In a decision on November 17, the German Federal Patent Court upheld High Point's European patent number 0 522 772 for optimising using mobile network resources.
The patent's validity was attacked by mobile telecoms company E-Plus, which was supported by Ericsson and Nokia Siemens Networks.
The patent, which was granted in 1996, concerns architecture for deterministic and non-deterministic traffic handling for CDMA-UMTS systems. The technology essentially improves connections between mobile devices as the signal passes between cells, allowing a system to handle more traffic.
High Point bought the patent from AT&T, whose laboratories developed the technology, and has since asserted it in the Netherlands, as well as the US and Japan. It claims it is essential to the UMTS standard.
But in a parallel case in The Hague, the Dutch District Court recently nullified the same European patent, finding that it included added subject matter. That decision is on appeal.
In its judgment, the German Federal Patent Court criticised the Dutch decision, saying it did not find it convincing.
The German Federal Patent Court, which only deals with validity matters, consists of a panel of five judges, of whom three are technical and two are legal. One of the legal judges presides: in this case it was Wolfgang Gutermuth.
Its written opinion is expected early next year.
On December 16, the parties were in the District Court in Düsseldorf for an infringement hearing.
One argument the defendants are expected to pursue is the so-called Euro defence, under which they could argue that a defendant is entitled to a compulsory licence under antitrust law.
This question was addressed in the so-called Orange Book decision last year, which concerned the licensing of CD-Rs.
Johannes Heselberger of Bardehle Pagenberg in Munich, who acts for High Point, told Managing IP the case is the latest to highlight the oddity of having different courts in Europe rule on the same patent: "A case can be made for advocating a harmonised system. It doesn't lead to trust among overseas clients to have diverging decisions."
He added that in this case, the validity findings of the two courts were at odds on the question of undue broadening - even though the two courts are essentially dealing with identical facts, the same arguments and the same parties.
In the German litigation, E-Plus is represented by MERH IP Matias Erny Reichl Hoffmann and Hogan Lovells, Ericsson by Hoffmann Eitle and Taylor Wessing and Nokia Siemens Networks by Von Lieres Brachmann Schulze and Freshfields.
Recent cases such as Novartis v Johnson & Johnson and Conor v Angiotech have also resulted in divergent decisions in different European countries.
This has reinforced calls for a Community patent and pan-European litigation system. The latest proposals for an IP court are now being considered by the Court of Justice, which is expected to give its opinion early next year.
