Ericsson v. Samsung remains one of the most interesting patent disputes not only at this moment but even in several years. It involves both standard-essential patents (SEPs) and non-SEPs. Cases between the parties are pending in China, the U.S., Germany, the Netherlands, and Belgium.
Less than four months after I proposed a more mathematical notation for multiple-antisuit injunctions, I've finally decided to use that one on this blog--even in the headline of this post. When I read filings involving AxSIs, I notice how cumbersome it is to always count the "anti"s. The situation has gotten out of hand, and there's no end in sight.
Let's quickly recap the procedural history on the basis of that human-friendly notation:
On Christmas Day, Samsung obtained an A1SI coupled with an A3SI in Wuhan, China, where it filed for a determination of a global FRAND royalty rate for Ericsson's SEP portfolio earlier that month (and prior to Ericsson's filing in the Eastern District of Texas, seeking the determination of the terms of a global cross-license).
Ericsson simply violated the A3SI by seeking an A2SI in the Eastern District of Texas (initially as a temporary restraining order, parts of which were then converted into a preliminary injunction).
About a week after the conversion of parts of the TRO into a PI, Samsung appealed Ericsson's A2SI to the Federal Circuit, and subsequently filed a motion to expedited the appeal.
I was hoping that Ericsson would shed light on the question of whether an A4SI had issued. Unfortunately, Ericsson's latest filing--its opposition to Samsung's motion to expedite the Federal Circuit appeal--makes no mention of an A4SI (this post continues below the document):
21-02-03 Ericsson Oppositio... by Florian Mueller
It's unclear to me whether an A4SI was actually needed. The original Chinese A3SI (concomitant with the A1SI) already prohibited what Ericsson was doing in Texas. Normally, the combination of an A1SI and an A3SI should be waterproof--unless, of course, the enjoined party decides to simply violate one or both of the original antisuit injunctions, which is what happened here.
Maybe Samsung's reply to Ericsson's opposition filing will clarify the status of that mysterious A4SI.
It's interesting that Ericsson fights very hard for having the full 40-day period to oppose Samsung's forthcoming opening brief on appeal. Practically, Ericsson indicates in a footnote, Ericsson would even have 42 days because of the regular deadline falling on a weekend. Samsung, however, says Ericsson should respond within 28 days (12 days less than the regular period, and 14 days less than what Ericsson would get here).
Ericsson's counsel is clearly busy. A footnote lists numerous cases, and it appears those lawyers work for a number of patent trolls and other abusers. Yet busy is busy, regardless of the type of client.
One point Ericsson makes here is that there'll be a lot of amicus brief activity--and Ericsson would like to ensure that amici will have as much time as possible to prepare their filings.
Despite Ericsson's opposition, Samsung's motion may still succeed, given that the Federal Circuit tends to expedite preliminary-injunction appeals when so requested. Ericsson argues that its A2SI is not "market-altering" and, therefore, the appeal isn't all that urgent from an irreparable-harm point of view. However, the Federal Circuit may very well conclude that AxSI injunctions harm an enjoined party in different ways from the traditional market-centric kind of irreparable harm. Also, the briefing process for the PI that's being appealed took only nine days.
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