DSL technology

Nokia intervenes for KPN in second DSL technology case against Assia

Nokia and KPN have scored another victory against Assia in the Netherlands over a patent concerning DSL technology. The District Court of The Hague ruled in favour of KPN on the grounds of non-infringement, with Nokia acting as an intervener. Assia is set to appeal the proceedings.

18 January 2021 by Amy Sandys

Nokia and KPN In the Netherlands, Assia has once again been unsuccessful against Nokia and KPN in a case regarding DSL technology ©Dan74/ADOBE STOCK

US software company Adaptive Spectrum and Signal Alignment (ASSIA) has brought another set of proceedings against Dutch telecommunications company KPN. The latter party is a customer of Nokia, with Nokia providing support in the proceedings. However, Assia has once again been unsuccessful.

The District Court of The Hague ruled against Assia’s arguments, finding that KPN had not infringed patent EP 18 69 790. The patent, which is concerned with the controller for a DSL line, is not standard essential. Assia claims that KPN infringes EP 790, because KPN applies the process laid out in the patent’s claims one through 12. Assia also argues that its DSL product operates with the patent’s claims from 13 to 17. However, the court threw out the claim of infringement.

KPN and Nokia also filed a counterclaim for invalidity of EP 790. However, regarding the counterclaim, the court did not arrive at a decision in the final judgment. Currently, Assia is still able to distribute its products, although the court ordered the company to cover the court fees.

First time’s a charm

In 2019, the District Court The Hague heard claims brought against KPN by Assia (case ID: C/09/563488), based on EP 22 59 456. The patent relates to a method and system for mobile communication and data transmission according to multimedia development. As such, it is also concerning DSL technology.

The District Court passed an invalidity ruling on the SEP after KPN and Nokia brought a defence of added matter. The court also found all pleas admissible, counteracting an argument posited by the Dutch telecom provider and Nokia. The defendants argued that, under Dutch law, only the patentee can enforce the patent. Assia appealed the ruling.

UK takes different path

Findings of the District Court The Hague differ from a previous ruling set out by the UK Court of Appeal concerning EP 790. However, although one of the patents at issue is the same, the technology in question is different.

Here, Assia accused UK telecommunications company BT of infringing two patents through its Dynamic Line Management System, which controls broadband services in the UK. In the first instance, the UK High Court found EP 790 valid and infringed. Presiding judge Colin Birss found the other patent, UK 22 59 495, valid but not infringed. Both sides appealed the decision.

In November 2014, the Court of Appeal handed down a judgment upholding the decision of infringement by BT of EP 790. The court also decided that, contrary to Birss’ first-instance findings, BT had infringed UK patent 495, upholding Assia’s appeal. In the UK, Bird & Bird represented BT while Gowling WLG, then Wragge Lawrence Graham & Co., appeared for Assia.

There are other pending disputes in European jurisdictions concerning Assia’s patent portfolio, some including EP 790. Some opposing parties have taken a licence, while others resist KPN’s efforts. All current proceedings relate to DSL technology.

Tjibbe Doumapatent litigation Dentons

Tjibbe Douma ©Mark Prins Fotografie

Advisor swap

Following the first case concerning EP 456, Assia transferred the case from Freshfields, which was led by Jelle Drok, to Simmons & Simmons. Partner Bas Berghuis handled the appeal proceedings.

For the case concerning EP 790, Freshfields prepared the infringement allegations. Assia then instructed Dentons to handle the first-instance proceedings. Here, Dentons also worked with German patent attorney firm Hoffmann Eitle.

However, after the oral hearing but prior to the court rendering the judgment, Assia transferred this case to Simmons & Simmons. The latter firm will also handle the appeal proceedings on behalf of Assia.

Bird & Bird partner Armand Killan has represented Nokia for twelve years. In the second proceedings, Bird & Bird worked on the legal and technical defence on behalf of Nokia and KPN. Bird & Bird is one of Nokia’s regular advisors throughout Europe.

Amand Killan, Bird & Brid, The Hague, patent litigation

Armand Killan

For Assia
Dentons (Amsterdam): Tjibbe Douma (partner); associates: Lucas Wolthuis Scheeres, Sebastiaan Brommersma
Simmons & Simmons (Amsterdam): Bas Berghuis van Woortman (partner)
V.O. (Amsterdam): Marco Box (patent attorney)
In-house (Redwood City): John Cioffi (CEO), Ethan Andelman (general counsel)

For Nokia
Bird & Bird (The Hague): Armand Killan (partner); associates: Peter van Gemert, Kian Hsia
NLO (The Hague): Harm van der Heijden, Hans Hutter (patent attorneys)
In-house (Munich): Clemens-August Heusch, Albin Schätzle

Allen & Overy (Amsterdam): Frits Gerritzen (partner); associates: Lars Braams, Sophie van Asten

District Court of The Hague
Edger Brinkman (presiding judge), Johan de Vries, Marije Knijff