Four to five months into an ITC investigation that started one month after a complaint Nokia filed against HTC in early May, the usual streamlining has set in. And HTC obviously wants more of this to happen than Nokia.
Yesterday Nokia filed an unopposed motion to withdraw one of the nine patents-in-suit (for a list of those patents see this recent post). The dropout patent is U.S. Patent No. 6,728,530 on a "calendar-display apparatus, and associated method, for a mobile terminal". The motion does not indicate any particular reason other than this being part of the common and expected effort to narrow ITC cases.
HTC is trying to have another patent, U.S. Patent No. 7,366,529 on a "communication network terminal supporting a plurality of applications", removed from the investigation. HTC's motion is fully briefed, but none of the pleadings is publicly-accessible (at least at this stage) except for a post-briefing motion Nokia brought yesterday to request a hearing on this issue. This petition will be opposed by HTC as well as by Google, which asked to join the investigation as a respondent and was allowed to participate as only a third party, but which will get its wish for direct and full involvement in an Android patent infringement action granted in Munich because of recent developments in a German Microsoft v. Motorola Mobility litigation.
Nokia's motion discloses that HTC wants the '529 patent thrown out in favor of arbitration. HTC alleges that it is an "Essential Patent" as defined in an existing standard-essential patent license agreement between Nokia and HTC, and that the question of whether this position is correct needs to be resolved through arbitration. Presumably there's an arbitration clause in that SEP license agreement.
HTC would benefit from this initiative even if the patent ultimately turned out not to be covered by the existing agreement. In order to persuade the ITC to terminate the '529 patent from the investigation in favor of arbitration, HTC just has to show that there's a genuine dispute that falls within the scope of the arbitration clause. If Nokia later wanted to enforce the patent through a U.S. import ban, it would have to start a new ITC action, after considerable delay.
The '529 patent is about messages in a predefined format that are received by a mobile device, with each message being distributed to an application designed to process it. Without further information it's not clear to me whether this patent is standard-essential. It's pretty basic and broad, so maybe one can argue that any reasonable implementation of a certain standard will inevitably infringe it, but at least it's fair to say that this one is not easily identifiable as a standard-essential patent. The ITC is now going to decide, and I hope that the ruling on this issue will shed some light on HTC's essentiality theory.
HTC is one of three companies Nokia sued in May. The other two are RIM and Viewsonic. The Munich I Regional Court, which is about twice as fast as the ITC, already held a first hearing on one of Nokia's patent infringement claims against RIM. In my report on that hearing I mentioned that RIM is also trying to have at least some of Nokia's claims referred to arbitration, but the Munich court appeared skeptical.
Before the end of the year there will be several more hearings in Germany, including a trial in Mannheim, on Nokia complaints against HTC, RIM and Viewsonic.
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