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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.

Appeal from the U.S. District Court for the Southern District
of Texas, No. 2:20-CV-380, Judge J. Rodney Gilstrap

REPLY IN SUPPORT OF APPELLANTS’ MOTION TO


EXPEDITE BRIEFING AND ORAL ARGUMENT

Gregory S. Arovas John C. O’Quinn


KIRKLAND & ELLIS LLP F. Christopher Mizzo
601 Lexington Avenue William H. Burgess
New York, NY 10022 KIRKLAND & ELLIS LLP
(212) 446-4800 1301 Pennsylvania Ave., N.W.
Washington, DC 20004
(202) 389-5000
Counsel for Appellants
February 8, 2021
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TABLE OF CONTENTS

Introduction ................................................................................................ 1

1. The District Court’s Injunction Severely Prejudices Samsung


in a Global Dispute, Nullifies a Foreign Court’s Order, and
Warrants an Expedited Appeal. ....................................................... 3

2. Ericsson’s Conduct Belies Its Opposition. ...................................... 10

3. Samsung’s Proposed Schedule is Reasonable and Does Not


Prejudice Ericsson. .......................................................................... 11

4. Ericsson’s Opposition to Scheduling Oral Argument


Promptly Demonstrates That Ericsson Seeks Delay for
Tactical Gain. .................................................................................. 14

Conclusion ................................................................................................. 14

ATTACHMENTS

Note: Attachments A-C are appended to Samsung’s opening motion.

September 27, 2020, letter from Ericsson to Samsung


D
proposing arbitration

November 10, 2020, response from Samsung to Ericsson’s


E
arbitration proposal

January 18-22, 2021, exchange of letters between Ericsson and


F Samsung’s counsel re: Ericsson’s accusation of “potential
violation of TRO and preliminary injunction”

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INTRODUCTION

Ericsson’s opposition is long on rhetoric but short on substance. It

disparages another sovereign’s courts and procedures, while inviting

this Court to treat the imposition on international comity, and punitive

measures against Samsung, as a run-of-the-mill case.

Given the injunction’s scope, stakes, and direct conflict with a

foreign court’s legitimate order in a legitimate proceeding, it is unclear

why Ericsson would oppose expedited briefing and argument here.

Ericsson’s opposition is especially puzzling after its conduct in the

Eastern District of Texas to obtain the injunction. Below, Ericsson

requested expedited action, and got it. Ericsson moved ex parte on an

“emergency” basis and received a TRO at 10:00am that same morning,

the Monday after Christmas. (Attach.B at 4).1 Then it received an

injunction after briefing that took nine days from start to finish,

with Samsung ordered to file its opposition on New Year’s Day, and

appear at an in-person hearing. Ericsson argued then that the court

and Samsung should act quickly. But now that Ericsson has the

injunction (and leverage) it wanted, it argues the resulting appeal

1Attachments A-C are attached to Samsung’s opening motion.


Attachments D-F are attached to this reply.

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should proceed slowly. Ericsson asserts that a 70-day schedule would

somehow deprive this Court of “properly considered briefing,” (Opp.2),

and that the same considerations that warranted extreme haste below

are insignificant after all.

Ericsson’s arguments opposing Samsung’s modest request should

be seen for what they are: delay to extract negotiation leverage in the

midst of a global dispute, triggered by the December 31 expiration of

the parties’ worldwide cross-license. Having gotten everything it

wanted from the Eastern District of Texas, Ericsson would like to slow-

walk this appeal, even as it files one patent suit after another around

the world. Indeed, the district court’s injunction is explicitly designed

to strengthen Ericsson’s “negotiating position” in that broader conflict

(Attach.A at 10, 14 (“risk of unbalanced economic pressure”)), by

undoing provisions of a Chinese court’s order and preventing Samsung

from enforcing others. The injunction not only prevents the Chinese

court from enforcing its own order, by requiring Samsung to indemnify

Ericsson against fines, but Ericsson is using it to hamstring Samsung in

even responding to Ericsson’s pleadings in China.

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Samsung’s motion should have been unopposed. Samsung

promptly appealed, and proposed a modestly expedited schedule that

places nearly all the burden of expediting on Samsung and asks the

Court to schedule oral argument at the next available session.

Ericsson’s “prejudice” arguments are makeweight.

Perhaps the clearest evidence that Ericsson seeks delay for

tactical advantage is its refusal even to consent to prompt scheduling of

oral argument. Ericsson gives no reason, and does not suggest that

prompt scheduling would prejudice anyone, but opposes nonetheless.

Samsung’s motion should be granted, and Ericsson fails to show

otherwise.

1. The District Court’s Injunction Severely Prejudices


Samsung in a Global Dispute, Nullifies a Foreign Court’s
Order, and Warrants an Expedited Appeal.

A motion to expedite “is appropriate when the normal briefing and

disposition may adversely affect one of the parties, as in appeals

involving preliminary or permanent injunctions….” Fed.Cir.R. 27

Practice Note. The district court’s order repeats several times that it is

designed to strengthen Ericsson’s negotiating position in a worldwide

dispute with Samsung, before concluding with three provisions that do

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just that and that nullify portions of a foreign court order. Attach.A at

12, 14-15. Expediting briefing and argument should be uncontroversial.

Ericsson, however, digresses at length into the merits of the appeal, and

spins a misleading tale to contend that Samsung is somehow not

adversely affected by the injunction (Opp.12-16), and thus to try to slow

down the appeal. Ericsson is wrong.

Samsung and Ericsson each committed to license their 4G and 5G

standard-essential patents on FRAND terms, as part of the standard-

setting process. All agree that the underlying dispute here concerns

Samsung and Ericsson’s negotiations toward a worldwide cross-license

to FRAND-encumbered standard-essential patents. The preexisting

license expired December 31, 2020, negotiations toward a new license

stalled, and litigation ensued.

Samsung and Ericsson are multinational companies

headquartered in Korea and Sweden, and the dispute concerned a

worldwide portfolio. Samsung filed first in China, where both parties

have substantial operations. Samsung asked that court to enforce

Ericsson’s FRAND commitment by setting a rate for Ericsson’s global

portfolio of 4G and 5G standard-essential patents. (E.D.Tex.Dkt.#26-9).

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Ericsson calls Samsung’s complaint “secret” because Ericsson did not

receive immediate service. (Opp.4). No such requirement exists.

American plaintiffs presumptively have 90 days to serve complaints.

Fed.R.Civ.P. 4(m). In China, the court performs service, often by mail,

and Samsung notified Ericsson as a courtesy 10 days after filing.

E.D.Tex.Dkt.#26-12 at 6-7 & n.11 (¶13), E.D.Tex.Dkt.#11-12 (¶6).

Despite its rhetoric, Ericsson has never disputed Samsung’s showing

that it complied with Chinese law and practice.

Ericsson quotes an older pleading, without context, to disparage

the Chinese judiciary, but it has never disputed Samsung’s showing

that China provides a fair forum. E.D.Tex.Dkt#26-12 at 3-10 (Kong

Decl.); E.D.Tex.Dkt#26-13 at 1-3 (Rader Decl.). Indeed, Ericsson stated

below that “the fairness of Chinese courts is not at issue.”

E.D.Tex.Dkt#30 at 8. China is one of two jurisdictions that sets

worldwide FRAND rates without requiring all parties’ consent—which

is an approach Ericsson has forcefully endorsed.2 In the landmark case

2
Ericsson notes, “U.S. courts can adjudicate whether a global offer
complies with a FRAND obligation,” (Opp. 20 n.4), but ignores that U.S.
courts do not set global FRAND rates without the parties’ consent. E.g.,
Apple, Inc. v. Motorola Mobility, 2012 WL 5943791, at *2 (W.D. Wis.
2012) (dismissing case where Apple did not agree to be bound by rate).

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in the other such jurisdiction, Ericsson intervened to urge the UK

Patent Court to set a worldwide FRAND rate for a patentee’s portfolio

of FRAND-encumbered standard-essential patents. E.D.Tex.Dkt.#37-1

at 10 ¶31. Ericsson argued that the alternative of piecemeal country-

by-country litigation would be “unworkable,” and against industry

practice and standard-setting organization policy. Id. The UK Patent

Court agreed, and the Chinese patent courts followed suit in later cases.

E.D.Tex.Dkt.#26-12 at 4-5 (¶9). Samsung’s filing asked the Chinese

courts to do here what Ericsson had urged the UK courts to do in 2017.

E.D.Tex.Dkt.#26-9.3 Now that it does not like the forum where

Samsung’s first-filed action was brought, Ericsson argues the opposite.

Samsung also asked the Chinese court to enter an antisuit

injunction to prevent Ericsson from filing duplicative claims or seeking

injunctive relief in other forums on the underlying standard-essential

patents. E.D.Tex.Dkt.#30-4. Ericsson calls that procedure “secret,” but

Huawei involved U.S. patents, and Innovatio proceeded with the


parties’ consent.
3 Ericsson cites its “offer of binding arbitration,” (Opp.20 n.4), but it

omits any substance, including Samsung’s response to that “offer”


explaining Ericsson’s one-sided proposal would have eliminated any
appeal right and had the arbitrator determine a “maximum royalty”
rather than a “reasonable royalty.” (See Attachments D and E). After
Samsung explained those defects, Ericsson refused to engage further.

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ignores the law. In limited circumstances, Chinese and American

courts may restrain parties without notice, before providing an

opportunity to be heard. The process Samsung followed in China is not

meaningfully different from the process Ericsson followed in Texas,

except that Samsung provided evidence to support a pre-notice order,

and posted a security deposit. Compare Fed.R.Civ.P. 65(d),

E.D.Tex.Dkt.#11 at 19 (Ericsson arguing against advance notice); with

E.D.Tex.Dkt.#30-2 at 3; #30-3 (Samsung arguing against advance

notice, with evidence); E.D.Tex.Dkt.#26-12 at 8-10 (explaining

procedure in China)).

The antisuit injunction (Attach.C) is not meaningfully different

from injunctions American courts have granted and affirmed on appeal.

Ericsson’s suggestion that Samsung has demonstrated no possible error

in the Eastern District of Texas order thwarting that injunction is thus

perplexing. As Samsung has explained, it is common practice in

American courts and elsewhere, where a court has jurisdiction to

enforce a patentee’s commitment to license patents on FRAND terms, to

protect its jurisdiction by preventing duplicative FRAND claims or

injunctive claims on the underlying patents. See, e.g., Microsoft Corp. v

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Motorola, Inc., 696 F.3d 872, 885 (9th Cir. 2012); TCL Commc’n Tech.

Holdings v. Telefonaktiebolaget LM Ericsson, S.D. Cal. No. 14-CV-341

(July 10, 2015) (Dkt. 284); Huawei Techs. v. Samsung Elecs. Co., 2018

WL 1784065 (N.D. Cal. 2018). A duplicative FRAND claim in another

court would interfere directly if another court set a different rate. An

injunction in another court would interfere indirectly by forcing the

enjoined party to accept a licensing demand before the FRAND claim

could be adjudicated. The Chinese court’s injunction follows the same

reasoning, enters an injunction of similar scope, and permits Ericsson to

seek reconsideration (which Ericsson has done). (Attach.C).

The district court’s injunction self-evidently harms Samsung by

undoing the Chinese court’s injunction, to boost Ericsson’s negotiating

leverage. (Attach.A at 12, 14). Ericsson’s duplicative claims in Texas

plainly threaten to interfere with Samsung’s claims in China. Samsung

asks the Chinese court to set a global FRAND rate. Ericsson’s

complaint asks the court to declare that Ericsson’s global-licensing-offer

rates are FRAND, E.D.Tex.Dkt.#1 at 22 ¶86, and that Ericsson no

longer has FRAND obligations to Samsung. Id. at 19 ¶77. The district

court enjoins Samsung from taking any action in China to hinder

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Ericsson’s duplicative claims, and orders Samsung to indemnify

Ericsson—giving Ericsson license to flout the Chinese order, at

Samsung’s expense. (Attach.A at 15). The court also invites Ericsson to

seek injunctions on standard-essential patents—which, as just

explained, threatens further interference. (Id.). When Ericsson refers

to Samsung’s ITC action (Opp.9-10), it repeats the district court’s

mistake of believing that action concerns standard-essential patents. It

does not. It concerns non-standard-essential patents and follows a

similar ITC action Ericsson filed against Samsung. E.D.Tex.Dkt#47.

The face of the injunction refutes Ericsson’s suggestion that

Samsung is unaffected. (Opp.13). Indeed, it is questionable whether

Samsung can even respond to Ericsson’s reconsideration pleadings in

China without being accused of violating the Eastern District of Texas

order. That concern is not hypothetical: Ericsson has leveled such

accusations at Samsung based on its apparent confusion over how the

Chinese court processed Samsung’s security deposit. (Attach.F). And

these concerns are not limited to potential interference with the

Eastern District of Texas action. The district court has now positioned

itself as the nationwide monitor over any actions the Chinese court may

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take relating to any Ericsson activity in any forum in the United States.

(Attach.A at 15). Whatever one thinks of the order, its nationwide scope

goes far beyond protecting its own jurisdiction. That alone warrants

expedited review.

2. Ericsson’s Conduct Belies Its Opposition.

Ericsson’s opposition is further belied by its conduct in district

court. Ericsson obtained a TRO and injunction on an “emergency”

basis, on an extremely expedited schedule including an in-person

hearing in Texas. Ericsson moved ex parte, (E.D.Tex.Dkt.#11 at 19) on

December 28, and received a TRO at 10:00 that same morning.

(Attach.B). Samsung had to file its opposition by 5:00 pm New Year’s

Day, on four days’ notice. Id. Full briefing took nine days from start

to finish. Ericsson never suggested then that the “public interest” or

any other considerations warranted a longer schedule. Nor did it

suggest that the relief it sought was unimportant or inconsequential.

But now that Ericsson has the injunction it wanted, its tune has

changed, and it insists on slow-walking Samsung’s appeal—even

opposing prompt scheduling of oral argument. According to Ericsson,

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the relief it sought on an emergency basis actually “does not harm”

Samsung. (Opp.12).

When Ericsson faced the prospect of fines from the Chinese court,

it asked the Eastern District of Texas to move quickly and require

immediate indemnity. (E.D.Tex.Dkt.#11 at 5, 15). But now that

Samsung bears the consequences of Ericsson’s actions, that same threat

of fines has become “pure speculation,” “contingent on events that have

not happened and may never happen,” and “straight-forward monetary

harm” that can always be recovered later. (Opp.14, 18). The schedule

Samsung requests here is far less expedited than the schedule Ericsson

obtained below. Ericsson’s emergency application and conduct below

rebut any suggestion that its current opposition is anything but

gamesmanship.

3. Samsung’s Proposed Schedule is Reasonable and Does Not


Prejudice Ericsson.

Ericsson’s criticisms of Samsung’s “conduct” and proposed

schedule border on frivolous. Samsung appealed promptly, four days

after the injunction issued. Consistent with this Court’s Rules,

Samsung filed its motion for expedited briefing the day after the appeal

was docketed, within hours of Ericsson responding that it opposed. See

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Fed.Cir.R.27(a)(2); Practice Note. In contrast to the rushed proceedings

below, Samsung’s proposed schedule is modestly expedited and places

nearly all the burden of expedition on Samsung. Samsung’s time to

prepare its opening brief is more than cut in half (28 days from

docketing instead of 60). Ericsson’s response is due only 12 days early

(28 days instead of 40).

Deadlines Under the Rules Proposed Schedule


Samsung’s 60 days from docketing 28 days from docketing
opening brief (Fed.Cir.R. 31(a)(1)(A))
Ericsson’s 40 days from opening brief 28 days from opening brief
response brief (Fed.Cir.R. 31(a)(2))
Samsung’s 21 days from response brief 14 days from response brief
reply brief (Fed.R.App.P. 31(a)(1))

Under the Federal Appellate Rules default, Fed.R.App.P. 31(a)(1),

Ericsson’s brief would be due 30 days after Samsung’s. Ericsson cannot

reasonably contend that Samsung’s proposal is prejudicial.

Given the injunction’s scope and comity implications, and the

schedule below, Samsung’s proposal should have been unopposed.

Ericsson’s suggestions of “prejudice” are unsound. This interlocutory

appeal is from a 15-page injunctive order that followed a truncated

schedule to accommodate Ericsson’s haste. (Attachments A&B).

Ericsson notes the transcript is “over 100 pages” (Opp.18). The objection

is trivial. Those double-spaced, wide-margin pages recount a 2.5-hour

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hearing, surely a fraction of the time Ericsson’s counsel spent writing

its opposition to this motion. Ericsson’s footnote listing other

obligations is bloated—e.g., it lists three February deadlines that fall

during Samsung’s time to prepare its opening brief—and ultimately

insignificant for an opposition signed by twelve attorneys. (Opp.18 n.3).

Ericsson raises the specter of “a schedule that makes amicus

contributions impossible or chaotic,” (Opp.21), which is remarkable

after Ericsson’s current appellate counsel filed an amicus brief for

another party in support of Ericsson during the nine-day briefing

window below. Regardless, Samsung does not propose to shorten

amicus deadlines at all. Fed.R.App.P. 29(e) and the identical deadline

under Supreme Court Rule 37.3(a) for merits-stage amici have applied

for decades without any suggestion that amicus practice across the

country is “impossible or chaotic.” Finally, Ericsson cannot resist

sniping at Samsung’s proposal to file its reply brief 14 days after

Ericsson’s response, (Opp.16-17), but that leaves Samsung only a week

to review Ericsson’s promised amicus briefs. Samsung’s schedule is

eminently reasonable, and Ericsson fails to show otherwise.

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4. Ericsson’s Opposition to Scheduling Oral Argument


Promptly Demonstrates That Ericsson Seeks Delay for
Tactical Gain.

Perhaps the clearest evidence that Ericsson seeks delay for

procedural advantage is Ericsson’s refusal even to consent to prompt

scheduling of oral argument. Consistent with this Court’s Rule 27

Practice Note, the Court has regularly expedited oral argument in

injunction appeals, and has even done so after denying an initial motion

to expedite. See Intellectual Ventures II LLC v. JPMorgan Chase & Co.,

Fed. Cir. 14-1724, ECF#56 (Nov. 5, 2014).

Ericsson admits it “has no objection to this Court’s usual course of

placing this appeal on the next available oral argument calendar after

briefing is completed.” (Opp.21). But it rephrases Samsung’s request

as “jumping the queue” (Opp.1, 11), and opposes based on that rhetoric

alone. The Court should schedule oral argument promptly and enter an

expedited schedule. At minimum, it should prohibit extensions for

Ericsson’s brief.

CONCLUSION

Samsung respectfully requests that the Court grant the motion to

expedite.

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Respectfully submitted,

February 8, 2021 /s/ John C. O’Quinn


Gregory S. Arovas John C. O’Quinn
KIRKLAND & ELLIS LLP F. Christopher Mizzo
601 Lexington Avenue William H. Burgess
New York, NY 10022 KIRKLAND & ELLIS LLP
(212) 446-4800 1301 Pennsylvania Ave., N.W.
Washington, DC 20004
(202) 389-5000
Counsel for Appellants

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CERTIFICATE OF COMPLIANCE
WITH TYPE-VOLUME LIMITATION

This motion complies with the type-volume limitations of the

Federal Rules of Appellate Procedure and the Rules of this Court.

Excluding portions exempted by the Rules, this motion contains 2590

words.

/s/ John C. O’Quinn


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ARBITRATION AGREEMENT

This Arbitration Agreement (also “this Agreement”) is made as of [[Insert Effective Date]] (the
“Effective Date”) by and between TELEFONAKTIEBOLAGET LM ERICSSON (PUBL)
(“Ericsson”), a Swedish corporation having its principle place of business at SE-164 83
Stockholm, Sweden, and SAMSUNG ELECTRONICS CO. LTD (“Samsung”), a Korean
corporation. Hereinafter, Ericsson and Samsung, together with their respective Affiliates, are
each referred to individually as a “Party” and collectively as the “Parties”.
For the purpose of this Agreement, “Affiliates” shall mean any Person that, during the term of
this Agreement or the Final Complete GPLA (as defined below) as applicable, controls, is
controlled by or is under common control with a Party but any such Person shall be deemed to be
an Affiliate only for as long as such control exists. For purposes of defining “Affiliates,” the
term “control” shall mean owning, directly or indirectly, more than fifty percent (50%) of the
voting shares or securities or other equity interests of such Person, or more than 50% of the
ownership interest representing the right to make decisions for such Person, or in the case of a
non-corporate entity, an equivalent interest, representing the right to make decisions for such
Person. “Person” means any individual, corporation, association, business trust, partnership,
joint venture, trust, unincorporated organization, or other legal entity.

1. Agreement to Arbitrate
The Parties have agreed to enter into a global patent license agreement (a “GPLA”) for
certain of each Parties’ products (“Licensed Products”) on terms which are Fair, Reasonable and
Non-Discriminatory (“FRAND”). Licensed Products shall mean any complete and ready to use
Infrastructure Equipment and User Equipment that are compliant with 4G and/or 5G/NR
standards. Licensed Products shall expressly exclude any intermediate products including but
not limited to platforms, chipsets, modules, printed circuit boards, integrated circuits, and
semiconductor devices.
This Agreement provides a contractually binding process and timetable to resolve the
FRAND terms and conditions of the GPLA and the Parties agree, subject to license terms and
conditions agreed and as set forth in Appendix 1 (the “Agreed Terms”), to submit to a neutral
arbitral tribunal to determine the FRAND terms of the GPLA in accordance with this Agreement
2. Determination of the Disputed Terms, etc.
Prior to commencing arbitration, the Parties shall negotiate in good faith the terms and
conditions of the GPLA, with the aim to identify the Disputed Terms (as defined below) to be
submitted to arbitration. For avoidance of doubt, the Agreed Terms are agreed between the
Parties and the Disputed Terms are not to contradict the Agreed Terms or anything agreed upon
in this Agreement.
The Disputed Terms will be determined as follows:
Within thirty (30) days of the Effective Date, Ericsson and Samsung shall meet in
person or otherwise as mutually agreed by the Parties at convenient times and places

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(each such meeting referred to as a “Pre-Arbitration Conference”) to negotiate in good


faith the terms and conditions of the GPLA. Within the foregoing thirty (30) days period,
the Parties shall also hold a final Pre-Arbitration Conference, in which the Parties will
sign an incomplete GPLA (the “Agreed Incomplete GPLA”) in which (i) all terms and
conditions that have been agreed by the Parties are included and (ii) any terms and
conditions of the GPLA that the Parties do not agree upon and that are not already
addressed herein (“Disputed Terms”), which will be decided by the arbitration described
in Section 4 below (“Arbitration”). The Disputed Terms are indicated in the Agreed
Incomplete GPLA either with alternative positions of the Parties or with blanks to be
completed in accordance with the final award in said Arbitration.
In connection with such negotiations, the Parties agree to also seek in good faith
to further negotiate and define the procedural details of the arbitration, including the
details of the time-schedule to be presented to the arbitrators, the scope of discovery in
the arbitration, the protective order(s) to be issued by the Arbitral Tribunal to govern the
confidentiality of materials disclosed in the Arbitration, and any other procedural issues
not covered by this Agreement and raised by either Party. To the extent the Parties fail to
agree on a procedural issue, the Arbitral Tribunal will decide the procedure in accordance
with this Agreement and applicable institutional rules.
A Party’s refusal to comply with any of the above shall not constitute a bar to
arbitration and Ericsson shall under all circumstances be entitled to commence arbitration
at any time on or after [[INSERT DATE THAT IS 30 DAYS AFTER EFFECTIVE
DATE]] (in such a case, the Disputed Terms shall include all terms and conditions other
than the Agreed Terms, or any terms and conditions otherwise agreed between the Parties
at the time of commencement of the arbitration).
3. Scope of the Arbitration
The Arbitral Tribunal shall resolve the Disputed Terms by deciding the license terms and
conditions that the Parties may respectively impose without violating their commitments to
license their relevant standard essential patents on fair, reasonable, and non-discriminatory
“FRAND” terms and conditions.
With the exception of the preceding paragraph, nothing herein shall restrict the ability of
the Parties from presenting any evidence or making any arguments in the arbitration, including
without limitation arguments regarding validity, essentiality, infringement or the value of the
patents to be licensed under the Final Complete GPLA (as defined below).
The Arbitral Tribunal shall set forth in the final award the final terms and conditions to be
included in the Final Complete GPLA (as defined below), so as to produce the Final Complete
GPLA, binding on and enforceable against the Parties. The Arbitral Tribunal has jurisdiction to
resolve all issues, differences and disputes between the Parties, howsoever arising, to ensure that
its function is carried out.
4. Arbitration procedure
The Parties agree that the arbitration shall be administered by the International Chamber
of Commerce (the “ICC”) and performed under the Rules of Arbitration of the ICC (the

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“Rules”) by three (3) arbitrators appointed in accordance with the said Rules. The language of
the arbitration shall be English, and the seat of the Arbitration shall be (select one of the
following):

London, United Kingdom

New York City, New York, United States of America

Singapore
The Parties agree that, in addition to any other requirements set forth by the Rules, the
arbitrators shall be of a nationality other than those of the parties.
Ericsson shall be entitled to commence the arbitration on or after [[DATE THAT IS 30
DAYS AFTER EFFECTIVE DATE]]. It is the Parties’ intention that the Arbitral Tribunal shall
render the final award no later than December 31, 2022, and the Parties agree to advise the
Arbitral Tribunal of this intention for purposes of setting a schedule for the Arbitration;
provided, however that the Arbitral Tribunal shall have discretion to extend the date for
rendering the final award. The Parties agree to instruct the Arbitral Tribunal accordingly for
purposes of setting a schedule for the arbitration to achieve the final award by that date.
5. Binding Decision. The Parties agree that (i) the final award of the Arbitral Tribunal shall
be final and binding on the Parties and will be non-appealable to the maximum extent permitted
by the law [[for the avoidance of doubt, any right of appeal under Section 69 of the Arbitration
Act 1996 is excluded (only include if London is chosen as the seat of the Arbitration)]], (ii)
judgment on the Arbitral Tribunal’s final award may be entered and specifically enforced in any
court having jurisdiction, and (iii) the arbitration will be the sole and exclusive procedure for the
resolution of the Disputed Terms.
6. Final Complete GPLA. The Agreed Incomplete GPLA with the Disputed Terms set by
the final award (the “Final Complete GPLA”), shall immediately upon such final award
constitute a complete and binding GPLA between the Parties to be effective as of the effective
date defined therein without any further formalities being completed by either Party. However,
for the sake of completeness, Ericsson and Samsung agree to formalize such Final Complete
GPLA by signing a version of the Agreed Incomplete GPLA, with the Disputed Terms
completed in accordance with the final award, no later than one (1) week after the Arbitral
Tribunal has rendered the final award. Notwithstanding the foregoing, the Parties agree that any
failure to formalize the Final Complete GPLA will not affect the validity or enforceability of the
Final Complete GPLA.
7. No Waiver. Neither Party waives any claim for patent infringement by signing this
Agreement, such claims to be licensed or released under the Final Complete GPLA. No express
or implied licenses are granted under either Party’s patents to the other Party under this
Agreement.

8. Confidentiality. The Parties undertake and agree that this Agreement, all arbitral
proceedings conducted under this Agreement as well as any decision or award that is made or
declared during such proceedings shall be kept strictly confidential.

Page 3 of 4
Case: 21-1565 Document: 10-2 Page: 6 Filed: 02/08/2021 (24 of 33)

9. Protective Order. The Parties recognize that the arbitration may require the disclosure of
highly confidential information, such as third-party license agreements and related information.
The Parties agree that the disclosure of any such highly confidential information shall be limited
to the members of the Arbitral Tribunal, external legal counsel and external experts and be
produced under a protective order issued by the Arbitral Tribunal setting out such outside
attorneys’ and experts’ eyes only restrictions. The Parties shall be at liberty to disclose such
Protective Order to third parties in obtaining consent from third parties to produce otherwise
confidential information in this arbitration.

10. Standstill. Ericsson and Samsung each agrees on behalf of itself and its affiliates, not to
commence any administrative or regulatory proceedings, patent litigation, or litigation alleging
breach of FRAND (including before antitrust authorities) against the other Party or any of its
affiliates or in relation to any Party’s (or its affiliates’) patents until after the time period for any
challenge to the final award has expired.

11. Choice of Law. The validity, performance, construction and interpretation of this
Agreement shall be governed by the substantive laws of the [[INSERT LAW OF THE SEAT OF
THE ARBITRATION]] without regard to its conflict of law provisions. The Parties consent to
the jurisdiction and venue of the [[INSERT COURT HAVING RELEVANT JURISDICTION
IN THE SEAT OF THE ARBITRATION]] to the extent a dispute arising under this Arbitration
Agreement is not subject to Arbitration or cannot be properly submitted to the Arbitral Tribunal.

____________________

IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed in two (2)
identical counterparts by their duly authorized representatives as of the Effective Date, of which
the Parties have taken one (1) each.

TELEFONAKTIEBOLAGET LM ERICSSON SAMSUNG ELECTRONICS CO. LTD.


(PUBL)
On behalf of itself and its Affiliates
On behalf of itself and its Affiliates

______________________________ ______________________________
Signature Signature

______________________________ ______________________________
Print Name Print Name

______________________________ ______________________________
Title Title

______________________________ ______________________________
Date Date

Page 4 of 4
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Case: 21-1565 Document: 10-3 Page: 2 Filed: 02/08/2021 (26 of 33)
Case: 21-1565 Document: 10-3 Page: 3 Filed: 02/08/2021 (27 of 33)
Case: 21-1565 Document: 10-4 Page: 1 Filed: 02/08/2021 (28 of 33)

Theodore Stevenson, III 300 Crescent Court


Direct Dial: (214) 978-4974 Suite 1500 Telephone: (214) 978-4000
tstevenson@mckoolsmith.com Dallas, TX 75201 Facsimile: (214) 978-4044

January 18, 2021

VIA EMAIL

Greg Arovas
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
greg.arovas@kirkland.com

Re: Ericsson v. Samsung – No. 2:20-cv-00380-JRG (EDTX)


Potential Violation of TRO and Preliminary Injunction

Dear Mr. Arovas:

It has just come to our attention from a third party source that Samsung may have
initiated enforcement proceedings against Ericsson in Wuhan related to the Wuhan Anti-Suit
Injunction – Case No. (2020) E 01 ZHI BAO No. 664. We further believe that Samsung initiated
enforcement on December 30, 2020, after Chief Judge Gilstrap issued the anti-interference
Temporary Restraining Order (TRO) on December 28, 2020 in the above referenced action.

As we do not have access to the filing, I am writing you to request your immediate
response and assurance that Samsung has not initiated enforcement actions in violation of the
TRO and subsequent Preliminary Injunction. In particular, we are concerned about two aspects
of Chief Judge Gilstrap’s Orders. First, the TRO (which was in effect until January 11, 2021)
requires Samsung to send to Ericsson any documents filed in the Wuhan Action immediately
after filing. Second¸ both the TRO and the Preliminary Injunction both prohibit Samsung from
taking affirmative steps to enforce the Wuhan Anti-Suit Injunction, to the extent such steps
would have the effect of interfering with Ericsson’s rights to assert its U.S. patents.

We request that you look into this situation immediately and provide a detailed response
by noon central tomorrow. In the event that Samsung has filed documents with the Wuhan Court
seeking enforcement of the Anti-Suit Injunction, we also request copies be sent to us as counsel
for Ericsson immediately, as was expressly required by the TRO.

Regards,

/s/ Theodore Stevenson, III


Theodore Stevenson, III

cc: Melissa Smith, melissa@gillamsmithlaw.com


Case: 21-1565 Document: 10-4 Page: 2 Filed: 02/08/2021 (29 of 33)

601 Lexington Avenue


New York, NY 10022
Greg Arovas, P.C. United States
To Call Writer Directly: Facsimile:
+1 212 446 4766 +1 212 446 4800 +1 212 446 4900
greg.arovas@kirkland.com
www.kirkland.com

January 19, 2021

By E-mail

Theodore Stevenson, III


McKool Smith
300 Crescent Court
Suite 1500
Dallas, TX 75201

Re: Ericsson v. Samsung - No. 2:20-cv-00380-JRG (EDTX)


Potential Violation of TRO and Preliminary Injunction

Dear Mr. Stevenson:

We are in receipt of your letter in which you assert that Samsung has initiated
enforcement proceedings against Ericsson in Wuhan and that Samsung has not complied with the
TRO in Texas. This is incorrect. Samsung has not initiated enforcement proceedings and
Samsung is in compliance with the Texas Court’s orders.

Please identify the “third party source” on which you base this assertion.

Sincerely,

Greg Arovas, P.C.

Beijing Boston Chicago Dallas Hong Kong Houston London Los Angeles Munich Palo Alto Paris San Francisco Shanghai Washington, D.C.

Stevenson Letter.docx
Case: 21-1565 Document: 10-4 Page: 3 Filed: 02/08/2021 (30 of 33)

Theodore Stevenson, III 300 Crescent Court


Direct Dial: (214) 978-4974 Suite 1500 Telephone: (214) 978-4000
tstevenson@mckoolsmith.com Dallas, TX 75201 Facsimile: (214) 978-4044

January 19, 2021

VIA EMAIL

Greg Arovas
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
greg.arovas@kirkland.com

Re: Ericsson v. Samsung – No. 2:20-cv-00380-JRG (EDTX)


Potential Violation of TRO and Preliminary Injunction

Dear Mr. Arovas:

I am writing in response to your letter from earlier today. Please provide your assurance
that no filings of any sort – other than those produced on December 29, 2020 – were made or
received by Samsung in any Wuhan court proceeding involving Ericsson prior to the entry of the
Preliminary Injunction on January 11, 2021.

Regards,

/s/ Theodore Stevenson, III


Theodore Stevenson, III

cc: Melissa Smith, melissa@gillamsmithlaw.com


Case: 21-1565 Document: 10-4 Page: 4 Filed: 02/08/2021 (31 of 33)

601 Lexington Avenue


New York, NY 10022
Greg Arovas, P.C. United States
To Call Writer Directly: Facsimile:
+1 212 446 4766 +1 212 446 4800 +1 212 446 4900
greg.arovas@kirkland.com
www.kirkland.com

January 21, 2021

By E-mail

Theodore Stevenson, III


McKool Smith
300 Crescent Court
Suite 1500
Dallas, TX 75201

Re: Ericsson v. Samsung - No. 2:20-cv-00380-JRG (EDTX)


Potential Violation of TRO and Preliminary Injunction

Dear Mr. Stevenson:

We have received Ericsson’s January 19 follow-up letter. As noted in my previous letter,


Samsung has complied with the Texas Court’s Orders. Ericsson, however, has not responded to
Samsung’s request to identify the source for the assertions in Ericsson’s letter. Again, please
identify the “third party source” on which Ericsson bases its accusations.

The next filings made by Samsung after the materials included in the December 29, 2020
production were made on January 11, 2021 and consisted of timely responses to Ericsson’s
filings pursuant to Wuhan Court procedures.

Sincerely,

Greg Arovas, P.C.

Beijing Boston Chicago Dallas Hong Kong Houston London Los Angeles Munich Palo Alto Paris San Francisco Shanghai Washington, D.C.
Case: 21-1565 Document: 10-4 Page: 5 Filed: 02/08/2021 (32 of 33)

Theodore Stevenson, III 300 Crescent Court


Direct Dial: (214) 978-4974 Suite 1500 Telephone: (214) 978-4000
tstevenson@mckoolsmith.com Dallas, TX 75201 Facsimile: (214) 978-4044

January 21, 2021

VIA EMAIL

Greg Arovas
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
greg.arovas@kirkland.com

Re: Ericsson v. Samsung – No. 2:20-cv-00380-JRG (EDTX)


Potential Violation of TRO and Preliminary Injunction

Dear Mr. Arovas:

In response to your question about where we obtained information about a potential


pending enforcement request, we obtained the information underlying our request to you from a
public computer access terminal at the Wuhan Court. That terminal provides a limited amount of
case information to the public. The terminal shows an “Enforcement” action (with a different case
number than Samsung’s December 7 action) filed by Samsung against Ericsson that was accepted
by the Court on December 30, 2020. There is no record of these filings in the documents you
produced pursuant to the TRO issued by the Eastern District of Texas.

The failure to produce these filings appears, at a minimum, to be in violation of the TRO.
As we are unable to access the files of the Wuhan court, and can only obtain the information shown
on the attached screen shots, I ask that you please provide a detailed explanation by the close of
business tomorrow, along with copies of the documents that have not been produced to date. For
your convenience, I have attached screenshots obtained from the computer terminal, along with
unofficial English translations.

Regards,

/s/ Theodore Stevenson, III


Theodore Stevenson, III

cc: Melissa Smith, melissa@gillamsmithlaw.com


Attachments

McKool Smith
A Professional Corporation • Attorneys
Austin | Dallas | Houston | Los Angeles | Marshall | New York
Case: 21-1565 Document: 10-4 Page: 6 Filed: 02/08/2021 (33 of 33)

601 Lexington Avenue


New York, NY 10022
Greg Arovas, P.C. United States
To Call Writer Directly: Facsimile:
+1 212 446 4766 +1 212 446 4800 +1 212 446 4900
greg.arovas@kirkland.com
www.kirkland.com

January 22, 2021

By E-mail

Theodore Stevenson, III


McKool Smith
300 Crescent Court
Suite 1500
Dallas, TX 75201

Re: Ericsson v. Samsung - No. 2:20-cv-00380-JRG (EDTX)


Potential Violation of TRO and Preliminary Injunction

Dear Mr. Stevenson:

We have received Ericsson’s January 21 letter, which repeats Ericsson’s question


regarding compliance with the TRO. As Samsung already explained in previous letters,
Samsung has complied with the TRO.

The matter referenced in Ericsson’s January 21 letter relates to the China Court’s
handling of Samsung’s security deposit. Samsung’s filing materials relating to the security
deposit were already produced to Ericsson.

In the future, we ask that Ericsson refrain from making accusations and instead simply
reach out to discuss any specific questions that may arise.

Sincerely,

Greg Arovas, P.C.

Beijing Boston Chicago Dallas Hong Kong Houston London Los Angeles Munich Palo Alto Paris San Francisco Shanghai Washington, D.C.