Ericsson filed patent infringement litigation against Micromax
Informatics Ltd. and Mercury Electronics Ltd. for infringing its patents.
Essentially these patents relate to use of speech codec (combination of speech
coder and speech decoder) for coding the voice signal (in a compressed form) from
the caller end and transmitting it via a radio link as coded/ compressed speech
frames to the receiver end where it is decoded. Typically in a discontinuous
transmission no coded speech frames are send while speaker is inactive. Here
transmitter at regular interval sends speech parameter suitable for generation
of comfort noise in the decoder.
Ericsson states in its patents that speech coders and decoders are
conventionally provided in radio transmitters and radio receivers, respectively
and cooperate to permit speech (voice) communications between a given
transmitter and receiver over a radio link. A mobile phone is a conventional radio
communication device comprising a Radio transmitter having a speech coder (for
sending coded voice frames) and a radio receiver having a speech decoder.
Now various Patents that appear to have been asserted are
discussed herein below:
Patent no. 203716 (IN/PCT/2001/00551/MUM): A method and apparatus for preserving perceptually relevant non-speech
information in an audio signal
This intervention relates to method for first determining whether
audio signal is considered to be speech or noise formation (well known) and then
determining whether the audio signal includes non-speech information that is
perceptually relevant to a listener and selectively overriding first
determination of speech or noise in response to second.
The method (First IC) herein only determines and overrides
determination carried under first step. It may either treat the non-speech
information as to noise and non-relevant to listener or it may consider such
non-speech information as relevant to listener. In both instances the claims
are only determining and how they are determining it is not claimed at all. The
first determination is prior art and consequent the second determination is
nothing but an obvious determination, the moment there is determination as to
audio signal as to speech or noise, the determination of relevancy begin then
and there itself. Relevancy of such non-speech information is a subjective term
and may vary from individual to individual.
The apparatus IC similarly refers to an apparatus that performs
above method. Conventionally a mobile phone has all those components that are
referred to in such an apparatus. Non tangible component such as audio signal
are included therein in the apparatus. The Apparatus as such lacks novelty and
is obvious for same reasons as the method claim.
The LPD in relation of above Patent was issued on January 8, 2007.
Patent no. 213723 (IN/PCT/2001/00552/MUM): Method and apparatus for generating comfort
noise in a speech decoder
This invention from the title appears to relate to invention for
generating comfort noise, but in effect all the claims of this Patent are
identical to claims granted in above Patent.
The LPD in relation of above Patent was issued on February 1, 2008.
The International filing date is shown as November 12, 1999 in
E-register of Patents, it is shown as November 8, 1999 in the LPD issued by
Patent office. The Corresponding PCT Application no. is PCT/SE/1999/002073 (with International
filing dated as November 12, 1999) and its national phase details on WIPO identify
both Patent Application no. i.e. IN/PCT/2001/00551/MUM as well as IN/PCT/2001/00552/MUM.
Apart from India the corresponding PCT national phase applications was filed
twice only in South Africa as this is the country that lacks substantial examination
system, but India does have substantial examination system, yet it granted
identical claims in both Applications. The PCT claims are identical to claims
granted in both Applications in India as available in respect of above Patent
from Indian Patent office website. All these claims are silent about comfort
noise generation as asserted by Ericsson.
It raises serious questions as to why identical Patents are granted
to Ericsson in this matter, and raises serious questions about nature of
Examination carried out by the Examiner concerned and Patent office.
The Patent No. 213723 is
very vital for Ericsson in the above litigation as it was the major claim
asserted by Ericsson in their initial communication to Micromax alleging infringement.
Ericsson had claimed that mapping of the above Patent (that time they did not
identify the Patent no. but only the Patent Application no.) claims to the AMR
speech codec and claimed that Micromax model X332 is capable to supporting AMR
speech and can set up AMR speech class successfully. The claims identified in
the said communication refer to different set of claims then what are made
available by Patent office on their website or what was there on PCT
Application when filed. Later on other Patents were also asserted but without
any detailed mapping like the above Patent.
The technology is
stated to consume comparatively lesser bandwidth/space and allows the service
provider to serve more customers at one point of time. This technology can also
be used to cut off the noise from the caller side so that when decoded at
receive side, the voice signal is clear and with least background noise. It
also suggest in one of the embodiment of invention, that some selective
voice frames (dividing voice signal to frames/ sub frames), determining the
noise frames and selectively avoiding transfer of such voice frames (to save
lesser bandwidth and space and allowing telecom company to have more
user at a time) and generating matching voice frames at the receiver end.. As the patent claims though claiming method
and apparatus are essentially system based claims suggesting a particular
method of performing the invention employing various components/ apparatus and
not all of the apparatus may belong to the Ericsson. All these claims disclose
is need and how this need can be fulfilled (receiving, coding and decoding),
can be assumed by person skilled in art (I would say semi-skilled in art). It
needs to be checked whether they have claimed how their coder and decoder
function and if there is any novelty in such coder and decoder, considering Section
3(k) of the Indian Patents Act.
Their invention allow the telecom company to find out which one of
the subscriber is using the technology and accordingly the telecom company
would prefer those using the technology so that it can accommodate more subscribers
at a time (those not using the technology would be dumped or asked to wait till
the no. of active subscribers reduces).
Do we need to look at into who is the beneficiary of these
inventions? First thing that comes into mind is telecom service provides and
they are not included in this litigation (as they are already managing the
telecom services of these service providers). An invention that requires
involvement of at least two mobiles (subscribers) both equipped with coder and
decoders and at least one telecom tower, can an infringement action lie against
mobile company alone. The system and methodology is incomplete till all
participants are involved. If an action can be performed collectively, then the
liability should be collective in nature.
Second, if Micromax happen to be honest and bonafide purchaser of
Chip/ circuit board and it is within the express knowledge of the Ericsson that
their technology (essential part is use of coding and decoding algorithms) is
being manufactured and sold by said company (I believe it is also made one of
the defendant in the suit). But Ericsson chose to ignore the small company as
the royalty they would be getting there would be minimal compared to if they
catch the mobile company (as cost of mobile would be higher than the chip/
circuit board).
The single bench of the Delhi High Court passed an ex parte
interim order against Micromax and authorized seizure of documents from
Micromax’s office regarding the sales and import of the mobile phones using
said technology. Micromax preferred an appeal but the Divisional bench directed
them to approach Single bench and approach only if they are not heard within 30
days as per the provisional of Law (CPC). Constrained that their sale would be effected
during the interregnum period, Micromax entered into an interim arrangement
with the Ericsson. It appears that royalty rates are agreed between 1.25% to 2%
of the sale price. The single bench referred the matter for meditation and
Justice A.P. Shah (Retd.) was appointed as a mediator for proceedings.
Micromax should go against Ericsson for
these 8 Patents and assertion of infringement. First of all, when they are
rightful purchaser of the chip from a third party and had Ericsson sued that
company alone their 1-2% royalty rates would be insignificant (as the cost of
chip is comparatively low), so they come after the bigger guy to seek bigger
royalty. This issue needs to be examined, is this suit bad for non-joinder for
necessary party as telecom service provider is not made party here by Ericsson
(question is can they make them parties randomly as it is in subscriber’s hand
which telecom company they choose) and secondly can they assert patent
infringement against Micromax just because some of their mobile have those
chips which when used in a mobile together with communication system of service
provider (at both end) makes a system that is actually claimed by Ericsson. In
totality their so called system cannot work unless the signals are coded and
decoded and it requires the chip with same technology at both ends (with
hardware requirements of the service provider).
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