A few hours ago, some Colombian websites such as this one (El Colombiano) reported that Apple finds itself unable to sell the iPhone 14--which it introduced yesterday--in the Latin American country, the reason being a preliminary injunction over a 5G standard-essential patent (SEP) that Ericsson has already been enforcing for about two months against the iPhone 12 and iPhone 13.
Apple sought emergency relief from a Colombian court (even invoking Article 8 of the Universal Declaration of Human Rights), but the sales and import ban was upheld as constitutional.
The following screenshot shows that Apple displays a notice on the Colombian version of the iPhone 14 page according to which it "temporarily cannot offer devices with 5G technology in Colombia due to an order by a Colombian court, a decision that Apple is appealing" (that's my translation of the Spanish sentence right below the "iPhone 14 Pro" headline; click on the image to enlarge):
While the iPhone 14 obviously wasn't on the table when Ericsson obtained the preliminary injunction in question, what the Colombian court barred Apple from doing was to sell 5G devices without the prerequisite SEP license from Ericsson. And the iPhone 14 is, equally obviously, a 5G product line.
Apple could solve the problem anytime by accepting Ericsson's license offer, but apparently wants to keep fighting for a low-ball rate. Apple's Colombian situation has certain parallels with OPPO's decision to temporarily (but indefinitely) withdraw from the German market due to various injunctions obtained by Nokia in Mannheim and Munich (which OPPO may still be able to overturn).
Could Apple find itself unable to sell the iPhone 14 in other markets, including (but not limited to) Germany?
Yes, there is considerable risk. I'll explain.
Different jurisdictions apply different standards to the sense of urgency that is required in order for a plaintiff to obtain a preliminary injunction. Some (like the U.S.) perform a multifactorial analysis of a PI motion, with the focus really being on irreparable harm to the plaintiff and the balance of hardships suffered by the parties if the decision goes one way or the other. Other jurisdictions (such as Germany and some other continental European jurisdictions) focus on only two questions and order a PI only if they are both answered with "yes":
Is it urgent?
Is the plaintiff likely to prevail on the merits?
Some German courts have a pretty strict one-month rule: counting from the day on which a party has become aware of an actual or impending violation, it has to seek a PI within about a month. Otherwise the assumption is that there doesn't seem to be a rush and the court shouldn't have to prioritize the matter; instead, the plaintiff should seek a permanent injunction in a (slower) regular proceeding.
Ericsson is already suing Apple in Germany. In fact, the first clash between the two parties in a Munich courtroom is slated for next Wednesday, and there'll be multiple other hearings in Munich, Mannheim, and Dusseldorf over the course of the next few months.
When that litigation campaign started in January, even the most recently released ones of the accused products (such as the iPhone 13) weren't sufficiently new to satisfy the urgency requirement. Now Apple has officially introduced the iPhone 14 and (unsurprisingly) described it as a 5G-capable product.
A similar situation already occurred 11 years ago when Samsung (unsuccessfully) sought a preliminary injunction in France against the iPhone 4S.
In April, the European Court of Justice resolved a request for a preliminary ruling (which originated from Munich) in plaintiff's favor and stressed that preliminary injunctions over patents must be reasonably available. The specific issue was whether an asserted patent would have had to previously survive an adversarial proceeding involving materially identical invalidity contentions. That used to be an important question in Germany, but the ECJ opinion made it clear that PIs over patents are a key enforcement mechanism under the European Union's Intellectual Property Rights Enforcement Directive (IPRED).
What could Ericsson do now--and when would it have to act? By the way, it's not just about Ericsson: the patent community's operating assumption is that Apple's patent license agreement with Nokia expired a couple of months ago, and InterDigital's CEO confirmed that Apple's agreement with his company will expire in about three weeks from today. So there are other potential plaintiffs. In InterDigital's case, the clock wouldn't start ticking while a license agreement is in place, so InterDigital would have until the end of October to bring a PI motion.
For Ericsson as well as other potential plaintiffs, the question would then be whether to first obtain an actual iPhone 14 and then file a PI request, or whether to file now.
For cases involving SEPs, I believe Apple's announcement of the impending launch of 5G-capable devices would be a sufficient basis for going to court. There hasn't been a SEP PI in Germany so far (at least to my knowledge), but even the FRAND part could be resolved. I would consider it a perfectly reasonable interpretation of the ECJ's decision in the aforementioned case (Phoenix v. Harting) that preliminary injunctions are meant to be available wherever permanent injunctions would be. If the standard for validity determinations shouldn't be more exacting in PI cases than in full-blown main proceedings according to the EU's top court, the same should apply to FRAND.
In Ericsson v. Apple, the courts in Munich, Mannheim, and Dusseldorf already have a pretty well-developed FRAND record before them, owing to the cases that were filed in January. The parties must already have exchanged several pleadings on that issue. In fact, the first German Ericsson v. Apple SEP case will go to trial in two months from today (in Mannheim).
Based on the state of play in those already-pending cases, Ericsson by now also has a pretty good idea of where Apple's invalidity arguments are least likely to persuade the courts.
I don't know whether Ericsson will try to force a quick settlement by getting the iPhone 14 banned at the earliest opportunity; I just wanted to explain that it would be an option. And even if Ericsson decided not to do so, Nokia might. Nokia already has various patents that German courts have deemed standard-essential and likely valid. A renewed Nokia v. Apple patent litigation campaign could result in a first-round knockout within a couple of months.
Apple is spending a lot of money on SEP devaluation efforts (so much that Apple doesn't even want to disclose those amounts to the USITC), but its 5G licenses will undoubtedly cost a lot more than its 4G licenses because the case law in various key jurisdictions favors SEP holders and hold-out tactics that enabled Apple to squeeze SEP licensors just like any other of its suppliers in the past won't work this time around.
