In the earth-spanning patent dispute between Nokia and OPPO (see my battlemap, which visualizes cases pending on three continents), OPPO has recently had more reasons to celebrate than Nokia (such as in Indonesia: 1, ), with the exception of a UK infringement ruling that entitles Nokia to a London FRAND trial.
Today the Rechtbank Den Haag (The Hague District Court) published a January 11 order denying a Nokia motion for a preliminary injunction against the Dutch legal entities that distribute OPPO and OnePlus smartphones in their country.
Interestingly, the issue here was not whether the patents-in-suit are valid or infringed. It was about FRAND and the balance of hardships.
The procedural backdrop is that a German OPPO entity--after an unfavorable Mannheim judgment--brought a declaratory judgment action in the Netherlands over two Nokia SEPs from the same patent family: EP2981103 and EP3220562 on an "allocation of preamble sequences.". The purpose was presumably to win a finding of invalidity that might have persuaded the Karlsruhe Higher Regional Court to stay the enforcement of the injunction. In order to get that technical decision at the earliest opportunity, the German OPPO entity even waived its FRAND defense as that part would have delayed the proceedings.
Nokia counterclaimed and prevailed in that Dutch case. Technically, OPPO was enjoined, but only a German legal entity as opposed to the Dutch distribution companies that sell OPPO and OnePlus devices.
In order to make an actual impact on OPPO and OnePlus's Dutch business (though the volume of OPPO and OnePlus phones sold in that market may be small anyway), Nokia filed a motion for a preliminary injunction against the companies actually operating in the Dutch market, pointing to the merits decision from the case OPPO had started.
But in that new proceeding, OPPO did raise a FRAND defense.
Seven months ago I wrote that "patent holders should forget about Dutch courts for preliminary injunctions" in light of an Ericsson v. Apple non-SEP decision by Judge Edgar Brinkman, which was almost eBay-like: the harm to Apple outweighed the one to Ericsson in Judge Brinkman's opinion.
Nokia is a courageous litigant. It takes its chances and can deal with potential losses. Not only with the benefit of 20/20 hindsight it appears bold to seek a PI over a SEP from a judge who last year denied one over a non-SEP on balance-of-hardship grounds, given that you can't just tell a SEP implementer to work around. I'm sure Nokia knew that it was not going to be easy.
The parties made some FRAND arguments according to the ruling. Nokia described the OPPO corporate group as a whole as an unwilling licensee engaging in hold-out, while OPPO claimed to have taken reasonable positions and accused Nokia of hold-up.
Judge Brinkman held that the complexity of the FRAND defense (though he was well aware of what his colleagues in Germany had concluded) didn't lend itself to a PI proceeding, and he said Nokia's business model at least with respect to SEPs is just about collecting royalties. Judge Brinkman noted that Nokia could still get paid later on, such as through a damages award, and found that OPPO had provided sufficient collateral. Bycontrast, OPPO would have been forced out of the Dutch market if he had entered a PI. Therefore, Judge Brinkman did not see that the requirements for preliminary relief were met.
Nokia had a fallback position in the form of a conditional injunction that would have been in force unless and until OPPO would have accepted an accelerated arbitration procedure for making a global FRAND determination (and on top OPPO would have had to make interim payments based on Nokia's royalty demand).
Paragraph 4.15 is probably the one Nokia is least happy about: it suggests that OPPO would also prevail in a full-blown main proceeding if Nokia took the same positions.
The Dutch court did not reach FRAND per se, nor did it elaborate on the technical arguments after having concluded that Nokia was not entitled to a PI.
In other Nokia-OPPO news, a spokesman for the Mannheim Regional Court has confirmed to me that an OPPO v. Nokia trial over EP3672346, which is valid according to a preliminary opinion by the Opposition Division of the European Patent Office, is slated for June 6, 2023.
