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Smartphone patent wars in Germany

The tide is high in terms of patent litigation on smartphone technology in Germany and an end is not yet in sight. The hype started in 2009 in the wake of the worldwide patent conflict between Nokia and Apple.

March 2012

All of the lawsuits between these two big manufacturers were finally settled in the middle of 2011. However, it was already foreseeable that this was just the starting point of the turbulent, worldwide battle we face today. Perhaps the lawsuits between Apple and Samsung are currently the most prominent conflict in an ever increasing mass of worldwide litigation which has soon become hard to oversee, even at national level.

The ultimate goal of the big manufacturers is clear. It is a fight for market share – carried out using the patent system. The smartphone market is currently dominated by Apple on the one side and Google´s Android system partners comprising manufacturers such as Samsung, Sony Mobile Communication (formerly SonyEricsson), HTC and Motorola on the other. There is a widespread perception in the market that it is not worth striving for compensation in the aftermath if one´s patent right is infringed. Competing products should be taken out of the market by permanent injunction immediately or their appeal to customers should at least be diminished, respectively. Germany is one of the world’s most prominent battlegrounds for this fight for market share as a quick glance on the ongoing most important patent suits reveals.

Apple is currently suing Samsung at the Mannheim District Court on the grounds of six different patents. The suits are inter alia directed against the “Galaxy”-smartphones which have proven to be strong competitors of Apple´s IPhone. Samsung hit back immediately at the Düsseldorf as well as the Mannheim District Court accusing Apple of infringing five of Samsung`s basic UMTS-patents inter alia with the technology integrated into the IPhone. Another two patent suits were filed by Samsung on the grounds of patents related to operation and general programming.

But these suits are not the only threats Apple´s IPhone currently faces. Mobile phone technology pioneer Motorola joined the scene in 2011 suing Apple on the grounds of several basic UMTS-patents before the Mannheim District Court. Motorola recently even achieved a victory by forcing Apple to withdraw its older IPhone models 3G, 3GS and 4 for half a day from its German online shop until the judgement’s enforcement was eventually lifted by the Mannheim District Court. This was a strike Apple at once sought to retaliate by suing Motorola before the Munich District Court on the grounds of two patents related to the smartphone display unlocking procedure and photo management. Regarding the lawsuit related to the smartphone display unlocking procedure, the Munich District Court recently held for patent infringement in first instance. It remains to be seen, what the eventual outcome will be.

Why do the German Courts currently play such an important role in the smartphone conflicts? Sure, Germany with its more than 80 million inhabitants is a big market where a smartphone manufacturer has much to gain and, of course, also to lose. However, this is only one side of the coin. A lot appears to be connected to the German judicial system, especially if one takes into consideration the peculiarities of German patent litigation.

One of the peculiarities of a German patent trial is the swiftness in which infringement decisions are rendered. First instance decisions on merits can often be obtained within a timeframe of 10 to 15 months. Another peculiarity is the German so-called “bifurcated system”, which distinguishes between the infringement and the validity of a patent. This means that different Courts decide about infringement and validity, which leads to the situation that the invalidity of a patent cannot be put forward by the defendant as a defence in the infringement proceedings. Both peculiarities may have some leverage on a patent holder to start proceedings in Germany. Another argument for this is that German law provides for the possibility for a preliminary enforcement of a first instance decision. The enforcement of an injunction can, thus, take place even before the respective judgement has become final. This can be dangerous for the defendant, especially because of the so-called “infringement gap”. Due to the bifurcated system, the infringement- and the invalidity proceedings usually have different timelines, which in many cases can lead to the situation that the Court dealing with the question of infringement has already rendered a preliminary enforceable decision while the decision of the Court dealing with the question of validity is still outstanding. The preliminary enforcement can usually be achieved by providing a bond from a bank in an amount that is determined by the German Court. Although the defendant has a claim to compensation if it turns out that the preliminary enforcement was unjustified, this can be an investment that may pay off for the claimant in the long run.

Despite all the possibilities German law provides, neither Apple nor Google´s Android system partners have yet achieved significant success in diminishing the opponent´s market share using the German Court system. Whether this will stay like this in the future, however, remains to be seen. At current state only one thing appears to be certain: For the time being, the smartphone patent war is going to continue.

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Matthias Hülsewig


The smartphone patent war in Germany is a war for market share, predominantly between Apple and Google´s Android system partners. It remains to be seen how decisive the patent system will be in this war.

"The ultimate goal of the big manufacturers is clear. It is a fight for market share – carried out using the patent system."