On Friday, Ericsson announced the filing of " suits in Germany, the United Kingdom and the Netherlands against Apple's products" because negotiations in a global patent license have not resulted in a deal in more than two years but Apple "continues to sell products, for which its licenses have expired, on a global scale." Four months ago Ericsson had already sued Apple in the Eastern District of Texas, followed by an ITC complaint (request for U.S. import ban).
The gist of Ericsson's Friday press release is that Apple is allegedly an unwilling licensee. That term does not appear in the statement, but it's what Ericsson wants to say. Motorola and Samsung said it before. The willingness of an implementer of an industry standard to reach a license agreement on FRAND terms is a key consideration for antitrust regulators and courts. Even the defendant-friendliest FRAND ruling ever, which Judge Posner handed down in an Apple-Motorola case and the FRAND-related part of which was affirmed by the Federal Circuit (though then-Chief Judge Rader dissented), did not rule out access to injunctive relief over standard-essential patents (SEPs) on a "no matter what (the defendant will or will not do)" basis. The bar for SEP injunctions has been raised in recent years, also in Europe, but implementers of standards still have to proceed with caution because their own conduct, not only that of the patent holder, will be taken into consideration.
In any event, Ericsson says it is also asserting non-SEPs against Apple in Europe. Those are unencumbered, so Ericsson is free to seek and enforce injunctive relief.
Compared to the size of Ericsson's patent portfolio, very few assertions have ever come to judgment. The most optimistic (for Ericsson) perspective would be that this is because defendants realized this was a strong portfolio and backed down. It's also a valid perspective, however, to say that Ericsson's portfolio is largely untested in court. With so much money being at stake between Apple and Ericsson, it's now more likely that at least some decisions will come down.
In light of the entire industry's low "hit rate" with smartphone-related patent infringement actions, it's unlikely that Ericsson's European lawsuits will scare Apple to death:
Non-SEPs have usually been worked around. There was only one dispute in which I saw an indication that a company may have agreed to pay because workarounds weren't going to be immediately available (at least not without major cost implications), and that was HTC in its dispute with Nokia, but Nokia had lost so many cases by the time of the settlement that it may have offered HTC a relatively good deal just to get a result rather than lose dozens of additional cases.
Of the three European jurisdictions in which Ericsson has sued Apple, only Germany makes access to injunctive relief generally available over non-SEPs. In the UK and the Netherlands, the question of whether monetary compensation is sufficient always comes up.
While Germany is very patent holder-friendly on the remedies side and infringement actions tend to be adjudicated rather quickly, its courts are increasingly inclined to stay smartphone patent cases because those patents are normally invalidated in their entirety or narrowed beyond recognition when they come to judgment in the Federal Patent Court. If the patent holder then loses the first validity ruling, the infringement case won't be resumed (if at all) until the Federal Court of Justice has spoken.
In the UK, infringement and validity are adjudged in the same proceeding, and the invalidation rate there is extremely high (rightly so).
Ericsson's press release states that Apple let an offer to set a FRAND rate by arbitration expire. So what? Arbitration is an option if both parties agree. If one of them (typically the implementer) doesn't want to go down that avenue, any rate-setting decision will have to be made by a court of law, in a public proceeding (public at least to some extent, while arbitration is 100% private).
Ericsson will have to perform better than other smartphone patent litigants to even reach the point at which Apple will seek a FRAND rate determination by one or more European courts, and for the reasons I just explained, this could also take quite some time. If and when it happens, Apple will likely emphasize the royalty base issue in Europe as well (it already does so in the U.S.). That one has the potential to go all the way up to the Court of Justice of the European Union (CJEU).
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