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?

3 Personal observations and experiences only: not necessarily the views of Nokia

1) Number of cases – by jurisdiction- filed each year Parallel nullity actions in Germany excluded

US UK Germany Italy France Netherlands Austria China 2006 6 4 2 1 1 0 1 1 2007 18 0 9 0 0 0 0 2 2008 15 5 6 2 0 0 0 2 2009 21 1 7 3 1 1 0 3 2010 22 6 24 4 0 0 0 1

Where do patent cases go to trial

4 Personal observations and experiences only: not necessarily the views of Nokia

1) Number cases taken to trial in past few years (infringement and first instance only)

Total: US UK Germany China 2006 1 1 n/a 2007 1 2 2 n/a 2008 0 7 2009 1 1 5 1 2010 3 5 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

7 Personal observations and experiences only: not necessarily the views of Nokia

• UK court hears validity and infringement/essentiality together

ItalyTribunale 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

LandgerichtMannheim

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 ./. Apple

Regional Court Mannheim 09 December 2011 Injunction against

AppleMotorola Mobility ./. Apple

Regional Court Mannheim 04 November 2011 Injunction against Apple

IPCom/Nokia Regional Court Mannheim 8 February 2011 Injunction against Nokia

IPCom/HTC Regional Court Mannheim February 2009 Injunction against HTC

Map of interactions

16 Personal observations and experiences only: not necessarily the views of Nokia

German infringement court

UK court

Federal Patent Court

Italian Civil Court

Italian ProsecutorsFrench court

Dutch court

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

Increase need to

reach cross licence with

non-EU competitors

Pay higher royalties to

non-EU competitors

Reduced cash

available for R&D in Europe

Fewer EP patents

than non-EU competitors

Increased risk of business disrupting injunction

compared to non-EU based competitors

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

Europea

n

^But really rather good for our competitors!