Ericsson’s 5G Apple patent infringement claim has now reached its sixth country, with the latest filing in the UK’s High Court. The Swedish telecoms company is trying to obtain import bans on iPhones in the US and elsewhere as it piles on the pressure for Apple to reach a settlement.
One patent expert says that “the noose is tightening” on the Cupertino company, as it is looking increasingly likely that Ericsson will succeed in obtaining an iPhone injunction sooner or later …
Background
Ericsson is accusing Apple of infringing its patents in respect of the 5G chips used in current iPhones. That’s because Apple used to pay royalty fees for the use of the patented tech, but then failed to renew the licenses when they expired. It’s believed Apple was hoping to negotiate a better deal for the 5G licenses, after earlier reaching agreement on 2G, 3G, and 4G patented technology.
Things got heated when Apple sued Ericsson in December of last year, claiming that the Swedish company violated FRAND terms. This is international law that requires standards-essential patents (technology without which it is impossible to make a smartphone) on terms which are fair, reasonable, and non-discriminatory. In other words, Apple claimed that Ericsson was charging too much for the patent license fees.
Ericsson in turn accused Apple of wasting court resources by forcing unnecessary litigation on two fronts. Apple hit back by filing an unrelated patent infringement claim against Ericsson.
Both companies are trying to get import bans placed on products made by the other: the iPhone on one side, and a mobile base station on the other.
Since there is no dispute that Ericsson does own the patents, and Apple is currently infringing them by not renewing its licenses, experts say that the Swedish company is likely to succeed in achieving an injunction against the import of iPhones in one or more countries.
Apple patent infringement case is dangerous
Ericsson has already sued Apple in at least five countries – the US, Germany, the Netherlands, Brazil, and Colombia. Foss Patents reports that the UK has now been added to the list.
UK court records show a couple of Ericsson v. Apple filings: on June 6, Ericsson–represented by the law firm of Taylor Wessing, which has offices in numerous European countries (and beyond Europe)–filed with the High Court of Justice for England & Wales […]
The UK filings apparently came on the heels of the recent failure of a mediation effort in the Eastern District of Texas. While parties are free to make additional filings during mediation talks, they don’t want to be seen as making hostile moves at a time when everyone should be constructive.
Apple is taking the same tack with patents owned by a separate company, Optis – and the site’s Florian Mueller says that the iPhone maker is playing a dangerous game.
As I noted in the Optis context, there’s considerable risk for Apple that additional UK FRAND case law–resulting from Apple’s failure to strike a deal with the Optis/Unwired group–could complicate its defenses against much larger patent holders. With Ericsson’s filings, that risk is clearer than before […]
Ericsson’s filings demonstrate to Apple that the noose is tightening in multiple jurisdictions. At some point, the patent injunction hammer will come down somewhere.
Apple also putting App Store commissions at risk
Both companies are fighting hard, and arguably dirty. For example, Apple in part justifies its App Store commissions because the store gives developers use of valuable intellectual property; in a US lawsuit, Ericsson is trying to force Apple to disclose details of this IP (likely to contrast the fee Apple charges developers with the fee it refuses to pay to Ericsson). Any weaknesses identified in Apple’s IP claims could add to the antitrust pressure regarding the App Store.
Apple claims to hold IP that is essential to making iOS apps, and wants 27% of in-app purchasing revenues (with exceptions relating to only a minuscule part of the relevant royalty base) even if it doesn’t process payments (in which case it wants another 3%, which is roughly what third-party payment processors charge). In the Ericsson v. Apple FRAND litigation in the Eastern District of Texas, Apple doesn’t want Ericsson to conduct discovery of certain App Store issues. Ericsson has already brought two motions to compel, and with respect to the first one, Judge Gilstrap scheduled a motion hearing for early July.
Apple is almost certain to settle the cases at some point – it is simply too exposed to allow courts to rule – but is hoping that dragging things out as long as possible, and filing counterclaims, will enable it to negotiate better terms.
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