The fact that Samsung und Huawei are the world's two leading Android device makers always lent some significance to their patent infringement dispute, but it wasn't really too interesting to watch until the motion process that culminated in Samsung's antisuit injunction, preventing Huawei from enforcing a couple of Chinese patent injunctions for the time being.
Huawei has since been trying to get rid of that decision, which prevents it from getting huge leverage in China in the shortest term. It asked Judge William H. Orrick of the United States District Court for the Northern District of California to revisit his decision, and it filed a Ninth Circuit appeal with the Federal Circuit. The latter then told Huawei: you can't keep two courts busy in parallel with the same matter, so please wait for your California-based judge, then we'll see.
A few days ago, Judge Orrick denied Huawei's motion for reconsideration (this post continues below the document):
While there's nothing unusual about a judge standing by his decision, this order is quite important in one respect: Huawei argued that Judge Orrick should have applied, in addition to the Gallo antisuit injunction factors, the Supreme Court's traditional Winter preliminary injunction factors. Judge Orrick still disagrees that Ninth Circuit law requires both, but--and that is a setback for Huawei--he explained in his order that "[the other Winter] factors would not alter [Judge Orrick's] conclusion." Judge Orrick elaborates on that part in his footnote 3:
"The analysis of these factors largely tracks that of the district court in Microsoft Corp. v. Motorola, Inc., [...](Microsoft I). Samsung faces irreparable harm in closing its manufacturing plant and ceasing the sale of infringing devices in China. See id. at 1102 ('Microsoft has provided this court with convincing evidence that it will lose market share, which will be difficult to regain, and suffer harm to its business reputation.'). The balance of equities tips in Samsung's favor because it would be placed in an untenable bargaining position, which would have lasting effects, whereas Huawei is only being enjoined for approximately six months. See id. at 1103 ('It would seem clear that a negotiation where one party (Microsoft) must either come to an agreement or cease its sales throughout the country of Germany fundamentally places that party at a disadvantage.'); id. ('By issuance of an anti-suit injunction, this court is in no way stating that Motorola will not at some later date receive injunctive relief, but only that it must wait until this court has had the opportunity to adjudicate that issue.'). And the public interest lies in this court adjudicating the propriety of injunctive relief for the parties' standard essential patents (SEPs). See id. ('The court finds that the public interest is served by issuing an anti-suit injunction and permitting Microsoft to continue its business operations without interruption until this court has had the opportunity to adjudicate the injunctive relief issue before it.'); see also Order at 15–17 (analyzing the Unte[r]weser factor of whether foreign litigation would frustrate a policy of this forum). The overlap between the Unte[r]weser factors and the Winter factors further bolsters the conclusion that the full Winter analysis is unnecessary when applying the Gallo test. See Gallo, 446 F.3d at 991 ('Gallo need only demonstrate that the factors specific to an anti-suit injunction weigh in favor of granting the injunction.')."
This ups the ante for Huawei before the Federal Circuit.
In other Huawei v. Samsung news, Samsung brought a motion for judgment on the pleadings about two weeks ago, seeking the dismissal of Huawei's FRAND rate-setting claim. Huawei has meanwhile opposed it, arguing that Samsung's consent isn't necessary since Samsung (just like Huawei) agreed to reciprocity in its FRAND declaration to ETSI (the relevant standard-setting organization), so Huawei is entitled to a license to Samsung's patents, but the terms of such a license must also involve a cross-license. I'll talk about that motion process in more detail later, but for now it's worth noting that, according to Huawei, "[the] parties have discussed the possibility of stipulating to the dismissal of Huawei's rate-setting claim without prejudice." Huawei promises to "promptly inform the Court" should such agreement still be reached. So maybe Judge Orrick won't even have to rule on that motion.
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