Even the best companies may lose a patent case. But there's a right way and a wrong way to do it. While it can always happen that a plaintiff acting in good faith overrates the strength of a patent or the merits of an infringement contention, some defeats come with a fishy smell--such as Nokia's latest defeat in Germany against Daimler and its suppliers.
Last Wednesday (March 17, 2021), the Bundespatentgericht (Federal Patent Court of Germany) invalidated Nokia's EP1929826 on an "apparatus, method and computer program product to request a data rate increase based on ability to transmit at least one more selected data unit."
The title of that patent all by itself shows that it's a software patent--and should never have been granted under the European Patent Convention--, but other companies obtain and assert such patents as well, so the problem is EPO-related and not specific to Nokia. The former handset maker's conduct in connection with this patent is doubly troubling for other reasons:
As I already reported in December, Nokia withdrew the related case (and another one) in Dusseldorf only to refile immediately in Munich. This practice goes beyond forum-shopping: some call it "forum-hopping." But the Munich case is not going to go forward anytime soon after last week's nullity decision.
The ethically most problematic part is this: the Federal Patent Court's ruling was based on the claimed invention already having been in the relevant standard specifications as of the correct priority date. As a result, the court invalidated not only the patent in its granted form but also rejected all attempts by Nokia to salvage the patent by narrowing the claims. Nokia had originally claimed an earlier priority date, but the court held that there wasn't a legitimate claim to that earlier date.
This suggests that Nokia tried to obtain a patent--a monopoly enabling it to tax the tech industry--over something it hadn't actually "invented" (in quotes because, seriously, what that patent describes doesn't deserve being called an invention even as per the priority date Nokia claimed).
The practice of "opportunistic patenting" by participants in standard-setting processes is a known issue. Researches such as Rudi Bekkers have written about it and have shown that there's a conspicuous--or even suspicious--uptake in the filing of patent applications around ETSI meetings and other standardization-related events.
This EP'826 story is anything but conducive to Nokia's credibility.
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