Be warned that further below you're going to read about a couple of insults to human intelligence.
One week after Ericsson responded to Samsung's Federal Circuit appeal of an anti-antisuit injunction from the Eastern District of Texas, a former Trump Administration official was the first of what may be a long list of amici curiae ("friends of the court") supporting the Swedish failed handset maker against the Korean electronics giant (this post continues below the document):
21-04-09 Amicus Brief Walte... by Florian Mueller
Under President Trump, Dr. Copan was Under Secretary of Commerce for Standards and Technology, which means he also served as Director of the National Institute of Standards and Technology (NIST). NIST joined the DOJ's Antitrust Division under Assistant Attorney General Makan Delrahim and the USPTO under Andrei Iancu (who has, as I predicted, returned to the L.A. patent litigation firm of Irell & Manella, which typically represents NPEs) in replacing a really good and balanced policy statement on standard-essential patent (SEP) enforcement with pro-patentee crap.
While I disagreed with that policy paper, it was undoubtedly well-thought-out in its way. That's more than the authors of Dr. Copan's amicus brief in support of Ericsson can say. That amicus brief contains at least two statements that are--no kidding--among the absolutely most stupid things I've ever read in the SEP context.
The word "provincial" occurs four times in the Copan brief, in each case as a derogatory attribute to the Wuhan Intermediate People's Courtin China that granted Samsung an antisuit injunction against Ericsson in December:
"appellant Samsung’s anti-suit injunction ('ASI') from a provincial Chinese court" (emphasis added)
"to allow a provincial Chinese court to unilaterally determine a global FRAND rate" (emphasis added)
"Samsung unilaterally sought to use a Chinese provincial court" (emphasis added)
"Samsung’s request that a provincial Chinese court determine a global FRAND rate" (emphasis added)
Theoretically, the word "provincial" could be meant non-judgmentally in terms of "relating to a province." However, intermediate people's courts are generally not run by the provinces of China, but (according to Wikipedia) "found at the level of prefectures, autonomous prefectures, and municipalities across China." Wikipedia lists the relevant court as the "Wuhan City Intermediate People's Court" (emphasis added). The English translation of the name of Chinese courtss at the level of the provinces is "high people's court" (see Wikipedia).
Therefore, the adjective "provincial" must be understood in a derogatory sense. Now, I wouldn't necessarily blame someone who would argue in a U.S. technology industry dispute that a state court in a small and thinly-populated state might be "provincial" by comparison to, say, the United States District Court for the Northern District of California.
But for someone supporting Ericsson against Samsung, it's utterly stupid to call the Wuhan court "provincial":
Wuhan is the most populous city in Central China with a population of well over 11 million, and one of the ten largest Chinese cities.
Ericsson obtained the injunction at issue in the thinly-populated Eastern District of Texas, or more specifically, from Judge Gilstrap in Marshall, TX, a "city" with a population of only about 20,000--and even if you throw in the surroundings (Harrison County), that's just about 65K people. The other "cities" in which you find federal courthouses in that district are Beaumont (population size: 120K), Lufkin (35K), Sherman (42K), Texarkana (35K), and Tyler (105K; that's the federal judiciary district's HQ). The entire district has only 3.5 million inhabitants according to the DOJ.
There's absolutely no factual basis for calling the Wuhan court "provincial" in what is essentially a venue fight in which the alternative favored by Ericsson is Marshall, TX.
Let me show you a second absurdity:
"Companies in that chain 'invested $1.8 trillion in infrastructure and R&D from 2009 through 2013, relying almost exclusively on private-sector funding.' Id. Those investments are reportedly protected by more than 150,000 declared SEPs." (emphases added)
If patents can protect anything in that context, it's R&D. But infrastructure investments are not protected by patents in any way--in fact, patents can be enforced against infrastructure, so they represent a threat: a sword, not a shield.
I didn't plan to discuss the details of those amicus briefs before I would have had the opportunity to read them all, and to reflect. But this stuff is so crazy I wanted to comment on it immediately.
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