Nokia has obtained a first patent injunction against OPPO and its OnePlus premium brand. At 10:30 AM local time, the Mannheim Regional Court's Second Civil Chamber (Presiding Judge: Dr. Holger Kircher) announced its decision in case no. 2 O 74/21. I haven't received confirmation from the court, but Nokia has kept with its long-standing tradition of issuing rapid-response statements on court rulings and announced that the court has found for Nokia and ordered an injunction. A Nokia spokesperson said the following:
"We welcome the Court’s decision. The judgment confirms the strength of Nokia’s leading patent portfolio. We have conducted our negotiations in a fair way and hope that OPPO will now accept its obligations and, like its competitors, renew their license on fair terms, rather than continue to operate without one. It would be better for both parties to spend their time and money on innovating rather than fighting in court."
While I don't doubt that Nokia's patent portfolio as a whole is strong, this particular patent--EP1704731 on a "method and apparatus for indicating service set identifiers to probe for"-- comes down to saying that if a WiFi network broadcasts messages to indicate its presence, a device shouldn't send messages asking the network whether it's available, and suggests the only obvious solution, which is to keep a list of networks and a flag (or whatever other data point) for whether network proactively makes its presence felt. I'm sure only a minuscule part of the tens of billions of dollars spent on wireless R&D since the time the claimed "invention" was made relates to that particular "innovation."
What OPPO and OnePlus can request now is an emergency stay of the injunction, in which case the Germany-wide injunction wouldn't get enforced until at least the end of the appellate proceedings. OPPO and OnePlus can--and I venture to guess will--appeal today's decision to the Oberlandesgericht Karlsruhe (Karlsruhe Higher Regional Court). The Sixth Civil Senate under Presiding Judge Andreas Voss ("Voß" in German) will then base its decision on a motion for an immediate stay on a preliminary assessment of the likelihood of a successful appeal. If OPPO and OnePlus can present prior art that clearly anticipated the claimed invention, the injunction might be stayed before it is enforced. The first decision for the appeals court to make is whether to stay enforcement while it will be weighing a stay during the entire appellate proceedings.
This was a clear bet on the German "injunction gap." However, I've repeatedly seen German patent injuncions stayed by the appeals courts based on strong invalidity contentions.
If the injunction can be enforced during the appeal, the security to be provided by Nokia (a bond or a deposit) will amount to €300K (approximately $315K) with respect to OnePlus and €580K (approximately $610K) for OPPO.
It should be possible to work around that patent. What I don't know is what the logistical implications of a workaround would be (changing the software should be easy, but if any hardware change was needed, it would be more costly).
As for Nokia's position on fairness, the patent underlying today's injunction is not standard-essential. Therefore, it is not subject to a FRAND (fair, reasonable, and non-discriminatory) licensing commitment. But other patents-in-suit are standard-essential patents (SEPs), with another Nokia v. OPPO Mannheim case involving a SEP and coming to judgment in two weeks from today. Should Nokia prevail on the technical merits of that 4G SEP, the court will have to address OPPO's FRAND defense. Whether proportionality played a role in today's decision isn't known, but more than a year since the German parliament enacted a "reform" bill with a modified patent injunction statute, there hasn't been a single case in which an injunction was denied as disproportionate, and I doubt we'll see such a case anytime soon.
What makes the FRAND aspect of Nokia v. OPPO particularly interesting is that OPPO itself is a major patent holder (which even filed more patent applications with the European Patent Office in the field of digital communications last year than its adversary) and has brought some countersuits such as a 5G SEP case that the Munich I Regional Court recently heard. So it's a two-way dispute, though OPPO's unit volumes with its handsets are obviously far larger than those of Nokia's base stations.
It became known today that Nokia withdrew its Russian case against OPPO due to the Ukraine situation, but as this blog reported, Nokia recently filed new cases in Finland and Sweden. In China, there is a FRAND rate-setting case pending, and (as the post I just linked to mentions) China's antitrust authority has sent a questionnaire to major SEP holders including--but not limited to--Nokia.
So at this stage, the complete list of jurisdictions in which Nokia is currently asserting patents against OPPO is the following: Germany, UK, Spain, France, China, India, Indonesia, the Netherlands, Finland, and Sweden. That's a total of ten countries--four more than at this stage of the Ericsson v. Apple dispute, the enforcement part of which started more than six months later (the parties previously filed FRAND--but not infringement--cases).
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