Nokia steps up pressure on HTC with French patent lawsuit, now suing in seven countries

HTC can run but it can't hide from Nokia's patent assertions on three continents. Originally, Nokia sued in two countries -- the United States and Germany -- in late April and early May 2012. More than 19 months later, HTC still hasn't taken a royalty-bearing patent license to any of Nokia's non-standard-essential patents (it does have a SEP license). Instead, it continues to defend itself and to emphasize its efforts to work around any Nokia non-SEPs it is found to infringe. Most recently, HTC obtained a stay from the England and Wales Court of Appeal, enabling it to ship all of its products into the UK market during the appellate proceedings following Nokia's recent win of an injunction over a hardware patent the court found various HTC devices incorporating Qualcomm and Broadcom chips to infringe.

Over time Nokia asserted an increasing number of patents against HTC, and it brought lawsuits in additional jurisdictions. In the UK, HTC was actually first to sue because it wanted to obtain declaratory judgments in order to influence various German courts, but Nokia counterclaimed for infringement (hence the aforementioned injunction). Subsequently, lawsuits in Italy, Japan and the Netherlands also became known. And the latest venue in which Nokia is suing HTC over one or more patents is Paris, France. I don't follow French patent lawsuits on a regular basis (though I attended a Samsung v. Apple preliminary injunction hearing before the Tribunal de Grande Instance in 2011), but I learned about this from a statement issued by Nokia on the stay of the UK action:

"Nokia was pleased that the UK High Court imposed an injunction on certain HTC products which it found in October to infringe a Nokia patent. The UK Court of Appeal has stayed the injunction until a full appeal hearing next year and Nokia welcomes the Court's invitation for the parties to expedite this. It is unfortunate that the stay means that HTC can continue to benefit from its unauthorized and uncompensated use of Nokia innovations. We look forward to the Court of Appeal confirming that the patent is valid and infringed, lifting the stay on the injunction and awarding Nokia financial compensation for HTC's infringement.

The same patent comes to trial in Dusseldorf, Germany next month and is also in suit in Paris, France; Rome, Italy[;] and its US counterpart is in Nokia's second complaint against HTC at the US International Trade Commission. Nokia began its actions against HTC in 2012, with the aim of ending HTC's unauthorised use of Nokia's proprietary innovations and has asserted more than 50 patents against HTC in France, Germany, Italy, Japan, the Netherlands, UK and US. During 2013, HTC has been found to infringe Nokia patents in venues including the Regional Court in Mannheim, Germany, the UK High Court and the US International Trade Commission."

Last week the ITC decided to conduct (as usual) a review Nokia's preliminary win over HTC. In my post on that decision I already mentioned that a key Nokia v. HTC ruling is scheduled to be announced by the Munich I Regional Court this coming Friday (December 20) and explained that European Commission Vice President Joaquín Almunia's warning against Nokia's potential "patent trolling" after the sale of its wireless devices business doesn't mean much in practical terms. For SEPs, there are some key ongoing investigations (Samsung, Motorola Mobility) that will provide clarity for everyone (including, but not limited to, Nokia); and for non-SEPs, it's going to be a long shot for anyone trying to build an antitrust abuse theory. No antitrust regulator in the world has the authority to require Nokia to give away licenses to its patents for free, or to tolerate infringement. In principle, Nokia can sue until HTC pays. That's what it's doing and what it will continue to do. And the day will come when HTC will agree to pay.

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Federal Circuit affirms Microsoft's import ban against Motorola Mobility's Android-based devices

The Unitd States Court of Appeals for the Federal Circuit today ruled against Google's (Motorola Mobility's) appeal of an import ban Microsoft won from the United States International Trade Commission (USITC, or just ITC) in May 2012 over a meeting scheduler patent.

Motorola had conceded infringement long before this appeal. It was, however, trying to persuade the Federal Circuit to hold the patent invalid and to reverse the ITC's domestic industry finding. Patentees must meet the domestic industry requirement in order to obtain ITC import bans.

The appeals court found that the ITC's related determinations were based on substantial evidence. This is a rather difficult standard of review for appellants to overcome. It doesn't necessarily mean that the appellate judges would have decided the case the same way with the same set of facts before them. It merely means that there were facts based on which one can't blame the ITC for arriving at its conclusions, but the appeals court might have upheld the opposite decision as well.

As for the validity of the patent-in-suit, I already wrote in my report on the August 2013 appellate hearing that Google (Motorola Mobility) appeared unlikely to persuade the appeals court of its invalidity contentions.

On the domestic industry side, the situation is getting a bit confusing now, due to the standard of review. In early October the Federal Circuit already adjudicated Microsoft's appeal of the unfavorable parts of the ITC ruling (this was a consolidated cross-appeal). This month it also denied Google's petition for a rehearing on its appeal. Microsoft wanted, among other things, the Federal Circuit to reverse certain domestic industry findings that were negative for its purposes. The Federal Circuit likewise declined to overrule the ITC on those, using the same standard of review. As a result, the rulings on both parts of this cross-appeal don't provide a very specific indication as to how a company that licenses its software to device makers can satisfy the domestic industry requirement. The ITC has considerable wiggle room, and the Federal Circuit won't overrule the related findings unless there is clearly an absence of substantial evidence supporting the ITC's determinations.

Google's Motorola Mobility is one of a very few significant Android device makers to refuse to pay Microsoft royalties for Android's use of presumably numerous inventions patented by Microsoft. Patent litigation takes time, and most of Microsoft's infringement claims against Motorola haven't come to judgment yet.

The import ban affirmed today by the Federal Circuit has been in effect for almost a year and a half now, but Microsoft disagrees with the way the United States Bureau of Customs and Border Protection has enforced it and brought a lawsuit against U.S. Customs and other governmental entitites in July. No decision has been made in that case yet. Microsoft requested a preliminary injunction, while the ITC argues that the appropriate procedural path would be an ITC enforcement proceeding. Now that the Federal Circuit has affirmed the underlying ITC decision, there may finally be some progress in the District of Columbia lawsuit against the U.S. government.

As an aside, I just wrote this post quickly because Federal Circuit rulings on the cases I follow warrant exceptions from my new two-days-a-week consulting and publishing rhythm. This week I decided to work on Tuesday (Senate hearing on patent reform) and Friday (Nokia v. HTC ruling in Munich) instead of Monday and Thursday.

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Google makes itself ridiculous, tells appeals court something Microsoft can disprove with transcript

Lawyers sometimes have to take extreme positions, but whatever they say must be at least somewhat justifiable. Three weeks ago I was thoroughly disappointed that Samsung's lawyers had told Judge Koh in the Northern District of California that Apple had no more options let to salvage a patent but to file a notice of appeal, which was plain wrong: the official communication by the USPTO that Samsung submitted to the court stated clearly that Apple did have other options. The same law firm also does a lot of work for Google, especially (but not only) against Apple and Microsoft. Today I've become aware of another ridiculously untrue assertion that is almost as bad as what happened in that Apple v. Samsung case.

Some background first. In November, Judge James Robart (Western District of Washington) certified Microsoft's FRAND victory over Google's Motorola Mobility, which immediately appealed this matter to the Federal Circuit, though it had previously appealed a preliminary injunction in this case to the Ninth Circuit. About a week later, Microsoft filed a motion to terminate the appeal and transfer it to the Ninth Circuit, which Microsoft said has jurisdiction over this appeal because it's about a complaint based in contract (not patent) law. On December 5, Google (Motorola) defended its strikingly obvious forum shopping (it believed that the Ninth Circuit had jurisdiction until it lost there big time last year; and, even more inconsistently, it's still trying to move a rather similar Apple appeal out of the Federal Circuit to the Seventh Circuit).

In their opposition to Microsoft's motion, Google's (Motorola's) lawyers told the Federal Circuit that "neither party [to a Microsoft v. Motorola dispute] addressed the consolidated patent infringement lawsuit" during the course of appellate proceedings before the Ninth Circuit last year, but anyone can listen to an official recording the appeals court made available on the Internet, which contains the following discussion between Ninth Circuit Judge Marsha Berzon and Microsoft counsel Carter Phillips (Sidley & Austin) at a September 11, 2012 hearing (unofficial transcript attached to a Microsoft filing made today):

JUDGE BERZON: That's some degree going on here because there also is a United States patent suit consolidated here.

MR. PHILLIPS: But the place where this entirely changes from parallel proceedings is at the point that you identified at the outset, which is the agreement that Motorola entered into, which was to provide a license across the board globally.

So how can there be any doubt that the question of the consolidated patent case -- which Google now claims puts the entire consolidated case under Federal Circuit appellate jurisdiction -- was indeed addressed by at least one party in the Ninth Circuit proceedings last year? Google obviously knows that the "law of the case" doctrine (the Ninth Circuit declared itself responsible last time) is a strong argument in Microsoft's favor. To the extent that Google says the Ninth Circuit didn't explicitly address the jurisdictional implications of the fact that the appeal relates to a contract part of a consolidated case that also has a patent infringement part, that's true, though the fact that the Ninth Circuit, despite being aware of consolidation (as the transcript proves), didn't address this may also be indicative of how little relevance it (and both parties) attached to that circumstance.

In my analysis of this venue dispute, based on Microsoft's motion and Motorola's opposition, I said that there are basically three kinds of issues: law of the case (and this appears to be an even stronger point in Microsoft's favor in light of that hearing transcript); consolidation (this, too, appears even weaker now because it apparently didn't persuade, or dissuade, the Ninth Circuit); and the fact that Judge Robart applied certain principles of patent damages law (he used a modified set of Georgia-Pacific factors) in his FRAND rate-setting opinion and assessments (though not determinations) of validity and essentiality. I said that the third part, which Google's Motorola described as a fact it didn't know and couldn't anticipate when it filed its Ninth Circuit appeal last year, was more interesting than the first two parts. But even with respect to the third part, Microsoft has now presented some pretty significant evidence: well ahead of the Ninth Circuit decision, Motorola served two expert reports that proposed a modified set of Georgia-Pacific factors.

It remains to be seen what the Federal Circuit will decide, but Google and its lawyers certainly haven't enhanced their credibility with some of their arguments against a venue transfer...

Here's Microsoft's reply brief, including the exhibits I mentioned (transcript and Motorola expert reports):

13-12-12 Microsoft Reply in Support of Venue Transfer of Moto FRAND Appeal by Florian Mueller

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UK appeals court affirms invalidation of Google's (Motorola Mobility's) synchronization patent

Yesterday, almost exactly a year after the England and Wales High Court declared Google's (Motorola Mobility's) infamous synchronization patent invalid (report on decision, full text), the England and Wales Court of Appeal threw out Google's appeal.

Google's Motorola had enforced that patent (EP0847654 on a "multiple pager synchronization system and method") against Apple in Germany for 19 months. It also sued Microsoft over it, which defended itself successfully in Germany and brought this declaratory judgment case in the UK in order to prove its invalidity and license-based defenses, which findings Microsoft leveraged in the German proceedings (and which also helped Apple in its own dispute with the Google subsidiary).

About a month ago, the Bundespatentgericht (BPatG, Federal Patent Court of Germany) declared this patent invalid in its granted form and confirmed only a substantially-narrowed, amended version. Google can and presumably will appeal that decision to the Bundesgerichtshof (BGH, Federal Court of Justice), but this is a long shot to say the least. It's more likely that the Federal Court of Justice will also throw out the narrowed-down version than that it reverses the finding of invalidity of the granted claims.

All in all, three courts (in chronological order: England and Wales High Court, Federal Patent Court of Germany, England Wales Court of Appeal) have now held this patent invalid. Two other courts (the Karlsruhe Higher Regional Court and the Mannheim Regional Court) stayed proceedings because they doubted the validity of this patent. The next court to look at this will presumably the United States District for the Southern District of Florida at next year's Motorola v. Apple trial. For now, Google's Motorola is still asserting the U.S. equivalent of that patent in the Miami proceedings, though I believe it should withdraw it well ahead of trial.

Technically, a UK decision isn't binding on a German court or vice versa, even if it relates to the same patent granted by the European Patent Office. And European decisions obviously don't bind U.S. courts (and vice versa). Still, when a patent is held invalid again and again and again, it becomes incredibly hard to find a judge who would deem it valid.

The UK appeal was resolved rather quickly and easily because even Google's counsel conceded that its appeal was bound to fail in the absence of a reversal of the High Court's claim construction. The High Court interpreted claim 1 as covering push as well as pull (or "poll") synchronization. Motorola asserted the patent only against push notifications by Apple's iCloud email service and various Microsoft products and services (Outlook, Hotmail, Xbox Live etc.), but for purposes of determining the validity of the patent, it must be interpreted as broadly as the claims allow, regardless of what Motorola does in the infringement proceedings. Also, the Federal Patent Court of Germany threw out not only the patent in its granted form but also a long list of amendments that sought to narrow its scope to push synchronizations (the amendments that the court deemed valid involved further limitations).

The UK appellate opinion mentions the mid-November decision by the Federal Patent Court of Germany (and the parties' related disagreement), but the UK judgment itself does not refer to the German ruling after concluding that in the absence of a detailed written reasoning by the German court, it was not "safe for either side or this Court to rely on the German proceedings as to the correct outcome of this appeal". According to the UK ruling, Microsoft told the court that the Federal Patent Court of Germany adopted the push-and-poll type claim construction at the mid-November hearing, but its counsel "accepted that it was not possible, in the absence of a written statement as to the court's reasoning, to state definitively that, in reaching its decision, the court must have rejected Motorola's interpretation of claim 1". Actually, since I attended the mid-November nullity trial in Germany, I can confirm that the court indeed rejected Motorola's proposed, narrower interpretation. This claim construction question was discussed in the morning. Then there was a lunch break, and when everyone returned to the courtroom after lunch, the court said that it was not inclined to adopt Motorola's proposed claim construction, which is why the attention turned immediately to Motorola's proposed amendments to the patent. Anyway, the fact that the UK appeals court arrived at its claim construction without definitive certainty about the German finding makes the combination of those two rulings (and other rulings) even more useful as persuasive authority in future proceedings (in Florida and before the Federal Court of Justice of Germany).

The UK appellate opinion did not evaluate Microsoft's license defense. It presumably considered this question moot after holding the patent invalid. The opinion does mention that Motorola was also appealing from the license-related part of the High Court ruling.

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HTC says it can again ship the One mini into the UK after winning stay of Nokia patent injunction

HTC has issued a statement to the media (Engadget was first to report) on a decision by the England and Wales Court of Appeal (the order itself has not been published yet):

"HTC is delighted that the Court of Appeals has granted a stay on the injunction against our products. We will immediately resume shipment of all of our devices into the UK, including the entire HTC One family. Similarly, our customers should feel confident in their ability to promote and sell all HTC devices. Even though we plan to aggressively appeal the validity decision of Nokia's EP 0 998 024 patent, we will continue to work with our chip suppliers on alternative solutions to ensure minimal disruption to our business in the future."

On October 30, the England and Wales High Court had held HTC liable for infringement of this patent, which the court deemed valid. HTC had brought the UK action to shoot down the patent with a view to influencing a German case pending before the Dusseldorf Regional Court. Nokia counterclaimed, successfully so far. On December 3, the High Court granted Nokia an injunction, but its scope was limited with respect to the devices it covered, making a distinction between those that HTC created/launched after becoming aware of the infringement allegations (particularly, the One mini) and those it designed before (the original HTC One, for example). The UK injunction order had, as an unintended side effect, revealed HTC's plans for a successor to the One, the HTC One Two. The High Court stayed its own injunction for a few days in order to allow HTC to appeal. HTC did appeal, and the appeals court has now granted HTC a further stay (presumably for the duration of the appellate proceedings).

The HTC statement above mentions that HTC is working with its chip suppliers (Qualcomm and Broadcom) on workarounds. In October HTC was reportedly working with Qualcomm to also work around two Nokia patents underlying a preliminary ITC ruling in Nokia's favor, which is now undergoing a thorough review before an import ban may (or may not) enter into force. Three Nokia v. HTC rulings are scheduled in Munich, Germany, over the course of the next four weeks.

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Federal Patent Court of Germany invalidates keyboard patent Apple acquired from Mitsubishi

The Bundespatentgericht (BPatG, Federal Patent Court of Germany) yesterday struck down yet another smartphone patent: EP1168859 on a "portable radio communication apparatus using different alphabets", a multilingual keyboard patent Apple acquired from Mitsubishi a couple of years ago and asserted (unsuccessfully because the courts didn't believe it was valid) against Samsung, Google's Motorola Mobility, and HTC. Samsung and Google were pursuing nullity (invalidation) complaints against it; the dispute between Apple and HTC was settled globally more than a year ago, resulting in the withdrawal of HTC's nullity action.

Apple had brought its infringement cases over this patent in Mannheim, Germany. The cases against all three defendants were stayed. Apple stipulated to a stay of the case against HTC; the court stayed the Samsung and Motorola Mobility cases because it considered this patent highly probable to be invalidated.

A few months after the German infringement trials, the England and Wales High Court adjudicated a declaratory judgment complaint by HTC relating to a total of four patents and found this multilingual keyboard patent invalid (and, which therefore didn't matter, infringed by HTC).

Apple can appeal yesterday's BPatG ruling to the Bundesgerichtshof (BGH, Federal Court of Justice). Given the fact that two different European courts have already held it invalid, I wouldn't have much hope for this patent before a third court. I believe Apple's appeals relating to some of its "homegrown" patents present more interesting issues.

Samsung, Google and HTC also asserted (and Samsung and Google are still asserting) numerous patents against Apple that they acquired from third parties -- far greater numbers in fact. So I don't blame Apple for having tried its luck with an acquired patent just like its rivals do all the time, and this one could have given Apple leverage because it's unbelievably basic and broad (but those patents are particularly susceptible to invalidation challenges).

So far not even one of the patents in all the disputes I watch has survived the BPatG proceedings in its granted form, calling into question the quality of the examination process of the European Patent Office (EPO). Only two of those patents survived in a substantially-narrowed amended form (yesterday's patent was invalidated in its entirety, including the rejection of any proposed amendments).

I found out about the latest decision today because I contacted the court about it. I anticipated this outcome, thus didn't attend yesterday's full-day nullity trial, at the end of which this decision was announced from the bench.

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Federal Circuit denies Google petition for rehearing in Microsoft-Motorola patent case

More than two months ago the United States Court of Appeals for the Federal Circuit ruled on a Microsoft appeal of an ITC ruling in a patent case against Google subsidiary Motorola Mobility's Android-based devices and found that U.S. Patent No. 5,664,133 on a "context sensitive menu system/menu behavior" was infringed by Android, contrary to the ITC's finding of no violation with respect to this one. The patent is a continuation of a December 13, 1993 patent application. There won't be an import ban anymore due to expiration, but Microsoft can seek damages for past infringement in district court. When it filed its ITC complaint in October 2010 it also brought a companion (mirror) complaint in the Western District of Washington.

Google nevertheless petitioned for a rehearing, which the Federal Circuit denied yesterday (this post continues below the document):

13-12-11 Order Denying Motorola Mobility Petition for Rehearing by Florian Mueller

Petitions for rehearings are relatively long shots. Google probably petitioned only in order to cause delay.

In the smartphone patent cases I watch, the Federal Circuit generally tends to arrive at right holder-friendlier conclusions than the ITC and various district courts. Google has not received much good news from the Federal Circuit lately. Last month its petition for a rehearing on Apple's fairly successful appeal of another ITC ruling was also denied, and the ITC investigation of Apple's complaint against Google's Motorola Mobility will therefore resume shortly. And last week, Google experienced a dreadful hearing (from its perspective, not that of creatives and honest innovators) in the Android-Java case.

The Federal Circuit has not yet ruled on Motorola's attempt to overturn the import ban Microsoft won last year over a meeting scheduler patent, but at the August hearing it appeared unlikely that the patent would be found invalid. The parties have an enforcement dispute over that import ban, and I haven't seen much progress lately with respect to Microsoft's complaint over arbitrary and capricious action by U.S. Customs and Border Protection in this context, which could be due in no small part to the outstanding Federal Circuit ruling on Motorola's appeal. (Interestingly, I found out last month that Google, too, is accusing the U.S. government -- in this case, the ITC -- of "arbitrary and capricious" conduct.)

Impact of German FAT patent ruling grossly overrated

Last week's report on a decision by the Federal Patent Court of Germany to invalidate (on an appealable basis) a Microsoft file system patent (File Allocation Table, FAT) was blown out of proportion by some commentators who saw Microsoft's Android patent licensing revenue in jeopardy as a result of that decision. Two of the three reasons for which this is wrong were stated in my post, but I'll repeat them and also explain the fourth one in order to clear up the confusion:

• That FAT patent, too, will expire soon. That fact alone should have given people pause. Even if they were right (and they are not, see the third bullet point) that Microsoft's Android patent licensing revenues depend very much on that one patent, a court ruling so close to expiration is not too relevant in commercial terms. License agreements (especially those involving patent portfolios as opposed to single patents) typically don't provide for a refund based on subsequent invalidation.

• The German decision is specific to European law, which differs from the patent laws of other jurisdictions (especially the U.S.) because of its technicity requirement. The patent was not invalidated based on a straightforward obviousness theory, but because the elements that set the claimed invention apart from prior were not found to be "technical". Even if this holding was affirmed on appeal (which is far from certain), it wouldn't be possible to replicate this in such jurisdictions as the United States, where there is no statute excluding computer programs "as such" (i.e., without a technical contribution) from the scope of patent-eligible subject matter.

• Microsoft's Android patent license deals (20 of which are known) are not single-patent license deals. Instead, companies receive broad coverage relating to any of Microsoft's patents that read on Android or Chrome. In fact, Microsoft has already asserted dozens of different patents against Android in court (mostly against Google's Motorola Mobility and to a smaller extent against Barnes & Noble in a dispute that was settled a while ago), making it clear that FAT is only a small part of Microsoft's Android-related patent holdings. I actually believe that Microsoft has dozens or even (more likely) hundreds of additional patents it could assert against Android, but it prefers to strike license deals, which is why "only" a few dozen of those patents have been asserted in court so far.

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