Case 2:18-cv-00514-JRG Document 24 Filed 03/20/19 Page 1 of 12 PageID #: 190
`
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`UNILOC 2017 LLC,
`
`
`Plaintiff,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`
`§
`Case No. 2:18-cv-00514-JRG
`§
`
`§
`
`§
`Jury Trial Demanded
`§
`
`§
`
`§
`§
`§
`§
`
`v.
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`
`
`
`
`
`AT&T MOBILITY LLC, and AT&T
`SERVICES, INC.,
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` Defendants.
`
`PLAINTIFF’S OPPOSITION TO ERICSSON INC.’S
`MOTION TO INTERVENE AS A DEFENDANT
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`1
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`Ex. 1024 / Page 1 of 12
`ERICSSON v. UNILOC
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`

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`Case 2:18-cv-00514-JRG Document 24 Filed 03/20/19 Page 2 of 12 PageID #: 191
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`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 ...................................................... 4
`2. Ericsson Does Not Require Representation in this Action; Regardless, Ericsson has
`Not Shown that AT&T Cannot Represent any Interest It Might Have in Defending AT&T’s
`own Accused Network ............................................................................................................ 5
`B. Permissive Intervention Under Rule 24(a)(2) is Inappropriate ........................................... 7
`IV.
`CONCLUSION ................................................................................................................... 8
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`i
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`Ex. 1024 / Page 2 of 12
`ERICSSON v. UNILOC
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`Case 2:18-cv-00514-JRG Document 24 Filed 03/20/19 Page 3 of 12 PageID #: 192
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`TABLE OF AUTHORITIES
`
`Cases
`Munchkin, Inc. v. Furminator, Inc.,
`No. 4:08-cv-00367-ERW, 2008 WL 3200758 (E.D. Mo. Aug. 5, 2008) ................................... 8
`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) ............................................ 7
`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) .................................. 8
`Sierra Club v. Espy,
`18 F.3d 1202 (5th Cir. 1994) ...................................................................................................... 5
`Team Worldwide Corp. v. Wal-Mart Stores, Inc.,
`No. 2:17-cv-00235-JRG, 2017 WL6059303 (E.D. Tex. Dec. 7, 2017) ...................................... 6
`Texas v. United States,
`805 F.3d 653 (5th Cir. 2015) ...................................................................................................... 4
`Trenton Int’l, Ltd. v. Trenton Int’l, Inc.,
`No. 2:05-cv-581-FtM, 2008 WL 11430009 (M.D. Fla. Aug. 7, 2008) ....................................... 8
`
`
`
`
`
`
`
`ii
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`Ex. 1024 / Page 3 of 12
`ERICSSON v. UNILOC
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`Case 2:18-cv-00514-JRG Document 24 Filed 03/20/19 Page 4 of 12 PageID #: 193
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`I.
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`
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`INTRODUCTION
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`
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`Ericsson Inc.’s (“Ericsson”) reason for intervening is that it provides some of the base
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`stations in AT&T’s infringing cellular network. This is not a sufficient reason to intervene as of
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`right, nor a justification for permissive intervention. Intervention is particularly inappropriate
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`where, as here:
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`(1) Ericsson provides only a portion of the equipment recited in the claim (base stations)
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`and not even all of the relevant base stations;
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`(2) Ericsson is not indemnifying AT&T; and
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`(3) Ericsson cannot even say whether it has documents relevant to the issues in this case
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`(see, e.g., Dkt. No. 20 at 10: “Ericsson also likely possesses documents related to the
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`design and function of the Accused Ericsson Base Stations” (emphasis added)).
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`Ericsson asks to intervene based on two Internet printouts—that say nothing more than
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`Ericsson provides some LAA enabled base stations to AT&T—and conclusory attorney
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`argument. Ericsson cannot wedge its way into a lawsuit concerning AT&T’s infringing network
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`without proving it has the right to do so or should be allowed to do so.
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`
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`The Court should deny Ericsson’s motion because Ericsson: (1) has not averred that it has
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`relevant documents or witnesses, (2) has not demonstrated an obligation to an active litigant
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`(such as indemnification), and (3) has not proven that AT&T cannot defend (or does not
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`understand) the functionality of its own network.
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`II.
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`
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`BACKGROUND
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`In the Complaint, Plaintiff details AT&T’s infringement of U.S. Patent No. 7,016,676
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`(the “’676 patent”). Dkt. No. 1, ¶¶ 58-79. The operation of AT&T’s network that provides
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`“shared network access to LTE-LAA and Wi-Fi capable devices over at least one common
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`frequency band” is accused of infringing the method of claim 1 of the ’676 patent. Id. at ¶¶ 58-
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`1
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`Ex. 1024 / Page 4 of 12
`ERICSSON v. UNILOC
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`60 (“AT&T’s Network, base stations, and network controllers perform an interface control
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`method that provides for alternate use of the 5 GHz frequency band, which is used by a first (Wi-
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`Fi) and second (LTE-LAA) interface standard.”).
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`
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`Ericsson does not assert that it provides all of the equipment recited in claim 1.
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`Moreover, while Ericsson repeatedly claims that AT&T is somehow ignorant of its own use of
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`the infringing LAA functionality (and thus AT&T’s own network), this is empty attorney
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`rhetoric and is belied by the evidence in the Complaint demonstrating that AT&T is well versed
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`in the functioning of all of the relevant infringing equipment, as exemplified as follows:
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`2
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`Ex. 1024 / Page 5 of 12
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`Id. at ¶ 60.
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`As Ericsson confesses, it believes that it only provides some of the base stations used in
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`performing the infringing method: “Ericsson believes that the scope of Uniloc’s infringement
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`allegations includes LTE-LLA-enabled base stations that AT&T may purchase from other
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`suppliers, although Ericsson lacks information about those other suppliers’ LTE-LAA-enabled
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`base stations.” Dkt. No. 20 at 3, n. 6.
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`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
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`follows:
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`3
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`Ex. 1024 / Page 6 of 12
`ERICSSON v. UNILOC
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`Case 2:18-cv-00514-JRG Document 24 Filed 03/20/19 Page 7 of 12 PageID #: 196
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`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 AT&T 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.
`
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`Dkt. No. 20 at 5.
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`
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`This is unsupported attorney argument. There is no declaration from anyone at
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`Ericsson. There is no declaration from AT&T that it cannot defend or understand the
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`functioning of its own network. The only support for Ericsson’s Motion is two Internet
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`printouts that at best establish that Ericsson provides some of the base stations which are
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`a part of the infringing network. Dkt. Nos. 20-4 and 20-5.
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`
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`This is not a case where a retailer (like Wal-Mart) has been sued for patent
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`infringement based on its re-sale of an off-the-shelf product. Rather, this is a case where
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`AT&T’s network performs an infringing method and Ericsson provides a part of the
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`network.
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`1.
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`Ericsson Does Not Have a Significant Interest in This Lawsuit and
`Disposition of this Action Will Not Impair its Ability to Protect its
`Interests
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`To intervene as of right, Ericsson “must have an interest relating to the property
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`or transaction which is the subject of the action” and “must be so situated that the
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`disposition of the action may, as a practical matter, impair or impede [its] ability to
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`protect that interest.” Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015) (quoting
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`New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.
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`1984) (en banc)). Ericsson cannot make this showing.
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`Ericsson does not have an indemnification obligation to AT&T. Plaintiff is not
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`seeking to enjoin AT&T from the use of its network or Ericsson base stations within the
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`4
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`Ex. 1024 / Page 7 of 12
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`network. See Dkt. No. 1. Ericsson is not the “true defendant” because it does not
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`provide all of AT&T’s network. Ericsson cannot even profess to have relevant
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`documents (only that it “likely” does). See, e.g., Dkt. No. 20 at 10 (“Ericsson also likely
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`possesses documents related to the design and function of the Accused Ericsson Base
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`Stations”) (emphasis added).
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`Under these circumstances, Ericsson itself will not be subject to multiple
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`inconsistent judgments and has no stake in the matter that goes beyond a generalized
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`preference that the case come[s] out a certain way. See, e.g., Sierra Club v. Espy, 18 F.3d
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`1202, 1207 (5th Cir. 1994).1 Indeed, all of Ericsson’s arguments on pages 7-11 of its
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`Motion could be made in any infringement case in which a part of a product provided by
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`a third-party is implicated (regardless of the significance of that part). Dkt. No. 20 at 7-
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`11. These arguments are at best attorney argument—not rooted in any declaration or
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`other evidence that Ericsson has something beyond a preference that a customer not be
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`found to infringe where its base stations are a part of the infringement.
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`2.
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`Ericsson Does Not Require Representation in this Action; Regardless,
`Ericsson has Not Shown that AT&T Cannot Represent any Interest It
`Might Have in Defending AT&T’s own Accused Network
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`
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`Ericsson “must be inadequately represented by the existing parties to the suit” and it is
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`Ericsson’s burden to show this. Texas, 805 F.3d at 657. Armed with just two Internet printouts
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`that have nothing to do with whether Ericsson’s interest would be adequately represented,
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`Ericsson cannot meet this “minimal” burden to show that it even “may be” inadequately
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`1 Ericsson’s argument on “inconsistent judgments” on pages 9-10 of its Motion does not make
`sense. Dkt. No. 20 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.
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`5
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`Ex. 1024 / Page 8 of 12
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`Case 2:18-cv-00514-JRG Document 24 Filed 03/20/19 Page 9 of 12 PageID #: 198
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`represented. Id. at 661.
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`Ericsson’s argument on this point is incredible. Ericsson argues that it “and its
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`employees—not AT&T—possess the most substantial knowledge regarding the Accused
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`Ericsson Base Stations’ design and function” and in the very next sentence cannot even claim to
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`have relevant documents in this regard. Dkt. No. 20 at 10 (“Ericsson also likely possesses
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`documents related to the design and function of the Accused Ericsson Base Stations.”). If
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`anyone has the best knowledge about its own network, it is AT&T as demonstrated in the
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`Complaint. Dkt. No. 1, ¶ 60.
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`Regardless, all of this is just attorney argument and not indicative of (1) an interest by
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`Ericsson that requires representation, or (2) an interest that cannot be adequately represented by
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`AT&T. Ericsson has not shown that AT&T cannot adequately represent itself against
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`accusations that its own network or the base stations that Ericsson provides infringe the ’676
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`patent. Ericsson has not shown, averred or even argued that it does have relevant documents or
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`witnesses. Ericsson also cannot show that it is the “true defendant” such as in the Wal-Mart
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`case where indemnitors intervened to defend Wal-Mart for its sale of off-the-shelf air mattresses.
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`Team Worldwide Corp. v. Wal-Mart Stores, Inc., No. 2:17-cv-00235-JRG, 2017 WL6059303
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`(E.D. Tex. Dec. 7, 2017). Rather, Ericsson provides the base stations in AT&T’s infringing
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`network. There is also no indication that Ericsson has an indemnification obligation to AT&T
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`and thus Ericsson cannot be subject to multiple inconsistent judgments against it. There is also
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`no threat of injunction in this case. Dkt. No. 1.
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`With no indemnification obligation to AT&T or an identification of relevant documents
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`in its possession or witnesses, Ericsson cannot identify an interest that requires protection. This
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`is particularly true when no injunction is sought. AT&T can adequately defend its own network
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`6
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`Ex. 1024 / Page 9 of 12
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`Case 2:18-cv-00514-JRG Document 24 Filed 03/20/19 Page 10 of 12 PageID #: 199
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`and defend any purported interest that its base station provider might have.
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`B.
`Permissive Intervention Under Rule 24(a)(2) is Inappropriate
`Ericsson’s argument for permissive intervention is conclusory and does not go beyond
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`
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`the same arguments it made for intervention as of right. Dkt. No. 20 at 11-12.
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`As shown above, other than “timeliness” of the Motion, Ericsson has failed to establish
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`the three other mandatory prongs for intervention. Moreover, with no indemnity obligation, no
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`threat of injunction, no actual “evidence” for why intervention is important and the fact that
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`Ericsson only supplies a portion of the infringing network, there is no reason to have Ericsson
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`participate as a defendant in this case. This is particularly true when Ericsson is not the only
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`purveyor of base stations to AT&T (and none of the other purveyors have sought to intervene),
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`and Ericsson is unwilling to affirmatively aver that it has documents relevant to this case in its
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`motion.
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`Ericsson needs to make an actual showing for intervention. It has not.
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`C.
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`Cases Denying Intervention in Circumstances Similar to This Case
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`Other courts have denied intervention attempts in similar circumstances as presented
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`here. For instance, in a patent infringement action in the automotive industry, Federal-Mogul, a
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`parts supplier to defendant Nissan, sought to intervene because its interests were purportedly not
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`being adequately protected in the litigation. Nat’l Inst. for Strategic Tech. Acquisition &
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`Commercialization v. Nissan of N. Am., No. 11-cv-11039, 2012 WL 3679316 (E.D. Mich. Aug.
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`22, 2012). Federal-Mogul argued, inter alia, that it was prejudiced by the defendants’ proposed
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`claim construction because Federal-Mogul would be at risk of additional third-party liability if a
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`particular construction was adopted. Id. at *2. However, the court rejected intervention on this
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`basis because, even if intervention was timely, “Federal-Mogul fails to demonstrate that the
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`current parties cannot protect its interests.” Id. The court pointed to the fact that the defendants’
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`7
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`Ex. 1024 / Page 10 of 12
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`defenses mirrored those of Federal-Mogul’s proposed responsive pleading. “A review of
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`Federal-Mogul’s proposed responsive pleading raises the same positions and defenses as those
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`raised by the original defendants in this action; i.e., that no infringement occurred. The fact that
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`Federal-Mogul has not presented any new facts or allegations in its proposed answer different
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`from those asserted by the defendants shows that the current parties can adequately protect its
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`interests.” Id. at *3. Likewise, Ericsson’s answer raises the same position and defense as that
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`raised by AT&T, i.e. that no infringement occurred. Dkt No. 20-2.
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`In Select Retrieval, LLC v. Altrec, Inc., the court found that potential intervenor Adobe
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`Systems, Inc. failed to establish a significant protectable interest in the case despite its
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`relationship with a customer defendant. Case No. 3:11-cv-1104-AA, 2013 WL 12321319 (D.
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`Or. Jan. 29, 2013). Similar to the present case, the court cited Adobe’s failure to provide any
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`“evidence that it is obligated to defend or indemnify” its customer defendant. Id. at *2. Other
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`courts have cited the same dearth of evidence as a basis to deny intervention. See, e.g.,
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`Munchkin, Inc. v. Furminator, Inc., No. 4:08-cv-00367-ERW, 2008 WL 3200758, at *1 (E.D.
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`Mo. Aug. 5, 2008) (intervention denied because the third party “simply states in his motion that
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`he has information pertaining to the case. This is insufficient under the terms of Rule 24 to
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`mandate intervention”); Trenton Int’l, Ltd. v. Trenton Int’l, Inc., No. 2:05-cv-581-FtM, 2008 WL
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`11430009, at *1 (M.D. Fla. Aug. 7, 2008) (intervention denied because the third party “does not
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`support his motion with any law or facts that would demonstrate to the Court that he has a vested
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`interest in the case that would prejudice him in any way should he be denied the right to
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`intervene.”).
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`IV. CONCLUSION
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`For at least these reasons, Ericsson’s Motion should be denied.
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`8
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`Ex. 1024 / Page 11 of 12
`ERICSSON v. UNILOC
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`Case 2:18-cv-00514-JRG Document 24 Filed 03/20/19 Page 12 of 12 PageID #: 201
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`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
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`9
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`Ex. 1024 / Page 12 of 12
`ERICSSON v. UNILOC
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