“Although the Chinese system for IP disputes clearly differs from our system in the United States, China has devoted resources and training to ensure that its IP courts achieve an unrivaled assessment of quality and fairness amongst Chinese courts.” – Judge Rader brief
In contrast to his one time colleague, former Federal Circuit Chief Judge Randall Rader earlier this month filed a Declaration supporting Samsung Electronics in its Opposition to Ericsson, Inc.’s Application for Anti-Interference Injunction relating to Samsung’s lawsuit in the Wuhan Intermediate People’s Court of China. Retired Federal Circuit Judge Paul Michel recently filed an amicus brief supporting Ericsson in the case and calling into question the procedures of the Wuhan court.
Rader, on the other hand—who has had significant dealings with Chinese courts and the Chinese legal system, as outlined in his brief—wrote: “In my view, there is no reason to give the Chinese court handling this global FRAND dispute any less deference than similar courts in the United States.” He added that China is “an appropriate and fair venue” to decide a case like this one, and that Ericsson’s suggestion it will not receive a fair trial in China is “incorrect.”
As detailed previously on IPWatchdog, Judge Rodney Gilstrap of the United States Federal District Court for the Eastern District of Texas issued a temporary restraining order against Samsung in the FRAND (fair, reasonable and non-discriminatory licensing rates) lawsuit filed by Ericsson on December 11, 2020. The Order gave Samsung until January 1, 2021 to file any opposition to the continuation of the temporary restraining order (TRO), and Ericsson until January 5, 2021 to respond to Samsung’s objection. On the same day that Rader’s Declaration was filed (New Year’s Day), Ericsson amended its December 11 complaint to add eight claims of patent infringement and Samsung filed its opposition to the TRO.
Rader’s brief details China’s efforts since 2001, when it joined the World Trade Organization, “to create a world-class legal and judicial system to which companies can turn to resolve their disputes.” With respect to intellectual property (IP) and patent suits, China’s specialized IP courts have made china successful in its efforts to become a world center for IP disputes, said Rader. The Wuhan court in the Ericsson/ Samsung case is one such specialized IP court. Rader wrote:
I have read Ericsson’s criticisms of the Chinese court system. Although the Chinese system for IP disputes clearly differs from our system in the United States, China has devoted resources and training to ensure that its IP courts achieve an unrivaled assessment of quality and fairness amongst Chinese courts. Having visited many of these courts, I can personally attest that their processes often grant faster and more complete access to the adjudication process than even some U.S. courts…. In particular, Chinese IP courts have welcomed and resolved numerous cases involving rate-setting under FRAND standards. One study covering the period of 2011-2019 counted 160 cases accepted by Chinese courts related to standard essential patents. See, chinaipr.com, 2020/07/13. Those statistics compare favorably, if not exceeding outright, similar accountings in the world’s leading national judicial systems.
While Ericsson’s emergency request for the TRO pointed out that Samsung has previously criticized the Chinese judicial system, calling it “antithetical to the United States judicial system,” “inquisitorial,” and having “no due process requirements,” in its January 1 Opposition Samsung said those and other referenced quotes were taken out of context and that Ericsson’s request would “offend international comity.” It adds that Ericsson’s motion “paints an incomplete picture of the facts surrounding the parties’ worldwide licensing dispute” and “invites the court to issue a vastly overbroad injunction.”