22 10 21 FRAND Issues of Patents Not Asserted in This Investigation

Mannheim court to hear SEP case on November 8, Apple already wants to raise FRAND in non-SEP ITC case from November 4

We are entering a new phase of the Ericsson-Apple 5G patent dispute. It has never been more boring. Obviously, the Colombian 5G Essential Patent Order (SEP) is still in progress. Two preliminary hearings were held in Munich (a non-SEP case involving the iOS version of WhatsApp, and a SEP case that Apple has been unable to dismiss at this point). But now it’s finally “trying season”:

he was there Apple vs. Ericsson in Mannheim on Tuesday, and a decision is scheduled for November 29. I don’t expect Apple to profit from that decision, though.

the first Ericsson v. Apple The Mannheim trial — and the first SEP trial in the current dispute — will take place on November 8 (Civil Chamber II; presiding judge: Dr. Holger Kircher, who will also serve for the Mannheim District Circuit of the Unified Patents Court, as well as Judge Dr. Peter Tuchtermann). The patent in the suit, EP2191608 concerning “Method and Arrangement in a Communications System” is the cellular SEP previously asserted by Ericsson against Wiko.

I see a fairly high probability of discussing the defense of Apple FRAND on the 8th. Mail-Sisville v. Haier The defenses of the Frand in Germany are an uphill battle, though, to put it mildly…

Four days before the Mannheim trial — on November 4 — the first Ericsson-Apple ITC trial will take place (in Washington, D.C.; presiding administrative law judge: Cameron Elliott). This is the investigation of the smallest ITC complaints of Ericsson against Apple.

This case isn’t a SEP case, but as the spreadsheet entry for Ericsson’s now-closed motion shows, Apple is however Trying to import their SEP license dispute with Ericsson into this (click image to enlarge or read text below image):

22 10 21%20FRAND%20Issues%20of%20Patents%20Not%20Asserted%20in%20This%20Investigation

Ericsson Inc. Complaint and Telefonaktiebolaget LM Ericsson Motion in Limine No. 2 to exclude arguments, evidence and testimonies related to FRAND patent cases that were not confirmed in this investigation

Sorry to say it, but it’s absurd – not that Ericsson brought this movement, but that Apple created a situation in which this movement appears to be necessary.

Ericsson is suing Apple over standardized protections (as in the case of one from the International Trade Center) and not. Obviously, the most likely outcome is for the two to agree on a global portfolio license that covers SEPs and non-SEPs in one fell swoop. But should Ericsson win over one or more non-SEPs, Apple can’t really expect the ITC to reject an import ban based on allegations of abuse of FRAND in else cases. This should be kept separate.

I can’t see how this kind of litigation tactic benefits Apple. ITC prides itself on quickly resolving unfair import investigations, which requires focus. Apple uses its vast resources to make all kinds of arguments that no reasonable lawsuit could attempt.

I could see a few years ago why Apple would ask a complex antitrust question about Qualcomm’s market power in chipsets if Qualcomm was targeting iPhones specifically with Intel chipsets – its only competitor at the time. This was also out of the ordinary for the ITC. But it was Qualcomm’s decision to target Intel-powered iPhones in the first place.

In this dispute between Ericsson and Apple, there is nothing Ericsson has done compared to what Qualcomm has done at the time. Ericsson simply asserts patents as a result of the previous license agreement having expired, and has intentionally separated its SEP complaint from non-SEP complaints because that is the most efficient way to do so.

Apple has plenty of opportunities this calendar quarter to make FRAND arguments. Mannheim reported on November 8. The Munich First Regional Court will also hold a FRAND hearing a week before Christmas. Above all, the United States District Court for the Eastern District of Texas will only conduct Frand’s trial (no questions of infringement) beginning December 5 (before Chief Justice Rodney Gilstrap, who – I’m told – attended the Federal Circuit Bar meeting in Amsterdam at the time earlier this week). But in a case other than SEP, arguments about “patents not being confirmed in this investigation” have no place.

Engage with other professionals on LinkedIn: