https://www.linkedin.com/posts/ipfray_antisuit-frand-activity-7167019693101203456-JdMz?utm_source=share&utm_medium=member_desktop

As expected, Lenovo has appealed the denial of the antisuit injunction it was seeking against Ericsson.

The appeal was lodged with the United States Court of Appeals for the Federal Circuit. The Fed. Cir. has jurisdiction over any case in which there is (or ever was) a patent infringement or validity claim. In this one, the enforcement parts have been stayed as they are also the subject of a parallel USITC investigation. The Fed. Cir. will have to apply Fourth Circuit law, though there is no 4th Cir. precedent that is reasonably close to this case.

The closest one to the current case that the Federal Circuit ever heard was a Huawei v. Samsung Electronics appeal, but the parties settled prior to an appellate ruling. At the December 2018 hearing, the judges appeared somewhat skeptical of the injunction that the district court had granted.

In 2022, the Federal Circuit affirmed the denial of an antisuit injunction that Thales was seeking against Philips. The Federal Circuit agreed with the district court that the antisuit motion was premature: Thales was concerned about the impact of a hypothetical U.S. International Trade Commission limited exclusion order (import ban), but the ITC investigation was far from resolved. Therefore, the district court and the Fed. Cir. did not find the irreparable-harm requirement satisfied at that stage.

The district court's reasoning in Ericsson's favor is centered around the fact that the proceedings in the Eastern District of North Carolina don't have the potential to put the entire dispute, including the Latin American cases against which the antisuit motion is directed, to rest: Lenovo still wouldn't necessarily take a license even after the U.S. court has set a FRAND rate. The Fed. Cir. could affirm on that basis. There would also be other reasons to affirm.