SMARTPHONE LITIGATION
lawful monopoly that a patent provides is the preferred aim, but in the end, licensing deals are welcome.
Sutton says: “Te best defence is offence. If there are going to be cross-licences and licence arrangements down the road that will settle these lawsuits, the more they’re suing and the more arrows they have in their quiver, the better position they’ll be in to negotiate more favourable financial terms.”
Asserting patents in multiple jurisdictions happens because each jurisdiction has its own strengths, awards and remedies. “In Europe, Germany is favoured by patentees as it is a split system which enables infringement to be determined first,” says Mutimear. “Although the defendant will bring a nullity action against the patent as soon as possible, this will usually lag behind the infringement case. Te US is favoured due to the high damages awards which are possible.”
Actions in the US are oſten filed concurrently in a district court and the US ITC. Wisconsin, Delaware, Texas and Eastern Virginia are popular choices of district court because they can provide speedy decisions or a convenient location in which to file. District courts offer high monetary damages and the US ITC offers injunctive relief; infringing products will be prevented from entering the US from abroad.
Choosing a US venue depends on the aims of the parties to the lawsuit. “NPEs are not looking for the injunctive relief that the US ITC can provide,” says Seitz. “Tey’re looking for monetary damages and that only comes from district courts.”
“In the competitor versus competitor suits, those are best litigated in the US ITC. Regardless of whether it is hardware or soſtware, you can get both components through an investigation in the US ITC. If a company can make its competitor take its products off the shelf or force them to remove features entirely from their product to get around an injunction, that is way more valuable than any $30 million settlement. Tat allows the company to gain more customers.”
The power of an injunction could make smartphone manufacturers and technology companies fear exclusion from the market. “All of the smartphone companies have plenty of cash, so they’re not necessarily worried about the cost of litigation,” says Chernesky. “But they are worried about an injunction because the injunction is a really difficult thing. It’s harder for NPEs to get injunctions, but at the end of the day, the vast majority of them are interested in licensing.”
He adds: “Companies need to be smarter, and I think in the smartphone industry, companies
16 World Intellectual Property Review March/April 2011
www.worldipreview.com
“ IF A COMPANY CAN MAKE ITS COMPETITOR TAKE ITS PRODUCTS OFF THE SHELF OR FORCE THEM TO REMOVE FEATURES ENTIRELY FROM THEIR PRODUCT TO GET AROUND AN INJUNCTION, THAT IS MORE VALUABLE THAN ANY $30 MILLION SETTLEMENT.”
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