Wednesday, August 24, 2022

OPPO fights back seeking multiple German 5G patent injunctions against Nokia after withdrawal from German market: what goes around...

Since OPPO's indefinite withdrawal from the German market became known earlier this month, I've been hoping for more information on the state of play between the smartphone maker and Nokia. First I found out from the Karlsruhe Higher Regional Court's press office that the two Mannheim injunctions Nokia obtained in June and July are not presently being enforced: whether or not Presiding Judge Andreas Voss ("Voß" in German) so requested, it's been confirmed that Nokia agreed to refrain from immediate enforcement while the appeals court is weighing OPPO's motions to stay the injunctions. In one of the two cases, Nokia has until the end of this month to respond to the motion.

Some other parties in OPPO's place would probably have continued to sell their products until the moment enforcement formally begins, as did Apple ahead of the enforcement of Qualcomm's injunction in early 2019. But doing so entails the risk of having to destroy products returned by resellers.

OPPO is standing its ground and not going to cave. The latest development is that OPPO has amended several--if not most or all--of its pending German patent infringement complaints against Nokia and is now seeking injunctions as opposed to "only" damages.

The first four OPPO v. Nokia countersuits became known in October 2021: two in Mannheim, one in Munich, and also one in Hamburg. In May, the Munich I Regional Court held a first hearing in an additional case, which looks very promising for OPPO and its lead counsel in its cases, Bardehle Pagenberg's Professor Tilman Mueller-Stoy (OPPO's defensive cases are being handled by Hogan Lovells). Now it turns out that there have not only been additional complaints, but that OPPO has also added--by way of amended complaints--prayers for injunctive relief:

  • The Mannheim Regional Court has confirmed the pendency of case no. 2 O 119/21 and that OPPO is now also seeking an injunction. The trial has been scheduled for December 6, 2022. [Update] The patent-in-suit is EP3672346 on an "information transmission method, terminal and network device." [/Update]

  • [Update] The Mannheim court has now also confirmed the filing of an injunction request in case no. 7 O 125/21 over EP3547772 on a "data transmission method and apparatus." The trial date is January 20, 2023. [/Update]

  • The Munich I Regional Court has confirmed two previously unknown OPPO v. Nokia cases in which OPPO is now additionally pursuing injunctive relief:

    • Case no. 7 O 3707/22 over EP3445093 on "dedicated information transmission based on validity of scheduling information" (to be heard on April 20, 2023); and

    • Case no. 7 O 5453/22 over EP3697146 on a "wireless communication method, network device and terminal device" (to be heard on April 27, 2023).

[Update] The Hamburg Regional Court's press office has now also confirmed the filing of an amended complaint for injunctive relief in case no. 315 O 217/21 over EP3557938 on a "method and device for random access" (trial on November 30, 2022). [/Update]

While I have yet to obtain some further information from Munich, it's clear now that OPPO is now seeking injunctions against Nokia's base stations in roughly a handful of German cases. I will update this post if I receive the missing information shortly, and otherwise I'll do an update post with a complete overview of all OPPO v. Nokia cases.

OPPO has become an innovation powerhouse, particularly in connection with 5G.

OPPO's decision to step up its retaliatory actions changes the calculus: previously, OPPO's exposure to patent enforcement was greater in terms of unit volumes; but now, with OPPO having shown that it's prepared to stay out of the German market for as long as necessary to resolve patent licensing issues, and with OPPO seeking injunctions of its own, there is considerable risk to Nokia if this litigation takes longer and OPPO obtains its own injunctions in early to mid 2023.

The parties must still be very far apart in their negotiations, judging from this escalation.

OPPO is presently also defending against some German patent infringement lawsuits that InterDigital brought late last year. InterDigital doesn't make products, so OPPO can't countersue over its own patents. That said, the firmness of OPPO's position on what royalty levels are fair, reasonable, and non-discriminatory (FRAND) is evidenced by how the smartphone maker is responding to Nokia's enforcement campaign.

The two-way Nokia v. OPPO/OPPO v. Nokia dispute underscores the key role that German courts play in patent disputes, especially standard-essential patent (SEP) disputes. Most defendants will neither find it economically viable nor be able to reach an internal consensus on the kind of decision that OPPO made. Most of the time, Germany is a great jurisdiction for gaining leverage over implementers--including Nokia when it is on the receiving end, such as when OPPO is countersuing. By contrast, a couple of USITC judges have recently allowed Apple to present far-fetched FRAND-related defenses at trial that judges have both the duty and the authority to throw out as matter of law.