Samsung Files Its Sur-Reply (1/6) And Preliminary Injunction Hearing Occurs in Person

January 7, 2021

by Jonathan H. Spadt, Benjamin E. Leace, Christopher H. Blaszkowski & Shayne D. Rasay, RatnerPrestia

Samsung’s sur-reply addressed arguments raised in Ericsson’s reply, as well as the two amicus briefs accepted into the record.  The sur-reply emphasized that Ericsson’s briefing never contested jurisdiction in the Chinese court, and that Ericsson’s alleged real complaint is that Samsung chose to act first (by filing suit in China).  Underscoring this point, Samsung cited to Fifth Circuit precedent acknowledging that the first filed action is important to principles of international comity.

Samsung explained that, despite Ericsson’s accusations regarding the procedures of the Wuhan court, Samsung followed these procedures and, as a safeguard, “posted a substantial bond with the Chinese court … to protect Ericsson’s interests.”

Citing heavily to Unwired (in which case Ericsson had intervened), Samsung contrasted Ericsson’s position taken in that case to the arguments supporting Ericsson’s anti-interference injunction.  Specifically, in Unwired, Ericsson had endorsed the ability of the UK court to set a global rate, because the less desirable alternative would be to litigate license rates country-by-country.  Now, according to Samsung, Ericsson has taken the opposite tact in emphasizing the dangers of a Chinese court doing the same where it could deprive a US court of jurisdiction.

Responding to Ericsson’s argument that the Wuhan court would only resolve part of the dispute (the rates for Ericsson’s 4G and 5G SEPs, but not the cross license for the 2G and 3G technology), Samsung argued that Ericsson did not ask Judge Gilstrap to set a worldwide or even a U.S. rate and, therefore, Samsung’s request to the Wuhan court for a worldwide rate would not “threaten this Court’s jurisdiction.”

Samsung also challenged Ericsson’s proposed remedy (and, specifically, the indemnity request) as overbroad as it goes beyond preserving jurisdiction in the US and would allegedly interfere with enforcement of any orders issued by the Wuhan court.  Samsung should not be penalized, it argued, simply for filing a lawsuit in China.

Samsung also dismissed the amicus briefs of Judge Michel and Professor Mossoff by asserting that each of them lacked familiarity with Chinese civil procedure.  Regarding Judge Michel’s brief, Samsung argued it improperly argued the facts of the case rather than the legal issues presented to the Court.  Samsung also argued that Professor Mossoff’s brief in support of Ericsson also conflicted with the position taken by Ericsson in Unwired.

Finally, Samsung contended that Ericsson Inc. lacks standing to request an anti-interference injunction on behalf of Telefonaktiebolaget LM Ericsson (a co-plaintiff who did not join Ericsson Inc.’s motion).

For Samsung’s Sur-Reply in Opposition to Ericsson’s Application for Anti-Interference Injunction click here.

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