Who wins, who loses? Two ambivalent outcomes

The IPKat thanks his friend Edward Tomlinson for sending him this link to a ruling of the High Court for England and Wales that had not, at the time of posting, made it to BAILII. This ruling establishes that InterDigital Technology Corporation's European patent 0 515 610, which designated the UK as a country in which protection was sought, is indeed essential to the 3G UMTS WCDMA European Standard. This means that, in the court's opinion, neither Nokia nor anyone else can comply with this technical standard -- which is promulgated by the European Telecommunications Standards Institute (ETSI) -- without either infringing the patent or taking a licence to work it.

The patent relates to open loop power control, a fundamental aspect of 3G technology. Patents with identical or similar claim language to the ‘610 patent have been issued in the United States and Canada as well as a clutch of key European jurisdictions. The effect of this ruling is that Nokia is to withdraw its challenge to the essentiality of another patent (European patent (UK) 0,515,675) relating to pilot codes, effectively conceding that that patent is also essential. While this doesn't look great for Nokia, since that company brought its challenge to the ETSI standard, InterDigital has conceded that nine of its 'standard' patents are non-essential, while a further two patents are no longer in force. A further 15 patents remain in contention.

The IPKat is fascinated by this litigation, which he believes, is novel within the UK. ETSI itself was reluctant to become involved, leaving it to the parties to slug it out. This is a shame: a lot can be learned about the formation of effectively beatified cartels from the manner in which standards are identified and enforced. Merpel still wonders why, with so many countries to choose from, the parties ended up litigating this dispute in England and Wales. Do any readers have an explanation, given that so many people keep telling us that that jurisdiction is such a bad place to litigate patent disputes?

Earlier IPKat post on this dispute here

Thanks, too, to the IPKat's friend Jim Davies for retrieving this item about the settlement (that sounds like a euphemism) of Apple's dispute with Think Secret over the latter's fan site. This is a bit of an old row, really, having blown up in January 2005, when Think Secret revealed details of Apple's Mac Mini before the date of its official unveiling. Apple brought the lawsuit to make the fan site reveal who had leaked details about the cut-down computer. In agreeing to close itself down, Think Secret gets to preserve the anonymity of its sources. Both sides express themselves happy to have this behind them.

According to Apple (who are described as "notoriously secretive about forthcoming products"), bloggers should not enjoy the same right to protect the anonymity of their sources as those granted to mainstream journalists. The trial court agreed with Apple, but that decision was reversed on appeal, the court agreeing that bloggers, being analogous to journalists, should enjoy the same legal protection.

Left: Apple products just keep getting smaller, but their secrecy is not to everyone's taste ...

Speaking purely objectively, and without regard for any thought that they might be sued for serving as journalists, the IPKat and Merpel welcome the sagacity of the appellate court, but wonder what benefit -- apart from some pathetic face-saving -- can be derived from shutting down the Think Secret weblog. Tufty adds, are you sure it's shut down? It still seems to be here.
Apple turnover here
Apple crumble here
Who wins, who loses? Two ambivalent outcomes Who wins, who loses? Two ambivalent outcomes Reviewed by Jeremy on Sunday, December 23, 2007 Rating: 5


  1. Why England and Wales? Should have thought it obvious: to get quickly to a just result, thoroughly argued and written up. Where else could you go? It's expensive in E&W, of course, but for some litigants the price is worth paying. Who's disparaging E&W? The would-be litigants who are owners of weak patents. There's any number of them of course, and loads of garrulous greedy litigators who depend on them for fees.

  2. Richard S Monahan has added, regarding the InterDigital dispute: "It was initiated in the UK by Nokia, believing they had a slam dunk on negating "essential" patents. Nokia miscalculated the result and will now become beholden to Interdigital. There is another action before the ITC which will ultimately lead to banning Nokia (and Samsung) 3G products for infringement and now on sale in the U.S. The hearing is scheduled for March, the decision by June, 2008". Many thanks, Richard, for letting us know.

  3. Nokia tested the water at the interim application stage and, following Jacob LJ's decision, thought that, in relation to standards at least, the UK would remain anti-patentee.

    It's premature to conclude that this is a victory for Interdigital, however - they've still got to fire their one remaining bullet, which may well turn out to be a blank.


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