Qualcomm's enforcement of a likely invalid and most likely not infringed patent against Apple in Germany is a Pyrrhic victory that generates limited incremental chip sales but exacerbates its antitrust problems (instead of forcing Apple into a global settlement). But in another case, two German patent injunctions have brought about the desired result: MPEG LA, a patent pool company, "announced today that Huawei Technologies Co., Ltd., Huawei Device Co., Ltd and Huawei Device (Shenzhen) Co., Ltd ('Huawei') have become Licensees to MPEG LA's AVC Patent Portfolio License ('AVC License'). As a result of this agreement, all legal disputes related to patent enforcement actions brought by patent holders in MPEG LA's AVC License against Huawei have been resolved."
In November, MPEG LA announced that the Dusseldorf Regional Court ("Landgericht Düsseldorf" in Geman) ruled that Huawei and ZTE infringed patents of two contributors to its pool. In late December, MPEG LA announced that the Dusseldorf Higher Regional Court ("Oberlandesgericht Düsseldorf") denied Huawei's and ZTE's motions to stay the enforcement of injunctions over EP1773067 in Huawei's case and EP1750451 in ZTE's case. Both patents were filed for by Panasonic. But MPEG LA may have litigated over other patents as well (which would explain why they claimed that patents belonging to two pool contributors were enforced).
Presumably, ZTE will also settle in the near term. German injunctions can give a patent holder significant leverage, provided that they can't just be worked around.
MPEG LA appears to have a perfect litigation track record in Germany: whenever they sued someone there, MPEG LA prevailed on one or more patents. An MPEG LA press release states that "[a] team led by Axel Verhauwen of Krieger Mes & Graf v. der Groeben and Gottfried Schüll of Cohausz & Florack represented the plaintiffs." To the best of my knowledge, Mr. Verhauwen has represented MPEG LA in either all or at least the vast majority of its German lawsuits over the years.
It's unclear why Huawei and ZTE didn't just take a license, given that the cost of defending against a few patent infringement cases typically exceeds that of the annual royalty cap. It could be (and this is pure speculation) that those companies take issue with some non-monetary terms, such as a grant-back obligation.
In early December, 34 organizations signed an open letter calling for the application of the proportionality principle to patent infringement remedies in Europe. The list includes industry organizations such as CCIA and ip2innovate, major technology companies such as Samsung, Microsoft, SAP, Intel, HP, and Cisco, and automotive companies such as Volkswagen, Daimler, BMW, and Honda.
What makes Germany a particular hotbed for patent infringement lawsuits is the combination of speed, the enforcement gap (because it takes longer to invalidate a patent that should never have been granted than to obtain an infringement ruling) and, above all, access to injunctive relief as a legal remedy (as opposed to an equitable remedy involving an eBay-like analysis). In many cases, litigation watchers like me just have to look at the patent claims-in-suit to figure out that a plaintiff like BlackBerry (currently suing Facebook and its WhatsApp and Instagram subsidiaries) is simply playing the lottery with patents of dubious validity (software patents...), just because the grand prize is a Germany-wide injunction.
While I do agree with the above-mentioned open letter, the situation is more likely to get worse than to get better anytime soon.
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