Unwired Planet International Ltd v Huawei Technologies Company, Ltd and Others Unwired Planet, Inc. (Ninth Party) Unwired Planet LLC (Tenth Party) Telefonaktiebolaget LM Ericsson (Eleventh Party)

JurisdictionEngland & Wales
JudgeMr Justice Birss
Judgment Date23 November 2015
Neutral Citation[2015] EWHC 3366 (Pat)
Docket NumberCase No: HP-2014-000005
CourtChancery Division (Patents Court)
Date23 November 2015

[2015] EWHC 3366 (Pat)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

PATENTS COURT

Royal Courts of Justice, Rolls Building,

Fetter Lane, London, EC4A 1NL

Before:

The Hon. Mr Justice Birss

Case No: HP-2014-000005

Between:
Unwired Planet International Limited
Claimant
and
(1) Huawei Technologies Co., Limited
(2) Huawei Technologies (UK) Co., Limited
(3) Samsung Electronics Co., Limited
(4) Samsung Electronics (UK) Limited
(5) Google Inc.
(6) Google Ireland Limited
(7) Google Commerce Limited
Defendants

and

Unwired Planet, Inc.
Ninth Party
Unwired Planet LLC
Tenth Party

and

Telefonaktiebolaget LM Ericsson
Eleventh Party

Adrian Speck QC, Mark Chacksfield and Thomas Jones (instructed by EIP Legal) for Unwired Planet

Andrew Lykiardopoulos QC and Ben Longstaff (instructed by Powell Gilbert) for Huawei

Charlotte May QC and Brian Nicholson (instructed by Bristows) for Samsung

Hearing dates: 7th, 8th, 13th, 14th, 16th, 19th and 20th October 2015

Mr Justice Birss

Topic

Para

Introduction

1

The issues

6

The witnesses

9

The skilled person / team

15

Common general knowledge

19

The patent

53

Claim construction

62

Counting retransmissions

67

Counting payload data

77

Upon assembly

87

Dual reset (claim 9)

95

Infringement / Essentiality

100

Priority

103

The priority document

108

Priority — retransmission

122

Priority — payload data

124

Priority — upon assembly

130

Priority — dual reset (claim 9)

138

Novelty

144

Obviousness

173

Motorola TDoc

177

Draft LTE standard 3GPP TS 36.322 V.8.0.0

205

Samsung TDoc

210

Claim 9

230

Conclusion

234

Introduction

1

This is a patent case in the mobile telecommunications field concerning EP (UK) 2,229,744 entitled "Method and arrangement in a wireless communication network". The priority date claimed by the patent is 8th January 2008, based on a US application US 61/019,746. The patent itself was granted on 22nd May 2013. The original patentee was Ericsson. The claimant Unwired Planet acquired the patent from Ericsson.

2

The patent is concerned with an efficient polling system for a wireless communication network. In this context the word "poll" refers to a message sent by a transmitter of data to the receiver to ask the receiver to tell the transmitter what information has been received. In the context of the mobile radio networks in this case, the poll asks the receiver to send a "status report". When the transmitter receives a status report it can work out whether the data transmitted has been received and if not, which packets of data are missing and need to be retransmitted.

3

This dispute is the first of a series of cases which concern the patent portfolio acquired by Unwired Planet from Ericsson. Further technical trials in relation to five other patents from this portfolio are currently listed. A non-technical trial to determine FRAND and competition issues is also scheduled to take place following the conclusion of the technical trials.

4

The patent has been declared as essential to the LTE 4G telecommunications system. Unwired Planet alleges that Huawei and Samsung infringe the patent by manufacturing and selling equipment that operates in accordance with the LTE standard specified in 3GPP TS 36.322 release 8 version 8.8.0. Unwired Planet contends that the patent is essential to the standard and, therefore, Huawei and Samsung's compliance with the standard means they infringe. Huawei and Samsung argue that compliance with the standard does not fall within the claims. They also contend that the patent is invalid. Some of the arguments advanced in relation to construction and invalidity are common to both defendants, while others are put forward on an individual basis by either Huawei or Samsung.

5

Google were originally sued by Unwired Planet as well but that dispute has settled.

The issues

6

The relevant claims alleged to be independently valid are 1 and 9, as follows:

Claim 1: Method in a first node for requesting a status report from a second node, the first node and the second node both being comprised within a wireless communication network, the status report comprising positive and/or negative acknowledgement of data sent from the first node to be received by the second node, wherein the method comprises the steps of:

transmitting a sequence of data units or data unit segments to be received by the second node, the method further comprises the steps of:

counting the number of transmitted data units and the number of transmitted data bytes of the transmitted data units, and,

requesting a status report from the second node if the counted number of transmitted data units exceeds or equals a first predefined value or the counted number of transmitted data bytes of the transmitted data units exceeds or equals a second predefined value.

Claim 9: Method according to any of the previous claims 6–8, wherein the steps of resetting the first counter and the second counter is performed when the first predefined value is reached or exceeded by the first counter or when the second predefined value is reached or exceeded by the second counter.

7

Claim 9 is dependent on claims 6–8 rather than being directly dependent on claim 1. Nothing turns on this. For example claim 6 refers simply to resetting each of the counters to zero.

8

The issues are:

i) Claim construction, infringement (essentiality) and priority. Unwired Planet submits that on the correct construction of the claims they are entitled to priority and they cover the LTE standard. The defendants submit that if the claims are construed as Unwired Planet contend then they are not entitled to priority. It is common ground that any claim which loses priority lacks novelty over the version of the relevant part of the LTE standard published in the period between the priority date and the filing date, 3GPP TS 36.322 V.8.3.0. It is also common ground that if the claims are construed as the defendants contend then they are not infringed.

ii) Novelty. Both sets of defendants rely on 3GPP temporary document R2–080236 ("the Ericsson TDoc"). It is common ground that the patent will be invalid if the Ericsson TDoc is part of the state of the art at the priority date. The debate is a point of law based on international time zones.

iii) Obviousness in the light of:

a) the draft LTE standard 3GPP TS 36.322 V8.0.0;

b) 3GPP temporary document R2–073538 ("the Motorola TDoc");

c) 3GPP temporary document R2–074270 ("the Samsung TDoc").

Points a) and b) are argued by Huawei, point c) is argued by Samsung.

The witnesses

9

Unwired Planet called Dr David Cooper as an expert. Dr Cooper has been an independent engineering consultant at Hillebrand Consulting Engineers since 2008. Prior to this, he worked at Panasonic Mobile Communications Development of Europe Ltd, first as manager for Digital Signal Processing and Chipset Development and subsequently as Standards and IPR Manager. He is also a director and part-owner of 3GWave Ltd, a mobile communication company.

10

Huawei called Mr Liam Wickins as an expert. Mr Wickins owns a consultancy business operating in the areas of wireless systems, embedded systems, project management and product development life cycle management. Prior to this, he worked as a software engineer concerned with wireless communications systems, particularly 3G systems. He has worked in industry since the late 1990s, mostly at PicoChip Designs Ltd in Bath.

11

Samsung called Dr James Irvine as an expert. Dr Irvine has been a Reader in the Institute of Communications and Signal Processing at the department of Electronic & Electrical Engineering at the University of Strathclyde since 2006. Dr Irvine has been involved in telecommunications since starting his PhD in 1989. He has worked with numerous companies involved with 3GPP standardisation activities and is a member of an IEEE committee concerned with training students in the standards development process. His current research interest includes resource management problems.

12

Unwired Planet submitted that Dr Irvine had muddled the concepts of a buffer and a window. It is true that Dr Irvine's first report was unclear in some places in this respect and he agreed that one diagram needed to be relabelled but the point cannot be taken too far. Dr Irvine explained how the two concepts relate to one another, as they clearly do. The fact a muddle took place did not undermine his evidence.

13

All three experts gave their evidence fairly, seeking to assist the court. I am grateful to each of them for their evidence and assistance in this case.

14

The defendants relied on two fact witnesses about the availability of the Ericsson TDoc. Neither was cross-examined. They were Christian Loyau and Gert-Jan Van Lieshout. There was also fact evidence from Chaoling Ye from Huawei about a sample Huawei product in issue and from Heather McCann about ownership of patents. Neither of those witnesses was cross-examined either.

The skilled person/team

15

There was no dispute amongst the identity of the person skilled in the art. Both Mr Wickins and Dr Irvine broadly agreed with Dr Cooper's characterisation of the skilled person in his first expert report, so I will start with Dr Cooper's formulation.

16

The skilled person is a telecoms systems engineer. He would be the technical lead of a team of engineers whose work consisted of designing and implementing transmission error detection / correction and stall prevention mechanisms (such as polling) for the air interface. This team would be part of a larger group designing and implementing the whole air interface.

17

The skilled person would have an undergraduate degree in either a relevant engineering field, such as telecoms or software engineering, or...

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