Next defeat for Access Advance patent pool in Dusseldorf: appeals court overturns anti-antisuit injunctions against Xiaomi though it concurs in part with Munich antisuit case law

2022 has resumed where 2021 left off with respect to Access Advance's patent enforcement attempts in Germany. Between Christmas and New Year's, Turkish TV maker Vestel prevailed on a FRAND counterclaim--and an affirmative FRAND defense to injunctive relief--over the Access Advance pool and some of its licensors. The patent pool firm--which was founded by Philips, General Electric, Dolby, and Mitsubishi--has so far failed to address the serious issue of duplicative royalties.

The first court ruling in 2022 to involve Access Advance's enforcement efforts has also favored a defendant: in this case, Xiaomi, one of the world's largest smartphone makers. Yesterday, the Oberlandesgericht Düsseldorf (Dusseldorf Higher Regional Court) lifted a set of anti-antisuit injunctions granted by the lower Dusseldorf court to Philips, GE, and Mitsubishi last summer (Juve Patent reported).

The Dusseldorf appeals court's 2nd Civil Senate under Presiding Judge Dr. Thomas Kuehnen ("Kühnen" in German) reversed the Dusseldorf Regional Court's 4c Civil Chamber on the question of whether the moving parties had a Rechtsschutzbedürfnis--"need for protection under the law" (against an imminent violation)--in this particular case. The three-judge appellate panel concurred with the Munich Higher Regional Court's 2019 decision affirming a Nokia v. Continental anti-antisuit injunction, but begged to differ slightly from the Munich I Regional Court's more expansive framework as laid out in InterDigital v. Xiaomi last year by the Munich court's 7th Civil Chamber under Presiding Judge Dr. Matthias Zigann.

Just like the courts in Munich, the Dusseldorf courts believe that the pursuit of a foreign antisuit injunction against the enforcement of German patents is an illegal attack on property rights protected by Germany's de facto constitution. Even more importantly, just like the Munich I Regional Court, the Dusseldorf Higher Regional Court is of the opinion that an implementer seeking an antisuit injunction may be deemed an unwilling licensee, resulting in a sales ban once a SEP infringement has been identified.

What decided the case for Xiaomi against those HEVC Advance licensors is that there was no specific threat of Xiaomi seeking a Chinese antisuit injunction that would have prevented the patentees from enforcing their German patent rights. The mere fact that Xiaomi had obtained a Chinese antisuit injunction against InterDigital under fundamentally different circumstances was not deemed sufficient by the Dusseldorf appeals court to suspect that the same might happen in the HEVC Advance cases. (By the way, InterDigital and Xiaomi settled last summer.)

The Dusseldorf appeals court did not even see a basis for those HEVC Advance licensors to obligate Xiaomi to inform them beforehand of a motion for an antisuit injunction.

Whether the Munich I Regional Court and/or the Munich Higher Regional Court would have granted an anti-antisuit injunction when faced with the same fact pattern is hard to tell because each case is different and the lower Munich court's criteria for pre-emptive anti-antisuit injunctions are applied to the entire set of facts, with no single criterion necessarily being decisive in its own right. But there is a discernible difference between the Dusseldorf appeals court and the Munich lower court as the latter does attach some importance (in the multifactorial analysis of whether an anti-antisuit injunction should issue) to an implementer's conduct vis-à-vis other SEP holders--which the Dusseldorf appeals court is rather disinclined to take into consideration--as well as to an implementer's refusal to promise in writing not to move for a foreign antisuit injunction.

Munich's anti-antisuit case law is influential in Europe (and potentially beyond). A few months ago, a Dutch court denied Ericsson an anti-antisuit injunction against Apple (which denial was later affirmed by an appeals court) on similar grounds as the Dusseldorf appeals court's reversal of the anti-antisuit injunctions against Xiaomi, but applied some of the Munich logic.

It appears likely that the Mannheim Regional Court and its regional appeals court, the Karlsruhe Higher Regional Court, will reach similar conclusions. Mannheim is a key SEP venue and reasonably protective of IPR owners.

The legal innovator who successfully obtained the first German anti-antisuit injunction (at a minimum, the first SEP-related one) is Dr. Arno Risse ("Riße" in German) of the Arnold & Ruess firm. On an ex parte basis, it was granted by the Munich I Regional Court's 21st Civil Chamber, then under Presiding Judge Tobias Pichlmaier (who has recently been reassigned, at his request, to an antitrust-specialized division). Judge Dr. Hubertus Schacht filled in for Judge Pichlmaier (during the main vacation season) to preside over a hearing on Continental's motion for reconsideration--and affirmed the prior decision, which was ultimately affirmed by the Munich appeals court (6th Civil Senate, under meanwhile-retired Presiding Judge Konrad Retzer). Later, Presiding Judge Dr. Matthias Zigann of the Munich I Regional Court's 7th Civil Chamber further developed the criteria to be applied to motions for anti-antisuit injunctions. And now the Dusseldorf Higher Regional Court agrees with the Munich stance on anti-antisuit injunctions (including the potential stigmatization of an implementer as an unwilling licensee) to a larger extent than it differs from it on the hurdles for a pre-emptive anti-antisuit injunction.

Arguably, the Munich court's decisive action against foreign antisuit injunctions has been the primary reason why no SEP implementer appears to have employed that tactic in about two years.

Finally, I wish to thank the Loeffel Abrar firm for drawing my attention to this decision via Twitter.

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Dusseldorf appeals court narrowly avoids divergent outcomes in Via v. TCL patent cases concerning Sisvel v. Haier FRAND defense, deems TCL unwilling either way

There are two key reasons for which cases with overlapping issues get consolidated in the U.S. (if necessary, this may even involve a venue transfer). The first one is that divergent decisions are highly undesirable. The second is efficiency (for the court and the parties). Not so in Germany, where each patent is litigated separately unless two or more patents are from the same patent family. Inconsistent rulings by German courts are possible for another reason: judges aren't bound by precedent (no stare decisis etc.).

With respect to standard-essential patents (SEPs), there was a period of a few months during which one patent litigation division of the Mannheim Regional Court--the Second Civil Chamber under Presiding Judge Dr. Holger Kircher--applied EU case law (Huawei v. ZTE) differently from the other--the Seventh Civil Chamber under Presiding Judge Dr. Peter Tochtermann. I declared myself in agreement with the latter, but then came the first of two Sisvel v. Haier decisions by the Federal Court of Justice, and Judge Kircher as well as his colleagues in Munich "won."

There still was--and maybe even is--a pocket of resistance to Sisvel v. Haier in Dusseldorf. Judge Dr. Thomas Kuehnen ("Kühnen" in German), who presides over one of two patent-specialized divisions of the Dusseldorf Higher Regional Court (regional appeals court), made no secret of his disagreement with Sisvel v. Haier, and Judge Sabine Klepsch, who presides over one of three patent-specialized divisions of the lower Dusseldorf court, made a preliminary reference to the European Court of Justice in Nokia v. Daimler one part of which effectively called into question the Sisvel v. Haier approach to the FRAND defense. But Nokia and Daimler settled (by now, another car maker has taken taken a vehicle-level license from Nokia, like Daimler but without litigation). The preliminary reference was inevitably withdrawn. And earlier this month, Judge Dr. Daniel Voss ("Voß" in German), who presides over another patent-specialized division of the lower Dusseldorf court, appeared to be speaking on his entire court's behalf when he said at a top-notch Mannheim conference that they wouldn't seek a review of Sisvel v. Haier by the ECJ anymore.

But is there a possibility of the Dusseldorf appeals court at some point challenging Sisvel v. Haier by way of a request for a preliminary ECJ ruling? I'd be extremely surprised if such a preliimnary reference came from the appellate division under Presiding Judge Ulrike Voß ("Voss" in German, and to my knowledge the various "Vosses" in the German patent judiciary are from different families). About Presiding Judge Dr. Kuehnen I'm not so sure. He's always considered himself smarter and more qualified than the patent-specialized division of the Federal Court of Justice. His book on German patent infringement proceedings is cited over and over--it's almost as influential in German patent law as Areeda/Hovenkamp is in U.S. antitrust law.

I may be wrong, but my guess is that Judge Kuehnen will make a preliminary reference if and when the right case along before his retirement in a few years. A set of cases brought by Via Licensing pool contributors against Chinese electronics company TCL (or, more specifically, a TCL subsidiary named TCT), however, would be the wrong vehicle for that purpose because of TCL's dilatory tactics in negotiations with the patent holders.

I already reported on that set of cases two months ago, without knowing the names of the parties. In fact, I had obtained all of my information from a Bardehle Pagenberg article.

Meanwhile, the appeals court has spoken: not in the form an appellate judgment, but TCL's motions to stay the enforcement of Dolby's and Philips's injunctions were denied. That outcome is another victory for Eisenfuhr Speiser's Dr. Tilman Mueller ("Müller" in German), who is an outlier in a purely geographic sense among German patent litigators--he's based in Hamburg--but whose cases sometimes shape the development of German patent case law. The first time I took note of his work was when the Munich I Regional Court referred a question relating to the availability of preliminary injunctions over battle-untested patents to the ECJ.

It's now rather likely that TCL will settle and take a pool license from Via. Therefore, it's doubtful that we'll get to see an appellate opinion in those Via v. TCL cases (just to avoid any misunderstanding, Via Licensing doesn't own those patents, thus can't sue; but Philips and Dolby are Via contributors, so I chose that simplified--albeit slightly imprecise--caption).

That said, the appeals court's decisions denying TCL's motion to stay are interesting, if for no other reason because they show that the Dusseldorf appeals court may be internally divided over Sisvel v. Haier:

• Judge Kuehnen's panel entered its order on July 14, mentioning Sisvel v. Haier (by its official caption, "FRAND-Einwand" ("FRAND affirmative defense")) only once on a total of seven pages (and not in a particularly important context), while Judge Voss's decision, handed down six days later, cites to both Sisvel v. Haier decisions a total of 19 times (spread out over 16 pages).

• Judge Kuehnen chose to duck Sisvel v. Haier: he found TCL to be (not his words, but from what I read between the lines) a typical case of an unwilling licensee even under the pre-Sisvel v. Haier standard, where the hurdle was actually low for a defendant to reach the point where the courts would have analyzed a SEP holder's licensing offer from a FRAND angle. The lower court had made the injunction particularly appeal-proof by determining that TCL was an unwilling licensee under Sisvel v. Haier as well as the standard under the previous application of Huawei v. ZTE by the German courts. For the plaintiffs, that's the strongest basis imaginable: it's like having not only a castle, but also a moat around it.

• Judge Ulrike Voss sort of ducked and embraced Sisvel v. Haier at the same time, which may sound like an impossible combination (like "have your cake and eat it"), but let me tell you how she did it: her panel decided that it cannot possibly have been clearly erroneous for the lower court (Judge Dr. Daniel Voss) to apply Sisvel v. Haier (i.e., Federal Court of Justice case law). In other words, even if one agreed with Judge Kuehnen that Sisvel v. Haier is not a proper application of EU case law, the standard of review for staying an injunction in Germany is that there must be clear reversible error, and following the nation's highest court (with respect to almost every patent case, as it's very rare that any issues reach the Federal Constitutional Court) can't constitute a clear error.

  Without stating on a totally definitive basis that she recognizes Sisvel v. Haier, Judge Voss found that in connection with a motion to stay enforcement, she did not have to reach the question of whether her colleague Judge Kuehnen or the Federal Court of Justice was right. (It would be different situation if TCL kept on holding out and an actual appellate ruling became necessary.)

  On that basis, Judge Voss then rejects a variety of TCL's appellate arguments by citing to the Sisvel v. Haier pair of decisions. One example (of many) is that the Federal Court of Justice had found in Sisvel v. Haier that it's not a get-out-of-jail-free card if a defendant makes a deposit.

The TCL cases didn't force the Dusseldorf appeals court to come clean on Sisvel v. Haier at the motion-to-stay stage, and most likely won't have that effect should there even be full-blown appellate proceedings. But at some point there may be another SEP injunction case that serves as a litmus test: it would have to be a case that clearly has to be decided in defendant's favor under the pre-Sisvel v. Haier standard but similarly clearly must be decided in plaintiff's favor under Sisvel v. Haier I & II. If such a case is assigned to Judge Voss's panel, I guess the decision will be made in accordance with Sisvel v. Haier, though she--while serving on the lower court--made the preliminary reference in Huawei v. ZTE (the only Dusseldorf trial I ever attended). Should a "litmus test" type of case land on Judge Kuehnen's desk, and should he be reasonably confident that the parties won't settle, then a preliminary reference--as maybe his last act of rebellion against the Federal Court of Justice prior to his retirement--is a possibility. How likely it is that such a case is heard by Judge Kuehnen is hard to say. Most SEP holders prefer the Munich and Mannheim courts anyway.

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Nokia withdraws interlocutory appeal of ECJ referral of component-level patent licensing question: dilatory tactics, disrespectful style

We're witnessing the third stage of Nokia's decline. First it failed to stay competitive in the handset business. Then its business model turned ever more trollish and its patent litigation strategies ever more abusive. The third and latest downturn is that Nokia is now abusing not only its patents, but also its procedural options in litigation.

Throughout almost 11 years of blogging about patent litigation, I have acknowledged on numerous occasions when parties played the litigation game smart. Very recently, I even gave automotive supplier Continental credit for an interesting strategy in a Delaware state court, even though I bashed them in 2019 for their U.S. antisuit motion (which indeed went nowhere). Up to a certain point, litigants--whether plaintiffs or defendants--are simply in their right to exercise their procedural rights for tactical purposes. But beyond that point, such behavior is no longer legitimate, even if it is still technically legal. For example, trolls that file dozens of cases against a single defendant over the course of a few months--or simultaneously sue hundreds of defendants--give patent assertion a bad name. I still have the greatest respect for the skills of Nokia's in-house litigators and outside counsel, but in recent months it has gone a bit too far with its withdrawals of cases just on the eve of trials or decisions.

In December, Nokia dropped two patent infringement cases against Daimler in Dusseldorf just before trial (at a point where the court presumably had already spent a lot of time studying the pleadings and preparing the trial), only to refile in Munich. And now, just before Presiding Judge Dr. Thomas Kuehnen ("Kühnen" in German) of one of the patent-specialized divisions of the Dusseldorf Higher Regional Court was going to rule on Nokia's interlocutory appeal of the lower Dusseldorf court's preliminary reference to the European Court of Justice, Nokia has withdrawn its appeal. Today a spokesman for the Dusseldorf appeals court informed me by email (appellate case no. 2 W 21/21).

From the beginning, Nokia knew that this interlocutory appeal was a bit of a long shot. Its appeal talked in more detail about whether it was admissible at all than about the question at issue. After the lower court didn't reconsider, this went up to the regional appeals court, and was assigned to the Second Civil Senate, whose aforementioned presiding judge took a very clear position on component-level SEP licensing in an article he published in GRUR, the leading German IP law journal, in 2019. For Judge Dr. Kuehnen, the order on Nokia's interlocutory appeal, which he had presumably been working on for some time, would have been an opportunity to provide his input to the top EU court. Not so anymore. Nokia abused the appellate process to engage in stalling, and apparently never really wanted a decision by the regional appeals court.

When pursuing its infringement cases, Nokia can't wait to get rulings (with the exception of those infringement cases it dropped in Dusseldorf because it probably expected them to be stayed, if not rejected). It's typically the defendants to those infringement complaints who seek to extend filng deadlines, move to file post-trial briefs, and so forth. It would have been better for Nokia's credibility to act consistently, as opposed to stalling in Dusseldorf while insisting on speedy dispute resolution in other venues.

The question of component-level licensing is the key issue in Nokia's--and various other parties'--automotive patent cases. Whether one prefers one outcome of that ECJ referral or another, clarification will help, and if the ECJ ruling provides clarification (there is always a risk of a decision raising new questions), licensing negotiations will benefit from such guidance. Why does Nokia prefer to delay such resolution? Are they so worried they're going to lose? Is Nokia's plan to gain leverage over Daimler in some infringement case in the meantime? In light of a key appellate decision Nokia lost in Karlsruhe (where all appeals from Mannheim go) on Friday (which I'll discuss in the next post), it's just become even harder for Nokia to enforce any SEP injunction against Daimler in the near term.

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Dusseldorf Regional Court stands by CJEU referral of patent licensing questions, Nokia's interlocutory appeal goes up to Dusseldorf Higher Regional Court

While the four members of the panel discussion I published as a podcast earlier this week expressed a diversity of views, there was a consensus about the potentially high impact of the Dusseldorf Regional Court's decision to refer a set of standard-essential patent (SEP) licensing questions to the Court of Justice of the European Union (CJEU). But those questions haven't arrived in Luxembourg (the CJEU's seat) yet, as Nokia brought an interlocutory appeal last month.

The way those interlocutory appeals work in Germany is that the lower court firstly treats it as what in the U.S. would be called a motion for reconsideration. If it changes mind, the appeal has succeeded. Otherwise the appeal will go up to the next higher court.

The latter is what has happened here. Just today, the Dusseldorf Regional Court's 4c Civil Chamber (Presiding Judge: Sabine Klepsch) handed down its decision and, as presumably everyone (even Nokia) expected, defended its referral order. Prior to doing so, the panel held that the decision isn't appealable in the first place. Appealability was addressed by Nokia's outside counsel from the Arnold & Ruess firm at length, but to no avail. So from the lower court's perspective, Nokia's appeal is both procedurally impossible (as the court noted that most German courts consider those appeals inadmissible and the cases cited by Nokia were deemed inapposite) and substantively meritless. By disagreeing with Nokia in only one of those two ways, the court wouldn't have had to reach the other part, but sought to make its order doubly appeal-proof.

So there are two hurdles for Nokia to overcome now before the appeals court, the Oberlandesgericht Düsseldorf (Dusseldorf Higher Regional Court). I'd be very surprised if this interlocutory appeal succeeded there. Affirmance may take a few weeks, and then, finally, the issues raised will be put before the top EU court.

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Nokia's attempt to evade referral of antitrust questions to top EU court faces high hurdles: questionable appealability, deferential standard of review

Nokia dreads Dusseldorf. That wasn't always so. For many years, Nokia filed cases in that city even though its disputes typically got settled on the basis of decisions that came down faster in Mannheim and Munich. But last month's order to refer to the Court of Justice of the EU multiple legal questions related to standard-essential patent (SEP) enforcement has left Nokia, well, disgruntled.

Just a few days before trial, Nokia withdrew two cases against Daimler and one against Lenovo (only to refile in Munich).

But Nokia can't derail the CJEU referral by means of withdrawing the case in which the referral happened. Once a plaintiff has formally (re)stated the prayers for relief at trial time in Germany, any withdrawal would require the defendant's consent. Daimler, however, now has a strong interest in getting the question of component-level licensing clarified. Nokia could solve the problem by getting leverage over Daimler in some other venue (coercing Daimler into a settlement that would result in a stipulated dismissal of the case that would otherwise be decided by the CJEU), but on Thursday Nokia is going to be dealt a serious blow in Munich.

Last Thursday, Nokia filed a 29-page "Sofortige Beschwerde" (the closest thing in Germany to what would be called an interlocutory appeal in the U.S.). Initially, the court that made the decision complained of (here, the Dusseldorf Regional Court) decides whether to grant relief or whether to refer it to the appeals court.

Large parts of Nokia's filing, signed by Arnold & Ruess's Tim Smentkowski, deal with the very first hurdle in front of Nokia's interlocutory appeal of the referral order: appealability. The Higher Regional Court of Cologne--just 30 miles south of Dusseldorf and in the same state, North Rhine-Westphalia--held in a different case that a referral order is not appealable because it does not interrupt a case; much to the contrary, that court held a referral is simply part of the judicial process.

Given that the Dusseldorf court, however, noted in its decision that Nokia may appeal the order, it appears less likely that the appeal will be rejected on that basis.

The most likely outcome is for the appeal to be heard, but for the order to be upheld as the lower court enjoys broad discretion with respect to referrals. The assumption is that the judges below have the right to request clarification from the top EU court. Only if a referral appeared wholly unreasonable--the rather deferential standard of review here is comparable to an abuse of discretion--would the appeals court overturn it. But here, the judge presiding over one of the two patent-specialized divisions of the Dusseldorf appeals court, Judge Dr. Thomas Kuehnen ("Kühnen" in German), is known to be in favor of this referral. Even before any major court decision on the question of component-level access to exhaustive SEP licenses came down, he already expressed his views on this topic in an article last year.

That said, Nokia's appeal might succeed with respect to the second set of questions the Dusseldorf court decided to present to the CJEU. That set of questions is not about component-level SEP licensing. It's about how to apply the Huawei v. ZTE framework. Nokia's position that those questions aren't really outcome-determinative in Nokia v. Daimler actually makes sense to me. Now, it would indeed be good if those questions were referred to the CJEU as well, given how things are going awry in Germany, but Nokia v. Daimler may not constitute an appropriate vehicle.

I believe Nokia's interlocutory appeal will be resolved swiftly, but whether it will happen before the Holiday Season is another question. Nokia may have brought that appeal primarily to cause some--even if presumably just limited--delay.

A further appeal to the Federal Court of Justice isn't possible. Otherwise there would be a risk as a presiding judge of the Federal Court of Justice--a judge with a terrible legacy in patent and antitrust law who will thankfully retire (by law, not choice) next year (which is why I don't see a point in even naming the judicial equivalent of a "lame duck" politician here at this stage)--spoke out against this referral.

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Presiding judge of patent-specialized panel of Dusseldorf appeals court expressed bias against Asian defendants

For quite some time, the German patent judiciary has had a reputation of being plaintiff-friendly, but this year the system has simply gone off the deep end in terms of highly problematic decisions, all the way up to the Federal Court of Justice, which hit a new low with its Sisvel v. Haier ruling. Those courts should faithfully apply the law, but more than anything else they are simply agenda-driven.

It's beyond ridiculous that some German patent infringement judges tell their government--which may adopt a patent reform bill this month, which would then be submitted to the legislature--that plaintiffs flock to Germany because of the quality of the German patent judiciary. That is actually an insultant to human intelligence: common sense says that patent holders will simply sue where they expect to get leverage. They'd rather win on a clearly erroneous basis (especially if the appeals courts are typically too hesitant to stay enforcement before the defendant is forced to settle) than lose on a legally correct basis. Germany just offers the unique combination of

• a large market (i.e., an injunction has a substantial effect on revenue production),

• a draconian injunction regime,

• a "bifurcation" system that enables patentees to get leverage by asserting patents that shouldn't have been granted in the first place, and

• a swift process from complaint to decision.

If you transplanted those German patent courts to a small market, such as Switzerland, they'd lose most of their "business" (all other things being equal). And if those judges had the intellectual honesty to rely to a reasonable extent on technical expert witnesses (like their counterparts in various other jurisdictions) as opposed to claiming they can resolve pretty much everything (except validity, as they prefer not to stay their cases over validity doubts) as a matter of law, those courts could no longer claim to be "rocket dockets."

It's undeniable that the huge number of cases those judges get to decide (about two in three European patent infringement actions are brought in Germany) enables them to build extensive experience. But the broken system--with the future Unified Patent Court promising more lucrative and more prestigious posts---incentivizes bad decisions in favor of plaintiffs ("forum selling") over well-reasoned decisions. What's going on right now is a race to the bottom between certain courts that come up with ever more troubling and far-fetched theories only to please patent holders.

With all that's going wrong there, this post is part of a continuing effort to to expose and discuss certain issues. Some of this may help policy makers to better understand the extent of the problem of a patent judiciary that pursues its own interests in attracting infringement cases at the expense of the economy and to the detriment of innovation. The makers of the world's most innovative products dread the German patent judiciary that offers itself as a tool to patent trolls looking for extortionate leverage.

Those judges are the opposite of protectionists. They enjoin local companies just like foreign defendants. No qualms ever. But at least one German patent judge--and a relatively powerful one--appears to harbor prejudice against Asian defendants.

On January 16, 2020, Judge Ulrike Voss ("Voß" in German), who presides over one of the two patent-specialized senates (panels) of the Oberlandesgericht Düsseldorf (Dusseldorf Higher Regional Court, a regional appeals court) gave a speech at Munich's Ludwig Maximilian University on access to injunctive relief under the current legal framework and after the enactment of a hypothetical patent reform bill. She took some questions from the audience, and when everyone was walking out (the university hosted a reception outside the lecture hall, she was approached by a BMW in-house patent counsel and engaged in a short conversation with him. As the two were talking, other people were standing behind her or passing by. The conversation was, like her speech, about Germany's near-automatic injunction regime and potential reform, and she asked BMW to understand why the situation was the way it is:

"I hear you, but we have to deal with unrepentant infringers where injunctions are absolutely necessary. I don't want to... but, let me just say they are frequently from Asia."

I do know that some of Judge Ulrike Voss's decisions in recent years have been controversial, such as a case in which she identified an "infringement" even when there was no evidence in the record with respect to at least one critical claim limitation. What I don't know is whether she's systematically disadvantaged Asian defendants throughout her career. But what she told that BMW employee, with bystanders and passers-by hearing her say so (she spoke somewhat quietly, but it was audible), calls her impartiality into question.

The Dusseldorf appeals court has another patent-specialized senate (which in fact had been around for much longer than the new one to which Judge Voss was assigned). Its presiding judge is Dr. Thomas Kuehnen ("Kühnen" in German), author of the leading reference work on German patent infringement litigation. While I generally consider him to be far too patentee-friendly as well, he has adjusted his positions on standard-essential patents (SEPs) in recent years, which is a positively surprising development but of limited help as long as the Federal Court of Justice favors patent trolls like Sisvel over defendants (whether from Asia or elsewhere)...

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Nokia swimming against judicial tide with its dogged refusal to license automotive component makers

Not only has the European Commission's Directorate-General for Competition (DG COMP) resumed its preliminary investigations of Daimler's and four of its suppliers' antitrust complaints over Nokia's refusal to license automotive suppliers, but the former handset maker may come under pressure in a variety of jurisdictions.

Nokia apparently hopes to gain leverage from a German court ruling scheduled for next week's Thursday (earlier this week, the Munich I Regional Court's press office confirmed that the decision was, for now, still slated for that day), though the coronavirus crisis may limit the immediate impact on Daimler's German sales while the appeals court would review a hypothetical Nokia win. Daimler brought an extremely strong invalidity contention, fulfilled its obligations under the Court of Justice of the EU's Huawei v. ZTE ruling to be shielded from an injunction, and couldn't have been sued by Nokia in the first place had the Finnish company lived up to its FRAND licensing promise and licensed Daimler's suppliers. Furthermore, banning an entire car over one of thousands of little elements of a wireless standard would not be a proportionate remedy in accordance with Article 3 of the European Union's IPR Enforcement Directive.

The third point--the obligation to grant an exhaustive component-level license on FRAND terms to suppliers at any level of the supply chain--is what the dispute is all about. In addition to those ten Nokia v. Daimler patent infringement cases (of which Nokia has already lost one and will likely lose many more), let's not lose sight of Huawei's German antitrust lawsuit aiming to obligate Nokia to make a component-level FRAND licensing offer. That case will presumably go to trial later this year. The Dusseldorf Regional Court has taken favorable positions on component-level licensing before, and as I mentioned in the post I just linked to, the presiding judge of one of the patent-specialized panels of its appeals court (Judge Thomas Kuehnen of the Dusseldorf Higher Regional Court) explained in an article last year that SEP holders have an obligation under Art. 102 TFEU (the abuse-of-dominant-position paragraph of EU law) to license any implementer of a standard who so requests.

Assuming Nokia loses in the two Dusseldorf courts, it could appeal the matter further to the Federal Court of Justice (the highest German court to hear patent cases since the Federal Constitutional Court would deal with only a narrow set of constitutional questions such as the right to be heard). The Dusseldorf Higher Regional Court could allow a further appeal. Otherwise Nokia would have to petition the top court first (comparable to a cert petition in the U.S.).

Nokia's chances at the top level are waning, though. I'm not aware of a single statement by a patent judge of the Federal Court of Justice endorsing a refusal to license component makers, but at least two of them have endorsed Judge Kuehnen's theory of a right to sue for a FRAND offer:

• On November 5, 2019, Judge Fabian Hoffmann gave a talk at a Munich conference entitled "FRAND 2019" and presented a slide that contained the following ringing endorsement of Judge Kuehnen's article on a duty to license component makers (click on the image to enlarge; this post continues below the image):

  

  The highlighted word means "compelling" or "persuasive." The context is that of a "license to all comers" and the second line states that licensing anyone who asks for it is simply in line with Art. 102 TFEU. I respect copyright, so I copied only the part of Judge Hoffmann's slide that was necessary to show his endorsement of Judge Kuehnen's position.

• I have heard from a perfectly reliable source that another member of the patent division of the Federal Court of Justice--and notably a member known for being extremely sympathetic to patentees (which also applies to Judge Kuehnen, by the way)--stated in a conversation at a relatively recent conference that he, too, agrees with Judge Kuehnen.

Any of those German courts could refer the question of component-level licensing to the CJEU in Luxembourg. It's doubtful whether that would be necessary given the clarity of CJEU's Huawei v. ZTE ruling with respect to the obligation to grant a license any implementer.

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