If Nokia doesn't reach a settlement with OPPO for some more time, and if the Federal Patent Court of Germany reaches the same conclusion as a French court, Nokia may face a hefty damages claim for wrongful enforcement (way bigger than the 400,000 euros in legal fees that the French court ordered Nokia to reimburse). It was the first injunction Nokia obtained against OPPO, and OPPO subsequently left the German market. If it gets to that point, the Mannheim Regional Court's Second Civil Chamber under Presiding Judge Dr. Holger Kircher would suffer a blow to its normally great reputation. In this post I am forced to raise the question of a presumably subconscious, yet systematic bias of some German patent judges against Chinese defendants, which is a serious problem in my observation.
That Mannheim panel made a decision last year in Nokia's favor against OPPO that I fundamentally disagreed with. In a parallel case involving two standard-esssential patents from one family I also disagreed (on claim construction), but to a different degree. I considered the non-SEP decision nothing short of unbelievable. My view of the patent-in-suit having been clearly invalid has now been vindicated by the Tribunal judiciaire de Paris (TJP), which one could describe as the Paris District Court. That's the court with which French patent infringement actions are filed in the first instance.
In fact, the French court also invalidated a second patent, but the other one had not been asserted in Germany, at least not to my knowledge. I'll show you the operative parts of both decisions further below. Let's first focus on the Mannheim and Karlsruhe courts' apparent mistake. How can a patent-specialized panel of judges not deem a patent invalid that seriously teaches nothing other than the following:
"If you know that a WiFi network will tell you if it is currently available, don't ask whether it is currently available."
Nokia's EP1704731 on a "method and apparatus for indicating service set identifiers to probe for" is ridiculous. When I saw it, I called it the technically thinnest European patent I've ever seen in litigation. It is litigation opportunism that a truly innovative company like Nokia would resort to such a patent in an effort to gain leverage. And it is inexplicable that two of the German patent judges I hold in the highest regard for their technical understanding particularly in the field of wireless technologies--Judge Dr. Kircher (of whom I've said that he deserves an honorary doctorate in wireless engineering) and then, in a decision rejecting a motion for an enforcement stay, Presiding Judge Andreas Voss ("Voß" in German) of the Karlsruhe Higher Regional Court, who is generally one of the smartest judges I know--did not identify that patent as a joke. The hurdle for an enforcement stay is high, but when a patent is so clearly weak, that shouldn't serve as an excuse for not stopping enforcement.
On the same day that I reported on the definitive invalidation by the European Patent Office (first confirmed by the Mannheim Regional Court, subsequently also by the EPO Boards of Appeal) of a Nokia patent-in-suit challenged by OPPO, the TJP declared EP'731 invalid for lack of novelty. That is the worst-case scenario for a decision to invalidate a patent, as lack of an inventive step would have the same effect but involves more than one piece of prior art. So even if the appeals court in France or the Federal Patent Court in the parallel German case did not reach the same conclusion that the claimed invention was fully anticipated by the prior art (a conclusion that I believe is right), it's hard to see how the patent would not at least be invalidated for its failure to meet the non-obviousness requirement.
Here's the operative part of the French decision (click on the image to enlarge):
German judges' bias against Chinese defendants
I've previously observed that many (presumably not all) German patent judges have a bias against Chinese companies. In fact, Presiding Judge Ulrike Voss ("Voß" in German) of the Dusseldorf Higher Regional Court and also Judge Andreas Voss (the two are not related as far as I know) have made statements at conferences that had me concerned. At Munich's Ludwig Maximilian University, I overheard a conversation between the Dusseldorf judge and BMW in-house patent counsel Edmund Mangold, in the course of which she defended Germany's injunction-friendly jurisprudence on the following basis:
"I hear you, but we have to deal with unrepentant infringers where injunctions are absolutely necessary. I don't want to... but, let me just say they are frequently from Asia."
Her Karlsruhe-based peer expressed, at a webinar in the late summer of 2021 (discussing that year's German patent injunction "reform"), his concern that clarification by the Federal Court of Justice would likely only arise from a case in which the defendant would be "some company from the Far East whose business model is centered around infringement."
If U.S. judges said anything in public like what those two judges from German appeals (!) courts said in recent years, they'd be accused of racism and potentially impeached. I hereby call on the German judiciary and on German UPC judges to prove in the months and years ahead that Asian and particularly Chinese defendants are finally treated fairly. I firmly believe that various decisions that were made against Chinese defendants would probably not have been made against, for instance, a company like Apple, to provide just one example. Apple has not lost a case in Mannheim (unless I missed something) in a long time...
Another patent invalidated in France
The other Nokia patent that went down the tubes in Paris is EP1702486 on "arranging handover" (click on the image to enlarge):
That ruling was handed down late on Thursday.
OPPO is represented by Hogan Lovells in France (as well as in Germany, where EP'486 is not being asserted as far as I can see, and where Hogan Lovells lost the EP'731 non-SEP case at a time when the Federal Patent Court did not yet issue its non-binding preliminary opinions in time for the infringement hearings, as the relevant statutory amendment had not yet taken effect when the action was filed).
