Some Revelations from the Injunction in Qualcomm's Apple Patent Litigation

In the past few days, it seems that the major media and self-media have been filled with two pieces of hot news that no one can get around-one is the detention of Ms. Meng Wanzhou, a well-known domestic private enterprise CFO, in Canada, and the other is Qualcomm in my country's Fuzhou Intermediate People's Court. The ban in the lawsuit filed in Apple's patent infringement case was approved by the Fuzhou Intermediate People's Court, and most of Apple's mobile phone products currently sold in China are prohibited. There seems to be a subtle relationship between the two events in media communication, but this is beyond the scope of this article. This article is only on the second matter, Qualcomm Apple's patent litigation in the case of the ban gained a few enlightenment, for everyone to discuss.

According to media reports, the Fuzhou Intermediate People's Court passed two interim injunctions filed by Qualcomm against Apple's four Chinese subsidiaries, demanding that they immediately stop infringing on Qualcomm's two patents, including importing, selling and promising to sell unauthorized products in China. Its product range covers 7 Apple mobile phone products currently on sale, ranging from IPHONG6S to IPHONEX.

For Qualcomm, the anti-monopoly investigation started in China since November 2013 has finally come to an end with its 6 billion fine, but it can still charge the authorized person who uses his patent, which is commonly known in the industry as "Qualcomm tax", and the amount is reported to account for about 5% of the selling price of mobile phones using its technology. Based on the ex-factory price, even if there is a limit price of up to $20, logically speaking, this approach is indeed somewhat unreasonable. In other words, even if my products get a higher premium by adopting other new technologies, inviting new spokesmen at high endorsement fees or naming some popular variety shows (which has become a must for domestic mobile phone manufacturers), this part of the increased revenue has nothing to do with Qualcomm's technology, but it will also increase the royalties paid to Qualcomm.

Because of this, many mobile phone manufacturers, including Apple, have filed lawsuits against it, and antitrust departments of many governments have conducted antitrust investigations against Qualcomm. The entanglement in the middle is very complicated, and interested partners can check it by themselves. However, this background information does not mean that Qualcomm's patent rights have been infringed, and its valid patents are not protected when they are infringed. This should not have appeared. Here we only explore the implications of the injunction in this lawsuit.

1. software patents that are easily overlooked

Interestingly, this case involves not Qualcomm's key baseband chip patents, but just ordinary software patents. Its role is simply to allow users to adjust the size and appearance of photos and use touch-screen management applications.

As we all know, once a software product has written all the code, it can automatically generate copyright as a software work in accordance with the provisions of the Copyright Law. Many people know that there is a kind of registration called "software work copyright registration", through registration can be issued "computer software copyright registration certificate". But what many people don't know is that copyright law protects only manifestations, not ideas. For software works, once someone carefully studies the code of the software, studies its ideas, and writes a "new" software in a completely different computer language, even if the ideas or ideas are similar to them, the copyright law cannot protect the original software. And we know that in fact, creativity or ideas are the most important core, but this is the part that copyright law cannot protect. This can only be protected by software patents.

Software patent is through the protection of software ideas (implementation, implementation method) to achieve the purpose of protection, the main protection is to achieve the design purpose of the flow chart, as to what kind of computer language used in. After obtaining the patent authorization, others may constitute infringement by adopting this idea. Therefore, it is complementary to the software copyright. The reason why many people are not familiar with it is that my country did not grant patents to pure software before 2006. At that time, it could only achieve the purpose of modification through the "combination of software and hardware (combination of software and hardware). However, with the gradual update of China's patent examination system, software patents can also be authorized, the specific examination standards can be found in the State Intellectual Property Office patent "examination guide" part II chapter 9 "involving computer program invention patent application examination of a number of issues".

Through this case, we can see that if Qualcomm does not have the corresponding software patent, but only owns the software copyright, I believe its protection will be much worse.

2. non-core patents are also of high value, just to see how they are used.

As mentioned above, Apple's alleged infringement in this case is not Qualcomm's core patent based on baseband technology, but a common software patent that only allows users to adjust the size and appearance of photos and use touch screen management applications.

Obviously, based on the cognition of ordinary people, this technology does not belong to any high-end technology, and it does not seem to be a major technological innovation or breakthrough for an enterprise. But what I want to say is, for an ordinary consumer, how far is the core baseband technology in mobile phones from me? How many ordinary consumers are concerned about which core baseband technology is used in mobile phones? How many mobile phones on the market are based on ultra-light and ultra-thin, beauty function against the sky, night shooting is also clear and so on as the core selling point to attract many consumers willing to take out the white money in their pockets again and again?

In fact, it is these buttons, screens, and mobile phones that are wrapped on the core chip. Consumers often do not have access to the core technology and can only generate their desire to buy through these external experiences. These buttons, screens, and shapes often produce a lot of design and utility model patents, and once these so-called non-core patents can form a relatively complete patent barrier, they can often form competitiveness more easily, so as to better achieve the elimination of competition. The purpose of the opponent.

3. the seriousness of law enforcement

The case was filed in November 2017. Qualcomm applied to Fuzhou Intermediate People's Court in July 2018 to order the defendants to stop the infringement of patent rights in advance, and requested to stop the sale of 7 mobile phone products from iPhone 6S to iPhone X, the infringing products of Apple's four subsidiaries, that is, the injunction in the lawsuit. The so-called "injunction in litigation" is based on Article 66 of the Patent Law: "The patentee or interested party has evidence to prove that others are committing or are about to commit acts of infringement of patent rights, and if they are not stopped in time, they will cause their legitimate rights and interests to suffer irreparable damage, they may apply to the people's court to take measures to order them to stop the relevant acts before filing a lawsuit." a measure taken.

If the court believes that the possibility of infringement is greater, and the infringement persists, and the loss is difficult to recover, it will issue an injunction. At the same time, in order to prevent the temporary injunction from being abused as a means of attacking and harming others, the law provides for the need for security when requesting an injunction. Qualcomm in order to apply for the ban, it provided a guarantee of 0.3 billion yuan.

The trial period of intellectual property litigation is often very long, and now the iteration cycle of products is very short. Take Apple mobile phone as an example, 2-3 new mobile phones are released every year. In the past, a lawsuit was often filed, the product has fallen behind or even withdrawn from the market, and its patent is naturally meaningless. Therefore, the injunction in the lawsuit can play a role before the lawsuit is over.

Since the ban has been issued, it should be implemented immediately. Even though Apple said in a subsequent statement that it had appealed, the Fuzhou Intermediate Court has made it clear that "the matter of the ruling falls within the scope of a patent injunction, with only a first instance, no appeal, and no second instance. The injunction will apply nationwide." Moreover, Article 66 of the Patent Law clearly states that "if a party is not satisfied with the ruling, he may apply for reconsideration once; the execution of the ruling shall not be suspended during the reconsideration period."

Since this is a ruling in force, the four defendants in this case should immediately enforce the injunction. But from the current Apple customer service response is not the case, according to media reports, Apple's official website customer service made it clear that "there is no infringement of the shelf you said this kind of problem, we have not been notified. You can see, the current official website iPhone7 series, iPhone8 series and the latest model of these models are on sale, Apple's official website is also on sale". At the time of writing this article, the author can still find a large number of litigation-related products on sale in Apple's official website, Tmall, Suning and other channels, and there seems to be no sign of products being taken off the shelves in offline physical stores.

The consequences of non-implementation should have been severe.

As required by the relevant law, the injunction will be enforced immediately on the date it is served. If Apple does not implement this prohibition, the people's court may impose a fine, detention, or criminal responsibility in accordance with Article 111 of the Civil Procedure Law. Not long ago, on December 5, 38 ministries and commissions including the National Development and Reform Commission jointly signed the ''Memorandum of Cooperation on Joint Punishment of Seriously Untrustworthy Subjects in the Field of Intellectual Property (Patent), ''including repeated patent infringements and non-legal enforcement. The six categories of behaviors will be identified as serious dishonesty in the field of intellectual property (patent) and face cross-departmental joint punishment. According to the requirements of the memorandum, the relevant serious breach of trust will not only be recorded in the credit reporting system, but also the subject of serious breach of trust will face the application for issuing corporate bonds will not be accepted; the establishment of financial institutions will be restricted; and a total of 33 joint disciplinary measures will be taken to restrict the purchase of real estate and state-owned property rights transactions.

The famous saying of Abraham Lincoln, the 16th President of the United States: "The patent system is to add benefits to the fire of genius" is regarded as the standard of intellectual property rights. This sentence fully shows that the essence of intellectual property rights is to obtain benefits through protection. The dispute over intellectual property rights is actually a dispute over interests. The "justice of law" mentioned here is realized by protecting the interests of the infringed person from infringement and making up for the interests that have been infringed. In other words, it is of more direct significance to make up for the interests of the infringed and restore their legal rights. In this sense, punishing infringers is important, but serious law enforcement is fundamental. If there is no serious law enforcement, it is a bit taken for granted to expect the infringer to carry out it voluntarily.

Although there are continuous lawsuits between Qualcomm and Apple, there are dozens of lawsuits going on between the two parties around the world, involving huge amounts of money. Many analyses also pointed out that the two parties use litigation to fight for interests. There will be constant confrontation and transactions between the two parties under the table. However, in any case, the seriousness of Chinese law should be guaranteed. Since it is an effective and nationwide ban, it should be implemented. Otherwise, once this case is opened, there will be endless troubles.

Since intellectual property rights have risen to the national strategic level, the protection of intellectual property rights has become a national consensus. Since the United States has repeatedly accused China of ineffective intellectual property protection in the trade war that began this year, we should show our strength in intellectual property protection in the intellectual property dispute between two American companies in China, especially in this delicate situation.