Apple Ericsson patent battle intensifies with a legal first

The Apple Ericsson patent battle jumped to a new level yesterday, when the first iPhone sales ban went into effect in Colombia. Now Apple appears to be set on obtaining an injunction against the import and sale of Ericsson products.

The specifics of the move are a legal first for the company, made possible by its billion-dollar acquisition of Intel’s modem business back in 2019 ….

Background

Ericsson is accusing Apple of infringing its patents in respect of the 5G chips used in current iPhones. That’s because Apple used to pay royalty fees for the use of the patented tech, but then failed to renew the licenses when they expired. It’s believed Apple was hoping to negotiate a better deal for the 5G licenses, after earlier reaching agreement on 2G, 3G, and 4G patented technology.

Things got heated when Apple sued Ericsson in December of last year, claiming that the Swedish company violated FRAND terms. This is international law that requires standards-essential patents (SEPs: technology without which it is impossible to make a smartphone) on terms which are fair, reasonable, and non-discriminatory. In other words, Apple claimed that Ericsson was charging too much for the patent license fees.

Ericsson in turn accused Apple of wasting court resources by forcing unnecessary litigation on two fronts. Apple hit back by filing an unrelated patent infringement claim against Ericsson. 

Apple was applying pressure on Ericsson by withholding payments, and Ericsson was returning the favor by seeking bans on the import and sale of iPhones in multiple countries. We yesterday reported that the Swedish company achieved its first such ban in Colombia.

Apple Ericsson latest: iPhone maker in first ever SEP claim

Apple has already filed several patent infringement countersuits against Ericsson, but it has never before filed a patent infringement claim for a Standards Essential Patent (SEP), likely because its R&D work wouldn’t tend to generate these.

But its 2019 purchase of Intel’s modem business gave Apple ownership of a number of SEPs, and Foss Patents reports that the company is for the first time filing a patent infringement claim for an SEP.

There are more and more firsts in the Ericsson v. Apple 5G patent dispute. The first-ever Colombian standard-essential patent (SEP) judgment (Ericsson is now enforcing a 5G injunction, which Apple desperately sought to prevent); the first-ever “emergency motion” for an antisuit damages order [explained yesterday] and now the first-ever SEP lawsuit brought by Apple – which has been on the receiving end of SEP assertions for well over a decade but is only now striking back with a SEP for the first time in its history.

The patent in question is for 4G/LTE tech.

The site’s Florian Mueller says that while it’s not yet known whether Apple is seeking a ban on the import and sale of Ericsson’s 4G/LTE products, the court Apple has chosen gives a huge clue.

The venue is–of course–Munich, the world’s #1 SEP injunction hotspot (while I haven’t found out yet whether Apple is seeking an injunction, I’m sure it’s either doing so now or would do so a little later).

9to5Mac’s Take on the latest Apple Ericsson development

I said yesterday that because Apple doesn’t deny it is infringing Ericsson’s patents by failing to renew its licences, and because Ericsson is seeking import and sale bans on iPhones in multiple countries, the Cupertino company was playing high-stakes poker without a good hand.

Apple’s deployment of SEP infringement lawsuits certainly strengthens its hand. While the company already got Intel’s modem business for a bargain price – giving its own 5G chip efforts a huge boost – the ability to deploy Intel patents as a weapon in patent infringement claims is now proving a very handy bonus.

The bottom line here is that both companies are vulnerable. Ericsson, because simultaneously cutting its income streams from product sales and patent royalties leaves it in a financially precarious position. Apple, because the financial consequences of iPhone sales bans in major markets puts at risk enormous sums of money. One would think both companies would recognize the sense in settling the dispute in a meeting room, rather than a series of courtrooms around the world, but so far there’s no sign of compromise from either.

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