Context: Actual decisions, court filings or license agreements are more interesting to report on, but there are rare exceptions where even scheduling decisions are newsworthy. Yesterday we reported on the (second) postponement of the date on which the Oberlandesgericht München (Munich Higher Regional Court) will announce its decision in a VoiceAge EVS v. HMD case in which the European Commission remarkably intervened in order to address fundamental questions regarding standard-essential patent (SEP) enforcement (February 20, 2025 ip fray article).
What’s new: Now, Administrative Law Judge (ALJ) MaryJoan McNamara of the United States International Trade Commmission (USITC, or just ITC) has pushed back once more her recommendation on the appropriate remedy (the ITC’s sole independent remedy is a limited exclusion order, i.e., U.S. import ban) in an Ericsson-Lenovo SEP case from today to April 4, 2025. The previous postponement from late December to today, was already “unprecedented” as we called it (December 31, 2024 ip fray article). In mid December, ALJ McNamara held Lenovo to infringe four valid standard-essential patents (SEPs) asserted by Ericsson (December 18, 2024 ip fray article).
Direct impact: ALJ McNamara took this decision in no small part because a remedy determination in another case (presumably meaning an Ericsson-Lenovo case over multimedia SEPs) will be due at that point. She also pointed to her case load. Whether today’s postponement will delay the resolution of the investigation as a whole is for the Commission (the political appointees at the top of the U.S. trade agency) to decide. The Commission pushed back the target date for a decision on a potential review to April 29, 2025, and for the final determination to June 30, 2025. That happened in response to the first postponement of the recommendation on remedies.
Wider ramifications: This investigation and the other Ericsson-Lenovo SEP matter provide the ITC with an opportunity to clarify in what context it considers FRAND (fair, reasonable and non-discriminatory licensing) arguments. So far the assumption was that it went only into the ITC’s public interest analysis. However, Lenovo apparently raised a FRAND defense in the merits part and made it the number one priority in the evidentiary hearing. In the meantime, Lenovo tries to get help from the UK judiciary in order to derail those ITC proceedings as well as cases in other jurisdictions (February 18, 2025 ip fray article).
This second delay is even more surprising than the first one. It may be a way for an ITC judge to dissuade parties from filing multiple complaints targeting the same respondent. The message today is that if there are two or more cases with overlapping issues, there may ultimately be some consolidation so that two or three cases converge on the same target date. That would be a major disincentive from filing multiple complaints against the same defendant. But that could be intended.
If that is indeed the plan, the ITC makes the Unified Patent Court (UPC) an even more attractive forum. The UPC has been up and running since June 2023, and it definitely goes to extreme lengths in its efforts to keep schedules.
By emphasizing FRAND, Lenovo did not make it easier for the ITC to address that part of the case and make a final decision.
Lenovo’s tactics in this multijurisdictional dispute are unconventional in more ways. For example, at this week’s UK appellate hearing it came up that Lenovo first argued that it would be the net licensor (May 22, 2024 ip fray article), but is now arguing the opposite. Last spring, Lenovo was seeking the equivalent of an antisuit injunction in the UK. More specifically, Lenovo wanted a UK court to enjoin Ericsson over a Lenovo SEP unless Ericsson granted a global license on UK-determined terms. That motion was denied, and didn’t fare better on appeal.
Then Lenovo pursued a U.S. antisuit injunction, which was denied by the United States District Court for the Eastern District of North Carolina, but the United States Court of Appeals for the Federal Circuit revived the motion (October 24, 2024 ip fray article). By how, almost four months have passed since that appellate decision, and nothing has happened in district court. That is surprising given the sense of urgency that Lenovo communicated to the U.S. appeals court. Lenovo did not look for the fastest way to get a mandate from the appeals court to the district court, and the docket (including the list of deadlines) shows no indication whatsoever of Lneovo having filed a Rule 65 motion for entry of a preliminary injunction (PI), which is what similarly-situated companies bring in order to try again to win a PI after a successful appeal. Presumably the reason is that Lenovo is not even interested in resuming the U.S. antisuit injunction proceedings, be it because the assumption is that the outcome could be the same as before and/or because Lenovo is now all-in on the UK as its juridiction of choice.
The UK request for an interim license, which in these circumstances constitutes an antisuit injunction by any other name, is already the third attempt by Lenovo to use other jurisdictions to thwart Ericsson’s patent enforcement in such jurisdictions as Brazil and Colombia.
On Lenovo’s global chess board, courts are pawns that can be pushed around or be left unused (such as the appellate decision regarding a hypothetical antisuit injunction), whatever suits its tactical purposes at a given point in time.