On July 10, Patently Apple posted a report titled “Apple’s 5G iPhones and iPads have been banned in Colombia after the Court granted Ericsson a rare Anti-Antisuit Injunction+.”
Apple’s lawyers immediately sought antisuit damages in the Eastern District of Texas. Apple brought an emergency motion with the court, saying that the Colombian inunction gives Ericsson “economic and logistical leverage […] to pressure Apple to abandon this litigation and capitulate to Ericsson’s [royalty] demand,” and asks Chief Judge Rodney S. Gilstrap to decide as swiftly as possible that Ericsson must “indemnify Apple from any fines, fees, penalties, and costs it incurs as a result of the Colombian injunction.”
Yesterday Judge Rodney S. Gilstrap published his decision on the matter. The antisuit part was denied, and only a limited part of a discovery-related request by Apple was granted. Technically, this means the motion was granted-in-part and denied-in-part.
Judge Gilstrap doesn’t think it constitutes “imminent, irreparable harm” to Apple that it may–as a result of enforcement actions in other jurisdictions–have to sit down and negotiate a license with Ericsson. The Texas FRAND case will go to trial in December, and no later than September, Apple and Ericsson have to engage in formal mediation.
There’s also a procedural issue. Apple should have brought a regular motion as opposed to an emergency motion. “Emergency motions are to be filed only in truly extenuating circumstances and should not be used as a means to secure an expedited briefing schedule and hearing before the Court,” Judge Gilstrap clarifies–and “finds that Apple has misused and misapplied the rules for emergency motion practice in this Court.” Therefore, he places Apple “on notice that further such conduct will warrant, and likely result in, sanctions against it.”
The antisuit damages order that Apple wanted–which wouldn’t have formally barred Ericsson from continuing its Colombian PI enforcement, but would have made it costly. This was likely the original motion’s primary objective.
If Apple wants to sell 5G iPhones and iPads in Colombia again, it either has to successfully appeal in Colombia–or take a license, which will be the outcome anyway (the question is just when and on what terms).
For more on this and to review the court order in full, review the full report by FOSS Patents.
