This morning, just before the Mannheim Regional Court announced an order to continue its analysis of a Motorola complaint against Microsoft over a push notification patent (a patent that is already being enforced against Apple), yet another German Apple lawsuit was unsurprisingly stayed pending resolution of a parallel revocation proceeding before the Federal Patent Court. In the latest Apple action to be stayed, the intellectual property right at issue is a utility model that, among other things, cover "pinch to zoom": German Utility Model ("Gebrauchsmuster") No. DE 21 2008 000 001).
In the following section, I'll explain "bifurcation". If you're already familiar with that concept, I recommend you to skip right to the part discussing the state of Apple's offensive lawsuits in Germany that have come to judgment.
A bifurcation primer
Bifurcation -- the rule that the validity of patents and utility models can be challenged only in separate actions from an infringement lawsuit -- is one of the reasons for which even weak patents often cause major damage in Germany. The two tracks -- infringement and validity -- aren't truly synchronized. Typically, it takes two to three times as long to get a first-instance decision on invalidity from the Munich-based Federal Patent Court (not to be confused for the Munich I Regional Court, which is a popular venue for infringement cases and has a certain exchange of judges with the Federal Patent Court) as it takes to win a first-instance ruling on infringement. This provides holders of patents that shouldn't have been granted in the first place with a window of opportunity to enforce injunctions.
While the courts that adjudicate infringement cases don't perform a complete evaluation of an invalidity defense, they try to assess the likelihood of success on the merits of the parallel nullity action. If a regional court (first-instance court) believes that a patent is highly probable (80%+) to be invalidated, it stays the infringement case pending clarification of the validity of the patent (or at least until there is further news from the nullity action). Higher regional courts (appeals courts) order a stay even if the probability of invalidation is, in their assessment, only 50%. That's because enforcement is pretty much a given after a ruling by a higher regional court, while Motorola is an exception and seeks preliminary enforcement ("preliminary" in the sense of enforcement prior to a decision on a pending appeal), which requires prevailing plaintiffs to make substantial deposits.
The percentages I just stated relate to patents. Patents enjoy a presumption of validity because there's some examination (in my opinion, examination by the European Patent Office or USPTO is not good enough to justify anything more than a weak, if not very weak, presumption of validity, but courts decide based on a relatively strong presumption). Utility models, however, are a special German type of intellectual property right, sort of a second-class patent that is not substantively examined (thus doens't enjoy any presumption of validity) and valid for a maximum of 10 years (patents are valid for 20 years). Getting a utility model lawsuit stayed requires a showing that the registered right really will survive a revocation proeeding (the equivalent of a patent nullity action).
Apple's statistics against Samsung in Germany (excluding design rights): three stays and one dismissal
To date, Samsung hasn't won anything against Apple anywhere in the world. It also lost its first three German lawsuits. Apple has had some successes, but in Germany, it has yet to enforce a technical patent or utility model (as opposed to a design-related right or unfair competition claim).
In March, the Mannheim court threw out an Apple lawsuit over a slide-to-unlock patent: Apple didn't convince the court of its infringement contentions.
Also in March, the same Court stayed an Apple lawsuit against Samsung over a slide-to-unlock utility model. In that case, infringement was pretty clear, but validity was not.
A week ago, I was actually surprised (not hugely, but somewhat) by the Mannheim court's decision to stay a patent case over a photo gallery patent Apple successfully enforced elsewhere. But in general, I think German courts should stay more, not fewer, patent cases (of course, all plaintiffs must be held to the same standard, though these cases are always hard to compare).
A few more Apple assertions against Samsung are going to come to judgment soon. I think we'll likely see at least a couple more stays.
If Apple's asserted rights are proven valid, Samsung will be in trouble
It would be a mistake to equate a stay to a dismissal. Even though time is of the essence, it's possible that the dispute between Apple and Samsung will take a couple more years to be resolved. Any of the stayed cases can be resumed if Apple's asserted intellectual property rights are affirmed.
One thing that happens very frequently is a narrowing of an asserted right as a result of a nullity or revocation action. For example, some claims may survive while others don't, and/or additional limitations (elements) may be added to claims in order to have them survive.
If Apple defends any of its asserted claims in the form in which they were granted, it can get an infringement decision very quickly. If the claims change (which is what happens most of the time), there will have to be a new infringement analysis, but sometimes lawyers manage to modify claims in a way that makes them narrower in terms of being harder to challenge while maintaining the kind of breadth that is needed to prevail over infringers. But if any narrowing is necessary, it can slow things down considerably.
It's no coincidence that Apple's German lawsuits have a particularly high rate of stays
For the most part, the high rate of stays affecting Apple's German lawsuits is due to Apple's litigation strategy. In addition, there's also an indication that the kinds of "inventions" Apple asserts contributes to the statistical pattern I just described. I'll start with the issue that is inherent to the rights Apple primarily asserts.
Most of Apple's assertions in Germany relate to touchscreen user interface features such as slide-to-unlock, pinch-to-zoom, or page-flipping in a photo gallery. For infringement purposes, those patents are relatively easy to understand -- certainly easier than, say, Microsoft's operating system patents. That can be an advantage in some cases. But it also makes it easier for the courts to doubt the inventive step between those patents and the defendants' prior art references. For example, if other computer programs already had sliders long before the iPhone, or on-screen on/off toggles, then what Apple created on top is more of a cool idea from a user experience point of view than hardcore technological innovation.
On average, engineering is valued in Germany like no other country in the world, while many other nations appreciate design (including user interface design) to a greater extent. But the European patent system is also much more focused on true technological innovation than the U.S. patent system, which seeks to protect pretty much anything that is a good idea or, as legislators once put it, "anything made by Man under the Sun".
The judges at the infringement courts have a legal, not technical, education. Nevertheless some of them show an impressive ability to analyze technical issues -- while I don't always agree with them (and largely disagree with them on FRAND issues), Judge Voss and his deputy, Judge Dr. Tochtermann, clearly have a grasp of technology that's hard to find among judges (probably even harder to find in the United States than over here, where other specialized panels, such as in Munich, have also built a lot of expertise in this regard).
But again, these judges are lawyers, not engineers, and I sometimes feel that the pseudo-technological way in which some patents are presented (including Motorola's push notification patent) is overrated. From an engineering point of view, a lot of wireless communications patents are no less trivial than slide-to-unlock. For example, they sometimes cover simple countdown algorithms or relatively simple bit operations -- but if you talk about electromagnetic waves and orthogonal sequences of numbers, it somehow sounds like rocket science, even if the "inventive step" is even less deserving of patent protection (and the resulting monopoly even more negative) than slide-to-unlock or pinch-to-zoom.
Given the focus of the European patent system on "technicity", Apple is lucky that the companies defending itself don't try to turn some of those Apple patents-in-suit into poster children of software patents that the European Patent Office shouldn't grant in light of Article 52 of the European Patent Convention, which prohibits patents on computer programs "as such". I never saw Motorola or Samsung raise those issues (Samsung's lead counsel here is a big proponent of software patents). I saw HTC try this in Munich, but without pushing really hard. Still, even if only indirectly, the European approach that a patent should solve a technical problem with technical means is a challenge for the kinds of patents Apple primarily asserts. Companies like Microsoft, Motorola or Nokia are in better shape in this regard.
Apple's choice of patents-in-suit suggests that a high drop-out rate is accepted from the beginning. While some of Apple's patents aren't particularly broad (such as the photo gallery page-flipping patent), a few of them are unbelievably broad, and I'm sure that the people who decided to assert them clearly opted for a "high risk, high gain" strategy. So far, that strategy hasn't yielded any result against Samsung in Germany, but at some point Apple may get to enforce some really powerful patent against Samsung, Motorola or HTC -- or two of them, or even all three of them.
Apple has the resources to afford this kind of gamble: it can afford to lose many patent lawsuits. At the same time, it has a strategic necessity because all of its rivals have brought claims of their own, making it critical to have leverage as early as possible in order to force settlements on one's preferred terms.
Apple's focus on quick but impactful strikes is further evidenced by its various motions for preliminary injunctions and by the fact that it asserts utility models at all, which is a clear gamble.
With non-standard-essential patents, it's hard to find patents that are broad enough to be (a) infringed and (b) hard to work around while still being defensible in a nullity or revocation action. It's understandable that Apple takes its chances in hopes of identifying a winning team of powerful patents. This process takes time, but there is progress -- even if Samsung has so far been lucky in Germany, a market in which its market share is particularly high.
If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.
Share with other professionals via LinkedIn:
