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You are here: BAILII >> Databases >> England and Wales High Court (Patents Court) Decisions >> HTC Corporation v Nokia Corporation [2013] EWHC 3778 (Pat) (03 December 2013) URL: https://www.bailii.org/ew/cases/EWHC/Patents/2013/3778.html Cite as: [2014] Bus LR 217, [2014] BUS LR 217, [2013] EWHC 3778 (Pat), [2013] WLR(D) 468, [2014] RPC 30 |
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CHANCERY DIVISION
PATENTS COURT
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
____________________
| HTC CORPORATION |
Claimant |
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| - and - |
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NOKIA CORPORATION |
Defendant |
____________________
Michael Tappin QC and Miles Copeland (instructed by Bird & Bird LLP) for the Defendant
Hearing dates: 28, 29 November 2013
____________________
Crown Copyright ©
MR JUSTICE ARNOLD :
Introduction
Nokia
's") European Patent (UK) No. 0 998 024 ("the Patent"). On 28 November 2013 I heard argument on a number of issues with regard to the order that should be made in consequence of that conclusion and made decisions in respect of those issues. In particular, I decided to grant
Nokia
a final injunction to restrain infringement of the Patent, to grant HTC permission to appeal (albeit on more limited grounds than HTC had sought permission in respect of) and to grant HTC a partial stay of the injunction (and of an order for delivery up) pending the judgment of the Court of Appeal. I clarified the scope of the stay pending appeal at a further hearing on 29 November 2013 and also granted HTC a further stay until 4 pm on 6 December 2013 in order to enable HTC to apply to the Court of Appeal for permission to appeal against my refusal of a wider stay. These are my reasons for deciding to grant a final injunction and for granting a partial stay.
Final injunction
Nokia
sought a final injunction in order to restrain HTC from continuing to infringe the Patent. HTC did not dispute that it intended to continue to commit the acts which had been found to infringe if it was not restrained, but contended that the court should exercise its discretion to refuse an injunction and to award damages in lieu.
Applicable principles
"In all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, it shall be lawful for the same Court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction or specific performance; and such damages may be assessed in such manner as the Court shall direct."
"Where the Court of Appeal or the High Court has jurisdiction to entertain an application for an injunction or specific performance, it may award damages in addition to, or in substitution for, an injunction or specific performance".
"(1) If the injury to the plaintiff's legal rights is small,
(2) And is one which is capable of being estimated in money,
(3) And is one which can be adequately compensated by a small money payment,
(4) And the case is one in which it would be oppressive to the defendant to grant an injunction: –
then damages in substitution for an injunction may be given".
He went on to make it clear that what constituted a "small money payment" was a relative matter. Subsequent cases have emphasised that AL Smith LJ's good working rule is only that: it is not a statute or straightjacket.
"It is important to bear in mind that the test is one of oppression, and the court should not slide into application of a general balance of convenience test."
Similarly, Millett LJ stated 288B-C:
"The outcome of any particular case usually turns on the question: would it in all the circumstances be oppressive to the defendant to grant the injunction to which the plaintiff is prima facie entitled?"
"It has always been recognised that the practical consequence of withholding injunctive relief is to authorise the continuance of an unlawful state of affairs. If, for example, the defendant threatens to build in such a way that the plaintiff's light will be obstructed and he is not restrained, then the plaintiff will inevitably be deprived of his legal right. This was the very basis upon which before 1858 the Court of Chancery had made the remedy of injunction available in such cases. After the passing of Lord Cairns's Act many of the judges warned that the jurisdiction to award damages instead of an injunction should not be exercised as a matter of course so as to legalise the commission of a tort by any defendant who was willing and able to pay compensation. …
Nevertheless references to the 'expropriation' of the plaintiff's property are somewhat overdone, not because that is not the practical effect of withholding an injunction, but because the grant of an injunction, like all equitable remedies, is discretionary. Many proprietary rights cannot be protected at all by the common law. The owner must submit to unlawful interference with his rights and be content with damages. If he wants to be protected he must seek equitable relief, and he has no absolute right to that. In many cases, it is true, an injunction will be granted almost as of course; but this is not always the case, and it will never be granted if this would cause injustice to the defendant. Citation of passages in the cases warning of the danger of 'expropriating' the plaintiff need to be balanced by reference to statements like that of Lord Westbury LC in Isenberg v East India House Estate Co Ltd (1863) 3 De G J & S 263, 273 where he held that it was the duty of the court not
'by granting a mandatory injunction, to deliver over the defendants to the plaintiff bound hand and foot, in order to be made subject to any extortionate demand that he may by possibility make, but to substitute for such mandatory injunction an inquiry before itself, in order to ascertain the measure of damage that has been actually sustained.'"
"His willingness to settle the dispute on payment of a cash sum can properly be reflected by an award of damages. Nor, once that is established, can it be an objection that the amount of damages may be large. The injury to the plaintiff's legal rights must be adequately compensated. In such a case the first and third conditions of the good working rule do not apply.
I summarise the position as follows. The essential prerequisite of an award of damages is that it should be oppressive to the defendant to grant an injunction. Here that prerequisite is satisfied. It would be oppressive and therefore unfair to the defendant to allow the judge's injunctions to stand. The plaintiff should receive an award of damages instead."
Nokia
accepted, I consider that the court would have jurisdiction to make such an order. Leaving aside the potential difficulties in assessment of the royalty rate and royalty basis, the question arises as to whether such an order should contain other terms. Should the defendant have a duty to account? Should the claimant have the right to inspect the defendant's books? What if the defendant becomes insolvent? Such questions can easily be multiplied. In the case of consensual patent licences, these questions are generally addressed these days by licence agreements of considerable sophistication. Is the court to include similar terms in its order? If so, the effect of such an order would be almost indistinguishable from a compulsory licence. I shall return to this point below.
"It seems to me that I have to consider the position as of today. In theory the copyright may last another one hundred years. Who is to know whether or not it is likely to be valuable or not? Certainly the defendants wish to press more records. I, accordingly, do not think that this is a case which falls within head (3) of A.L. Smith LJ, one to be adequately compensated by a small money payment. It does not follow, however, that this is a case for the grant of an injunction. As I have said, it stands out a mile that what the plaintiff wants is a monetary payment commensurate with the amount of use of her work.
I have found it difficult to decide which way to go. On the one hand, if I grant the injunction the parties will be left to negotiate the payment. On the other hand, if I do not grant the injunction, damages will have to be assessed on the basis that this was an exclusive right of the plaintiff and the defendants were paying for invasion of that exclusive right.
In the end, I have come to the conclusion that the better course is to withhold the injunction. In so doing, I wish to make it absolutely clear that I regard this as a wholly exceptional case outside head (3) of Shelfer. The fact is that here the defendants have been exploiting these lyrics for now eleven years. Probably most of the commercial use has already occurred. That seems to be accepted by both sides. There is a large element of trying to shut the stable door after the horse has bolted. The plaintiff having made it plain that what she really wants is money, I think the best way to proceed is that there should be a claim as to how much that sum should be. I therefore refuse to grant an injunction."
"101. … the grant or refusal of a final injunction is not merely a matter of the balance of convenience. Justice requires that the court observe the principles enunciated in Shelfer's case and remembers that if the effect of the grant of an injunction is not oppressive the defendant cannot buy his way out of it, even if the price, objectively ascertained, would be modest. My understanding of the word 'oppressive' in this context is that the effect of the grant of the injunction would be grossly disproportionate to the right protected. The word 'grossly' avoids any suggestion that all that has to be done is to strike a balance of convenience.
…
113. Is it oppressive, in the sense that I understand that word is used in Jaggard v Sawyer, to require the database to be altered so as to accommodate this finding? The evidence is that the work can be done: data can be migrated from the old table into the new in the live database. The whole process is described in Mr Pritchard's fourth witness statement. On the other hand, much testing and checking must be done, and the operation is attended with some risk. Mr Arnold Q.C. submits that the fault is slight, and the cure grossly disproportionate. Because I consider that easyJet are entitled to know what the data stored in the OpenRes history table was and are entitled to require BulletProof to design a journal-type database table that will accommodate the existing data after migration, I think that this submission is justified. The breach is small. Damages can be assessed upon a willing licensor/licensee basis, on the footing that the licensee is entitled to receive the information that I have described in respect of the data to be migrated into the new database. I will order an enquiry accordingly."
"Article 3
General obligation
1. Member States shall provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights covered by this Directive. Those measures, procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.
2. Those measures, procedures and remedies shall also be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
Article 12
Alternative measures
Member States may provide that, in appropriate cases and at the request of the person liable to be subject to the measures provided for in this section, the competent judicial authorities may order pecuniary compensation to be paid to the injured party instead of applying the measures provided for in this section if that person acted unintentionally and without negligence, if execution of the measures in question would cause him/her disproportionate harm and if pecuniary compensation to the injured party appears reasonably satisfactory."
"I should add a word about the Judge's references to proportionality and the passage of time. Whether or not conventional English law principles as to the grant of an injunction embody that concept (I rather think they do, though the now fashionable word 'proportionate' is not to be found in the older case law), in the case of enforcement of an intellectual property right, the requirement is explicit. The Enforcement Directive (2004/48/EC) by Article 3(2) inter alia requires that measures to enforce intellectual property rights shall be proportionate. It is accepted that a claim for misuse of technical trade secrets such as the present is a claim to enforce an intellectual property right. So the Judge was right to consider proportionality. "
Nokia
supported Pumfrey J's formulation of the test.
Nokia
is incorporated in a state which is a member of the World Trade Organisation, section 48A is the relevant provision. This gives effect to the United Kingdom's obligations under Article 31 of Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS"), which forms Annex 1C to the Agreement establishing the World Trade Organisation signed in Morocco on 15 April 1994, to which the European Union and all its Member States are parties.
"Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties."
In my view Article 30 permits the recognition of a limited jurisdiction to withhold an injunction in special circumstances. In considering whether there are special circumstances, account may be taken of the legitimate interests of third parties, but not so as unreasonably to prejudice the legitimate interests of the patent owner.
Assessment
Nokia
's portfolio of standard-essential patents since 2003. For the reasons explained in Confidential Annex 3 to my previous judgment, HTC has known since October 2008 that Qualcomm customers were not licensed under
Nokia
's patents without a separate licence from
Nokia
and that
Nokia
was offering licences for certain
Nokia
patents to Qualcomm customers. There is no evidence that HTC had any reason to believe that its position would be any better so far as Broadcom chips were concerned. At some point in 2011,
Nokia
communicated to HTC its belief that HTC was infringing a number of
Nokia
's non-essential patents and asked HTC to stop using the technology or alternatively to take a short term licence to give HTC time to work around the patents. HTC did neither of those things, however.
Nokia
sued HTC for infringement of the Patent (and other patents) in Germany. (It also brought proceedings in the USA in respect of various patents.)
Nokia
's complaint of that date alleged infringement by HTC phones containing Broadcom BCM4239 and BCM4330 chips. The allegation of infringement was supported by circuit diagrams showing the features of the claims. These were based on reverse engineering analyses (so-called "teardowns") of the chips conducted on behalf of
Nokia
by a company called UBM TechInsights. (I interpolate that HTC's position at earlier stages of these proceedings were that these analyses were unreliable, yet at the hearing on 28 November 2013 counsel for HTC submitted that they were indicative, if not definitive).
Nokia
patents).
Nokia
brought a cross-action for infringement on 23 July 2012 (it also brought claims for infringement of other patents). Originally,
Nokia
complained of infringement of the Patent by various HTC phones incorporating Broadcom BCM4329 and BCM4330 chips (i.e. the same chips as in Germany). No application was made by
Nokia
for an interim injunction.
Nokia
commissioned teardowns of these chips from UBM TechInsights. On 22 March 2013 (Broadcom BCM4334) and 30 April 2013 (Qualcomm WTR1605(L))
Nokia
wrote to HTC alleging infringement of the Patent by phones containing these chips. Also on 30 April 2013
Nokia
sent HTC copies of the UBM TechInsights reports. On 16 May 2013 Vos J granted
Nokia
permission to amend its Particulars of Infringement to raise these allegations. At the same time,
Nokia
also obtained permission to amend its claim to allege infringement by phones containing Qualcomm RTR6285 and RTR6285A chips.
Nokia
admitted that the Bluetooth transmit path of the Broadcom BCM4335 chip did not infringe the Patent. On 25 September 2013
Nokia
admitted that the transmit path from the baseband input to the output of the radio frequency upconverter of the Qualcomm RTR6285 and RTR6285A transceiver chips did not infringe the Patent. There is no evidence that these three chips infringe in any other way.
Nokia
started the German proceedings).
Nokia
's evidence is that there is no material difference between the Broadcom BCM4329 and BCM4330 chips for this purpose, and HTC has not adduced any evidence to the contrary.
Nokia
has adduced evidence which suggests that the launch date is in the first quarter of 2014 and possibly as early as February 2014. HTC has not contradicted this. HTC's evidence is that the new phone will not contain any chips which have been found to infringe the Patent. HTC's witness Brad Lin claims in paragraph 11 of his first witness statement that "The features of the chips selected by HTC [for the new phone] are unknown to HTC, and hence I do not know if they infringe EP 024". As expressed, the first part of this sentence is simply incredible. I shall assume that what Mr Lin means is that HTC does not know if the chips have the features of claim 1 of the Patent. The significance of that assertion, even assuming it is correct, depends on what efforts HTC has made to find this out, which neither Mr Lin nor any other witness reveals.
Nokia
and HTC are relatively small players:
Nokia
has 6% of the market and HTC has 3% of the market.
Nokia
's phones are based on the Microsoft Windows operating system, while most of HTC's phones are based on the Google Android operating system which is used by about 48% of phones sold in the UK. HTC contends that for this reason, among others, there is no direct competition between HTC's phones and
Nokia
's phones.
Nokia
disputes this.
Nokia
does not suggest otherwise.
Nokia
's commercial position.
Nokia
's flagship range of smartphones is the Lumia range. At least some of these phones incorporate the patented invention.
Nokia
contends that HTC's One family which I have found to infringe the Patent competes with the Lumia range, particularly in the sector of smartphones whose unsubsidised retail price is over the sterling equivalent of $550.
Nokia
believes that it has lost sales of Lumia phones since the launch of the One range.
Nokia
does not suggest that the loss of sales is one-for-one, however. As I have said, HTC disputes that its phones are in direct competition with
Nokia
's phones.
Nokia
's licensees. In December 2010
Nokia
brought proceedings against Apple for infringement of the Patent in this country. At some point
Nokia
also brought proceedings in respect of equivalents of the Patent in both Germany and the USA. In April 2011 the disputes between
Nokia
and Apple were settled upon confidential terms which evidently include a licence to Apple under the Patent.
Nokia
brought proceedings against Research In Motion Ltd ("RIM", which markets phones under the Blackberry trade mark) for infringement of non-essential patents in Germany. In November 2012
Nokia
also brought proceedings in Canada, the USA and the UK. In December 2012 these proceedings were settled on confidential terms which included the grant of a licence by
Nokia
to RIM. HTC has asserted that the patents licensed include the Patent, and
Nokia
has not denied this.
Nokia
and Samsung are presently engaged in arbitration in relation to
Nokia
's patent portfolio, but as yet that dispute has not led to either a determination or a settlement. So far as Google/LG and Sony are concerned, there is no evidence that
Nokia
has yet brought proceedings against either party.
Nokia
points out, however, that its resources for patent enforcement are finite, and accordingly it needs to prioritise.
Nokia
's sale of its business. As has been widely publicised,
Nokia
has agreed to sell its mobile phone handset business to Microsoft. The agreement has been endorsed by
Nokia
's shareholders, but remains subject to regulatory approval by various competition authorities and other closing conditions. It is expected to complete some time in the first quarter of 2014. Unless and until it does complete,
Nokia
bears the profits and losses of the business. After completion,
Nokia
will retain its network business, its mapping and location business and its patent portfolio.
Nokia
only interested in money? Counsel for HTC argued strongly that
Nokia
was only interested in money and therefore no injunction should be granted. Stated in that way, the argument is untenable, since it would mean that no injunction would ever be granted to restrain patent infringement. All patent owners are only interested in money. The whole purpose of a patent is to enable the proprietor to extract money from exploitation of the patented invention. A patent is not like the rights considered in the real property cases, such as rights to light, which are rights that have an amenity value which is of non-monetary significance to the proprietor.
Nokia
was not interested in extracting money from exploitation of the patented invention by obtaining a monopoly price for its own goods as opposed to granting licences. But why does this matter? Whether the test for granting damages in lieu of an injunction is oppression (Shelfer/Jaggard), gross disproportionality (Navitaire) or even plain proportionality, the key question is the impact of the injunction on the defendant (Shelfer question 4). Of course the effect of denial of the injunction on the patentee must be considered (Shelfer questions 1-3), but why does it matter whether the effect is to deprive the patentee of the ability to charge a monopoly price for his own goods or merely to deprive him of the ability to charge an enhanced royalty in respect of the defendant's goods?
Nokia
. As I see it, the effects would be as follows. First, while
Nokia
retains its handset business, the refusal of an injunction would not deprive
Nokia
of the opportunity to charge a monopoly price for its smartphones, but it would deprive
Nokia
of an element of competitive advantage against HTC. The extent of that competitive advantage is hotly contested – HTC says that it is negligible. Quantifying it in financial terms will be very difficult. Secondly, and more importantly for this purpose, looking beyond the time when
Nokia
retains its handset business, the refusal of an injunction would deprive
Nokia
of the ability to license exploitation of the Patent on terms of its own choosing. Instead, it will be forced to accept financial terms imposed by the court, in all likelihood on the basis of a running royalty, but without all the safeguards of a consensually negotiated licence. Assessing the appropriate royalty rate will again be a very difficult exercise, particularly because of the remaining term of the Patent and the fast-changing nature of the smartphone market both technologically and commercially.
Nokia
dispute that, at present, it appears that HTC would be able to pay damages in lieu of an injunction.
Nokia
points out, however, that if an order is made for payment of a running royalty in lieu of an injunction, there can be no guarantee that HTC will be able to pay in, say, five years' time. Indeed, HTC made a loss in the last quarter.
Nokia
and HTC, involving other patents and other countries. I entirely accept that, but I do not see how it assists HTC with regard to the present issue. I can only make orders with regard to the UK (strictly, England and Wales). The only patent that HTC has so far been found to infringe is the Patent. HTC disputes infringement of the other patents that
Nokia
alleges it has infringed in the UK; and, for all I know, HTC is right to do so. It follows that I can only consider the position in respect of the Patent.
Nokia
has formally admitted that (i) the transmit path from the baseband input to the output of the radio frequency upconverter of the Qualcomm RTR6285 and RTR6285A transceiver chips and (ii) the Bluetooth transmit path of the Broadcom BCM4335 chip do not infringe the Patent. There is no evidence that any other parts of those chips infringe the Patent. It follows that HTC already has certain non-infringing alternative chips available to it. It also follows that it can rely upon these admissions in sourcing further alternatives.
Nokia
alleged that the Qualcomm WTR1605(L) and Broadcom BCM4329 and BCM4334 chips infringed.) As I shall explain when I come to the question of a stay, HTC's evidence says very little about what, if anything, it has been doing to develop non-infringing alternatives during this period.
Nokia
has a legitimate interest in seeking a final injunction to prevent further exploitation of the patented invention by HTC without its consent. This is not a case in which the injury to the patent is small, capable of being estimated in money and adequately compensated by a relatively small money payment. If an injunction were refused, it would have to be on the basis of an order for a running royalty. In those circumstances, refusal of an injunction would be tantamount to imposing a compulsory licence on
Nokia
in circumstances where HTC could not obtain a compulsory licence by the proper route. Most importantly, the grant of a final injunction would not be disproportionate. The grant of an injunction will not deliver HTC over to
Nokia
"bound hand and foot, in order to be made subject to any extortionate demand"
Nokia
may make, because HTC already has some non-infringing alternatives available to it, could have had more non-infringing alternatives available to it by now if it had acted promptly when first sued by
Nokia
and will in any event have more non-infringing alternatives available to it in a period which is significantly shorter than the remaining term of the Patent.
Stay pending appeal
Nokia
opposed a stay and offered a cross-undertaking in damages.
Applicable principles
"It is not in dispute that where a plaintiff has at first instance established a right to a perpetual injunction, the court has a discretion to stay the operation of the injunction pending an appeal by the defendant against the judgment. On what principles ought such a discretion to be exercised. The object, where it can be fairly achieved, must surely be so to arrange matters that, when the appeal comes to be heard, the appellate court may be able to do justice between the parties, whatever the outcome of the appeal may be. Where an injunction is an appropriate form of remedy for a successful plaintiff, the plaintiff, if he succeeds at first instance in establishing his right to relief, is entitled to that remedy upon the basis of the trial judge's findings of fact and his application of the law. This is, however, subject to the defendant's right of appeal. If the defendant in good faith proposes to appeal, challenging either the trial judge's findings or his law, and has a genuine chance of success on his appeal, the plaintiff's entitlement to his remedy cannot be regarded as certain until the appeal has been disposed of. In some cases the putting of an injunction into effect pending appeal may very severely damage the defendant in such a way that he will have no remedy against the plaintiff if he, the defendant, succeeds on his appeal. On the other hand, the postponement of putting an injunction into effect pending appeal may severely damage the plaintiff. In such a case a plaintiff may be able to recover some remedy against the defendant in the appellate court in respect of his damage in the event of the appeal failing, but the amount of this damage may be difficult to assess and the remedy available in the appellate court may not amount to a complete indemnity. It may be possible to do justice by staying the injunction pending the appeal, the plaintiff's position being suitably safeguarded. On the other hand it may, in some circumstances, be fair to allow the injunction to operate on condition that the plaintiff gives an undertaking in damages or otherwise protects the defendant's rights, should he succeed on his appeal. In some cases it may be impossible to devise any method of ensuring perfect justice in any event, but the court may nevertheless be able to devise an interlocutory remedy pending the decision of the appeal which will achieve the highest available measure of fairness. The appropriate course must depend upon the particular facts of each case."
Assessment
Nokia
if the injunction is stayed but the appeal is dismissed.
Nokia
contends that, if the injunction is stayed but the appeal is dismissed, it will suffer damage which will be impossible accurately to quantify. As is common ground, the pre-Christmas period is an important period for smartphone vendors. Both parties are anxious to take maximum advantage of it. If the injunction is stayed, it will not be possible to determine what share
Nokia
has lost as a result. Even after Christmas,
Nokia
says that it will be impossible accurately to determine to what extent it has lost sales of its phones to infringing HTC phones. Furthermore,
Nokia
relies on the fact that, if the sale of its handset business to Microsoft proceeds, it is likely to have left this market by the end of March 2014. If an injunction is stayed pending appeal but the appeal is dismissed,
Nokia
will have lost the opportunity to gain from an injunction. I accept these points.
Nokia
will be in a position to pay damages on its cross-undertaking. HTC's evidence for the hearing on 28 November 2013 was focussed on the harm which it would suffer if an injunction pending appeal wrongly prevented it from continuing to sell the HTC One during that period. At the hearing on 29 November 2013, HTC adduced further evidence regarding damage if would suffer if prevented from selling the HTC One Mini. I will consider those in turn below. HTC has adduced very little evidence that it will suffer irreparable damage if prevented by an injunction from selling its other infringing phones pending appeal.
Nokia
's cross-action on 23 July 2012, HTC had over 16 months. HTC's evidence is almost entirely silent as to what it was doing in this period to prepare for any injunction. It does not reveal whether, or if so when, HTC asked Broadcom or Qualcomm whether the chips which HTC was buying from them had the features of claim 1 of the Patent. Nor, save in one respect, does it reveal whether, or if so when, HTC asked Broadcom or Qualcomm to design non-infringing alternatives or, if so, with what result. All that is said is that, at the time that
Nokia
introduced its allegation that the Qualcomm chips infringed (which I take to mean late March 2013), HTC asked Qualcomm to provide a workaround and (so it is said) Qualcomm refused. According to HTC, it is only on 26 November 2013 that Qualcomm changed its position and agreed to look into the possibility of a workaround.
Nokia, the One has been on the market for some time and the impact of HTC's apparent lack of contingency planning is less significant. In the case of the One Mini, the balance comes down in favour of refusing a stay. In this case the potential harm is more evenly weighted, but importantly the phone was launched much more recently and HTC designed and launched it at a time when HTC knew it was facing a claim for infringement of the Patent and apparently without making any contingency plans.