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Ericsson has been seeking an iPhone ban in several countries over 5G patent infringements, and has now secured the first one in Colombia. The ban applies to iPhone 12, iPhone 13, and iPad Pro models with 5G capabilities.

Apple, of course, is challenging the injunction, but it has been accused of double standards for objecting to three separate legal tactics it has itself used in the past…

Background

We previously summarized the backstory of the dispute, but the bottom line is that Apple stopped paying Ericsson for patent licenses because it believed it was overcharging.

Ericsson accuses Apple of infringing its patents on the 5G chips used in today’s iPhones. This is because Apple used to pay royalties for using proprietary technology, but then didn’t renew licenses when they expired. Apple is believed to have hoped to secure a better deal on 5G licenses after previously reaching an agreement on proprietary 2G, 3G and 4G technologies.

The situation escalated when Apple sued Ericsson last December, alleging that the Swedish company violated FRAND terms. This international law requires patents necessary for standards (the technology without which it is impossible to make a smartphone) on fair, reasonable and non-discriminatory terms. In other words, Apple said Ericsson was charging too much for patent licenses.

Ericsson, in turn, accused Apple of wasting legal resources on unnecessary litigation on two fronts. Apple hit back with an unrelated patent infringement lawsuit against Ericsson.

Both companies are trying to achieve a ban on the import of goods produced by the other side: on the one hand, the iPhone, and on the other, the mobile base station.

Since no one is arguing that Ericsson owns the patents and Apple is currently infringing on them by not renewing its licenses, experts say the Swedish company is likely to get the iPhone banned in one or more countries.

Colombia bans sale of 5G iPhones

Foss Patents, which made the prediction, says it has now come true in Colombia.

Less than six months after the current wave of Ericsson patent infringement lawsuits against Apple began, the first sale and import ban has already taken effect:

At this time, Apple cannot sell 5G-enabled iPhones and iPads in Colombia or import them into this South American country. […] The ruling on the violation was issued back in April.

The court is asking Apple to do more than stop its own sales of 5G devices.

Apple must “alert and communicate” with stores, retailers, owners of social media platforms, media and e-commerce platforms in Colombia to ensure compliance.

One legal tactic that can be used in this situation is the so-called “protective injunction”. This is where Apple is trying to get a solution in another country that would prevent the Colombian import and sale ban from being enforced.

To prevent this, a Colombian court has issued an “injunction against lawsuits” that forbids Apple from attempting this tactic.

Instead, Apple is pursuing a different legal tactic: filing a US damage claim against Ericsson for loss of income in Colombia.

Apple accused of double standards

Foss Patents argues that Apple’s actions in this case are hypocritical for three reasons. First, the iPhone maker accuses Ericsson of “forum hunting” – trying to sue in different courts until the desired result is achieved.

In one or more court filings in the Colombian capital Bogotá, as well as Friday’s US court filing, Apple criticized Ericsson’s tactic of filing multiple Colombian patent infringement lawsuits in different courts (one for each patent). A sworn statement from Apple’s Colombian lawyer (Juan Pablo Cadena Sarmiento of Brigard Castro) describes this as “an inappropriate attempt to search the forum until [Ericsson] receives a positive decision allowing Ericsson to exclude Apple from the Colombian market.” […]

Apple itself actually went further than what Ericsson is now criticizing for. In 2012, Apple failed to apply for a preliminary injunction against two Samsung products in Munich, where the court questioned the legitimacy of the patent claim. Apple then withdrew its Munich lawsuit and shortly thereafter reclaimed the same patent in Mannheim, hoping for a more favorable outcome. It didn’t work, but Apple tried.

Second, Ericsson sought an emergency injunction, which the iPhone maker says denies due process to Apple, but Apple has done it again.

Ericsson’s Colombian Apple attorney, Carlos R. Olarte of Olarte Moure, noted that “the same Apple representative requested and received ex parte preliminary injunctions from the SIC Jurisdictional Delegation.” [Dept. of Industry and Commerce]therefore, it is not clear why he strongly states on this occasion that ERICSSON’s actions are unfair when he himself has implemented these legal mechanisms to protect his clients.

Finally, Apple accuses Ericsson of trying to avoid the jurisdiction of the Eastern District of Texas, when the Cupertino-based company went as far as closing two stores in the district in order to avoid its jurisdiction.

A look at the iPhone sales ban

This is not a dispute about the validity of patents. Ericsson owns the patents and Apple recognizes them as valid. The argument is solely about whether Ericsson charges reasonable fees for patent licenses.

This particular decision doesn’t make much of a difference to Apple. Colombia is a tiny market for iPhone and iPad sales, and the company is unlikely to see any lost profits there.

However, this could very well be the first of many iPhone sales bans. Apple does not deny that it infringes Ericsson’s patents, so it has little defense against similar allegations elsewhere.

Until an agreement is reached with Ericsson, Apple risks being banned from selling the iPhone in other more important markets. It’s high stakes poker and the Cupertino company doesn’t have a finger on the pulse.

Photo: XXaijxx

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