This morning, the Mannheim Regional Court did not announce its decision on a Motorola v. Microsoft lawsuit over standard-essential patents because it postponed the ruling to May 2, but an Apple v. HTC trial took place as planned, and an Apple v. Motorola Mobility trial will follow shortly. I am quickly writing this post during an extended lunch break between the trials.
The patent-in-suit is EP1168859 on a "portable communication apparatus using different alphabets". It's the European equivalent of a patent that was originally filed for in Japan. The patent covers the idea of storing a multilingual character set with language-specific sections (for example, the letter "ß", transcribed as a double "s", is a special German character) for the purpose of text messaging.
Two and a half weeks ago, the Mannheim Regional Court already held a trial involving this patent. Apple is suing all three leading Android device makers -- Samsung, Motorola and HTC -- over the same patent, and all of them in Mannheim. On March 30, the trial of Apple's related lawsuit against Samsung took place, with a strong indication toward the end that this case may be stayed.
Today, the court's preliminary assessment was that the patent was likely infringed but also very likely invalid. But HTC's lead counsel, Dr. Peter Kather of the Preu Bohlig firm, drew the court's attention to a non-infringement theory that changed the picture in HTC's favor. At the least, what used to be a pretty clear infringement case was cast in serious doubt. And with respect to the presumption of validity of the patent-in-suit, Apple was in even worse shape than at the Samsung trial because HTC apparently presented all of Samsung's prior art references but also an additional one, a mobile phone that is ten years old (if not more) and was made by a German device maker named Hagenuk, large parts of whose operations have been closed down in the meantime.
It became clear during the course of two and a half hours of discussion that Apple would need to rely on (and to persuade the court of) a fairly broad interpretation of a key term in the claims ("sections" of memory) in order to have at least a chance to prove infringement, but the application of such a broad construction to a comparison between Apple's acquired patent and the prior art references suggested a stay of this case. Three parallel nullity (invalidation) acitons are pending against this patent -- one brought by each of the three defendants. Those actions may be consolidated into a single one by the Federal Patent Court, but at any rate, the Mannheim court is uncomfortable issuing an infringement decision unless the patent is shown to be valid.
The judge finally asked the parties whether they would stipulate to a stay. HTC was obviously in favor, but Apple's counsel, after further analysis of the implications on the timeline for this litigation after a possible continuation following affirmation of the patent by the Federal Patent Court, consented as well. There would have been another risk of delay simply because some of what Apple argued at the trial (and previously in a last-minute pleading) raised new issuues that in the court's opinion would have required a second trial anyway, which then would have been so close to a decision by the Federal Patent Court that a stay would have been pretty much a given. On that basis, the stay was ordered. The Federal Patent Court is expected to rule on this matter next year. If it rules in Apple's favor, the Mannheim court intends to hold a new trial within a maximum of six months of affirmation.
Apple's U.S. federal lawsuits against HTC in the District of Delaware are also stayed and won't result in a new U.S. ruling for Apple against HTC before 2013 at the earliest. The most Apple could win against HTC in the United States before the end of the year is a preliminary ITC ruling.
Today's outcome of the HTC case in Mannheim does not necessarily mean that the case against Samsung will also be stayed. I still believe that a stay of that one is very likely, but Samsung did not present the Hagenuk prior art reference and the cases are before different chambers (panels). Judge Dr. Holger Kircher, the judge presiding over the court's second chamber of civil jurisprudence and today's trials, was also on the bench, basically as a "guest act", of the Samsung trial, but the Samsung case is before the seventh chamber, presided by Judge Andreas Voss ("Voß" in German).
[Update] Originally I thought that the Apple v. Motorola, which started about an hour after I published the original version of this post, was also going to result in a stipulated stay as the most likely outcome. But Apple's lawyers made use of the lunch break to come up with a new indication of an infringement. I did a separate post to report on that development. [/Update]
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