Ericsson v. Samsung is the first massive 5G patent spat in the industry. Unless the two "lovebirds" settle reasonably soon, the dispute threatens--or in some people's eyes perhaps promises--to raise a number of important issues. One of them involves antisuit injunctions, especially multiple-anti ones. Samsung's reply brief in support of an expedited Federal Circuit appeal of Ericsson's anti-antisuit injunction from the Eastern District of Texas reinforced the need for speed, but also revealed the kind of playing field on which Ericsson wanted to arbitrate the terms of a cross-license. Samsung's motion succeeded in part, and its opening brief is due tomorrow (Monday, February 22), but Ericsson will have until April 2 to respond--ample time, as it wanted.
Ericsson has been pursuing an escalation-centric strategy in the early stage of the parties' renewed (the last one get settled seven years ago) dispute. Ericsson has escalated in territorial terms by bringing patent infringement cases in Germany, Belgium, and the Netherlands (according to Juve Patent) after its initial infringement claims in Texas. In the U.S., Ericsson also went to the ITC at the earliest opportunity this year:
On January 4, 2021, Ericsson filed a request for a U.S. import ban against Samsung mobile devices and TV sets. On February 2, the ITC opened the related investigation (PDF).
Samsung--like in its dispute with Huawei a few years back--just keeps things symmetrical and matches any of Ericsson's patent assertions with offensive claims of its own. On January 7, three days after Ericsson's first complaint, Samsung filed an ITC complaint targeting Ericsson's mobile base stations. The U.S. trade agency with quasi-judicial powers opened the related investigation on February 8 (PDF).
It's not unheard of for a party to bring a second ITC complaint against a party while another one is pending. However, the ITC can provide its swift service to complainants only if they limit the number of claims, and a more conservative approach would be to file a second complaint about 6 to 12 months after the first one against the same party. Patience is not that much of a virtue in Ericsson's view, and maybe Ericsson thought that complaints targeting different device types wouldn't have to be spaced out anyway. On January 15, within less than a fortnight of its first complaint, Ericsson filed one targeting Samsung's mobile base stations.
On February 4, Samsung brought a second complaint as well. The accused products are, again, base stations; Ericsson's doesn't make consumer electronics products anymore, which is part of the problem because Ericsson has become a hyperaggressive patent monetizer since its exit from the mobile handset business.
The asserted patents are related to 4G and 5G, but so far they don't appear to be declared-essential patents.
The public interest factor at the ITC is more of a formality at the early stage: typically the ITC will institute an investigation regardless of whether the accused products are critically important. Still, some arguments are made, and here Ericsson claims that its own mobile base station as well as Nokia's could easily replace Samsung's, while Samsung says that its products and Nokia's are sufficient to serve the U.S. market even if Ericsson's products were banned.
In reality, Samsung doesn't favor SEP injunctions anymore. About ten years ago, they were countersuing Apple over SEPs, and at that point they were interested in maximum leverage from that category of patents. But even in the Apple-Samsung dispute, SEPs quickly lost relevance. Samsung is far more interested in a strong product business than Ericsson, which wants to have it both ways but increasingly relies on patent licensing revenues.
In that Apple-Samsung dispute, the ITC actually decided in Samsung's favor, but the import ban (which wouldn't even have impacted Apple's flagship products at the time) never took effect because the United States Trade Representative (USTR), to whom President Obama had delegated his veto powers against ITC import bans, vetoed the exclusion order as he was concerned over SEP enforcement harming the economy.
A presidential veto might happen again. With Ericsson and Samsung battling each other in the ITC, the theoretical outcome would be that--of the big three vendors in a market from which Huawei is excluded for trade-war reasons--only Nokia could import 5G-capable mobile base stations into the U.S. market. And occasionally even Nokia is under attack.
History might repeat itself in a way next year. And this time around, Samsung would welcome a presidential veto, provided that it's symmetrical, which I'm sure it would be.
Samsung's foray into the 5G mobile network infrastructure market makes it the primary beneficiary of Huawei's purely political problems--and a challenger Ericsson and Nokia must be very afraid of. Besides generally seeking to maximize the income stream from its patent portfolio, Ericsson presumably hopes to make an impact on Samsung's competitiveness. Escalation can be a showing of strength, and one of desperation. It's too early to tell for sure which one of the two is driving Ericsson's decisions, but there are signs of Ericsson being a bit nervous, such as its recent dissent from a totally non-binding European Commission SEP expert group report that was more of a collection of ideas and views than anything else.
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