Tuesday’s settlement between Apple and Nokia, which resolved more than a half-dozen patent infringement cases in Delaware federal district court and at the U.S. International Trade Commission, was widely viewed as a victory for Nokia. Apple agreed to make an undisclosed payment to Nokia and to pay ongoing royalties for the use of Nokia smartphone IP—a resolution that sent shares of the struggling Finnish phone maker up three percent.
Was the settlement driven by the litigation between the two companies? OTC reviewed the Delaware and ITC dockets, and there hasn’t been a blockbuster ruling that tipped the balance of power in the patent war inexorably toward Nokia. But if Apple thought its lawyers at Kirkland & Ellis and Wilmer Cutler Pickering Hale and Dorr would overwhelm Nokia and its counsel from Alston & Bird, it thought wrong. Alston has matched Apple’s firepower at each stage of the fight, which entailed claims and counterclaims on more than three dozen Apple and Nokia patents.
Most recently, the full ITC commission agreed to review Apple’s biggest win in the litigation so far. In March, Apple won an initial determination from ITC administrative law judge E. James Gildea, who ruled in Nokia’s 2009 case that Apple didn’t infringe five Nokia smartphone patents (but also that the patents were valid). Both Apple and Nokia asked for review of parts of the initial determination; in a May 26 notice, the commission let stand Judge Gildea’s findings on three of the Nokia patents, but agreed to take a second look at the other two. (If you must know, the commission asked for briefing on the “acoustic cavity” properties asserted in one of the Nokia patents and on Judge Gildea’s claim construction on the other one.)
In three other ITC proceedings between Apple and Nokia, two initiated by Apple and one by Nokia, there hasn’t yet been an initial determination by the administrative law judge. In Apple’s primary ITC suit against Nokia, the ITC staff found last November that Nokia likely didn’t infringe the four patents Apple asserted. Moreover, the staff concluded, one of those patentswas likely invalid. (ITC staff recommendations aren’t binding on the ALJ.) A separate ITC case, in which some of Apple’s claims against Nokia were consolidated with parallel claims against HTC, was tried in May. Kirkland represents Apple in both the ITC cases Apple filed. Wilmer represents the company in the fourth ITC proceeding, a 2011 case brought by Nokia. Alston represents Nokia in all of the cases.
In the four Delaware district court cases between Apple and Nokia, the litigation has proceeded farthest in Nokia’s October 2009 suit, which kicked off the patent war between the companies. After Judge Gregory Sleet denied Apple’s motion to consolidate the case last December, both sides sent out a slew of subpoenas and deposition notices. Judge Sleet held a hearing on claim construction in May, and, in June, refused to stay the litigation for the U.S. Patent and Trademark Office’s reexamination of the patents. (Wilmer represents Apple in all of the Delaware cases; Alston represents Nokia.) There’s no definitive clue in the Delaware docket to explain why Apple and Nokia agreed to settle their differences, but the sheer volume of deposition orders gives a good idea of how consuming this litigation would have become had they not settled.
Nokia counsel Paul Brinkman of Alston & Bird declined to comment. Lawyers at Wilmer and Kirkland referred calls to Apple; an Apple spokesman sent an e-mail statement saying that the settlement will resolve all of the litigation. “We’re glad to put this behind us and get back to focusing on our respective businesses,” the statement says.
(Reporting by Alison Frankel)