Four of numerous flaws of proposed EU SEP Regulation are illustrated by OPPO's Swedish victory over Nokia: binary register won't reflect non-binary world, and jurisdictional differences matter

This is a follow-up to my Thursday post on a Nokia v. OPPO decision by the Swedish Patent and Market Court that held a pair of declared-essential patents (from the same family) invalid, but also an addition to my commentary (since March) on the unbelievable fundamental flaws of the proposed EU regulation on standard-essential patents (EU SEP Regulation).

The two SEPs in question were deemed invalid by the Swedish court, which was a major win for OPPO, but Nokia had obtained and enforced a German injunction over them. Due to Germany's bifurcation system, the infringement ruling came down prior to the resolution of a parallel nullity action. Nokia had also successfully asserted those patents against OPPO in the Netherlands and the United Kingdom, two jurisdictions where a full invalidity defense is available. Nevertheless, the four-judge panel in Sweden made its own decision and begged to differ from their colleagues in a couple of other countries.

Let's briefly look at this from the EU SEP Reg angle--actually, from four angles related to that ill-conceived legislative proposal:

1. If the EU SEP Reg was already in force, and if the envisaged SEP Register had been implemented, those two patents would have to be removed from the register if Nokia made a request pursuant to Art. 25(1)(b): "invalidation of the patent by a competent authority" (which the Swedish Patent & Market Court undoubtedly is).

   The proposal does not say anything about how to resolve conflicting decisions from different jurisdictions.

   As a result, Nokia would be allowed to enforce those patents without having to comply with any of the provisions of the EU SEP Reg. Simply put, those patents would be treated as a non-SEPs with a view to the regulation, though national courts might nonetheless apply Huawei v. ZTE. The patent holder might consider that flexibility gain to far outweigh the negative effect of a lower essentiality rate and reduced number of declared-essential patents. Here, with Nokia having a huge SEP portfolio, the removal of a couple of patents from the database wouldn't adversely impact the overall valuation of the relevant portfolio.

2. The fact that the Swedish decision differs from the ones in the UK and the Netherlands, and from the probability assessment of the Mannheim Regional Court, doesn't make it necessarily wrong. But it clearly cannot be ruled out that a Swedish appeals court might overrule the Patent and Market Court, given that some other judges have also deemed those patents valid. I personally believe the Swedish decision is very well-reasoned and other jurisdictions should be persuaded by it, but you don't know until they have all decided. Assuming only for the sake of the argument that the decision was reversed, the EU SEP Reg--based on the current proposal--would not even have a mechanism in place for putting those two patents back.

3. When criticizing the EU SEP Reg, I've said repeatedly that the outcome of essentiality checks can depend on what jurisdiction's claim construction and other legal standards are applied. The proposal does not specify that, and there is no uniform standard across the EU. The Swedish decision was based on validity, and an invalid patent is by definition non-essential. What happened here can also happen in connection with an infringement analysis. The starting point is always claim construction. And after that one, there are other steps that can differ between countries.

   It doesn't make sense to assume that a patent is essential or not. It's not binary. It may be essential in some jurisdictions and non-essential in others.

   While I agree with the criticism voiced by one of the researchers commissioned by the EC's Directorate-General for the Internal Market, Dr. Justus Baron, of the aggregate royalty determination part of the proposal, Dr. Baron and I have expressed different views on whether jurisdictional differences make a practical difference for the envisioned essentiality checks of samples of patents. The fact that a Swedish court invalidated two SEPs deemed valid in a couple of other European jurisdictions supports my view that jurisdictional differences pose a confidence problem: you need even larger samples then, and even the assessment of all patents of a given portfolio may be unacceptably unreliable if each European patent is analyzed under only one jurisdiction's standard while in litigation you may get one outcome in the Netherlands and another in Sweden.

4. At a recent SEP conference in Warsaw, Bardehle Pagenberg's Professor Tilman Mueller-Stoy ("Müller-Stoy" in German) said something I also mentioned in the post I just linked to: essentiality determinations are not too meaningful if validity isn't analyzed as well. The Swedish Nokia v. OPPO situation is now the latest example.

An EU proposal that treats a dynamic environment as static and a non-binary world as binary is not going to do any good. It's going to be a waste. The courts of law may in the end not be persuaded that the EU's essentiality checks, essentiality ratios, aggregate royalty rates, and bilateral FRAND determinations are relevant or helpful. If something flies in the face of what the real experts (as opposed to those who drafted the proposal) know, the actual decision makers may mimimize the impact of the EU SEP Reg, just like the 2021 patent injunction "reform" in Germany has made no real-world impact.

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OPPO wins in Swedish court as two of Nokia's standard-essential patents (on which it prevailed in Mannheim) are declared invalid; also, Nokia's UK SEP injunction can't be enforced pending appeal

More than two years have passed since Nokia sued OPPO, and more than one year since OPPO was forced out of the German market by the enforcement of various patent injunctions, at least some of which were dubious from the beginning. Nokia still doesn't have leverage over OPPO. In the foreseeable future, there will be only one FRAND determination in place between these parties, and that one will be made by a court in Chongqing, China.

In the first part of this post I have an update on the Swedish part of the earth-spanning set of disputes. Subsequently I'll also discuss the UK situation, which is pretty good for OPPO in practical terms.

In June 2022, it became known that Nokia filed complaints in Finland and Sweden over two patents from the same patent family: EP2981103 and EP3220562, both on an "allocation of preamble sequences." For the avoidance of doubt, Nokia asserted both patents in both jurisdictions.

Over those patents, Nokia won its first standard-essential patent (SEP) injunction against OPPO in Mannheim last year. The Mannheim Regional Court interestingly agreed with Nokia that it was un-FRAND-ly for OPPO to offer a lump-sum royalty, but the same Nokia took the very opposite position later in a UK litigation where it argued that only a lump-sum was acceptable.

In retrospect the Mannheim rulings against OPPO appear more questionable than ever. In July, a French court invalidated two Nokia patents, one of which is a non-SEP that I considered very clearly invalid, but over which the Mannheim court nevertheless granted an injunction (which its appeals court, the Karlsruhe Higher Regional Court, inexplicably allowed to be enforced).

Today the Swedish Patent and Market Court declared the two SEPs underlying the June 2022 injunction--EP'103 and EP'562--invalid with respect to its juridiction (Sweden). And it even did so on three independent grounds relating to partly different claims:

1. The original patent applications lacked support for the combination of cyclic interpretation and the second embodiment described iin the specification. Therefore, claim 1 of EP'103 and claim 4 of EP'562 were deemed to contain impermissibly added subject matter.

2. Either patent's claim 1 is a device claim with method features, but those method features do not affect the properties or the configuration of the device, which is why the court found they must be disregarded in the novelty analysis. As a result, the patents are invalid based on anticipation.

3. Claim 8 of EP'103 and claim 9 of EP'562 are independent method claims, but the Swedish court found them to cover a purely intellectual aact (as opposed to performing a specific technical function).

To be fair, the Mannheim court was not alone in siding with Nokia over those two SEPs. A Dutch court and a UK court did so, too. But now there is a very well-reasoned pair of rulings from the Swedish Patent and Market Court that states three reasons for invalidation when any single one of them would have been sufficient. It remains to be seen whether those patents will at some point be invalidated elsewhere.

EP'103 and EP'562 are now going to be harder for Nokia to enforce, as there is a possibility of courts in other jurisdictions being persuaded by the Swedish court's reasoning. This shows that Nokia is paying a significant price for its protracted dispute with OPPO.

Not only is this becoming ever more costly (including hard-to-quantify costs such as the invalidation of key patents) but the question of the "end game" must be asked as well. At this point it appears that the key jurisdiction is going to be China. That's because the Chongqing court's FRAND determination will be made soon, and while the Chongqing decision cannot be enforced during an appeal, it will most likely become enforceable prior to any other FRAND determination anywhere in the world that Nokia could point to.

I have now obtained copies of Mr Justice Richard Meade's latest Nokia v. OPPO decisions relating to remedies. He's given the topic a lot of thought and arrived at a position somewhere in the middle between the two parties' views:

• While Nokia technically has a UK SEP injunction against OPPO now (based on Mr Justice Meade's application of existing appellate case law in the UK), that one has been stayed pending OPPO's appeal. The balance of hardships weighed against forcing OPPO out of the UK market the way it was forced out of the German market last year.

• A very interesting question in that appeal is whether OPPO's willingness to take a license on whatever terms are in fact FRAND, but based on the upcoming Chongqing rate-setting decision, is a sufficient basis for not enjoining OPPO in the UK. A second point is that OPPO argues it actually already has a license under French law (based on Nokia's ETSI FRAND pledge), just that the exact financial terms have not been set. That argument had also been made by Xiaomi in the dispute with Philips. The question about whether OPPO is a willing licensee based on its commitment to take a license on the terms to be decided in Chongqing appears more likely to succeed as far as I can tell. And Mr Justice Meade takes that question seriously enough that he even authorized "leapfrogging" over the Court of Appeal and going straight to the UK Supreme Court (a decision that also has to do with the Optis v. Apple dispute, where the UKSC accepted to hear an appeal by Apple).

• It's interesting how the parties' perspectives have changed in both Nokia v. OPPO and Optis v. Apple. The plaintiffs brought their UK actions because they hoped to be able to force the defendant into a global portfolio license on terms that would be reasonably attractive to the respective right holder. But after the actual FRAND determination was made in Optis v. Apple, and also in light of the prior InterDigital v. Lenovo decision by Mr Justice James Mellor, it's now actually the defendants who are more interested in taking a global license on UK-determined terms than the plaintiffs are in granting one. As a result, OPPO would actually be quite happy now to get a UK FRAND decision, but Nokia would rather wait.

• Mr Justice Meade already had everything set to hold the UK FRAND trial in a few weeks' time. The parties have obviously already made quite an effort preparing for that trial. But all things considered, including that the FRAND terms to be decided there would presumably not result in a near-term license agreement and would become known close to the end of the relevant license period (which is mid-2021 to mid-2024), he decided to stay that trial.

• Time will tell whether it was the right decision on Nokia's part to request a stay of the UK FRAND trial. While perfectly understandable in light of the recent outcomes in InterDigital v. Lenovo and Optis v. Apple, that tactical decision now enables OPPO to argue that it was quite willing to obtain useful guidance from the UK court.

• Nokia can enforce a UK non-SEP injunction, but OPPO will apparently just work around it, rendering that Nokia win inconsequential in practical terms.

Again, I have great respect for Mr Justice Meade's thoughtful approach and balanced decisions. The question is not whether any of the parties or I would agree 100%. On this set of issues, you may get as many opinions as the number of people you ask. But this judge tried to be fair, and the outcome is a nuanced one.

If Nokia doesn't have a strategy that is likely to give it decisive leverage over OPPO (interim payments etc. are just symbolic), it should try to settle this dispute. OPPO has surprised a lot of people, including me, with its determined and sophisticated defense. At some point the U.S. also pulled out of Vietnam.

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Nokia filed standard-essential patent cases against OPPO in Finland and Sweden, and confirms Chinese antitrust agency sent questionnaire to them and other SEP holders

It's a very significant setback for implementers of standard-essential patents (SEPs) that three U.S. government agencies (DOJ, USPTO, NIST) neither agreed on a new SEP policy nor reinstated the Obama Administration's licensee-friendly policy position. Companies like Apple--whose motion to stay Ericsson's assertions of three 5G SEPs in the Eastern District of Texas was denied and left the judge puzzled by Apple's "hot-then-cold" positions--had hoped to use a trend reversal in the U.S. as they are trying to persuade courts and policy makers in other jurisdictions to weaken SEP enforcement.

At the moment, China is actually the jurisdiction in which SEP holders must tread carefully to avoid further regulatory scrutiny. As MLex's Khushita Vasant reported in March (the article is paywalled), China's competition authority, the State Administration for Market Regulation (SAMR), sent questionnaires to SEP holders including--but not limited to--Nokia and Ericsson a couple of months ago.

To me this suggests that China is not deterred by the European Commission's complaint with the World Trade Organization (WTO) over its SEP case law. Instead, the Chinese government is serious about enforcing the antitrust laws not only against certain Internet companies (which affected the stock price of some of them) but also in connection with intellectual property rights.

Upon request, Nokia has provided the following statement to me:

"Along with a number of other companies, we have received a questionnaire from the SAMR of China. We welcome transparency on these topics and are sharing information with SAMR. Our licensing practices have been extensively reviewed by competition authorities including the Chinese authorities on a number of occasions, with consistently positive outcomes. We have no reason to believe that outcomes from such reviews would be any different at this time."

When competition agencies send out first questionnaires in a given context, it may or may not lead to formal investigations. Nokia is currently suing two major Chinese smartphone makers--OPPO and Vivo--and those companies are countersuing over 5G SEPs of their own. Chinese companies are among the leading filers of digital communications patent applications. Far be it from me to consider patent counts a perfect metric for innovation, but they are always a starting point and it takes A LOT more than unsubstantiated claims by economists to prove discrepancies in average per-patent value.

Nokia's dispute with OPPO is apparently escalating. When Nokia's enforcement campaign began last year, cases were filed in four Western European countries (Germany, the Netherlands, the UK, and Spain), as well as in India, Indonesia, and Russia. Now I've learned that on May 9, 2022, Nokia filed infringement lawsuits in two more European countries: Finland (where it is headquartered) and Sweden.

In the Helsinki Market Court and the Stockholm Patents & Market Court, Nokia is asserting two patents (both patents in both of those courts) from the same patent family: EP2981103 and EP3220562, both on an "allocation of preamble sequences."

EP'103 won Nokia a Mannheim injunction against Daimler two years ago, though it didn't get enforced before those parties settled. It is also presently being asserted against OPPO in Mannheim (where I attended a recent trial and considered one of OPPO's non-infringement arguments availing), the UK, and the Netherlands. EP'562 is being asserted in Mannheim and the Netherlands, but not the UK.

OPPO is countersuing Nokia over 5G patents. The Munich I Regional Court recently held a first hearing in one of those cases.

All in all, the Nokia v. OPPO/OPPO v. Nokia dispute spans ten countries now:

• IAM reported in November that OPPO asked a Chinese court to set a global FRAND rate;

• Nokia filed infringement suits in India, Indonesia, and Russia; and

• European countries in which Nokia cases are pending include Germany (where OPPO is countersuing as I mentioned), the UK, the Netherlands, Spain, Finland, and Sweden.

Prior to the current dispute, the parties had a license agreement in place for three years. Nokia filed suit within days of expiration of that license. The parties must be far apart, but no numbers have been discussed in open court.

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European and German patent stats confirm China has taken lead over U.S. in digital communications patent filings: Huawei, Ericsson lead the pack; OPPO ahead of Nokia; Apple is nowhere

Yesterday, the German Patent & Trademark Office (Deutsches Patent- und Markenamt; DPMA) issued a press release on its 2021 annual report, and the headline translates as follows:

"China ever more innovative in digital technologies"

The German PTO highlighted that China has, for the first time, overtaken the United States in the field of digital communications technology patent applications as its numbers increased by 6.8% from 4,032 to 4,308, while the figure for the United States--home to the most aggressive proponents of the devaluation of standard-essential patents (SEPs)--went down by 2.4% from 4,218 to 4,115. Even if the U.S. figure had remained stable, China would have taken the lead.

While China's ascent to the top is indisputably impressive, it's arguably no less remarkable that Sweden--a relatively small country --is #4 on the list as it overtook Korea. Sweden's patent filings in this field went up by 3.6% (from 1,223 to 1,267--more than quarter of China's numbers!), while Korean patent applications declined by 5.8% from 1,249 to 1,176.

If we want to understand these dynamics, which are immensely important from an innovation policy perspective as well as with respect to pending SEP litigations (Ericsson v. Apple (Apple is countersuing only over non-SEPs), Nokia v. OPPO/OPPO v. Nokia), we need to take a look at the major players. The German PTO's annual report doesn't list particular filers, but fortunately the European Patent Office (EPO)--whose report equally attests to China's and Sweden's incredible achievements--provides a list of the top 10 filers in the field of digital communications (click on the image to enlarge):

Key takeaways and observations

• Despite Trump's trade war that the Biden Administration continues, Huawei is unstoppable--and the undisputed number one in the world. They have a corporate presentation coming up next week, and I plan to follow it over the livestream--it's a must-attend given that company's strength in wireless patents.

• The other Chinese companies among the top 10 filers in the field are OPPO (#5), which is in the top 5 and has surpassed Nokia (688 v. 658), with which it is embroiled in two-way litigation; ZTE (#7), which is increasingly interested in outbound licensing and has recently started enforcement actions and Vivo (#10), which is being sued by Nokia but also countersuing in Dusseldorf.

• Ericsson is #2, clearly ahead of Qualcomm in the third place and more than twice as strong as Nokia (#6). Sweden's strength in digital innovation is almost entirely attributable to Ericsson alone. One cannot respect innovation without applauding Ericsson's engineers.

• But what about Apple, against which Ericsson is enforcing SEPs? Nowhere on the list. Over the years they've acquired SEPs (such as from Nortel and Intel), but that's about it. It's been a few years since they acquired Intel's mobile chipset business, so I'd have expected them to play a more significant role already. But... they are nowhere to be seen.

  Apple is a luxury goods company making the closest thing you can find in the digital economy to a Veblen good. More than anything else, Apple brutally exploits its market power over everyone, with my primary concern being how it treats app developers. It squeezes suppliers and seeks to deprive employees of their rights to form unions (just yesterday, Microsoft announced a far more cooperative stance on unions).

  Policy makers in the U.S. and elsewhere must understand where Apple is coming from when it takes positions on patent policy and on mobile app stores. It seeks to substitute market power for foundational research. That formula, however, doesn't yield a consumer surplus. Nor are deceptive lobbying practices by Apple-funded organizations the answer.

  Apple won't change unless it has to. It's up to policy makers, competition regulators, and the courts of law to require Apple to compete on the merits, to fairly reward innovators, to open up iOS app distribution, and to invest not only in its expansion into ever more markets (it's like an insatiable octopus in that regard) but also in the digital communications technologies without which its gadgets wouldn't work in the first place.

  The United States has no one but itself--and above all, Apple's ability to perpetuate its market power and spawn monopoly after monopoly--to blame for having lost the lead in this field to China, and for trailing (relative to population size) a country like Sweden by a huge factor.

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Swedish government may have to vote against copyright bill in EU Council: Riksdag Committee on EU Affairs will decide

The triply illegitimate European Parliament vote in favor of a copyright bill requiring upload filters (as the French government, its #1 proponent, has since stated clearly and German EU commissioner Günther Oettinger considers "not entirely avoidable")=should be repeated as Czech conservative MEP Tomáš Zdechovský formally proposes. But in any event, it's not yet a "settled matter" as Mr. Oettinger, who initially came up with the ill-conceived proposal that led to this mess, just claimed in an interview in which he threatened sanctions against countries that might "water down" the text through the national implementation process. The EU Council still has to formally adopt the bill, and since it's clearly irreconcilable with the German government coalition agreement, let's see what happens.

The following tweet (in Swedish) greatly increases the likelihood of the Swedish government, which supported the political agremeent in February, being forced to change its stance and vote against the bill (this post continues below the tweet with further commentary and analysis):

Vi ska tvinga regeringen att säga nej. De hade inte mandat att säga ja.

— Tomas Tobé (@tomastobe) March 28, 2019

Tomas Tobé is the top-listed candidate of the Moderaterna ("Moderates"), the Swedish conservative party that is a member of the European People's Party (EPP) just like Merkel's CDU/CSU, and he's presently the vice chairman of the Swedish national parliament's Committee on European Union Affairs. A Swedish Twitter friend of mine translated Mr. Tobé's tweet as follows:

"We should force the government to say no. They had no mandate to say yes."

Mr. Tobé was replying to Amelia Andersdotter, a former Pirate Party MEP from Sweden. Amelia and I disagree on economic and migration policies (anyone connected to one of us on Facebook could tell), and her IP reform proposals go far beyond not only mine but also the ideas espoused by the more centrist Julia Reda MEP, the leader of the fight against the copyright bill in the European Parliament (who just left the German Pirate Party and wasn't seeking reelection anyway). Anyway, Amelia is famous in Sweden, and it's great to see she's fighting for this cause.

Mr. Tobé's reply to Amelia is very significant. As the Riksdagen website explains (in English), the Swedish government "must gain support for its EU policies in the Riksdag ahead of meetings in the Council of Ministers."

I haven't received definitive confirmation yet, but I've been told that this committee will meet on Friday, April 5, and will then have to hold a vote on the copyright bill. Let's consider three facts here:

• All Swedish MEPs except for a couple of social democrats had expressed their intent to vote against upload filters (Article 13, now Article 17). The Sweden Democrats are also clearly against upload filters, though their MEPs accidentally hit the wrong button.

• Sweden, with Spotify and some other digital businesses, is actually stronger in the Internet platform economy than any other EU Member State (even far larger ones).

• While the Moderaterna party isn't currently part of the Swedish government, the left-green government coalition is a minority government, making it particularly dependent on parliamentary decisions.

In light of all of the above, it's reasonably likely that the Riksdag's EU affairs committee will vote against the copyright bill, and the Swedish government will have to vote accordingly.

The most important aspect of this is the potential fallout with a view to Germany. Even with Sweden changing its vote from Yes to No, we're still far short of a blocking minority as I'll explain further below. But Germany could single-handedly block the deal (as could the UK, by the way, though there's little hope of that happening). A Swedish reversal would embolden and encourage those who'd like the German government to withdraw its support.

The Social Democratic Party of Germany (SPD), Merkel's coalition partner, has so far tried to have its cake and eat it: they spoke out and almost all of their MEPs voted against upload filters, but they caved to a clear breach of the coalition agreement by Merkel and her minister of economic affairs, Peter Altmaier. Here's the relevant passage from the coalition agreement (lines 2212-2214):

"Eine Verpflichtung von Plattformen zum Einsatz von Upload-Filtern, um von Nutzern hochgeladene Inhalte nach urheberrechtsverletzenden Inhalten zu 'filtern', lehnen wir als unverhältnismäßig ab."

Here's my unofficial translation:

"We consider disproportionate and therefore oppose a requirement on platforms to install upload filters for the purpose of 'filtering' out user-generated content based on copyright-infringing content."

Pressure on the SPD will grow should Mr. Tobé's plan work out in Sweden. And then the numbers would be in place to prevent the bill from being passed into law.

As for the numbers, I've obtained from the EU Council's press office the current list of population sizes that is used in the computation of a qualified majority. A qualified majority in the Council has two prongs:

• They need at least 15 Member States to support a proposal, and

• the countries voting in favor must collectively account for at least 65% of the EU's total population size.

Conversely, a blocking minority can consist of either

• 13 countries (but we only have five, so this is unrealistic), or (now comes the far more achievable option)

• at least four countries collectively accounting for more than 35% of the EU's total population size.

With a view to the copyright bill, we still had five countries on our side in February. In decreasing order by size: Italy, Poland, Finland, the Netherlands, and Luxembourg.

Pre-Brexit, those countries collectively account for 23.88% of the EU's total population size. With Sweden, that number would go up only marginally to 25.86%. So we'd still need a lot more support for our cause. We'd need Germany--that's ground zero. With Germany in our column, we wouldn't need Sweden--but a Swedish reversal would make it far harder for the German government to stand by the directive and its horse trade with France.

Should there be delays and Brexit occur (currently scheduled for April 12), the five "dissident" countries from the February Council meeting account for 27.42% of the EU-27's total population size, and with Sweden we'd have 29.69%, in which case the combination of a few small countries might also work without Germany. But without Germany on our side, the Council will most likely adopt the bill on April 8 or 9 anyway.

I'll keep my fingers crossed for the Riksdag's Friday decision. It could set off an avalanche, not in terms of the number of countries but the ability to improve the prospects of a German reversal. Maybe the SPD would then have the courage to jeopardize the stability of the German government coalition, as Julia Reda MEP said this week they'd have to in order to show they're truly opposed to upload filters.

In this context, let also point you to a press release by the Foundation for a Free Information Infrastructure (FFII) calling on national parliaments to force their governments to vote against "Soviet-style Internet upload filters."

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Qualcomm's Mannheim lawsuit against Apple over switch patent: Swedish patent office opinion published

On the German Qualcomm v. Apple patent litigation front, next week (the first week of October) will have the same schedule as last week: a Mannheim trial on Tuesday followed by a Munich trial on Thursday.

Last week's Mannheim patent--a switch patent--may not even be infringed, but at any rate it's rather unlikely to be valid. The opinion by the Swedish patent office--perfectly independent because Apple's lawyers couldn't communicate with the examiner and only got to submit two prior art references without any further explanation or documentation--that I mentioned last week is a clear thumbs-down for that patent. At last week's trial its key finding was summarized by counsel for Apple, and a German patent litigator who is not involved with those cases (last time I saw him, he was suing Apple over a SEP) told me that those opinions are private and don't appear in any patent register. However, someone in Sweden appears to have an inside track. My web traffic stats showed an inbound link from a Swedish-language website previously unknown to me, Feber. They obtained and published the opinion by the Swedish patent office (PRV = "Patent- och registreringsverket"), which was apparently written in English.

In order to make it easier for my readers, I've added the text to this blog post, and you can find it below (I didn't make any stylistic or punctuation corrections to the original text). That opinion is crystal clear. However, I wish to point out that Judge Dr. Holger Kircher and his Mannheim panel have to perform their own analysis and apply German law, which doesn't make it too easy for courts to stay patent infringement cases over validity concerns. Even in case they philosophically tend to agree with the conclusions of the Swedish patent examiner (and given their technical expertise, I even venture to guess they probably do), German courts stay patent infringement cases over novelty concerns (if a patent is more likely than not to be deemed anticipated by a single prior art reference) most of the time, and not too often on the basis of likely invalidation for lack of an inventive step. The Swedish patent examiner basically just looked at it as if someone had made a reexamination request.

That said, I still think this persuasive authority ups the ante for Qualcomm in that case. As I reported after the trial, the court came up with a very interesting approach to claim construction that might just result in a non-infringement holding. And then it's obvious that the patent has an obviousness issue, too. If Qualcomm prevailed and prematurely enforced an injunction, but if Apple won in the end, Apple would be entitled to wrongful-enforcement damages. Qualcomm's German counsel has his own experience with wrongful enforcement because Apple enforced injunctions against his client over patents that later died, and Motorola enforced a push notification patent that was later narrowed--but they settled prior to any litigation over wrongful-enforcement damages.

Here's the plain text of the opinion handed down by the Swedish patent office:

Written Opinion

Report

Patent examiner: Jenny Wallner

Our ref: 1001510
Date: 23 August 2018
Your ref: A2379-037-DEIEPPr

Written Opinion

Enclosed you will find a written opinion based on relevant citations and made with regard to novelty, inventive step and industrial applicability.

The report has been established in view of Swedish and European patent practice, and where applicable the problem-solution approach has been used.

Statement with regard to novelty, inventive step and industrial applicability

Novelty - Yes

Inventive step - No

Industrial applicability - Yes

Citations and explanations

Claimed invention:

The invention concerns a switch used in a wireless communication device. The invention solves the problem of providing a switch with better isolation and reliability. The problem is solved by using a plurality of transistors coupled in a stacked configuration and a plurality of resistors connected to the gates of the transistors. An additional resistor, arranged to receive the control signal for the transistors, is coupled to the plurality of resistors. Further, a second set of plurality of resistors are coupled to the bulk nodes of the transistors and a second additional resistor is coupled to the second set of plurality of resistors and the bulk voltage.

Cited documents:

D1: A. Poh, Y. P. Zhang, "Design and Analysis of Transmit/Receive Switch in Triple-Well CMOS for MIMO Wireless Systems", IEEE Transactions on Microwave Theory and Techniques, Vol. 55, No. 3, March 2007

D2: US 20040051395 A1

D1 (see Section III, lines 1 - 56 and figure 3) describes the design and analysis of a switch for wireless systems where the insertion loss is reduced and the power handling is improved by using the techniques body floating and series connection of transistors. Series-connected transistors, i.e. transistors coupled in a stacked configuration, are used to increase the power handlng and, both the gate nodes the body nodes are biased using individual large resistors (RG, RB) which is necessary to prevent signal coupling between the series-connected transistors. Further, the individual body resistors (RB) serve to reduce the insertion loss by diminishing capacitive coupling losses through the body contact.

D2 (paragraphs [0011], [0060]-[0065] and figures 6a-c) describes an improved switch with the aim to control a current output at lower control voltages while providing the optimum balance of insertion loss, isolation, maximum power handling, harmonic generation suppression and leakage current in the control signal. The switch (500, 501, 502) comprises several series-connected transistors (510-535) where resistors (572-582) are introduced between each gate and the control voltage (545) to minimize the effect of leakage current. A second resistor (584) is included in series with each of the resistors (572-582) to increase the overall resistance, i.e. boost the resistance, between the control voltage input (545) and the gates (510-535) and thus reduce the control current applied to the gate.

Reasoning:

Document D1 is considered as the closest prior art.

The invention according to claim 1 differs from the device disclosed by D1 in that a first additional resistor is arranged between the control signal input and the plurality of resistors coupled to the gates of the stacked transistors, and further, a second additional resistor is arranged between the bulk voltage node and the plurality of resistors coupled to the bulks of the stacked transistors.

Due to the feature of using the first additional resistor together with the plurality of the resistors coupled to the gates, a switch with better isolation and lower insertion loss is achieved since the impedance is boosted with the value of the first additional resistor. Further, the features of using the second additional resistor together with the plurality of the resistors coupled to the bulks provides similar benefits as those obtained by the resistors coupled to the gates.

With the background of D1, the skilled person is posed with the problem to design a device which achieves high isolation and low insertion loss.

A person skilled in the art would find a solution in D2, since D2 describes a switch where parameters as insertion loss and isolation are improved by using an additional resistor together with the plurality of resistors coupled to the gates (paragraphs [0064]-[0065] and figure 6c).

With the background of D1, the person skilled in the art posed with the problem of designing a switch with high isolation and low insertion loss would use an additional resistor coupled between the plurality of resistors coupled to the gates and the control input in order to increase the impedance as in D2. Further, a person skilled in the art of circuit design would, from his common knowledge, see the possibility of improving the switch performance by adding the same feature for the bulks, i.e. using a second additional resistor coupled to the plurality of resistors arranged at the bulks to also increase this impedance, and thereby arrive at the invention as in claim 1.

Therefore, the subject matter of claim 1 is not considered to differ significantly from what is known from D1 and D2. Accordingly, the invention according to claim 1 does not involve an inventive step.

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