Patent News

Prior to settlement, Apple got Qualcomm’s German fake patent injunction lifted: appeals court deemed it likely flawed

Days before the sudden settlement between Apple and Qualcomm, a German appeals court had preliminarily annulled the latter’s most significant courtroom victory over the former, as I found out today. After months of briefing and in-depth analysis, the Oberlandesgericht München (Munich Higher Regional Court) granted a motion by Apple to stay the enforcement of a Germany-wide patent injunction Qualcomm had obtained from the Landgericht München I (Munich Regional Court). Apple had worked around that injunction anyway, and its effects were as minimal as they were short-lived. But the implications for patent enforcement in Germany–a sizable market in which injunctions have so far (change may be coming soon) been granted as a near-automatic legal remedy.

Blogs are opinion platforms, and my outspokenness and willingness to make sometimes daring predictions position me as a particularly opinionated blogger on patent matters. In fact, patent professionals sometimes share my posts on LinkedIn saying that they disagree with my views but find useful information here–which is perfectly fine, and it would be a surprise if a former anti-software-patent campaigner’s positions were perfectly congruent with those of people whose job it is to prosecute or enforce patents.

Nevertheless, I try hard to disagree respectfully when I disagree, and judges deserve particular respect for all intents and purposes. So only under the most egregious of circumstances would I refer to a decision as a “fake injunction,” but I carefully chose that term for the injunction the Landgericht München I (Munich Regional Court) had granted to Qualcomm against Apple on December 20, 2018 on an agnostic basis, creating what I called a “defendant’s dilemma”: give up your secrets by letting a competitor’s engineers learn about the inner workings of a chipset–or lose your case.

At first I just called it an “agnostic” injunction because the court had made clear (not only at the oral announcement of the ruling but also in a written press release) that the question of whether or not a Qorvo enveloper tracker chip in the iPhone 7, the iPhone 8 and the iPHone X actually infringed Qualcomm’s patent-in-suit. The decision was based on the court’s determination that Qualcomm’s infringement assertion, though based on an inherently unreliable (as the court-appointed expert acknowledged) teardown report, was deemed more substantiated than Apple’s denial. Apple had brought along the Qorvo engineer who designed the chip. Heroically, but in vain, Mr. Mike Kay waited on a hard wooden seat outside the courtroom for about 12 hours.

In early February, after a summary judgment ruling by a U.S. district judge here in San Diego (Judge Dana M. Sabraw) agreed with Apple’s primary non-infringement contention (after looking at evidence and hearing testimony the Munich court never got to, and consistently with what the ITC found last year), I replaced “agnostic” with “counterfactual” or simply “fake.” I did so despite truly (and still) considering Presiding Judge Dr. Matthias Zigann a leading German patent judge. And I harshly criticized, with words like “worse than the worst troll,” Qualcomm (a great mobile tech innovator) and Quinn Emanuel’s Dr. Marcus Grosch (a phenomenal patent litigator) for enforcing a fake injunction, which I considered unethical. Not only did Qualcomm enforce that injunction but they also obtained another one over allegedly deceptive advertising because Apple assured customers they’d still find the iPhone 7 and the iPhone 8 everywhere. That one also got lifted, but by the lower court itself (and a different panel of judges; not Judge Dr. Zigann’s patent-specialized panel).

Now, after almost four months, there’s justice. Apple’s lead counsel in this action, Hoyng Rokh Monegier’s Klaus Haft, who is regarded as one of Germany’s best patent litigators, brought a motion back in December asking the appeals court, the Munich Higher Regional Court, to stay the enforcement of Qualcomm’s injunction pending the appeal. That appeal won’t be resolved anymore after yesterday’s global settlement. But I’ve been able to receive official confirmation from a spokeswoman (an appellate judge in her main capacity) for the Munich Higher Regional Court that Mr. Haft’s motion had been granted because Presiding Judge Konrad Retzer’s panel of three appellate judges determined (on a preliminary basis since a final appellate opinion would require full-blown appellate proceedings) that the lower court had erred in three ways:

  • The lower court erroneously rejected Apple’s infringement defense as insufficiently substantiated.

  • The lower court erroneously dismissed Apple’s infringement defense (I would compare this to a successful motion to dismiss in a U.S. case, or a summary judgment to that effect).

  • The lower court erroneously deemed some of Apple’s contentions to have been brought out of time. (On that basis, as I recall, the Munich I Regional Court denied Apple’s motion to reopen the record, which would have allowed it to discuss new evidency and hear testimony on an additional trial day.)

Due to a workaround, the injunction had no more impact on consumers anyway–but other injunctions on a smilar “damned if you do, damned if you don’t” basis could have harmed consumers and innovation. Sanity has been restored. That’s excellent news.

There still are some patent-related issues with respect to which we need sanity. One of them is the question of global FRAND rate determinations by UK courts.

Share with other professionals via LinkedIn:

var addthis_config = {“data_track_clickback”:true};

View the original article here: Prior to settlement, Apple got Qualcomm’s German fake patent injunction lifted: appeals court deemed it likely flawed

The article was originally posted on FOSS Patents.
Each article is copyrighted to their original authors. We do not own any rights to the news or the images used. Whilst every care is taken to ensure that the news posts published are accurate, we cannot guarantee the authenticity of the news article on every occasion. There’s no copyright infringement intended. The news is for informational purposes only and does not provide legal advice.