Workshop: Protecting market position
IP Finance and Monetisation
Conference, Krakow, 6-7 September
2012
Richard Vary
Head of Litigation, Nokia
1
Personal observations and experiences only: not necessarily the views of Nokia
2
Personal observations and experiences only: not necessarily the views of Nokia
Where in practice do we see patent cases filed?
1) Number of cases – by jurisdiction- filed each year
Parallel nullity actions in Germany excluded
2006
2007
2008
2009
2010
3
US
6
18
15
21
22
UK
4
0
5
1
6
Germany
2
9
6
7
24
Personal observations and experiences only: not necessarily the views of Nokia
Italy
1
0
2
3
4
France
1
0
0
1
0
Netherlands
0
0
0
1
0
Austria
1
0
0
0
0
China
1
2
2
3
1
Where do patent cases go to trial
1) Number cases taken to trial in past few years (infringement and first instance only)
Total:
2006
2007
2008
2009
2010
4
US
1
0
1
3
UK
1
2
1
Personal observations and experiences only: not necessarily the views of Nokia
Germany
1
2
7
5
5
China
n/a
n/a
1
2
The UK
High Court London
5
Personal observations and experiences only: not necessarily the views of Nokia
What differences do we see in the UK system?
• Declaratory relief
• Quick but rigorous trial
• Discovery
• experts
• Amendments must be made in good time
• Costs awards: typically winner recovers 60-80% of
actual cost
6
Personal observations and experiences only: not necessarily the views of Nokia
The squeeze
•UK court hears validity and infringement/essentiality together
7
Personal observations and experiences only: not necessarily the views of Nokia
Italy
Tribunale di Milano
8
Personal observations and experiences only: not necessarily the views of Nokia
The Netherlands
• District Court of the Hague
• Fast procedure, but speed comes with certain costs:
• can’t easily amend, or evolve your case
• Strict time limits for evidence
• Infringement/validity
heard together
• High reputation of judges
• Cross border reach
9
Personal observations and experiences only: not necessarily the views of Nokia
France
10
Personal observations and experiences only: not necessarily the views of Nokia
How does it work in Germany?
• Race to a remedy: get injunction before patent
invalidated
• argue for broad construction before regional
court, narrow on invalidity
11
Personal observations and experiences only: not necessarily the views of Nokia
Dusseldorf
12
Personal observations and experiences only: not necessarily the views of Nokia
Landgericht
Mannheim
13
Personal observations and experiences only: not necessarily the views of Nokia
Bundespatentgericht
14
Personal observations and experiences only: not necessarily the views of Nokia
Result: If you haven’t been injuncted in Germany by
now, you should probably be a little offended
Parties
Court
Date of Decision
Decision
Apple ./. Motorola
Regional Court Munich I
01 March 2012
Injunction against Motorola
Apple ./. Motorola
Regional Court Munich I
16 February 2012
Injunction against Motorola
Motorola ./. Apple
Regional Court Mannheim
3 February 2012
Injunction against Apple
Apple ./. Samsung
Regional Court Munich I
01 February 2012
Injunction
against
Samsung
HTC ./. IPCom
Regional Court Düsseldorf
19 December 2011
Injunction against IPCom
(misleading warning letters)
Motorola
Mobility ./. Regional Court Mannheim
09 December 2011
Injunction against Apple
Apple
Motorola Mobility ./.
Apple
IPCom/Nokia
Regional Court Mannheim
04 November 2011
Injunction against Apple
Regional Court Mannheim
8 February 2011
Injunction against Nokia
IPCom/HTC
Regional Court Mannheim
February 2009
Injunction against HTC
Map of interactions
German infringement court
Federal Patent Court
UK court
Italian Civil Court
French court
16
Personal observations and experiences only: not necessarily the views of Nokia
Dutch
court
Italian Prosecutors
Imagine you are a CEO
• Where would you locate your factories, your warehouses, your distribution
centres?
Unified Patent Court
• Local or regional divisions hear infringement
• Revocation may be local, or referred to the Central Division
• Injunctions are pan European
18
Personal observations and experiences only: not necessarily the views of Nokia
The vicious circle of bifurcation
Increased risk
of business
disrupting
injunction
compared to
non-EU based
competitors
Increase
need to reach
cross licence
with non-EU
competitors
Fewer EP
patents than
non-EU
competitors
Pay higher
royalties to
non-EU
competitors
Reduced
cash
available for
R&D in
Europe
Result
Ultimately EU-based hi-tech business less able to compete with non-EU competitors, as
they will become net payers of royalties
• International companies: relocate factories/distribution hubs to Asia/US
• Domestic companies: don’t grow as fast, or fail
Fewer jobs/less investment in Europe
Bifurcation: bad for business
But really rather good for our competitors!