Ericsson has applied for an iPhone sales ban in several countries for 5G patent infringements and has now been able to enforce the first of these in Colombia. The ban applies to the iPhone 12, iPhone 13 and iPad Pro models with 5G capabilities.
Apple is of course fighting the injunction, but has been accused of double standards for objecting to three different legal tactics it has itself used in the past…
We’ve already summarized the background to the litigation, but most importantly, Apple stopped paying Ericsson for patent licenses, believing it was being overcharged.
Ericsson accuses Apple of violating its patents related to the 5G chips used in current iPhones. That’s because Apple used to pay royalties to use the patented technology, but then didn’t renew the licenses when they expired. It is believed that Apple was hoping to negotiate a better deal for the 5G licenses, having previously reached an agreement on the patented 2G, 3G and 4G technology.
Things got heated when Apple sued Ericsson last December, claiming that the Swedish company violated FRAND regulations. This is international law that requires standard essential patents (technology without which it is impossible to make a smartphone) on fair, reasonable and non-discriminatory terms. In other words, Apple claimed that Ericsson was overcharging for the patent royalties.
Ericsson, in turn, accused Apple of wasting court resources by forcing unnecessary litigation on two fronts. Apple hit back by filing an independent patent infringement lawsuit against Ericsson.
Both companies are trying to ban imports of each other’s products: the iPhone on the one hand and a cell phone base station on the other.
Since Ericsson is the undisputed owner of the patents and Apple is currently violating them by not renewing its licenses, experts say the Swedish company will be able to obtain an injunction against the import of iPhones into one or more countries.
5G iPhone sales ban in Colombia
Foss Patents — who made that prediction — reports that it has now come true in Colombia.
Less than six months after the start of the current wave of patent infringement lawsuits Ericsson against Apple, the first sales and import bans are already being enforced:
Apple is currently unable to sell or import 5G iPhones and iPads in Colombia to the South American country […] The violation was established in April.
The court is asking Apple to do more than just stop selling its own 5G devices.
Apple must “warn and communicate with” stores, retailers, owners of social media platforms, mass media and e-commerce platforms within Colombia’s territory to ensure compliance.
Apple cannot use a legal tactic; try another
One legal tactic that could be used in this situation is what is known as an “antisuit injunction”. Here Apple is trying to obtain a ruling in another country that would prevent the import and sale ban from being enforced in Colombia.
To prevent this, the Colombian court issued an “anti-antisuit injunction” prohibiting Apple from using this tactic.
Instead, Apple is pursuing a different legal tactic: filing a US lawsuit against Ericsson for lost revenue in Colombia.
Apple is accused of double standards
Foss patents argues that Apple’s approach in this case is hypocritical for three reasons. First, the iPhone maker accuses Ericsson of “forum shopping” — trying different dishes until he gets the desired result.
In one or more of its filings with a court in the Colombian capital of Bogotá and Friday’s filing with the US court, Apple criticized Ericsson’s tactic of filing multiple Colombian patent infringement lawsuits in different courts (one lawsuit per patent). An affidavit by Apple’s Colombian attorney (Juan Pablo Cadena Sarmiento of Brigard Castro) describes this as “an improper attempt to shop on the forum until [Ericsson] receives a positive decision allowing Ericsson to exclude Apple from the Colombian market” […]
Apple itself actually went further than what Ericsson is now criticizing for. In 2012, Apple failed with an application for an injunction against two Samsung products in Munich, where the court questioned the validity of the patent in suit. Apple then withdrew its Munich case and shortly thereafter asserted the same patent again in Mannheim, hoping for a more favorable outcome there. It didn’t work, but Apple tried.
Second, Ericsson asked for an injunction, which the iPhone maker says Apple is denying — but again, Apple has done so.
Ericsson’s attorney in the Colombian Apple cases, Carlos R. Olarte of Olarte Moure, noted, “The same Apple representative applied for and obtained restraining orders before the SIC’s Delegation of Jurisdictional Affairs [Dept. of Industry and Commerce]therefore, it is incomprehensible why it is emphatically stating on this occasion that ERICSSON’s actions are unfair when it has itself implemented these legal mechanisms to defend its customers.”
Finally, Apple accuses Ericsson of attempting to evade the jurisdiction of the Eastern District of Texas — when the Cupertino-based company went so far as to close two stores in the district to avoid falling under its jurisdiction.
9to5Mac’s Take on iPhone Sales Ban
This is not a dispute about the validity of the patents. Ericsson owns the patents and Apple accepts that they are valid. The dispute revolves entirely around whether Ericsson charges a reasonable royalty for patent licenses.
This particular verdict isn’t a big deal for Apple. Colombia is a tiny market for iPhone and iPad sales, and the company would hardly notice the drop in revenue there.
However, this could be the first iPhone ban of many. Apple doesn’t deny that it infringes Ericsson’s patents, so it has little defense against the same allegations elsewhere.
As long as there is no agreement with Ericsson, Apple risks selling bans on iPhones in other – more important – markets. This is high stakes poker, and the Cupertino company doesn’t have a good hand.
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