Samsung joins Avanci's automotive standard-essential patent pools as licensor (in addition to previously announced participation in Avanci Broadcast)

Avanci just announced that "Samsung Electronics has become a licensor for several of its licensing programs, including Avanci Vehicle 4G, Avanci Aftermarket and Avanci Broadcast." IAM has already reported (paywalled).

The part about Avanci Broadcast already became known last month (Avanci announces patent pool for ATSC 3.0 (aka NextGenTV) broadcasting standard that is ubiquitous in U.S. and South Korea: initial licensors hold more than 70% of SEPs). What's new and incredibly significant is that Samsung has now also joined Avanci's automotive pools. Avanci's 4G pool has license agreements in place with virtually the entire automotive industry. In February, Avanci also announced a pool for aftermarket devices (trackers, toll collection, monitoring systems) that are not pre-installed in cars.

Samsung is the largest purely defensive holder of cellular standard-essential patents (SEPs). Despite holding one of the leading cellular SEP portfolios, it has never sued an implementer proactively, and has only countersued over SEPs for retaliatory purposes on two occasions (Apple, Huawei). This is also the first time for Samsung to join a cellular patent pool. The Korean electronics giant has been participating in video codec pools for a while (first MPEG LA, then Access Advance), but has not been among pool licensors who went out to sue unwilling licensees.

In February 2022, LG Electronics--another Korean electronics maker--already joined Avanci. The two factors that made LG such an important addition to Avanci's licensors apply to Samsung as well:

• portfolio size (Avanci already covered a solid majority of all 4G SEPs before Samsung joined, but is even stronger now and gives licensees more value without a rate increase)

  and

• automotive supplier status:

  Samsung's Harman subsidiary (operating as Harman Becker in Europe) makes network access devices (tier 2 of the supply chain) that are incorporated into telecommunications control units (TCUs; tier 1 of the supply chain), which are then incorporated into cars. With most of the world's automotive brands having taken the Avanci license, the vast majority of cellular SEPs being in the pool, and with two major tier 2 suppliers on board, it looks like resistance to Avanci's model comes down to only a few tier 1 suppliers such as Continental, whose litigation went nowhere but which continues to engage in Avanci-bashing at conferences.

Samsung's decision to join Avanci is meaningful in so many ways. Given that Samsung is one of the world's largest implementers of cellular SEPs, its conclusion that the pool rate is fair, reasonable, and non-discriminatory (FRAND) serves as further validation. If Samsung had joined on the basis of a deal that gives it cheaper access to other companies' patents for its own devices while nominally charging everyone a higher rate, that would be different--but Samsung makes phones and tablets, not cars.

It also means that Samsung expects to be compensated for the use of its IP. No more free lunch for car manufacturers and those who make connectivity-based aftermarket products.

This also has a policy dimension. The European Commission's draft SEP regulation and the draft version of the impact assessment that will accompany the legislative proposal reflect an about-face on the question of patent pools. Today's news, however, shows that pools can streamline the licensing process, while the Commission's ideas would have the opposite effect.

Everyone interested in the subject of cellular SEP licensing wants to know who the initial licensors of Avanci's upcoming 5G pool will be. Today's announcement does not mention 5G, but why would Samsung join only the 4G pool if the 5G pool could be announced anytime? We will see, but my guess is they will be involved in that one, too. This here looks like a strategic decision.

Samsung's main rivals are Apple and Xiaomi. Apple is lobbying aggressively for that EU regulation, hoping to slow-roll and complicate SEP enforcement. Most of the cellular SEPs that Apple owns are not "homegrown" patents, but were acquired from Nortel and Intel. Xiaomi has a growing SEP portfolio, and is also working on an electric vehicle. Neither Apple nor Xiaomi are Avanci licensors as we speak. But there was a time when Samsung also didn't seem to have the profile of an Avanci licensor, and now it has become one, which demonstrates Avanci's integrative force.

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Nokia's latest standard-essential patent licensing offer to automotive suppliers is too little, too late to obviate referral of key questions to CJEU

Earlier this year, Nokia made mediation talks with Daimler and various of its suppliers of telecommunications components fail by refusing to grant exhaustive component-level standard-essential patent (SEP) licenses that would have provided suppliers with the operational freedom they need in order to go about their business. This was not only a disappointment but also a major embarrassment for the European Commission, which continues to be driven by regional protectionism rather than consistent enforcement of competition law and had urged the parties to negotiate even though it was a total waste of time, as anyone knowledgeable about the issues would have predicted.

Roughly eight months later, I have to grant Nokia and its attorneys that they have made some limited adjustments to their position, and that fact appears attributable to last month's Dusseldorf trial more so than to anything the EU Commission has done. Some key players in Brussels are beholden to Nokia, even to the extent that postfactual commissioner Thierry Breton parrots some outdated Nokia-funded propaganda by making an incorrect claim (of Europe being the #1 continent in 5G SEP ownership) from which Nokia's lawyers had already distanced themselves by way of an updated study.

The Dusseldorf Regional Court's strong inclination to refer certain component-level licensing questions to the top EU court--Daimler's lead counsel in the Nokia infringement cases, Quinn Emanuel's Dr. Marcus Grosch, told the Munich I Regional Court last month that he'd be very surprised if it didn't happen--appears to be scaring the living daylights out of Nokia. The decision is scheduled to come down on November 12, and at least the German appeals courts--the lower courts in Mannheim and Munich are too obsessed with forum-selling to do the right thing--will then likely be hesitant to enjoin end-product makers if their suppliers were denied SEP licenses on FRAND terms.

In an apparent effort to dissuade the Dusseldorf court from that CJEU referral, the Karlsruhe Higher Regional Court (which hears all appeals of Mannheim judgments) from staying the enforcement of ill-gotten injunctions against Daimler, and to further encourage the Munich I Regional Court to grant Nokia an injunction against Daimler, Nokia sent new licensing offers to several Daimler suppliers (including BURY Technologies, Continental, Valeo/Peiker, Huawei, Harman, and Renault, which builds an entire vehicle for Daimler) about two weeks ago. At the time Nokia also intended to make such an offer to Bosch, but was waiting for a non-disclosure agreement (NDA) to be concluded.

NDAs didn't prevent all sorts of information to leak from the failed mediation process, and I've been able to find out more about its current maneuvering than Nokia would have liked me to.

The structure of Nokia's latest offers still comes with significant field-of-use restrictions that cannot be reconciled with the principle of the free movement of goods in the EU's Single Market and the fact that under the CJEU's Huawei v. ZTE case law, Nokia owes implementers a license on FRAND terms.

Furthermore, Nokia wants to charge royalties based on the value of the end product--a car--as opposed to a reasonable royalty rate. As a result, component makers simply couldn't afford such a license.

But even if one elected to ignore those major issues, Nokia still refuses to extend licenses to certain levels of the supply chain. Its current offers are limited to telematics control units (TCUs) and don't cover network access devices (NAD, often also referred to as connectivity modules) and baseband chips. By contrast, Sharp granted Huawei a license covering all three tiers (tier 1: TCUs; tier 2: NADs; tier 3: baseband chips.

Huawei is a tier 2 supplier to Daimler and suing Nokia in order to secure an exhaustive component-level SEP license on FRAND terms. That case is also pending before the Dusseldorf Regional Court. I don't think Nokia's latest round of offers would obviate a referral of component-level licensing questions to the Court of Justice of the EU with respect to Nokia v. Daimler, but a tier 1 license would certainly not moot the legal issues in Huawei v. Nokia.

Not only is it urgent to refer the question of component-level licensing to the top EU court but there are some worrying developments in SEP case law in Germany that actually require the referral of further questions to the CJEU. One of the two patent infringement panels of the Mannheim Regional Court has recently decided to gut Huawei v. ZTE by focusing on the implementer's counteroffer; the Federal Court of Justice of Germany held in Sisvel v. Haier that SEP holders no longer need to present claim charts to implementers (which particularly disadvantages small companies, but the last thing a dogmatic judge in Germany would care about is the economy); and the Munich I Regional Court applies the Sisvel v. Haier guidance in such extreme ways that it's hard to see how any implementer could actually defend itself there short of simply capitulating and taking a license on the terms dictated by the SEP holder. Most recently, the Munich I Regional Court has practically waived the requirement to provide collateral (bond or deposit) if an injunction is enforced during the appellate proceedings. They still determine an amount that needs to be posted, but it's typically negligible. I'll talk about that some more on another occasion. For now I merely wanted to underscore the necessity to get certain German courts overruled by the CJEU before more damage is done to innovation and competition.

If Nokia keeps improving its offers at the snail's pace we've seen from the failed handset maker in recent years, the CJEU will likely provide further clarification before Nokia ever makes a truly fair and reasonable licensing offer to automotive suppliers.

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BREAKING: Sharp grants automotive component-level SEP license to Huawei, partially withdraws patent infringement suits against Daimler

[BREAKING NEWS]

With multiple simultaneous filings dated July 6, 2020, Sharp partially withdrew its German standard-essential patent (SEP) infringement actions against Daimler as the Foxconn-owned Japanese electronics maker has concluded an automotive component-level license agreements with Huawei. The infringement actions are continuing with respect to Daimler cars that do not come with a Huawei baseband chipset, telematics module, or telematics control unit (TCU).

In terms of the economic significance of the remaining claims, it's a safe assumption that well over half of the dispute between Sharp and Daimler has been amicably resolved by virtue of patent exhaustion. But this breakthrough agreement far transcends that particular set of cases. It divides the Avanci gang led by patent abusers and formed for the purpose of dissuading blue-chip SEP holders such as Sharp from granting component-level licenses, while exposing Nokia's dogged denial of the feasibility and fairness of component-level SEP licenses as purely pretextual. Sharp's partial withdrawals conclusively prove that it is possible to differentiate at the end-product level based on upstream suppliers.

I applaud Sharp--which owns a large SEP portfolio and has proven its will to enforce its rights in court--for showing the way forward for licensing cellular SEPs to the automotive industry, which has traditionally required its suppliers to secure the prerequisite patent licenses; I congratulate Huawei on having convinced Sharp of the benefits of such an agreement at the negotiating table; and I'm happy to see Daimler--as a beneficiary of its indirect customer relationship with Huawei, which is known to provide connectivity modules to Daimler's tier 1 suppliers such as Continental and Harman--being relieved from a significant part of the litigation pressures it has been facing for a while. In practical terms, the Sharp-Daimler cases are now merely about past damages with respect to cars that came without Huawei components. Injunctive relief is a practical non-issue as Daimler could presumably equip 100% of its products with components supplied by Huawei or coming with Huawei chips and modules.

It bears recalling that Huawei is suing Nokia in Dusseldorf for an exhaustive component-level SEP license on FRAND terms. That antitrust trial will go forward in early September. Meanwhile, Nokia's infringement claims against Daimler are falling apart.

The Sharp-Huawei license deal further validates the positions taken by the Bundeskartellamt (Federal Cartel Office of Germany) in its interventions in multiple German Nokia v. Daimler cases, advocating the referral of a set of component-level licensing questions to the Court of Justice of the EU (CJEU).

The groundbreaking agreement won't go unnoticed in Brussels, where the European Commission is dealing with SEP licensing issues at the policy as well as competition enforcement levels.

The fact that Sharp agreed to license not only tier 2 (connectivity modules) and tier 1 (TCUs) products, but also baseband chipsets (tier 3 from a car maker's perspective), means that this license agreement is bound to be referenced by smartphone makers in some of their disputes. Apple, in particular, has been advocating chipset-level SEP licensing for a long time. Sharp's parent company, Foxconn, is the largest one of Apple's contract manufacturers.

There can't be the slightest doubt that we'll see more and more agreements of this nature and stature now. Some of them will come into being on a consensual basis, such as the one I learned about today, while others will simply result from regulatory action and judicial decisions. One way or the other, the likes of Nokia, Ericsson, and Qualcomm won't be able to deny component-level licenses for too much longer.

IoT startups stand to benefit from this trend. They are far too small to be in a strong position vis-à-vis certain abusive and anti-innovative SEP holders (and the trolls they feed with patents). IoT innovators depend on their suppliers being licensed. The European Commission has failed the IoT industry so far, siding with yesterday's losers rather than tomorrow's winners, but as a result of negotiations (such as Sharp-Huawei), private lawsuits (such as Huawei v. Nokia), and regulatory interventions (such as the Federal Cartel Office's submissions in Nokia v. Daimler), change is coming.

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Nokia's piecemeal injunction strategy against Daimler's demand of €4.5 billion bond or deposit: what's Nokia's objective in auto patent battle?

This is my third post on Thursday's Nokia v. Daimler patent infringement trial in Munich. I've previously commented on Nokia's intentional misinterpretation of the Court of Justice of the EU's Huawei v. ZTE ruling and reported on the fact that this blog's publication of leaked information from secretive mediation talks between Nokia and the automotive industry gave rise to a peripheral controversy in court.

Toward the end, counsel for Nokia mentioned that Daimler asked for security to the amount of 4.5 billion euros (that's more than 4.9 billion U.S. dollars) in the event Nokia would seek to enforce a hypothetical injunction while an appeal would be pending. The likelihood of an injunction depends primarily on whether the court will adopt Nokia's utterly unreasonable misreading of CJEU case law. If the court does side with Nokia on this one, I don't have the slightest doubt that the appeals court would reverse (and probably faster than it usually does). Another question is whether the case will be stayed as an earlier wireless data communication standard (GSM-based EDGE) apparently came with exactly the selection strategy Nokia later claimed to have invented in connection with 3G/UMTS.

In both contexts, all I heard in court was one party's argument. Daimler presented its invalidity theory, which appeared to be a pretty strong case of non-novelty, but Nokia, despite Daimler asking them to respond, was evasive. And when Nokia argued that security to the amount of € 4.5 billion wasn't needed because Daimler could continue to source telematics control units (TCUs) from Samsung subsidiary Harman, and furthermore because Daimler could just deactivate 3G/UMTS support (leaving them with 2G/GSM and 4G/LTE), the court terminated the hearing without allowing counsel for Daimler (or the intervenors) to respond.

As counsel for Nokia explained, they are not asking for an injunction that would force Daimler to hold its manufacturing. Their prayer for injunctive relief is specific to German sales, and limited to Daimler cars that come with TCUs from certain suppliers (most likely, the direct suppliers among the intervenors in this action, who are Continental, Bosch, TomTom, Valeo subsidiary Peiker, and BURY), with Samsung subsidiary Harman being explicitly excluded for the time being, though Nokia does reserve the right to bring a new complaint targeting Daimler cars equipped with Harman TCUs.

What Nokia didn't specify is an amount that they would consider reasonable. The purpose of such security is only to ensure Daimler can still enforce a hypothetical future wrongful-enforcement damages award even if Nokia went bankrupt in the meantime. What Daimler will actually get may differ greatly from the amount of the security. Technically, Nokia could choose between either posting a bond or making a deposit. I guess they would have to make a deposit for an amount this large. A bond would be costly, and with Nokia's business being in decline, it's unclear whether any bank would vouch for Nokia to the tune of billions of euros without Nokia actually making a deposit with the same bank (in which case Nokia might as well put the money in a German court's bank account, which wouldn't charge fees).

Nokia's argument that enforcement damages would be mitigated by Daimler disabling 3G isn't convincing. There are some mobile telephone networks in Germany that still rely on 3G in wide swaths of the country (such as Telefónica's O2 service). Also, I don't know whether any carrier would certify a 4G end-user device (such as a connected car) without being backwards-compatible to 3G. That might leave Daimler with 2G.

As for Harman's ability to just supply enough TCUs, I don't know to what extent Harman itself can do it, or whether the powerful Samsung group as a whole could enable Harman to do so.

There's no reason to assume Nokia will ever license Harman, except under antitrust pressure (such as from the European Commission, or as per a court order). So this looks like a peacemeal resolution strategy: by means of a carve-out for Daimler cars with Harman TCUs, Nokia tries to make it easier for the court to grant an injunction (in the middle of the German patent reform debate, where the proportionality of injunctive relief is the #1 topic of debate), and probably hopes that the European Commission won't take decisive action before an injunction comes down. When Samsung was pursuing injunctive relief against Apple almost a decade ago, the Commission at some point put so much pressure on Samsung that all injunction requests over SEPs were withdrawn EU-wide. The Commission's hesitance to strike down on Nokia's clear abuse of EU antitrust law is already making the agency look very bad. Its dual standards are already more than obvious. But at the point where Nokia would enforce a SEP injunction agianst Daimler, enabled only by Nokia's refusal to license Daimler's suppliers, the Commission would either be exposed as the Western world's least credible and least independent competition authority--or it would have to call Nokia off, as it once did in the Samsung case.

If Nokia brought a follow-on complaint targeting Daimler cars with Harman TCUs, the Munich court could adjudicate that one pretty quickly. I'm not sure they would even hold their usual two hearings in that case. However, they couldn't resolve it faster than the appeals court would most likely overturn the original decision.

While it's easy to see how Nokia hopes its tailored injunction strategy may persuade the court to just go ahead and grant an injunction, and dissuade the Commission from intervening, it's harder to tell from the outside what Nokia really intends to achieve here.

It wouldn't make sense for Nokia to obtain an injunction against Daimler cars incorporating TCUs from half a dozen suppliers as long as Daimler has other sources. A follow-on complaint would be a given. And at that point (though I don't think Nokia could formally win a second case before the appeals court tosses a hypothetical first win), Nokia would likely have to make a multi-billion euro deposit. Last summer its cash reserves amounted to approximately 7 billion euros, but it's another question how comfortable Nokia's shareholders would be with half or more of that amount being deposited in a German court's bank account.

Nokia would need a German injunction that bites and lasts. A tailored injunction might just be an annoyance to Daimler without forcing a settlement. And even an injunction that can't be worked around logistically would matter only if it was more than ephemeral.

With its current strategy, Nokia is jeopardizing the reputation of the Munich I Regional Court (by asking it to misinterpret Huawei v. ZTE in an outrageous way) and of the European Commission, whose call for mediation suggested that it is a purely political organization as opposed to a regulator that truly cares about safeguarding competition. The grand prize Nokia is hoping for is a settlement with Daimler, and I don't see that happening anytime soon. This could become Nokia's Vietnam. On Tuesday, the Mannheim Regional Court will most likely hold a Nokia patent non-infringed. Nokia's SEP portfolio is largely untested in litigation. If the patents-in-suit I've seen so far are Nokia's strongest weapons, then they are in serious trouble. At the end of the Daimler dispute, Nokia's SEP portfolio might be totally devalued, and we're just about a couple of years away from the next round of renewals of Nokia license deals in the smartphone industry, where I predict they're going to get far less money than last time.

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FOSS Patents' publication of leaked information on status of mediation effort gave rise to peripheral controversy in Nokia v. Daimler trial

Almost all of the time, this blog merely reports and comments on key issues facing the technology industry, but doesn't create or constitute an issue in and of itself. FOSS Patents has been mentioned in some U.S. court filings over the years, and judges (mostly in Germany, but from what I hear also in other parts of the world) have sometimes made reference to FOSS Patents without naming it. But today was the first situation in which two parties (a plaintiff and an intervenor) traded accusations involving FOSS Patents in different ways.

Various suppliers are intervening on Daimler's behalf in today's Nokia v. Daimler standard-essential patent infringement trial in Munich (continuing in a sealed courtroom as I write these lines). One of them is Peiker Acustic (yes, without an "o" before the "u"), a subsidairy of French automotive supplier Valeo. Just like in an October 2019 early first hearing in another Nokia v. Daimler case pending before the Munich I Regional Court, Dr. Benjamin Schroeer ("Schröer" in German) of the Hogan Lovells firm made an impassioned argument for his client's entitlement to an exhaustive component-level SEP license.

One of Dr. Schroeer's points was that the suppliers intervening in this case were specifically targeted by Nokia, whose complaint names certain suppliers and seeks an injunction and other remedies only with respect to Daimler cars incorporating telematics control units (TCUs) from those particular suppliers. Peiker's counsel noted that Nokia not only excluded Harman (a Samsung subsidiary) from that list but even explicitly stated that Daimler cars incorporating TCUs made by Harman were not being targeted at this stage.

Dr. Schroeer took Nokia to task over this selective, discriminatory targeting of particular Daimler suppliers (as opposed to all of them). While Harman's exclusion would simply be legally required if Harman had an exhaustive component-level license to Nokia's SEPs, he said that Harman quite apparently doesn't have such a license. In this context, he pointed to the fact that a FOSS Patents report on ongoing EU antitrust mediation between Nokia and Daimler as well as various Daimler suppliers mentioned Harman as one of the suppliers negotiating with Nokia. It's true that I listed all participants in mediation that I was able to find out about, and Harman was one of them.

A few minutes later, Nokia's lead counsel, Arnold &amp, Ruess's Cordula Schumacher, accused Dr. Schroeer of having violated the non-disclosure agreement covering the mediation process by confirming in open court the accuracy of a fact leaked to this blog.

One of the limitations concerning German court proceedings is that there are no transcripts. Otherwise one could verify what exactly Dr. Schroeer said. I don't remember him affirmatively confirming the accuracy of anything I wrote. It might be that the way he expressed himself was ambiguous and could be interpreted as either just referencing what I had written or making it sound like the fact I reported on it deprived the information of protection under the NDA.

In any event, Dr. Schumacher asked the court to add a sentence about this to the official minutes. In that same situation, Nokia's director of European dispute resolution, Dr. Clemens-August Heusch, made a remark to the effect of accusing Dr. Schroeer of having been FOSS Patents' source on the mediation status in the first place. Dr. Schroeer demanded a retraction and an apology (and also asked for something being included in the official minutes). He firmly denied having been my source. Nokia's Dr. Heusch declined the court's invitation to comment.

I don't disclose my confidential sources, which is also why I don't deny that anyone has been a source (or validate or contradict denials). What I did indicate in the Nokia mediation context is that I obtained information from more than one source.

The fact that Harman participated in mediation while not being an intervenor in the Nokia v. Daimler infringement proceedings was interesting for sure, but the blog post in question contained far more sensitive information than that one. It appears overreaching to try to keep the names of the parties to an antitrust mediation (requested by the European Commission) confidential.

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BREAKING NEWS: Nokia makes antitrust mediation with Daimler and automotive suppliers over standard-essential patent licensing fail

[HAPPY NEW YEAR -- AND BREAKING NEWS]

Nokia wanted to keep its EU antitrust mediation with Daimler and various automotive suppliers strictly confidential. Nice try, but I've been able to obtain reliable and mutually-corroborating information from more than one source. (I obviously protect my sources.)

On Friday (January 10) and Saturday (January 11), Nokia--represented by Bird & Bird's Richard Vary (formerly head of litigation at Nokia) and Roschier's Niklas Östman--met with Daimler and various suppliers (Bosch, BURY Technologies, Continental, Harman, Peiker, and TomTom) at a recently-opened Munich hotel. But nothing came out of a whole series of meetings moderated by a British mediator and two British lawyers appointed by the International Chamber of Commerce. The mediator will communicate with the parties by telephone in the days ahead and make a procedural decision. Theoretically, there could be another series of meetings on the 22nd and the 23rd. However, based on how these past two days went, it would be a total waste of time to reconvene.

In practical terms, it's already clear that mediation is pointless for two reasons that made the Munich meetings fail, neither of which comes as a surprise:

• Mediation would only have made sense if Nokia had departed from its dogged refusal to extend a true and exhaustive standard-essential patent (SEP) license to Daimler's tier 1 (= direct) suppliers. Continental had made Nokia a binding offer to take such a license before mediation began, but Nokia remains unwilling to grant any such thing as a true license to component makers. It proposes a "have made" right, which is just an extended-workbench type of arrangement as opposed to a component-level license.

• Furthermore, the meetings inevitably proved unproductive because Nokia refused to make it existing cellular SEP licensing agreements (such as the one with Huawei) available to the other parties. Nokia's excuse was that those agreements allegedly weren't relevant (not only U.S. courts but even some--if not all--German courts would disagree). Therefore, Nokia's counterparts would have had to negotiate without having the slightest idea of what Nokia's existing licensees actually pay for those SEPs.

  At best, Nokia is willing to disclose an obscure and highly atypical license agreement with a car maker who apparently accepted--but only for a transitional period and with the right to terminate as per the end of 2019--a "have made" right. That same car maker is likely to sign an Avanci pool license in the near term based on what I heard.

The information I've obtained suggests that Nokia has not been constructive, neither structurally (exhaustive license vs. "have made" right) nor procedurally (disclosure of existing SEP license agreements). If Nokia had agreed to grant component-level licenses (real licenses, not "have made" rights), and if it had then presented its existing SEP licensing agreements, mediation could have worked in theory. But no one could seriously have expected it to happen, which is why I predicted the failure of this mediation effort before. By now it's failed for all practical purposes, whether or not the mediator will order another series of meetings later this month.

EU competition chief Margrethe Vestager said last month that she expected an update on mediation by mid-February. She's not going to get any good news out of mediation, that's for sure.

What I've found out about the way the talks were structured is that the first day consisted of bilateral talks between Nokia and each of Daimler's suppliers. The suppliers invited to mediation included the ones intervening in the German infringement cases, plus Samsung subsidiary Harman, but not Huawei, which wanted to join but Nokia wasn't willing.

On the second day, Nokia might have hoped to drive a wedge between Daimler and its suppliers. Daimler met separately with each supplier (for antitrust reasons, they couldn't just all sit at the same table and discuss numbers), but neither Daimler nor the suppliers were prepared to agree with Nokia that the problem could simply be solved by Daimler reaching an agreement with each supplier on how to split the outrageous, supra-FRAND royalties Nokia demands.

The European Commission's Directorate-General for Competition (DG COMP) will have to make a decision. They hoped to avoid it, but it was clear that there's a binary, structural question at issue. Either the suppliers get a license and can make components they are free to sell not only to Daimler but also to others (in case they end up sitting on some excess quantities, for instance), or it's not a license.

The next Nokia v. Daimler SEP infringement trial is scheduled for January 21 and will take place in Mannheim unless the court decides to push the trial date back. Another Mannheim trial, originally scheduled for December, was postponed on short notice, but I heard from more than one source that the patent-in-suit in that one was so ridiculously weak that the court likely wouldn't have reached the FRAND defense anyway...

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