Saturday, October 22, 2022

First two Ericsson v. Apple patent trials approaching fast: Mannheim court to hear SEP case on November 8, and Apple would already like to raise FRAND issues in non-SEP ITC case starting November 4

We're entering a new stage of the Ericsson-Apple 5G patent dispute. It's never been boring. Apparently the Colombian 5G standard-essential patent (SEP) injunction is still being enforced. Two initial hearings were held in Munich (a non-SEP case over the iOS version of WhatsApp, and a SEP case that Apple has been unable to get dismissed at this stage). But now it's finally "trial season":

There was an Apple v. Ericsson trial in Mannheim on Tuesday, and a decision has been scheduled for November 29. I don't expect Apple to gain leverage from that one, though.

The first Ericsson v. Apple Mannheim trial--and the first SEP trial in the current dispute--will take place on November 8 (Second Civil Chamber; Presiding Judge: Dr. Holger Kircher, who will also serve on the Unified Patent Court's Mannheim Local Division, as will Judge Dr. Peter Tochtermann). The patent-in-suit, EP2191608 on a "method and arrangement in a telecommunication system" is a cellular SEP that Ericsson has previously asserted against Wiko.

I see a fairly high probability of Apple's FRAND defense being discussed on the 8th. Post-Sisvel v. Haier FRAND defenses in Germany are an uphill battle, though, to put it mildly...

Four days prior to the Mannheim trial--on November 4--the first Ericsson-Apple ITC trial will take place (in Washington, D.C.; presiding Administrative Law Judge: Cameron Elliot). That's the investigation of the smallest one of Ericsson's three ITC complaints against Apple.

That one is a non-SEP case, but as the docket entry of a currently sealed Ericsson motion shows, Apple is nevertheless trying to import its SEP licensing dispute with Ericsson into that one (click on the image to enlarge, or read the text below the image):

Complainant Ericsson Inc. and Telefonaktiebolaget LM Ericsson's Motion in Limine No. 2 to Exclude Arguments, Evidence, and Testimony Pertaining to FRAND Issues of Patents Not Asserted in This Investigation

Sorry to say so, but this is absurd--not that Ericsson brings that motion, but that Apple has created a situation in which that motion is apparently necessary.

Ericsson is suing Apple over SEPs (such as in one ITC case) and over non-SEPs. Obviously, the most likely outcome is that the two will agree on a global portfolio licensing covering SEPs and non-SEPs in one fell swoop. But should Ericsson prevail on one or more non-SEPs, Apple can't really expect the ITC to deny an import ban based on allegations of FRAND abuse in other cases. This has to be kept separate.

I can't see how this kind of litigation tactic benefits Apple. The ITC prides itself on the swift resolution of its Unfair Import Investigations, which requires focus. Apple just uses its vast resources to make all sorts of arguments that no reasonable litigation would give a try.

I could see a few years ago why Apple raised a complex antitrust question about Qualcomm's market power in chipsets in a case in which Qualcomm was specifically targeting iPhones with Intel chips--its only competitor at the time. That, too, was out of the ordinary for the ITC. But it was Qualcomm's decision to take aim at Intel-powered iPhones in the first place.

In this Ericsson-Apple dispute, there is nothing that Ericsson has done that compares to what Qualcomm did back then. Ericsson is simply asserting patents as a result of the expiration of a prior license agreement, and purposely separated its SEP complaint from its non-SEP complaints because that's the most efficient way to go about it.

Apple has plenty of opportunity during this calendar quarter to make FRAND arguments. I mentioned Mannheim, November 8. Also, the Munich I Regional Court will hold a FRAND hearing the week before Christmas. And above all, the United States District Court for the Eastern District of Texas will conduct a FRAND-only trial (no infringement questions) starting December 5 (before Chief Judge Rodney Gilstrap, who--as I was told--attended the Federal Circuit Bar Association meeting in Amsterdam earlier this week). But in a non-SEP case, arguments about "Patents Not Asserted in This Investigation" simply have no place.