The first and only significant good news for Apple in its 5G patent dispute with Ericsson came about a month ago when a U.S. trade judge identified indefiniteness issues concerning two of the three patents-in-suit in the smallest Ericsson v. Apple case. The patents in that action are not standard-essential.
Ericsson has now done what I deemed most likely in my commentary on the indefiniteness opinion: it has voluntarily dropped all of the asserted claims of U.S. Patent No. 10,880,794 on "inter-band handover of the same physical frequency" and six of the eight asserted claims of U.S. Patent No. 8,472,999 on a "method and system for enabling dual standby state in a wireless communication system."
Such withdrawals--called "motion for partial termination of the investigation"--are simply expected by the ITC, which depends on such streamlining to keep its timelines. This is in line with what I thought would happen when I commented on the claim construction order that gave rise to these withdrawals. Ericsson's motion--which is unsurprisingly unopposed by Apple--doesn't mean that the Swedish wireless company necessarily agrees with Administrative Law Judge (ALJ) Cameron R. Elliot. The motion just contains the usual boilerplate language about "narrow[ing] the scope of the [i]nvestigation and to simplify the issues for the ALJ, [the ITC] Staff and the parties" (and how this "serve[es] the public interest by saving [...] time and resources."
After this withdrawal, there are still two patents in Unfair Import Investigation No. 337-TA-1301 (all four asserted claims of U.S. Patent No. 8,792,454 on "secure and seamless WAN-LAN [wide area network, local area network] roaming" and the two remaining claims of the '999 patent). That case may even get the first in-person hearing after the envisioned reopening of the ITC building, as ALJ Elliot discussed with the parties in a telephonic conference, where he mentioned that some uncertainty remains concerning the further evolution of "the virus." In the other two ITC investigations, Ericsson is asserting a total of another ten patents--and in the Eastern District of Texas, there are three more patents (5G SEPs) that Apple initially wanted to challenge, then preferred not to deal with, but Ericsson is pursuing its compulsory counterclaims.
The ALJ's indefiniteness opinion is not precedential with a view to any assertions in federal court. The withdrawal does not formally affect a companion case in the Western District of Texas, which was filed simultaneously with the ITC complaint. The W.D. Tex. case is currently on hold, and normally those mirror cases in federal court (where monetary relief--which the ITC can't order--is available) never come out of hibernation as the parties tend to settle before. Should the case go forward, Judge Alan Albright could still preside over the proceedings, though the Chief Judge of that district court now makes it unlikely that any new patent infringement complaints filed with the Waco division of the Western District would be assigned to Judge Albright.
Over in the Eastern District of Texas, Apple has been warned of sanctions for misuse of court rules after bringing an unsuccessful (except for some minor access-to-documents issue) "emergency motion." Incredibly, Apple is portraying a Colombian 5G iPhone/iPad sales ban as a human rights issue. I'd rather talk about workers' rights and developers' rights...
In Brazil, where Ericsson is seeking preliminary injunctions against a local Apple distributor, the specialized press also takes note of Apple's Colombian motion as well as the reprimand in Texas. Another South American website, TransMedia.cl, calls this litigation tactic "not just an embarrassment... a disgrace." IAM's Joff Wild expressed doubts on LinkedIn over whether human rights legislation exists to enable Apple to get around an iPhone sales ban...
The human rights motion must be adjudicated swiftly, so I guess we'll hear from Colombia again soon.
Ericsson v. Apple--and also Apple v. Ericsson--cases are pending in multiple jurisdictions. These days I found out from the Munich I Regional Court that Apple's first-ever SEP assertion--a former Intel patent declared essential to 4G--is actually a complaint for (inter alia) injunctive relief. Also, two weeks ago Law360 reported (mostly behind a paywall) on another Ericsson v. Apple case in the UK over four 4G/5G SEPs. I haven't been able to find out about the details of that additional UK action. I was previously only aware of a couple of UK filings that Ericsson had made in early June.
