In Qualcomm's most recent case against Apple, we learn that Apple cleverly developed a Workaround in iOS 12 to defeat Infringement
In a second major legal report this week we learn from Germany's patent analyst Florian Mueller that Qualcomm's Munich Spotlight cases have been defanged in three important ways.
Firstly some of the Qualcomm lawsuits will result in a non-infringement finding. There could be a minor monetary charge, but no infringement will be handed down.
Secondly, iPhones for the German market could be manufactured by Pegatron to side step infringement. Again there will be a cost paid to Qualcomm but completely side step an infringement finding.
Thirdly, Qualcomm's lead counsel, Quinn Emanuel's Dr. Marcus Grosch, conceded that iOS 12, at least in Germany (though purportedly not in other places), "works differently" with respect to the accused feature. When asked by the court whether iOS 12 keeps clear of infringement, Dr. Grosch stopped short of admitting that much, but he did reiterate that it "works differently."
Mueller thinks that this complicates matters for Qualcomm, with the charge of infringement against Apple not being able to stick. This is likely to translate to another win for Apple, though there could be a monetary penalty applied.
Further on this point, Mueller specifically wrote: "In the validity part it was easy to see why iOS 12 is apparently in the clear: in connection with a search for ways to contact a person, Spotlight in iOS 12--purportedly just for Germany--displays text, but not icons, when distinguishing between a given contact's phone number, email address, and other contact data. Does this sound ridiculous to you? It sure does to me. But Qualcomm's last straw for getting at least some valid, but significantly narrowed, claims at the end of the ongoing nullity and revocation against rests on the icon/text distinction. I don't know whether one should laugh or cry. Anyway, this makes the presence of icons critical for the infringement theory as well, but iOS 12 simply doesn't show icons to German users in that particular context.
So if Qualcomm were to obtain a German injunction, it would only be symbolic, but commercially irrelevant. Frankly, I can't even see how the patents will survive on that basis."
Towards the end, Mueller adds: "How could Qualcomm enforce its intellectual property rights without violating antitrust law? Apple mentioned different aspects and criticized Qualcomm for the selectivity of its attacks. In my opinion, the single most important part is that Qualcomm would recognize the antitrust implications of its actions and would seek only monetary damages, not injunctive relief."
On one last interesting point, Mueller asks the question: "Couldn't Qualcomm just work around it by means of privateering (selling patents to a troll who would then go after Apple)?"
In his opinion, Mueller writes: "It wouldn't work. In order for Qualcomm to leverage patent suits to force Apple to stop buying from Intel to and force it to return to buying baseband chips exclusively from Qualcomm again, Qualcomm would sooner or later have to tell Apple that certain troll lawsuits would also be withdrawn the moment Apple does so. So Qualcomm couldn't hide the fact."
A decision has been scheduled for December 20, 2018. For more on this, be sure to check out FOSS Patents' full report.