Monday, November 28, 2022

Ericsson seeks U.S. discovery from Broadcom for use in Apple UK patent litigation involving WiFi chips: Northern District of California

Black Friday was not a very eventful day in U.S. patent and antitrust litigation, but the courts were open for business and Ericsson filed a § 1782 discovery motion with the United States District Court for the Northern District of California:

Ex Parte Application of Telefonaktiebolaget L.M. Ericsson for an Order Pursuant to 28 U.S.C. § 1782 Granting Leave to Obtain Discovery From Broadcom Corporation for Use in a Foreign Proceeding

This motion for a subpoena is related to an Ericsson v. Apple patent infringement case pending in the High Court of Justice in London. The infringement action was discovered in June (claim no. HP-2022-000013). From the U.S. court filing I've learned that the two patents-in-suit asserted in that UK complaint are EP1721324 on a "method and inductor layout for reduced vco coupling" and EP2220848 on "mobile access to internet-based application with reduced polling. The discovery motion in California is only about EP'324, which is a member of the same patent family as U.S. Patent No. 7,151,430, which I identified as "[t]he most interesting patent-in-suit [remaining] in [ITC] investigation [no. 337-TA-1300]."

The amended particulars of the UK infringement claim state the following:

"The claim for infringement of EP 324 is made in respect of all Apple branded handsets / user equipment / mobile devices that incorporate the Broadcom 'BCM 4387' chip, the Broadcom 'BCM 4378' chip or the Apple 'TMIR36' chip (the '324 Devices')."

Originally, Ericsson listed the iPhone SE, iPhone 13, and Apple Watch Series 7 as exemplary accused devices. Ericsson's UK filing alleges that the iPhone 14 and the Apple Watch Series 8 also infringe EP'324 ("in addition to other later Apple branded devices such as iPhone 14 and Apple Watch Series 8 which it is inferred are also 324 Devices").

Given that Broadcom was already subjected to discovery due to the ITC investigation over a U.S. member of that patent family, the burden on Broadcom is minimal. It's all just about enabling the UK court to see the evidence.

One can deduce from Ericsson's discovery motion that a credible infringement case can be made against Apple gadgets that incorporate a Broadcom WiFi chip, which means the ITC trial (that evidentiary hearing will take place early next year) should get interesting. It seems that the same chip also supports Bluetooth, but that fact does not appear to give rise to infringement allegations here.

Tomorrow the Mannheim Regional Court will render judgment on an Apple countersuit against Ericsson, and the next day the Munich I Regional Court's 21st Civil Chamber will hold two Ericsson v. Apple hearings. Last week's Munich hearings were canceled as someone called in sick, a fact that I mentioned at the end of a recent post that was mostly about an interesting position taken by the ITC staff on public interest concerns surrounding a countercomplaint by Apple over mmWave patents. Next week, both a FRAND trial in the Eastern District of Texas and an ITC trial in the mmWave case I just mentioned will kick off. Later that month (December 21 to be precise), the Munich I Regional Court will hold an Ericsson v Apple FRAND hearing.