Saturday, December 18, 2021

New court filing by Apple makes 5G patent infringement litigation by Ericsson against iPhone maker ever more likely to start in two weeks

There's every indication right now that--short of an 11th-hour agreement--Ericsson and Apple are patent litigation-bound.

In early October, Ericsson brought a FRAND (not infringement) complaint against Apple in the Eastern District of Texas, with a license agreement still in force until the end of the year. While it may seem early to bring a case at that stage, Apple itself surprised Ericsson last time with some pre-expiration moves, and Ericsson just didn't want to lose the race to the courthouse this time around.

An anti-antisuit motion by Ericsson in the Netherlands became known shortly thereafter. I subsequently asked the three major German patent infringement courts whether they had any such action pending before them, but the answers were consistently negative (at least at the time I asked; I may soon have to inquire again).

Last night, Apple brought two motions in the Eastern District of Texas:

  • a motion to dismiss Ericsson's complaint, and

  • an unopposed motion to seal the former, as it contains "sensitive information relating to business operations, including information regarding license agreements."

I can't imagine that the motion would remain sealed in its entirety forever, but at the moment there's no protective order in place in that case. At some point Apple and Ericsson will have to content themselves with hiding only specific passages of the document from the general public.

It's obviously not inconceivable that Apple and Ericsson may be close to an agreement on renewal terms including Ericsson's 5G patents. It was high time that Apple somehow responded to the complaint, so they might have made the filing now even if the operating assumption was that the issues in that Texas case would never come to judgment. But in light of the Holiday Season and the impending expiration of the current license agreement, the likelihood of infringement litigation flaring up again between these two parties has increased from the vantage point of an external observer like me.

Apple's local attorney is Melissa Smith of Glliam & Smith, but Apple has enlisted some out-of-state rock stars I've previously seen in action for the world's richest device maker:

  • Fish & Richardson's Ruffin Cordell delivered opening argument for Apple against Qualcomm in 2019 (followed by Qualcomm's opening statement and a settlement). I thought he was very persuasive.

  • WilmerHale's Joseph Mueller has been involved with a variety of Apple cases over the years, such as the dispute with Samsung, where Mark Selwyn (from the same firm) was the global coordinator among outside counsel. I once saw him at the Mannheim courthouse, a venue I guess one just has to visit at least once in a lifetime if you work in international patent litigation--admittedly, connoisseurs of architecture would rather avoid it and cross the street where they'll find a beautiful castle.

The clock is ticking. 13 days left, and then we'll probably--though not necessarily--see a slew of infringement filings. Also, it won't take long now until Apple's license agreement with Nokia expires...

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