Tuesday, February 1, 2022

Ericsson seeking preliminary injunction against Apple distributor in Brazil, filed second case in Belgium; Apple wants December trial in Texas, now challenging 10 Ericsson patents

Ericsson keeps up the pressure on Apple. A filing made by Apple in the Eastern District of Texas on Monday (January 31) mentions that "[i]n Brazil [...], in addition to targeting Apple in a previous injunction request, Ericsson [...] filed for a second preliminary injunction on January 17 against Allied Tecnologia S.A., based on Ericsson’s claimed 4G cellular SEPs and merely because Allied resells Apple cellular products." Apple is now intervening to protect its wholesaler.

When I previously wrote about the preliminary injunction Ericsson is seeking against Apple itself in Brazil, I used the plural form "injunctions" though it appears to be a single motion for preliminary injunction involving three SEPs. And now there's another such motion, also over three SEPs, targeting Allied Tecnologia because of its distribution of accused Apple products.

Apple can't complain about the litigation tactic of targeting someone's resellers: Apple wrote threat letters to U.S. carriers and retailers in 2012 because of their distribution of Samsung products.

In another jurisdiction, Belgium, Ericsson was already known to have brought one case against Apple, and now Apple says there's been a second filing:

"In Belgium, Ericsson filed another case against Apple on January 24, asserting another claimed cellular SEP and seeking an injunction of that FRAND-encumbered patent."

It is clear what Apple means by "injunction of that [...] patent." Obviously Ericsson won't ask the court to enjoin (ban) its own patent.

Apple also keeps escalating the dispute, though I haven't been able to learn about countersuits since a Mannheim complaint became known. By now I've found ten petitions by Apple to invalidate U.S. patents held by Ericsson. I'll provide some detail on that further below, but let me first show you--and comment on--Apple's latest Texas filing:

22-01-31 Apple Riso Early Cmc by Florian Mueller on Scribd

That reply brief in support of Apple's request for an early case management conference in the Eastern District of Texas relates to where and how to resolve the parties' claims. A recent Ericsson filing exposed Apple's preference for the Eastern District of Texas as not going so far as to actually commit to keeping Ericsson's infringement cases there if Ericsson agreed to withdraw them in the Western District and refile in the Eastern District. That's because where Apple would really like to go is the Northern District--of California, not Texas. Its home court.

In a follow-up I explained that Apple is already looking beyond the district court and trying to subject the FRAND-compliance dispute to the appellate jurisdiction of the Federal Circuit, while Ericsson would prefer to return to the Fifth Circuit, in which it defeated HTC last year over partly the same legal questions.

Apple's reply brief doesn't change the picture. It mentions those additional filings in Brazil and Belgium, which are not going to shock Judge Gilstrap--I guess he'd more likely be shocked if Ericsson wasn't asserting its foreign patents in other jurisdictions at the same time. Apple keeps arguing that Ericsson might gain leverage from injunctions in other jurisdictions before the Texas court has set a FRAND rate. In standard-essential patent disputes of this scope, that's not unusual. Different jurisdictions have their distinct strengths/weaknesses profiles from a patent holder's point of view: some are more injunction-oriented (particularly the ITC, which has no other remedy, and Germany, where it takes one year to get an injunction and can easily take ten to get a damages award). Article III courts like the one in Texas and its Western counterpart are mostly about monetary relief.

To its reply brief, Apple attached a proposed case schedule (PDF on Scribd), which envisions a trial to begin in early December (of this year), which would probably be an unprecedented pace for a FRAND trial in the U.S., and wants Ericsson to make such a proposal as well, which it has no intention to do unless and until Judge Gilstrap himself deems it the appropriate next step.

Apple is still conflating SEP and non-SEP assertions. For SEPs, a global FRAND determination by a court is a possibility, though Apple is not entitled to it in the United States. Non-SEPs, however, can be enforced through injunctive relief, and that is actually how their commercial value is established if the parties can't agree. Ericsson is asserting a mix.

The patent assertions by Apple against Ericsson that are known at this stage include an ITC complaint over three mmWave patents that are not in IPlytics' database of standard-essential patent declarations, so it's a safe assumption they're non-SEPs, as is Apple's Mannheim patent-in-suit. Unless there's an Apple SEP case that's already pending but hasn't surfaced yet, it seems that Apple still has not asserted a FRAND-pledged SEP in its corporate history.

Additional PTAB IPR petitions discovered

On Wednesday I listed Apple's first seven petitions with the Patent Trial and Appeal Board for inter partes review of patents granted to Ericsson by the United States Patent and Trademark Office, and noted that Apple was piggybacking on Samsung's related efforts of about a year ago.

One week ago, on January 25, Apple filed five PTAB petitions against Ericsson patents, of which I saw only two when I wrote the post I just linked to. So let me add the remaining three:

  1. IPR2022-00339

    U.S. Patent No. 10,492,179 on "resource signaling for PUCCH"

    (not yet asserted by Ericsson against Apple; challenged by Samsung in 2021)

  2. IPR2022-00342

    U.S. Patent No. 9,584,204 on a "transmitter for transmitting discovery signals, a receiver and methods therein"

    (not yet asserted by Ericsson against Apple; challenged by Samsung in 2021)

  3. IPR2022-00346

    U.S. Patent No. 10,587,386 on "multiplexing of periodic channel state information on physical uplink shared channel together with hybrid automatic repeat request acknowledgement"

    (not yet asserted by Ericsson against Apple; challenged by Samsung in 2021)

On another note, the United States International Trade Commission (USITC, or just ITC) will soon receive comments on public-interest issues relating to the parties' requests for import bans. While there are stronger public-interest arguments against a hypothetical import ban on Ericsson's mobile base stations than on phones and similar devices (for which there are countless alternatives), the ITC is almost certainly going to institute investigations of Ericsson's three complaints as well as the sole Apple complaint in a couple of weeks.

The most important public-interest concerns involving Apple have nothing to do with patents, but with its App Store practices. Apple is now--with respect to its App Store monopoly abuse--the "Enemy of the States" as

  • the Biden Administration made a filing that formally supports neither party (because it stops about one step short of what is needed to find Apple in violation of the antitrust laws) but backs Epic Games in numerous ways (the conclusion that the Ninth Circuit should not allow the Sherman Act to be unduly narrowed is a MAKE ANTITRUST GREAT AGAIN message), and

  • 35 U.S. state attorneys-general declared themselves in support of Epic, with California likely to complete the third dozen soon (California was granted an extension because of its particular interest in California Unfair Competition Law and according to Tech Xplore will support Epic Games even with respect to the Sherman Act claims).

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