Pear sued Apple for patent infringement: iMessage service at stake

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Case No. 02020_014 | Order of 4 January 2022 | ‘iMessage’

Apple logo

We have reported about a first excursion of this docket to the Supreme Court already on this Blog here. At that time, the parties and the subject-matter at stake remained unclear. Meanwhile, the dust has settled (at least a little). The FPC has published a procedural order earlier today, finally revealing the parties. Various entities within the Apple group of companies have been sued for patent infringement. The plaintiff is Pear AG, a company that I had never heard of before.

no apple

From the subject-matter discussed in the order, I conclude that Apple’s iMessage service is at stake. The patents are not specifically mentioned in the order, but Pear is registered owner of only two patents in Switzerland, making the math easy since it was known already from the Supreme Court judgment that two patents are asserted. Pear’s two patents are EP 1 838 074 B1 and EP 1 208 687 B1. The initial applicant was Freie Erfindungskünstler® GmbH (I did not make this up!). Both patents have lapsed already, on 11 May 2020 (EP 074 is a divisional of EP 687). Accordingly, an injunction is not at stake anymore; the whole case is about damages — if the patents were valid and infringed.

In broadest sense, the patents relate to methods for the transmission of information from one mobile phone to another, wherein e.g. an emoji is not being transmitted as such between the two devices, but rather as a sequence of signs (e.g. as a descriptive word); see claim 1 of EP 687 and claim 1 of EP 074. The respective emoji associated with the word is read out from a local memory at the receiving mobile phone, thereby eliminating the need for actually transmitting the more extensive image data via the mobile network. This is my favorite example:

Sending ‘beer’ over the network instead of the extensive image data …

Now, what is the procedural order all about?

Apple had requested that an affidavit of Mr Kevin LINDEMAN shall be made available to the plaintiff only for inspection, with the obligation to not copy it, not to provide it to third parties or to use it for any other purposes than the present proceedings:

Message logo

In principle, protective measures are foreshadowed in Art. 156 CPC and Art. 68 PatA, in order to safeguard trade secrets. The FPC served the plaintiff with the affidavit, provisionally with the protective measures in place, and gave the plaintiff the opportunity to comment. The order holds that neither the position and responsibilities of Mr LINDEMAN (essentially also available on LinkedIn) nor technical informations contained in the affidavit were of sensitive nature; the latter being either self-evident for any layman or at least for any technically skilled person, or from Apple’s patent families naming Mr LINDEMAN as inventor. Including this one:

Accordingly, the provisional protective order has been lifted again.

Unsurprisingly, the order holds that court fees will be dealt with in the final judgment. However, the order also holds that Apple’s request for a protective order incurred ‘unnecessary costs’ for Pear to comment on it; Art. 108 CPC. Accordingly, Apple has to pay Pear a compensation of CHF 1’000,–. Apple will likely not even notice, but I find this somewhat harsh(?). Even though the request was unsuccessful on the merits, Apple may well have considered it necessary to defend a legitimate interest. Anyway, that’s a sideshow. The final judgment will be a lot more interesting. 

Reported by Martin WILMING

BIBLIOGRAPHY

Case No. 02020_014 | Order of 4 January 2022 | ‘iMessage’

Pear AG
./.
(1)
(2)
(3)
Apple Inc.
Apple Distribution International Ltd
Apple Retail Switzerland GmbH

Panel of Judges:

    • Dr. Mark SCHWEIZER
    • Dr. Tobias BREMI
    • Peter RIGLING

Judge-rapporteur:

    • Dr. Tobias BREMI

Court Clerk:

    • Susanne ANDERHALDEN

Representative(s) of Plaintiff:

Representative(s) of Defendant:

ORDER OF THE FPC

SUPREME COURT JUDGMENT

PATENTS IN SUIT

EP 1 838 074 B1:

Please consult the EPO Register and Swissreg for status / bibliographic information.

EP 1 208 687 B1:

Please consult the EPO Register and Swissreg for status / bibliographic information.

INVENTOR LINDEMAN

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