Ericsson is seeking a ban on iPhone sales in several countries due to patent infringements on 5G networks, and has now succeeded in obtaining its first in Colombia. The ban applies to 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 separate legal tactics it has used itself in the past…
We have previously summarized the background to the dispute, but ll; Dr. Ho that Apple stopped paying Ericsson for patent licenses, as it thought it was overpriced.
Ericsson is accusing Apple of infringing its patents regarding the fifth generation chips used in current iPhones. This is because Apple used to pay royalty fees for using the patented technology, but then failed to renew the licenses when they expired. It is believed that Apple was hoping to negotiate a better deal for 5G licenses, having earlier reached an agreement on its patented 2G, 3G and 4G technology.
Things got worse when Apple sued Ericsson in December of last year, claiming the Swedish company had violated FRAND terms. This is international law that requires patents of basic standards (the 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 charging exorbitant fees for patent licensing fees.
Ericsson, in turn, accused Apple of wasting court resources by imposing unnecessary litigation on two fronts. Apple responded by filing an unrelated patent infringement lawsuit against Ericsson.
Both companies are trying to impose import bans on products made by the other party: the iPhone on one side, and a mobile base station on the other.
Since there is no dispute that Ericsson owns the patents, and Apple is currently infringing them by not renewing its licenses, experts say the Swedish company is likely to succeed in achieving an injunction against importing iPhones in one or more countries.
iPhone 5G sales banned in Colombia
Patents – who made this prediction – is now reported to have come true in Colombia.
Less than six months after the start of the current wave of patent infringement proceedings against Ericsson against Apple, the first sales and import bans have already been implemented:
Apple cannot currently sell 5G iPhones and iPads in Colombia, or import them into the South American country. […] The decision to violate was already made in April.
The court is asking Apple to do more than halt sales of 5G devices.
Apple must “warn and communicate with” stores, retailers, and owners of social, media, and e-commerce platforms within Colombia’s territory to ensure compliance.
Apple can’t use a single legal tactic; trying another
One of the legal techniques that can be used in this case is what is known as a “vs order”. This is where Apple is trying to get a ruling in another country that prevents the enforcement of the import and sales ban in Colombia.
To prevent this, the Colombian court issued a “counter-suit injunction”, which prohibits Apple from attempting to use this tactic.
Instead, Apple is following a different legal tactic: filing a claim in the US for damages against Ericsson for its loss of revenue in Colombia.
Apple accused of double standards
Patents He argues that Apple’s actions in this case are hypocrisy, for three reasons. First, the iPhone maker accuses Ericsson of “forum shopping” — trying different courts until you get the result you want.
In one or more of its filings in a court in the Colombian capital of Bogota, and in Friday’s filing in the US court, Apple criticized Ericsson’s tactic of filing multiple claims of Colombian patent infringement before different courts (one procedure per patent). A sworn statement by the Colombian advisor of Apple (Juan Pablo Cadena Sarmiento of Brigard Castro) describes this as “an inappropriate attempt to shop on the forum even [Ericsson] Received a positive decision allowing Ericsson to exclude Apple from the Colombian market” […]
Apple itself has actually gone further than Ericsson is now criticizing. In 2012, Apple failed to seek preliminary injunctions against two Samsung products in Munich, as the court questioned the patent validity of the lawsuit. Apple then withdrew its case in Munich and reaffirmed the same patent shortly thereafter in Mannheim, hoping for a more positive outcome there. It didn’t work, but Apple tried.
Second, Ericsson has requested an emergency injunction, which the iPhone maker says denies Apple due process — but Apple has done so again, too.
Ericsson’s Colombian Apple attorney, Carlos R. Olarte of Olarte Moure, noted that “the same Apple representative had requested and obtained unilateral injunctions before delegating judicial affairs to the SIC.” [Dept. of Industry and Commerce]Which is why it is not understood why it has so forcefully declared on this occasion that ERICSSON’s action is unfair, when it has itself implemented these legal mechanisms to defend its clients.”
Finally, Apple accuses Ericsson of trying to avoid jurisdiction for the eastern district of Texas — when the Cupertino company went so far as to close two stores in the area to avoid falling under its jurisdiction.
9to5Mac takes 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 debate is only about whether Ericsson charges reasonable fees for patent licenses.
This particular ruling is no big deal for Apple. Colombia is a small market for iPhone and iPad sales, and the company rarely notices lost income there.
However, this may be the first iPhone sales ban for many. Apple does not deny that it infringes Ericsson’s patents, so it has little defense against the same charges elsewhere.
Unless it reaches a settlement with Ericsson, Apple risks banning iPhone sales in other — more important — markets. This is a high stakes poker game, and the Cupertino company doesn’t do well.
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