Four months back, Qualcomm's lead counsel in the German Qualcomm v. Apple cases, Quinn Emanuel's Dr. Marcus Grosch, hoped to obtain a Germany-wide patent injunction against Apple this summer. The related case (one of various patent infringement claims Qualcomm has brought against Apple in Germany) went to trial this afternoon, and it's unlikely that anything, if ever, will happen in that particular matter before the summer of 2019.
The patent-in-suit, EP2954737 on a "power tracker for multiple transmit signals sent simultaneously," is under massive pressure because of Apple and Intel's opposition to its recent grant. Of the four prior art references cited, Alcatel Lucent's European patent application EP2442440A1 poses the greatest--though not the only--threat to Qualcomm's patent.
At today's trial it turned out that Qualcomm itself recognized that this patent, granted only about a year ago, is not the most defensible one. After reviewing Apple and Intel's petition for revocation, Qualcomm decided to narrow the claim scope by filing an application for a divisional patent that would (if granted, which is a huge IF) be limited to wireless devices. However, Presiding Judge Dr. Holger Kircher of the Mannheim Regional Court indicated in his initial summary of the court's preliminary position that he and his two colleagues were inclined to stay the case pending the EPO's decision on Apple and Intel's opposition--and the divisional patent that Qualcomm was seeking to obtain wouldn't have affected the court's validity assessment where we stand, given that a new filing, which may or may not result in a patent grant, just doesn't enjoy the strong presumption of validity that applies to actually-issued patents.
While the court was inclined to agree with Qualcomm's infringement theory and unconvinced of Apple's defenses (including its claim that Intel, its supplier, had prior use rights), validity was a lost cause for Qualcomm based on the current state of affairs. Therefore, Qualcomm's counsel didn't really see an alternative to a stipulated stay. He'd have preferred to limit the stay to the first decision by an EPO examiner on the new divisional patent application, but Judge Dr. Kircher reminded him of his procedural options: should there be other relevant developments, Qualcomm could bring a motion and the court would take another look at whether the stay might be lifted.
The parties finally stipulated to a stay. The opposition proceeding will likely result in a decision in mid-2019, given--as Samson & Partner's Dr. Wolfgang Lippich (a patent attorney on Apple's defense team) explained--the EPO's internal timelines for opposition proceedings involving patents that are being asserted in litigation.
On the infringement side, the court applied a broad claim construction, particularly with respect to the words "based on". Those words are followed by "a plurality of [components]," but despite Hoyng ROKH Monegier's Klaus Haft (lead counsel for Apple) explaining how the claim and certain paragraphs of the specification require multiple measurements to take place, the court remained convinced that this claim language dictated a rather broad interpretation (which, of course, has implications for validity as well, though validity will have to be resolved in a different forum, the European Patent Office).
By contrast, the court tends to interpret the statute governing prior use rights in Germany (§ 12 of the German Patent Act) rather narrowly. Reference was made today to an internal Intel presentation, but Judge Dr. Kircher's preliminary opinion was that Intel, while it had the relevant technical idea, had not actually implemented it to a sufficient extent by the priority date of Qualcomm's patent. He felt it was more like some people at Intel--and this must actually be about the mobile chipset division Intel acquired from Infineon--had said: "Wouldn't it be a nice idea to do this?" Unsurpisingly, Mr. Haft disagreed and pointed to the multi-year periods it takes from a firm technical decision to the actual availability of a chipset.
Apple had also raised antitrust defenses. However, Judge Dr. Kircher said that only the enforcement of an injunction would have antitrust implications, while Qualcomm could seek damages. Therefore, Qualcomm's allegedly anticompetitive behavior would not justify a stay of the entire case.
Since Apple convinced the court--and, by extension, even Qualcomm--that a stay was warranted, Apple's other defenses (such as its non-infringement theories, prior use, and antitrust defenses) are moot for the time being. Qualcomm now has to deliver a valid patent. Unless and until it does so (which will take time), this case here won't be resumed. Meanwhie, other Qualcomm v. Apple patent infringement assertions will go to trial. For the second half of the year, the Mannheim court has scheduled two Qualcomm v. Apple trials, and the Munich I Regional Court will hold three (there have already been first hearings in those cases).
Qualcomm's quest for leverage has been dealt a significant setback, but will continue without a doubt. But most likely today's stay wasn't the last one in that dispute.
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