Friday, July 29, 2022

BREAKING: Apple alleges human rights violation by Colombian court that ordered 5G iPhone/iPad sales ban, Ericsson, and its lawyers; invokes Art. 8 of Universal Declaration of Human Rights


Apple leaves no stone unturned in its efforts to get Ericsson's Colombian iPhone/iPad injunction over a 5G standard-essential patent (SEP) lifted, and is now accusing Ericsson, its lawyers, and the court that ordered the injunction to violate basic human rights, invoking even Art. 8 of the famous Universal Declaration of Human Rights. I wonder what's next--voting rights for iPhones?

Just yesterday, Judge Rodney Gilstrap (Eastern District of Texas) denied Apple's antisuit motion as he declined that invitation to interfere with a foreign patent case. Now I've been able to obtain a copy of a publicly-accessible court document that is truly astonishing:

Apple has asked the Tribunal Superior de Distrito Judicial de Bogotá (Superior Court of the Judicial District of Bogotá) for a "tutela"--a form of emergency relief--against

Here's the header section (click on the image to enlarge):

Incredibly, Apple bases its motion for that emergency measure on Colombia's constitution as well as

Here's the passage that invokes those international human rights declarations (click on the image to enlarge):

Art. 8 UDHR says this:

"Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law."

This obviously doesn't mean that every time you disagree with a judge, this article applies. In fact, the Equality and Human Rights Commission, a governmental entity in the UK entasked with protecting and promoting human rights, explains its meaning as follows:

"Article 8 protects your right to respect for your private life, your family life, your home and your correspondence (letters, telephone calls and emails, for example). [...] The courts have interpreted the concept of ‘private life’ very broadly. It covers things like your right to determine your sexual orientation, your lifestyle, and the way you look and dress. It also includes your right to control who sees and touches your body. For example, this means that public authorities cannot do things like leave you undressed in a busy ward, or take a blood sample without your permission."

Now, no one has left an Apple executive undressed in Colombia or taken a blood sample without permission. By extension, Art. 8 UDHR "also covers your right to develop your personal identity and to forge friendships and other relationships. This includes a right to participate in essential economic, social, cultural and leisure activities." (emphasis added)

The unlicensed use of patents, however, is not exactly an "essential economic activity" protected by Art. 8.

So what is it that Apple wants to prevent Ericsson and its lawyers from doing?

The motion wants them to stop sending allegedly "threatening communications" to Apple's "contractual partners and resellers" and "damaging the good name of Apple Colombia S.A.S. through whatever communications channel." (Note that the original motion is in Spanish, and I'm just translating it myself--I've used that language in various professional contexts for almost two decades, though I'm obviously not a certified translator.)

Apple generates only about a fifth of a percent of its worldwide sales in the South American country, but is currently unable to sell its latest iPhones and latest cellular iPads there. Not only is Apple's Colombian subsidiary, Apple Colombia S.A.S., enjoined but the injunction specifically states that resellers are not supposed to sell the products deemed to infringe, and Colombia's customs authority has been instructed to confiscate any new shipments.

Apple's 48-page "Hail Mary"-style motion asserts that "Apple has done everything in its power to reach an agreement with Ericsson, other than caving to Ericsson's supra-FRAND demands." As we know from the U.S. part of the dispute, Ericsson is actually convinced of having made Apple a FRAND offer.

Apple's motion complains not only of the "broad and illegal interpretation" of the injunction by Ericsson and its lawyers in letters sent to Apple's contractual and commercial partners in Colombia, but also accuses them of "providing deceptive information to the media," which according to Apple "created a media circus":

"As a result, in addition to the damages caused, the costs that Apple Colombia has incurred in order to comply in good faith with the broad and illegal interpretation Ericsson and its lawyers have given to the court orders, the loss of profits, and among others, Apple Colombia has been publicly treated as a patent infringer [...]"

Well, ten years and two weeks ago, this blog reported on Apple sending letters to Samsung's commercial partners in the U.S., portraying Samsung as a patent infringer and urging Samsung's resellers to stop selling certain Galaxy devices. The difference is that Samsung--though it sharply disagreed with Apple's course of action--didn't allege a human rights violation by Apple...

Apple says it's suffering "irreparable harm" and, therefore, "cannot wait until the legal options ordinarily available to it (appeals) have been adjudicated."

Section 6 of Apple's motion claims that the court order has various "legal defects." These are the subheads:

  • "6.1 Material defect: Court No. 43 did not base its decisions in applicable statutes and did not state the reasons for tis decisions"

  • "6.2 Absolute procedural defect: Court No. 43 ignored the procedural stage, which led to the violation of basic rights of Apple Colombia"

  • "6.3 Factual defect: Court No. 43 ignored the evidence that would have allowed it to conclude that a preliminary injunction was not warranted"

  • "6.4 Ignorance of legal precedent: Court No. 43 ordered the preliminary injunction ignoring the Constitutional Court's legal precedent"

  • "6.5 Direct violation of the Constitution: Court No. 43 ignored Art. 29 of the Political Constitution"

As I read the motion, I can't help but conclude that Apple's Colombian counsel portrays as constitutional issues what are run-of-the-mill appellate arguments in a preliminary injunction context.

Unfortunately for Apple, patent rights also have a constitutional dimension in many jurisdictions (examples: Article 1, Section 8, Clause 8 of the United States Constitution; and in Germany it's recognized that intellectual property, too, falls under Art. 14 of the country's Basic Law, as explained on this German WikiBooks page).