Case 2:18-cv-00513-JRG Document 19 Filed 03/20/19 Page 1 of 11 PageID #: 266
`
`
`UNILOC 2017 LLC,
`
`
`Plaintiff,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`
`§
`Case No. 2:18-cv-00513-JRG
`§
`
`§
`
`§
`Jury Trial Demanded
`§
`
`§
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`v.
`
`
`
`
`
`
`
`
`VERIZON COMMUNICATIONS, INC.,
`CELLCO PARTNERSHIP INC. D/B/A
`VERIZON WIRELESS, VERIZON
`BUSINESS NETWORK SERVICES, INC.,
`and VERIZON DIGITAL MEDIA
`SERVICES, INC.,
`
` Defendants.
`
`PLAINTIFF’S OPPOSITION TO ERICSSON INC.’S
`MOTION TO INTERVENE AS A DEFENDANT
`
`1
`
`Ex. 1021 / Page 1 of 11
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00513-JRG Document 19 Filed 03/20/19 Page 2 of 11 PageID #: 267
`
`TABLE OF CONTENTS
`
`INTRODUCTION .................................................................................................................. 1
`I.
`II. BACKGROUND .................................................................................................................... 1
`III.
`ARGUMENT ...................................................................................................................... 3
`A. Ericsson Does Not Have a Right to Intervene Under Rule 24(a)(2) ................................... 3
`1. Ericsson Does Not Have a Significant Interest in This Lawsuit and Disposition of this
`Action Will Not Impair its Ability to Protect its Interests ...................................................... 3
`2. Ericsson Does Not Require Representation in this Action; Regardless, Ericsson has
`Not Shown that Verizon Cannot Represent any Interest It Might Have in Defending
`Verizon’s own Accused Network ........................................................................................... 4
`B. Permissive Intervention Under Rule 24(a)(2) is Inappropriate ........................................... 6
`C. Ericsson needs to make an actual showing for intervention. It has not.Cases Denying
`Intervention in Circumstances Similar to This Case ................................................................... 6
`IV.
`CONCLUSION ................................................................................................................... 8
`
`
`
`
`
`
`
`i
`
`Ex. 1021 / Page 2 of 11
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00513-JRG Document 19 Filed 03/20/19 Page 3 of 11 PageID #: 268
`
`TABLE OF AUTHORITIES
`
`Cases
`Munchkin, Inc. v. Furminator, Inc.,
`No. 4:08-cv-00367-ERW, 2008 WL 3200758 (E.D. Mo. Aug. 5, 2008) ................................... 7
`Nat’l Inst. for Strategic Tech. Acquisition & Commercialization v. Nissan of N. Am.,
`No. 11-cv-11039, 2012 WL 3679316 (E.D. Mich. Aug. 22, 2012) ............................................ 6
`New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co.,
`732 F.2d 452 (5th Cir. 1984) ...................................................................................................... 4
`Select Retrieval, LLC v. Altrec, Inc.,
`Case No. 3:11-cv-1104-AA, 2013 WL 12321319 (D. Or. Jan. 29, 2013) .................................. 7
`Sierra Club v. Espy,
`18 F.3d 1202 (5th Cir. 1994) ...................................................................................................... 4
`Team Worldwide Corp. v. Wal-Mart Stores, Inc.,
`No. 2:17-cv-00235-JRG, 2017 WL6059303 (E.D. Tex. Dec. 7, 2017) ...................................... 5
`Texas v. United States,
`805 F.3d 653 (5th Cir. 2015) ...................................................................................................... 3
`Trenton Int’l, Ltd. v. Trenton Int’l, Inc.,
`No. 2:05-cv-581-FtM, 2008 WL 11430009 (M.D. Fla. Aug. 7, 2008) ....................................... 7
`
`
`
`
`
`
`ii
`
`Ex. 1021 / Page 3 of 11
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00513-JRG Document 19 Filed 03/20/19 Page 4 of 11 PageID #: 269
`
`I.
`
`
`
`INTRODUCTION
`
`
`
`Ericsson Inc.’s (“Ericsson”) reason for intervening is that it provides some of the base
`
`stations in Verizon’s infringing cellular network. This is not a sufficient reason to intervene as
`
`of right, nor a justification for permissive intervention. Intervention is particularly inappropriate
`
`where, as here:
`
`(1) Ericsson provides only a portion of the equipment recited in the claim (base stations)
`
`and not even all of the relevant base stations;
`
`(2) Ericsson is not indemnifying Verizon; and
`
`(3) Ericsson cannot even say whether it has documents relevant to the issues in this case
`
`(see, e.g., Dkt. No. 17 at 10: “Ericsson also likely possesses documents related to the
`
`design and function of the Accused Ericsson Base Stations” (emphasis added)).
`
`Ericsson asks to intervene based on two Internet printouts—that say nothing more than
`
`Ericsson provides some LAA enabled base stations to Verizon—and conclusory attorney
`
`argument. Ericsson cannot wedge its way into a lawsuit concerning Verizon’s infringing
`
`network without proving it has the right to do so or should be allowed to do so.
`
`
`
`The Court should deny Ericsson’s motion because Ericsson: (1) has not averred that it has
`
`relevant documents or witnesses, (2) has not demonstrated an obligation to an active litigant
`
`(such as indemnification), and (3) has not proven that Verizon cannot defend (or does not
`
`understand) the functionality of its own network.
`
`II.
`
`
`
`BACKGROUND
`
`In the Complaint, Plaintiff details Verizon’s infringement of U.S. Patent No. 7,016,676
`
`(the “’676 patent”). Dkt. No. 1, ¶¶ 92-109. The operation of Verizon’s network that provides
`
`“shared network access to LTE-LAA and Wi-Fi capable devices over at leas[t] one common
`
`frequency band” is accused of infringing the method of claim 1 of the ’676 patent. Id. at ¶¶ 97-
`
`
`
`1
`
`Ex. 1021 / Page 4 of 11
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00513-JRG Document 19 Filed 03/20/19 Page 5 of 11 PageID #: 270
`
`99 (“Verizon’s Network, base stations, and network controllers perform an interface control
`
`method that provides for alternate use of the 5 GHz frequency band, which is used by a first (Wi-
`
`Fi) and second (LTE-LAA) interface standard.”).
`
`
`
`Ericsson does not assert that it provides all of the equipment recited in claim 1.
`
`Moreover, while Ericsson repeatedly claims that Verizon is somehow ignorant of its own use of
`
`the infringing LAA functionality (and thus Verizon’s own network), this is empty attorney
`
`rhetoric and is belied by the evidence in the Complaint demonstrating that Verizon is well versed
`
`in the functioning of all of the relevant infringing equipment, as exemplified as follows:
`
`Id. at ¶ 99.
`
`
`
`
`
`As Ericsson confesses, it believes that it only provides some of the base stations used in
`
`performing the infringing method: “Ericsson believes that the scope of Uniloc’s infringement
`
`allegations includes LTE-LLA-enabled base stations that Verizon may purchase from other
`
`suppliers, although Ericsson lacks information about those other suppliers’ LTE-LAA-enabled
`
`base stations.” Dkt. No. 17 at 3, n. 6.
`
`
`
`2
`
`Ex. 1021 / Page 5 of 11
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00513-JRG Document 19 Filed 03/20/19 Page 6 of 11 PageID #: 271
`
`III. ARGUMENT
`A.
`Ericsson Does Not Have a Right to Intervene Under Rule 24(a)(2)
`Ericsson distills and summarizes its “right to intervene” argument on page 5 of its brief as
`
`
`
`follows:
`
`
`
`
`As a manufacturer of products accused in the litigation, Ericsson has a unique
`interest in defending against infringing claims that, by their mere existence, could
`jeopardize its ability to provide those products to Verizon and other customers. As
`the designer of products accused in the litigation, Ericsson is the party most
`knowledgeable regarding how those products function, which will be a central issue
`as the case progresses.
`
`
`Dkt. No. 17 at 5.
`
`
`
`This is unsupported attorney argument. There is no declaration from anyone at
`
`Ericsson. There is no declaration from Verizon that it cannot defend or understand the
`
`functioning of its own network. The only support for Ericsson’s Motion is two Internet
`
`printouts that at best establish that Ericsson provides some of the base stations which are
`
`a part of the infringing network. Dkt. Nos. 17-4 and 17-5.
`
`
`
`This is not a case where a retailer (like Wal-Mart) has been sued for patent
`
`infringement based on its re-sale of an off-the-shelf product. Rather, this is a case where
`
`Verizon’s network performs an infringing method and Ericsson provides a part of the
`
`network.
`
`1.
`
`Ericsson Does Not Have a Significant Interest in This Lawsuit and
`Disposition of this Action Will Not Impair its Ability to Protect its
`Interests
`To intervene as of right, Ericsson “must have an interest relating to the property
`
`or transaction which is the subject of the action” and “must be so situated that the
`
`disposition of the action may, as a practical matter, impair or impede [its] ability to
`
`protect that interest.” Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015) (quoting
`
`New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.
`
`
`
`3
`
`Ex. 1021 / Page 6 of 11
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00513-JRG Document 19 Filed 03/20/19 Page 7 of 11 PageID #: 272
`
`1984) (en banc)). Ericsson cannot make this showing.
`
`Ericsson does not have an indemnification obligation to Verizon. Plaintiff is not
`
`seeking to enjoin Verizon from the use of its network or Ericsson base stations within the
`
`network. See Dkt. No. 1. Ericsson is not the “true defendant” because it does not
`
`provide all of Verizon’s network. Ericsson cannot even profess to have relevant
`
`documents (only that it “likely” does). See, e.g., Dkt. No. 17 at 10 (“Ericsson also likely
`
`possesses documents related to the design and function of the Accused Ericsson Base
`
`Stations”) (emphasis added).
`
`Under these circumstances, Ericsson itself will not be subject to multiple
`
`inconsistent judgments and has no stake in the matter that goes beyond a generalized
`
`preference that the case come[s] out a certain way. See, e.g., Sierra Club v. Espy, 18 F.3d
`
`1202, 1207 (5th Cir. 1994).1 Indeed, all of Ericsson’s arguments on pages 7-10 of its
`
`Motion could be made in any infringement case in which a part of a product provided by
`
`a third-party is implicated (regardless of the significance of that part). Dkt. No. 17 at 7-
`
`10. These arguments are at best attorney argument—not rooted in any declaration or
`
`other evidence that Ericsson has something beyond a preference that a customer not be
`
`found to infringe where its base stations are a part of the infringement.
`
`2.
`
`Ericsson Does Not Require Representation in this Action; Regardless,
`Ericsson has Not Shown that Verizon Cannot Represent any Interest
`It Might Have in Defending Verizon’s own Accused Network
`
`
`
`Ericsson “must be inadequately represented by the existing parties to the suit” and it is
`
`Ericsson’s burden to show this. Texas, 805 F.3d at 657. Armed with just two Internet printouts
`
`
`1 Ericsson’s argument on “inconsistent judgments” on pages 9-10 of its Motion does not make
`sense. Dkt. No. 17 at 9-10. Ericsson makes no showing that the disputes in the AT&T and
`Verizon cases are the same, or that the dispute with respect to anyone else to whom Ericsson
`supplies base stations would be “essentially the same dispute.” Ericsson has not even shown that
`it supplies the same base stations to Verizon and AT&T.
`
`
`
`4
`
`Ex. 1021 / Page 7 of 11
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00513-JRG Document 19 Filed 03/20/19 Page 8 of 11 PageID #: 273
`
`that have nothing to do with whether Ericsson’s interest would be adequately represented,
`
`Ericsson cannot meet this “minimal” burden to show that it even “may be” inadequately
`
`represented. Id. at 661.
`
`
`
`Ericsson’s argument on this point is incredible. Ericsson argues that it “and its
`
`employees—not Verizon—possess the most substantial knowledge regarding the Accused
`
`Ericsson Base Stations’ design and function” and in the very next sentence cannot even claim to
`
`have relevant documents in this regard. Dkt. No. 17 at 10 (“Ericsson also likely possesses
`
`documents related to the design and function of the Accused Ericsson Base Stations.”). If
`
`anyone has the best knowledge about its own network, it is Verizon as demonstrated in the
`
`Complaint. Dkt. No. 1, ¶ 99.
`
`Regardless, all of this is just attorney argument and not indicative of (1) an interest by
`
`Ericsson that requires representation, or (2) an interest that cannot be adequately represented by
`
`Verizon. Ericsson has not shown that Verizon cannot adequately represent itself against
`
`accusations that its own network or the base stations that Ericsson provides infringe the ’676
`
`patent. Ericsson has not shown, averred or even argued that it does have relevant documents or
`
`witnesses. Ericsson also cannot show that it is the “true defendant” such as in the Wal-Mart
`
`case where indemnitors intervened to defend Wal-Mart for its sale of off-the-shelf air mattresses.
`
`Team Worldwide Corp. v. Wal-Mart Stores, Inc., No. 2:17-cv-00235-JRG, 2017 WL6059303
`
`(E.D. Tex. Dec. 7, 2017). Rather, Ericsson provides the base stations in Verizon’s infringing
`
`network. There is also no indication that Ericsson has an indemnification obligation to Verizon
`
`and thus Ericsson cannot be subject to multiple inconsistent judgments against it. There is also
`
`no threat of injunction in this case. Dkt. No. 1.
`
`
`
`
`
`With no indemnification obligation to Verizon or an identification of relevant documents
`
`5
`
`Ex. 1021 / Page 8 of 11
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00513-JRG Document 19 Filed 03/20/19 Page 9 of 11 PageID #: 274
`
`in its possession or witnesses, Ericsson cannot identify an interest that requires protection. This
`
`is particularly true when no injunction is sought. Verizon can adequately defend its own network
`
`and defend any purported interest that its base station provider might have.
`
`B.
`
`Permissive Intervention Under Rule 24(a)(2) is Inappropriate
`
`
`
`Ericsson’s argument for permissive intervention is conclusory and does not go beyond
`
`the same arguments it made for intervention as of right. Dkt. No. 17 at 11-12.
`
`
`
`
`
`As shown above, other than “timeliness” of the Motion, Ericsson has failed to establish
`
`the three other mandatory prongs for intervention. Moreover, with no indemnity obligation, no
`
`threat of injunction, no actual “evidence” for why intervention is important and the fact that
`
`Ericsson only supplies a portion of the infringing network, there is no reason to have Ericsson
`
`participate as a defendant in this case. This is particularly true when Ericsson is not the only
`
`purveyor of base stations to Verizon (and none of the other purveyors have sought to intervene),
`
`and Ericsson is unwilling to affirmatively aver that it has documents relevant to this case in its
`
`motion.
`
`C.
`
`Ericsson needs to make an actual showing for intervention. It has not.Cases
`Denying Intervention in Circumstances Similar to This Case
`
`Other courts have denied intervention attempts in similar circumstances as presented
`
`here. For instance, in a patent infringement action in the automotive industry, Federal-Mogul, a
`
`parts supplier to defendant Nissan, sought to intervene because its interests were purportedly not
`
`being adequately protected in the litigation. Nat’l Inst. for Strategic Tech. Acquisition &
`
`Commercialization v. Nissan of N. Am., No. 11-cv-11039, 2012 WL 3679316 (E.D. Mich. Aug.
`
`22, 2012). Federal-Mogul argued, inter alia, that it was prejudiced by the defendants’ proposed
`
`claim construction because Federal-Mogul would be at risk of additional third-party liability if a
`
`particular construction was adopted. Id. at *2. However, the court rejected intervention on this
`
`
`
`6
`
`Ex. 1021 / Page 9 of 11
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00513-JRG Document 19 Filed 03/20/19 Page 10 of 11 PageID #: 275
`
`basis because, even if intervention was timely, “Federal-Mogul fails to demonstrate that the
`
`current parties cannot protect its interests.” Id. The court pointed to the fact that the defendants’
`
`defenses mirrored those of Federal-Mogul’s proposed responsive pleading. “A review of
`
`Federal-Mogul’s proposed responsive pleading raises the same positions and defenses as those
`
`raised by the original defendants in this action; i.e., that no infringement occurred. The fact that
`
`Federal-Mogul has not presented any new facts or allegations in its proposed answer different
`
`from those asserted by the defendants shows that the current parties can adequately protect its
`
`interests.” Id. at *3. Likewise, Ericsson’s answer raises the same position and defense as
`
`Verizon, i.e., that no infringement occurred. Dkt. No. 17-2.
`
`In Select Retrieval, LLC v. Altrec, Inc., the court found that potential intervenor Adobe
`
`Systems, Inc. failed to establish a significant protectable interest in the case despite its
`
`relationship with a customer defendant. Case No. 3:11-cv-1104-AA, 2013 WL 12321319 (D.
`
`Or. Jan. 29, 2013). Similar to the present case, the court cited Adobe’s failure to provide any
`
`“evidence that it is obligated to defend or indemnify” its customer defendant. Id. at *2. Other
`
`courts have cited the same dearth of evidence as a basis to deny intervention. See, e.g.,
`
`Munchkin, Inc. v. Furminator, Inc., No. 4:08-cv-00367-ERW, 2008 WL 3200758, at *1 (E.D.
`
`Mo. Aug. 5, 2008) (intervention denied because the third party “simply states in his motion that
`
`he has information pertaining to the case. This is insufficient under the terms of Rule 24 to
`
`mandate intervention”); Trenton Int’l, Ltd. v. Trenton Int’l, Inc., No. 2:05-cv-581-FtM, 2008 WL
`
`11430009, at *1 (M.D. Fla. Aug. 7, 2008) (intervention denied because the third party “does not
`
`support his motion with any law or facts that would demonstrate to the Court that he has a vested
`
`interest in the case that would prejudice him in any way should he be denied the right to
`
`intervene.”).
`
`
`
`7
`
`Ex. 1021 / Page 10 of 11
`ERICSSON v. UNILOC
`
`

`

`Case 2:18-cv-00513-JRG Document 19 Filed 03/20/19 Page 11 of 11 PageID #: 276
`
`IV. CONCLUSION
`
`
`
`
`
`
`
`
`
`
`
`
`
`For at least these reasons, Ericsson’s Motion should be denied.
`
`Respectfully Submitted,
`
`March 20, 2019
`
`/s/ M. Elizabeth Day
`M. Elizabeth Day (CA SBN 177125)
`Admitted to Practice in Texas
`eday@feinday.com
`David Alberti
`dalberti@feinday.com
`Sal Lim
`slim@feinday.com
`Marc Belloli
`mbelloli@feinday.com
`FEINBERG DAY ALBERTI LIM &
`BELLOLI LLP
`1600 El Camino Real, Suite 280
`Menlo Park, CA 94025
`Tel: 650 618-4360
`Fax: 650 618-4368
`
`Attorneys for Plaintiff
`Uniloc 2017 LLC
`
`8
`
`Ex. 1021 / Page 11 of 11
`ERICSSON v. UNILOC
`
`