The lawyers representing Samsung in the U.S. part of its patent dispute with Ericsson must have had a very busy weekend. On Friday, five amicus curiae briefs were filed in support of Ericsson's responsive brief, one of which was a joint filing by Senator Thom Tillis (R-N.C.), former Federal Circuit Chief Judge Paul Michel, and the Trump Administration's USPTO Director Andrei Iancu. But around mignight Eastern Time on Monday, Samsung already filed its reply brief (this post continues below the document):
Other than sharpy disagreeing with a couple of aspects of one amicus brief, I have yet to comment on the merits of Ericsson's and its amici's arguments. Antisuit injunctions are one of my favorite topics, and I've been invited by one of the world's leading political institutions to speak about that topic next month (can't announce the details yet, but will do so on this blog well ahead of the event). I fully intend to share my opinions sooner or later, but I've been largely nonjudgmental so far and may need a few more weeks to reflect.
The preliminary injunction that Samsung is appealing here is a narrowed version of a temporary restraining order. I considered parts of the TRO completely out of line, a position that Judge Rodney Gilstrap in the Eastern District of Texas validated by denying the related parts of Ericsson's PI motion.
The remaining questions are not that clear-cut. I've recently spoken with two U.S. lawyers whose positions on standard-essential patent (SEP) enforcement I consider to be pretty balanced. They've made some points that I need to think about, and they relate to situations in which antisuit injunctions from other jurisdictions (not necessarily China) could disadvantage net licensees (like Samsung) even though in this case, a net licensor (Ericsson) obtained the anti-antisuit injunction at issue. And it's interesting that only one company has filed an amicus brief: InterDigital supports Ericsson, but InterDigital may have nothing to lose in China and is presently embroiled in litigation with Xiaomi, which obtained an antisuit injunction like the one Samsung got against Ericsson. Other companies and their industry bodies prefer not to alienate any particular jurisdiction, at least for the time being, and/or they're afraid of situations in which the shoe will be on the other foot and whatever they'd say now would be held against them.
What makes the situation so complicated is that in one way, China and the U.S. have something in common (a multifactorial antisuit injunction framework, which a jurisdiction like Germany lacks (and in my view should develop)--but at the same time, there's an asymmetry because Chinese courts are prepared to determine global FRAND rates even without the non-moving party's consent, while U.S. courts will make decisions on foreign patents only if both parties agree (and even in at least one such case that I heard of, a U.S. court has declined to do so). The root cause of the whole multi-antisuit mess is territorial overreach, particularly the UK Supreme Court's Unwired Planet ruling and the similar practice by German courts (allowing the enforcement of injunctions unless the defendant takes a global portfolio license). If you wish to share your thoughts on this, please contact me, and I'll be sure to keep your input confidential.
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