On Monday, Judge Rodney Gilstrap of the United States District Court for the Eastern District of Texas granted Ericsson an anti-antisuit preliminary injunction against Samsung's Chinese antisuit action, but backtracked a bit by narrowing the scope as compared to the temporary restraining order (TRO) in the same matter. I had criticized several aspects of the TRO and the PI-related case management. It was almost impossible to imagine that an appeals court would have upheld the extremely overreaching parts Judge Gilstrap has jettisoned, but what about the rest?
Anything but unexpectedly, Samsung has now given notice of its appeal of the PI order to the United States Court of Appeals for the Federal Circuit (this post continues below the document):
21-01-15 Samsung Notice of ... by Florian Mueller
The Federal Circuit hasn't docketed the appeal yet, presumably because notice was given late in the day. On Monday the Texas court will probably provide a set of documents to the appeals court, and then we'll see the exact scope of Samsung'S appeal and the legal arguments.
Fifth Circuit law is technically controlling, but the Federal Circuit has its own culture and philosophy. As always, a lot will depend on what panel this is assigned to. I just hope--and I really am reasonably confident, having listened to many Federal Circuit hearings over the years--they won't just be driven by instict in terms of seeking to maximize the number of U.S. patent cases that get filed and litigated. Two former Federal Circuit chief judges have made filings in this matter: Randall R. Rader is pretty sure of the fairness and overall quality of the Chinese case, while Paul Michel filed an amicus brief in support of Ericsson's position and is far more interested in attracting lots of patent cases to the U.S. than in such concepts as international comity. This is serious stuff: we're witnessing a global anti-anti-antisuit hot mess, and a race to the bottom. If every jurisdiction participating in those long-distance battles just focuses on how to maximize its number of cases, and no one defers to some other court at some point, the jurisdiction that imposes the sanctions that hurt defendants the most will be the winner who takes all. And that's not going to be the United States with its constitutional limits.
An international treaty on patent litigation might be needed to put the genie back in the bottle. In order to be binding on the courts, such a treaty would have to be ratified by national legislatures. We're not yet at the point where an intergovernmental solution is on the horizon. I just wanted to point out that this is getting out of hand and the jury is still out on whether the appeals courts are willing and able to fix the problem. The UK Supreme Court made its fateful Unwired Planet decision in August, and with the UK having left the EU (which enables them to outvaccinate any one of the largest continental countries by a wide margin), the CJEU can't correct that terrible mistake anymore. Nor can the Federal Circuit, of course--but it can make the American legal community proud and leave it to others to sow chaos.
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