U.S. judge deprioritizes Samsung’s FRAND case against ZTE, UK judge requested post-hearing briefing on cross-jurisdictional implications

1. U.S. judge could not be less enthusiastic about Samsung’s case

A few hours ago, Judge Martínez-Olguín entered a docket text that reflects a great deal of annoyance and a total lack of interest in personally presiding over Samsung’s San Francisco case:

ORDER re: [48]: Due to the Court’s impacted schedule, the hearing on Defendant’s motion to dismiss and stay discovery [26] noticed for July 17, 2025 is CONTINUED to November 6, 2025. The parties may be able to obtain a more favorable schedule if they consent to magistrate judge jurisdiction. The consent form can be found on the Court’s website at: https://www.cand.uscourts.gov/forms/civil-forms/. Further, the parties’ request to hold both the initial case management conference and the motion hearing on July 17, 2025 is DENIED without prejudice. Further, the parties shall not again contact court staff about the status of a stipulation pending for less than one court day. Future improper communications to court staff may result in sanctions. Finally, the parties are advised that the Court does not provide status updates on pending matters. Signed by Judge Araceli Martinez-Olguin on June 17, 2025. (This is a text-only entry generated by the court. There is no document associated with this entry.) (amolc2, COURTSTAFF) (Filed on 6/17/2025)

Let’s discuss this passage by passage:

We’ve previously (more than once, in fact) noted that the United States District Court for the Northern District of California is one of the busiest courts in the world. That is reflected by the entire docket entry starting with the first six words (“Due to the Court’s impacted schedule”).

Samsung would have preferred to get a quick decision on ZTE’s motion to dismiss (May 28, 2025 ip fray article), knowing that after the first dismissal it would have the chance to amend the complaint and that, should any part of its complaint survive, the case would only begin in earnest after the (at least partial) denial of the motion. For ZTE, it would obviously be preferable to win dismissal sooner rather than later, and it has relatively strong arguments, but the hurdle for a dismissal is high and that’s why ZTE is presumably fine with Samsung’s U.S. case not making headway in the near term.

The suggestion that the parties should agree to proceed before a Magistrate Judge shows that Judge Martínez-Olguín is not really eager to handle this case herself. That does not mean she’ll dismiss it because of her personal motivation or lack thereof, but it doesn’t bode well for Samsung either. It shows that she’s unconvinced of this really being a high-priority matter for her court. She’s presumably full well aware of the facts that

• there are related cases in multiple jurisdictions;
• ZTE has no connection with the district;
• Samsung sells a lot of stuff in the U.S. and has some staff there, but not so much in California and, in any event, it is a Korean corporation;
• the outcome of this is not going to impact U.S. consumers; and
• ZTE is happy to grant Samsung a license on FRAND terms set by a Chinese court, and Samsung itself told a U.S. court only four years ago that China was the best jurisdiction for that purpose.

Based on that docket entry, Samsung knows that the judge doesn’t really view this as an objectively important case. Whether Samsung would even want to proceed before a magistrate judge is another question, but it just takes one party to decline, as ZTE presumably would.

In the Northern District of California, they have, and have had, great magistrate judges. Some former magistrate judges went on to become excellent District Judges, such as Judge Jacqueline Scott Corley, whose FTC v. Microsoft & ActivisionBlizzard decision (an exceptionally important $70B matter) was affirmed by the Ninth Circuit (May 7, 2025 games fray article), which in turn persuaded the FTC to abandon its in-house administrative complaint (May 23, 2025 games fray article). Former Magistrate Judge Paul Grewal did brilliant work, too. But it would be highly unusual for a major commercial dispute such as this one to be decided by a magistrate judge, given that magistrate judges primarily handle discovery and similar matters. When both parties really want a quick decision, it happens from time to time that they consent to proceeding before a magistrate judge. Those are typically very low-profile cases.

The part about not holding a combined initial case management conference and motion hearing just means that the judge doesn’t want to make that decision now. Then come two sentences that show one or both parties’ counsel annoyed the court by asking for a quick decision on their “combine the hearings” motion. Judge Martínez-Olguín sets the record straight on that one, essentially saying “leave my staff alone, we won’t give you any updates on when to expect something, we’ll just put out our decisions when we want.” She understandably deemed it unreasonable for counsel to inquire about the status of a motion within “less than one court day” of filing it.

Theoretically, ZTE’s counsel might have inquired, too, but only for logistical reasons (planning trips to San Francisco and avoiding conflicts with hearings and trials in other cases). But the party that one would expect to be pushy here is Samsung. They tell the courts in the U.S., the UK and probably also Germany that they need immediate help, emergency relief and what have you.

The upshot is that Samsung will have to be patient in California, and while this is just about case management, there is some connection with what ZTE argues in its motion to dismiss. If Judge Martínez-Olguín really viewed this as a matter worthy of a U.S. district court’s attention, she wouldn’t delay and deprioritize it. Some of ZTE’s arguments for dismissal are absolute, but the resolution of the motion to dismiss could easily hinge on a discretionary decision on jurisdiction, in which case this judge would not be very likely to exercise her discretion in favor of Samsung’s complaint.

This contrasts with the English courts constantly and indiscriminately putting any SEP matter on an expedited schedule, the question just being the extent to which they expedite. It displays the difference between a generalist judge juggling many responsibilities and the “drop everything” approach of a captive court that wants to grow a certain type of docket.

The UK courts should exercise some restraint in the SEP context. The SEP dispute resolution system is undeniably fragmented and imperfect, but that does not make the UK (which definitely should play some role in SEP litigation) the “be all and end all” venue for FRAND disputes. The United States Court of Appeals for the Federal Circuit is apparently also wondering about what’s going on in the UK, in a way that doesn’t reflect favorably on the EWCA (June 17, 2025 ip fray article).

2. UK judge has/had second thoughts after interim license hearing

In the June 6, 2025 opinion piece on how the UK interim license hearing went, one of the issues raised was the following:

[O]ne would normally expect a neutral arbiter to be at least a little more skeptical of Samsung’s tactics. Just the fact that Samsung is raising parallel FRAND issues in three jurisdictions (May 28, 2025 ip fray article) would give many judges pause. Put differently, a judge whose agenda is not to grow the docket but to focus on the most important job of the judiciary, which is to resolve actual disputes when it is necessary, would have pressed Samsung’s counsel really hard on the question of why they are coming to the UK with this in the first place. Samsung will almost certainly have to explain that in the U.S. proceedings.

In the U.S. they won’t have to explain that for months to come, but apparently the judge there has already seen that Samsung just wants to use the courts of multiple countries as pawns on a chess board (to use an analogy Judge James L. Robart of the United States District Court for the Western District of Washington featured at a Microsoft v. Motorola FRAND-related hearing).

To be fair, it now turns out that at some point, as he was presumably going over all the material in front of him and reflecting on the hearing, it also crossed Mr Justice Mellor’s mind. To a U.S. court filing we’ll discuss in the next section, ZTE attached a letter that Samsung’s counsel wrote in response to a request by Mr Justice Mellor for post-hearing briefing:

At the conclusion of the hearing, Mr Justice Mellor said he would try to render a decision the following week. That would have been last week, and didn’t happen. Also, we saw that he held a hearing in a different patent case that week, which may have contributed to the delay.

Xiaomi had a strong case for a UK interim-license declaration in its dispute with Panasonic. Since then, those interim-license requests have gotten weaker and weaker, and it’s not the EWHC’s fault but the EWCA’s, but where it is not bound by clearly apposite precedent, the EWHC could make a contribution to sanity.

All that Samsung tells Mr Justice Mellor is that they would like to see all other cases around the globe (except maybe the Chinese FRAND case) stayed. That means they want ZTE to pause any enforcement, no matter where.

What Samsung’s response to Mr Justice Mellor does not explain is how it is reasonable to file FRAND actions against the same party in three countries in parallel instead of simply accepting that the SEP holder is prepared to grant even an interim license, provided that Samsung submits to a jurisdiction it claimed only four years ago was the best one to resolve its dispute with Ericsson.

3. ZTE’s reply in support of its motion to dismiss

Here’s ZTE’s reply brief in support of its motion to dismiss Samsung’s U.S. complaint, which is the one to which the UK letter shown in the previous section was attached as one of several exhibits:

ZTE’s reply brief argues that some of Samsung’s arguments in its opposition to the motion to dismiss are tantamount to amending the U.S. complaint. For example, Samsung’s opposition brief mentions declarations submitted by ZTE to the European Telecommunications Standards Institute (ETSI). It depends on what Judge Martínez-Olguín considers appropriate, but she could quite easily dismiss Samsung’s original complaint on that basis and let Samsung refile, in which case ZTE might oppose again.

As we noted in our commentary on Samsung’s opposition brief, ZTE’s strongest argument is that the Ninth Circuit (which is the relevant appeals court here) clearly raised the bar for SEP-related antitrust claims in FTC v. Qualcomm. Samsung argues with what other circuits decided (with Broadcom v. Qualcomm being very different as the reply brief also stresses) or what district courts decided prior to FTC v. Qualcomm.

The reply brief cites Lenovo v. IPCom, a case in which a different judge of the same court, Judge Edward J. Davila, held that “contacts with the forum [i.e., the NorCal district]” is a requirement that goes beyond U.S. patents being discussed as part of a global patent licensing discussion:

During negotiations, [defendant] cited to its United States patents as ‘representative patents’ for the majority of patents it sought to license Plaintiffs [ ] and demanded licenses for numerous expired or abandoned United States patent[s] . . . . That the licensing negotiations included U.S. patents from which [defendant] would deriv the bulk of its licensing revenue is [] insufficient to establish requisite minimum contacts with the forum. The amount of {defendant’s] potential licensing revenue for U.S. patents is a function of Plaintiffs’ [emphasis added by ZTE’s lawyers] contacts with the forum, not [defendant’s] contact with the forum.

In this context, ZTE points to a non-SEP decision in the District of Nevada (which is also in the Ninth Circuit) according to which negotiation ” is not enough to satisfy the expressly aimed prong” (meaning that activities must be “expressly aimed” at the district).

Notably, ZTE’s U.S. lawyers reject Samsung’s suggestion that the Chinese proceedings would be unfair:

Samsung’s invective not only fails to show that “personal jurisdiction
in U.S. court is more than reasonable,” […], it is an inappropriate and unfounded attack on ZTE and the Chinese legal process that should be disregarded by the Court.

This is closely related to the UK situation. Samsung does not need a UK court decision to get an interim license: ZTE offers one anyway. The question is just whether a U.S. or UK court should agree with Samsung that the same jurisdiction it described as the best one four years ago should now be deemed biased (explicitly or implicitly, and even a far-fetched theory as to why the UK could make the interim-license declaration without effectively disregarding China — which came up at the UK hearing — would not change a thing). ZTE tactically chose to narrow the interim-license dispute to only one question: is it acceptable to have the matter resolved in China?

Four years ago, Samsung’s answer was yes.

4. Samsung is appealing another dismissal by the same judge

Three months ago, Judge Martínez-Olguín’s dismissed Samsung’s declaratory-judgment (DJ) complaint against Oura (March 27, 2025 ip fray article). Samsung declined the invitation to amend its complaint (presumably because there’s nothing it could have added that would have made a difference). Yesterday, Samsung gave notice of its appeal to the Federal Circuit.

In the Oura case. Samsung ran to the district court because it feared infringement litigation by smart-ring maker Oura, which would likely have been filed in the Eastern District of Texas. Judge Martínez-Olguín saw that Samsung really had no reasonable apprehension. There was no specific threat by Oura to assert particular U.S. patents against Samsung. But Samsung brought a DJ case that it may have known was (at best) a long shot, just to build an argument for transfer out of the Eastern District of Texas if and when Oura might assert patents against the Galaxy Ring.

Those are different cases, but both have something in common: Judge Martínez-Olguín sees that Samsung wants to use her court for its tactical purposes. In all likelihood, Samsung would not have wanted the ZTE case to be put before the same judge as the DJ complaint against Oura.

5. Courts and counsel

5.1 United States

United States District Judge Araceli Martínez-Olguín

Samsung’s U.S. complaint was brought by Kirkland & Ellis:

• San Francisco: Brandon H. Brown
• New York: Gregory S. Arovas, Todd M. Friedman
• Washington, DC: Edward C. Donovan, Stephen C. DeSalvo
• Chicago: David Rokach

ZTE’s motion was filed by Perkins Coie and Foley & Lardner:

• Perkins Coie San Diego: John D. Esterhay, Eric R. Maas
• Perkins Coie San Francisco: Elliott J. Joh
• Perkins Coie Seattle: Kevin A. Zeck, Samantha Carl
• Foley & Lardner Boston: Kevin M. Littman, Lucas I. Silva
• Foley & Lardner Milwaukee: Kate E. Gehl

5.2 United Kingdom

Mr Justice James Mellor

In the UK, Kirkland & Ellis (lead counsel: Nicola Dagg) represents Samsung. The answer to the judge’s post-hearing question was written by Kirkland & Ellis partner Jin Ooi.

The Powell Gilbert firm represents ZTE.