Wednesday, January 27, 2021

In U.S.-China anti-antisuit conundrum, Samsung requests Federal Circuit to accelerate its appeal of Ericsson's Texas injunction

Twelve days ago, Samsung gave notice of its appeal of Judge Rodney Gilstrap's preliminary injunction under which Samsung would oddly have to reimburse Ericsson for fines imposed by the Intermediate People's Court of Wuhan, China, even if the court did so sua sponte (i.e., without a contempt motion by Samsung). But the temporary restraining order (TRO) the Chief Judge of the United States District Court for the Eastern District of Texas had previously entered went even further, so the pendulum has already started to swing in a direction favoring the Korean electronics giant.

It took more than a week for that appeal to be docketed, and about an hour ago, Samsung brought a motion to expedite (this post continues below the document):

21-01-26 Samsung Motion to ... by Florian Mueller

The above PDF document contains three attachments, the third of which (Attachment C) is the original Chinese anti-antisuit injunction (an English translation and the Chinese original)--just saying in case any of you are interested in seeing the court order that started it all. Meanwhile there's litigation pending in multiple jurisdictions, though in some countries (Germany, The Netherlands, and Belgium) it's over non-standard-essential patents according to Samsung's motion. That also appears to apply to an ITC complaint Ericsson brought against Samsung. I will look at the ITC cases (each party brought one complaint) in more detail once the agency has instituted the investigations (which it undoubtedly will).

Samsung proposes the following schedule:

  • Samsung's opening brief: February 22

  • Ericsson's response brief: March 22 (four weeks after the opening brief)

  • Samsung's reply brief: April 5

  • Thereafter, Samsung hopes the Federal Circuit will put oral argument on the agenda of the next available session.

Samsung argues that there is a sense of urgency as it now finds itself caught between two conflicting court rulings (one from China, one from the U.S.).

Under the proposed schedule, Ericsson's time to respond to the opening brief would be shortened by twelve days (from 40 to 28), but for the most part, Samsung would forego time to prepare filings (32 of the 60 days it would normally have for its opening brief, and 7 of the 21 days it would normally have for its reply brief).

If this looks like an "expedited" schedule, it bears mentioning that, as Samsung's motion to expedite notes as well, the preliminary injunction in Texas was briefed over the course of only nine days.

I just came to realize that this is now my third post in a row concerning procedural questions--which are often intertwined with jurisdictional ones. Patent litigation tactics have become ever more complicated (those who enjoy it would probably prefer to say "advanced" or "sophisticated"). So we're now dealing with antisuit, anti-antisuit, and anti-anti-antisuit injunctions such as in this Ericsson-Samsung dispute. Yesterday it became known that automotive supplier Continental brought some claims in a Delaware state court (a truly special state court) in order to obtain a standard-essential patent (SEP) license from Nokia at the component level; and Judge Tobias Pichlmaier of the Munich I Regional Court referred to the top EU court the question of whether preliminary injunctions should be granted more liberally even over untested patents.

This procedurally-focused trilogy isn't merely coincidental. Procedural and jurisdictional questions have become ever more important over the past decade. I remember how innovative Microsoft's motion for an antisuit injunction in the Western District of Washington (against Motorola) and Judge James Robart's decision to grant it seemed in 2012. Nine years later, it's almost as if a major SEP dispute without some kind of antisuit or anti-antisuit activity is hard to come by...

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