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Amicus Brief by Adam Mossoff in Ericsson v. Samsung (E.D. Texas, Jan. 5, 2021)

Adam Mossoff

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Interest of Amicus Curiae

Amicus curiae Adam Mossoff is a law professor who teaches and writes about patent law and policy. He specializes in patent licensing and standard essential patents, and has written about the respective patent systems in the United States of America and in the People’s Republic
of China. He has an interest in promoting the continuity of the interrelated legal doctrines that secure reliable and effective property rights in the inventions that drive growth in innovation economies. He has no stake in the parties or in the outcome of this case.1

Argument

This case began as a straightforward dispute over negotiations for a cross license of Ericsson’s and Samsung’s patent portfolios for mobile-communications technology. But Samsung has now transformed it into a jurisdictional dispute between U.S. and Chinese courts. This brief does not seek to repeat the parties’ discussion of the legal framework governing antisuit injunctions and international comity. Rather, it focuses on two specific insights. First, the Wuhan proceedings that Samsung brought against Ericsson illustrate a marked lack of due process and transparency, which correlates with issues in which China’s economic interests are at stake. Second, this dispute raises a serious innovation policy concern about unfairly titled playing fields in the development and licensing of standardized technologies when implementers of standard essential patents (SEP), such as Samsung, file lawsuits, engage in ex parte proceedings, and receive anti-suit injunctions without any notice or participations by the innovator in a licensing dispute. Together, those developments undermine the reliable and effective property rights in innovations that have been secured under the rule of law, which has been a hallmark of the U.S. patent system and a key driver in the success of the U.S. innovation economy.

Samsung’s strategy of filing a lawsuit in Wuhan, China—a jurisdiction with no direct or even proximate connections to the original contractual dispute or the infringement of Ericsson’s U.S. patents—takes “direct aim at the heart of both Article III” courts “and the United States patent system.” Mot. 8. While the Chinese legal system has generally improved over the past two decades, commentators and government officials have recognized that independence, transparency, and due process are not yet the norm in all cases. Those departures from these basic norms of the rule of law are evident in this case. Samsung did not serve Ericsson or provide it even informal notice of the lawsuit Samsung filed in Wuhan until after Ericsson’s lawsuit was filed in this Court. Then, Samsung obtained ex parte an anti-suit injunction from the Wuhan court over the Christmas holiday, again without giving Ericsson notice or an opportunity to participate. This contrasts starkly with the notice to Samsung and the opportunity for its arguments to be heard that this Court has afforded Samsung in the expedited proceedings, despite the holiday season and the COVID-19 pandemic.

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1 No party’s counsel authored this brief in whole or in part; no party or party’s counsel contributed money that was intended to fund preparing or submitting this brief; and no person, other than amicus curiae or his counsel, contributed money that was intended to fund preparing or submitting this brief.

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