The patent dispute between Nokia and HTC continues to escalate. With Nokia's recently-lodged second ITC complaint against HTC, which is now being investigated, and simultaneous filings in the Southern District of California the number of patents Nokia is currently asserting against HTC has reached (if not surpassed) 50. Meanwhile, the number of HTC complaints against Nokia (all of them filed in Germany) has increased from three to five. At an HTC v. Nokia trial held in Munich today I learned about HTC's attack on half a dozen new (Windows Phone 8-based) Nokia Lumia smartphones, which it is targeting in two courts in parallel (HTC is suing Nokia's German subsidiary in Mannheim and the Finnish parent company in Munich) over a power-saving patent it's also asserting in Mannheim and Munich against older (Windows Phone 7-based) smartphones. The accused functionality is implemented by chipsets, not the Windows Phone operating system per se.
The number of distinct patents asserted by HTC against Nokia is still the same: two. In one Mannheim case, HTC subsidiary S3 Graphics is alleging infringement of a video processing patent by Qualcomm's Snapdragon chip. That case will go to trial tomorrow. In another Mannheim case, which went to trial on May 31 and in which a decision (which may or may not be a final ruling) has been scheduled for August 23, and in a Munich case that went to trial this morning (with a decision scheduled for September 12), HTC is asserting EP2073096 on "power management systems and methods for electronic devices". The cases that have already gone to trial involve previous-generation devices. HTC's amendments to both power management patent complaints for the purpose of accusing newer Lumia phones were severed by the Mannheim and Munich courts and put on separate schedules. The Munich case will be heard on October 31.
In all jurisdictions the fast pace of this industry poses challenges to patent enforcement. Yesterday a United States Magistrate Judge suggested to Apple (in a footnote of a ruling) that it bring a third infringement complaint against Samsung in the Northern District of California in order to accuse the Galaxy S4.
In mid-February I reported on the first Munich hearing (patent infringement cases in the Munich I Regional Court typically involve an "early first hearing" and a second trial, which is tantamount to a trial). Since then HTC has apparently, besides bringing an amendment, addressed some of the evidentiary issues highlighted in February. The court had suggested some measurement of power-saving effects, and some such effort was mentioned today (without much detail). And HTC has amended its infringement contentions so as to capture non-literal infringement based on the German equivalent of the Doctrine of Equivalents (DoE).
Even though Nokia filed a nullity (invalidation) complaint with the Federal Patent Court of Germany in December 2012, today's discussion was solely about administrative issues (court fees and a bond covering Nokia's legal fees in the event HTC loses and fails to pay) for the first hour and about claim construction and infringement analysis during the next two hours. There was no time to discuss Nokia's motion to stay the case (should an infringement be identified) pending the nullity proceeding. Judge Dr. Zigann said that an unusual (but not unheard of) third hearing may have to be held to discuss the likelihood of success of Nokia's nullity action, but this will be necessary only if the court is convinced of there being an infringement. The court did not take a clear position on the merits of the infringement allegations, but if it felt that HTC had a strong infringement theory, it would have set aside some time today for the (in)validity part of the case or at least would have scheduled a near-term subsequent hearing for that purpose rather than wait until mid-September to decide whether to hold that other hearing at all. Should the third hearing be necessary, HTC has already requested that it take place on October 31 when its more recently-filed claims will be heard as well.
The challenge HTC faces here is the same that Nokia faces in the dozens of cases in which it is the plaintiff (and in which HTC has so far been an amazingly effective defendant, so far losing only one case that didn't have devastating consequences): a defendant can raise multiple non-infringement arguments, and if only one of them succeeds, the case is dismissed. I don't know whether HTC has a stronger infringement case for those newer Nokia Lumia devices, which come with different chips, but today it was clearly struggling to deal with Nokia's defenses to infringement.
The patent's literal scope is that a telecommunications chip will wake up an application processing chip from its sleep state if certain messages are identified based on patterns. This way the application processing unit can save power when not needed, but incoming calls (including voice-over-IP calls) won't be missed. Simply put, Nokia's noninfringement arguments are that the devices accused in this action don't conduct positive filtering (finding and processing matches) but sort out by means of negative filtering (throwing out non-matching messages), which HTC says is, if not a literal infringement, an equivalent. Nokia says there's neither a literal nor a non-literal infringement because, in any event, what's missing is a wake-up messages to the application processing unit. In response to this, HTC contends that the inter-chip messaging by means of interrupts has the effect of a wake-up message. Nokia does not dispute that interrupts are involved (it's simply the way chips typically communicate with each other) -- but it says that the interrupts HTC means don't fall within the scope of the claims. Not all interrupts are wake-up signals.
According to Nokia, HTC's broad construction of the term "wake-up signal" would result in an extremely high frequency of switches from sleep to normal state, which Nokia says cannot possibly be meant to be the idea covered by this patent. Nokia does not deny that its chips consume more power if they have more work to do. It does dispute, however, that the claim language, which also refers to the process of entering a state, has scope for the usual inter-chip communication by means of interrupts unless there's such a thing as an identifiable wake-up signal, triggered by identification of a certain data pattern.
These are just HTC's primary challenges on the infringement side; Nokia may also have raised some other points that weren't discussed today. And even if there is an infringement, an injunction won't issue unless HTC fends off Nokia's motion to stay.
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