Facts

Nokia Technology Oy is suing four defendants in the Oneplus Technology and Oppo Mobile group of companies for infringement of a single, non-SEP (Standard Essential Patent) European Patent (the Patent). Only the two UK companies in the group have so far been served. The other two companies are incorporated in China. At the time of this application, the Chinese companies were insisting on service through the usual channels, which meant that it was estimated that service against them would take place against them in China in March 2022.

Nokia applied to the court for a listing of the trial in advance of the Case Management Conference, which was listed for 13 to 15 December 2021, after the date of the listing application. It sought trial of the Patent in either September 2022 (which would be 14 months after issue) or, failing that, in the autumn term of 2022. Oneplus/Oppo UK were keen to push the trial into January 2023 (which would be 18 months after issue).

Decision

Mr Justice Mellor noted that a Judiciary Practice Statement from 2015 expressed a desire to, as far as possible, bring patent trials on for trial within 12 months of issue.

The main issues were whether the court had a proper appreciation of the scope of the trial, what the appropriate trial estimate was and when the trial should be listed.

Mellor J said that having read the Patent, it was apparent that it would require some understanding of the technology underlying 4G or LTE (Long-Term Evolution) systems but the concept in it was relatively simple. It was the introduction of a low pass filter in the amplitude path to regulate the power in the amplification of the outgoing signal from the mobile phone. The purpose was to suppress spurious signal components to improve the quality of uplink communications and the capacity of the mobile phone. The low pass filter was regulated according to the number of transmission resource blocks allocated to the phone.

Mellor J also noted that the Oneplus/Oppo UK companies had already counterclaimed for invalidity of the Patent, relying on obviousness over a single piece of prior art, a European patent application discussed in the Patent. In Mellor J’s view, this did not appear to raise too many difficulties.

Mellor J did not rule out the possibility of the need for cross-examination at trial of a witness for Qualcomm, which makes the chipsets used in the Oneplus/Oppo mobile phones, and he did not rule out various procedural wrangling that might take place as the case proceeded to trial. However, he said that experience showed that, generally, a single patent of this nature was usually well-capable of being tried, in terms of both infringement and validity, in a week.

Mellor J noted that the parties were under a continuing obligation to keep the trial estimate under review and to inform the court if the estimate changed. However, based on the current material, Mellor J said he had a sufficient, although by no means complete, appreciation of the case and the likely length of trial, barring unexpected developments. Therefore, he proposed to list the trial on the basis of one to two days’ pre-reading, three days of opening and evidence, one day off for preparing closings and one day of closing submissions. He also drew the parties’ attention to paragraph 4 of the 2015 Practice Statement, which states:

“The Court will use its case management powers in a more active manner than hitherto, with a view to dealing with cases justly and at proportionate cost in accordance with CPR rule 1.1. This may have the effect of setting limits on hearing times that enable cases to be listed promptly. For example, the Court may direct that a case estimated at 6 days will be heard in 5 days, and may allocate time between the parties in a manner which enables that to be achieved”.

Mellor J had also asked Mr Justice Meade whether he would be willing to sit in September 2022 to hear the trial and he had agreed to do so. Therefore, Mellor J said, although the trial was not particularly urgent, if a listing in September allowed the Patents Court to achieve its aim of listing trials within 12 months or as close as possible to 12 months, that was a sufficient justification for a listing in September, provided a Judge was available and willing.

Accordingly, Mellor J listed the trial for the second half of September, leaving it to the parties to negotiate with the Listing Officer as to precisely when it would be heard in that time. (Nokia Technologies Oy v Oneplus Technology (Shenzhen) Co Ltd [2021] EWHC 2746 (Pat) (13 October 2021) — to read the judgment in full, click here).