Case: 13-1625 Document: 79 Page: 1 Filed: 12/23/2013
`
`2013-1625, -1631, -1632, -1633
`
`United States Court of Appeals for the Federal Circuit
`
`ERICSSON, INC. and TELEFONAKTIEBOLAGET LM ERICSSON,
`Plaintif-Appellees,
`
`v.
`
`D-LiNK SYSTEMS, INC., NETGEAR, INC., ACER, INC.,
`ACER AMERICA CORPORATION, and GATEWAY, INC.,
`Defendants-Appellants,
`
`and
`
`DELL, INC.,
`
`and
`
`Defendant -Appe llant,
`
`TOSHIBA AMERICA INFORMATION SYSTEMS, INC. and TOSHIBA CORPORATION,
`Defendant-Appellants,
`
`and
`
`INTEL CORPORATION,
`
`and
`
`BELKIN INTERNATIONAL INC.,
`
`Appeal from the United States District Court for the Eastern District of
`
`in case no. 10-CV-0473, Chief Judge Leonard Davis
`
`Intervenor-Appellant,
`
`Defendant.
`
`Texas
`
`MOTION OF AMICI Wi-Fi CHIP COMPANIES BROADCOM CORPORATION, MARVELL
`SEMICONDUCTOR, INC., AND MEDIATEK INC. FOR LEAVE TO FILE AMICUS BRIEF
`
`Dan L. Bagatell
`PERKINS COlE LLP
`2901 N. Central Avenue, Suite 2000
`Phoenix, Arizona 85012
`Phone: (602) 351-8250
`E-mail: DBagatell@perkinscoie.com
`Counsel for Broadcom Corporation
`
`Amanda Tessar
`PERKINS COlE LLP
`1900 Sixteenth Street, Suite 1400
`Denver, Colorado 80202
`Phone: (303) 291-2357
`E-mail: ATessar@perkinscoie.com
`
`December 23,2013
`
`(counsel for other amici listed on next page)
`
`Broadcom v. Ericsson
`IPR2013-00601
`Ericsson Ex. 2017
`
`
`
`2013-1625, -1631, -1632, -1633
`
`United States Court of Appeals for the Federal Circuit
`
`ERICSSON, INC. and TELEFONAKTIEBOLAGET LM ERICSSON,
`Plaintif-Appellees,
`
`v.
`
`D-LiNK SYSTEMS, INC., NETGEAR, INC., ACER, INC.,
`ACER AMERICA CORPORATION, and GATEWAY, INC.,
`Defendants-Appellants,
`
`and
`
`DELL, INC.,
`
`and
`
`Defendant -Appe llant,
`
`TOSHIBA AMERICA INFORMATION SYSTEMS, INC. and TOSHIBA CORPORATION,
`Defendant-Appellants,
`
`and
`
`INTEL CORPORATION,
`
`and
`
`BELKIN INTERNATIONAL INC.,
`
`Appeal from the United States District Court for the Eastern District of
`
`in case no. 10-CV-0473, Chief Judge Leonard Davis
`
`Intervenor-Appellant,
`
`Defendant.
`
`Texas
`
`MOTION OF AMICI Wi-Fi CHIP COMPANIES BROADCOM CORPORATION, MARVELL
`SEMICONDUCTOR, INC., AND MEDIATEK INC. FOR LEAVE TO FILE AMICUS BRIEF
`
`Dan L. Bagatell
`PERKINS COlE LLP
`2901 N. Central Avenue, Suite 2000
`Phoenix, Arizona 85012
`Phone: (602) 351-8250
`E-mail: DBagatell@perkinscoie.com
`Counsel for Broadcom Corporation
`
`Amanda Tessar
`PERKINS COlE LLP
`1900 Sixteenth Street, Suite 1400
`Denver, Colorado 80202
`Phone: (303) 291-2357
`E-mail: ATessar@perkinscoie.com
`
`December 23,2013
`
`(counsel for other amici listed on next page)
`
`Broadcom v. Ericsson
`IPR2013-00601
`Ericsson Ex. 2017
`
`
`
`Case: 13-1625 Document: 79 Page: 2 Filed: 12/23/2013
`
`Donald M. Falk
`MA YER BROWN LLP
`Two Palo Alto Square, Suite 300
`Palo Alto, California 94306
`Phone: (650) 331-2030
`E-mail: dfalk@mayerbrown.com
`
`Steven C. Holtzman
`BOIES, SCHILLER & FLEXNER LLP
`1999 Harrison Street, Suite 900
`Oakland, California 94612
`Phone: (510) 874-1001
`E-mail: sholtzman@bsflp.com
`
`Counsel for Marell Semiconductor, Inc.
`
`Counsel for MediaTek Inc.
`
`
`
`Case: 13-1625 Document: 79 Page: 3 Filed: 12/23/2013
`
`Pursuant to Federal Rule of Appellate Procedure 29(b), Amici Wi-Fi Chip
`
`Companies Broadcom Corporation, Marvell Semiconductor, Inc., and MediaTek
`
`Inc. move for leave to file the accompanying amicus brief. The appellants have
`
`consented to the filing of this brief, but the Ericsson appellees have not consented
`
`and may file an opposition to this motion.
`
`The proposed brief
`
`focuses on a single issue: the reasonableness of
`
`the
`
`royalty awarded to Ericsson for infringement of three patents allegedly essential to
`
`practice the 802.11n version of
`
`the 802.11 (Wi-Fi) standard. As companies that
`
`design and sell Wi-Fi chips, amici have an important interest in the size of
`
`the
`
`purportedly "reasonable royalty" awarded in this case. As explained in the brief,
`
`any ruling regarding what is a reasonable and nondiscriminatory (RAND) royalty
`
`rate for standard-essential Wi-Fi patents wil inevitably affect amici even though
`
`Ericsson chose, for its own strategic reasons, not to sue amici in this case.
`
`To begin with, the accused technology is technology inside Wi-Fi chips. As
`
`noted above, Ericsson claims that practicing the patents-in-suit is essential to
`
`compliance with 802.11n version of
`
`the standard. Wi-Fi chip companies were key
`
`leaders in developing the 802.11 standard, and Broadcom chaired the subcom-
`
`mittee responsible for the 802.11n version in particular. Moreover, the 802.11
`
`standard was defined and is implemented at the level of
`
`the semiconductor chips
`
`that amici design and selL. In an effort to increase royalties, Ericsson has chosen to
`
`-1-
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`
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`Case: 13-1625 Document: 79 Page: 4 Filed: 12/23/2013
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`sue original equipment manufacturers (OEMs) that buy Wi-Fi chips and incor-
`
`porate them into laptops, routers, etc. rather than pursuing the companies that
`
`supply the chips that contain the allegedly infringing technology. But the fact
`
`remains that Ericsson is targeting Wi-Fi chips designed and sold by amici.
`
`Furthermore, the royalties awarded in this case would, if affirmed, affect
`
`amici even though they were not parties to the case. Because the accused
`
`technology is inside amici's chips, the award would affect demand for those chips
`
`and may also provoke indemnification issues. More generally, for reasons
`
`explained in the brief, the high and unreasonable royalty awarded here could
`
`severely disrupt the Wi-Fi industry and injure companies associated with it.
`
`Amici are well positioned to assist the Court in assessing the reasonableness
`
`the royalty awarded and whether it comports with Ericsson's commitment to
`
`of
`
`license under RAND principles. The brief focuses on the practical economics of
`
`Wi-Fi chips, which are critical to both the reasonable royalty to which parties
`
`would have agreed and the real-world effects of
`
`the royalty awarded here. Amici
`
`are familiar with the prices, volumes, and profits of Wi-Fi chips and can explain
`
`why a "mere" 15~ per unit royalty represents an extraordinary portion of
`
`margin on Wi-Fi chips and would translate into an annual tax of
`
`the
`
`hundreds of
`
`milions of dollars. Amici can also explain why a very real royalty stacking
`
`-2-
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`
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`Case: 13-1625 Document: 79 Page: 5 Filed: 12/23/2013
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`problem affects an industry in which at least 3,000 U.S. patents may be standard-
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`essential, and why the district court erred in not taking that into account.
`
`The proposed amicus brief is short and wil provide helpful context and
`
`guidance to the Court. Amici request that the Court accept the brief and sincerely
`
`hope that the Court wil consider their views in deciding this important case.
`
`Respectfully submitted,
`
`PERKINS COlE LLP
`
`MA YER BROWN LLP
`
`BoIES SCHILLER
`& FLEXNER LLP
`
`by /slDan L. Bagatell
`Dan L. Bagatell
`
`by /slDonald M. Falk
`Donald M. Falk
`
`by Is/Steven C. Holtzman
`Steven C. Holtzman
`
`Counsel for Amicus
`Broadcom Corporation
`
`Counsel for Amicus
`Marvell Semiconductor, Inc.
`
`Counsel for Amicus
`MediaTek Inc.
`
`-3-
`
`
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`Case: 13-1625 Document: 79 Page: 6 Filed: 12/23/2013
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`CERTIFICATES OF INTEREST
`
`Counsel for amicus curiae Broadcom Corporation certifies the following:
`
`The full name of every party or amicus curiae represented by me is:
`
`Broadcom Corporation
`
`The name of the real party in interest (if the party named in the caption is nöt
`the real party in interest) represented by me is:
`
`Broadcom Corporation
`
`All parent corporations and any publicly held companies that own 10 percent
`the party or amicus curiae represented by me are:
`
`the stock of
`
`or more of
`
`n/a
`
`The names of all law firms and the partners or associates that appeared for
`the party or amicus curiae now represented by me in the trial court or are expected
`to appear in this Court are listed below.
`
`PERKINS COlE LLP
`
`Dan L. Bagatell
`
`Amanda Tessar
`
`Dated: December 23,2013
`
`/slDan L. Bagatell
`Dan L. Bagatell
`
`-4-
`
`
`
`Case: 13-1625 Document: 79 Page: 7 Filed: 12/23/2013
`
`Counsel for amicus curiae Marvell Semiconductor, Inc. certifies the
`
`following:
`
`The full name of every party or amicus curiae represented by me is:
`
`Marvell Semiconductor, Inc.
`
`The name of
`
`the real party in interest (if
`
`the real party in interest) represented by me is:
`
`the party named in the caption is nót
`
`Marvell Semiconductor, Inc.
`
`All parent corporations and any publicly held companies that own 10 percent
`the party or amicus curiae represented by me are:
`
`the stock of
`
`or more of
`
`Marvell Semiconductor, Inc. is a subsidiary of
`
`Marvell Technology, Inc.
`and Marvell Israel Ltd., and is an indirect subsidiary of
`Marvell Technology Group, Ltd.
`
`The names of all law firms and the partners or associates that appeared for
`the party or amicus curiae now represented by me in the trial court or are expected.
`to appear in this Court are listed below.
`
`MA YER BROWN LLP
`
`Donald M. Falk
`
`Dated: December 23,2013
`
`/slDonald M. Falk
`Donald M. Falk
`
`-5-
`
`
`
`Case: 13-1625 Document: 79 Page: 8 Filed: 12/23/2013
`
`Counsel for amicus curiae MediaTek Inc. certifies the following:
`
`The full name of every party or amicus curiae represented by me is:
`
`MediaTek Inc.
`
`The name of the real party in interest (if the part named in the caption is not
`the real party in interest) represented by me is:
`
`MediaTek Inc.
`
`All parent corporations and any publicly held companies that own 10 percent
`the party or amicus curiae represented by me are:
`
`the stock of
`
`or more of
`
`n/a
`
`The names of all law firms and the partners or associates that appeared for
`the party or amicus curiae now represented by me in the trial court or are expected
`to appear in this Court are listed below.
`
`BoIES, SCHILLER & FLEXNER LLP
`
`Steven C. Holtzman
`
`Dated: December 23,2013
`
`Is/Steven C. Holtzman
`Steven C. Holtzman
`
`-6-
`
`
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`Case: 13-1625 Document: 79 Page: 9 Filed: 12/23/2013
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`CERTIFICATE OF AUTHORIZATION AND PROOF OF SERVICE
`
`In accordance with ECF-3(B), I certify that I am counsel of
`
`record for
`
`Broadcom Corporation and I obtained the authorization of counsel for Marvell
`
`Semiconductor, Inc. and MediaTek Inc. to include their .electronic signatures on
`
`this motion.
`
`In accordance with Federal Rule of Appellate Procedure 25 and Federal
`
`Circuit Rule 25, I further certify that I caused this document to be served via the
`
`Federal Circuit's CMlCF system on counsel of
`
`record for all parties.
`
`I declare under penalty of perjury under the laws of the United States that
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`the foregoing is true and correct.
`
`Dated: December 23, 2013, at Phoenix, Arizona.
`
`/slDan L. Bagatell
`Dan L. Bagatell
`
`88773-0004/LEGAL287846 i 6. i
`
`-7-
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