21-02-03 Ericsson Opposition To Samsung Motion To Expedite Appeal

Case: 21-1565 Document: 9 Page: 1 Filed: 02/03/2021
No. 2021-1565
IN THE
United States Court of Appeals
FOR THE FEDERAL CIRCUIT
ERICSSON INC. AND TELEFONAKTIEBOLAGET LM ERICSSON,
Plaintiffs-Appellees,
V.
SAMSUNG ELECTRONICS CO., LTD.; SAMSUNG ELECTRONICS

AMERICA, INC.; AND SAMSUNG RESEARCH AMERICA,
Defendants-Appellants.
On Appeal from the United States District Court

for the Eastern District of Texas
No. 2:20-CV-380, Judge J. Rodney Gilstrap
APPELLEES’ OPPOSITION TO APPELLANTS’ MOTION

TO EXPEDITE BRIEFING AND ORAL ARGUMENT
Theodore Stevenson, III Jeffrey A. Lamken

Nicholas M. Mathews Counsel of Record
MCKOOL SMITH, P.C. Michael G. Pattillo, Jr.
300 Crescent Court, Suite 1500 MOLOLAMKEN LLP
Dallas, TX 75201 The Watergate, Suite 500
(214) 978-4000 (telephone) 600 New Hampshire Avenue, N.W.
(214) 978-4044 (facsimile) Washington, D.C. 20037
(202) 556-2000 (telephone)
(202) 556-2001 (facsimile)
jlamken@mololamken.com
Counsel for Ericsson Inc. and Telefonaktiebolaget LM Ericsson

(Additional Counsel Listed on Next Page)
(
Christine M. Woodin Rayiner I. Hashem
MCKOOL SMITH, P.C. James A. Barta
300 S. Grand Avenue, Suite 2900 MOLOLAMKEN LLP
Los Angeles, CA 90071 The Watergate, Suite 500
(213) 694-1200 (telephone) 600 New Hampshire Avenue, N.W.
(213) 694-1234 (facsimile) Washington, D.C. 20037
(202) 556-2000 (telephone)
Blake H. Bailey (202) 556-2001 (facsimile)
MCKOOL SMITH, P.C.
600 Travis Street, Suite 7000 Eugene A. Sokoloff
Houston, TX 77002 Elizabeth K. Clarke
(713) 485-7300 (telephone) MOLOLAMKEN LLP
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Samuel F. Baxter (312) 450-6700 (telephone)
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FORM 9. Certificate of Interest Form 9 (p. 1)

July 2020
UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT
CERTIFICATE OF INTEREST
Case Number 2021-1565

Short Case Caption Ericsson Inc. v. Samsung Electronics Co., Ltd.
Filing Party/Entity Ericsson Inc.; Telefonaktiebolaget LM Ericsson
Instructions: Complete each section of the form. In answering items 2 and 3, be

specific as to which represented entities the answers apply; lack of specificity may
result in non-compliance. Please enter only one item per box; attach
additional pages as needed and check the relevant box. Counsel must
immediately file an amended Certificate of Interest if information changes. Fed.
Cir. R. 47.4(b).
I certify the following information and any attached sheets are accurate and
complete to the best of my knowledge.
02/03/2021
Date: _________________ Signature: /s/ Jeffrey A. Lamken
Name: Jeffrey A. Lamken


July 2020
1. Represented 2. Real Party in 3. Parent Corporations

Entities. Interest. and Stockholders.
Fed. Cir. R. 47.4(a)(1). Fed. Cir. R. 47.4(a)(2). Fed. Cir. R. 47.4(a)(3).
Provide the full names of Provide the full names of Provide the full names of
all entities represented all real parties in interest all parent corporations
by undersigned counsel in for the entities. Do not for the entities and all
this case. list the real parties if publicly held companies
they are the same as the that own 10% or more
entities. stock in the entities.
‫܆‬
✔ None/Not Applicable ‫ ܆‬None/Not Applicable
Ericsson Inc. See addendum.
Telefonaktiebolaget LM Ericsson See addendum.
✔ Additional pages attached


July 2020
4. Legal Representatives. List all law firms, partners, and associates that (a)
appeared for the entities in the originating court or agency or (b) are expected to
appear in this court for the entities. Do not include those who have already
entered an appearance in this court. Fed. Cir. R. 47.4(a)(4).
None/Not Applicable ✔ Additional pages attached
See addendum.
5. Related Cases. Provide the case titles and numbers of any case known to be
pending in this court or any other court or agency that will directly affect or be
directly affected by this court’s decision in the pending appeal. Do not include the
originating case number(s) for this case. Fed. Cir. R. 47.4(a)(5). See also Fed. Cir.
R. 47.5(b).
None/Not Applicable ✔
Additional pages attached
See addendum.
6. Organizational Victims and Bankruptcy Cases. Provide any information

required under Fed. R. App. P. 26.1(b) (organizational victims in criminal cases)
and 26.1(c) (bankruptcy case debtors and trustees). Fed. Cir. R. 47.4(a)(6).
✔ None/Not Applicable Additional pages attached
CERTIFICATE OF INTEREST
Addendum to Questions 3, 4, and 5
3. Parent Corporations and Stockholders. Fed. Cir. R. 47.4(a)(3).

Provide the full names of all parent corporations for the entities and all publicly
held companies that own 10% or more stock in the entities.
Ericsson Inc. is a Delaware corporation that is wholly owned by Ericsson

Holding II Inc., which is also a Delaware corporation. Ericsson Holding II
Inc. is wholly owned by Telefonaktiebolaget LM Ericsson.
Telefonaktiebolaget LM Ericsson is a publicly traded Swedish corporation

that has no parent corporation. No publicly held company owns more than
10% of its stock.
4. Legal Representatives. List all law firms, partners, and associates that (a)
appeared for the entities in the originating court or agency or (b) are expected to
appear in this court for the entities. Do not include those who have already entered
an appearance in this court. Fed. Cir. R. 47.4(a)(4).
McKool Smith, P.C.:

Jennifer L. Truelove
Nicholas Theodore Matich, IV
Sidley Austin LLP:

Erik Bruce Fountain (withdrawn)
5. Related Cases. Provide the case titles and numbers of any case known to be
pending in this court or any other court or agency that will directly affect or be
directly affected by this court’s decision in the pending appeal. Do not include the
originating case number(s) for this case. Fed. Cir. R. 47.4(a)(5). See also Fed. Cir.
R. 47.5(b).
The decision in this case may affect Samsung Electronics Co., Ltd. v.
Telefonaktiebolaget LM Ericsson, E 01 Zhi Min Chu No. 743 (2020),
currently pending in the People’s Republic of China Wuhan Intermediate
People’s Court, Hubei Province.
TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
BACKGROUND .......................................................................................................2
I. The Parties’ FRAND Obligations and Licensing Negotiations ......................2
II. Ericsson Files Suit Alleging Samsung’s Breach of FRAND

Obligations and Seeking a Declaration That Ericsson Complied
with FRAND ....................................................................................................3
III. Samsung Secretly Files Suit in Wuhan, China and Obtains an Ex

Parte Anti-Suit Injunction Against U.S. Proceedings .....................................4
IV. The U.S. District Court’s Preliminary Injunction ...........................................6
V. Samsung Appeals and Moves To Expedite ...................................................10
ARGUMENT ...........................................................................................................11
I. Samsung Fails To Show Good Cause To Expedite This Appeal ..................11
A. The Injunction Below Does Not Harm—or Impose Conflicting

Obligations on—Samsung...................................................................12
B. Samsung’s Remaining Arguments Fail ...............................................15
C. Samsung’s Own Conduct and Argument Prove Expedition Is

Unwarranted ........................................................................................16
II. Expedition Would Prejudice Ericsson and the Public Interest ......................17
CONCLUSION ........................................................................................................22
i
TABLE OF AUTHORITIES
Page(s)
CASES
ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc.,
694 F.3d 1312 (Fed. Cir. 2012) ....................................................................13, 16
Am. Axle & Mfg., Inc. v. Neapco Holdings LLC,

977 F.3d 1379 (Fed. Cir. 2020) .......................................................................... 13
Broadcom Corp. v. Qualcomm Inc.,

No. 09-1015, 2009 WL 2424407 (Fed. Cir. Jan. 30, 2009)................................ 22
Colo. River Water Conservation Dist. v. United States,

424 U.S. 800 (1976) ............................................................................................ 20
Huawei Techs., Co. v. Samsung Elecs. Co.,

No. 16 Civ. 2787, 2018 WL 1784065
(N.D. Cal. Apr. 13, 2018) ................................................................................... 20
In re Innovatio IP Ventures, LLC Patent Litig.,

No. 11 Civ. 9308, 2013 WL 5593609
(N.D. Ill. Oct. 3, 2013) ........................................................................................ 20
Interdigital Tech. Corp. v. Xiaomi Corp.,

I.A. 8772/2020 in CS(COMM) 295/2020 (High Ct. of Delhi
Oct. 9, 2020) (India) ........................................................................................... 20
Janvey v. Alguire,
647 F.3d 585 (5th Cir. 2011) .............................................................................. 17
Kyocera Wireless Corp. v. Int’l Trade Comm’n,

276 F. App’x 976 (Fed. Cir. 2008) ..................................................................... 21
Lockhart v. Fretwell,
506 U.S. 364 (1993) ............................................................................................ 17
Samsung Elecs. Co., Ltd. v. Telefonaktiebolaget LM Ericsson,

E 01 Zhi Min Chu No. 743 (Wuhan Intermediate People’s Ct.
Dec. 25, 2020) (China) .........................................................................5, 7, 14, 15
ii
SmithKline Beecham Corp. v. Apotex Corp.,

439 F.3d 1312 (Fed. Cir. 2006) .......................................................................... 17
Waste Mgmt., Inc. v. AIG Specialty Ins. Co.,

974 F.3d 528 (5th Cir. 2020) .............................................................................. 17
Xiaomi Commc’n Tech. Co. v. Inter Digital Holdings, Inc.,

E 01 Zhi Min Chu No. 169 (Wuhan Intermediate People’s Ct.
Sept. 23, 2020) (China) ....................................................................................... 20
RULES
Fed. R. App. P. 26(a)(1)(C) ..................................................................................... 18
Fed. R. App. P. 31 Advisory Committee Notes ....................................................... 17
Fed. Cir. Prac. Notes, Rule 27 ................................................................................. 11
OTHER AUTHORITIES
Hon. Richard J. Sullivan & David H. Tennant, 6 Bus. & Com. Litig.
Fed. Cts. (Robert L. Haig, ed., 4th ed., Dec. 2020 Update) ............................... 11
iii
INTRODUCTION
Samsung asks the Court to expedite this appeal, truncating Ericsson’s time
to file its response brief and jumping the queue for oral argument. But Samsung
fails to show that it will suffer any injury (much less irreparable injury) if the
appeal proceeds in the ordinary course. The anti-interference injunction at issue
here does not prevent Samsung from selling its products or address how Samsung
or its competitors conduct their business. Its sole effect is to ensure that two cases,
one in Wuhan and one in the United States, can both proceed. Samsung does not
suggest that litigating the U.S. case subjects it to injury.
Samsung instead urges that this “[C]ourt’s Practice Notes contemplate” that
cases involving injunctions are appropriate “for expedited treatment.” Fed.Cir.Dkt.
4 at 7 (“Mot.”). But the Practice Notes do not say that all injunctions qualify.
They merely recognize that injunctions may justify expedition because they can
have irreparable (market-altering) consequences. Here, however, Samsung does
not identify any action that it wishes to take but is barred from taking by the
district court’s injunction. Samsung’s claim that the district court’s anti-
interference injunction and the Wuhan court’s anti-suit injunction subject it to
“conflicting obligations,” Mot. 7, is false. Samsung does not identify any scenario
in which it cannot comply with both courts’ orders. Nor could it, as the Wuhan
injunction addresses Ericsson’s conduct—it does not impose obligations on
Samsung at all.
Samsung may self-expedite this appeal by filing its opening and reply briefs
early. But there is no justification for shortening Ericsson’s time for preparing its
opposition brief. There is certainly no justification for Samsung allocating
Ericsson less time than Samsung provides itself. While Samsung suggests that
both parties would be given 28 days to prepare their principal briefs, its proposed
briefing schedule proceeds from “docketing.” Mot. 1. That gives Samsung 42
days to prepare its brief after issuance of the district court decision it is addressing,
but leaves Ericsson only 28 days after being served with the brief to which it must
respond. Samsung never explains how giving Ericsson the traditional amount of
time to prepare its brief will harm Samsung. Truncating Ericsson’s time will
disserve the interests of ensuring the Court receives properly considered briefing.
The motion should be denied.
BACKGROUND
I. THE PARTIES’ FRAND OBLIGATIONS AND LICENSING NEGOTIATIONS

Ericsson and Samsung both develop cellular technology and manufacture
cellular equipment. D.Ct.Dkt. 45 at 2 (“Op.”). Both also have substantial global
patent portfolios and have declared numerous patents “essential” to the European
Telecommunications Standards Institute’s (“ETSI”) 2G, 3G, 4G, and 5G cellular
2
standards. Id.; D.Ct.Dkt. 17 ¶¶ 3, 5. Ericsson and Samsung have both contractual-
ly committed to license their standard-essential patents (“SEPs”) on fair, reason-
able, and non-discriminatory terms (“FRAND”) under ETSI’s Intellectual Property
Rights Policy. Op. 2; D.Ct.Dkt. 17 ¶¶ 3, 5. Ericsson’s FRAND commitment is
conditioned on reciprocity: It requires any party that itself has SEPs to provide
Ericsson a reciprocal license to its SEPs when seeking to obtain SEP licenses from
Ericsson. D.Ct.Dkt. 17 ¶ 3; see also D.Ct.Dkt. 30-6 ¶ 4.
Consistent with that, Ericsson and Samsung have in the past executed
reciprocal cross-licenses to each other’s 2G, 3G, and 4G SEPs, with their most
recent agreement running from 2014 through 2020. Op. 2. Anticipating the
expiration of that agreement, the parties negotiated for a year over the terms of a
renewed global cross-license. Id. Those negotiations were unsuccessful. Id.
II. ERICSSON FILES SUIT ALLEGING SAMSUNG’S BREACH OF FRAND

OBLIGATIONS AND SEEKING A DECLARATION THAT ERICSSON COMPLIED
WITH FRAND
This case arises from a suit Ericsson filed on December 11, 2020, in the
Eastern District of Texas—where Ericsson Inc. has its headquarters and Samsung
has a corporate office. Op. 3; D.Ct.Dkt. 1 ¶¶ 14, 22. The complaint alleges that
Samsung had breached its obligation to cross-license its SEPs to Ericsson on
FRAND terms. Op. 1-2; see D.Ct.Dkt.1 ¶ 7. Ericsson also sought a declaration
that it had complied with its own FRAND obligations in negotiating a cross-license
3
with Samsung. D.Ct.Dkt. 1 ¶¶ 65-68. On January 1, 2021—after the parties’
cross-licenses expired—Ericsson filed an amended complaint asserting claims for
infringement of eight of its U.S. patents. D.Ct.Dkt. 17.
III. SAMSUNG SECRETLY FILES SUIT IN WUHAN, CHINA AND OBTAINS AN EX

PARTE ANTI-SUIT INJUNCTION AGAINST U.S. PROCEEDINGS
Despite having previously told a U.S. district court that the Chinese court
system is “antithetical to the United States judicial system,” and that “there’s no
due process requirements like the[re] are in this country,” D.Ct.Dkt. 11-11 at 4,
Samsung proceeded to sue Ericsson in China in the Wuhan Intermediate People’s
Court of Hubei Province on December 7, 2020, Op. 2. Ericsson was not notified of
the lawsuit. Op. 3. Unlike Ericsson’s U.S. suit, Samsung’s Wuhan suit sought a
“one-way” determination: Samsung did not put its own conduct or the cross-
license value of its own SEPs at issue; it instead asked the Wuhan court to set a
FRAND license rate only for Ericsson’s SEPs. See Op. 2, 11-12 & n.10.
On December 14, 2020—three days after Ericsson filed its U.S. suit—
Samsung filed a “Behavior Preservation Application” in the Wuhan court, asking it
to issue an anti-suit injunction to prevent Ericsson from seeking relief relating to its
4G and 5G SEPs anywhere else in the world. Op. 3; see D.Ct.Dkt. 30-4. Samsung
took affirmative steps to keep its application secret from Ericsson, asking the
Wuhan court to “hold the service” of the application until after the injunction
issued. Op. 3, 9; see D.Ct.Dkt. 30-2 at 2-3. Samsung told the Wuhan court that
4
secrecy was necessary because of the probability that, if the application were
known, other courts would take action to prevent enforcement of the anti-suit
injunction in their jurisdiction. Op. 3. Samsung notified Ericsson of the existence
of the Wuhan lawsuit on December 17, 2020, but did not reveal the Behavior
Preservation Application. Id.
On December 25, 2020, the Wuhan court issued the anti-suit injunction.
Op. 4. The injunction prohibited Ericsson from “applying for any preliminary and
permanent injunctive relief or administrative measures” against Samsung relating
to its 4G and 5G SEPs from any other court or agency in the world. Op. 4-5; see
D.Ct.Dkt. 26-9 at 11-13. It also prohibited Ericsson from even seeking adjudica-
tion of “the licensing terms” for its 4G and 5G SEPs, including the “royalty
amount,” and whether Ericsson had “fulfilled [its] FRAND obligations” in
negotiating with Samsung. D.Ct.Dkt. 26-9 at 12. The anti-suit injunction required
Ericsson to “immediately withdraw or suspend such claims that have already been
filed,” id., and prohibited Ericsson from requesting that any other court order
Samsung to withdraw the application or prohibit it from seeking to enforce the
anti-suit injunction, id. at 12-13. The injunction was to remain in effect “[f ]or the
duration” of the Wuhan case. Id. at 11. The order would impose substantial fines
on Ericsson for violating the injunction. Op. 5; see D.Ct.Dkt. 26-9 at 14.
5
The Wuhan court notified Ericsson of the anti-suit injunction on the day it
issued—December 25, 2020. Op. 5; see D.Ct.Dkt. 11-8. That was the first time
Ericsson learned that Samsung had requested an anti-suit injunction. See Op. 2-3.
IV. THE U.S. DISTRICT COURT’S PRELIMINARY INJUNCTION

On December 28, 2020, Ericsson filed an emergency application for a
temporary restraining order and preliminary injunction to prevent Samsung from
interfering with Ericsson’s pending action. D.Ct.Dkt.11. The district court granted
the TRO, and set the motion for preliminary injunction for a hearing. D.Ct.Dkt.
14. After receiving briefing and hearing oral argument from the parties, and
receiving two amicus briefs, the court issued an opinion and granted the
preliminary injunction on January 11, 2021. Op. 15-16.
The district court’s decision began by noting the “well established” principle
“that a federal court is empowered to issue injunctions to protect its jurisdiction.”
Op. 5. The court took pains to make clear, moreover, that “Ericsson is not seeking
an anti-suit injunction to prevent the Chinese Action from proceeding. Rather,
Ericsson is seeking an anti-anti-suit injunction (sometimes called an anti-
interference injunction) to prevent Samsung from attempting to enforce the
[Wuhan anti-suit injunction] and thereby interfering with [the U.S. district court’s]
exercise of its own jurisdiction.” Op. 7 (emphasis added). The court’s analysis
was guided by the Fifth Circuit’s multi-factor “Unterweser” test, which “weigh[s]
6
the need to prevent vexatious or oppressive litigation and to protect the court’s
jurisdiction against the need to defer to principles of international comity.” Op. 6
(quotation marks omitted).
Applying those factors, the district court found that the Wuhan anti-suit
injunction would frustrate the interests of U.S. courts. The Wuhan injunction
would interfere with the district court’s “compelling interest in ensuring that litiga-
tion within its legitimate jurisdiction proceed in this forum.” Op. 8. The Wuhan
injunction would not merely “frustrate and delay the speedy and efficient deter-
mination of legitimate causes of action before [the district court],” but “prohibit[ ]
their adjudication” altogether. Op. 10-11. Indeed, the Wuhan court’s injunction
by its terms would bar litigation of “causes of action properly raised in this Court
and not raised in the Chinese Action” at all. Op. 11 (emphasis omitted).
The Wuhan court, by contrast, would not be adversely affected were
Ericsson’s U.S. suit allowed to proceed, as the claims before each court “are
different.” Op. 8. Even though the parties had been negotiating for a reciprocal
cross-license, Samsung in the Wuhan action requested a one-way rate
determination only for Ericsson’s 4G and 5G SEPs, excluding its own SEPs from
that case. Op. 11; see D.Ct.Dkt. 26-9 at 11-13. Ericsson, on the other hand, asked
the U.S. court “to look at the parties’ pre-suit negotiation conduct and determine
whether the parties breached or complied with their mutual FRAND obligations”
7
to negotiate in good faith. Op. 11-12 (emphasis added). The “Wuhan Court is
asked to provide a number”—indeed, an Ericsson-only number—while “[t]his
Court is asked to evaluate conduct” by both parties. Op. 12. Because the issues
are different, the district court found, “the causes of action [in the U.S. court] have
no implication on the speedy and efficient determination of the issues raised before
the Wuhan Court.” Op. 11. “The Wuhan Court can continue to adjudicate the
claims that Samsung has brought before it, pursuant to its laws and its rules of civil
procedure.” Id. The fact that “both Courts can properly exercise jurisdiction over
the respective causes of action brought before them” weighed strongly in favor of
granting the anti-interference injunction. Op. 8.
The balance of hardships likewise favored issuing an anti-interference
injunction. Allowing Samsung to enforce the “sweeping provisions” of the Wuhan
anti-suit injunction would deprive Ericsson—“[w]ithout notice or opportunity to be
heard”—of its “right to attempt to obtain redress for claims it has the right to bring
under the laws of the United States.” Op. 9. Samsung, on the other hand, would
not suffer any hardship from proceeding in both courts. To the contrary, Samsung
“agreed on the record . . . that parallel actions are inevitable,” and had “readily
admitted” that Ericsson’s U.S. action was not “vexatious or oppressive” to
Samsung. Op. 10 (citing D.Ct.Dkt. 43 at 36:4-10, 76:18-21).
8
The district court did not doubt that the “real motivation” and effect of the
Wuhan anti-suit injunction was to “put Ericsson in a weaker negotiating position
when it comes to cross licensing its 4G and 5G SEPs to both Samsung and others.”
Op. 10. Ericsson and Samsung had been negotiating reciprocal cross-licenses.
But the Wuhan injunction would give Samsung the upper hand by shielding
Samsung’s own SEPs and negotiating conduct from challenge by Ericsson, while
leaving Samsung free to attack Ericsson with impunity. The Wuhan court would
impose a one-way license rate on Ericsson’s SEPs—a rate other parties could
invoke in future negotiations with Ericsson—yet Ericsson would be barred from
seeking an adjudication of the cross-license value of Samsung’s SEPs. See Op. 11-
12.
The district court further explained that the Wuhan injunction would
“prevent Ericsson from seeking injunctive relief relating to its 4G and 5G SEPs in
any tribunal in the world except in the Wuhan Court,” while not similarly limiting
Samsung’s options. Op. 12. Samsung thus has since asserted its own patents
against Ericsson in the U.S. in the International Trade Commission (“ITC”), and
challenged Ericsson patents in the U.S. before the Patent and Trademark Office
(“PTO”), while precluding Ericsson from asserting its patents here. See pp. 19-20,
infra. Allowing Samsung to “seek redress of its claims” in the U.S., while “[tying]
9
Ericsson’s hands from doing the same,” “would be the height of inequity (and
hypocrisy).” Op. 13.
The district court granted Ericsson’s request for an anti-interference
injunction. The injunction has three components. It requires that Samsung:
(1) “Take no action in the Chinese Action that would interfere with this
Court’s jurisdiction to determine whether Ericsson or Samsung have
met or breached their FRAND obligations” relating to their 4G and
5G SEPs or “with any other cause of action before this Court”;
(2) “Take no action in the Chinese Action that would deprive Ericsson”
of its “rights to assert the full scope” of U.S. patent rights “in the
United States”; and
(3) Indemnify Ericsson from fines or penal assessments incurred pursuant

to the enforcement of the Wuhan anti-suit injunction, but only as to
fines levied against Ericsson based on lawful litigation in the United
States of “claims relating to the 4G and 5G SEPs identified or
involved in this case.”
Op. 15 (footnote omitted).
V. SAMSUNG APPEALS AND MOVES TO EXPEDITE

Four days after the district court issued its anti-interference injunction,
Samsung filed a notice of appeal. D.Ct.Dkt. 56. Eleven days later, Samsung filed
a motion to expedite the briefing schedule and oral argument for the appeal. Mot.
Samsung requests that it file its opening brief on February 22, 2021 (28 days after
docketing; 42 days after the district court’s order); that Ericsson be required to file
its brief by March 22, 2021 (28 days after Samsung’s opening brief ); and that
Samsung file its reply on April 5, 2021 (14 days after Ericsson’s response).
10
Mot. 1. This Court ordered Samsung to file its opening brief on February 22.
Fed.Cir.Dkt. 5.
ARGUMENT
Samsung fails to establish the “good cause” necessary to justify expedition,
to truncate Ericsson’s time to respond, and to push this case to the front of the
argument queue. Samsung does not identify anything it proposes to do that the
district court’s anti-interference injunction prevents. The injunction merely
prevents interference with U.S. proceedings. Samsung never identifies any harm it
will suffer from allowing the Wuhan case and U.S. litigation to proceed, as the
anti-interference injunction allows. And Samsung fails to justify truncating
Ericsson’s time to file a response.
I. SAMSUNG FAILS TO SHOW GOOD CAUSE TO EXPEDITE THIS APPEAL

“[M]otions to expedite proceedings are not routinely granted.” Fed. Cir.
Practice Notes to Rule 27. A case is “appropriate” for expedition only “where the
normal briefing and disposition schedule may adversely affect one of the parties.”
Id. Good cause generally requires showing the party will suffer “irreparable harm
. . . unless expedited review is permitted.” Hon. Richard J. Sullivan & David H.
Tennant, 6 Bus. & Com. Litig. Fed. Cts. § 60:87 (Robert L. Haig, ed., 4th ed., Dec.
2020 Update). But Samsung fails to show that it will suffer any harm—much less
irreparable harm—absent expedition of the appeal and truncation of Ericsson’s
11
time for briefing under this Court’s Rules. Samsung’s own conduct undermines its
assertion that expedition is necessary.
A. The Injunction Below Does Not Harm—or Impose Conflicting

Obligations on—Samsung
1. Samsung’s primary argument seems to be that, because the district
court entered a preliminary injunction, “[t]his appeal is the type that this [C]ourt’s
Practice Notes contemplate for expedited treatment.” Mot. 7. The Practice Notes,
however, do not say that all preliminary injunctions qualify for expedition. They
merely recognize that injunctions often qualify because they can impose harm on
one party or the public during their duration, such as by preventing a party from
selling its products or altering how companies conduct their business.
But the anti-interference injunction issued below has no such effect. The
district court’s injunction merely preserves the status quo by “ensuring that
litigation within [a] legitimate jurisdiction” may “proceed in th[at] forum.” Op. 8.
Samsung may pursue its case in Wuhan, and the U.S. district court litigation may
proceed in parallel. Samsung nowhere argues it is irreparably harmed because the
U.S. proceedings are, as a result of the anti-interference injunction, permitted to
continue for the duration of an ordinary appeal. Samsung conceded in the district
court that parallel litigation in the U.S. was “inevitable,” and it “readily admitted”
that litigating the U.S. action is not “vexatious or oppressive” to Samsung. Op. 10
(citing D.Ct.Dkt. 43 at 36:4-10, 78:18-21). And any “[l]itigation costs” involved in
12
such proceedings categorically “are not . . . irreparable harm”—which is why
Samsung has not pressed such costs as a basis for expedition. ActiveVideo Net-
works, Inc. v. Verizon Commc’ns, Inc., 694 F.3d 1312, 1337 (Fed. Cir. 2012); see
Am. Axle & Mfg., Inc. v. Neapco Holdings LLC, 977 F.3d 1379, 1381 (Fed. Cir.
2020) (“[c]ontinued litigation” is not irreparable harm).
Samsung offers the vague assertion that the district court’s anti-interference
injunction “limits its rights throughout the United States in any action Ericsson
may file on any 4G or 5G standard-essential patent in its portfolio.” Mot. 7. But
Samsung does not identify any action—not one—that it may wish to take that is
barred by the injunction. That speaks volumes.
2. Samsung declares that it is now subject to “conflicting obligations in
two courts.” Mot. 7. But Samsung never identifies any such conflicting
obligations, because there are none. The district court’s injunction requires that
Samsung (1) “[t]ake no action in the Chinese Action that would interfere with [the
district court’s] jurisdiction”; (2) “[t]ake no action in the Chinese Action that
would deprive Ericsson” of its rights to “assert the full scope” of U.S. patent rights
“in the United States”; and (3) “indemnify Ericsson” in the event Ericsson is fined
under the Wuhan anti-suit injunction. Op. 15.
Samsung never explains how any of those provisions are inconsistent with
an obligation it has in Wuhan. Not one requires Samsung to take any action
13
now—two of the clauses require that Samsung refrain from taking action, and the
the indemnification provision is contingent on events that have not happened, and
may never happen. Moreover, the Wuhan court’s anti-suit injunction does not
impose any “conflicting obligations” on Samsung. It concerns Ericsson’s
actions—not Samsung’s. See D.Ct.Dkt. 26-9 at 11-13 (Wuhan order). Samsung
also overlooks that “the legal questions presented to each Court are different.” Op.
11-12 & n.10. The Wuhan proceeding Samsung initiated seeks to create a
forward-looking rate for Ericsson’s patents only. The U.S. case addresses the
conduct of both parties in their negotiations to consummate a cross-license. See
pp. 7-8, supra.1
Samsung more broadly urges that “[t]he district court’s order is [in] conflict
with the Chinese court’s order.” Mot. 8. But it cites no harm to Samsung from
that conflict, much less ongoing harm that will be remedied through expedition.
Any conflict is best addressed through due consideration and proper briefing. And
1
For that reason, it is not clear the decision in the Wuhan court will have any
impact on the parties. In seeking a one-way FRAND license for Ericsson’s SEPs
in Wuhan, Samsung kept its own FRAND obligations outside the case. D.Ct.Dkt.
11-15. But Ericsson has no contractual obligation to enter a one-way license with
Samsung. Because Ericsson checked a “reciprocity” box on the ETSI licensing
declaration form, D.Ct.Dkt. 30-6 ¶ 4, it has no obligation to enter into a one-way
FRAND rate with entities, like Samsung, that have relevant SEPs that could be
cross-licensed to Ericsson. The Wuhan court, moreover, cannot impose a contract
on the parties without their consent, and Ericsson gave no such consent. D.Ct.Dkt.
30 at 7-8.
14
Samsung again has failed to identify even one action that it wishes to take but is
prohibited from taking as a result of the purported “uncertainty for the parties”
resulting from that conflict. Mot. 8-9.
B. Samsung’s Remaining Arguments Fail

Samsung’s remaining assertions fare worse still. Many are non-sequiturs.
For example, Samsung notes that, since January 1, 2021, Ericsson has filed
lawsuits against Samsung seeking injunctive relief for infringement of (1) patents
that are not standard-essential (2) in “Belgium, Germany, and the Netherlands.”
Mot. 8 (emphasis added). But Samsung never explains why suits addressing
patents that are not SEPs are relevant. The Wuhan anti-suit injunction does not
address non-standard-essential patents, D.Ct.Dkt. 26-9 at 3, 11-13, so those actions
are all beside the point. And the U.S. anti-interference injunction does not address
anything outside of the U.S., Op. 15, rendering the Belgian, German, and Dutch
actions doubly irrelevant. Nowhere does Samsung say how this appeal can have
any effect on those suits regardless of how it is decided. A fortiori, they are
immaterial to when this appeal is briefed and decided.
Samsung says it “anticipates that further suits seeking injunctive relief on
standard-essential patents at issue in the Chinese action will follow.” Mot. 8. That
is pure speculation. Any suits outside the U.S., moreover, would be unaffected by
the U.S. anti-interference injunction if they were ever filed. Regardless, Samsung
15
can point to no existing effects from the U.S. anti-interference injunction that
require expedition of this appeal now.
Finally, Samsung points to the fact that, under the U.S. anti-interference
injunction, it “must indemnify Ericsson against any monetary sanctions” that might
be imposed by the Wuhan court. Mot. 8. Whether and when any such sanctions
might be imposed is also pure speculation—Samsung never suggests they are
likely, much less imminent. Regardless, “[s]traight-forward monetary harm . . . is
not irreparable.” ActiveVideo, 694 F.3d at 1338. If Samsung has to pay an
indemnity while this appeal is pending, and prevails on appeal, monetary relief can
make Samsung whole. There is no current adverse effect to Samsung from the
district court’s injunction that warrants expedition of this appeal.
C. Samsung’s Own Conduct and Argument Prove Expedition Is

Unwarranted
Samsung’s own conduct belies its claimed need for expedition. Samsung
did not file its notice of appeal until four days after the district court issued the
injunction, and eleven more days passed before Samsung sought expedition.
Fed.Cir.Dkt. 4. Samsung then proposed a briefing schedule giving itself until Feb-
ruary 22, 2021 to file its opening brief. Mot. 1. While that is “28 days after dock-
eting,” id., the proposed deadline gives Samsung 42 days to prepare its brief after
the district court’s January 11, 2021 decision. Nor is Samsung’s proposal to file its
16
reply brief in 14 days a sign of alacrity. That was the default period for reply
briefs until 2018. See Fed. R. App. P. 31 Advisory Committee Notes.
Samsung, moreover, declines to even mention the merits. It identifies no
legal error in the decision below, and likewise ignores the “deferential standard”
this Court would apply in reviewing the injunction. Janvey v. Alguire, 647 F.3d
585, 591-92 (5th Cir. 2011). Absent reason to believe the district court’s decision
will be reversed, there can be no cognizable harm from proceeding in the ordinary
course. The supposed victim of a correct decision “suffer[s] no prejudice.” Lock-
hart v. Fretwell, 506 U.S. 364, 372 (1993). Having failed to offer any attack on
the decision below in its motion, Samsung cannot concoct one for the first time on
reply when Ericsson cannot respond. See SmithKline Beecham Corp. v. Apotex
Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006); Waste Mgmt., Inc. v. AIG Specialty
Ins. Co., 974 F.3d 528, 533 n.2 (5th Cir. 2020).
II. EXPEDITION WOULD PREJUDICE ERICSSON AND THE PUBLIC INTEREST

Expedition is particularly unwarranted here because it would harm
Ericsson’s and the public’s interest in being heard on matters of importance.
A. As explained above, Samsung’s proposed schedule would give it 42
days from the district court’s decision to prepare its opening brief, but offer
Ericsson only 28 days to prepare a response after being served with the Samsung
brief it must oppose. Mot. 1. That is 14 days less than Ericsson would have under
17
the ordinary rules.2 Samsung nowhere explains why those 14 days would make a
difference to any putative injury.
By contrast, denying Ericsson the traditional amount of time threatens
serious prejudice. Ericsson’s counsel is heavily engaged in pressing matters, both
before this Court and other courts of appeals, as well as a March 1 Supreme Court
argument, during the truncated period Samsung proposes.3 The thorough 15-page
decision below, moreover, addresses a hearing transcript that is over 100 pages,
two amicus briefs, and an extensive evidentiary record. There is no compelling
reason to deny Ericsson the ordinary period of time for preparing its response
(including the possibility of a short extension if one proves necessary).
2
Samsung describes this as 12 days shorter than the default 40-day period, Mot. 9,
but overlooks a difference: Because the 40-day mark would fall on a weekend,
Ericsson would otherwise have until Monday, April 5, 2021—42 days total—to
respond. See Fed. R. App. P. 26(a)(1)(C).
3
Counsel must prepare a merits-stage reply brief in United States v. Arthrex, Inc.,
Nos. 19-1434 et al. (U.S.), due on February 19, 2021, and prepare for a Supreme
Court argument in that case, scheduled for March 1, 2021. Other matters include
the preparation of a petition for a writ of certiorari seeking review in Ericsson Inc.
v. TCL Communication Technology Holdings, Ltd., No. 18-2003 (Fed. Cir.), due
on February 12, 2021; preparation of a petition for rehearing in Esparraguera v.
Army, No. 19-2293 (Fed. Cir.), currently due on February 18, 2021; preparation of
an opening brief in Uniloc 2017 LLC v. Google LLC, No. 21-1498 (Fed. Cir.),
currently due on March 8, 2021; preparation of an appellee response brief in
Continental Automotive Systems, Inc. v. Avanci, L.L.C., No. 20-11032 (5th Cir.),
currently due on March 10, 2021; preparation of an appellee response brief in
Chesapeake Energy Marketing, L.L.C. v. FERC, No. 20-60970 (5th Cir.), currently
due on March 12, 2021; and preparation of an opening brief in Uniloc USA, Inc. v.
Motorola Mobility LLC, No. 21-1555 (Fed. Cir.), currently due on March 22, 2021.
18
B. Expedition would also undermine the public interest, as well as this
Court’s interest in being fully apprised of the larger context of the matter before it.
While Ericsson believes the decision below is correct—and Samsung has offered
no contrary argument—the issues arising from parallel foreign litigation are of
significant interest beyond the parties. Samsung told a U.S. district court that the
Chinese court system is “antithetical to the United States judicial system,” and
“there’s no due process requirements like the[re] are in this country.” D.Ct.Dkt.
11-11 at 4. Yet it filed a suit there and sought an ex parte injunction to foreclose
co-pending U.S. litigation. The district court thus did “not disagree” that “the real
motivation behind” Samsung’s decision to obtain the anti-suit injunction from the
Wuhan court was to disadvantage Ericsson in cross-license negotiations. Op. 10.
Indeed, since the Wuhan anti-suit injunction issued, Samsung has sought to
gain the upper hand by bringing litigation in the very U.S. forums it would deny to
Ericsson. Samsung has filed a complaint in the U.S. ITC seeking injunctive relief
against Ericsson for alleged infringement of Samsung’s patents. See Certain
Wireless Communications Equipment and Components Thereof, Inv. No. 337-TA-
3522 (Jan. 7, 2021). And it has filed for inter partes review before the U.S. PTO
to invalidate Ericsson SEPs covered by the Wuhan anti-suit injunction, including
two patents at issue in this case. See Samsung Elecs. Co. v. Telefonaktiebolaget
LM Ericsson, IPR Nos. 2021-487, -447, -446, 486 (Jan. 29, 2021).
19
The strategy Samsung deployed here—filing a secret action in Wuhan and
then seeking to suppress litigation in forums it perceived as more hospitable to
patent-holders—reflects a pattern affecting the entire patent-holding community.4
For example, in Xiaomi Communication Technology Co. v. Inter Digital Holdings,
Inc., a Chinese phone manufacturer, Xiaomi, filed a preemptive, ex parte FRAND
suit against InterDigital, a U.S. cellular patent holder, in the Wuhan court and ob-
tained an anti-suit injunction similar to the one Samsung obtained here. See
D.Ct.Dkt. 11-7 at 3, 10-11 (order of Wuhan court). The court in Delhi, where such
claims were pending, decried the “manner in which” the Wuhan court proceeded
and Xiaomi’s tactics as “less than fair” and “rather disturbing.” D.Ct.Dkt. 11-2
¶ 56 (order of Delhi court). Just like in Inter Digital, neither Ericsson nor the lower
court was given notice that the Wuhan court was preparing to paralyze a patent
holder’s ability to protect its intellectual property rights, including U.S. rights, out-
4
Samsung asserts that suing in Wuhan was reasonable because it is one of only
two courts in the world that will adjudicate a FRAND rate without consent of both
parties. Mot. 2-3. But Samsung rejected Ericsson’s offer of binding arbitration.
D.Ct.Dkt. 1 ¶¶ 42-43. Samsung’s new rationalization is thus mere pretense. Be-
sides, U.S. courts can adjudicate whether a global offer complies with a FRAND
obligation. See, e.g., Huawei Techs., Co. v. Samsung Elecs. Co., No. 16 Civ. 2787,
2018 WL 1784065, at *9 (N.D. Cal. Apr. 13, 2018). Such claims are contractual
matters subject to federal jurisdiction, which this Court has a “virtually unflagging
obligation” to address. Colo. River Water Conservation Dist. v. United States, 424
U.S. 800, 817 (1976); cf. In re Innovatio IP Ventures, LLC Patent Litig., No. 11
Civ. 9308, 2013 WL 5593609, at *6 (N.D. Ill. Oct. 3, 2013) (assessing “the
technical contribution of the patent portfolio as a whole to the standard” to resolve
FRAND dispute).
20
side of China. D.Ct.Dkt. 11-12 ¶ 8. Whether or when such tactics may proceed
unaddressed is of significant concern to patentees, who may wish to participate in
this case as amici.
Below, amici addressed “whether the Wuhan court’s procedures provide . . .
sufficient notice and due process.” D.Ct.Dkt. 29 at 3 (amicus brief by the
Honorable Paul R. Michel (ret.)); see also D.Ct.Dkt. 32 at 2 (amicus brief by
Professor Adam Mossoff of the Antonin Scalia Law School at George Mason Uni-
versity, addressing due process and other concerns related to worldwide anti-suit
injunctions). Professor Mossoff sought to address whether Chinese national indus-
trial policy affects the adjudication of FRAND rates by driving them lower.
D.Ct.Dkt. 32 at 2-3. Even broader amicus participation can be expected in this
Court. This Court should not adopt a schedule that makes amicus contributions
impossible or chaotic.
* * * * *
Samsung “may, of course, self-expedite” its opening and reply briefs,
including by filing earlier than in its proposed schedule. Kyocera Wireless Corp.
v. Int’l Trade Comm’n, 276 F. App’x 976, 977 (Fed. Cir. 2008). Ericsson has no
objection to this Court’s usual course of placing this appeal on the next available
oral argument calendar after briefing is completed. But Samsung has not shown
why Ericsson’s time “to file its briefs should be shortened or that oral argument
21
should be expedited” further. Broadcom Corp. v. Qualcomm Inc., No. 09-1015,
2009 WL 2424407, at *1 (Fed. Cir. Jan. 30, 2009).
CONCLUSION
Samsung’s motion to expedite briefing and oral argument should be denied.
February 3, 2021 Respectfully submitted,
/s/ Jeffrey A. Lamken

Theodore Stevenson, III Jeffrey A. Lamken
Nicholas M. Mathews Counsel of Record
MCKOOL SMITH, P.C. Michael G. Pattillo, Jr.
300 Crescent Court, Suite 1500 Rayiner I. Hashem
Dallas, TX 75201 James A. Barta
(214) 978-4044 (facsimile) The Watergate, Suite 500
600 New Hampshire Avenue, N.W.
Christine M. Woodin Washington, D.C. 20037
MCKOOL SMITH, P.C. (202) 556-2000 (telephone)
300 S. Grand Avenue, Suite 2900 (202) 556-2001 (facsimile)
Los Angeles, CA 90071 jlamken@mololamken.com
(213) 694-1200 (telephone)
(213) 694-1234 (facsimile) Eugene A. Sokoloff
Elizabeth K. Clarke
Blake H. Bailey MOLOLAMKEN LLP
MCKOOL SMITH, P.C. 300 N. LaSalle Street
600 Travis Street, Suite 7000 Chicago, IL 60654
Houston, TX 77002 (312) 450-6700 (telephone)
(713) 485-7300 (telephone) (312) 450-6701 (facsimile)
(713) 485-7344 (facsimile)
Jennifer E. Fischell
Samuel F. Baxter MOLOLAMKEN LLP
MCKOOL SMITH, P.C. 430 Park Avenue
104 E. Houston Street, Suite 300 New York, NY 10022
Marshall, TX 75670 (212) 607-8160 (telephone)
(903) 923-9000 (telephone) (212) 607-8161 (facsimile)
(903) 923-9099 (facsimile)
22
CERTIFICATE OF COMPLIANCE
1. This response complies with the type-volume limitation of Fed. R. App. P.
27(d)(2)(A) because this response contains 5,172 words, excluding the parts
of the motion exempted by Fed. R. App. P. 27(d)(2) and Fed. R. App. P.
27(a)(2)(B).
2. This response complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because
this motion has been prepared in a proportionally spaced typeface using
Microsoft Word in Times New Roman 14-point font.
February 3, 2021 /s/ Jeffrey A. Lamken

Jeffrey A. Lamken

21-02-03 Ericsson Opposition To Samsung Motion To Expedite Appeal

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21-02-03 Ericsson Opposition To Samsung Motion To Expedite Appeal

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Case: 21-1565 Document: 9 Page: 1 Filed: 02/03/2021

SAMSUNG ELECTRONICS CO., LTD.; SAMSUNG ELECTRONICS

On Appeal from the United States District Court

APPELLEES’ OPPOSITION TO APPELLANTS’ MOTION

Theodore Stevenson, III Jeffrey A. Lamken

Counsel for Ericsson Inc. and Telefonaktiebolaget LM Ericsson

Counsel for Ericsson Inc. and Telefonaktiebolaget LM Ericsson

FORM 9. Certificate of Interest Form 9 (p. 1)

UNITED STATES COURT OF APPEALS

Case Number 2021-1565

Instructions: Complete each section of the form. In answering items 2 and 3, be

Name: Jeffrey A. Lamken

FORM 9. Certificate of Interest Form 9 (p. 2)

1. Represented 2. Real Party in 3. Parent Corporations

Ericsson Inc. See addendum.

Telefonaktiebolaget LM Ericsson See addendum.

✔ Additional pages attached

FORM 9. Certificate of Interest Form 9 (p. 3)

6. Organizational Victims and Bankruptcy Cases. Provide any information

3. Parent Corporations and Stockholders. Fed. Cir. R. 47.4(a)(3).

Ericsson Inc. is a Delaware corporation that is wholly owned by Ericsson

Telefonaktiebolaget LM Ericsson is a publicly traded Swedish corporation

McKool Smith, P.C.:

Sidley Austin LLP:

I. The Parties’ FRAND Obligations and Licensing Negotiations ......................2

II. Ericsson Files Suit Alleging Samsung’s Breach of FRAND

III. Samsung Secretly Files Suit in Wuhan, China and Obtains an Ex

IV. The U.S. District Court’s Preliminary Injunction ...........................................6

V. Samsung Appeals and Moves To Expedite ...................................................10

A. The Injunction Below Does Not Harm—or Impose Conflicting

B. Samsung’s Remaining Arguments Fail ...............................................15

C. Samsung’s Own Conduct and Argument Prove Expedition Is

Am. Axle & Mfg., Inc. v. Neapco Holdings LLC,

Broadcom Corp. v. Qualcomm Inc.,

Colo. River Water Conservation Dist. v. United States,

Huawei Techs., Co. v. Samsung Elecs. Co.,

In re Innovatio IP Ventures, LLC Patent Litig.,

Interdigital Tech. Corp. v. Xiaomi Corp.,

Kyocera Wireless Corp. v. Int’l Trade Comm’n,

Samsung Elecs. Co., Ltd. v. Telefonaktiebolaget LM Ericsson,

SmithKline Beecham Corp. v. Apotex Corp.,

Waste Mgmt., Inc. v. AIG Specialty Ins. Co.,

Xiaomi Commc’n Tech. Co. v. Inter Digital Holdings, Inc.,

Fed. R. App. P. 31 Advisory Committee Notes ....................................................... 17

Fed. Cir. Prac. Notes, Rule 27 ................................................................................. 11

appeal proceeds in the ordinary course. The anti-interference injunction at issue

suggest that litigating the U.S. case subjects it to injury.

cases involving injunctions are appropriate “for expedited treatment.” Fed.Cir.Dkt.

have irreparable (market-altering) consequences. Here, however, Samsung does

interference injunction and the Wuhan court’s anti-suit injunction subject it to

injunction addresses Ericsson’s conduct—it does not impose obligations on

opposition brief. There is certainly no justification for Samsung allocating

briefing schedule proceeds from “docketing.” Mot. 1. That gives Samsung 42

The motion should be denied.

I. THE PARTIES’ FRAND OBLIGATIONS AND LICENSING NEGOTIATIONS

cellular equipment. D.Ct.Dkt. 45 at 2 (“Op.”). Both also have substantial global

Telecommunications Standards Institute’s (“ETSI”) 2G, 3G, 4G, and 5G cellular

standards. Id.; D.Ct.Dkt. 17 ¶¶ 3, 5. Ericsson and Samsung have both contractual-

ly committed to license their standard-essential patents (“SEPs”) on fair, reason-

able, and non-discriminatory terms (“FRAND”) under ETSI’s Intellectual Property

Rights Policy. Op. 2; D.Ct.Dkt. 17 ¶¶ 3, 5. Ericsson’s FRAND commitment is

Ericsson. D.Ct.Dkt. 17 ¶ 3; see also D.Ct.Dkt. 30-6 ¶ 4.

renewed global cross-license. Id. Those negotiations were unsuccessful. Id.