Context: Last summer, Panasonic filed a number of standard-essential patent (SEP) lawsuits against Xiaomi and OPPO in different jurisdictions, among them the Unified Patent Court (UPC) (August 9, 2023 press release by Panasonic (PDF)).
What’s new: Today the UPC’s Mannheim Local Division (LD) entered an order granting-in-part and denying-in-part a motion by Xiaomi for an extension of a filing deadline (PDF (in German)). The order reveals that the UPC Mannheim part of Panasonic’s enforcement campaign against Xiaomi has already proceeded at a slower pace than the UPC typically aims for, and further delays are possible. Also, Panasonic has narrowed the asserted claim(s) of at least one of the patents-in-suit.
Direct impact: For now, the trial dates (October 7-10, 2024 for EP’724, December 10 & 11, 2024 for EP’270 and February 4 & 5, 2025 for EP’315) stand. But there is a possibility that the October trial will be focused purely on technical aspects as the delays particularly impact briefing on the FRAND affirmative defense. In that case, the December trial would focus on FRAND, which equally relates to all three patents-in-suit.
Wider ramifications: At this juncture, it is totally unclear which of various SEP actions before diffferent UPC LDs will give rise to the first UPC decision on a FRAND defense. In early July, the Munich LD will hear Philips v. Belkin (standard: Qi), but ip fray has learned that there may not be a FRAND defense in that case. The Munich LD recently postponed a Huawei v. Netgear SEP trial from next week to October 30 & 31 (May 2024 LinkedIn post by ip fray). At this point it is also possible that other Panasonic UPC cases involving SEPs may be heard in the coming months.
Presiding Judge and judge-rapporteur Dr. Peter Tochtermann denied Xiaomi’s motion for a general extension of time to respond to Panasonic’s most recent pleadings, but granted an extension until July 19, 2024 (with the possibility of a further extension if warranted) for a FRAND pleading by Xiaomi that would have been due this month.
Judge Dr. Tochtermann diplomatically expresses his dismay at the fact that there is now a fragmentation of pleadings: there will be separate filings relating to technical and non-technical defenses. Normally, the UPC seeks to avoid such fragmentation. As the order notes, the fact that Panasonic first filed redacted versions along with sealing motions, followed later by unredacted versions for the court and the defendant, results in additional administrative effort and “substantially complicates” the analysis of the pleadings by everyone involved.
The only alternative would have been to grant Xiaomi a wholesale extension affecting its next pleadings concerning all aspects of the case, which would have jeopardized the early October trial date relating to EP’724. Moreover, Judge Dr. Tochtermann considered that the technically qualified judges (who will be assigned to these three cases) must have a reasonable amount of time to read the pleadings (particularly the technical ones) ahead of a trial.
There were no redactions of Panasonic’s technical pleadings, including a motion to narrow the claim scope of at least one of the partents-in-suit, which is why Judge Dr. Tochtermann upheld the (previously extended) deadline for that part.
Fragmentation appeared the lesser evil to him.
The order explains that Panasonic filed its reply brief with “complete redactions” of the FRAND part, and even the court was initially not provided with unredacted documents. Panasonic asked the court to order the production of documents (by Panasonic itself), subsequently to which some parts were no longer redacted. The court is still dealing with some sealing motions, and it’s also unclear how Xiaomi actually obtained unredacted versions at some point (potentially due to technical issues with the case management system or a mistake on Panasonic’s part).
The relevant filing deadline had previously been extended to June 19 (next Wednesday), but after that extension was grnated, Panasonic moved for another order to produce a third license agreement, and then filed that document along with legal argument. That is why Judge Dr. Tochtermann granted (with respect to the FRAND part) Xiaomi’s motion for another extension of time.
There is still some wrangling over the confidentiality club. Apart from Xiaomi’s outside counsel, only one person at Xiaomi has access to the unredacted documents at this point.
It appears rather likely that at least one more procedural order in this dispute will come down ahead of the early October trial date.
Panasonic is represented by Kather Augenstein (counsel of record: Christopher Weber), and Xiaomi by Freshfields Bruckhaus Deringer (counsel of record: Dr. Corin Gittinger).