Report on today's UPC trial in Philips v. Belkin (Munich Local Division)

https://www.linkedin.com/posts/ipfray_patent-frand-activity-7213944053954990080-GHvc?utm_source=share&utm_medium=member_desktop

Today the Unified Patent Court's Munich Local Division held its Philips v. Belkin trial over a patent essential to the Qi wireless charging standard. An injunction appears quite possible, but is not a given.

1. Claim construction / infringement:

The Dusseldorf Regional Court had rejected a complaint involving the same parties and the same patent based on a narrow claim construction. No timely appeal was brought.

According to what ip fray has learned, the UPC merely considers the Dusseldorf claim construction an opinion to take note of, but wants to form its own opinion. The panel appeared inclined to adopt a slightly broader interpretation, in which case Belkin will be held to infringe.

2. Validity:

There's a favorable preliminary opinion from the Federal Patent Court (Bundespatentgericht), but that is not binding on anyone, much less on the UPC.

It appeared that the prior art references cited by Belkin were too far away from the challenged patent to matter. The court, did, however discuss at length an invalidity contention based on added subject matter. What can be said is that the decision will most likely hinge on that question, and that the positive opinion by the Federal Patent Court, while not binding, makes a validity finding slightly more likely.

3. No FRAND defense:

Belkin's FRAND defense had failed in Dusseldorf, and they didn't even try in the UPC. In accordance with EU antitrust law (Huawei v. ZTE), a FRAND defense can succeed only if the patent-in-suit confers market power. Here, Qi is just one of various ways of charging a device. There are different proprietary wireless charging systems, and there's always the option of charging over a cable. Presiding Judge Dr. Matthias Zigann mentioned this only in passing.

4. CEO liability:

German courts have frequently held company CEOs liable for patent infringement, but that makes Germany an outlier among European jurisdictions. In order to work around the above-mentioned Dusseldorf history, Philips excluded Germany from the list of approximately 10 UPC member states for which it seeks an injunction, but only with respect to the two legal entities that already defended themselves against the Dusseldorf case. They added other defendants, however, and want a UPC injunction to enjoin those defendants from committing any infringing acts in Germany. That includes the CEOs of two Belkin subsidiaries. It's unclear whether the UPC will adopt the German stance.

5. It's remarkable that despite the Dusseldorf history, this case is alive and kicking. The decision will be announced on September 6. Five days later, another Philips v. Belkin trial takes place (as ip fray reported on LinkedIn).

6. Panel: Presiding Judge Dr. Matthias Zigann, Judge Tobias Pichlmaier, Judge Edger Brinkman (The Hague), Technically Qualified Judge Anders Hansson.

7. Counsel: BARDEHLE PAGENBERG's Dr. Tilman Müller and Tobias Wuttke for the plaintiff, DLA Piper's Dr. Philipp Cepl and Dr. Constanze Krenz for the defendant.