Thursday, September 8, 2022

OPPO fends off two Nokia patent infringement lawsuits in Munich--after Nokia won four injunctions, OPPO got the next four patent cases stayed

In connection with political elections--especially in the United States--the term "comeback kid" is often used for candidates who gain momentum after a difficult start, typically in situations in which many observers thought a campaign was over before it had really begun. An example is how Joe Biden won the 2020 Democratic presidential nomination. In the smartphone patent litigation arena, the current "comeback kid" is Chinese smartphone maker OPPO.

Nokia won a Mannheim injunction over a WiFi non-SEP in June, a SEP injunction from the same court in July, and then two SEP injunctions in Munich in August. Instead of folding, OPPO kept on fighting. Its temporary (but indefinite) withdrawal from the German market enables the high-volume smartphone maker (and its OnePlus affiliate) to stand its ground in court:

  • Motions to stay the enforcement of those four injunctions are pending, and while I can't predict what the appeals courts in Munich and Karlsruhe (the latter for the Mannheim rulings) will do, there are serious issues that may very well prove outcome-determinative.

  • OPPO is now aggressively seeking its own German patent injunctions.

  • Last month--a few days after the two Munich injunctions--the Dusseldorf Regional Court stayed two Nokia v. OPPO cases over doubts that the patents-in-suit were valid.

  • And today the Munich I Regional Court's press office informed that on Tuesday the court's Seventh Civil Chamber (Presiding Judge: Dr. Matthias Zigann) stayed--with Nokia's consent--cases no. 7 O 8888/21, 7 O 8889/21 und 7 O 10454/21, 7 O 13406/21, 7 O 13415/21, and 7 O 13419/21. Those cases target different legal entities related to OPPO and OnePlus. The two patents-in-suit in those cases are EP2070217 on an "apparatus, method and computer program product providing multiplexing for data-non-associated control channel" and EP1671505 on a "redundancy strategy selection scheme."

    This means the score is 4-4 between the parties as of now: 4 injunctions vs. 4 stays (a stay is a win for the defendant unless the patent-in-suit comes back with a vengeance from the parallel nullity proceeding, but that would take a year or two).

    The same division of the Munich court had its doubts about the validity of EP'505 when it was asserted against Daimler. EP'217 wasn't previously asserted in court. From what I heard in the IP community (as opposed to the court itself), the court was wondering why Nokia was asserting that patent, given that it has a huge portfolio to choose from and that there were doubts about whether that patent is actually standard-essential. Given that it's a difficult case for Nokia to win and that it appeared rather likely that the patent would be invalidated, the court asked Nokia to consent to a stay of the EP'217 litigation--which is what Nokia did.

Maybe it shouldn't have come as a surprise that OPPO isn't easily beaten.

At a time when this course of action wasn't foreseeable yet, IAM--in its Asia IP Elite special report (Q2/22 edition)--acknowledged that OPPO--undeterred by litigation--"has established a reputation as one of the toughest negotiators in the mobile space." IAM also credited OPPO for cutting "far-sighted deals" with the likes of Sharp, NTT Docomo, and Sisvel (sometimes with and sometimes without litigation).

IAM's praise for OPPO's IP team makes sense. Honestly, when Nokia's patent assertion campaign against OPPO became known 14 months ago, I actually thought the litigation wasn't going to last long. I expected a tipping point to reached by the spring, and I considered it likely that OPPO--which hadn't previously faced a patent assertion effort of that scope and scale--was going to take a license well ahead of the first anniversary of the dispute. I, for sure, underestimated them. And so did Nokia, possibly. Meanwhile, Nokia's license agreement with Apple has presumably expired, and chances are that Nokia expected some of its litigation resources to be freed up before a potential enforcement campaign against the iPhone maker.

Nokia's experience and sophistication in wireless patent litigation are second to none, but Nokia and OPPO are two well-matched adversaries.