Ericsson Files Its Reply And Professor Adam Mossoff Offers An Amicus Brief Supporting Ericsson’s Anti-Interference Injunction
January 6, 2021
by Jonathan H. Spadt, Benjamin E. Leace, Christopher H. Blaszkowski & Shayne D. Rasay, RatnerPrestia
Ericsson’s reply alleged additional details regarding the Wuhan proceedings. According to Ericsson, not only did Samsung file the suit in secret, but Samsung took affirmative steps to prevent Ericsson from having an opportunity to participate in the anti-suit injunction (“ASI”) determination. Samsung allegedly did this by requesting the Wuhan court to “hold service” until the injunction issued.
Ericsson reinforced its prior arguments, noting that Samsung’s opposition revealed no legitimate reason for selecting Wuhan, given its lack of connection to the parties or the dispute and given that the U.S. is the largest market for both parties. Ericsson also emphasized that Samsung’s action in Wuhan cannot be permitted to be the only action as it could, at best, only resolve part of the lawsuit—i.e., only as to Ericsson’s 4G and 5G patents (not the 2G and 3G technology). Ericsson would be left without any relief as to Samsung’s SEPs (despite that Ericsson’s FRAND commitment hinges on a cross-license of Samsung’s SEPs).
Ericsson also underscored the need for Samsung to indemnify Ericsson for any fines issued by the Wuhan court as fines are “the mechanism Samsung is using to effectively divest” EDTX of jurisdiction and, that if fines are issued, “Samsung has no one but itself to blame.”
Professor Mossoff’s amicus brief focused on the due process concerns with the ASI—specifically: 1) the lack of process and transparency coupled with the clear implications of China’s economic interests; and 2) the inherent unfairness of ex parte proceedings adjudicating innovator rights without notice or participation by the innovator.
JUDGE GILSTRAP PERMITS JUDGE MICHEL’S AMICUS BRIEF AND GRANTS SAMSUNG A SUR-REPLY
On January 6, Judge Gilstrap, granted both Judge Michel’s motion to submit an amicus brief and the motion by Professor Adam Mossoff to submit an amicus brief in support of Ericsson’s request for TRO and preliminary injunction. Samsung was also granted a sur-reply to address the issues raised in Ericsson’s Reply, as well as in the amicus briefs of Judge Michel and Professor Mossoff. The sur-reply is due by the end of the day (January 6).
The preliminary injunction hearing is set to occur in person before Judge Gilstrap (with no streaming of proceedings) on January 7, at 10 a.m. CST.
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