Wednesday, June 7, 2023

Nokia obtained patent injunctions against 12 German resellers of OPPO, OnePlus devices: Mannheim Regional Court

The patent dispute between Nokia and OPPO (as well as the latter's OnePlus affiliate) continues to escalate, with no settlement in sight. Today a spokeswoman for the Mannheim Regional Court confirmed to me that on May 26, the court's Second Civil Chamber (Presiding Judge: Dr. Holger Kircher) granted Nokia injunctive relief against a dozen German resellers of OPPO and OnePlus devices.

The patent-in-suit is EP1704731 on a "method and apparatus for indicating service set identifiers to probe for" and the same court had already granted Nokia an injunction against OPPO over that patent about a year ago. It's not a standard-essential patent (SEP), though the wider patent spat is largely a 5G SEP dispute.

After two Mannheim injunctions (the aforementioned one, and one over a cellular SEP), OPPO (and OnePlus) left the German market last year. Meanwhile, another Chinese smartphone maker, Vivo, has also left the German market as a result of Nokia's patent enforcement.

The Mannheim court provided the list of parallel cases in which the May 26, 2023 decisions came down:

  • case no. 2 O 127/22: Nokia ./. Brodos AG

  • case no. 2 O 128/22: Nokia ./. Cyberport GmbH

  • case no. 2 O 129/22: Nokia ./. Drillisch Online GmbH

  • case no. 2 O 130/22: Nokia ./. Grand King Ltd

  • case no. 2 O 131/22: Nokia ./. Komsa AG

  • case no. 2 O 132/22: Nokia ./. MMS E-Commerce GmbH

    (MMS is the parent company of the Media Markt and Saturn consumer electronics stores)

  • case no. 2 O 133/22: Nokia ./. 1&1 Telecommuniction SE

  • case no. 2 O 134/22: Nokia ./. Logitel GmbH

  • case no. 2 O 135/22: Nokia ./. Otto GmbH & Co. KG

  • case no. 2 O 139/22: Nokia ./. expert e-commerce GmbH

  • case no. 2 O 140/22: Nokia ./. freenet DLS GmbH

  • case no. 2 O 147/22: Nokia ./. OTECH Germany GmbH.

Those resellers kept selling OPPO and OnePlus products after last year's Mannheim injunctions. Formally, they were not enjoined last year as they weren't named as defendants to the original infringement action, but now they are to the extent they offer OPPO and OnePlus products implementing the patent-in-suit.

Legally, Nokia is obviously within its rights to do that. But there are different schools of thought. Some patent holders refrain from enforcement action against resellers. It's a company-by-company and case-by-case question. While today's Nokia-branded phones are made by a company of which Nokia is only a minority shareholder, I'm wondering whether HMD's relationships with those resellers will be adversely impacted by this enforcement action.

Nokia argues that OPPO should take a license (" or enter into binding arbitration to find a fair outcome that works for both parties") and recalls that the dispute has been ongoing for almost two years. OPPO, however, has consistently taken the position that Nokia's royalty demands are supra-FRAND. OPPO is also countersuing Nokia in Germany.

I doubt that this enforcement against German resellers will change OPPO's position.

In the context of the proposed EU SEP Regulation, the fact that Nokia is using a non-SEP to bar those resellers from selling OPPO and OnePlus devices validates something I wrote in April: I discussed various reasons for which even implementers won't necessarily benefit from that envisioned regulation as non-SEPs might end up getting more weight, and I mentioned that in disputes of this kind, net licensors typically assert a mix of SEPs and non-SEPs.