`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CIVIL ACTION NO. 2:18-CV-00513-JRG
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`§§§§§§§§§§§§§
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`UNILOC 2017 LLC,
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`Plaintiff,
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`v.
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`VERIZON COMMUNICATIONS INC.,
`CELLCO PARTNERSHIP INC.,
`VERIZON BUSINESS NETWORK
`SERVICES, INC., VERIZON DIGITAL
`MEDIA SERVICES, INC.,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is Ericsson, Inc.’s (“Ericsson”) Motion to Intervene as a Defendant (the
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`“Motion”). (Dkt. No. 17.) Having considered the Motion, briefing, and relevant authorities, the
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`Court is of the opinion that the Motion should be and hereby is GRANTED for the reasons set
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`forth herein.
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`I.
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`BACKGROUND
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`On November 17, 2018, Plaintiff Uniloc 2017 LLC (“Uniloc”) sued Defendants Verizon
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`Communications, Inc., Cellco Partnership Inc. d/b/a Verizon Wireless, Verizon Business Network
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`Services, Inc., and Verizon Digital Media Services, Inc. (collectively “Verizon”) for patent
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`infringement. (Dkt. No. 1.) Verizon filed its Answer on January 18, 2019, (Dkt. No. 12), and the
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`Court held a scheduling conference on March 18, 2019. (Dkt. No. 16.)
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`According to the complaint, Uniloc accuses Verizon’s “network, base stations, and
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`network controllers (collectively, the ‘Accused Infringing Devices’) that provide shared network
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`access to LTE-LAA and Wi-Fi capable devices over at least one common frequency band” of
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`1
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`EXHIBIT 1013 / Page 1 of 12
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`Case 2:18-cv-00513-JRG Document 35 Filed 04/23/19 Page 2 of 12 PageID #: 393
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`infringing at least one claim of U.S. Patent No. 7,017,676 (the “’676 patent”). (Dkt. No. 1 ¶ 97.)
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`Ericsson filed a motion to intervene as a defendant on March 8, 2019, on the basis that it “sells
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`base stations to Verizon that implement the accused LTE-LAA feature.” (Dkt. No. 17 at 1.)
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`Ericsson moves to intervene as a matter of right, Fed. R. Civ. P. 24(a), or alternatively, requests
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`permission to intervene pursuant to the Court’s discretion. Fed. R. Civ. P. 24(b). Verizon does
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`not oppose intervention, but Uniloc does. (Dkt. No. 17 at 3; Dkt. No. 19.)
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`II. LEGAL STANDARD
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`A. Mandatory Intervention
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`Federal Rule of Civil Procedure 24(a)(2) provides that “[o]n timely motion, the court must
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`permit anyone to intervene who . . . claims an interest relating to the property or transaction that is
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`the subject of the action, and is so situated that disposing of the action may as a practical matter
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`impair or impede the movant’s ability to protect its interest, unless existing parties adequately
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`represent that interest.” Thus, a prospective intervenor is entitled to intervention if each of the
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`following elements is satisfied:
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`(1) the application for intervention must be timely; (2) the applicant must have an interest
`relating to the property or transaction which is the subject of the action; (3) the applicant
`must be so situated that the disposition of the action may, as a practical matter, impair or
`impede his ability to protect that interest; and (4) the applicant’s interest must be
`inadequately represented by the existing parties to the suit.
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`Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2017) (citing New Orleans Pub. Serv., Inc. v.
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`United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir. 1984) (en banc)). “Failure to satisfy one
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`requirement precludes intervention of right.” Haspel & Davis Milling & Planting Co. v. Bd. Of
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`Levee Comm’rs of the Orleans Levee Dist., 493 F.3d 570, 578 (5th Cir. 2007). However, “[t]he
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`rule ‘is to be liberally construed,’ with ‘doubts resolved in favor of the proposed intervenor.’”
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`Entergy Gulf States Louisiana, L.L.C. v. U.S. E.P.A., 817 F.3d 198, 203 (5th Cir. 2016) (quoting
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`2
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`EXHIBIT 1013 / Page 2 of 12
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`Case 2:18-cv-00513-JRG Document 35 Filed 04/23/19 Page 3 of 12 PageID #: 394
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`In re Lease Oil Antitrust Lit., 570 F.3d 244, 248 (5th Cir. 2009)). Intervention in patent cases is
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`reviewed under regional circuit law. As such, Fifth Circuit law controls. Stauffer v. Brooks
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`Brothers, Inc., 619 F.3d 1321, 1328 (Fed. Cir. 2010) (“We review the district court’s denial of
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`intervention under Rule 24 under regional circuit law. . . “).
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`B. Permissive Intervention
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`Even if intervention is not mandated as a matter of right, a court may nonetheless permit
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`intervention if the party “[o]n timely motion . . . has a claim or defense that shares with the main
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`action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). “In exercising its
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`discretion, the court must consider whether the intervention will unduly delay or prejudice the
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`adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). A court has full discretion
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`to deny permissive intervention even where there is a common question of law or fact. New
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`Orleans Pub. Serv., Inc., 732 F.3d at 471.
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`III. DISCUSSION
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`A. Mandatory Intervention
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`Ericsson argues that it meets each of the four requirements to intervene as a matter of right.
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`(Dkt. No. 17 at 5–11.) The Court addresses each requirement in turn.
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`i. Timeliness
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`A party may intervene as a matter of right if the motion is timely. Fed. R. Civ. P. 24(a).
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`When evaluating timeliness, courts consider four factors: (1) “[t]he length of time during which
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`the would-be intervenor actually knew or reasonably should have known of his interest in the case
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`before he petitioned for leave to intervene;” (2) “[t]he extent of the prejudice that the existing
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`parties to the litigation may suffer as a result of the would-be intervenor’s failure to apply for
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`intervention as soon as he actually knew or reasonably should have known of his interest in the
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`3
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`EXHIBIT 1013 / Page 3 of 12
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`case;” (3) “[t]he extent of the prejudice that the would-be intervenor may suffer if his petition for
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`leave to intervene is denied;” and (4) “[t]he existence of unusual circumstances militating either
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`for or against a determination that the application is timely.” Edwards v. City of Houston, 78 F.3d
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`983, 1000 (5th Cir. 1996) (citing Stallworth v. Monsanto, Co., 558 F.2d 257, 264 (5th Cir. 1977)).
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`“[T]hese factors merely comprise a framework for the analysis of this threshold inquiry.” Id.
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`Timeliness is assessed from the totality of the circumstances, in which no one factor is dispositive
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`or exhaustive. Id.
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`Ericsson argues that its Motion is timely because (1) it seeks intervention in the early stages
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`of the case: after Verizon answered Uniloc’s complaint and before the scheduling conference or
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`start of discovery; (2) intervention will streamline discovery because Ericsson designs and sells
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`the accused products to Verizon; (3) denying intervention will prejudice Ericsson, as it possesses
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`the most knowledge to defend its products against Uniloc’s infringement claims; and (4) there are
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`no unusual circumstances militating against such a finding. (Dkt. No. 17 at 5–7.)
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`Given that Ericsson filed its Motion before the start of discovery, intervention would not
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`materially prejudice any of the existing parties. See Edwards, 78 F.3d at 1001 (“[M]ost of our
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`case law rejecting petitions for intervention as untimely concern motions filed after judgment was
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`entered in the litigation.”); Team Worldwide Corp. v. Wal-Mart Stores, Inc., No. 2:17-cv-00235-
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`JRG, 2017 WL 6059303, at *4 (E.D. Tex. Dec. 7, 2017) (finding motion filed after the scheduling
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`conference, but before claim construction and trial as timely because intervenors moved as soon
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`as possible after learning of their interest in the case). Moreover, Uniloc does not dispute that
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`Ericsson’s Motion is timely, (Dkt. No. 19 at 6), and the Court is not aware of any unusual
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`circumstances that would suggest otherwise. Accordingly, the Court finds that the timeliness
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`requirements of Rule 24 have been met.
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`4
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`EXHIBIT 1013 / Page 4 of 12
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`Case 2:18-cv-00513-JRG Document 35 Filed 04/23/19 Page 5 of 12 PageID #: 396
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`ii. Interest in the Case
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`Mandatory intervention also requires the intervenor to have “an interest relating to the
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`property or transaction that is the subject of the action.” Fed. R. Civ. P. 24(a)(2). The interest
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`must be “direct, substantial, [and] legally protectable,” Texas, 805 F.3d at 657, and “go[] beyond
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`a generalized preference that the case come out a certain way.” Sierra Club v. Espy, 18 F.3d 1202,
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`1207 (5th Cir. 1994).
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`Ericsson argues that it has a significant interest in this lawsuit because it is “the designer
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`and manufacturer of the Accused Ericsson Base Stations” and Uniloc’s allegations against its
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`products “could negatively affect future sales.” (Dkt. No. 17 at 7.) In addition, Uniloc has brought
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`a similar lawsuit against AT&T, alleging that Ericsson’s base stations infringe the same patent.
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`See Uniloc 2017 LLC v. AT&T Services, Inc., et al., No. 2:18-cv-00514-JRG (E.D. Tex. Nov. 29,
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`2018). Ericsson has sought intervention in both cases to reduce the likelihood of inconsistent
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`judgments against its products. (Dkt. No. 23 at 4.) While Uniloc has not provided its infringement
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`contentions to Ericsson, Ericsson claims that it has no reason to believe that the two suits would
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`accuse different products and Uniloc has not admitted as much. (Id.) Finally, Ericsson is obligated
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`to indemnify Verizon for any damages resulting from a finding that Ericsson’s base stations
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`infringe the ’676 patent. (Id. at 3; Dkt. No. 23–2.)
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`Uniloc argues that Ericsson is not entitled to intervention because it only provides some of
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`the base stations in Verizon’s network and those stations comprise only part of the network accused
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`of infringement. (Dkt. No. 19 at 3–4.) Uniloc also points out that Ericsson represents that it “likely
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`possesses documents related to the design and function of the Accused Ericsson Base Stations,”
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`which contradicts Ericsson’s assertion that it has an interest as the manufacturer of the accused
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`base stations. (Id. at 54 (emphasis in original); see also Dkt. No. 28 at 1.)
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`5
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`EXHIBIT 1013 / Page 5 of 12
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`Case 2:18-cv-00513-JRG Document 35 Filed 04/23/19 Page 6 of 12 PageID #: 397
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`The Court finds that Ericsson’s interests are substantial and go beyond a generalized
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`preference for a particular case outcome. Ericsson’s base stations that implement the accused
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`LTE-LAA feature will be central to the litigation. See, e.g., Team Worldwide, 2017WL 6059303,
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`at *4 (finding that manufacturers of accused product have a substantial interest in patent case
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`against their customers); U.S. Ethernet Innovations, LLC v. Acer, Inc., No. 6:09-cv-448, 2010 WL
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`11488729, at *1 (E.D. Tex. May 10, 2010) (finding Intel had interest in litigation in part because
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`it was “the manufacturer of a networking component implicated in USEI’s infringement
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`allegations”); Honeywell Int'l Inc. v. Audiovox Commc'ns Corp., No. 04-1337, 2005 WL 2465898,
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`at *4 (D. Del. May 18, 2005) (granting intervenor motion because “it puts a willing manufacturer
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`defendant in the forefront of litigation aimed squarely at its product.”). The complaint is replete
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`with references to LAA-LTE base stations that allegedly infringe the ’676 patent, (Dkt. No. 1 ¶¶
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`99–103), and Uniloc concedes that Ericsson supplies some of those accused base stations, (Dkt.
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`No. 19 at 5 (“Rather, Ericsson provides the base stations in Verizon’s infringing network.”).).
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`Uniloc argues that intervention is inappropriate because Ericsson’s base stations account
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`for only a part of the allegedly infringing network. However, Rule 24 requires that an intervenor
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`have “an interest” in the property or transaction that is the subject of the action. The fact that
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`Ericsson does not supply all of the accused products does not mean it fails to have an interest
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`within the context of Rule 24. Uniloc’s infringement allegations put Ericsson’s customer base and
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`reputation at risk—a risk that is only magnified by its indemnity obligation to Verizon. Acer, 2010
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`WL 11488729, at *2 (“Courts have held that beyond the injury that might arise from having to
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`indemnify customers, a manufacturer such as Intel faces the loss of its customer base and
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`reputation as a result of patent infringement allegations.”); see also id. (finding that “customer
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`relationships with Defendants in this action suggest that Intel has a financial interest in the outcome
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`6
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`EXHIBIT 1013 / Page 6 of 12
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`of this litigation and that interest is borne out by agreements to indemnify losses sustained by its
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`customers”); Kadlec Med. Ctr. v. Lakeview Anesthesia Associates, No. 04-007, 2004 WL 2035005,
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`at *2 (E.D. La. Sept. 10, 2004) (finding interest requirement met where named defendant “will
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`seek indemnification against [the intervenor]” and “interest in having its obligations under the
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`[indemnification agreement were established]”). Accordingly, the Court finds that Ericsson has a
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`direct interest in this lawsuit in satisfaction of Rule 24(a)(2).
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`iii. The Impairment Requirement
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`Intervention as of right will not be granted unless “disposing of the action may as a practical
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`matter impair or impede the movant’s ability to protect its interest.” Fed. R. Civ. P. 24(a)(2).
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`Ericsson argues that “[w]ithout intervention, Ericsson cannot safeguard prospective sales of the
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`Accused Ericsson Base Stations or avoid the possibility of future, inconsistent judgments.” (Dkt.
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`No. 17 at 9.) In particular, intervention would allow Ericsson to “definitively litigate the
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`allegations against [its products]” and assert collateral estoppel in other cases that represent
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`essentially the same dispute. (Id. at 10.) Uniloc does not specifically address this element, but
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`instead argues that Ericsson makes only “attorney argument[s]” that are “not rooted in any
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`declaration or other evidence [showing] that [it] has something beyond a preference [for a finding
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`of non-infringement].” (Dkt. No. 19 at 4.)
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`Having considered the totality of the circumstances, the Court finds that disposition of this
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`action may, as a practical matter, impair or impede Ericsson’s ability to protect its interests. As
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`the manufacturer of some of the accused products, an adverse ruling could certainly “impact[] [its]
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`relationships with other retail customers” and trigger any indemnity obligations similar to the
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`obligation that it owes to Verizon. Team Worldwide, 2017 WL 6059303, at *5; see also Indus.
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`Tech. Research Inst. v. LG Elecs., Inc., No. 3:13-cv2016, 2014 WL 5325709, at *11 (S.D. Cal.
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`EXHIBIT 1013 / Page 7 of 12
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`Case 2:18-cv-00513-JRG Document 35 Filed 04/23/19 Page 8 of 12 PageID #: 399
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`Oct. 17, 2014) (“As there is no dispute that LG Display may be unable to sell liquid crystal displays
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`to U.S. customers if Plaintiff were to succeed in this litigation, the Court finds that disposition of
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`this action may adversely impair LG Display's significantly protectable interest.”).
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`iv. Inadequacy of Representation
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`Finally, to be entitled to mandatory intervention, a prospective intervenor must show that
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`the existing parties cannot adequately represent its interests. Fed. R. Civ. P. 24(a)(2); Texas, 805
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`F.3d at 661. This burden is “minimal” and “is satisfied if the applicant shows that the
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`representation of his interest ‘may be’ inadequate.” Texas, 805 F.3d at 661 (internal citation
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`omitted and emphasis added). “However, the burden ‘cannot be treated as so minimal as to write
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`the requirement completely out of the rule.’” Entergy Gulf States Louisiana, 817 F.3d at 203
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`(quoting Haspel, 493 F.3d at 578). A party “must produce something more than speculation as to
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`the purported inadequacy.” League of United Latin Am. Citizens, Council No. 4434 v. Clements,
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`884 F.2d 185, 189 (5th Cir. 1989) (quoting Moosehead Sanitary Dist. v. S.G. Phillips Corp., 610
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`F.2d 49, 54 (1st Cir. 1979)).
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`If the intervenor and an existing party share the same ultimate objective, a presumption
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`arises that the intervenor’s interests are adequately represented. Id. The intervenor can rebut this
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`presumption by showing, for example, an “adversity of interest, collusion, or nonfeasance.” Id.;
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`see also Texas, 805 F.3d at 662 n.5 (noting that while “we often have implied that ‘adversity of
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`interest, collusion, or nonfeasance’ are the only three ways to demonstrate inadequacy of
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`representation,” that list was not intended to be exhaustive). “In order to show adversity of interest,
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`an intervenor must demonstrate that its interests diverge from the putative representative’s interests
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`in a manner germane to the case.” Texas, 805 F.3d 653, 662 (5th Cir.2015). These adverse
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`interests “must be shown in the present proceeding and may not be inferred from the possibility
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`8
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`EXHIBIT 1013 / Page 8 of 12
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`Case 2:18-cv-00513-JRG Document 35 Filed 04/23/19 Page 9 of 12 PageID #: 400
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`of adversity in some future proceeding.” Bush v. Viterna, 740 F.2d 350, 356–57 (5th Cir. 1984)
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`(finding no inadequate representation because the “Association makes no showing of adversity of
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`interest in this proceeding,” but instead “asserts that, because the counties and the Commission
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`may end up on opposite sides of the table in some future litigation, we should find adversity of
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`interest”) (emphasis in original).
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`Ericsson argues that Verizon cannot adequately represent its interests because (1) “Ericsson
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`and its employees—not Verizon—possess the most substantial knowledge regarding the Accused
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`Ericsson Base Stations’ design and function,” and (2) since “other suppliers may have also sold
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`Accused Base Stations to Verizon,” “Verizon’s defense . . . may be inadequate to protect
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`Ericsson’s interests to the extent [] Verizon takes defensive positions with regard to other
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`suppliers’ base stations that differ from or harm defensive positions regarding Ericsson’s base
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`stations.” (Dkt. No. 17 at 10–11.)
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`Uniloc disagrees and argues that Verizon can adequately defend its own network and any
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`purported interests that Ericsson may have. (Dkt. No. 19 at 6.) Both Verizon and Ericsson raise
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`the same positions and defenses in their respective answers, (id. at 7), and based on evidence in
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`the complaint, “Verizon is well versed in the functioning of all the relevant infringing equipment.”
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`(Id. at 2 (citing press release from Verizon’s website).) According to Uniloc, Ericsson only offers
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`speculation and attorney argument that Verizon’s interests may diverge from its own, which is
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`insufficient to show inadequate representation. (Id. at 5–6.)
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`Understanding that Ericsson’s burden is “minimal” and given the liberal application of
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`Rule 24, the Court is not persuaded that Verizon is in the best position to defend Ericsson’s
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`interests in this case. Although Ericsson and Verizon may have the same ultimate objective—
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`avoiding or minimizing liability, there is a real possibility that those interests may diverge to the
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`EXHIBIT 1013 / Page 9 of 12
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`Case 2:18-cv-00513-JRG Document 35 Filed 04/23/19 Page 10 of 12 PageID #: 401
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`extent Verizon’s positions and defenses align with the suppliers of other base stations that are also
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`accused of infringing Uniloc’s patent. See, e.g., Team Worldwide, 2017 6059303, at *6 (finding
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`inadequate representation because “[e]ach proposed intervenor provides a product sold by
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`Walmart that directly competes with other products, sold by Walmart, including those of the other
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`proposed intervenors” and thus “Walmart’s interests . . . may diverge from that of each individual
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`proposed intervenor’s interest”). More importantly, while Verizon may have some knowledge
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`relevant to Ericsson’s base stations, the Court agrees that Ericsson likely possesses “superior
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`knowledge of how the accused [base stations] are configured and operate” and is thus better
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`situated to understand and defend its own products. Intellectual Ventures I v. LLC v. AT&T
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`Mobility, LLC, No. 12-cv-193, 2014 WL 4445953, at*2 (D. Del. Sept. 8, 2014) (“[W]hile
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`Defendants maintain similar interests as Intervenors, they are not as well-situated to understand
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`and defend Intervenor’s products.”); see also Bush, 740 F.2d at 357 (noting that courts have found
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`inadequate representation “in which it is clear that the applicant will make a more vigorous
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`presentation of arguments than existing parties”). No more is required to meet this element of
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`Rule 24(a)(2). See Texas, 805 F.3d 661(holding that intervenor “need not show that representation
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`by existing parties will be, for certain, inadequate,” but only that “his interest ‘may be’
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`inadequate”) (internal citations omitted).
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`Since Ericsson has met each of the requirements of Rule 24(a)(2), the Court finds that it
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`should be allowed to intervene.
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`B. Permissive Intervention
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`Ericsson also moved seeking permissive intervention. For completeness and out of an
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`abundance of caution, the Court addresses whether it should permit intervention as a matter of
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`discretion. Rule 24(b) provides that a court may permit intervention if (1) the intervenor has a
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`EXHIBIT 1013 / Page 10 of 12
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`Case 2:18-cv-00513-JRG Document 35 Filed 04/23/19 Page 11 of 12 PageID #: 402
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`claim or defense that shares a common question of law or fact with the main action, and (2)
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`granting intervention will not unduly delay or prejudice the existing parties to the suit. Fed. R.
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`Civ. P. 24(b).
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`The Court finds that both elements for permissive intervention have been met. Uniloc
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`alleges that Verizon’s use of Ericsson’s base stations that implement the LAA-LTE feature infringe
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`certain claims of the ’676 patent. Both Verizon and Ericsson have raised defenses of non-
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`infringement, invalidity, and others in their respective answers, and “[w]ithin these defenses there
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`are numerous common questions of law and fact, such as: (1) whether the claims asserted in the
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`[’676 patent] are valid and enforceable; and (2) whether [Ericsson’s] . . . products and [Verizon’s]
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`[use] of said products, infringe the [’676 patent].” Team Worldwide, 2017 WL 6059303, at *7;
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`Acer, 2010 WL 11488729, at *2 (permitting manufacturer of accused products to intervene
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`because “it appears that [Intel’s product] is central to Dell and Intel’s claims for non-infringement,
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`and Intel products are also likely to be implicated in USEI’s infringement case against Dell and
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`other Intel customers”). Permitting intervention would also not be unduly prejudicial. As noted
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`above, Ericsson moved for intervention in the early stages of this case, and with fact discovery not
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`closing until March 30, 2020, the parties will have ample time to pursue discovery and prepare for
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`both claim construction and trial. (Dkt. No. 29.) Ericsson has also represented that it would not
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`seek transfer if permitted to intervene and so its intervention would not otherwise disrupt the flow
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`of this litigation. See Team Worldwide, 2017 WL 6059303, at *7 (granting permissive intervention
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`where “the proposed intervenors’’ disclosed plans to sever, fragment, stay, or transfer this case”
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`were only speculative).
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`Accordingly, in exercising its discretion, the Court finds that Ericsson should also be
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`allowed to intervene pursuant to Rule 24(b).
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`EXHIBIT 1013 / Page 11 of 12
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`Case 2:18-cv-00513-JRG Document 35 Filed 04/23/19 Page 12 of 12 PageID #: 403
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`IV. CONCLUSION
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`For the reasons set forth above, the Court finds that Ericsson should be permitted to
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`intervene in this case both under Rule 24(a) and pursuant to the Court’s discretion under Rule
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`24(b). The Court hereby GRANTS Ericsson’s Motion to Intervene as a Defendant, (Dkt. No. 17).
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`Ericsson is ORDERED to file its Answer in Intervention within fourteen (14) days of the issuance
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`of this Order.
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`12
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`____________________________________
`RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
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`SIGNED this 19th day of December, 2011.
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`So ORDERED and SIGNED this 22nd day of April, 2019.
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`EXHIBIT 1013 / Page 12 of 12
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