In my last post of the year 2020, I criticized rather harshly the overreaching nature of Judge Rodney Gilstrap's temporary restraining order (TRO) in Ericsson v. Samsung (Eastern District of Texas). The TRO has just been converted into a preliminary injunction (PI), but not in its entirety. A couple of elements of the TRO that I thought went too far have been dropped: Ericsson can't use the U.S. court to force Samsung to provide documents from the Chinese litigation, and should Ericsson seek any indemnification for fines the Chinese court may impose as a result of Samsung's antisuit injunction, it can do so only to the extent that such fines relate to the impact of the Chinese antisuit injunction on Ericsson's action in the Eastern District of Texas, but not with respect to cases in other jurisdictions. Here's today's PI order (this post continues below the document):
This order is appealable to the Federal Circuit, and an appeal is very likely. While slightly less broad than the TRO, this PI still raises serious questions. At the heart of Judge Gilstrap's decision to enjoin Samsung is that he believes the FRAND case before him is different from Samsung's earlier-field Wuhan case:
"The Wuhan Court is asked to provide a number. This Court is asked to evaluate conduct. The legal questions presented to each Court are different."
Similarly, Judge Gilstrap says Ericsson's U.S. case is about a cross-license, while Samsung asked the Chinese court to provide "global FRAND rate for Ericsson’s 4G and 5G SEPs in isolation."
This, to me, looks pretty contorted. In order to "evaluate conduct" in a licensing negotiation, Judge Gilstrap will have to look at the numbers. And the fact that Ericsson asks for a superset of the determination Samsung previously sought in China doesn't mean Ericsson isn't seeking something in the U.S. that Samsung previously asked a Chinese court to do.
It's also a non sequitur to me that Samsung's Chinese action was unfair because the ex parte injunction there can only be done away with by means of a motion for reconsideration, as opposed to the U.S. mechanism under which a TRO needs to be converted into a PI within two weeks or goes away automatically. The order claims that this means a different standard, but doesn't explain whether it really does mean it's harder for Ericsson in China than it was for Samsung in Texas to achieve a different outcome. The former Chief Judge of the United States Corut of Appeals for the Federal Circuit, Randall R. Rader, had actually explained in a sworn declaration that the Chinese proceedings are fair.
Judge Gilstrap also notes a USITC complaint Samsung brought against Ericsson on January 7, 2021. Bloomberg reported on it. There's recently been a flurry of filings, mostly by Ericsson, which is presently suing Samsung over 12 patents in the Eastern District and brought a number of cases in Germany, Belgium, and the Netherlands. I'll try to find out more about all those filings and will comment on them on another occasion.
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