Wednesday, January 9, 2013

Steelhead Licensing LLC’s Patent US5491834: FRAND Defense against the Lawsuit?

Recently, Steelhead Licensing LLC, an NPE, sued several mobile phone manufactures (Apple, HTC, LG, Motorola , RIM etc.) and Telcos ((AT&T, MetroPCS, Sprint, T-Mobile) for infringement of US5491834, which was acquired from BT (British Telecommunications). A key issue with this patent litigation will be whether US5491834 is a standard essential patent for some mobile communications standards:

Generally, it is not presumed that holding a patent means its owners have market power in the context of antitrust violation analysis (35 U.S.C. Section 271(d); Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006)). However, a standard locks in a specific industry because the products should be compatible with the standard specifications. Thus, holding a standard essential patent can be considered as having a market power because all products compatible with the standard specifications should infringe the standard essential patents.

To avoid the antitrust issue with the standard essential patents, therefore, a patentee should license the patents on ‘fair, reasonable and non-discriminatory (FRAND)’ terms. Furthermore, a patentee should be careful when he or she tries to obtain an injunction from courts or ITC for enjoining potential infringers of the standard essential patents.

TechIPm’s preliminary research for US5491834 shows that it is a potentially essential patent for 3G WCDMA standard. As the title, mobile radio handover initiation determination, suggests it relates to handover determination between cells in a cellular radio system handling communications between mobile terminals and base stations. The preamble of the claim 1 also shows the purpose of the invention: a handover determination system for a mobile radio network including a plurality of cells, each cell having associated with it a base station for supporting communications with a mobile unit, the system comprising.

A potential part of the standard specifications that covers handover determination is 3GPP TS 25.331 V3.21.0 (2004-12: Radio Resource Control (RRC) protocol specification). Especially, Sections 8.4 (measurement procedures for Intra-frequency measurements) and 14.1.6 (report quantities in intra-frequency measurements) describe the claim terms:

means for monitoring a quality of a signal respectively transmitted between each of a plurality of candidate base stations and the mobile unit: upon reception of a MEASUREMENT CONTROL message the UE shall perform actions ……

means for producing an indication of the rise or fall in the said quality as a function of time: the quantities that the UE shall report to UTRAN when the event is triggered…..

control means for initiating a handover from a serving base station, supporting communications with the mobile unit, to another base station, the initiation being based on the rise/fall as a function of time in the said quality of the signals associated with the plurality of candidate base stations being monitored: the UTRAN may request a measurement by the UE to be setup…..

said mobile unit including the means for monitoring and the means for producing, the mobile unit further comprising signalling means for addressing the serving base station with an indication of the need for a handover to be initiated: cells in the active set are involved in soft handover.

said signalling means being arranged to address the serving base station with an indication of the level of priority of a handover and/or with an indication of the possibility of a handover contingent upon the proceeding results of monitoring the quality of the transmitted signal: quality measurements is the measurements of downlink quality parameters … cells that the UE is monitoring are grouped in the UE into …..

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