21-02-08 Samsung Reply ISO Motion To Expedite

Case: 21-1565 Document: 10-1 Page: 1 Filed: 02/08/2021 (1 of 33)
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.
Appeal from the U.S. District Court for the Southern District
of Texas, No. 2:20-CV-380, Judge J. Rodney Gilstrap
REPLY IN SUPPORT OF APPELLANTS’ MOTION TO

EXPEDITE BRIEFING AND ORAL ARGUMENT
Gregory S. Arovas John C. O’Quinn

KIRKLAND & ELLIS LLP F. Christopher Mizzo
601 Lexington Avenue William H. Burgess
New York, NY 10022 KIRKLAND & ELLIS LLP
(212) 446-4800 1301 Pennsylvania Ave., N.W.
Washington, DC 20004
(202) 389-5000
Counsel for Appellants
February 8, 2021
TABLE OF CONTENTS
Introduction ................................................................................................ 1
1. The District Court’s Injunction Severely Prejudices Samsung

in a Global Dispute, Nullifies a Foreign Court’s Order, and
Warrants an Expedited Appeal. ....................................................... 3
2. Ericsson’s Conduct Belies Its Opposition. ...................................... 10
3. Samsung’s Proposed Schedule is Reasonable and Does Not

Prejudice Ericsson. .......................................................................... 11
4. Ericsson’s Opposition to Scheduling Oral Argument

Promptly Demonstrates That Ericsson Seeks Delay for
Tactical Gain. .................................................................................. 14
Conclusion ................................................................................................. 14
ATTACHMENTS
Note: Attachments A-C are appended to Samsung’s opening motion.
September 27, 2020, letter from Ericsson to Samsung

D
proposing arbitration
November 10, 2020, response from Samsung to Ericsson’s

E
arbitration proposal
January 18-22, 2021, exchange of letters between Ericsson and

F Samsung’s counsel re: Ericsson’s accusation of “potential
violation of TRO and preliminary injunction”
1
INTRODUCTION
Ericsson’s opposition is long on rhetoric but short on substance. It
disparages another sovereign’s courts and procedures, while inviting
this Court to treat the imposition on international comity, and punitive
measures against Samsung, as a run-of-the-mill case.
Given the injunction’s scope, stakes, and direct conflict with a
foreign court’s legitimate order in a legitimate proceeding, it is unclear
why Ericsson would oppose expedited briefing and argument here.
Ericsson’s opposition is especially puzzling after its conduct in the
Eastern District of Texas to obtain the injunction. Below, Ericsson
requested expedited action, and got it. Ericsson moved ex parte on an
“emergency” basis and received a TRO at 10:00am that same morning,
the Monday after Christmas. (Attach.B at 4).1 Then it received an
injunction after briefing that took nine days from start to finish,
with Samsung ordered to file its opposition on New Year’s Day, and
appear at an in-person hearing. Ericsson argued then that the court
and Samsung should act quickly. But now that Ericsson has the
injunction (and leverage) it wanted, it argues the resulting appeal
1Attachments A-C are attached to Samsung’s opening motion.

Attachments D-F are attached to this reply.
1
should proceed slowly. Ericsson asserts that a 70-day schedule would
somehow deprive this Court of “properly considered briefing,” (Opp.2),
and that the same considerations that warranted extreme haste below
are insignificant after all.
Ericsson’s arguments opposing Samsung’s modest request should
be seen for what they are: delay to extract negotiation leverage in the
midst of a global dispute, triggered by the December 31 expiration of
the parties’ worldwide cross-license. Having gotten everything it
wanted from the Eastern District of Texas, Ericsson would like to slow-
walk this appeal, even as it files one patent suit after another around
the world. Indeed, the district court’s injunction is explicitly designed
to strengthen Ericsson’s “negotiating position” in that broader conflict
(Attach.A at 10, 14 (“risk of unbalanced economic pressure”)), by
undoing provisions of a Chinese court’s order and preventing Samsung
from enforcing others. The injunction not only prevents the Chinese
court from enforcing its own order, by requiring Samsung to indemnify
Ericsson against fines, but Ericsson is using it to hamstring Samsung in
even responding to Ericsson’s pleadings in China.
2
Samsung’s motion should have been unopposed. Samsung
promptly appealed, and proposed a modestly expedited schedule that
places nearly all the burden of expediting on Samsung and asks the
Court to schedule oral argument at the next available session.
Ericsson’s “prejudice” arguments are makeweight.
Perhaps the clearest evidence that Ericsson seeks delay for
tactical advantage is its refusal even to consent to prompt scheduling of
oral argument. Ericsson gives no reason, and does not suggest that
prompt scheduling would prejudice anyone, but opposes nonetheless.
Samsung’s motion should be granted, and Ericsson fails to show
otherwise.
1. The District Court’s Injunction Severely Prejudices

Samsung in a Global Dispute, Nullifies a Foreign Court’s
Order, and Warrants an Expedited Appeal.
A motion to expedite “is appropriate when the normal briefing and
disposition may adversely affect one of the parties, as in appeals
involving preliminary or permanent injunctions….” Fed.Cir.R. 27
Practice Note. The district court’s order repeats several times that it is
designed to strengthen Ericsson’s negotiating position in a worldwide
dispute with Samsung, before concluding with three provisions that do
3
just that and that nullify portions of a foreign court order. Attach.A at
12, 14-15. Expediting briefing and argument should be uncontroversial.
Ericsson, however, digresses at length into the merits of the appeal, and
spins a misleading tale to contend that Samsung is somehow not
adversely affected by the injunction (Opp.12-16), and thus to try to slow
down the appeal. Ericsson is wrong.
Samsung and Ericsson each committed to license their 4G and 5G
standard-essential patents on FRAND terms, as part of the standard-
setting process. All agree that the underlying dispute here concerns
Samsung and Ericsson’s negotiations toward a worldwide cross-license
to FRAND-encumbered standard-essential patents. The preexisting
license expired December 31, 2020, negotiations toward a new license
stalled, and litigation ensued.
Samsung and Ericsson are multinational companies
headquartered in Korea and Sweden, and the dispute concerned a
worldwide portfolio. Samsung filed first in China, where both parties
have substantial operations. Samsung asked that court to enforce
Ericsson’s FRAND commitment by setting a rate for Ericsson’s global
portfolio of 4G and 5G standard-essential patents. (E.D.Tex.Dkt.#26-9).
4
Ericsson calls Samsung’s complaint “secret” because Ericsson did not
receive immediate service. (Opp.4). No such requirement exists.
American plaintiffs presumptively have 90 days to serve complaints.
Fed.R.Civ.P. 4(m). In China, the court performs service, often by mail,
and Samsung notified Ericsson as a courtesy 10 days after filing.
E.D.Tex.Dkt.#26-12 at 6-7 & n.11 (¶13), E.D.Tex.Dkt.#11-12 (¶6).
Despite its rhetoric, Ericsson has never disputed Samsung’s showing
that it complied with Chinese law and practice.
Ericsson quotes an older pleading, without context, to disparage
the Chinese judiciary, but it has never disputed Samsung’s showing
that China provides a fair forum. E.D.Tex.Dkt#26-12 at 3-10 (Kong
Decl.); E.D.Tex.Dkt#26-13 at 1-3 (Rader Decl.). Indeed, Ericsson stated
below that “the fairness of Chinese courts is not at issue.”
E.D.Tex.Dkt#30 at 8. China is one of two jurisdictions that sets
worldwide FRAND rates without requiring all parties’ consent—which
is an approach Ericsson has forcefully endorsed.2 In the landmark case
2
Ericsson notes, “U.S. courts can adjudicate whether a global offer
complies with a FRAND obligation,” (Opp. 20 n.4), but ignores that U.S.
courts do not set global FRAND rates without the parties’ consent. E.g.,
Apple, Inc. v. Motorola Mobility, 2012 WL 5943791, at *2 (W.D. Wis.
2012) (dismissing case where Apple did not agree to be bound by rate).
5
in the other such jurisdiction, Ericsson intervened to urge the UK
Patent Court to set a worldwide FRAND rate for a patentee’s portfolio
of FRAND-encumbered standard-essential patents. E.D.Tex.Dkt.#37-1
at 10 ¶31. Ericsson argued that the alternative of piecemeal country-
by-country litigation would be “unworkable,” and against industry
practice and standard-setting organization policy. Id. The UK Patent
Court agreed, and the Chinese patent courts followed suit in later cases.
E.D.Tex.Dkt.#26-12 at 4-5 (¶9). Samsung’s filing asked the Chinese
courts to do here what Ericsson had urged the UK courts to do in 2017.
E.D.Tex.Dkt.#26-9.3 Now that it does not like the forum where
Samsung’s first-filed action was brought, Ericsson argues the opposite.
Samsung also asked the Chinese court to enter an antisuit
injunction to prevent Ericsson from filing duplicative claims or seeking
injunctive relief in other forums on the underlying standard-essential
patents. E.D.Tex.Dkt.#30-4. Ericsson calls that procedure “secret,” but
Huawei involved U.S. patents, and Innovatio proceeded with the

parties’ consent.
3 Ericsson cites its “offer of binding arbitration,” (Opp.20 n.4), but it
omits any substance, including Samsung’s response to that “offer”

explaining Ericsson’s one-sided proposal would have eliminated any
appeal right and had the arbitrator determine a “maximum royalty”
rather than a “reasonable royalty.” (See Attachments D and E). After
Samsung explained those defects, Ericsson refused to engage further.
6
ignores the law. In limited circumstances, Chinese and American
courts may restrain parties without notice, before providing an
opportunity to be heard. The process Samsung followed in China is not
meaningfully different from the process Ericsson followed in Texas,
except that Samsung provided evidence to support a pre-notice order,
and posted a security deposit. Compare Fed.R.Civ.P. 65(d),
E.D.Tex.Dkt.#11 at 19 (Ericsson arguing against advance notice); with
E.D.Tex.Dkt.#30-2 at 3; #30-3 (Samsung arguing against advance
notice, with evidence); E.D.Tex.Dkt.#26-12 at 8-10 (explaining
procedure in China)).
The antisuit injunction (Attach.C) is not meaningfully different
from injunctions American courts have granted and affirmed on appeal.
Ericsson’s suggestion that Samsung has demonstrated no possible error
in the Eastern District of Texas order thwarting that injunction is thus
perplexing. As Samsung has explained, it is common practice in
American courts and elsewhere, where a court has jurisdiction to
enforce a patentee’s commitment to license patents on FRAND terms, to
protect its jurisdiction by preventing duplicative FRAND claims or
injunctive claims on the underlying patents. See, e.g., Microsoft Corp. v
7
Motorola, Inc., 696 F.3d 872, 885 (9th Cir. 2012); TCL Commc’n Tech.
Holdings v. Telefonaktiebolaget LM Ericsson, S.D. Cal. No. 14-CV-341
(July 10, 2015) (Dkt. 284); Huawei Techs. v. Samsung Elecs. Co., 2018
WL 1784065 (N.D. Cal. 2018). A duplicative FRAND claim in another
court would interfere directly if another court set a different rate. An
injunction in another court would interfere indirectly by forcing the
enjoined party to accept a licensing demand before the FRAND claim
could be adjudicated. The Chinese court’s injunction follows the same
reasoning, enters an injunction of similar scope, and permits Ericsson to
seek reconsideration (which Ericsson has done). (Attach.C).
The district court’s injunction self-evidently harms Samsung by
undoing the Chinese court’s injunction, to boost Ericsson’s negotiating
leverage. (Attach.A at 12, 14). Ericsson’s duplicative claims in Texas
plainly threaten to interfere with Samsung’s claims in China. Samsung
asks the Chinese court to set a global FRAND rate. Ericsson’s
complaint asks the court to declare that Ericsson’s global-licensing-offer
rates are FRAND, E.D.Tex.Dkt.#1 at 22 ¶86, and that Ericsson no
longer has FRAND obligations to Samsung. Id. at 19 ¶77. The district
court enjoins Samsung from taking any action in China to hinder
8
Ericsson’s duplicative claims, and orders Samsung to indemnify
Ericsson—giving Ericsson license to flout the Chinese order, at
Samsung’s expense. (Attach.A at 15). The court also invites Ericsson to
seek injunctions on standard-essential patents—which, as just
explained, threatens further interference. (Id.). When Ericsson refers
to Samsung’s ITC action (Opp.9-10), it repeats the district court’s
mistake of believing that action concerns standard-essential patents. It
does not. It concerns non-standard-essential patents and follows a
similar ITC action Ericsson filed against Samsung. E.D.Tex.Dkt#47.
The face of the injunction refutes Ericsson’s suggestion that
Samsung is unaffected. (Opp.13). Indeed, it is questionable whether
Samsung can even respond to Ericsson’s reconsideration pleadings in
China without being accused of violating the Eastern District of Texas
order. That concern is not hypothetical: Ericsson has leveled such
accusations at Samsung based on its apparent confusion over how the
Chinese court processed Samsung’s security deposit. (Attach.F). And
these concerns are not limited to potential interference with the
Eastern District of Texas action. The district court has now positioned
itself as the nationwide monitor over any actions the Chinese court may
9
take relating to any Ericsson activity in any forum in the United States.
(Attach.A at 15). Whatever one thinks of the order, its nationwide scope
goes far beyond protecting its own jurisdiction. That alone warrants
expedited review.
2. Ericsson’s Conduct Belies Its Opposition.
Ericsson’s opposition is further belied by its conduct in district
court. Ericsson obtained a TRO and injunction on an “emergency”
basis, on an extremely expedited schedule including an in-person
hearing in Texas. Ericsson moved ex parte, (E.D.Tex.Dkt.#11 at 19) on
December 28, and received a TRO at 10:00 that same morning.
(Attach.B). Samsung had to file its opposition by 5:00 pm New Year’s
Day, on four days’ notice. Id. Full briefing took nine days from start
to finish. Ericsson never suggested then that the “public interest” or
any other considerations warranted a longer schedule. Nor did it
suggest that the relief it sought was unimportant or inconsequential.
But now that Ericsson has the injunction it wanted, its tune has
changed, and it insists on slow-walking Samsung’s appeal—even
opposing prompt scheduling of oral argument. According to Ericsson,
10
the relief it sought on an emergency basis actually “does not harm”
Samsung. (Opp.12).
When Ericsson faced the prospect of fines from the Chinese court,
it asked the Eastern District of Texas to move quickly and require
immediate indemnity. (E.D.Tex.Dkt.#11 at 5, 15). But now that
Samsung bears the consequences of Ericsson’s actions, that same threat
of fines has become “pure speculation,” “contingent on events that have
not happened and may never happen,” and “straight-forward monetary
harm” that can always be recovered later. (Opp.14, 18). The schedule
Samsung requests here is far less expedited than the schedule Ericsson
obtained below. Ericsson’s emergency application and conduct below
rebut any suggestion that its current opposition is anything but
gamesmanship.
3. Samsung’s Proposed Schedule is Reasonable and Does Not

Prejudice Ericsson.
Ericsson’s criticisms of Samsung’s “conduct” and proposed
schedule border on frivolous. Samsung appealed promptly, four days
after the injunction issued. Consistent with this Court’s Rules,
Samsung filed its motion for expedited briefing the day after the appeal
was docketed, within hours of Ericsson responding that it opposed. See
11
Fed.Cir.R.27(a)(2); Practice Note. In contrast to the rushed proceedings
below, Samsung’s proposed schedule is modestly expedited and places
nearly all the burden of expedition on Samsung. Samsung’s time to
prepare its opening brief is more than cut in half (28 days from
docketing instead of 60). Ericsson’s response is due only 12 days early
(28 days instead of 40).
Deadlines Under the Rules Proposed Schedule

Samsung’s 60 days from docketing 28 days from docketing
opening brief (Fed.Cir.R. 31(a)(1)(A))
Ericsson’s 40 days from opening brief 28 days from opening brief
response brief (Fed.Cir.R. 31(a)(2))
Samsung’s 21 days from response brief 14 days from response brief
reply brief (Fed.R.App.P. 31(a)(1))
Under the Federal Appellate Rules default, Fed.R.App.P. 31(a)(1),
Ericsson’s brief would be due 30 days after Samsung’s. Ericsson cannot
reasonably contend that Samsung’s proposal is prejudicial.
Given the injunction’s scope and comity implications, and the
schedule below, Samsung’s proposal should have been unopposed.
Ericsson’s suggestions of “prejudice” are unsound. This interlocutory
appeal is from a 15-page injunctive order that followed a truncated
schedule to accommodate Ericsson’s haste. (Attachments A&B).
Ericsson notes the transcript is “over 100 pages” (Opp.18). The objection
is trivial. Those double-spaced, wide-margin pages recount a 2.5-hour
12
hearing, surely a fraction of the time Ericsson’s counsel spent writing
its opposition to this motion. Ericsson’s footnote listing other
obligations is bloated—e.g., it lists three February deadlines that fall
during Samsung’s time to prepare its opening brief—and ultimately
insignificant for an opposition signed by twelve attorneys. (Opp.18 n.3).
Ericsson raises the specter of “a schedule that makes amicus
contributions impossible or chaotic,” (Opp.21), which is remarkable
after Ericsson’s current appellate counsel filed an amicus brief for
another party in support of Ericsson during the nine-day briefing
window below. Regardless, Samsung does not propose to shorten
amicus deadlines at all. Fed.R.App.P. 29(e) and the identical deadline
under Supreme Court Rule 37.3(a) for merits-stage amici have applied
for decades without any suggestion that amicus practice across the
country is “impossible or chaotic.” Finally, Ericsson cannot resist
sniping at Samsung’s proposal to file its reply brief 14 days after
Ericsson’s response, (Opp.16-17), but that leaves Samsung only a week
to review Ericsson’s promised amicus briefs. Samsung’s schedule is
eminently reasonable, and Ericsson fails to show otherwise.
13
4. Ericsson’s Opposition to Scheduling Oral Argument

Promptly Demonstrates That Ericsson Seeks Delay for
Tactical Gain.
Perhaps the clearest evidence that Ericsson seeks delay for
procedural advantage is Ericsson’s refusal even to consent to prompt
scheduling of oral argument. Consistent with this Court’s Rule 27
Practice Note, the Court has regularly expedited oral argument in
injunction appeals, and has even done so after denying an initial motion
to expedite. See Intellectual Ventures II LLC v. JPMorgan Chase & Co.,
Fed. Cir. 14-1724, ECF#56 (Nov. 5, 2014).
Ericsson admits it “has no objection to this Court’s usual course of
placing this appeal on the next available oral argument calendar after
briefing is completed.” (Opp.21). But it rephrases Samsung’s request
as “jumping the queue” (Opp.1, 11), and opposes based on that rhetoric
alone. The Court should schedule oral argument promptly and enter an
expedited schedule. At minimum, it should prohibit extensions for
Ericsson’s brief.
CONCLUSION
Samsung respectfully requests that the Court grant the motion to
expedite.
14
Respectfully submitted,
February 8, 2021 /s/ John C. O’Quinn

Gregory S. Arovas John C. O’Quinn
KIRKLAND & ELLIS LLP F. Christopher Mizzo
601 Lexington Avenue William H. Burgess
New York, NY 10022 KIRKLAND & ELLIS LLP
(212) 446-4800 1301 Pennsylvania Ave., N.W.
Washington, DC 20004
(202) 389-5000
Counsel for Appellants
15
CERTIFICATE OF COMPLIANCE
WITH TYPE-VOLUME LIMITATION
This motion complies with the type-volume limitations of the
Federal Rules of Appellate Procedure and the Rules of this Court.
Excluding portions exempted by the Rules, this motion contains 2590
words.
/s/ John C. O’Quinn

ARBITRATION AGREEMENT
This Arbitration Agreement (also “this Agreement”) is made as of [[Insert Effective Date]] (the
“Effective Date”) by and between TELEFONAKTIEBOLAGET LM ERICSSON (PUBL)
(“Ericsson”), a Swedish corporation having its principle place of business at SE-164 83
Stockholm, Sweden, and SAMSUNG ELECTRONICS CO. LTD (“Samsung”), a Korean
corporation. Hereinafter, Ericsson and Samsung, together with their respective Affiliates, are
each referred to individually as a “Party” and collectively as the “Parties”.
For the purpose of this Agreement, “Affiliates” shall mean any Person that, during the term of
this Agreement or the Final Complete GPLA (as defined below) as applicable, controls, is
controlled by or is under common control with a Party but any such Person shall be deemed to be
an Affiliate only for as long as such control exists. For purposes of defining “Affiliates,” the
term “control” shall mean owning, directly or indirectly, more than fifty percent (50%) of the
voting shares or securities or other equity interests of such Person, or more than 50% of the
ownership interest representing the right to make decisions for such Person, or in the case of a
non-corporate entity, an equivalent interest, representing the right to make decisions for such
Person. “Person” means any individual, corporation, association, business trust, partnership,
joint venture, trust, unincorporated organization, or other legal entity.
1. Agreement to Arbitrate
The Parties have agreed to enter into a global patent license agreement (a “GPLA”) for
certain of each Parties’ products (“Licensed Products”) on terms which are Fair, Reasonable and
Non-Discriminatory (“FRAND”). Licensed Products shall mean any complete and ready to use
Infrastructure Equipment and User Equipment that are compliant with 4G and/or 5G/NR
standards. Licensed Products shall expressly exclude any intermediate products including but
not limited to platforms, chipsets, modules, printed circuit boards, integrated circuits, and
semiconductor devices.
This Agreement provides a contractually binding process and timetable to resolve the
FRAND terms and conditions of the GPLA and the Parties agree, subject to license terms and
conditions agreed and as set forth in Appendix 1 (the “Agreed Terms”), to submit to a neutral
arbitral tribunal to determine the FRAND terms of the GPLA in accordance with this Agreement
2. Determination of the Disputed Terms, etc.
Prior to commencing arbitration, the Parties shall negotiate in good faith the terms and
conditions of the GPLA, with the aim to identify the Disputed Terms (as defined below) to be
submitted to arbitration. For avoidance of doubt, the Agreed Terms are agreed between the
Parties and the Disputed Terms are not to contradict the Agreed Terms or anything agreed upon
in this Agreement.
The Disputed Terms will be determined as follows:
Within thirty (30) days of the Effective Date, Ericsson and Samsung shall meet in
person or otherwise as mutually agreed by the Parties at convenient times and places
Page 1 of 4
(each such meeting referred to as a “Pre-Arbitration Conference”) to negotiate in good

faith the terms and conditions of the GPLA. Within the foregoing thirty (30) days period,
the Parties shall also hold a final Pre-Arbitration Conference, in which the Parties will
sign an incomplete GPLA (the “Agreed Incomplete GPLA”) in which (i) all terms and
conditions that have been agreed by the Parties are included and (ii) any terms and
conditions of the GPLA that the Parties do not agree upon and that are not already
addressed herein (“Disputed Terms”), which will be decided by the arbitration described
in Section 4 below (“Arbitration”). The Disputed Terms are indicated in the Agreed
Incomplete GPLA either with alternative positions of the Parties or with blanks to be
completed in accordance with the final award in said Arbitration.
In connection with such negotiations, the Parties agree to also seek in good faith
to further negotiate and define the procedural details of the arbitration, including the
details of the time-schedule to be presented to the arbitrators, the scope of discovery in
the arbitration, the protective order(s) to be issued by the Arbitral Tribunal to govern the
confidentiality of materials disclosed in the Arbitration, and any other procedural issues
not covered by this Agreement and raised by either Party. To the extent the Parties fail to
agree on a procedural issue, the Arbitral Tribunal will decide the procedure in accordance
with this Agreement and applicable institutional rules.
A Party’s refusal to comply with any of the above shall not constitute a bar to
arbitration and Ericsson shall under all circumstances be entitled to commence arbitration
at any time on or after [[INSERT DATE THAT IS 30 DAYS AFTER EFFECTIVE
DATE]] (in such a case, the Disputed Terms shall include all terms and conditions other
than the Agreed Terms, or any terms and conditions otherwise agreed between the Parties
at the time of commencement of the arbitration).
3. Scope of the Arbitration
The Arbitral Tribunal shall resolve the Disputed Terms by deciding the license terms and
conditions that the Parties may respectively impose without violating their commitments to
license their relevant standard essential patents on fair, reasonable, and non-discriminatory
“FRAND” terms and conditions.
With the exception of the preceding paragraph, nothing herein shall restrict the ability of
the Parties from presenting any evidence or making any arguments in the arbitration, including
without limitation arguments regarding validity, essentiality, infringement or the value of the
patents to be licensed under the Final Complete GPLA (as defined below).
The Arbitral Tribunal shall set forth in the final award the final terms and conditions to be
included in the Final Complete GPLA (as defined below), so as to produce the Final Complete
GPLA, binding on and enforceable against the Parties. The Arbitral Tribunal has jurisdiction to
resolve all issues, differences and disputes between the Parties, howsoever arising, to ensure that
its function is carried out.
4. Arbitration procedure
The Parties agree that the arbitration shall be administered by the International Chamber
of Commerce (the “ICC”) and performed under the Rules of Arbitration of the ICC (the
Page 2 of 4
“Rules”) by three (3) arbitrators appointed in accordance with the said Rules. The language of
the arbitration shall be English, and the seat of the Arbitration shall be (select one of the
following):
London, United Kingdom
New York City, New York, United States of America
Singapore
The Parties agree that, in addition to any other requirements set forth by the Rules, the
arbitrators shall be of a nationality other than those of the parties.
Ericsson shall be entitled to commence the arbitration on or after [[DATE THAT IS 30
DAYS AFTER EFFECTIVE DATE]]. It is the Parties’ intention that the Arbitral Tribunal shall
render the final award no later than December 31, 2022, and the Parties agree to advise the
Arbitral Tribunal of this intention for purposes of setting a schedule for the Arbitration;
provided, however that the Arbitral Tribunal shall have discretion to extend the date for
rendering the final award. The Parties agree to instruct the Arbitral Tribunal accordingly for
purposes of setting a schedule for the arbitration to achieve the final award by that date.
5. Binding Decision. The Parties agree that (i) the final award of the Arbitral Tribunal shall
be final and binding on the Parties and will be non-appealable to the maximum extent permitted
by the law [[for the avoidance of doubt, any right of appeal under Section 69 of the Arbitration
Act 1996 is excluded (only include if London is chosen as the seat of the Arbitration)]], (ii)
judgment on the Arbitral Tribunal’s final award may be entered and specifically enforced in any
court having jurisdiction, and (iii) the arbitration will be the sole and exclusive procedure for the
resolution of the Disputed Terms.
6. Final Complete GPLA. The Agreed Incomplete GPLA with the Disputed Terms set by
the final award (the “Final Complete GPLA”), shall immediately upon such final award
constitute a complete and binding GPLA between the Parties to be effective as of the effective
date defined therein without any further formalities being completed by either Party. However,
for the sake of completeness, Ericsson and Samsung agree to formalize such Final Complete
GPLA by signing a version of the Agreed Incomplete GPLA, with the Disputed Terms
completed in accordance with the final award, no later than one (1) week after the Arbitral
Tribunal has rendered the final award. Notwithstanding the foregoing, the Parties agree that any
failure to formalize the Final Complete GPLA will not affect the validity or enforceability of the
Final Complete GPLA.
7. No Waiver. Neither Party waives any claim for patent infringement by signing this
Agreement, such claims to be licensed or released under the Final Complete GPLA. No express
or implied licenses are granted under either Party’s patents to the other Party under this
Agreement.
8. Confidentiality. The Parties undertake and agree that this Agreement, all arbitral
proceedings conducted under this Agreement as well as any decision or award that is made or
declared during such proceedings shall be kept strictly confidential.
Page 3 of 4
9. Protective Order. The Parties recognize that the arbitration may require the disclosure of
highly confidential information, such as third-party license agreements and related information.
The Parties agree that the disclosure of any such highly confidential information shall be limited
to the members of the Arbitral Tribunal, external legal counsel and external experts and be
produced under a protective order issued by the Arbitral Tribunal setting out such outside
attorneys’ and experts’ eyes only restrictions. The Parties shall be at liberty to disclose such
Protective Order to third parties in obtaining consent from third parties to produce otherwise
confidential information in this arbitration.
10. Standstill. Ericsson and Samsung each agrees on behalf of itself and its affiliates, not to
commence any administrative or regulatory proceedings, patent litigation, or litigation alleging
breach of FRAND (including before antitrust authorities) against the other Party or any of its
affiliates or in relation to any Party’s (or its affiliates’) patents until after the time period for any
challenge to the final award has expired.
11. Choice of Law. The validity, performance, construction and interpretation of this
Agreement shall be governed by the substantive laws of the [[INSERT LAW OF THE SEAT OF
THE ARBITRATION]] without regard to its conflict of law provisions. The Parties consent to
the jurisdiction and venue of the [[INSERT COURT HAVING RELEVANT JURISDICTION
IN THE SEAT OF THE ARBITRATION]] to the extent a dispute arising under this Arbitration
Agreement is not subject to Arbitration or cannot be properly submitted to the Arbitral Tribunal.
____________________
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed in two (2)
identical counterparts by their duly authorized representatives as of the Effective Date, of which
the Parties have taken one (1) each.
TELEFONAKTIEBOLAGET LM ERICSSON SAMSUNG ELECTRONICS CO. LTD.

(PUBL)
On behalf of itself and its Affiliates
On behalf of itself and its Affiliates
______________________________ ______________________________
Signature Signature
______________________________ ______________________________
Print Name Print Name
______________________________ ______________________________
Title Title
______________________________ ______________________________
Date Date
Page 4 of 4
Theodore Stevenson, III 300 Crescent Court

Direct Dial: (214) 978-4974 Suite 1500 Telephone: (214) 978-4000
tstevenson@mckoolsmith.com Dallas, TX 75201 Facsimile: (214) 978-4044
January 18, 2021
VIA EMAIL
Greg Arovas
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
greg.arovas@kirkland.com
Re: Ericsson v. Samsung – No. 2:20-cv-00380-JRG (EDTX)

Potential Violation of TRO and Preliminary Injunction
Dear Mr. Arovas:
It has just come to our attention from a third party source that Samsung may have
initiated enforcement proceedings against Ericsson in Wuhan related to the Wuhan Anti-Suit
Injunction – Case No. (2020) E 01 ZHI BAO No. 664. We further believe that Samsung initiated
enforcement on December 30, 2020, after Chief Judge Gilstrap issued the anti-interference
Temporary Restraining Order (TRO) on December 28, 2020 in the above referenced action.
As we do not have access to the filing, I am writing you to request your immediate
response and assurance that Samsung has not initiated enforcement actions in violation of the
TRO and subsequent Preliminary Injunction. In particular, we are concerned about two aspects
of Chief Judge Gilstrap’s Orders. First, the TRO (which was in effect until January 11, 2021)
requires Samsung to send to Ericsson any documents filed in the Wuhan Action immediately
after filing. Second¸ both the TRO and the Preliminary Injunction both prohibit Samsung from
taking affirmative steps to enforce the Wuhan Anti-Suit Injunction, to the extent such steps
would have the effect of interfering with Ericsson’s rights to assert its U.S. patents.
We request that you look into this situation immediately and provide a detailed response
by noon central tomorrow. In the event that Samsung has filed documents with the Wuhan Court
seeking enforcement of the Anti-Suit Injunction, we also request copies be sent to us as counsel
for Ericsson immediately, as was expressly required by the TRO.
Regards,
/s/ Theodore Stevenson, III

Theodore Stevenson, III
cc: Melissa Smith, melissa@gillamsmithlaw.com


New York, NY 10022
Greg Arovas, P.C. United States
To Call Writer Directly: Facsimile:
+1 212 446 4766 +1 212 446 4800 +1 212 446 4900
www.kirkland.com
January 19, 2021
By E-mail

McKool Smith
300 Crescent Court
Suite 1500
Dallas, TX 75201
Re: Ericsson v. Samsung - No. 2:20-cv-00380-JRG (EDTX)

Dear Mr. Stevenson:
We are in receipt of your letter in which you assert that Samsung has initiated
enforcement proceedings against Ericsson in Wuhan and that Samsung has not complied with the
TRO in Texas. This is incorrect. Samsung has not initiated enforcement proceedings and
Samsung is in compliance with the Texas Court’s orders.
Please identify the “third party source” on which you base this assertion.
Sincerely,
Greg Arovas, P.C.
Beijing Boston Chicago Dallas Hong Kong Houston London Los Angeles Munich Palo Alto Paris San Francisco Shanghai Washington, D.C.
Stevenson Letter.docx

January 19, 2021
VIA EMAIL
Greg Arovas
New York, NY 10022

Dear Mr. Arovas:
I am writing in response to your letter from earlier today. Please provide your assurance
that no filings of any sort – other than those produced on December 29, 2020 – were made or
received by Samsung in any Wuhan court proceeding involving Ericsson prior to the entry of the
Preliminary Injunction on January 11, 2021.
Regards,



New York, NY 10022
+1 212 446 4766 +1 212 446 4800 +1 212 446 4900
www.kirkland.com
January 21, 2021
By E-mail

McKool Smith
300 Crescent Court
Suite 1500
Dallas, TX 75201

Dear Mr. Stevenson:
We have received Ericsson’s January 19 follow-up letter. As noted in my previous letter,

Samsung has complied with the Texas Court’s Orders. Ericsson, however, has not responded to
Samsung’s request to identify the source for the assertions in Ericsson’s letter. Again, please
identify the “third party source” on which Ericsson bases its accusations.
The next filings made by Samsung after the materials included in the December 29, 2020
production were made on January 11, 2021 and consisted of timely responses to Ericsson’s
filings pursuant to Wuhan Court procedures.
Sincerely,
Greg Arovas, P.C.

January 21, 2021
VIA EMAIL
Greg Arovas
New York, NY 10022

Dear Mr. Arovas:
In response to your question about where we obtained information about a potential

pending enforcement request, we obtained the information underlying our request to you from a
public computer access terminal at the Wuhan Court. That terminal provides a limited amount of
case information to the public. The terminal shows an “Enforcement” action (with a different case
number than Samsung’s December 7 action) filed by Samsung against Ericsson that was accepted
by the Court on December 30, 2020. There is no record of these filings in the documents you
produced pursuant to the TRO issued by the Eastern District of Texas.
The failure to produce these filings appears, at a minimum, to be in violation of the TRO.
As we are unable to access the files of the Wuhan court, and can only obtain the information shown
on the attached screen shots, I ask that you please provide a detailed explanation by the close of
business tomorrow, along with copies of the documents that have not been produced to date. For
your convenience, I have attached screenshots obtained from the computer terminal, along with
unofficial English translations.
Regards,


Attachments
McKool Smith
A Professional Corporation • Attorneys
Austin | Dallas | Houston | Los Angeles | Marshall | New York

New York, NY 10022
+1 212 446 4766 +1 212 446 4800 +1 212 446 4900
www.kirkland.com
January 22, 2021
By E-mail

McKool Smith
300 Crescent Court
Suite 1500
Dallas, TX 75201

Dear Mr. Stevenson:
We have received Ericsson’s January 21 letter, which repeats Ericsson’s question

regarding compliance with the TRO. As Samsung already explained in previous letters,
Samsung has complied with the TRO.
The matter referenced in Ericsson’s January 21 letter relates to the China Court’s
handling of Samsung’s security deposit. Samsung’s filing materials relating to the security
deposit were already produced to Ericsson.
In the future, we ask that Ericsson refrain from making accusations and instead simply
reach out to discuss any specific questions that may arise.
Sincerely,
Greg Arovas, P.C.

21-02-08 Samsung Reply ISO Motion To Expedite

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21-02-08 Samsung Reply ISO Motion To Expedite

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Case: 21-1565 Document: 10-1 Page: 1 Filed: 02/08/2021 (1 of 33)

IN THE UNITED STATES COURT OF APPEALS

ERICSSON INC. AND TELEFONAKTIEBOLAGET LM ERICSSON,

REPLY IN SUPPORT OF APPELLANTS’ MOTION TO

Gregory S. Arovas John C. O’Quinn

1. The District Court’s Injunction Severely Prejudices Samsung

2. Ericsson’s Conduct Belies Its Opposition. ...................................... 10

3. Samsung’s Proposed Schedule is Reasonable and Does Not

4. Ericsson’s Opposition to Scheduling Oral Argument

Note: Attachments A-C are appended to Samsung’s opening motion.

September 27, 2020, letter from Ericsson to Samsung

November 10, 2020, response from Samsung to Ericsson’s

January 18-22, 2021, exchange of letters between Ericsson and

Ericsson’s opposition is long on rhetoric but short on substance. It

disparages another sovereign’s courts and procedures, while inviting

this Court to treat the imposition on international comity, and punitive

measures against Samsung, as a run-of-the-mill case.

Given the injunction’s scope, stakes, and direct conflict with a

foreign court’s legitimate order in a legitimate proceeding, it is unclear

why Ericsson would oppose expedited briefing and argument here.

Ericsson’s opposition is especially puzzling after its conduct in the

Eastern District of Texas to obtain the injunction. Below, Ericsson

requested expedited action, and got it. Ericsson moved ex parte on an

“emergency” basis and received a TRO at 10:00am that same morning,

the Monday after Christmas. (Attach.B at 4).1 Then it received an

appear at an in-person hearing. Ericsson argued then that the court

injunction (and leverage) it wanted, it argues the resulting appeal

1Attachments A-C are attached to Samsung’s opening motion.

should proceed slowly. Ericsson asserts that a 70-day schedule would

somehow deprive this Court of “properly considered briefing,” (Opp.2),

are insignificant after all.

Ericsson’s arguments opposing Samsung’s modest request should

midst of a global dispute, triggered by the December 31 expiration of

the parties’ worldwide cross-license. Having gotten everything it

the world. Indeed, the district court’s injunction is explicitly designed

to strengthen Ericsson’s “negotiating position” in that broader conflict

(Attach.A at 10, 14 (“risk of unbalanced economic pressure”)), by

undoing provisions of a Chinese court’s order and preventing Samsung

court from enforcing its own order, by requiring Samsung to indemnify

Ericsson against fines, but Ericsson is using it to hamstring Samsung in

even responding to Ericsson’s pleadings in China.

Samsung’s motion should have been unopposed. Samsung

promptly appealed, and proposed a modestly expedited schedule that

Court to schedule oral argument at the next available session.

Ericsson’s “prejudice” arguments are makeweight.

Perhaps the clearest evidence that Ericsson seeks delay for

tactical advantage is its refusal even to consent to prompt scheduling of

prompt scheduling would prejudice anyone, but opposes nonetheless.

Samsung’s motion should be granted, and Ericsson fails to show

1. The District Court’s Injunction Severely Prejudices

A motion to expedite “is appropriate when the normal briefing and

disposition may adversely affect one of the parties, as in appeals

involving preliminary or permanent injunctions….” Fed.Cir.R. 27

designed to strengthen Ericsson’s negotiating position in a worldwide

dispute with Samsung, before concluding with three provisions that do

12, 14-15. Expediting briefing and argument should be uncontroversial.

spins a misleading tale to contend that Samsung is somehow not

adversely affected by the injunction (Opp.12-16), and thus to try to slow

down the appeal. Ericsson is wrong.

Samsung and Ericsson each committed to license their 4G and 5G

standard-essential patents on FRAND terms, as part of the standard-

Samsung and Ericsson’s negotiations toward a worldwide cross-license

to FRAND-encumbered standard-essential patents. The preexisting