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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

APPLE INC., Plaintiff, v. TELEFONAKTIEBOLAGET LM ERICSSON AND ERICSSON INC., Defendants. Civil Action No. 2:21-cv-00460-JRG

ERICSSON’S RESPONSE TO APPLE’S MOTION FOR AN EARLY CASE MANAGEMENT CONFERENCE

Case 2:21-cv-00460-JRG Document 19 Filed 01/24/22 Page 1 of 8 PageID #: 177

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I.

INTRODUCTION

Apple asks the Court to order an expedited, individual case management conference, yet Apple does not even make clear to the Court or to Ericsson what Apple wants the Court to resolve at this conference—or if the parties even dispute anything regarding the schedule of this case. Instead, Apple misleadingly tries to cast Ericsson as a villain who seeks to evade the jurisdiction of this Court. Nothing could be further from the truth. Ericsson does not oppose an individual case management conference

if there are specific issues that, after the parties meet and confer, remain in dispute and can benefit from immediate Court resolution

. To date, despite Ericsson’s requests, Apple has not even discussed any scheduling issues (such as the trial date or other interim deadlines) with Ericsson. Nor has Apple discussed broader case management issues with Ericsson, such as consolidation of this case with Ericsson’s first-filed case. Ericsson therefore proposes a procedure by which the parties confer meaningfully on case management, not just in this case but in both cases between Ericsson and Apple pending in this Court. If, once the conference(s) are concluded, there are disputes of a scheduling or case-management nature, the parties then should identify the disputes in a case management report and the Court can decide whether an individual scheduling conference would be appropriate. If there are disputes of a substantive nature for which relief beyond procedural rulings are requested, those should be handled by motion and response, and the Court can decide whether an oral hearing would be helpful to its resolution of any such motion. Contrary to the accusations in Apple’s motion, Ericsson has not “evaded” or “undermine[d]” the Court’s jurisdiction—indeed, Ericsson filed a case in this Court first. Ericsson sued Apple for patent infringement in other jurisdictions because Apple is infringing Ericsson’s essential patents on a worldwide basis. Apple complains that Ericsson filed its U.S. infringement suits in the Western District of Texas, but Ericsson filed there

because Apple closed all its stores


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in the Eastern District

in the wake of the

TC Heartland

case to immunize itself from patent infringement suits in this District. After Apple’s motion, Ericsson sent a letter to Apple offering to dismiss and refile its infringement cases

in this District

if Apple would waive challenge to improper venue under

TC Heartland.

Apple did not agree. The parties have sued each other for breach of contract and are seeking damages and declaratory relief. Nothing about Ericsson pursuing remedies for infringement of its implementation and essential patents undermines this Court’s jurisdiction over the claims here or in Ericsson’s first-filed case—both parties will be subject to this Court’s final judgment, and Ericsson has done nothing to interfere with the arguments that Apple can make to this Court regarding FRAND. Apple’s argument to the contrary is rhetoric unsupported by fact or law.

II.

PROCEDURAL HISTORY BETWEEN THE PARTIES

Ericsson filed its original complaint against Apple on October 4.

Ericsson Inc. and Telefonaktiebolaget LM Ericsson v. Apple Inc.

,

No. 2:21-cv-376-JRG (Oct. 4, 2021, E.D. Tex.) (the “First-Filed Case”).

In it, Ericsson sought a declaration that Ericsson’s offer to Apple for a new cross-license agreement complied with FRAND and all applicable laws.

Id.

Instead of answering Ericsson’s First-Filed Case and asserting counterclaims, on December 17, Apple simultaneously moved to dismiss Ericsson’s original complaint and filed its own complaint in this case (the “Second-Filed Case”), alleging among other things that Ericsson’s offer to Apple for a new cross-license breached FRAND. Dkt. No. 2;

see also

First-Filed Case, Dkt. No. 7. Ericsson filed a motion to dismiss Apple’s Second-Filed Case, or alternatively, to consolidate the Second-Filed Case with Ericsson’s First-Filed Case. Dkt. No. 14. Ericsson argued in its motion to dismiss that, under Rule 13 of the Federal Rules of Civil Procedure, Apple’s claims
