Optis Cellular Technology LLC v Apple Retail UK Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Meade |
| Judgment Date | 15 March 2022 |
| Neutral Citation | [2022] EWHC 561 (Pat) |
| Docket Number | Case No. HP-2019-000006 |
| Court | Chancery Division (Patents Court) |
[2022] EWHC 561 (Pat)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
PATENTS COURT
Rolls Building
Fetter Lane
London, EC4A 1NL
Mr Justice Meade
Case No. HP-2019-000006
Thomas Hinchliffe QC, James Whyte and Jennifer Dixon (instructed by EIP Europe LLP) for the Claimants
Charlotte May QC, Lindsay Lane QC, Joe Delaney and Jeremy Heald (instructed by WilmerHale LLP) for the Defendants
Hearing dates: 18–21 and 26–27 January 2022
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
| Introduction | 4 |
| Conduct of the trial | 4 |
| The issues | 5 |
| Terminology | 5 |
| The witnesses | 6 |
| Optis' expert, Mr Bradford | 6 |
| Apple's expert, Mr Edwards | 7 |
| The skilled person | 8 |
| The common general knowledge | 10 |
| Sources of CGK | 11 |
| Agreed common general knowledge | 12 |
| Cellular network architecture | 12 |
| OSI Protocol model | 13 |
| Multiple Access Methods | 14 |
| Impairments in mobile systems | 17 |
| Techniques for overcoming impairments | 18 |
| LTE development. . | 21 |
| The LTE Standards | 25 |
| Disputed common general knowledge | 30 |
| CAZAC sequences | 30 |
| LTE frequency and resource allocations | 31 |
| PUCCH | 31 |
| PDCCH | 32 |
| Implicit Signalling of Resource Allocation – Kobe agreement | 32 |
| Mixed Resource Blocks | 35 |
| The Patents | 37 |
| Claims of the Patent in issue | 37 |
| Teaching of the Patents | 41 |
| High level summary | 42 |
| Teaching of the specification in more detail | 44 |
| Issues of claim interpretation | 46 |
| “Code multiplexing structure” | 47 |
| CCE associated with a … PUCCH | 49 |
| Infringement/essentiality | 51 |
| The facts | 51 |
| Legal principles | 53 |
| Validity over the prior art | 57 |
| Legal principles — obviousness | 57 |
| Disclosure of Panasonic | 58 |
| Obviousness over Panasonic | 59 |
| Pozzoli questions 1 and 2 | 59 |
| Pozzoli question 3 | 59 |
| Pozzoli question 4 – claim 1 of 549 | 60 |
| Does Table 1 disclose using three spreading codes for data? | 60 |
| Multiplexing ACK/NACK and CQI | 63 |
| Unused cyclic shift | 65 |
| 810 additional feature | 65 |
| Overall assessment | 65 |
| Disclosure of Nokia | 66 |
| The disclosure in detail | 67 |
| Section 1 – Introduction | 67 |
| Section 2 – Utilisation of CDM resources of ACK/NACK resource | 68 |
| Section 3 – Configuration of implicit ACK/NACK resources | 69 |
| Section 4 – Proposed signalling scheme | 69 |
| Sections 5 and 6 – Benefits and Summary | 71 |
| Nokia 002 | 72 |
| Does Nokia disclose using three Walsh codes for data? | 74 |
| Steps from Nokia to the Patents | 75 |
| 3 codes for data and 2-cyclic-shift gap | 75 |
| Using an MRB and unused cyclic shifts | 76 |
| 810 | 76 |
| Overall | 77 |
| Apple's alternative case over Nokia | 77 |
| Claim 8 of 549 and claim 2 of 810 | 79 |
| Insufficiency | 79 |
| Objections to amendment | 79 |
| Clarity | 79 |
| Added matter | 81 |
| Legal test | 81 |
| No disclosure of 3 out of 4 orthogonal sequences | 81 |
| Conclusions | 83 |
INTRODUCTION
This is “Trial D” in these proceedings, the last of the “technical” trials. Earlier judgments give the procedural context.
There are two closely related patents in issue at this trial, namely EP (UK) 2 187 549 B1 (“ 549”), and EP (UK) 2 690 810 B1 (“ 810”). I will refer to them collectively as “the Patents”.
The Patents are from the same family. By agreement I only need to look at the specification of 549 since such differences as there are in the specification of 810 are immaterial, and references in this judgment to specification paragraph numbers are to 549. The priority date, no longer in dispute, is 13 August 2007.
The Patents come from a portfolio owned by Panasonic and were later acquired by Optis. As it so happens, one of the pieces of prior art is from Panasonic, but nothing turns on that.
The Patents, the relevant claims of which are product claims covering “mobile stations” (i.e. mobile phones), are declared essential to LTE. Essentiality is disputed. The dispute arises because the functionality in question, while capable of being supported by Apple mobile phones, is not used in the UK.
Validity is attacked over two pieces of prior art called Panasonic and Nokia. Panasonic is cited for obviousness. The main attack over Nokia is also obviousness. Apple has a secondary case over Nokia, run as a squeeze against infringement, which was pleaded as obviousness but as it turned out was also an anticipation attack against 549. This did not change the substance of what was said, though, so I gave Apple permission to amend its Grounds of Invalidity on the last day of trial.
Optis applies to amend both of the Patents and since these are unconditional amendments the Patents will be revoked if the amendments are refused. At the start of the trial amendment was opposed on the grounds of lack of clarity, added matter, and extension of protection, but extension of protection was dropped in Apple's written closing (along with one of the added matter points).
CONDUCT OF THE TRIAL
Apart from day 2 when the hearing was remote because of a positive COVID result among the legal representatives, the trial was conducted in Court. This meant that most of the oral evidence was given live, but Optis' expert was cross-examined remotely on day 2. I do not think this caused any problem or any unfairness. Throughout the trial, a live feed was made available for the public should they ask, and also for clients or representatives who could not fit into Court owing to COVID restrictions. I am grateful to the third-party providers engaged by the parties to make the technology work.
Mr Hinchliffe QC, Mr Whyte and Ms Dixon appeared for Optis and Ms May QC, Ms Lane QC, Mr Delaney and Mr Heald for Apple.
THE ISSUES
The issues for me to decide are:
i) The nature of the skilled person, where there was a disagreement similar to that which I considered in Trial C, [2021] EWHC 3121 (Pat).
ii) The scope of the common general knowledge (“CGK”). Much was agreed but there were also areas of material disagreement.
iii) Claim construction, where two points arise, one relevant to validity and one to essentiality/infringement.
iv) Essentiality and hence infringement, arising from the fact that the functionality in question is optional and not used in the UK by any network. There is no dispute of fact and no debate over what the relevant LTE standards require.
v) Obviousness over TDoc R1-072799 “ Panasonic”, in conjunction with CGK.
vi) Obviousness over TDoc R1-073006 “ Nokia”, in conjunction with CGK.
vii) Anticipation over Nokia, which I have mentioned already and was a squeeze on infringement.
viii) An insufficiency squeeze against obviousness, which was barely developed at trial.
ix) Whether the amendments to the Patents ought to be refused for:
a) Lack of clarity;
b) Added matter.
I propose to deal with the issues in that order, but I should mention that the issues interrelate to an unusual degree and the parties dealt with the same subject matter under different headings from each other. For example, Apple dealt with the clarity objection to amendment largely under the heading of construction. I make no criticism of this, but it has, I fear, made the structure of this judgment untidy in places and led to some repetition on my part.
TERMINOLOGY
In this field terminology can be confusing. For example, a mobile telephone may be called a mobile, a mobile phone, a UE or a mobile station depending on context, and base station, BTS, NodeB and eNodeB all refer to the same thing, again in varying contexts. One particular aspect of the relevant context is the generation being discussed, whether 2G, 3G or 4G. An additional difficulty is that patents use their own terminology.
In some patent cases the differences between e.g. a NodeB and an eNodeB may be important, but in the present case they are not.
For simplicity, I have aimed (I expect not completely successfully) to refer to “mobile” and “base station” or “the network” in my own text, but I have not generally tried to amend materials that I have referenced or quoted. I have sometimes referred to “UE”, “NodeB and “eNodeB” where the context is more specific to the standards, as is the case in relation to infringement and some aspects of validity.
There are also some less well-known technical concepts in this case that are referred by different names. I explain them below, but it is worth flagging at this stage that:
i) “Zadoff-Chu”, also known as “ZC” sequences are types of “CAZAC” sequences. For the purposes of this judgment there is no material difference.
ii) Likewise, “Walsh codes”, “Hadamard codes”, “block codes” and “blockwise spreading codes” can all be regarded as the same thing for practical purposes, with the first two being specific instances of the latter.
THE WITNESSES
Each side called one expert witness.
There was fact evidence on behalf of Apple from Mr Francis Rowsell who oversaw “drive” testing of UK LTE networks in relation to the infringement/essentiality issue. He was not cross-examined and his evidence went in unchallenged.
Optis' expert, Mr Bradford
Optis' expert was Mr Daniel Bradford.
Mr Bradford has a degree in electronic engineering with business management from the University of York, which he...
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Optis Cellular Technology LLC and Ors v Apple Retail UK Ltd and Others
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