Munich court skeptical of Nokia patent assertion against Google Talk

The Munich I Regional Court scheduled first hearings today in three cases brought by Nokia, all of which share the patent-in-suit, EP1322072 on "a mobile communication system and a method for connecting a remote workstation to a data communication network via a mobile communication network". The three defendants are -- in the order of today's hearings -- ViewSonic (an Android device maker), RIM, and HTC.

Google is involved with the ViewSonic and HTC cases as a third-party intervenor because Nokia's infringement allegations in these actions are all about Google Talk. Like its wholly-owned subsidiary Motorola Mobility, Google is being represented by Dr. Marcus Grosch of Quinn Emanuel. The head of Google's IP litigation department, Catherine Lacavera, traveled to Munich to attend. ViewSonic, a California company that is not a large player and might not even be interested in defending itself in Germany without support from Google, is represented by German commercial law firm Gleiss Lutz.

This is not the only case brought by Nokia in which Google acts as en intervenor. It even wanted to be included as a respondent in the ITC investigation of Nokia's complaint against HTC, but the ITC granted it only the status of an intervenor. Nor is it the only case in this venue (Munich) in which Google has to defend the Android client of one of its online services against an infringement contention. Microsoft recently amended an infringement complaint against Motorola Mobility in order to require Google to admit or deny allegations relating to Google Maps. The fact that Google at its own initiative elected to participate in an ITC investigation of HTC's products and at least two Munich actions brought by Nokia validates Microsoft's procedural decision.

At the outset of the first hearing (the ViewSonic case), Judge Andreas Mueller outlined his court's preliminary position on claim construction and on Nokia's infringement contentions. Judge Mueller is very skeptical of Nokia's case to say the least, though he did listen attentively to Nokia's counsel, Christian Harmsen of Bird & Bird, who presented Nokia's views.

The Munich-based court has previously held hearings on several other Nokia complaints, which on balance went fairly well for Nokia. Today it experienced its first setback in Munich. Unlike the cases in which the previous hearings took place, today's three cases are before Judge Mueller, in whose court other smartphone patent plaintiffs have previously struggled. Apple was denied a preliminary injunction against Samsung over the rubber-banding (overscroll bounce) patent; Microsoft was denied a preliminary injunction against Motorola (and recently withdrew the related appeal); and Apple was unlikely to prevail on more than a small part of its photo gallery patent case against HTC, with hardly a chance of prevailing on a couple of other multi-touch patents.

The fundamental issue with today's patent-in-suit is that the claim language refers to an interconnecting computer, whose functions Nokia believes are performed by Google's Google Talk service, but the court expressed its relatively strong inclination to believe that Google's servers are part of a data network and not of a telecommunications network. In today's landscape of networked services, the court's preliminary take is relatively narrow, given that a service like Google Talk is, from a functional point of view, a telecommunications service. It's pretty common by now that Internet servers handle certain communications tasks -- Skype is another example. Nokia's proposed understanding of the patent is certainly not narrow, but it's not completely overbroad. It's the kind of infringement theory that some judges are willing to adopt, while some others are not. And at least the initial feedback was that this court disagrees.

The court has scheduled a second hearing, which will effectively be a trial, for late July 2013.

For Nokia, this is just one of 45 or more patents-in-suit. For example, Nokia is asserting a total of 32 different patents against HTC in five venues.

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ITC lets Google intervene in Nokia-HTC case -- but denies it the status of a co-defendant

Last month, Google brought a motion to join the ITC investigation of Nokia's complaint against HTC as a respondent (i.e., as a co-defendant alongside HTC). Nokia opposed this motion, while HTC supported it.

In an order that entered the public record today, Administrative Law Judge Thomas B. Pender granted Google's motion to the extent that it may act as an intervenor, but denied its request to be named a respondent.

While Google's original motion was not made public, some of the subsequent filings, including the decision, are publicly accessible and indicate that Google's argument for being deemed a defendant just came down to arguing that certain closed-source Android apps are at isse in the investigation, so Google could be affected. But the legal standard for a party to be admitted to an ITC investigation as a respondent is considerably higher than that. The key criterion is whether a would-be respondent would see its own products affected by the remedy sought by the complainant. In this case, Nokia is asking for only a limited exclusion order against infringing HTC devices, as opposed to a general exclusion order against all Android-based gadgets. Google doesn't import those apps. HTC does.

To the extent that the filings are publicly accessible at all, I didn't see Google argue that its subsidiary Motorola Mobility, which undoubtedly imports Android apps and already faces one import ban for that reason, could be affected by the investigation of Nokia's complaint against HTC. It appears that Nokia and Motorola have a patent cross-license agreement in place that was renewed only a few years ago. I don't know which patents it covers, but if the ones at issue in this investigation are part of it, then Motorola has nothing to fear. Even if those patents were not licensed to Motorola under that agreement, the fact of the matter is still that Nokia seeks only a limited (vendor-specific) exclusion order.

Nokia had argued that Google is welcome to contribute information as a third party but doesn't have to become a co-defendant in order to be able to do so. Judge Pender also feels that while Google is in a better position to defend its (closed-source) Android apps than HTC is, it's sufficient for Google to act as an intervenor. The hurdle for that is lower.

After I saw the headline of Google's motion to intevene, I was really wondering whether there was anything that sets this Nokia-HTC dispute apart from other cases involving closed-source Android apps. Google hadn't previously asked to join an investigation or a lawsuit as a co-defendant only because its apps were at issue. But even based on Judge Pender's initial determination (which could be reviewed by the Commission, the six-member decision-making body at the top of the ITC), there's no indication for what sets this case apart from, for example, various Apple v. Samsung lawsuits.

I suspect that Google's request to be named a co-defendant was mostly symbolic. It wanted to show that it stands by its partners -- something that it has been claiming for almost two and a half years without being able to point to any particular and useful kind of help. In practical terms, if Google wants to provide source code of its closed-source Android apps for analysis, it can always do so. It won't even have a choice if it gets subpoenaed. It was required to do this in other investigations and lawsuits prior to this one. If Google has a great non-infringement or invalidity argument, it wouldn't even have to be a non-respondent intervenor: it could always have shared the information with HTC anyway.

Theoretically, as a co-defendant, Google would be in a better position to influence any future ITC investigations of complaints Nokia might bring against Android device makers over the same patents and targeting the same Google apps. But again, if there's a winning argument, any other defendant will gladly make use of it and point to an earlier ITC decision supporting such argument.

If there's any particular context in which it would make sense to name Google as a co-defendant rather than merely an intervenor, it's Apple's preliminary injunction against the Galaxy Nexus smartphone. Samsung and Google co-developed the Galaxy Nexus. But even in that context, Google can't force Apple to sue it directly, and Google didn't ask to be named a defendant in the lawsuit that gave rise to the preliminary injunction Samsung is appealing now.

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HTC asks ITC to let Google join as co-defendant against Nokia

Approximately two weeks ago I reported on Google's motion to intervene in the ITC investigation of Nokia's complaint against HTC as an additional respondent. Since Google's motion was sealed in its entirety (apart from the headline), it wasn't immediately clear on which basis Google sought to become a co-defendant in that particular action, given that dozens of Android-related infringement complaints had been filed before in different courts without Google ever asking to join as a respondent. Thus far, Google was (unless it was sued directly) only a third party to Android-related infringement proceedings.

A filing that HTC made in support of Google's motion on Thursday (which entered the public record on Friday) sheds some more light on this, and unless HTC omitted any important facts, it appears that there's absolutely nothing special about this Nokia-HTC action that would require Google's involvement any more than those dozens of other Android-related infringement cases I just mentioned.

HTC argues that "Google is uniquely situated to provide information necessary for the efficient resolution of Nokia's infringement allegations with respect to at least five of the patents asserted in this Investigation, which are primarily directed to features of Google developed applications that are embedded in the accused HTC products". HTC also says that "Nokia's infringement charts for five of the asserted patents that were included with the Complaint specifically identify and rely upon features of Gmail, Google Calendar, or other aspects of the Android operating system in order to allege infringement by these accused HTC products".

Android and Google-developed applications have been at issue in numerous other infringement actions, yet Google didn't seek to join those as a co-defendant: it contented itself with the role of a third party. For example, the "data tapping" patent that won Apple and import ban against HTC reads on Android's Linkify library. HTC's brief doesn't provide any indication as to why Google would not be able to provide whatever information it is "uniquely situated to provide" simply as a third party (the parties to the investigation would be free to subpoena Google anytime). HTC just says that "allowing Google to participate as a Respondent in this Investigation will avoid the need for complicated third party discovery with respect to those accused features", without specifying why third-party discovery wouldn't be sufficient, or why it would be "complicated". If a third party is particularly eager to provide information that helps the ITC adjudicate the issues, that only makes things easier, but even a party that doesn't volunteer to provide information will ultimately have to meet its legal obligations.

The ITC is a trade agency, not a court, and its focus in Section 337 investigations is on distortions of competition resulting from the importation of infringing products. HTC imports devices allegedly infringing Nokia's patents. Google provides software to HTC, and it has to accept responsibility for the software it publishes, but Google's role here may not fall within the narrow scope of Section 337 investigations by the ITC.

That said, I believe it's a positive thing that Google is willing to go further than before in its efforts to support Android device makers. HTC has been defending itself against Android-related patent litigation for almost two and a half years, and Google should have lent more support early on. The question is not if but how Google should come to HTC's (and other third-party device makers') aid. A recent transfer of patents from Google to HTC (for the purpose of countersuing Apple over them) fell short of a transfer of all rights, title and interest in the ITC's opinion. Now Google has brought a motion to join as an additional respondent that doesn't appear to state extremely compelling reasons. Nokia has opposed Google's motion in a brief that is just as sealed Google's motion itself. Based on HTC's brief (the only one in this context that is publicly-accessible so far), I'm not sure the ITC will see the need for Google to be anything other than a third party to the proceedings. Google can't force Nokia to sue it. Patent holders can sue anyone in the supply chain who creates or redistributes infringing material.

With respect to Google's attempts to support its device makers facing patent issues because of Android's infringement issues, the Wall Street Journal reported on Friday afternoon that Google is leading a consortium bidding for Eastman Kodak's digital imaging patents. According to the report (which cautioned readers that things could still change before formal bids are submitted on Monday), Google has joined forces with HTC as well as Samsung and LG. Google has also brought in a patent aggregator named RPX that security software maker Kaspersky Labs accused of extortion, racketeering and wire fraud.

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Google picks up Nokia's gauntlet, asks ITC for permission to join HTC as co-defendant

I just discovered a headline of an otherwise-sealed filing in the ITC investigation of Nokia's complaint against HTC (click on the image to enlarge or read the text below the image):

Investigation No.: 337-847

Investigation Title: Certain Electronic Devices, Including Mobile Phones and Tablet Computers, and Components Thereof

Security: Confidential

Firm: White and Case

On Behalf Of Google Inc.

Proposed Intervenor Google Inc.'s Motion to Intervene in Investigation as Respondent

In a separate filing, ten attorneys from White & Case notified the ITC of their work on Google's behalf and agreed to the terms of the protective order governing confidential information in this investigation.

This is the first time that Google asks to be named as a co-defendant in an action targeting a third-party Android device maker. So far, Google became involved with such processes in only the following ways:

• Google participates as a third party in many U.S. actions, which it inevitably has to because of its obligations to provide documents and testimony relating to Android's alleged infringement.

• Google attorneys attend many (though not all) Android-related patent trials in the U.S. and other jurisdictions. I frequently see a U.S.-based Google attorney at German trials.

• Google gave some patents to HTC (the ITC threw out five of those loan patents).

• Google bought itself into pending litigation with Apple and Microsoft by acquiring Motorola Mobility. Oddly, it appears that Motorola's legal position against Microsoft has been seriously weakened as a result -- possibly an unintended consequence -- of the deal.

But prior to this, Google never told a court: "someone who sues HTC (or Samsung or you name them) should also sue us."

Last week, HTC responded to Nokia's complaint. None of the defenses that HTC raised suggested to me that there was a pressing reason for Google to consider itself, or offer itself as, a target of this particular litigation any more than in any other case targeting Android devices.

Nokia's patent assertions aren't even limited to Android. It's also suing RIM (in Germany). It generally targets infringing devices across different platforms.

The only thing that's different about Nokia as a plaintiff in Android cases is that Google brought an EU antitrust complaint against Nokia (and Microsoft) last month. Nokia called the complaint "frivolous" and a waste of time and resources. Maybe Google's proposed intervention is in some way related to that initiative.

It's additionally or alternatively possible that Google has made a general strategic decision to join actions targeting Android devices with patents that are (if they are infringed by those devices at all) infringed by the Android operating system. While there's been a whole lot of attention for a few cases in which Android was cleared of infringement, courts in different jurisdictions have already held Android to infringe 11 valid Apple and Microsoft patents, and that number is going to keep growing until Google works out agreements with such major right holders. With last week's FujiFilm lawsuit against Google subsidiary Motorola Mobility, the collective market capitalization of publicly-traded operating companies claiming that Android infringes their patents has surpassed the $1 trillion threshold. While Android's market share continues to grow (more than one million Android devices are now activated every day), its intellectual property issues have been exacerbating over the last couple of years. Google may have come to realize that it must do more to address Android's patent worries.

At some point redacted versions of Google's motion to intervene or of any related pleadings or orders will become available. As soon as any information becomes available concerning the basis on which Google seeks to join this ITC action, I'll share it with you.

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