Posted: September 27th, 2022
Orope Germany GmbH v. Nokia Solutions and Networks OY, joint cases, District Court The Hague, The Netherlands, 7 September 2022, Case No. ECLI:NL:RBDHA:2022:9193
Nokia is the holder of the European patent EP 2 981 103, relating to ‘Allocation of preamble sequences’ (‘EP 103’) as well as the European patent EP 3 220 562 relating to ‘Allocation of preamble sequences’ (‘EP 562’).
Orope seeks invalidation of the Dutch parts of EP 562 and EP 103, based on lack of novelty and inventive step compared to ZTE, LGE and Panasonic prior art documents. Nokia in acounterclaim seeks a declaratory judgment that Orope has (in)directly infringed the patents, that Orope has acted unlawfully by facilitating infringement, as well as an injunction. Both patents involved in the proceedings are SEP patents, but at the start of the accelerated proceedings Orope has specifically stated that it would not seek a FRAND defence.
The Court follows Nokia both on novelty as well as inventive step. Regarding inventive step, the Court finds that in prior art documents relied on by Orope, the (entire) measures 1.3.2 and 1.3.3 from the patents are missing. This is also acknowlegded by Orope. In the Court’s opinion, the average person skilled in the art will not be prompted by these documents to apply steps 1.3.2 and 1.3.3 in the specific order. The patent therefore contains an inventive step above the two proposals from ZTE and LGE and therefore also above Panasonic 1.
The Court: “That it would be logical for the average professional to perform the segmentation of LGE based on Max Ncs and then ordering based on CM value after the (rough) ordering and segmentation of ZTE by CM and the ordering based on Max Ncs. feeding, as Orope states, is not (sufficiently) substantiated and cannot be seen in any other way. As mentioned, there is no pointer to that “logical” step.”
The Court also rules that Orope performs infringing acts. By promoting infringing products online with a “Buy now” button that leads to a web shop directed at the Netherlands, it offers the infringing devices. The fact that it is ultimately a different party that takes care of the sale of the device through its webshop does not alter this.
The Court issues an injunction. However, because the Court cannot completely ignore the fact that Nokia might have filed a FRAND statement with regard to the patents, it sees reason to determine that the injunction will only take effect after two months.
A copy of the decision (in Dutch) can be read here.