Skilled in the Art Oracle Google and the Master of Suspense
With all Kats working flat out, it'due south always a relief to know that nosotros take our friends who assist united states out from fourth dimension to fourth dimension. 1 such friend is onetime guest Kat and PatLit team memberStefano Barazza, who is now Lecturer in Constabulary in the Faculty of Business and Club at the Academy of South Wales. While blogposts on this web log are ofttimes pretty cheerful and humorous affairs, information technology does sometimes happen that we come across a case that is very difficult to present in anything other than in terms of the grim reality of a dispute that turns on some detailed assay of facts and the awarding of the law to them. This is ane of those cases. Stefano explains:
On Fri, Mr Justice Birss delivered a dense, well idea, admitting mayhap slightly unexpected, judgment in Vringo Infrastructure Inc v ZTE (UK) Ltd [2014] EWHC 3924 (Pat). The 27 page decision examined the validity of the European patent EP (UK) 1 212 919 ("Relocation in a Communication Organisation"), which disclosed, inter alia, a method for relocating a protocol termination point in a communication system. The patent, with a priority date of fourteen September 1999, was originally obtained past Nokia. Information technology was alleged essential to the 3G standard, equally its method is employed in the context of the handover of a mobile telephone call from i cell to another. In this activeness Vringo declared that ZTE's 3G (and 4G) products infringed the patent, while the accused disputed the validity of the patent, in calorie-free of the prior fine art. The courtroom upheld Vringo's complaint, finding the patent valid and infringed by ZTE.
Before examining in depth the patent at issue and its validity, Birrs J addressed some preliminary, withal absolutely irrelevant, questions. First, he briefly dealt with ZTE's allegations that Vringo was a "patent troll", observing that, regardless of the truthfulness of such allegations, the defendant had failed to plead any relevant defence (due east.g. under competition law) related to this bespeak (equally readers probably remember, this is not the offset time that Vringo has been defendant of being a patent troll, most notably in relation to proceedings brought in the US against Google and AOL, although an interesting post on Patentology questioned the appropriateness of such accusations). Secondly, the judge best-selling that, during the trial, ZTE had suggested that Nokia'southward conduct might have misled the standard setting trunk into including the invention in the 3GPP standards. However, he concluded that the defendant had once again failed to put forward any valid defence related to such claims.
Technical background
The court engaged in a detailed reconstruction of the technical background of the invention, finding that, by September 1999, the second generation cellular mobile systems (2G) were well established and widely used internationally, while the process of standardisation for the third generation networks (3G) was well under manner and its structure already clearly divers. In the 2G system, each mobile phone established a radio connection with a cell, equipped with a BTS (Base Transceiver Station); multiple BTSs were controlled by a BSC (Base Station Controller), forming a BSS (Base Station Sub-System). The BSCs were continued to a network sub-system, which hosted ii units, the MSC (Mobile Switching Centre) and the SGSN (Serving GPRS Support Mode), respectively used to road calls and Internet traffic. The 2G arrangement implemented a method to handle handover betwixt cells, which happens when a mobile telephone user moves from i cell surface area to another. As the 2G phones could only communicate with one BTS at a time, the switching method (known every bit "hard handover", or break-before-make) involved either an inter-BSC handover, if the cells were controlled by the same BSC, or an external handover, in the reverse case, which required the utilize of the MSC.
The 3G organization, or UMTS (Universal Mobile Telecommunication System), which was under evolution in 1999 by the 3GPP (third Generation Partnership Project) standard setting organisation, used a bones structure similar to that of the 2G system, albeit employing dissimilar terminology: the BSC became the RNC (Radio Network Controller), while the BTS was renamed every bit "Node B" and the BSS every bit RNS (Radio Network Subsystem). The whole network of RNCs and Node Bs was called UTRAN (UMTS Terrestrial Radio Access Network). The handover in the new 3G system, nonetheless, was handled differently, as new 3G phones were capable of communicating with multiple cells simultaneously, and the RNCs could connect directly to each other. This immune the implementation of a "soft handover", or make-before-break method, in which the connectedness to 1 or more target cells is fabricated before breaking contact with the source jail cell.
In the handover process in UMTS, when a phone user moves so as to be within the range of two cells, a new, simultaneous connexion with the second Node B is fabricated, and the signal to and from the telephone runs both through the original Node B, upwards to the serving RNC (sRNC), and through the new Node B, up to the new RNC, known as the drift RNC (dRNC). The dRNC, via the new inter RNCs connectivity provided by the 3G standard, passes the signals received from the phone to the sRNC, which combines them and routes them externally (e.g. to the MSC). When the telephone moves closer to the new Node B, the connection with the original Node B is dropped; however, the old RNC remains the serving RNC, on account of the continuing connectedness (non to the phone, but) to the drift RNC. Essentially, SRNS (serving RNS ) relocation intervenes, at this stage, to ensure that the dRNC (as well known as target RNC, tRNC) becomes the new sRNC, to the effect that all signals from the phone are managed by the real cell to which it is connected and that connection to the old RNC is dropped.
In UMTS, the communications between the RNC and the MSC are governed by the RANAP (Radio Access Network Application Part) protocol, while communications betwixt the UTRAN and the mobile phones are governed by the RRC (Radio Resource Command) protocol. Of relevance hither is the use of the RANAP protocol to transfer information from the sRNC to the tRNC in the handover procedure. Such information would include a message known, in the prior fine art, as a "relocation required" message, whose elements would comprise a "Source RNC to target RNC transparent field".
The approximate discussed ii possible interpretations of the term "transparent":
* "network transparency". This is the idea that some data is passed through an entity in a network without existence altered or acted upon in any way by that entity. The information element or message is said to be transparent to the network. As a matter of language information technology is a fleck similar saying light is transparent to glass only those skilled in the art know what is meant.
* "protocol transparency". An case of this idea occurs when a higher layer protocol passes a PDU [Protocol Data Unit] downward to a lower layer protocol in the protocol stack. The PDU is said to be transparent for those lower protocols. The lower protocols cannot alter the contents of the PDU or even empathize them."
Prior art
The judge examined three potentially relevant items of prior art all three documents related to the WG3 group, which was responsible at the time for developing specifications for the UTRAN. The group, which held regular meetings since Feb 1999 and included more than than 50 delegates (and representatives of the leading telecommunications companies), focused, inter alia, on SRNS relocation and the RANAP protocol.
The first document, "359", dated April 1999, contained NEC'southward proposed RANAP message parameters to be transmitted by the serving RNC to the target RNC, during switching. The 2nd document, "413", was the first draft of the technical specification TS 25.413, to which the patent at result was declared essential. The 413 document contemplated that some relocation information would be sent by the sRNC to the tRNC using the RANAP protocol, including an information chemical element called "Source RNC to Target RNC transparent field". The third document, A61, dated August 1999, contained Nokia's remarks on the progress made within the WG3 concerning the transmission of RRC information during handover, through the RANAP protocol. In particular, it discussed the data to be transmitted, during relocation, in the proposed "Source RNC to Target RNC transparent field".
The guess sought to examine the relevance of this prior art to Nokia'due south patent which essentially taught, in the context of UMTS, how to implement a method in which the information to be transferred through the RANAP protocol, in the phase of SRNS relocation, did not need to be divers in RANAP itself, but could be defined in a new set in the RRC protocol. Such data, known as Protocol Initialisation Unit of measurement (PIU), would exist carried by a message defined in RANAP, but not included in the RANAP specification itself. According to the patent, the PIU would exist transparent for the RANAP protocol.
Novelty and non-obviousness
Having identified the person skilled in the art as a system architect, with an electronics technology or calculator science degree, employed by a mobile telecommunication manufacturer or network operator in an interdisciplinary team, Birss J turned to the structure of the relevant claims. First, he noted that "[a]lthough the generality of the patent is wider than SRNS relocation in UMTS, the preferred embodiments and many dependent claims are limited to that". Paragraph seven of the background section, in item, described one of the bug that was beingness evaluated within the WG3 group at the fourth dimension, namely the inclusion of the parameters to be transferred from the sRNC to the tRNC in the RANAP protocol (the patent refers to the RNSAP protocol, but the divergence was immaterial here, said the judge). According to its summary, the invention aimed, inter alia, at addressing this issue; specific embodiments described the thought of using a special PDU or PIU divers in the RRC protocol to identify the information to be encapsulated in a RANAP message and transferred from the sRNC to the tRNC during SRNS relocation.
Claims ane and six, read together, described:
A method in a advice organisation for relocating a protocol termination signal, characterised in the steps of:
(a) using a commencement protocol to define a protocol initialization unit of measurement (20) at a starting time termination point of a first protocol (34), said protocol initialization unit containing predefined data pertaining to initialization of a 2d termination point (36) of said starting time protocol;
(b) transferring the protocol initialization unit from the start termination point to a 2d termination point by a second protocol; and
(c) initializing the second termination signal based on the protocol initialization unit (38);
(d) wherein the protocol initialization unit of measurement (20) is transparent for the second protocol.
The claims related to a method for relocating a protocol termination point in a communication organisation. Read in the context of SRNS relocation in UMTS, the start protocol, which includes the PIU, would exist RRC, and the 2d protocol would be RANAP; the PIU would be transparent for RANAP. The parties disagreed on whether the definition of a PIU in a protocol was an attribute of a standard or of a organisation, though the judge chose the get-go option. He noted that Vringo's disagreement on the signal was probably related to the potential non-technical character of the claim at issue, under this interpretation, merely concluded that "[p]rotocol definitions are not merely administrative documents, they are specifications which ascertain how a organisation has to perform [and] are highly technical in nature". The patent is addressed to skilled persons involved in the definition of protocols, for example in a standard setting context, without further consideration of the hardware or subroutines involved in the application of such protocols.
Assessing novelty in light of the prior fine art mentioned above, Birss J first recited the teaching of Synthon that novelty is excluded when the prior art provides an enabling disclosure. In relation to the 359 document, he focused on the proposal of a "relocation required" message, which included an RRC Information parameter which "is transparent field". Did the term "transparent" refer to network transparency, every bit suggested by Vringo, or protocol transparency, equally argued by ZTE? The latter interpretation would have implied that the contents of the RRC information had to be defined in the RRC protocol and transferred through the RANAP protocol like a PDU. The judge observed that the relevant question was not "[w]hat did the writer intend?", but "[w]hat would a skilled reader think the author hateful?" This being so, since the skilled person would have had no way to know exactly what the author meant and had no knowledge of the content of all the word of WG3, he would have understood the certificate as referring to network transparency. The same decision was reached in relation to the A61 document and its reference to a "relocation required" and a "relocation request" letters.
Before tackling obviousness, Birss J reconstructed the applicable legal framework, reciting the well-known four-step examination elaborated by the Court of Appeal in Pozzoli v BDMO: (i) place the person skilled in the art and its common general noesis, (ii) identify or metaphrase the inventive concept of the claim in question, (3) place the differences betwixt the prior art and the inventive concept of the claim, and (iv) enquire whether such differences, viewed without any knowledge of the alleged invention equally claimed, would have constituted obvious steps for a person skilled in the art (see besides Generics v Lundbeck, and MedImmune five Novartis ).
Document A61, said the court, would have been understood past the skilled person as implying the relocation of "one or more than protocol termination points from the sRNC to the tRNC by transferring predefined information pertaining to the initialisation of the second termination point from the first termination indicate to the second termination point". Such transfer of information would have been carried out through messages defined in RANAP, in the element called "Source RNC to Target RNC Transparent Field" (with "transparent" referring to network transparency, equally held above). The judge institute that "[t]he existent difference between A61 and proposed claim i is the requirement for protocol transparency being added into the claim from old merits vi" (the certificate also did non disembalm defining a PIU in the RRC protocol, but this would have been a necessary step for a skilled person looking to implement protocol transparency). In this view, at least initially, the skilled person would take looked at defining all the information to be transferred through RANAP in the RANAP specification itself.
Addressing ZTE's argument that the use of protocol transparency would accept been made obvious by reference to the GSM external handover (which implemented information technology), Birss J fabricated a thorough comparison between the relevant 2G and 3G handover mechanisms: generally, the skilled person would have taken the 2G organization into business relationship. "However", he added, "I am not satisfied they would extract from information technology the idea of using protocol transparency in order to send RRC data from the sRNC to the tRNC via RANAP". This conclusion was mainly based on the different context surrounding handover in a GSM system (where, for example, there was no need to ascertain a new termination message).
ZTE's secondary statement concerning the fact that the potentially large number of RRC parameters to exist transferred through RANAP would have suggested, to the skilled person, the opportunity of including their definition in RRC, rather than in RANAP, was also rejected. The judge's reasoning is particularly interesting:
"The skilled person, without retrospect, would not have any reason to think that a decision about whether to utilize protocol transparency had anything to practise with the answer to the question: what needs to exist transferred? They would know they needed to know what had to be transferred simply their working assumption would exist simply that they would acquire this data so as to put advisable definitions in RANAP.
In some cases a skilled person knows they need to detect something out, perhaps in a chemical case past conducting an experiment testing possible candidate active agents and knows before they do the test that they need to know the respond earlier deciding how to motility forward. That is not this example. In this case there is no a priori link between the decision and the answer to the question."
Reference to the options proposed by Nokia to the WG3 after the priority date, in relation to SRNS relocation, was likewise institute to be irrelevant to prove obviousness. The guess therefore ended that the claims at issue were not obvious in light of the prior fine art, calculation that "the obviousness case here is an argument tainted with hindsight".
The judgment did not talk over the issues related to infringement in detail. Since ZTE had accustomed that on the claim construction advanced by Vringo in this jurisdiction
at that place was no split up point on infringement, the estimate but accepted the opinion of Vringo's witness, finding that both the UMTS and LTE (the 4th generation system, 4G, which implements a similar method to handle relocation letters) products manufactured by ZTE infringed the patent.
Source: https://ipkitten.blogspot.com/2014/12/3g-standard-essential-patent-valid-and.html
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