Tillis, Michel, and Iancu Amicus Brief in Favor of Affirming Judge Gilstrap’s Anti-Interference Injunction

by Jonathan H. Spadt & Christopher H. Blaszkowski

On April 9, 2021, Senator Thom Tillis (R-NC), the Honorable Paul Michel, and the Honorable Andrei Iancu submitted a joint amicus brief in Samsung’s appeal of Judge Gilstrap’s anti-interference injunction. Without taking a position on the exact nature of the injunction required, the brief argued in favor of upholding Judge Gilstrap’s anti-interference injunction against Samsung, casting the dispute between the US and Chinese court systems as “an important issue that goes to the sovereignty of the United States.” The amici raised three primary arguments in favor of affirming Judge Gilstrap’s anti-interference injunction.

First, the amici underscored the concerning actions taken by the Wuhan court in unilaterally capturing the FRAND dispute and seeking to exclude other jurisdictions. Wuhan’s prior injunction represented a “sharp departure from judicial norms” in view of Ericsson’s lack of consent to Wuhan’s jurisdiction. Nor would the U.S. be unique in resisting Wuhan’s power-grab through the use of the anti-interference injunction–courts in both Germany and India have used such injunctions to rebuff Wuhan’s overreach in other cases.

Second, reinforcing Ericsson’s positions taken before Judge Gilstrap, the amici downplayed comity concerns, noting the “substantial differences” between the civil proceedings in China and the U.S., and the problems inherent in permitting a foreign nation to adjudicate the scope and nature of U.S. patent rights–especially where jurisdictional consent is lacking.

Finally, the plea for the U.S. courts to preserve their jurisdiction in the face of efforts by the Wuhan court was reiterated by the amici. The potential for foreign courts to interfere with the “development of, access to, and value of emerging technologies in the United States” is directly implicated through the jurisdictional threat posed by the Wuhan court. U.S. sovereignty must be preserved to avoid foreign powers “facilitating the entry of companies from their country into the U.S. market to the disadvantage of U.S. patent holders.”

For a copy of the amicus brief, click here.

For a list of relevant filings in the EDTX case, click here.

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