After a UK FRAND determination that InterDigital said it would appeal, the research and licensing firm has now also suffered a few setbacks against OPPO in Germany. In late December 2021, InterDigital announced standard-essential patent (SEP) enforcement against actions OPPO in Germany, the UK, and India.
I found out at the time that one case had been filed in Mannheim, and two in Munich.
Like other plaintiffs in recent months (example, InterDigital faces the problem that ever more infringement actions in Germany get stayed or otherwise delayed by preliminary opinions of the Federal Patent Court. Those preliminary opinions used to take about two years to come down. But roughly a year ago, a provision of Germany's 2021 patent "reform" bill entered into force (for nullity actions filed from there on out) and now calls on the Federal Patent Court to hand down preliminary assessments within six months of a nullity complaint. The statute that was originally considered the most important one of the "reform" bill--the injunction statute--has proved just as useless as I predicted (there is not a single case in which a disproportionality defense even came close to preventing or otherwise affecting a patent injunction). And that one took effect more than 20 months ago.
The six-month target for the Federal Patent Court is, however, making a difference, even though it is not a hard requirement and the judges of the Federal Patent Court wouldn't have to express a strong opinion on the validity or invalidity of the challenged patent claims (they could just outline what issues appear likely to be outcome-determinative).
Plaintiffs now need a good strategy to amend the claims, though new claim language that has not been examined by a patent office meets a lot of skepticism in some German courts. Otherwise they need to be patient or, if they are not (and few licensors want to wait years to get paid), they must assert more patents against a given defendant than before.
Apart from the fact that the Federal Patent Court often deems patents--on a preliminary basis--invalid, it's generally neither enjoyable nor profitable to sue OPPO over patents. Nokia sued OPPO almost two frustrating years ago, and InterDigital's campaign started almost 16 months back and is not likely to yield results in Germany anytime soon.
A spokesman for the Mannheim Regional Court has confirmed to me that on March 10, 2023, the court's Seventh Civil Chamber stayed InterDigital v. OPPO case no. 7 O 46/22 over EP2485558 on a "method and apparatus for providing and utilizing a non-contention based channel in a wireless communication system." That same patent was actually deemed valid and essential to 4G by a UK judge in an InterDigital v. Lenovo case less than two years ago. But the Federal Patent Court of Germany handed down a preliminary opinion on February 2, 2023, in light of which the Mannheim Regional Court stayed the case.
I've also received information from a spokesman for the Munich I Regional Court concerning two cases pending before different civil chambers (judicial panels):
In case no. 21 O 17303/21 (21st Civil Chamber; Presiding Judge: Dr. Georg Werner) over EP2421318 on a "method and apparatus for transmitting scheduling information in a wireless communication system." That patent, too, fared well in the UK InterDigital v. Lenovo litigation. But instead of entering final judgment on March 1, 2023, the Munich court scheduled an additional trial day for October 18, 2023. According to the court, InterDigital had asked to reopen the proceedings.
On February 20, 2023, the Federal Patent Court issued a preliminary opinion in preparation of a September 14, 2023 nullity trial. The new trial date in the infringement case suggests that the outcome of the nullity trial (where a decision is typically announced, though the written judgment still takes several months to come down) will be considered. Should InterDigital be able to salvage the patent in one form or another, the trial will go ahead. Otherwise the case will presumably be stayed. The Federal Patent Court's preliminary opinion raises non-novelty issues for the challenged claims and declares some--but not all--auxiliary claims (amended claims) inadmissible.
On April 27, 2023 (i.e., in a week from today), the Munich I Regional Court will announce a decision in case no. 7 O 17302/21 (Seventh Civil Chamber; Presiding Judge: Dr. Oliver Schoen ("Schön" in German)) over EP2127420 on an "implicit drx cycle length adjustment control in lte_active mode." It is unclear whether next week's decision will be a final judgment or, practically, a stay. For the latter case, the court has already scheduled a new trial date: November 23, 2023.
The Federal Patent Court had rendered a preliminary opinion on that patent on March 27, 2023.
When InterDigital sued OPPO in December 2021, expectations were presumably higher than what has come out of those German cases so far. And even if InterDigital wins a German patent injunction against OPPO at some point, it may prove useless as the company stopped selling devices in Germany last summer so as not to be forced to take worldwide patent licenses that would adversely impact OPPO's competitiveness in some large but rather price-sensitive markets.
