Android war – UK courts win



This 4 July saw an American defeat: in the first final judgment in Europe in Apple’s assault on its Android-based competitors, Mr Justice Floyd held three of its four patents in issue invalid, and that HTC’s Android phones did not infringe the fourth.

As is so often the case with newsworthy patent decisions, there is little new law in the case – the legal analysis occupies only 18 of the judgment’s 375 paragraphs – and although there is plenty of meat for patent specialists in the analysis of the facts, the main interest for the general reader, other than the result, is the timing.

The litigation had its genesis in Germany. On 1 July 2011 Apple sued HTC in Munich for infringement of two patents, and in Manheim for infringement of a third.

HTC’s response on 29 July was a claim in London for revocation of two patents. A claim for revocation of the third patent was filed on 12 August. One month later, Apple sued in England for infringement of a fourth patent.

HTC’s reason for bringing the battle to the UK was to obtain judgment in its favour in the hope it would influence the decision of the German courts. To achieve this, it applied in September 2012 for an order for an expedited trial, which was granted by Mr Justice Arnold.

Accordingly, the actions came on for trial starting on 19 April – within less than nine months. An element in achieving an early trial date can be an optimistic trial estimate, and Floyd J criticised the parties for failing to revise the “eight to 10 days” estimate in a case which, as patent cases go, was substantial. As the judge said, the patents were “all of obvious commercial importance to both parties […] the technology involved was not all entirely straightforward [and] both parties filed voluminous expert evidence, generally three reports from each of three pairs of independent experts”.

Floyd J is to be commended, following a trial that in the end occupied 14 court days over a four-week period, in producing a 50-page judgment within eight weeks.

This is an impressive feat of case management by the English court. Although the position in Germany appears to have been complicated by the existence of parallel proceedings under the same patents involving different parties (there are similar parallel proceedings in England), there have been no final decisions on the validity or infringement of any of the patents in any of the relevant German courts.

In most litigation, the event giving rise to the damage lies in the past and the litigation is to decide who will pay for it. In patent and other IP cases, however, sales of the product accused of infringing are normally ongoing, unless restrained by an interim injunction. This puts a premium on a rapid decision. The Apple/HTC case is an example of the willingness of the English courts, in appropriate circumstances, to achieve a speedy result.

One week before Floyd J’s decision the European Council reached a long-awaited agreement on the unified patent system, providing for the first time a supranational court to handle disputes between private parties. Let us hope that the new court will share the English court’s willingness – and ability – to provide speedy, and therefore effective, justice.