When Qualcomm started filing patent infringement actions against Apple (and, by practical extension, Intel) in Mannheim and Munich last year, it hoped to gain leverage through injunctive relief over non-standard-essential patents in the largest EU economy. In February, Qualcomm’s German counsel exuded confidence and predicted an injunction by the summer. Summer is gone, and based on where things stand after all the hearings and trials held so far (up to yesterday’s Mannheim trial) Qualcomm’s next chance to make serious headway against Apple in Germany may not even come until next spring or summer.
Presiding Judge Dr. Holger Kircher noted due to technicalities that Qualcomm’s patent may not be patentable because Qualcomm kept changing the claims in response to prior art presented by Apple’s legal team. Qualcomm wasn’t happy on that point and this will be revisited at a hearing scheduled for February 2019.
At one point Judge Dr. Kircher reportedly told Qualcomm that the way they’re now trying to defend a narrowed patent claim that is tantamount to “cherry picking.” The three judge panel was further concerned that the imported and newly-created claim limitations through which Qualcomm seeks to differentiate its claimed invention from the prior art are “devoid of technical substance.” Ouch.
The bottom line for Florian Mueller of FOSS Patents following this case intently is that “Qualcomm’s patentability theory fails if one assumes that a person of ordinary skill in the art would simply know that orthogonal and parallel arrangements are viable alternatives.”
Mueller further notes that “What is undoubtedly creative, inventive and potentially innovative here is how Qualcomm’s lawyers created this unique blend of claims, including claims that apparently were never meant to be combined with each other in the first place. However, the court’s concern is about a lack of technical substance.”
The interesting twist comes when Mueller notes: ‘Why is Qualcomm having such problems with its patents-in-suit? One common characteristic is that they’re fairly recent patents. The younger a patent is, the more prior art, and the greater the potential for prior-use rights.”
Mueller has a lot more to say about the Qualcomm-Apple battle, but unless you’re in the legal profession, you’re going to have Mueller’s analysis and thinking process go over your head. If you’re in the legal profession then by all means check out Mueller’s full report here.