Ericsson's original mid-December complaint against Samsung in the Eastern District of Texas was just about FRAND licensing issues and didn't involve any infringement claims. As of yesterday, i.e., New Year's Day, Ericsson amended the complaint by also bringing eight standard-essential patent (SEP) infringement assertions (this post continues below the document):
Apparently the remainder of the term of a patent license agreement signed in 2014 precluded Ericsson from bringing an infringement case last month. Thhe eight patents in suit are "U.S. Patent Nos. 8,102,805 (the ’805 Patent); 8,607,130 (the ’130 Patent); 9,949,239 (the ’239 Patent); 9,532,355 (the ’355 Patent); 10,454,655 (the ’655 Patent); 10,193,600 (the ’600 Patent); 10,425,817 (the ’817 Patent); and 10,516,513 (the ’513 Patent)."
Interestingly, Ericsson is seeking damages, with willfulness enhancements (potentially treble damages) on top, but is not yet seeking an injunction. I guess Ericsson would want to do so later, but tries to limit the extent to which it's already acting in contempt of a Chinese antisuit injunction. If I were a Wuhan judge, I would be really offended by Ericsson's action anyway, so the fact that Ericsson decided not to seek an injunction--for now--doesn't mean too much, frankly.
At this point, I don't see a need to analyze the amended complaint in detail. In the short term, what matters is the anti-anti-antisuit part, which is a special type of venue fight. And I expect Samsung to win that one, in which case the dispute will be resolved in China and Ericsson's infringement claims, whether in Texas or elsewhere, are going to be not even a sideshow--they're simply going to be pointless. In my two previous posts today, I published and discussed Samsung's opposition to Ericsson's motion for a preliminary injunction and the accompanying sworn declaration by the former Chief Judge of the United States Court of Appeals for the Federal Circuit, Professor Randall R. Rader.
The only significance that those infringement assertions have at this procedural stage is that the antisuit part will be appealed to the Federal Circuit. Judge Gilstrap can decide whatever he wants but the Federal Circuit will decide, and Ericsson is not going to be able to avoid the Chinese FRAND determination as far as I can see. So the choice facing Judge Gilstrap is that he can either recognize his error--the temporary restraining order was completely out of line--and deny Ericsson's motion for a preliminary injunction, or he can elect to be reversed by the Federal Circuit, in which case he incurs the risk of potentially being criticized very harshly for unprecedented judicial overreach. That's the real battlefield at this point.
[Update] Meanwhile another Ericsson complaint--a whole new action--in the Eastern District of Texas has surfaced as well (this post continues below the document):
Here, Ericsson is asserting four patents that are presumably non-SEPs. Ericsson is seeking an injunction in this case. The patents-in-suit are U.S. Patent No. 7,151,430 ("Method of and Inductor Layout for Reduced VCO Coupling"), U.S. Patent No. 6,879,849 ("In-Built Antenna for Mobile Communication Device"), U.S. Patent No. 7,286,823 ("Mobile Multimedia Engine"), and U.S. Patent No. 9,313,178 ("Method and System for Secure Over-the-top Live Video Delivery").
Non-SEP assertions are not subject to the Chinese antisuit injunction Samsung secured last month. [/Update]
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