XpresSpa Group Inc (XSPA)

[shark44]

While we wait for 2/15 to come around to see all the reply briefs related to several key post-trial motions, I thought this lull may provide a good opportunity for us to begin building our base of knowledge w/respect to ZTE:


SUIT #1
WHO: UK subsidiary of ZTE
WHEN: Suit filed 10/8/12
WHERE: UK High Court of Justice, Chancery Division, Patents Court
WHAT: Vringo Alleges Infringement over Handsets, Base Stations and Base Station Controllers (Declarations have been filed at the European Telecommunications and Standards Institute (ETSI) that cover the patents.ZTE's cellular network elements fall within the scope of all three patents, and ZTE's GSM/UMTS multi-mode wireless handsets also fall within the scope of the '029 patent)
PATENTS: European Patents (UK) 1,212,919; 1,166,589; and 1,808,029
CASE / DOCKET #: ???
JUDGE ASSIGNED: ???


SUIT #2
WHO: UK subsidiary of ZTE
WHEN: Suit filed 12/5/12
WHERE: UK High Court of Justice, Chancery Division, Patents Court
WHAT: Vringo Alleges Infringement Over Base Stations, Base Station Controllers and Mobile Switching Centers
PATENTS: European Patents (UK) 1,186,119; 1,330,933; and 1,221,212
CASE / DOCKET #: HC12 B04711 (don't know if this 2nd suit was simply an expansion of the 1st or a separate case)
JUDGE ASSIGNED: ???


SUIT #3
WHO: ZTE Deutschland GmbH
WHEN: Suit filed 11/15/12
WHERE: District Court Mannheim
WHAT: Vringo Alleges Infringement over Wireless Network Infrastructure Components
PATENTS: European Patent 1,212,919 (note this is the same patent # as one of the patents in the first UK suit)
CASE / DOCKET #: 2 O 275/12
JUDGE ASSIGNED: The case will be heard by the Second Chamber of the Mannheim Court presided by Judge Dr. Kircher. The reporting judge will be Judge Böttcher


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What we don't know:

* Whether the two UK cases are merged as one case or are being tried as two separate cases. If separate, then we do not know yet what the case # is for the first suit.

* Whether there is any Euro equivalent to PACER. If so, one standardized Euro system or is it unique to each country? Hopefully, even w/o a PACER-type of service, someone here is familiar enough with how to search for Euro stuff online that knowing the court location and the case # can enable us to at least be able to have glimpse of what is going on across the pond.

* What the range is for the annualized value of licensing fees for each of the suits. We know that VRNG gets to keep the first $22M based on the patent purchase agreement from NOK, and then after that NOK gets 35%. Then the attorneys get their contingency which I recall being 15%. I recall hearing last year that it was estimated to be between $30-50M per year, but I cannot verify this and do not know either whether this was "net net" to VRNG or simply "gross" (i.e. before NOK's 35% cut and the attorney's contingency fees) -- clearly, this distinction is very important.

* How many years back VRNG is claiming past damages for. My understanding is that the patents have 7 more years left (from the filing dates of the suits so expiration likely in late-2019).

* Whether UK courts recognize the concept of treble damages for willful infringement (German courts do NOT).

[edit to add: see new bullet point below]

* How either UK or German courts view the doctrine of laches, as well as the associated principle of "constructive knowledge", and whether they view laches as an issue of affirmative defense.


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Finally, I have copied below some info related to patent litigation in Germany that some of you may have seen already from one of my prior posts. I thought it would be useful here in this post as well. It was originally posted by an attorney named Bsav88atty on I-Hub that I thought was a very plain english and easy to understand explanation of what we can expect, kind of like a "Patent Litigation in Germany for Dummies" for all of us:


http://www.mwe.com/files/Uploads/Documents/News/wp0312a.pdf
McDermott Will & Emory's "Quick Guide for US Counsel:Patent Litigation in Germany," 16 March 2012

Speed of the proceedings...Another advantageous characteristic is the speed of German patent litigation proceedings. In most cases, an enforceable ruling can be expected within one year, or even in seven to eight months with the District Court Mannheim or Munich. However, the appointment of a court expert or a stay pending validity challenges can lengthen the proceedings.

Costs...Costs of German patent enforcement proceedings tend to be cost-efficient, usually ranging from EUR 40,000 for less complex cases to EUR 180,000 for more complex cases. This derives in part from the fact that costly pre-trial discovery proceedings typical of US trials are not present in German proceedings. This is not to suggest that discovery is unavailable, but it is not comparable to US discovery. Finally, there are no jury trials in patent infringement cases in Germany. Trying matters before a German judge necessarily limits time expenditure and counsel costs.

***
“Split system.” A defining characteristic of the German patent enforcement system is the split between infringement and invalidity determinations. Infringement and invalidity (nullity) claims are tried in different courts, on different schedules. Infringement cases frequently track ahead of counterpart invalidity proceedings, thus presenting the opportunity to have infringement resolved before invalidity is tried. While the infringement court may suspend its proceedings to allow a corresponding nullity action to resolve validity first, frequently it does not.

***
Judges...The panels of the district courts are composed of three judges who are trained in patent law and have several years of practical experience with patent cases. Patent matters are assigned to dedicated chambers of the court. The district courts of Du¨sseldorf, Mannheim and Munich, which have especially high numbers of patent cases, each have two chambers dedicated to patent infringement matters.

***

Court expert...The court may conclude that the technical knowledge of an expert is necessary. The appointment of a court expert is the most frequently used form of judicial investigation; fact witnesses are rather rare in patent infringement cases. In most cases, the court renders a decision without appointing an expert. The probability of the involvement of a court expert differs from court to court, and also depends on the subject matter of the case.Precise estimations are difficult, but based on McDermott’s experience litigating many patent disputes in Germany, the appointment of a court expert generally occurs in less than a quarter of the cases. In most cases, the court bases its decision on its own assessment of the technology, as understood through the material submitted by the parties. The following approximation concerning three major infringement courts might additionally be taken into consideration when selecting the court.

Tendency to Appoint an Expert per Court:
District Court Du¨sseldorf - Lower tendency
District Court Mannheim - Moderate tendency
District Court Munich - Higher tendency

______________________________________
http://www.fr.com/files/uploads/attachme....%20Germany .pdf

Fish & Richardson
"Global Patent Enforcement Strategy: Germany"

Here is some of the language from Fish & Richardson's presentation.

Patent Litigation System in Germany – The Basics
1. Split Infringement and Validity Proceedings
2. No Jury Trial
3. Relatively cost efficient
4. Patentee (generally) has to provide evidence that patent is infringed
5. Losing party has to bear the statutory attorney fees of the winning party and the court fees

Regular Course of an Infringement Litigation Case
District Court:
Complaint brief with infringement analysis
Defendant's answer with non-infringement analysis
Patentee's reply brief
Defendant's surreply
Trial (usually only 1 hour!)
Decision (usually 4 weeks later):(1) Infringement ? (2) Dismissal ? (3) Stayed? (4) Appointment of a Court Expert

Legal Consequences [of Infringement in Germany]:
1. Injunction
2. Rendering account (for calculating damages in a subsequent second law-suit)
3. Destruction and callback
4. Publication of the court decision

Advantages of Litigating Patents in Germany:
1. German courts are very experienced.
2. Claim construction is relatively predictable.
3. Patentee may have the possibility to enforce an injunction before the EPO or the Federal Patent Court has decided on validity.
4. You can get an injunction roughly within one year.
5. You may be able to start a litigation before the accused product has even been launched (because advertising alone is already an infringing act).
6. Broad understanding of contributory infringement.
7. You may want to avoid a US style discovery.
8. Relatively cost efficient.
9. You can get jurisdiction of the District Court Duesseldorf relatively easily.

Disadvantages of Litigating Patents in Germany:
1. Damages are usually lower than in the US (Germany has no concept of willful infringement/triple damages), whereas the case law has become more favorable for the Patentee in the last five years.
2. Some type of inventions are excluded from patentability (esp. business methods and medical methods).
3. Federal Patent Court and some Boards of Appeal of the EPO are relatively strict with regard to inventive step.
4. In opposition proceedings, the EPO are very strict with regard to original disclosure.
5. No US style discovery.


(ps: sorry for such a long post...)

« Last Edit: Jan 27, 2013, 9:54pm by newbie » Report to Mod - Link to Post - Back to Top Logged


ddp
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[ Exalt | Smite ] Re: ZTE - Summary of the little that we do know
« Reply #1 on Jan 27, 2013, 9:15pm »

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Newbie you are great, really appreciate this.
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ekovak
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[ Exalt | Smite ] Re: ZTE - Summary of the little that we do know
« Reply #2 on Jan 27, 2013, 9:25pm »

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newbie: thank you, that was a lot of work. Per our conversation yesterday regarding Laches, I posted the 837 doc, you may have already read this, but I wanted everyone to have this easy to read format. Vringo explains in great detail what happened regarding Laches, with a very compelling argument, which further strengthens my belief they we may get this Laches issue back. Once again, thanks.
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[ Exalt | Smite ] Re: ZTE - Summary of the little that we do know
« Reply #3 on Jan 27, 2013, 9:46pm »

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Jan 27, 2013, 9:25pm, ekovak wrote: Per our conversation yesterday regarding Laches, I posted the 837 doc, you may have already read this, but I wanted everyone to have this easy to read format. Vringo explains in great detail what happened regarding Laches, with a very compelling argument, which further strengthens my belief they we may get this Laches issue back.



Yes, but 837 was simply the Memorandum in Support of 835. And 835 was one of the motions that GOOG filed an opposition brief to yesterday. To non-lawyers like us, the trial and post-trial process is analagous to a lengthy volley in a tennis match: each time one side smacks one to the other side the crowd turns its head and says "ooooh, that was good". Then when the other side returns with a nifty backhand, the crowd turns to the other side with another "ahhhhh, that seemed even better". If DS is who we have seen them to be (and expect them to continue to be), it will be interesting to see THEIR reply brief on 2/15 -- which will hopefully be solid enough that we can feel confident in cranking our heads back again to the other side and say "game, set, match"...
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statbill
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[ Exalt | Smite ] Re: ZTE - Summary of the little that we do know
« Reply #4 on Jan 27, 2013, 11:18pm »

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Thanks for the ZTE synopsis, Newbie
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rayden
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[ Exalt | Smite ] Re: ZTE - Summary of the little that we do know
« Reply #5 Yesterday at 7:33am »

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Isn't this the european pacer equivalent?
http://curia.europa.eu/juris/recherche.jsf?language=en
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Don't Trust Ravisher
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[ Exalt | Smite ] Re: ZTE - Summary of the little that we do know
« Reply #6 Yesterday at 9:16am »

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thanks newbie
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tyammons24
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[ Exalt | Smite ] Re: ZTE - Summary of the little that we do know
« Reply #7 Yesterday at 9:32am »

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That looks legit, we just need our case # to try it out. Anybody?
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newbie
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[ Exalt | Smite ] Re: ZTE - Summary of the little that we do know
« Reply #8 Yesterday at 9:36am »

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Yesterday at 7:33am, rayden wrote: Isn't this the european pacer equivalent?
http://curia.europa.eu/juris/recherche.jsf?language=en



Interesting! Have you ever used this site before? I just tried it and searched using bothe the UK case # and the German case # and couldn't find anything. I also searched using the name of the ZTE German subsidiary and found nada. FYI, the case #'s and the name of the ZTE German sub I got directly from VRNG's PR's that they issued last year when they announced the suits so I imagine they are accurate...
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rayden
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[ Exalt | Smite ] Re: ZTE - Summary of the little that we do know
« Reply #9 Yesterday at 10:49am »

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Yeah, I tried searching the case numbers too and didn't find anything. Even tried searching for "vringo" and no results.
I think there is one other way. Go to
http://www.justice.gov.uk/courts/rcj-rolls-building/chancery-division

and click the Daily List - Judges and Daily List - Masters on the right menu. Seems they publish data on cases from today and tomorrow.
Also another piece of information: the correct case number for "HC12 B04711" would be "HC12B04711", without the space, based on information from the link above.
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maphackez
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[ Exalt | Smite ] Re: ZTE - Summary of the little that we do know
« Reply #10 Yesterday at 4:27pm »

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Jan 27, 2013, 8:00pm, newbie wrote:
(ps: sorry for such a long post...)




Apologizing for providing [me] valuable information to educate? I wish my professors cared as much.

This doesn't even include the fact you're doing DD for a couple hundred people.

Appreciate all of your posts.
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frankomd
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[ Exalt | Smite ] Re: ZTE - Summary of the little that we do know
« Reply #11 Yesterday at 6:16pm »

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Newbie, what a truly wonderful thing you have done here! Thanks you.
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postyle
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[ Exalt | Smite ] Re: ZTE - Summary of the little that we do know
« Reply #12 Yesterday at 11:04pm »

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Good summary, newbie.

Jan 27, 2013, 8:00pm, newbie wrote:
* How many years back VRNG is claiming past damages for. My understanding is that the patents have 7 more years left (from the filing dates of the suits so expiration likely in late-2019).



On the matter of expiration, I believe European patents are for 20 years so on most of these we are looking at filing dates by Nokia in the year 2000. That leaves 7+ years each for the majority. One them was filed in 1999, another in 2000, and the Danish patent was in 2004:

Patent // Country // Filing Date
1212919 EP 13.09.2000
1166589 EP 07.04.2000
1808029 DK 03.11.2004
1186119 BE 06.07.2000
1330933 AT 18.10.2001
1221212 EP 11.10.1999

On the matter of past damages, it's not straightforward. In the U.S. it's generally a 6 years window from the date of filing -- but jurisdictions differ overseas. As we know, VRNG is attempting to use the threat of injunction to get ZTE to negotiate a global deal. If ZTE doesn't blink, then they obviously take their chances with the various EU courts.

VRNG knows they won't be able to go too many years back with a licensing agreement (that includes a one-time payment for past damages), but there is a good shot at recovering some of that in addition to a nice recurring royalty stream going forward. ZTE has really gained market share in recent years so the focus is undoubtedly on the present and the future... and not so much the past. I would think negotiating a multi-year license with ZTE at a decent variable rate for forward looking sales would be worth forgiving most if not all of past damages. IMHO.


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jqpublic
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[ Exalt | Smite ] Re: ZTE - Summary of the little that we do know
« Reply #13 Yesterday at 11:34pm »

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I too, would like to thank Newbie for the work done in this post of his. Truly a great deal of DD was put forth by him. We who read this are truly thankful. I would also like to commend Newbie on his post to Hog on another post. He was truly understanding and compassionate in his response. The mark of a good Christian, Thank You newbie. Looking forward to more of your comments here.
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newbie
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[ Exalt | Smite ] Re: ZTE - Summary of the little that we do know
« Reply #14 Today at 12:35am »

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Yesterday at 11:04pm, postyle wrote: Good summary, newbie.

Jan 27, 2013, 8:00pm, newbie wrote:
* How many years back VRNG is claiming past damages for. My understanding is that the patents have 7 more years left (from the filing dates of the suits so expiration likely in late-2019).



On the matter of expiration, I believe European patents are for 20 years so on most of these we are looking at filing dates by Nokia in the year 2000. That leaves 7+ years each for the majority. One them was filed in 1999, another in 2000, and the Danish patent was in 2004:

Patent // Country // Filing Date
1212919 EP 13.09.2000
1166589 EP 07.04.2000
1808029 DK 03.11.2004
1186119 BE 06.07.2000
1330933 AT 18.10.2001
1221212 EP 11.10.1999

On the matter of past damages, it's not straightforward. In the U.S. it's generally a 6 years window from the date of filing -- but jurisdictions differ overseas. As we know, VRNG is attempting to use the threat of injunction to get ZTE to negotiate a global deal. If ZTE doesn't blink, then they obviously take their chances with the various EU courts.

VRNG knows they won't be able to go too many years back with a licensing agreement (that includes a one-time payment for past damages), but there is a good shot at recovering some of that in addition to a nice recurring royalty stream going forward. ZTE has really gained market share in recent years so the focus is undoubtedly on the present and the future... and not so much the past. I would think negotiating a multi-year license with ZTE at a decent variable rate for forward looking sales would be worth forgiving most if not all of past damages. IMHO.





@postyle,

2 questions:

(1)
Would you mind de-coding the country codes for everyone? I know that DK is Denmark, but I'd only be guessing at EP, BE, and AT.

(2)
For Europe, I thought I had heard somewhere that even though a company may register a patent in one specific country, that there is an agreement amongst the EU countries that a patent in one country will be recognized across all the EU countries. Do you know whether this is true? If not, then where can we verify which countries each patent has been registered in so that we have an idea of how extensive any "global" licensing agreement really is?
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