Monday, May 30, 2022

Nokia placing transparent bet on German injunction gap with non-standard-essential WiFi patent against OPPO in Mannheim

Tomorrow (Tuesday, May 31) the Mannheim Regional Court's Second Civil Chamber (Presiding Judge: Dr. Holger Kircher) will hold its second Nokia v. OPPO trial. As I already reported last summer, the patent-in-suit in case no. 2 O 73/21 is EP1704731 on a "method and apparatus for indicating service set identifiers to probe for." I was clear all along that it's a WiFi patent. What I have meanwhile researched is that this patent hasn't been declared essential to WiFi (IEEE 802.11).

On the first of this month I expressed skepticism regarding the impact of the new Art. 83 of the German Patent Act, which calls on the Federal Patent Court to provide a preliminary summary of the issues in a nullity case within six months of service of the complaint. It's illusory to expect the court to reach a preliminary conclusion after six months on virtually 100% of all challenged patents when it so far needs years to form such an opinion in only about half of all cases. However, in some outlier situations such as tomorrow's Mannheim case (to which the new rule doesn't apply; it only affects cases filed this month or later) the Federal Patent Court would indeed be able to tell quickly and easily that a patent has serious validity issues.

I want to be clear and fair: Nokia has invested, and continues to invest, a lot in innovation. The company deserves respect for that, and respect for IP ultimately means royalty payments. But this doesn't mean that Nokia wouldn't also take an opportunistic win over a patent that is rather unreflective of its substantial investments in innovation. EP'731 is the technically thinnest European patent I've ever seen in litigation, even less technical than a patent Qualcomm asserted against Apple's Spotlight search in Munich (a fitting analogy as Qualcomm is one of the most innovative companies in the entire technology sector, yet sought leverage from partly underwhelming patents).

The number one reason why true innovators like Qualcomm and Nokia resort to patent assertions of that kind is that Germany's bifurcated patent litigation system and the "injunction gap" it entails encourages deep-pocketed plaintiffs to just play the lottery. The "German gamble" is that you assert--additionally or alternatively to more serious patents--a bunch of patents that should never have been granted in the first place. The hit rate may be low, but if you prevail on one or two such patents, you may get leverage--and, at a minimum, a news cycle about your adversary using your "intellectual property" without a license.

While we're on the subject of "intellectual", let's take a look at what that patent is all about. Obviously a page count alone doesn't answer the question. Sometimes an incredibly good idea can be described briefly. Here, however, even nine pages is epic when considering what the claimed invention amounts to:

In a nutshell, some WiFi networks identify themselves proactively by broadcasting an "I'm here" message while some others will only respond if a device asks "are you [stating a specific network name] around?"--and what the patent "teaches" is that you shouldn't ask that "are you around?" question with respect to a network that proactively tells you "I'm here" (just with respect to those that wait to be asked).

The alleged technical effect is that you save bandwith and power by not asking unnecessary questions. In light of worldwide efforts to combat climate change, energy efficiency is undoubtedly relevant. However, the starting point--"don't ask if it tells you anyway"--is obvious, and what's also obvious is that a device would use a "flag" (which is typically a 0/1 binary value). It would be a different story if this patent taught a particularly efficient way of doing this. But what it does is to cover all implementations. It says: use a binary flag, or some other data point--just store the information that a certain WiFi network will identify itself and doesn't have to be asked.

In light of how unbelievably uninventive that patent is, I'm not going to attend the Mannheim trial. The Nokia v. OPPO/OPPO v. Nokia dispute is generally very interesting. For instance, Nokia's EP'103 was successfully asserted against Daimler, though OPPO has dug up an Excel table that is part of the specification of the standard and, in my view, renders the patent non-essential. Whether or not I'm right about non-essentiality, EP'103 is a patent to be reckoned with. Also, an OPPO patent that is being asserted against Nokia in Munich was described as a groundbreaking innovation that enables low-latency 5G network communications. By comparison, I very strongly doubt that there will ever be an injunction against any defendant over EP'731. It's a lottery ticket, and even if it worked out, it could be worked around by simply checking for the presence of all WiFi networks on the list, even those that self-identify. That workaround would result in unnecessary carbon emissions--and there might be some logistical challenges if a chipset had to be replaced with a modified one. But it could be done.

The odds are long against this lottery ticket winning Nokia the jackpot, especially before judges that have a pretty good feel for what constitutes true innovation. I was really impressed with how easily Judge Dr. Kircher identified the non-technical nature of Qualcomm's "amended" claims of a patent relating to electromigration. That Qualcomm patent was actually rocket science compared to EP'731...

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