ITC Begins 2021 with a Pair of Pointless, Dueling Section 337 Patent Complaints
The first new Section 337 complaints of 2021 are Electronic Devices with Wireless Connectivity, Components Thereof, and Products Containing Same filed by Ericsson against Samsung and Wireless Communications Equipment and Components Thereof filed by Samsung against Ericsson. They are perfect examples of pointlessness ITC patent cases that serve the interests of no one but lawyers.
Ericsson and Samsung are in the middle of a global patent litigation campaign involving multiple lawsuits in U.S. district court, various European courts, and in China. The purpose of this litigation is to help the parties negotiate a new worldwide cross-license agreement. Their previous agreement (which itself resulted from global litigation including two ITC cases) expired last year, and the terms of their new agreement will be informed by the various incremental outcomes of the current campaign.
Substantively, it may be worth noting that neither party has a particularly compelling domestic industry argument in their respective Section 337 cases. Samsung’s U.S. investments related to wireless base stations appear limited to installation and support, and for one of the four asserted patents, even that level of investment is still “in the process of being established.”
Ericsson, meanwhile, has adopted the legal strategy of a patent assertion entity. It plans to rely on the investments of third-party licensees supplemented by its own “licensing activity”—including “litigation activities related to unwilling licensees.” The company notes in its complaint that it “invests in patent enforcement litigation” by “expend[ing] substantial sums for legal fees” in the United States.
As with so many other Section 337 investigations, allowing these two cases to be redundantly adjudicated by a trade agency serves no identifiable trade policy or patent policy objectives. Both parties are global multinational corporations with foreign headquarters. They both employ thousands of Americans, sell imported products to American consumers and businesses, and are easily sueable in almost any court in the world.
