On Friday, three hours after staying Samsung's smiley input patent lawsuit against Apple, the Mannheim Regional Court held a trial on Apple's rubber-banding (overscroll bounce) infringement action against Samsung. The patent-in-suit is EP2126678 on "list scrolling and document translation, scaling, and rotation on a touch-screen display.
The Mannheim court has already stayed a couple of other Apple lawsuits over doubts concerning the validity of certain asserted intellectual property rights. And a stay could also happen in the rubber-banding case, though the hurdle is high (German courts only stay patent infringement cases if there's at least an 80% probability of invalidation) and it looks like a close question whether Samsung's invalidity contentions meet that threshold.
Samsung's lead counsel in this action, Dr. Hendrik Timmann of Rospatt Osten Pross, formally disputed at least some of Apple's infringement claims, but it appeared to me during the course of the discussion that Samsung, which developed a workaround for this patent last year, mostly just wanted to force Apple to propose a claim construction that would support Samsung's invalidity contentions. Motorola pursued a similar strategy in Munich, where it initially came close to conceding infringement but elected to dispute it at trial. Apple won an injunction against Motorola because the court believed that the rubber-banding patent might be invalidated in the end but didn't assess the likelihood of such outcome to be sufficient to justify a stay.
I had attended the Munich trial (and a first hearing), and Judge Voss ("Voß" in German) appeared more skeptical of the validity of this patent than his counterpart in Munich did. Whether that skepticism corresponds to a probability assessment of at least 80% is another question, scheduled to be answered on February 8, 2013, a day on which the court may issue a final ruling or a procedural order.
One of the indications of skepticism concerning validity that I noticed is that at some point Judge Voss reminded Apple's lead counsel, Freshfields Bruckhaus Deringer's Dr. Markus Gampp, of the fact that the claim language is not specific to a bounceback but merely requires that a document is moved in a second direction, which may but need not be the opposite direction of a first movement. This means the court is aware of the fact that the patent is relatively broad. If a judge alerts a patentee to an indication of breadth, it's not because of infringement (broader patents are more easily infringed) but because of validity issues. The broader a patent is, the greater the risk that some prior art reference falls within its scope.
An even more important issue concerning the scope of the claim is how to construe the term "electronic document". I won't go into detail on this question at this point because it would require relatively detailed explanations but I may do so at some other time (for example, when there are new developments in a reexamination or nullity action).
The most important prior art reference in the Mannheim case is WO03081458, in some U.S. documents called "Lira" (by the name of its inventor), a patent application on "controlling content display". In late October, the USPTO issued a non-final rejection (tentative invalidation) of all claims of the corresponding U.S. Patent No. 7,469,381, and most of the preliminary rejections were based on Lira.
Counsel for Samsung mentioned the USPTO's first Office action when Judge Voss inquired about the timeline in an opposition proceeding at the European Patent Office. While Judge Voss and the other members of the panel are undoubtedly aware of the first Office action, it has no formal bearing on proceedings at the EPO. Parties can oppose the grant of an EPO patent within nine months of its publication, and that's what Samsung, Motorola and HTC did in this case. HTC has withdrawn its opposition as a result of the settlement, but Samsung and Motorola are still pursuing it. No specific timeline, such as a hearing date, is in place for the opposition proceeding. That fact could help Apple because it would be an easier decision for the Mannheim court to stay the case if the opposition proceeding was due to be resolved in the very near term.
It's very difficult to predict the outcome. Samsung is closer to a stay than Motorola was in the Munich case, but Apple is also closer to an injunction than it was in most (if not all) of its other Mannheim cases. Come February, I'll be in Mannheim to find out.
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