Nokia v IPCom - still not over...

This guest Kat steps briefly out of his comfort zone to bring his dear readers slightly belated news of the Court of Appeal decision, handed down on 10 May 2012, in Nokia v IPCom [full citation:  Nokia OYJ (Nokia Corporation) v IPCom GmbH & Co Kg [2012] EWCA Civ 567 (10 May 2012)].  (This Kat is happier with chemicals than mobile phones, unless the IP right happens to be a registered design rather than a patent…)

As a judgement, the Decision seems rather unremarkable, fully upholding as it does the first instance decision (reported at length here) by Floyd J last year.  The finding that was upheld is that IPCom’s patent EP 1 841 268 was valid in amended form (the amendment having been allowed), and was infringed by certain Nokia mobile phone devices referred to as the A1 and the A2. Certain other Nokia devices were found not to infringe.

The IPKat has learned that both sides are apparently claiming the decision as a victory – IPCom because the patent was held valid (albeit in amended form) and because some Nokia products were held to infringe; and Nokia because some products were held not to infringe.  The case is controversial in many quarters because IPCom is a non-practising entity.

What has made this Kat’s whiskers twitch, however, is what has been going in the meantime at the EPO.  Although in most cases a Court of Appeal decision could be expected to be the end of the matter (appeals to the Supreme Court being rather rare), in this case the EPO proceedings are far from concluded.  In fact, the EPO Register reveals that at the Opposition Division Oral Proceedings on 24 April 2012 the patent was revoked, none of the requests being presented by the proprietor having been found allowable.

The EPO opposition is at the tantalising stage for third party observers, namely that a note of the result of the opposition is available on the file, but not the reasoned decision.  So we know the outcome, but not the reasoning.  Furthermore, once the decision is issued, IPCom can appeal, and presumably will do (since the losing party in an EPO Opposition generally appeals as a matter of course).  The European Patent Convention provides that an appeal has suspensory affect, so if an appeal is filed, the patent continues in principle to have effect with the claims as granted until the appeal is terminated.  Except that in the UK it has effect with the claims as amended, presumably.

Schrodinger's cat

Until the deadline for appeal, the patent has a mystical existence somewhat like Schrodinger’s Cat (picture source here), in a kind of superposition of states of "in force as granted" and "revoked", and, in the UK, amended.  The IPKat recalls from the Stolt v Coflexip case that a final decision from the UK courts is binding as between the parties, whatever the subsequent fate of the patent is.  What would be really interesting, interjects Merpel, is if the EPO Boards of Appeal uphold the patent in a different form from that just upheld by the Court of Appeal.  Then it becomes a real headache to determine what the effective form of the patent is - reminiscent of the case from last year of Virgin Atlantic v Premium Aircraft Interiors.