Nokia v OPPO '023 trial
| Jurisdiction | England & Wales |
| Judge | Mr Justice Meade |
| Judgment Date | 09 November 2022 |
| Neutral Citation | [2022] EWHC 2814 (Pat) |
| Docket Number | Case No: HP-2021-000023 |
| Court | Chancery Division (Patents Court) |
[2022] EWHC 2814 (Pat)
Mr. Justice Meade
Case No: HP-2021-000023
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
PATENTS COURT
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr. Michael Tappin KC and Mr. Edward Cronan (instructed by Bird Bird) for the Claimant
Mr. Guy Burkill KC and Mr. Daniel Selmi (instructed by Hogan Lovells International LLP) for the Defendants
Hearing dates: 20–22 and 26–27 September 2022
Remote hand-down: This judgment will be handed down remotely by circulation to the parties or their representatives by email and release to The National Archives. A copy of the judgment in final form as handed down should be available on The National Archives website shortly thereafter but can otherwise be obtained on request by email to the Judicial Office ( press.enquiries@judiciary.uk).
| Introduction | 3 |
| Conduct of the trial | 3 |
| The issues | 4 |
| The witnesses | 5 |
| The skilled addressee | 8 |
| The common general knowledge | 8 |
| Agreed CGK | 8 |
| Disputed CGK – power supplies | 8 |
| SMPS only | 10 |
| Reynaert | 11 |
| Work on relevant systems around the priority date | 12 |
| Disputed CGK — LTE | 13 |
| 1RB v 100 RBs | 15 |
| The Patent | 17 |
| Claims in issue | 20 |
| Claim Scope | 21 |
| Claim 1[d] | 21 |
| “for low-pass filtering the amplitude component” | 24 |
| Claim 6 “feed-forward” path | 24 |
| Infringement | 25 |
| Confidentiality | 25 |
| Facts | 26 |
| Further findings I was asked to make | 27 |
| Claim 6 | 28 |
| Conclusion on the infringement questions | 29 |
| Validity | 29 |
| Removal of Arayashiki | 29 |
| Pozzoli | 30 |
| Obviousness – the law | 30 |
| Ideas patent | 30 |
| No a priori expectation when reading the prior art | 31 |
| CGK alone | 31 |
| Jarvinen | 31 |
| Pozzoli 2 and 3 | 33 |
| Pozzoli 4, assessment | 33 |
| Hadjichristos | 35 |
| Pozzoli 2 and 3 | 36 |
| Pozzoli 4, assessment | 36 |
| Claim 6 | 38 |
| Sufficiency squeeze | 39 |
| Amendment | 39 |
| The law | 40 |
| Amendment A | 40 |
| Amendment B | 41 |
| Conclusions | 41 |
INTRODUCTION
In this action, the Claimant (“Nokia”) alleges that the Defendants (together, “Oppo”) have infringed European Patent (UK) No. 3 716 560 B1 (“the Patent”) by the sale of certain mobile phones with 4G/LTE functionality (“the Oppo phones”); the trial was conducted by reference to three specimen devices. Oppo deny infringement and say that the Patent is invalid.
This action is part of a wider, global battle between Nokia and Oppo over the terms of a licence for Nokia's patent portfolio. In a parallel action in the Patents Court, Nokia is deploying some standard-essential patents (“SEPs”), but the Patent is not alleged to be essential. It is what is sometimes called an “implementation” patent.
The alleged infringement arises from the operation of the chips inside Oppo phones. The chips are made by Qualcomm and their details are confidential. This has meant that Nokia has sought to prove infringement by doing experiments and by obtaining disclosure from Qualcomm in the US Courts using the procedure under 28 USC §1782 (“1782”).
During the proceedings, and in connection with the experiments, it emerged that software updates (“the Update”) to at least some Oppo phones meant that they no longer had the allegedly infringing functionality; this appeared to come as a surprise to both sides.
Nokia wanted to press ahead in relation to Oppo's acts with phones prior to their having the Update. Nokia also said at interlocutory hearings that it had tested some more recent Oppo phones (“the Newer Oppo phones”) and that they retain the allegedly infringing functionality. Oppo has not accepted this and the Newer Oppo phones are not the subject of this trial. Nokia said that the situation with the Newer Oppo phones is another reason why this trial is necessary.
The situation with the Update demonstrates that it is possible to make and sell 4G/LTE mobile phones without infringing the Patent. That is not surprising given that the Patent is an implementation patent and not a SEP.
In that light, and generally, I have questioned during the course of these proceedings whether an action on a single implementation patent is a good use of resources or an efficient way to move the parties to a resolution of the overall issue of the terms of a new licence to Nokia's portfolio, but I recognise that I do not have as good an appreciation of the dynamics between the parties as they do, and Nokia is clearly entitled to litigate what it regards as an invasion of a monopoly, even leaving aside the position with the Newer Oppo phones.
CONDUCT OF THE TRIAL
The trial was conducted live in Court and there were no COVID issues.
Because of the highly confidential nature of the 1782 materials from Qualcomm, it was necessary to sit in private nearly all the time when discussing infringement. Although there were high level points that were not confidential and the experiments were not confidential (having been done by Nokia on sample devices bought, as I understand it, through normal sales channels) the practical reality was that they were too interwoven with the confidential materials.
I was satisfied that this was a proportionate way to proceed and drew an appropriate balance between Qualcomm's justifiable concerns and open justice. Unlike many mobile phone cases there was little to no interest in the trial on the part of non-parties, and the result and principal reasons for it (which can be at a high level, as I explain below) will be made adequately open by this judgment.
I was assisted in drawing this balance by helpful submissions from Qualcomm. Qualcomm designated essentially everything from the 1782 process as highly confidential, with the result that access even for the parties has been severely restricted. I made it clear at an earlier hearing that that would require review because of the parties' interest in knowing not only who has won, but why.
I also make clear, however, that Qualcomm's position was one of a high level of caution at an early stage, when it was not at all apparent how much of the extensive materials given would be relevant and actually used in Court. As matters have progressed, very little need be used to understand the judgment. It boils down to one high level circuit diagram with all detail removed, of a circuit of a type which at a general level was well known, and even that is relevant only to a dependent claim not material to the overall result. I gave Qualcomm a further opportunity to make submissions on a draft of this judgment, prior to determining its public form for hand down, with the result that the entirety of this judgment is open. Had it been necessary to decide what, if anything, to put in a confidential part of this judgment then as well as the interests specific to this case, I would have been willing to take into account that third party disclosure procedures such as those under 1782 are a useful and necessary tool and it would be undesirable to deter compliance by acting without appropriate caution.
In its written closing submissions, Oppo accepted that in the light of the cross-examination of its expert and the totality of the materials (Nokia's experiments and the Qualcomm 1782 documents) it could no longer dispute the presence in the Oppo phones without the Update of key features of claim 1. It qualified this concession in certain ways, notably by saying that it was on the basis of a particular construction, and it maintained a squeeze on a peripheral claim feature, but subject to those reservations this essentially amounted to admitting infringement. This has made the details of the experiments less relevant (although there may still be an argument about them on costs) and has also greatly reduced the need to refer to Qualcomm materials.
THE ISSUES
The issues are:
i) The scope of the common general knowledge (“CGK”). There are two major areas of disagreement.
ii) A number of points on claim interpretation relevant to validity over the prior art and to the infringement arguments.
iii) Infringement, there being no remaining dispute of fact material to the overall result. There is however an issue over whether I should make certain additional factual findings and an issue over dependent claim 6.
iv) Validity over three pieces of prior art (the attacks are all of obviousness, anticipation is not alleged):
a) US patent application US2006/0178119 A1, “Jarvinen”.
b) European Patent Application EP 1 598 943 A1, “Arayashiki”.
c) An article from the IEEE 2004 Custom Integrated Circuits Conference “Hadjichristos”.
v) A sufficiency squeeze on obviousness.
vi) The allowability of two amendments to the Patent proposed by Nokia.
There was one issue that was central to the validity arguments. That was whether it was obvious in the light of what was generally known about LTE to conceive of and put into practice the main idea of claim 1 of the Patent. I have reached the view that Nokia is right about this point, which applied with similar logic and force to all the prior art citations. There are other more minor points on each citation, but Nokia's success on this one means that all the prior art attacks fail.
The result of that, as I shall go on to identify, is that the allowability of the amendments to the Patent do not matter because they were both made to distance...
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