On October 22, 2009, the Finish cell phone giant, Nokia, filed suit against Apple in the Federal District Court of Delaware.  Nokia alleges that Apple infringed against ten of their patents which covered various wireless data, speech coding, security and encryption technologies.  According to Nokia, every cell phone produced by Apple since 2007 has violated these patents.  I will speculate why Nokia has brought such a suit later in this blog, but, first, I will explain patent infringement.

A good place to start exploring the rights granted by a patent is section 154 and 271(a) of the patent code.  According to section 154, “a patent shall contain…a grant… of the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention to the United States.”  Basically, the patent owner must prove that another party had actual notice subsequent to publication and the invention claimed in the patent is “substantially identical” to the invention as claimed in the published patent application.  If another party is proven to have infringed, the remedy is a “reasonable royalty”.

Section 271(a) states that:  “whoever, without authority makes, uses, offers to sell, or sells any patented invention within the United States, or imports into the United States, any patented invention during the term of the patent, therefore, infringes the patent”.  According to this section, another party can only infringe on art that is particularly pointed out and distinctly claimed under Section 112, paragraph 2.

When determining if a patent is infringed upon, courts use what is called claim construction (also called claim interpretation).  Here, the courts determine the precise meaning of the patent claim which will then serve as the meets and bounds of the patent owner’s right to exclude.

As Nokia did here, a patent owner can enforce their patent by filing a patent infringement suit in federal district court.  The cause of action for the infringement suit can either be a direct infringement cause of action or an indirect infringement cause of action.  Direct infringement is when the patent owner’s cause of action is against a defendant who himself is committing the acts that infringe in and of themselves.  Indirect infringement, on the other hand, occurs when that defendant’s acts themselves do not infringe but their acts contribute to or induce acts of direct infringement from a third party.  Furthermore, direct infringement occurs where there is literal infringement or infringement under the doctrine of equivalents.  For literal infringement, “every limitation recited in the claim is found in the accused device.”  Moreover, courts may find infringement when the accused infringing device is an “equivalent” to that claimed in the patent under the Doctrine of Equivalents.

In its suit against Apple, Nokia is alleging infringement under the doctrine of equivalents.  It is believed by many in the business world that Nokia does not really want an injunction, but really wants to force Apple into either a licensing agreement or to pre-empt a possible suit by Apple regarding handsets that Nokia plans to launch that have multi-touch capabilities that will possibly infringe on Apple’s intellectual property.  I believe that the lawsuit between Nokia and Apple will end in an out-of-court settlement and cross licensing agreement between the two companies. This conflict shows how patent infringement suits can be used as a manipulative tool to gain an advantage in business negotiations.

References

1. Engle Industries, Inc. v. Lockfermer company, 96 F.3D 1398, 1405 (Fed.Cir. 1996).
2. http://digitaldaily.allthingssd.com
3. http://money.cnn.com/2009/10/22/technology/nokia_Apple_lawsuit/index.htm?postversion=2009102213
4. Chisum, Donald S., Principles of Patent Law:  Cases and Materials, 3^rd ed. Foundation Press (2004).