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Case: 21-1565 Document: 9 Page: 1 Filed: 02/03/2021

No. 2021-1565

IN THE
United States Court of Appeals
FOR THE FEDERAL CIRCUIT
ERICSSON INC. AND TELEFONAKTIEBOLAGET LM ERICSSON,
Plaintiffs-Appellees,
V.

SAMSUNG ELECTRONICS CO., LTD.; SAMSUNG ELECTRONICS


AMERICA, INC.; AND SAMSUNG RESEARCH AMERICA,
Defendants-Appellants.

On Appeal from the United States District Court


for the Eastern District of Texas
No. 2:20-CV-380, Judge J. Rodney Gilstrap

APPELLEES’ OPPOSITION TO APPELLANTS’ MOTION


TO EXPEDITE BRIEFING AND ORAL ARGUMENT

Theodore Stevenson, III Jeffrey A. Lamken


Nicholas M. Mathews Counsel of Record
MCKOOL SMITH, P.C. Michael G. Pattillo, Jr.
300 Crescent Court, Suite 1500 MOLOLAMKEN LLP
Dallas, TX 75201 The Watergate, Suite 500
(214) 978-4000 (telephone) 600 New Hampshire Avenue, N.W.
(214) 978-4044 (facsimile) Washington, D.C. 20037
(202) 556-2000 (telephone)
(202) 556-2001 (facsimile)
jlamken@mololamken.com

Counsel for Ericsson Inc. and Telefonaktiebolaget LM Ericsson


(Additional Counsel Listed on Next Page)
Case: 21-1565 Document: 9 Page: 2 Filed: 02/03/2021

(
Christine M. Woodin Rayiner I. Hashem
MCKOOL SMITH, P.C. James A. Barta
300 S. Grand Avenue, Suite 2900 MOLOLAMKEN LLP
Los Angeles, CA 90071 The Watergate, Suite 500
(213) 694-1200 (telephone) 600 New Hampshire Avenue, N.W.
(213) 694-1234 (facsimile) Washington, D.C. 20037
(202) 556-2000 (telephone)
Blake H. Bailey (202) 556-2001 (facsimile)
MCKOOL SMITH, P.C.
600 Travis Street, Suite 7000 Eugene A. Sokoloff
Houston, TX 77002 Elizabeth K. Clarke
(713) 485-7300 (telephone) MOLOLAMKEN LLP
(713) 485-7344 (facsimile) 300 N. LaSalle Street
Chicago, IL 60654
Samuel F. Baxter (312) 450-6700 (telephone)
MCKOOL SMITH, P.C. (312) 450-6701 (facsimile)
104 E. Houston Street, Suite 300
Marshall, TX 75670 Jennifer E. Fischell
(903) 923-9000 (telephone) MOLOLAMKEN LLP
(903) 923-9099 (facsimile) 430 Park Avenue
New York, NY 10022
(212) 607-8160 (telephone)
(212) 607-8161 (facsimile)

Counsel for Ericsson Inc. and Telefonaktiebolaget LM Ericsson


Case: 21-1565 Document: 9 Page: 3 Filed: 02/03/2021

FORM 9. Certificate of Interest Form 9 (p. 1)


July 2020

UNITED STATES COURT OF APPEALS


FOR THE FEDERAL CIRCUIT

CERTIFICATE OF INTEREST

Case Number 2021-1565


Short Case Caption Ericsson Inc. v. Samsung Electronics Co., Ltd.
Filing Party/Entity Ericsson Inc.; Telefonaktiebolaget LM Ericsson

Instructions: Complete each section of the form. In answering items 2 and 3, be


specific as to which represented entities the answers apply; lack of specificity may
result in non-compliance. Please enter only one item per box; attach
additional pages as needed and check the relevant box. Counsel must
immediately file an amended Certificate of Interest if information changes. Fed.
Cir. R. 47.4(b).

I certify the following information and any attached sheets are accurate and
complete to the best of my knowledge.

02/03/2021
Date: _________________ Signature: /s/ Jeffrey A. Lamken

Name: Jeffrey A. Lamken


Case: 21-1565 Document: 9 Page: 4 Filed: 02/03/2021

FORM 9. Certificate of Interest Form 9 (p. 2)


July 2020

1. Represented 2. Real Party in 3. Parent Corporations


Entities. Interest. and Stockholders.
Fed. Cir. R. 47.4(a)(1). Fed. Cir. R. 47.4(a)(2). Fed. Cir. R. 47.4(a)(3).
Provide the full names of Provide the full names of Provide the full names of
all entities represented all real parties in interest all parent corporations
by undersigned counsel in for the entities. Do not for the entities and all
this case. list the real parties if publicly held companies
they are the same as the that own 10% or more
entities. stock in the entities.

‫܆‬
✔ None/Not Applicable ‫ ܆‬None/Not Applicable

Ericsson Inc. See addendum.

Telefonaktiebolaget LM Ericsson See addendum.

✔ Additional pages attached


Case: 21-1565 Document: 9 Page: 5 Filed: 02/03/2021

FORM 9. Certificate of Interest Form 9 (p. 3)


July 2020

4. Legal Representatives. List all law firms, partners, and associates that (a)
appeared for the entities in the originating court or agency or (b) are expected to
appear in this court for the entities. Do not include those who have already
entered an appearance in this court. Fed. Cir. R. 47.4(a)(4).
None/Not Applicable ✔ Additional pages attached

See addendum.

5. Related Cases. Provide the case titles and numbers of any case known to be
pending in this court or any other court or agency that will directly affect or be
directly affected by this court’s decision in the pending appeal. Do not include the
originating case number(s) for this case. Fed. Cir. R. 47.4(a)(5). See also Fed. Cir.
R. 47.5(b).
None/Not Applicable ✔
Additional pages attached

See addendum.

6. Organizational Victims and Bankruptcy Cases. Provide any information


required under Fed. R. App. P. 26.1(b) (organizational victims in criminal cases)
and 26.1(c) (bankruptcy case debtors and trustees). Fed. Cir. R. 47.4(a)(6).
✔ None/Not Applicable Additional pages attached
Case: 21-1565 Document: 9 Page: 6 Filed: 02/03/2021

CERTIFICATE OF INTEREST
Addendum to Questions 3, 4, and 5

3. Parent Corporations and Stockholders. Fed. Cir. R. 47.4(a)(3).


Provide the full names of all parent corporations for the entities and all publicly
held companies that own 10% or more stock in the entities.

Ericsson Inc. is a Delaware corporation that is wholly owned by Ericsson


Holding II Inc., which is also a Delaware corporation. Ericsson Holding II
Inc. is wholly owned by Telefonaktiebolaget LM Ericsson.

Telefonaktiebolaget LM Ericsson is a publicly traded Swedish corporation


that has no parent corporation. No publicly held company owns more than
10% of its stock.

4. Legal Representatives. List all law firms, partners, and associates that (a)
appeared for the entities in the originating court or agency or (b) are expected to
appear in this court for the entities. Do not include those who have already entered
an appearance in this court. Fed. Cir. R. 47.4(a)(4).

McKool Smith, P.C.:


Jennifer L. Truelove
Nicholas Theodore Matich, IV

Sidley Austin LLP:


Erik Bruce Fountain (withdrawn)

5. Related Cases. Provide the case titles and numbers of any case known to be
pending in this court or any other court or agency that will directly affect or be
directly affected by this court’s decision in the pending appeal. Do not include the
originating case number(s) for this case. Fed. Cir. R. 47.4(a)(5). See also Fed. Cir.
R. 47.5(b).

The decision in this case may affect Samsung Electronics Co., Ltd. v.
Telefonaktiebolaget LM Ericsson, E 01 Zhi Min Chu No. 743 (2020),
currently pending in the People’s Republic of China Wuhan Intermediate
People’s Court, Hubei Province.
Case: 21-1565 Document: 9 Page: 7 Filed: 02/03/2021

TABLE OF CONTENTS

Page

INTRODUCTION .....................................................................................................1 

BACKGROUND .......................................................................................................2 

I.  The Parties’ FRAND Obligations and Licensing Negotiations ......................2 

II.  Ericsson Files Suit Alleging Samsung’s Breach of FRAND


Obligations and Seeking a Declaration That Ericsson Complied
with FRAND ....................................................................................................3 

III.  Samsung Secretly Files Suit in Wuhan, China and Obtains an Ex


Parte Anti-Suit Injunction Against U.S. Proceedings .....................................4 

IV.  The U.S. District Court’s Preliminary Injunction ...........................................6 

V.  Samsung Appeals and Moves To Expedite ...................................................10 

ARGUMENT ...........................................................................................................11 

I.  Samsung Fails To Show Good Cause To Expedite This Appeal ..................11

A. The Injunction Below Does Not Harm—or Impose Conflicting


Obligations on—Samsung...................................................................12

B. Samsung’s Remaining Arguments Fail ...............................................15

C. Samsung’s Own Conduct and Argument Prove Expedition Is


Unwarranted ........................................................................................16

II.  Expedition Would Prejudice Ericsson and the Public Interest ......................17 

CONCLUSION ........................................................................................................22 

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TABLE OF AUTHORITIES
Page(s)

CASES
ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc.,
694 F.3d 1312 (Fed. Cir. 2012) ....................................................................13, 16

Am. Axle & Mfg., Inc. v. Neapco Holdings LLC,


977 F.3d 1379 (Fed. Cir. 2020) .......................................................................... 13

Broadcom Corp. v. Qualcomm Inc.,


No. 09-1015, 2009 WL 2424407 (Fed. Cir. Jan. 30, 2009)................................ 22

Colo. River Water Conservation Dist. v. United States,


424 U.S. 800 (1976) ............................................................................................ 20

Huawei Techs., Co. v. Samsung Elecs. Co.,


No. 16 Civ. 2787, 2018 WL 1784065
(N.D. Cal. Apr. 13, 2018) ................................................................................... 20

In re Innovatio IP Ventures, LLC Patent Litig.,


No. 11 Civ. 9308, 2013 WL 5593609
(N.D. Ill. Oct. 3, 2013) ........................................................................................ 20

Interdigital Tech. Corp. v. Xiaomi Corp.,


I.A. 8772/2020 in CS(COMM) 295/2020 (High Ct. of Delhi
Oct. 9, 2020) (India) ........................................................................................... 20

Janvey v. Alguire,
647 F.3d 585 (5th Cir. 2011) .............................................................................. 17

Kyocera Wireless Corp. v. Int’l Trade Comm’n,


276 F. App’x 976 (Fed. Cir. 2008) ..................................................................... 21

Lockhart v. Fretwell,
506 U.S. 364 (1993) ............................................................................................ 17

Samsung Elecs. Co., Ltd. v. Telefonaktiebolaget LM Ericsson,


E 01 Zhi Min Chu No. 743 (Wuhan Intermediate People’s Ct.
Dec. 25, 2020) (China) .........................................................................5, 7, 14, 15

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SmithKline Beecham Corp. v. Apotex Corp.,


439 F.3d 1312 (Fed. Cir. 2006) .......................................................................... 17

Waste Mgmt., Inc. v. AIG Specialty Ins. Co.,


974 F.3d 528 (5th Cir. 2020) .............................................................................. 17

Xiaomi Commc’n Tech. Co. v. Inter Digital Holdings, Inc.,


E 01 Zhi Min Chu No. 169 (Wuhan Intermediate People’s Ct.
Sept. 23, 2020) (China) ....................................................................................... 20

RULES
Fed. R. App. P. 26(a)(1)(C) ..................................................................................... 18

Fed. R. App. P. 31 Advisory Committee Notes ....................................................... 17

Fed. Cir. Prac. Notes, Rule 27 ................................................................................. 11

OTHER AUTHORITIES
Hon. Richard J. Sullivan & David H. Tennant, 6 Bus. & Com. Litig.
Fed. Cts. (Robert L. Haig, ed., 4th ed., Dec. 2020 Update) ............................... 11

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INTRODUCTION
Samsung asks the Court to expedite this appeal, truncating Ericsson’s time

to file its response brief and jumping the queue for oral argument. But Samsung

fails to show that it will suffer any injury (much less irreparable injury) if the

appeal proceeds in the ordinary course. The anti-interference injunction at issue

here does not prevent Samsung from selling its products or address how Samsung

or its competitors conduct their business. Its sole effect is to ensure that two cases,

one in Wuhan and one in the United States, can both proceed. Samsung does not

suggest that litigating the U.S. case subjects it to injury.

Samsung instead urges that this “[C]ourt’s Practice Notes contemplate” that

cases involving injunctions are appropriate “for expedited treatment.” Fed.Cir.Dkt.

4 at 7 (“Mot.”). But the Practice Notes do not say that all injunctions qualify.

They merely recognize that injunctions may justify expedition because they can

have irreparable (market-altering) consequences. Here, however, Samsung does

not identify any action that it wishes to take but is barred from taking by the

district court’s injunction. Samsung’s claim that the district court’s anti-

interference injunction and the Wuhan court’s anti-suit injunction subject it to

“conflicting obligations,” Mot. 7, is false. Samsung does not identify any scenario

in which it cannot comply with both courts’ orders. Nor could it, as the Wuhan
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injunction addresses Ericsson’s conduct—it does not impose obligations on

Samsung at all.

Samsung may self-expedite this appeal by filing its opening and reply briefs

early. But there is no justification for shortening Ericsson’s time for preparing its

opposition brief. There is certainly no justification for Samsung allocating

Ericsson less time than Samsung provides itself. While Samsung suggests that

both parties would be given 28 days to prepare their principal briefs, its proposed

briefing schedule proceeds from “docketing.” Mot. 1. That gives Samsung 42

days to prepare its brief after issuance of the district court decision it is addressing,

but leaves Ericsson only 28 days after being served with the brief to which it must

respond. Samsung never explains how giving Ericsson the traditional amount of

time to prepare its brief will harm Samsung. Truncating Ericsson’s time will

disserve the interests of ensuring the Court receives properly considered briefing.

The motion should be denied.

BACKGROUND

I. THE PARTIES’ FRAND OBLIGATIONS AND LICENSING NEGOTIATIONS


Ericsson and Samsung both develop cellular technology and manufacture

cellular equipment. D.Ct.Dkt. 45 at 2 (“Op.”). Both also have substantial global

patent portfolios and have declared numerous patents “essential” to the European

Telecommunications Standards Institute’s (“ETSI”) 2G, 3G, 4G, and 5G cellular

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standards. Id.; D.Ct.Dkt. 17 ¶¶ 3, 5. Ericsson and Samsung have both contractual-

ly committed to license their standard-essential patents (“SEPs”) on fair, reason-

able, and non-discriminatory terms (“FRAND”) under ETSI’s Intellectual Property

Rights Policy. Op. 2; D.Ct.Dkt. 17 ¶¶ 3, 5. Ericsson’s FRAND commitment is

conditioned on reciprocity: It requires any party that itself has SEPs to provide

Ericsson a reciprocal license to its SEPs when seeking to obtain SEP licenses from

Ericsson. D.Ct.Dkt. 17 ¶ 3; see also D.Ct.Dkt. 30-6 ¶ 4.

Consistent with that, Ericsson and Samsung have in the past executed

reciprocal cross-licenses to each other’s 2G, 3G, and 4G SEPs, with their most

recent agreement running from 2014 through 2020. Op. 2. Anticipating the

expiration of that agreement, the parties negotiated for a year over the terms of a

renewed global cross-license. Id. Those negotiations were unsuccessful. Id.

II. ERICSSON FILES SUIT ALLEGING SAMSUNG’S BREACH OF FRAND


OBLIGATIONS AND SEEKING A DECLARATION THAT ERICSSON COMPLIED
WITH FRAND
This case arises from a suit Ericsson filed on December 11, 2020, in the

Eastern District of Texas—where Ericsson Inc. has its headquarters and Samsung

has a corporate office. Op. 3; D.Ct.Dkt. 1 ¶¶ 14, 22. The complaint alleges that

Samsung had breached its obligation to cross-license its SEPs to Ericsson on

FRAND terms. Op. 1-2; see D.Ct.Dkt.1 ¶ 7. Ericsson also sought a declaration

that it had complied with its own FRAND obligations in negotiating a cross-license

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with Samsung. D.Ct.Dkt. 1 ¶¶ 65-68. On January 1, 2021—after the parties’

cross-licenses expired—Ericsson filed an amended complaint asserting claims for

infringement of eight of its U.S. patents. D.Ct.Dkt. 17.

III. SAMSUNG SECRETLY FILES SUIT IN WUHAN, CHINA AND OBTAINS AN EX


PARTE ANTI-SUIT INJUNCTION AGAINST U.S. PROCEEDINGS
Despite having previously told a U.S. district court that the Chinese court

system is “antithetical to the United States judicial system,” and that “there’s no

due process requirements like the[re] are in this country,” D.Ct.Dkt. 11-11 at 4,

Samsung proceeded to sue Ericsson in China in the Wuhan Intermediate People’s

Court of Hubei Province on December 7, 2020, Op. 2. Ericsson was not notified of

the lawsuit. Op. 3. Unlike Ericsson’s U.S. suit, Samsung’s Wuhan suit sought a

“one-way” determination: Samsung did not put its own conduct or the cross-

license value of its own SEPs at issue; it instead asked the Wuhan court to set a

FRAND license rate only for Ericsson’s SEPs. See Op. 2, 11-12 & n.10.

On December 14, 2020—three days after Ericsson filed its U.S. suit—

Samsung filed a “Behavior Preservation Application” in the Wuhan court, asking it

to issue an anti-suit injunction to prevent Ericsson from seeking relief relating to its

4G and 5G SEPs anywhere else in the world. Op. 3; see D.Ct.Dkt. 30-4. Samsung

took affirmative steps to keep its application secret from Ericsson, asking the

Wuhan court to “hold the service” of the application until after the injunction

issued. Op. 3, 9; see D.Ct.Dkt. 30-2 at 2-3. Samsung told the Wuhan court that

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secrecy was necessary because of the probability that, if the application were

known, other courts would take action to prevent enforcement of the anti-suit

injunction in their jurisdiction. Op. 3. Samsung notified Ericsson of the existence

of the Wuhan lawsuit on December 17, 2020, but did not reveal the Behavior

Preservation Application. Id.

On December 25, 2020, the Wuhan court issued the anti-suit injunction.

Op. 4. The injunction prohibited Ericsson from “applying for any preliminary and

permanent injunctive relief or administrative measures” against Samsung relating

to its 4G and 5G SEPs from any other court or agency in the world. Op. 4-5; see

D.Ct.Dkt. 26-9 at 11-13. It also prohibited Ericsson from even seeking adjudica-

tion of “the licensing terms” for its 4G and 5G SEPs, including the “royalty

amount,” and whether Ericsson had “fulfilled [its] FRAND obligations” in

negotiating with Samsung. D.Ct.Dkt. 26-9 at 12. The anti-suit injunction required

Ericsson to “immediately withdraw or suspend such claims that have already been

filed,” id., and prohibited Ericsson from requesting that any other court order

Samsung to withdraw the application or prohibit it from seeking to enforce the

anti-suit injunction, id. at 12-13. The injunction was to remain in effect “[f ]or the

duration” of the Wuhan case. Id. at 11. The order would impose substantial fines

on Ericsson for violating the injunction. Op. 5; see D.Ct.Dkt. 26-9 at 14.

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The Wuhan court notified Ericsson of the anti-suit injunction on the day it

issued—December 25, 2020. Op. 5; see D.Ct.Dkt. 11-8. That was the first time

Ericsson learned that Samsung had requested an anti-suit injunction. See Op. 2-3.

IV. THE U.S. DISTRICT COURT’S PRELIMINARY INJUNCTION


On December 28, 2020, Ericsson filed an emergency application for a

temporary restraining order and preliminary injunction to prevent Samsung from

interfering with Ericsson’s pending action. D.Ct.Dkt.11. The district court granted

the TRO, and set the motion for preliminary injunction for a hearing. D.Ct.Dkt.

14. After receiving briefing and hearing oral argument from the parties, and

receiving two amicus briefs, the court issued an opinion and granted the

preliminary injunction on January 11, 2021. Op. 15-16.

The district court’s decision began by noting the “well established” principle

“that a federal court is empowered to issue injunctions to protect its jurisdiction.”

Op. 5. The court took pains to make clear, moreover, that “Ericsson is not seeking

an anti-suit injunction to prevent the Chinese Action from proceeding. Rather,

Ericsson is seeking an anti-anti-suit injunction (sometimes called an anti-

interference injunction) to prevent Samsung from attempting to enforce the

[Wuhan anti-suit injunction] and thereby interfering with [the U.S. district court’s]

exercise of its own jurisdiction.” Op. 7 (emphasis added). The court’s analysis

was guided by the Fifth Circuit’s multi-factor “Unterweser” test, which “weigh[s]

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the need to prevent vexatious or oppressive litigation and to protect the court’s

jurisdiction against the need to defer to principles of international comity.” Op. 6

(quotation marks omitted).

Applying those factors, the district court found that the Wuhan anti-suit

injunction would frustrate the interests of U.S. courts. The Wuhan injunction

would interfere with the district court’s “compelling interest in ensuring that litiga-

tion within its legitimate jurisdiction proceed in this forum.” Op. 8. The Wuhan

injunction would not merely “frustrate and delay the speedy and efficient deter-

mination of legitimate causes of action before [the district court],” but “prohibit[ ]

their adjudication” altogether. Op. 10-11. Indeed, the Wuhan court’s injunction

by its terms would bar litigation of “causes of action properly raised in this Court

and not raised in the Chinese Action” at all. Op. 11 (emphasis omitted).

The Wuhan court, by contrast, would not be adversely affected were

Ericsson’s U.S. suit allowed to proceed, as the claims before each court “are

different.” Op. 8. Even though the parties had been negotiating for a reciprocal

cross-license, Samsung in the Wuhan action requested a one-way rate

determination only for Ericsson’s 4G and 5G SEPs, excluding its own SEPs from

that case. Op. 11; see D.Ct.Dkt. 26-9 at 11-13. Ericsson, on the other hand, asked

the U.S. court “to look at the parties’ pre-suit negotiation conduct and determine

whether the parties breached or complied with their mutual FRAND obligations”

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to negotiate in good faith. Op. 11-12 (emphasis added). The “Wuhan Court is

asked to provide a number”—indeed, an Ericsson-only number—while “[t]his

Court is asked to evaluate conduct” by both parties. Op. 12. Because the issues

are different, the district court found, “the causes of action [in the U.S. court] have

no implication on the speedy and efficient determination of the issues raised before

the Wuhan Court.” Op. 11. “The Wuhan Court can continue to adjudicate the

claims that Samsung has brought before it, pursuant to its laws and its rules of civil

procedure.” Id. The fact that “both Courts can properly exercise jurisdiction over

the respective causes of action brought before them” weighed strongly in favor of

granting the anti-interference injunction. Op. 8.

The balance of hardships likewise favored issuing an anti-interference

injunction. Allowing Samsung to enforce the “sweeping provisions” of the Wuhan

anti-suit injunction would deprive Ericsson—“[w]ithout notice or opportunity to be

heard”—of its “right to attempt to obtain redress for claims it has the right to bring

under the laws of the United States.” Op. 9. Samsung, on the other hand, would

not suffer any hardship from proceeding in both courts. To the contrary, Samsung

“agreed on the record . . . that parallel actions are inevitable,” and had “readily

admitted” that Ericsson’s U.S. action was not “vexatious or oppressive” to

Samsung. Op. 10 (citing D.Ct.Dkt. 43 at 36:4-10, 76:18-21).

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The district court did not doubt that the “real motivation” and effect of the

Wuhan anti-suit injunction was to “put Ericsson in a weaker negotiating position

when it comes to cross licensing its 4G and 5G SEPs to both Samsung and others.”

Op. 10. Ericsson and Samsung had been negotiating reciprocal cross-licenses.

But the Wuhan injunction would give Samsung the upper hand by shielding

Samsung’s own SEPs and negotiating conduct from challenge by Ericsson, while

leaving Samsung free to attack Ericsson with impunity. The Wuhan court would

impose a one-way license rate on Ericsson’s SEPs—a rate other parties could

invoke in future negotiations with Ericsson—yet Ericsson would be barred from

seeking an adjudication of the cross-license value of Samsung’s SEPs. See Op. 11-

12.

The district court further explained that the Wuhan injunction would

“prevent Ericsson from seeking injunctive relief relating to its 4G and 5G SEPs in

any tribunal in the world except in the Wuhan Court,” while not similarly limiting

Samsung’s options. Op. 12. Samsung thus has since asserted its own patents

against Ericsson in the U.S. in the International Trade Commission (“ITC”), and

challenged Ericsson patents in the U.S. before the Patent and Trademark Office

(“PTO”), while precluding Ericsson from asserting its patents here. See pp. 19-20,

infra. Allowing Samsung to “seek redress of its claims” in the U.S., while “[tying]

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Ericsson’s hands from doing the same,” “would be the height of inequity (and

hypocrisy).” Op. 13.

The district court granted Ericsson’s request for an anti-interference

injunction. The injunction has three components. It requires that Samsung:

(1) “Take no action in the Chinese Action that would interfere with this
Court’s jurisdiction to determine whether Ericsson or Samsung have
met or breached their FRAND obligations” relating to their 4G and
5G SEPs or “with any other cause of action before this Court”;

(2) “Take no action in the Chinese Action that would deprive Ericsson”
of its “rights to assert the full scope” of U.S. patent rights “in the
United States”; and

(3) Indemnify Ericsson from fines or penal assessments incurred pursuant


to the enforcement of the Wuhan anti-suit injunction, but only as to
fines levied against Ericsson based on lawful litigation in the United
States of “claims relating to the 4G and 5G SEPs identified or
involved in this case.”

Op. 15 (footnote omitted).

V. SAMSUNG APPEALS AND MOVES TO EXPEDITE


Four days after the district court issued its anti-interference injunction,

Samsung filed a notice of appeal. D.Ct.Dkt. 56. Eleven days later, Samsung filed

a motion to expedite the briefing schedule and oral argument for the appeal. Mot.

Samsung requests that it file its opening brief on February 22, 2021 (28 days after

docketing; 42 days after the district court’s order); that Ericsson be required to file

its brief by March 22, 2021 (28 days after Samsung’s opening brief ); and that

Samsung file its reply on April 5, 2021 (14 days after Ericsson’s response).

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Mot. 1. This Court ordered Samsung to file its opening brief on February 22.

Fed.Cir.Dkt. 5.

ARGUMENT

Samsung fails to establish the “good cause” necessary to justify expedition,

to truncate Ericsson’s time to respond, and to push this case to the front of the

argument queue. Samsung does not identify anything it proposes to do that the

district court’s anti-interference injunction prevents. The injunction merely

prevents interference with U.S. proceedings. Samsung never identifies any harm it

will suffer from allowing the Wuhan case and U.S. litigation to proceed, as the

anti-interference injunction allows. And Samsung fails to justify truncating

Ericsson’s time to file a response.

I. SAMSUNG FAILS TO SHOW GOOD CAUSE TO EXPEDITE THIS APPEAL


“[M]otions to expedite proceedings are not routinely granted.” Fed. Cir.

Practice Notes to Rule 27. A case is “appropriate” for expedition only “where the

normal briefing and disposition schedule may adversely affect one of the parties.”

Id. Good cause generally requires showing the party will suffer “irreparable harm

. . . unless expedited review is permitted.” Hon. Richard J. Sullivan & David H.

Tennant, 6 Bus. & Com. Litig. Fed. Cts. § 60:87 (Robert L. Haig, ed., 4th ed., Dec.

2020 Update). But Samsung fails to show that it will suffer any harm—much less

irreparable harm—absent expedition of the appeal and truncation of Ericsson’s

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time for briefing under this Court’s Rules. Samsung’s own conduct undermines its

assertion that expedition is necessary.

A. The Injunction Below Does Not Harm—or Impose Conflicting


Obligations on—Samsung
1. Samsung’s primary argument seems to be that, because the district

court entered a preliminary injunction, “[t]his appeal is the type that this [C]ourt’s

Practice Notes contemplate for expedited treatment.” Mot. 7. The Practice Notes,

however, do not say that all preliminary injunctions qualify for expedition. They

merely recognize that injunctions often qualify because they can impose harm on

one party or the public during their duration, such as by preventing a party from

selling its products or altering how companies conduct their business.

But the anti-interference injunction issued below has no such effect. The

district court’s injunction merely preserves the status quo by “ensuring that

litigation within [a] legitimate jurisdiction” may “proceed in th[at] forum.” Op. 8.

Samsung may pursue its case in Wuhan, and the U.S. district court litigation may

proceed in parallel. Samsung nowhere argues it is irreparably harmed because the

U.S. proceedings are, as a result of the anti-interference injunction, permitted to

continue for the duration of an ordinary appeal. Samsung conceded in the district

court that parallel litigation in the U.S. was “inevitable,” and it “readily admitted”

that litigating the U.S. action is not “vexatious or oppressive” to Samsung. Op. 10

(citing D.Ct.Dkt. 43 at 36:4-10, 78:18-21). And any “[l]itigation costs” involved in

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such proceedings categorically “are not . . . irreparable harm”—which is why

Samsung has not pressed such costs as a basis for expedition. ActiveVideo Net-

works, Inc. v. Verizon Commc’ns, Inc., 694 F.3d 1312, 1337 (Fed. Cir. 2012); see

Am. Axle & Mfg., Inc. v. Neapco Holdings LLC, 977 F.3d 1379, 1381 (Fed. Cir.

2020) (“[c]ontinued litigation” is not irreparable harm).

Samsung offers the vague assertion that the district court’s anti-interference

injunction “limits its rights throughout the United States in any action Ericsson

may file on any 4G or 5G standard-essential patent in its portfolio.” Mot. 7. But

Samsung does not identify any action—not one—that it may wish to take that is

barred by the injunction. That speaks volumes.

2. Samsung declares that it is now subject to “conflicting obligations in

two courts.” Mot. 7. But Samsung never identifies any such conflicting

obligations, because there are none. The district court’s injunction requires that

Samsung (1) “[t]ake no action in the Chinese Action that would interfere with [the

district court’s] jurisdiction”; (2) “[t]ake no action in the Chinese Action that

would deprive Ericsson” of its rights to “assert the full scope” of U.S. patent rights

“in the United States”; and (3) “indemnify Ericsson” in the event Ericsson is fined

under the Wuhan anti-suit injunction. Op. 15.

Samsung never explains how any of those provisions are inconsistent with

an obligation it has in Wuhan. Not one requires Samsung to take any action

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now—two of the clauses require that Samsung refrain from taking action, and the

the indemnification provision is contingent on events that have not happened, and

may never happen. Moreover, the Wuhan court’s anti-suit injunction does not

impose any “conflicting obligations” on Samsung. It concerns Ericsson’s

actions—not Samsung’s. See D.Ct.Dkt. 26-9 at 11-13 (Wuhan order). Samsung

also overlooks that “the legal questions presented to each Court are different.” Op.

11-12 & n.10. The Wuhan proceeding Samsung initiated seeks to create a

forward-looking rate for Ericsson’s patents only. The U.S. case addresses the

conduct of both parties in their negotiations to consummate a cross-license. See

pp. 7-8, supra.1

Samsung more broadly urges that “[t]he district court’s order is [in] conflict

with the Chinese court’s order.” Mot. 8. But it cites no harm to Samsung from

that conflict, much less ongoing harm that will be remedied through expedition.

Any conflict is best addressed through due consideration and proper briefing. And

1
For that reason, it is not clear the decision in the Wuhan court will have any
impact on the parties. In seeking a one-way FRAND license for Ericsson’s SEPs
in Wuhan, Samsung kept its own FRAND obligations outside the case. D.Ct.Dkt.
11-15. But Ericsson has no contractual obligation to enter a one-way license with
Samsung. Because Ericsson checked a “reciprocity” box on the ETSI licensing
declaration form, D.Ct.Dkt. 30-6 ¶ 4, it has no obligation to enter into a one-way
FRAND rate with entities, like Samsung, that have relevant SEPs that could be
cross-licensed to Ericsson. The Wuhan court, moreover, cannot impose a contract
on the parties without their consent, and Ericsson gave no such consent. D.Ct.Dkt.
30 at 7-8.

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Samsung again has failed to identify even one action that it wishes to take but is

prohibited from taking as a result of the purported “uncertainty for the parties”

resulting from that conflict. Mot. 8-9.

B. Samsung’s Remaining Arguments Fail


Samsung’s remaining assertions fare worse still. Many are non-sequiturs.

For example, Samsung notes that, since January 1, 2021, Ericsson has filed

lawsuits against Samsung seeking injunctive relief for infringement of (1) patents

that are not standard-essential (2) in “Belgium, Germany, and the Netherlands.”

Mot. 8 (emphasis added). But Samsung never explains why suits addressing

patents that are not SEPs are relevant. The Wuhan anti-suit injunction does not

address non-standard-essential patents, D.Ct.Dkt. 26-9 at 3, 11-13, so those actions

are all beside the point. And the U.S. anti-interference injunction does not address

anything outside of the U.S., Op. 15, rendering the Belgian, German, and Dutch

actions doubly irrelevant. Nowhere does Samsung say how this appeal can have

any effect on those suits regardless of how it is decided. A fortiori, they are

immaterial to when this appeal is briefed and decided.

Samsung says it “anticipates that further suits seeking injunctive relief on

standard-essential patents at issue in the Chinese action will follow.” Mot. 8. That

is pure speculation. Any suits outside the U.S., moreover, would be unaffected by

the U.S. anti-interference injunction if they were ever filed. Regardless, Samsung

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can point to no existing effects from the U.S. anti-interference injunction that

require expedition of this appeal now.

Finally, Samsung points to the fact that, under the U.S. anti-interference

injunction, it “must indemnify Ericsson against any monetary sanctions” that might

be imposed by the Wuhan court. Mot. 8. Whether and when any such sanctions

might be imposed is also pure speculation—Samsung never suggests they are

likely, much less imminent. Regardless, “[s]traight-forward monetary harm . . . is

not irreparable.” ActiveVideo, 694 F.3d at 1338. If Samsung has to pay an

indemnity while this appeal is pending, and prevails on appeal, monetary relief can

make Samsung whole. There is no current adverse effect to Samsung from the

district court’s injunction that warrants expedition of this appeal.

C. Samsung’s Own Conduct and Argument Prove Expedition Is


Unwarranted
Samsung’s own conduct belies its claimed need for expedition. Samsung

did not file its notice of appeal until four days after the district court issued the

injunction, and eleven more days passed before Samsung sought expedition.

Fed.Cir.Dkt. 4. Samsung then proposed a briefing schedule giving itself until Feb-

ruary 22, 2021 to file its opening brief. Mot. 1. While that is “28 days after dock-

eting,” id., the proposed deadline gives Samsung 42 days to prepare its brief after

the district court’s January 11, 2021 decision. Nor is Samsung’s proposal to file its

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reply brief in 14 days a sign of alacrity. That was the default period for reply

briefs until 2018. See Fed. R. App. P. 31 Advisory Committee Notes.

Samsung, moreover, declines to even mention the merits. It identifies no

legal error in the decision below, and likewise ignores the “deferential standard”

this Court would apply in reviewing the injunction. Janvey v. Alguire, 647 F.3d

585, 591-92 (5th Cir. 2011). Absent reason to believe the district court’s decision

will be reversed, there can be no cognizable harm from proceeding in the ordinary

course. The supposed victim of a correct decision “suffer[s] no prejudice.” Lock-

hart v. Fretwell, 506 U.S. 364, 372 (1993). Having failed to offer any attack on

the decision below in its motion, Samsung cannot concoct one for the first time on

reply when Ericsson cannot respond. See SmithKline Beecham Corp. v. Apotex

Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006); Waste Mgmt., Inc. v. AIG Specialty

Ins. Co., 974 F.3d 528, 533 n.2 (5th Cir. 2020).

II. EXPEDITION WOULD PREJUDICE ERICSSON AND THE PUBLIC INTEREST


Expedition is particularly unwarranted here because it would harm

Ericsson’s and the public’s interest in being heard on matters of importance.

A. As explained above, Samsung’s proposed schedule would give it 42

days from the district court’s decision to prepare its opening brief, but offer

Ericsson only 28 days to prepare a response after being served with the Samsung

brief it must oppose. Mot. 1. That is 14 days less than Ericsson would have under

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the ordinary rules.2 Samsung nowhere explains why those 14 days would make a

difference to any putative injury.

By contrast, denying Ericsson the traditional amount of time threatens

serious prejudice. Ericsson’s counsel is heavily engaged in pressing matters, both

before this Court and other courts of appeals, as well as a March 1 Supreme Court

argument, during the truncated period Samsung proposes.3 The thorough 15-page

decision below, moreover, addresses a hearing transcript that is over 100 pages,

two amicus briefs, and an extensive evidentiary record. There is no compelling

reason to deny Ericsson the ordinary period of time for preparing its response

(including the possibility of a short extension if one proves necessary).

2
Samsung describes this as 12 days shorter than the default 40-day period, Mot. 9,
but overlooks a difference: Because the 40-day mark would fall on a weekend,
Ericsson would otherwise have until Monday, April 5, 2021—42 days total—to
respond. See Fed. R. App. P. 26(a)(1)(C).
3
Counsel must prepare a merits-stage reply brief in United States v. Arthrex, Inc.,
Nos. 19-1434 et al. (U.S.), due on February 19, 2021, and prepare for a Supreme
Court argument in that case, scheduled for March 1, 2021. Other matters include
the preparation of a petition for a writ of certiorari seeking review in Ericsson Inc.
v. TCL Communication Technology Holdings, Ltd., No. 18-2003 (Fed. Cir.), due
on February 12, 2021; preparation of a petition for rehearing in Esparraguera v.
Army, No. 19-2293 (Fed. Cir.), currently due on February 18, 2021; preparation of
an opening brief in Uniloc 2017 LLC v. Google LLC, No. 21-1498 (Fed. Cir.),
currently due on March 8, 2021; preparation of an appellee response brief in
Continental Automotive Systems, Inc. v. Avanci, L.L.C., No. 20-11032 (5th Cir.),
currently due on March 10, 2021; preparation of an appellee response brief in
Chesapeake Energy Marketing, L.L.C. v. FERC, No. 20-60970 (5th Cir.), currently
due on March 12, 2021; and preparation of an opening brief in Uniloc USA, Inc. v.
Motorola Mobility LLC, No. 21-1555 (Fed. Cir.), currently due on March 22, 2021.

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B. Expedition would also undermine the public interest, as well as this

Court’s interest in being fully apprised of the larger context of the matter before it.

While Ericsson believes the decision below is correct—and Samsung has offered

no contrary argument—the issues arising from parallel foreign litigation are of

significant interest beyond the parties. Samsung told a U.S. district court that the

Chinese court system is “antithetical to the United States judicial system,” and

“there’s no due process requirements like the[re] are in this country.” D.Ct.Dkt.

11-11 at 4. Yet it filed a suit there and sought an ex parte injunction to foreclose

co-pending U.S. litigation. The district court thus did “not disagree” that “the real

motivation behind” Samsung’s decision to obtain the anti-suit injunction from the

Wuhan court was to disadvantage Ericsson in cross-license negotiations. Op. 10.

Indeed, since the Wuhan anti-suit injunction issued, Samsung has sought to

gain the upper hand by bringing litigation in the very U.S. forums it would deny to

Ericsson. Samsung has filed a complaint in the U.S. ITC seeking injunctive relief

against Ericsson for alleged infringement of Samsung’s patents. See Certain

Wireless Communications Equipment and Components Thereof, Inv. No. 337-TA-

3522 (Jan. 7, 2021). And it has filed for inter partes review before the U.S. PTO

to invalidate Ericsson SEPs covered by the Wuhan anti-suit injunction, including

two patents at issue in this case. See Samsung Elecs. Co. v. Telefonaktiebolaget

LM Ericsson, IPR Nos. 2021-487, -447, -446, 486 (Jan. 29, 2021).

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The strategy Samsung deployed here—filing a secret action in Wuhan and

then seeking to suppress litigation in forums it perceived as more hospitable to

patent-holders—reflects a pattern affecting the entire patent-holding community.4

For example, in Xiaomi Communication Technology Co. v. Inter Digital Holdings,

Inc., a Chinese phone manufacturer, Xiaomi, filed a preemptive, ex parte FRAND

suit against InterDigital, a U.S. cellular patent holder, in the Wuhan court and ob-

tained an anti-suit injunction similar to the one Samsung obtained here. See

D.Ct.Dkt. 11-7 at 3, 10-11 (order of Wuhan court). The court in Delhi, where such

claims were pending, decried the “manner in which” the Wuhan court proceeded

and Xiaomi’s tactics as “less than fair” and “rather disturbing.” D.Ct.Dkt. 11-2

¶ 56 (order of Delhi court). Just like in Inter Digital, neither Ericsson nor the lower

court was given notice that the Wuhan court was preparing to paralyze a patent

holder’s ability to protect its intellectual property rights, including U.S. rights, out-
4
Samsung asserts that suing in Wuhan was reasonable because it is one of only
two courts in the world that will adjudicate a FRAND rate without consent of both
parties. Mot. 2-3. But Samsung rejected Ericsson’s offer of binding arbitration.
D.Ct.Dkt. 1 ¶¶ 42-43. Samsung’s new rationalization is thus mere pretense. Be-
sides, U.S. courts can adjudicate whether a global offer complies with a FRAND
obligation. See, e.g., Huawei Techs., Co. v. Samsung Elecs. Co., No. 16 Civ. 2787,
2018 WL 1784065, at *9 (N.D. Cal. Apr. 13, 2018). Such claims are contractual
matters subject to federal jurisdiction, which this Court has a “virtually unflagging
obligation” to address. Colo. River Water Conservation Dist. v. United States, 424
U.S. 800, 817 (1976); cf. In re Innovatio IP Ventures, LLC Patent Litig., No. 11
Civ. 9308, 2013 WL 5593609, at *6 (N.D. Ill. Oct. 3, 2013) (assessing “the
technical contribution of the patent portfolio as a whole to the standard” to resolve
FRAND dispute).

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side of China. D.Ct.Dkt. 11-12 ¶ 8. Whether or when such tactics may proceed

unaddressed is of significant concern to patentees, who may wish to participate in

this case as amici.

Below, amici addressed “whether the Wuhan court’s procedures provide . . .

sufficient notice and due process.” D.Ct.Dkt. 29 at 3 (amicus brief by the

Honorable Paul R. Michel (ret.)); see also D.Ct.Dkt. 32 at 2 (amicus brief by

Professor Adam Mossoff of the Antonin Scalia Law School at George Mason Uni-

versity, addressing due process and other concerns related to worldwide anti-suit

injunctions). Professor Mossoff sought to address whether Chinese national indus-

trial policy affects the adjudication of FRAND rates by driving them lower.

D.Ct.Dkt. 32 at 2-3. Even broader amicus participation can be expected in this

Court. This Court should not adopt a schedule that makes amicus contributions

impossible or chaotic.

* * * * *

Samsung “may, of course, self-expedite” its opening and reply briefs,

including by filing earlier than in its proposed schedule. Kyocera Wireless Corp.

v. Int’l Trade Comm’n, 276 F. App’x 976, 977 (Fed. Cir. 2008). Ericsson has no

objection to this Court’s usual course of placing this appeal on the next available

oral argument calendar after briefing is completed. But Samsung has not shown

why Ericsson’s time “to file its briefs should be shortened or that oral argument

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should be expedited” further. Broadcom Corp. v. Qualcomm Inc., No. 09-1015,

2009 WL 2424407, at *1 (Fed. Cir. Jan. 30, 2009).

CONCLUSION

Samsung’s motion to expedite briefing and oral argument should be denied.

February 3, 2021 Respectfully submitted,

/s/ Jeffrey A. Lamken


Theodore Stevenson, III Jeffrey A. Lamken
Nicholas M. Mathews Counsel of Record
MCKOOL SMITH, P.C. Michael G. Pattillo, Jr.
300 Crescent Court, Suite 1500 Rayiner I. Hashem
Dallas, TX 75201 James A. Barta
(214) 978-4000 (telephone) MOLOLAMKEN LLP
(214) 978-4044 (facsimile) The Watergate, Suite 500
600 New Hampshire Avenue, N.W.
Christine M. Woodin Washington, D.C. 20037
MCKOOL SMITH, P.C. (202) 556-2000 (telephone)
300 S. Grand Avenue, Suite 2900 (202) 556-2001 (facsimile)
Los Angeles, CA 90071 jlamken@mololamken.com
(213) 694-1200 (telephone)
(213) 694-1234 (facsimile) Eugene A. Sokoloff
Elizabeth K. Clarke
Blake H. Bailey MOLOLAMKEN LLP
MCKOOL SMITH, P.C. 300 N. LaSalle Street
600 Travis Street, Suite 7000 Chicago, IL 60654
Houston, TX 77002 (312) 450-6700 (telephone)
(713) 485-7300 (telephone) (312) 450-6701 (facsimile)
(713) 485-7344 (facsimile)
Jennifer E. Fischell
Samuel F. Baxter MOLOLAMKEN LLP
MCKOOL SMITH, P.C. 430 Park Avenue
104 E. Houston Street, Suite 300 New York, NY 10022
Marshall, TX 75670 (212) 607-8160 (telephone)
(903) 923-9000 (telephone) (212) 607-8161 (facsimile)
(903) 923-9099 (facsimile)

Counsel for Ericsson Inc. and Telefonaktiebolaget LM Ericsson

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Case: 21-1565 Document: 9 Page: 32 Filed: 02/03/2021

CERTIFICATE OF COMPLIANCE
1. This response complies with the type-volume limitation of Fed. R. App. P.
27(d)(2)(A) because this response contains 5,172 words, excluding the parts
of the motion exempted by Fed. R. App. P. 27(d)(2) and Fed. R. App. P.
27(a)(2)(B).

2. This response complies with the typeface requirements of Fed. R. App. P.


32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because
this motion has been prepared in a proportionally spaced typeface using
Microsoft Word in Times New Roman 14-point font.

February 3, 2021 /s/ Jeffrey A. Lamken


Jeffrey A. Lamken