On February 22, Samsung filed the opening brief in its Federal Circuit appeal of Ericsson's anti-antisuit injunction from the Eastern District of Texas. Yesterday, Ericsson responded (this post continues below the document):
Those 80 pages from Ericsson are probably just the tip of the iceberg. Come Friday, the Federal Circuit may very well be inundated with amicus curiae briefs in support of Ericsson's position, as there will be no shortage of U.S. companies and academics with an interest in maximizing the number of patent lawsuits brought in the U.S., including in the Eastern District of Texas, which has lately been eclipsed by the Western District.
I believe it makes more sense to go into detail when not only Ericsson's brief but also the anticipated slew of amicus briefs are on the table. But I wanted to be of service and make the document available immediately.
Just a couple of observations:
Ericsson definitely likes the Munich case law on anti-antisuit injunctions:
"Courts worldwide recognize the legitimacy of defensive injunctions against foreign efforts to restrict domestic relief. Appx1116; see, e.g., Nokia v. Continental, Oberlandesgericht München [Munich Higher Regional Court], Dec. 12, 2019, 6 U 5042/19 (Ger.), translation at 8 (Appx1858-1867) (granting anti-interference injunction 'as a defense against' interference with enforcement of German 'patent rights in Germany').
"See also InterDigital Tech. Corp. v. Xiaomi Commc’ns Co., Landgericht München [Munich Regional Court I], Feb. 25, 2021, 7 O 14276/20 (Ger.), translation at 39 (Appx1868-1922) (confirming anti-interference injunction to ensure patentee is not 'deprived of his right[s]' to 'enforcement'); [...]"
Unlike the U.S. framework for antisuit injunctions, however, German courts afford literally zero deference to courts outside the EU.
Ericsson argues that Judge Gilstrap's misconception (believing that Samsung was seeking an ITC import ban against Ericsson over its own SEPs, when in reality those ITC complaints involved only non-SEPs on both sides) doesn't matter because Samsung could still do so and, in any event, "Samsung has attacked Ericsson 4G and 5G SEPs through IPRs in the U.S., see Samsung Elecs. Co. v. Telefonaktiebolaget LM Ericsson, IPR Nos. 2021-487, -447, -446, -486 (Jan. 29, 2021), -730 (Mar. 26, 2021)."
Challenging the validity of another party's patents couldn't be much further from seeking an import ban over one's own patents...
Less than 24 hours before Ericsson filed its response brief with the Federal Circuit, IAM (Intellectual Asset Management) wrote about "the extent of the assault Samsung has launched at the PTAB against Ericsson as the Korean company pursues a strategy that few can afford." Interestingly, the Unified Patents report IAM cites to notes that Samsung "is the most prolific PTAB filer (49 filings) and at the same time are the most targeted defendant in patent litigation (19 cases as first-named defendant)," while "Ericsson was the most attacked patent owner at the PTAB with 30 petitions filed against them." The passage I just quoted from Ericsson's response brief merely lists a handful of Samsung v. Ericsson IPR petitions targeting SEPs. This means that only about 10% of Samsung's IPR petitions in the first quarter relate to Ericsson SEPs, and only one in six IPR petitions against Ericsson was brought by Samsung over a SEP. All in all, Unified Patents lists 30 Samsung v. Ericsson IPR petitions, most of them relating to non-SEPs. This just a consequence of Ericsson, a notoriously aggressive enforcer, having elected to sue Samsung over a large number of patents.
The "strategy that few can afford" (bringing many IPR petitions) presupposes a patent holder asserting many patents, which is also a "strategy that few can afford." It's also an indication of how far apart the parties' positions on a reasonable license fee must be: otherwise Ericsson wouldn't be suing so aggressively, and Samsung would consider it cheaper to accept Ericsson's terms than to litigate in multiple jurisdictions in parallel.
There would be a lot more to say about Ericsson's filing, but for the reason stated above (I predict an avalanche of amicus briefs on Friday), I'd like to leave it at that for now.
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