On Tuesday, Judge Rodney Gilstrap--whose more formal title is Chief United States District Judge of the United States District Court for the Eastern District of Texas--handed down a scheduling order in the Ericsson v. Apple 5G FRAND case. There will be a scheduling conference in a month from today, and the trial date is in June 2023. The order doesn't bode well for Apple's efforts to have that particular case thrown out and effectively replaced with another case in which Apple would be the plaintiff. Just a few days ago, Ericsson accused Apple of having wasted court and party resources "by forcing unnecessary litigation on two fronts."
Here's the order, which I'll discuss further below:
Apple wanted an early case management conference, and there will be a scheduling conference on March 16--but there are no signs of the focus being on the parties' dueling motions to dismiss their cases. Instead, Judge Gilstrap appears to be proceeding on the basis of the assumption that Ericsson's earlier-filed case is going to go forward, and the question is just how, not if.
As for calendaring, Apple had proposed a December 2022 trial, which would have forced the court to give absolute priority to this litigation over virtually every other case pending before it, and which is inconsistent with Apple's positions on scheduling whenever it had to defend against patent infringement allegations in the same district. Judge Gilstrap has scheduled the trial for June 2023. That is reasonably soon, but manageable.
In its reaction to Apple's aggressive scheduling proposals, Ericsson focused more on what the parties could and should meaningfully do in the very near term. As I explained in the final part of This recent post, Ericsson suggested an early exchange of the parties' positions on what the FRAND terms for a 5G cross-license should be, and some key evidence in that context. Judge Gilstrap's scheduling order is designed to start the pretrial discovery process shortly, and requires the parties to make some initial disclosures within 30 days of the March 16 scheduling conference.
Theoretically, Judge Gilstrap could enter such a scheduling order only to find a few days, weeks, or months later that he'll actually grant Apple's motion to dismiss Ericsson's earlier-filed case. That seems very unlikely, however. The flurry of motion practice on those two Eastern District Ericsson-Apple dockets has obviously not gone unnoticed. If Apple's motion to dismiss had come across as being very likely to succeed, the logical next step would have been a motion-to-dismiss hearing, which would then have had the potential to eliminate the need for any further scheduling order.
All in all, Apple will probably perceive that scheduling order as if its own alternative ideas had been rebuffed. It also seems that Apple's newfound love of the Eastern District was not credible. Apple may want to think about whether it really benefits from taking extreme (like that proposal to hold a December 2022 FRAND trial in Texas) and inconsistent (concerning its preferred venue) positions. Up to a certain point, a party vigorously defends its rights; but beyond that point, it just comes across as unreasonable. I believe June 2023 is simply the trial date that Judge Gilstrap considered reasonable regardless of what Apple proposed. It's not like Apple had to demand a December 2022 trial because otherwise the court would have set a late 2023 instead of mid 2023 trial date. I guess the court just ignored the December 2022 proposal because no one could take that one seriously in the first place.
I must also say that I'm getting a bit annoyed by Apple repeatedly telling courts and the ITC (such as in its recent public-interest reply) that it would prefer to both parties to drop all their infringement actions worldwide in favor of the Texas FRAND proceedings. There is no way that a FRAND case can resolve a single non-SEP case. At a minimum, Apple should distinguish between SEP and non-SEP infringement actions.
I'm looking forward to following the further proceedings in the Eastern District of Texas. This is a high-profile case that represents a splendid opportunity for the Eastern District to demonstrate its competence in patent-related litigation. The Ericsson-HTC dispute in that district already made FRAND history with a Texas judgment being affirmed in its entirety by the Fifth Circuit. Ericsson v. Apple has all the ingredients of a landmark case, unless the parties settle before anything important happens in court.
These days the United States International Trade Commission (ITC) will presumably institute four investigations involving these two parties (Ericsson brought one SEP complaint and two non-SEP complaints; Apple brought one non-SEP complaint).
While the European Commission is not going to make any Ericsson v. Apple decisions in a strict sense, I am sure some of its experts are following the dispute closely as the EU's executive branch of government is working on what may culminate in new SEP-specific legislation.
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