Saturday, March 17, 2018

Judge Orrick inclined to grant Samsung an antisuit (anti-enforcement) injunction against Huawei

A few days ago, reported that United States District Judge William H. Orrick (Northern District of California) expressed an inclination at a Wednesday hearing to grant Samsung's motion seeking to bar Huawei from enforcing a couple of Chinese patent injunctions before the U.S. court has determined whether it is, in light of its FRAND obligations, entitled to injunctive relief.

You won't be surprised if you've been following the case here. Two weeks ago I published a post here with a headline that contained the following prognosis: "antisuit injunction looms large"

Even though I'm just a little blogger, it's a bit daring to offer such a prediction based on the briefing record, especially since antisuit (here, actually just anti-enforcement) injunctions don't come down every day. But for the reasons explained in my previous posts, above all Ninth Circuit case law, Huawei won't be able to complain.

It was hard to find out about what exactly Judge Orrick said, but as far as I'e been able to research, it comes down to the following key points:

  • He appears to apply the Gallo antisuit injunction factors as a substitute for, not (as Huawei argued) a complement to, the general preliminary injunction factors.

  • For one of the Gallo factors, the Unterweser factors are determinative: at least one of the three must be satisfied.

    The key statement by Judge Orrick in this context was that "U.S. courts hold that owners of declared essential patents that have made commitment to SSO's should be precluded from getting injunctive relief." He'll check whether an exception applies, but that will be his task and he probably won't let Huawei do a preemptive end run around a future U.S. court ruling.

    It's correct that SEP injunctions run counter to U.S. (and not just U.S.) policy. The Chinese outlier rulings may very well be overturned at the next higher level. As for the situation in the U.S., I can't think of anything more telling than the fact that Qualcomm, once a big SEP injunction advocate, decided to base all of its injunction requests against Apple (in the U.S. and abroad) on non-SEPs.

  • While the Gallo/Unterweser analysis may very well result in an antisuit injunction, Judge Orrick would like both parties to work out a deal and think again about their litigation strategies. When he said so, Samsung's counsel (Quinn Emanuel's Charles Verhoeven) tried to deflect the part relating to his client, pointing out that Samsung was just defending itself against cases brought by Huawei. But balanced as he appears to be, Judge Orrick noted that a defendant, too, has a strategy.

    So far I can't see anything particularly obstructive in Samsung's defense against Huawei's cases. Other litigants, such as Apple, would take largely the same positions and steps. Whose fault it is that negotiations haven't resulted in a deal (Samsung argues in court that it's because Huawei hasn't moved, and Huawei portrays Samsung as an unrepentant infringer) is impossible to know from the outside. Even the San Francisco judge can't know for sure.

If and when the antisuit injunction comes down, there'll probably a lot more media attention to it. I don't understand anyway why there's so little coverage of a cross-jurisdictional patent spat between the world's two leading Android device makers...

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