Ericsson sues Apple, alleging 5G patent infringement

Ericsson files new suits against Apple in patent-friendly Western District of Texas 

Ericsson and Apple are back in court in Texas, months after firing a volley of lawsuits against each other in the U.S. District Court for the Eastern District of Texas. Ericsson picked a different venue to file two new 5G patent lawsuits against Apple: the Western District of Texas.

In new filings on Monday, Ericsson alleged that Apple is in violation of essential patents for 5G. Ericsson cited a total of twelve patents between the two. In a previous statement provided to the press, Ericsson said that Apple using its technology without a license, following the expiration of a 2015 settlement. The companies have fired lawsuits back and forth since last October, after talks to renew that 2015 settlement went nowhere. 

What’s at issue is how much Apple will pay Ericsson for the privilege of using 5G in its devices. Ericsson wants $5 per iPhone. Apple thinks it should pay less, since its marketshare is much greater now than it was in 2015. What’s more, said Apple, Ericsson’s overall share of Standard Essential Patents (SEPs) has decreased.

In October, Ericsson sought a declaratory judgement favoring Ericsson’s proposed licensing rates as fair under “fair, reasonable, and non-discriminatory” licensing (FRAND) guidelines. Ericsson cited compliance with its contractual commitment to European Telecommunications Standard Institute (ETSI). In its complaint, Ericsson accused Apple of a long history of anti-FRAND activity. Apple makes no secret of its disdain for what it sees as anticompetitive abuse of FRAND licensing. That case is pending.

Apple countersued Ericsson in the same court in December. Apple accused Ericsson of using “strong-arm tactics” to renew patents.

An even patent-friendlier change of venue

While Apple is headquartered in Cupertino, CA – the US. District Court for the Northern District of California – it also has a sprawling multibillion dollar campus in Austin, Texas, along with many other tech giants. That’s one of several points Ericsson made in its filing to justify its decision to file the new suit in the different venue. Lawsuits in the Western District are indeed part of Apple’s costs of doing business in the state. 

The October and December suits were filed in the Eastern District court, but the Western District location of these new suits are worthy of note. The Waco, Texas court hears the most patent cases in the United States. The presiding judge has also drawn criticism from Congress for that patent-friendliness.

In fact, that cost of doing business in the Western District recently drew the scrutiny of U.S. Senators from both sides of the aisle. Republican Senator Thom Tillis of North Carolina and Democratic Senator Patrick Leahy of Vermont accused Judge Albright of “unseemly and inappropriate conduct.” given “the extreme concentration of patent litigation” in his district.

Judge Alan Albright took office in September 2018 and is the only district judge who hears cases in Waco. Judge Albright has openly solicited patent cases in media interviews. After accusations rose of patent cases lawyers “forum shopping” his court for favorable rulings, Albright transferred a number of cases to other district judges in residing in Austin this past November. 

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