What a coincidence: Just while I was blogging about Qualcomm's efforts to enforce its Munich patent injunction against Apple, Judge Dana M. Sabraw of the United States District Court for the Southern District of California entered an order after which Qualcomm and Quinn Emanuel should be ashamed for the procedural shenanigans with which they obtained an injunction in Germany that appears to be absolutely baseless. Both the United States International Trade Commission (USITC, or just ITC) and a district court in Qualcomm's home town of San Diego have now found that the chipset accused in the Munich case against Apple clearly doesn't infringe.
Qualcomm and Quinn Emanuel simply appear to be abusing the German legal system. I really regret to say so because I never doubted Qualcomm's innovative capacity and usually I only have good things to say about Quinn Emanuel, but in this context they are giving patent enforcement a bad name.
On the subject of bad names, how about Trollcomm?
Enforcing a patent injunction against a non-infringer (on the basis of a $1.5 billion deposit, by the way) is the most reprehensible conduct by a patent holder that I've ever seen. At the recent FTC v. Qualcomm trial, they were referring to their 130,000 patents. If they have so many patents and believe those patents are so strong, why do they have to stoop to this? Can't they see that their reputation is at stake? And don't they realize that abusive, illegimate enforcement activities like this only complicate Qualcomm's efforts to defend its business model and patent licensing strategies with "legitimate business justifications" such as the ones they just tried to sell to Judge Koh last month?
The Munich injunction--technically, a pair of injunctions over the same patent targeting Apple Inc. in one case and two European Apple entities in the other--was based on an agnostic decision on the merits. The court had not evaluated whether the iPhone 7, 8 and X actually infringe the patent-in-suit. The court--with the help of the expert it appointed--could only have performed an actual infringement analysis if Qualcomm's German lawyers had done what their U.S. colleagues (from the same firm) had negotiated in the Middle District of North Carolina: they'd have had to accept the terms of a protective order under which the inner workings of a chip made by Qorvo would have been disclosed only to Qualcomm's attorneys, but not to Qualcomm's engineers.
I explained the problem in detail in a blog post in December. The defendant's dilemma under the Munich court's approach (which the appeals court may or may not reverse) is that a company like Qorvo either has to disclose its secrets to competitors (in a fiercely competitive industry) or it will be held to "infringe," even in a case like this where it's clear by now that there is no infringement.
I've said all along that I don't know how that chip works. But both the ITC and the district court in San Diego have conducted extensive discovery. They listened to experts who had access to the relevant information. And on both coasts they have held that Qorvo's envelope tracker chip does not infringe the U.S. equivalent of the German patent-in-suit.
Here's today's San Diego ruling (this post continues below the document):
19-02-05 Summary Judgment O... by on Scribd
The relevant passage of the ruling (which relates to multiple motions) is this:
"Next, Apple moves for summary judgment of noninfringement of the ‘558 Patent. Specifically, Apple argues there are no genuine issues of material fact that [REDACTED] of the accused products does not literally infringe the 'offset current' limitation of independent claim 15 and dependent claim 19, and that [REDACTED] of the accused products does not infringe claim 15 or 19 under the doctrine of equivalents." (emphasis added)
"[...] Accordingly, Qualcomm is not entitled to a range of equivalents for the #offset current# limitation, and without that, Apple is entitled to summary judgment of no infringement of claims 15 and 19 of the ‘558 Patent."
The absence of that "offset" was Apple's primary non-infringement argument in Munich. They also raised other issues, but this was the one they thought could be easily decided in their favor if only the court and its expert had looked at Qorvo's chipset schematics--which Qorvo would have been happy to do (they even had the chip designer waiting outside the courtroom for almost 12 hours so he'd be available to testify if needed), but on condition of the chipset schematics and related secrets not being disclosed to Qualcomm's engineers. A condition that is perfectly reasonable, and that--again--the same law firm had accepted in the United States.
Qualcomm acted in bad faith by starting a discovery proceeding in the U.S. that was conducted with the explicit objective of presenting the discovered material in the German case, negotiating a protective order, and then walking back on it. Now we know the most likely reason by far and away: they changed their plans because they knew they were going to lose. So they were hoping that the Munich court would, as it did, hand them an illegitimate victory.
It's a counterfactual injunction. One might call it a fake injunction.
Two U.S. proceedings--thousands of miles apart--have shown that Qualcomm can't prevail on that envelope tracker patent in a fair proceeding where all the facts are on the table. It can only prevail through abusive tactics.
It is, by the way, an unusual situation in procedural terms that a U.S. district court is adjudicating a so-called companion complaint (filed simultaneously with an ITC complaint and asserting the same patents) while the ITC has not even finalized its related investigation. But, for whatever reason, Apple didn't move for a stay of the companion case, though most defendants do so. Apple could have requested--and would have been granted--a stay early on. At the time, it wasn't foreseeable at all that the U.S. court would later hand down a summary judgment ruling just when the appeals court in Munich would be looking at a patently illegimate injunction.
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