court wants both parties to make their contribution throughout the course of the proceedings (i.e., until and including the trial).

There are various reasons for which the Nokia-OPPO dispute can safely be assumed to have unique fact pattern. Nokia isn't Ericsson (despite certain structural similarities that do exist); and OPPO is very much unlike Apple in so many respects. FRAND is one of the most fact-intensive questions one can imagine. Also, Ericsson has an effort underway in the United States that may get its royalty rate approved by a court of law before the Munich court will even have to decide on whether to grant or deny an injunction. Should the court in Texas find, after a one-week or two-week trial, that Ericsson's conduct was compliant with its FRAND licensing obligations, that would make it very hard for Apple to dissuade courts anywhere else, and much less in Germany, from granting injunctions. That is one of various structural differences between Nokia v. OPPO and Ericsson v. Apple. Let's not compare apples to oppos.

Share with other professionals via LinkedIn: