Thursday, June 9, 2022

Nokia filed standard-essential patent cases against OPPO in Finland and Sweden, and confirms Chinese antitrust agency sent questionnaire to them and other SEP holders

It's a very significant setback for implementers of standard-essential patents (SEPs) that three U.S. government agencies (DOJ, USPTO, NIST) neither agreed on a new SEP policy nor reinstated the Obama Administration's licensee-friendly policy position. Companies like Apple--whose motion to stay Ericsson's assertions of three 5G SEPs in the Eastern District of Texas was denied and left the judge puzzled by Apple's "hot-then-cold" positions--had hoped to use a trend reversal in the U.S. as they are trying to persuade courts and policy makers in other jurisdictions to weaken SEP enforcement.

At the moment, China is actually the jurisdiction in which SEP holders must tread carefully to avoid further regulatory scrutiny. As MLex's Khushita Vasant reported in March (the article is paywalled), China's competition authority, the State Administration for Market Regulation (SAMR), sent questionnaires to SEP holders including--but not limited to--Nokia and Ericsson a couple of months ago.

To me this suggests that China is not deterred by the European Commission's complaint with the World Trade Organization (WTO) over its SEP case law. Instead, the Chinese government is serious about enforcing the antitrust laws not only against certain Internet companies (which affected the stock price of some of them) but also in connection with intellectual property rights.

Upon request, Nokia has provided the following statement to me:

"Along with a number of other companies, we have received a questionnaire from the SAMR of China. We welcome transparency on these topics and are sharing information with SAMR. Our licensing practices have been extensively reviewed by competition authorities including the Chinese authorities on a number of occasions, with consistently positive outcomes. We have no reason to believe that outcomes from such reviews would be any different at this time."

When competition agencies send out first questionnaires in a given context, it may or may not lead to formal investigations. Nokia is currently suing two major Chinese smartphone makers--OPPO and Vivo--and those companies are countersuing over 5G SEPs of their own. Chinese companies are among the leading filers of digital communications patent applications. Far be it from me to consider patent counts a perfect metric for innovation, but they are always a starting point and it takes A LOT more than unsubstantiated claims by economists to prove discrepancies in average per-patent value.

Nokia's dispute with OPPO is apparently escalating. When Nokia's enforcement campaign began last year, cases were filed in four Western European countries (Germany, the Netherlands, the UK, and Spain), as well as in India, Indonesia, and Russia. Now I've learned that on May 9, 2022, Nokia filed infringement lawsuits in two more European countries: Finland (where it is headquartered) and Sweden.

In the Helsinki Market Court and the Stockholm Patents & Market Court, Nokia is asserting two patents (both patents in both of those courts) from the same patent family: EP2981103 and EP3220562, both on an "allocation of preamble sequences."

EP'103 won Nokia a Mannheim injunction against Daimler two years ago, though it didn't get enforced before those parties settled. It is also presently being asserted against OPPO in Mannheim (where I attended a recent trial and considered one of OPPO's non-infringement arguments availing), the UK, and the Netherlands. EP'562 is being asserted in Mannheim and the Netherlands, but not the UK.

OPPO is countersuing Nokia over 5G patents. The Munich I Regional Court recently held a first hearing in one of those cases.

All in all, the Nokia v. OPPO/OPPO v. Nokia dispute spans ten countries now:

  • IAM reported in November that OPPO asked a Chinese court to set a global FRAND rate;

  • Nokia filed infringement suits in India, Indonesia, and Russia; and

  • European countries in which Nokia cases are pending include Germany (where OPPO is countersuing as I mentioned), the UK, the Netherlands, Spain, Finland, and Sweden.

Prior to the current dispute, the parties had a license agreement in place for three years. Nokia filed suit within days of expiration of that license. The parties must be far apart, but no numbers have been discussed in open court.

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