Nokia has been litigating against HTC for 17 months. Slowly but surely, it seems that even HTC's outstanding defensive skills and stalling tactics won't enable it to go on for too long without a license to some of Nokia's non-standard-essential patents (it already has a SEP license).
On Monday, a preliminary ruling on Nokia's first ITC complaint against HTC held the latter to infringe two wireless (but non-standard-essential) Nokia patents. Those findings are subject to a Commission review, and the final ruling could be different, but it's not easy to do away with two infringement findings at the same time.
In the investigation of Nokia's second ITC complaint against HTC, another Administrative Law Judge decided last month that Nokia was allowed to reassert a patent that HTC's stalling tactics got removed from the earlier-launched investigation. Today a public redacted version of that order became available. The short version of the story is that HTC persuaded the ITC to refer that patent to arbitration, capitalizing on a low legal standard (a claim of arbitrability just has to be a little bit less ridiculous than "wholly groundless"), but it later derailed the arbitration proceeding and instead filed a declaratory judgment action in the UK. All of this is creative, but it was too much for the taste of the ITC judge in charge of the second investigation (ALJ Theodore Essex), whose order makes clear that he's got HTC and its stalling tactics figured out:
"The conduct taken by HTC in this series of events cannot be tolerated -- HTC removed the '529 Patent from litigation in order to submit the dispute to arbitration, yet it ultimately decided not to continue with arbitration and instead chose to pursue litigation. HTC cannot now seek to delay this litigation by arguing, yet again, that the only proper venue to resolve the dispute surrounding the '529 Patent is arbitration."
"[T]he ALJ finds it disingenuous of HTC to argue that Nokia is 'required' to seek arbitration, but then to hold such a 'requirement' to be Nokia's own fault and of Nokia's own doing."
This is like saying, "I didn't just fall off the turnip truck".
The first quote above mentions a UK action. HTC brought a number of declaratory judgment actions in the UK, and Nokia responded with offensive (infringement) counterclaims. I found out that a UK trial over some patents is scheduled to begin on October 7. I will try to find out more as things progress there.
The U.S. (where Nokia brought not only those two ITC complaints but also federal lawsuits in the District of Delaware and the Southern District of California), the UK and Germany (where lawsuits were filed in three different regional courts) are not even the only jurisdictions in which Nokia is asserting its rights against HTC. Nokia's statement on Monday's preliminary ITC ruling (quoted in an update at the end of my post on the decision) mentioned that one of the patents Judge Pender found valid and infringed is also at issue in, among other venues, Rome, Italy. So far this blog has reported on only one decision (technically two rulings over two different patents, but practically the same issues) made by an Italian court: the January 2012 dismissal of a SEP-based preliminary injunction request by Samsung against Apple. Samsung had sued in Milan. Prior to Nokia's statement I had never heard of a patent infringement lawsuit in Rome, though. Today I found out a little bit more. There is a court in Rome that has a division ("Nona Sezione Civile", i.e., "9th Civil Division") that hears, inter alia, patent cases ("brevetti" means "patents"). Italy is a large market, so if Nokia won one or more cases there, it would gain some additional leverage to whatever it may achieve in the U.S. and Germany -- unless HTC elects to take a license in the meantime, of course, which is the inevitable outcome.
So far I've found out about two Nokia v. HTC lawsuits in the Eternal City: one about EP1133831 on a "method and arrangement for transmitting and receiving RF signals through various radio interfaces of communication systems", the European equivalent of U.S. Patent No. 7,415,247, which is one of the two patents Judge Pender found infringed earlier this week, and another one about EP0998024 on a "modulator structure for a transmitter and a mobile station". I understand that EP'024 will be at issue, among others, at the London trial scheduled to begin on October 7, and that both patents asserted in Rome will go to trial in Düsseldorf, Germany, in early 2014.
There are certainly reasons to assume that a license deal will happen before the end of the year. But I can't rule out that those Düsseldorf trials will have to be held, in which case I'll attend at least some of them.
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