Case 2:18-cv-00514-JRG Document 20 Filed 03/08/19 Page 1 of 19 PageID #: 138
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`UNILOC 2017 LLC
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`vs.
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`AT&T MOBILITY LLC, and
`AT&T SERVICES, INC.,
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`Plaintiff,
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`Defendants.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Case No. 2:18-cv-00514
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`Jury Trial Demanded
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`ERICSSON INC.’S MOTION TO INTERVENE AS A DEFENDANT
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`i
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`Case 2:18-cv-00514-JRG Document 20 Filed 03/08/19 Page 2 of 19 PageID #: 139
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`TABLE OF CONTENTS
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`INTRODUCTION ...............................................................................................................1
`FACTUAL BACKGROUND ..............................................................................................2
`THE NATURE AND STATE OF PROCEEDINGS ......................................................................2
`UNILOC ASSERTS INFRINGEMENT OF ACCUSED PRODUCTS THAT ARE DESIGNED,
`MANUFACTURED, MARKETED AND SOLD BY ERICSSON ...................................................3
`LEGAL STANDARD ..........................................................................................................3
`ARGUMENT .......................................................................................................................5
`ERICSSON HAS A RIGHT TO INTERVENE PURSUANT TO RULE 24(A)(2) .............................5
`Ericsson’s Motion to Intervene is Timely ....................................................................5
`Ericsson Has a Significant Interest in This Lawsuit ....................................................7
`Disposition of this Action May Impair Ericsson’s Ability to Protect Its Interests ......8
`AT&T Cannot Adequately Represent Ericsson’s Interests........................................10
`IN THE ALTERNATIVE, ERICSSON SHOULD BE PERMITTED TO INTERVENE ......................11
`CONCLUSION ..................................................................................................................12
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`I.
`II.
`A.
`B.
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`III.
`IV.
`A.
`1.
`2.
`3.
`4.
`B.
`V.
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`Case 2:18-cv-00514-JRG Document 20 Filed 03/08/19 Page 3 of 19 PageID #: 140
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`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Kahn v. Gen. Motors Corp.,
`889 F.2d 1078 (Fed. Cir. 1989)..................................................................................................7
`
`City of Houston v. Am. Traffic Sols., Inc.,
`668 F.3d 291 (5th Cir. 2012) .....................................................................................................4
`
`Edwards v. City of Houston,
`78 F.3d 983 (5th Cir. 1996) (en banc) .........................................................................4, 5, 6, 11
`
`Hacienda Records, L.P. v. Ramos,
`718 F.App’x 223 (5th Cir. 2018) .............................................................................................10
`
`Heaton v. Monogram Credit Card Bank,
`297 F.3d 416 (5th Cir. 2002) ...................................................................................................11
`
`Honeywell Int’l Inc. v. Audiovox Commc’ns Corp.,
`Case No. 04-1337-KAJ, 2005 WL 2465898 (D. Del. May 18, 2005) .................................7, 10
`
`Indus. Tech. Research Inst. v. LG Elecs., Inc.,
`Case No. 3:13-cv2016-GPC-WVG, 2014 U.S. Dist. LEXIS 148865
`(S.D. Cal. Oct. 15, 2014) ...........................................................................................................9
`
`Intellectual Ventures I LLC v. AT&T Mobility LLC,
`C.A. No. 12-193-LPS et al., 2014 U.S. Dist. LEXIS 125280
`(D. Del. Sept. 8, 2014) .........................................................................................................8, 10
`
`John Doe No. 1 v. Glickman,
`256 F.3d 371 (5th Cir. 2001) .....................................................................................................5
`
`Microsoft Corp. v. Commonwealth Scientific & Indus. Research Organisation,
`No. 6:06-CV-549, 2007 WL 4376104 (E.D. Tex. Dec. 13, 2007) ............................................7
`
`Newby v. Enron Corp.,
`443 F.3d 416 (5th Cir. 2006) ...............................................................................................4, 11
`
`Reid v. General Motors Corp.,
`240 F.R.D. 257 (E.D. Tex. 2006) .............................................................................................12
`
`Select Retrieval, LLC v. ABT Elecs.,
`No. 11 C 03752, 2013 U.S. Dist. LEXIS 174442
`(N.D. Ill. Dec. 13, 2013) ............................................................................................................9
`
`iii
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`Case 2:18-cv-00514-JRG Document 20 Filed 03/08/19 Page 4 of 19 PageID #: 141
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`
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`TABLE OF AUTHORITIES CONT.
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`Sierra Club v. Espy,
`18 F.3d 1202 (5th Cir. 1994) .............................................................................................4, 6, 7
`
`Stauffer v. Brooks Brothers, Inc.,
`619 F.3d 1321 (Fed. Cir. 2010)..................................................................................................4
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`Team Worldwide Corp. v. Wal-Mart Stores, Inc.,
`Civ. Action No. 2:17-cv-00235-JRG, 2017 U.S. Dist. LEXIS 201769
`(E.D. Tex. Dec. 7, 2017) ........................................................................................................8, 9
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`Texas v. United States,
`805 F.3d 653 (5th Cir. 2015) .......................................................................................4, 5, 7, 10
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`TiVo Inc. v. AT&T, Inc.,
`C.A. No. 2:09-CV-259, 2010 U.S. Dist. LEXIS 146363
`(E.D. Tex. Mar. 31, 2010) ..........................................................................................................6
`
`U.S. Ethernet Innovations, LLC v. Acer, Inc.,
`Civil No. 6:09-cv-448-JDL, 2010 U.S. Dist. LEXIS 150649
`(E.D. Tex. May 10, 2010) ....................................................................................................8, 11
`
`Uniloc 2017 LLC et al. v. AT&T, Inc. et al.,
`Case No. 2-18-cv-00379 (E.D. Tex. Aug. 29, 2018) .................................................................2
`
`Uniloc 2017 LLC v. Verizon Commc’ns Inc., et al.,
`Case No. 2-12-cv-00513 (E.D. Tex. Nov. 29, 2018) .................................................................2
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`Other Authorities
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`Fed. R. Civ. P. 24 .............................................................................................................. 1-5, 10-12
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`iv
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`Case 2:18-cv-00514-JRG Document 20 Filed 03/08/19 Page 5 of 19 PageID #: 142
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`Pursuant to Federal Rule of Civil Procedure 24, Ericsson Inc. (“Ericsson”) moves for leave
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`to intervene in the above-titled action.1 Ericsson seeks to intervene because it sells equipment to
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`Defendants AT&T Mobility LLC and AT&T Services, Inc. (together, “AT&T”) that Plaintiff
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`Uniloc 2017 LLC (“Uniloc”) alleges infringe a Uniloc patent. As the designer and manufacturer
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`of accused products, Ericsson has a substantial interest in the litigation and is in the best position
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`to defend against certain of Uniloc’s claims. Ericsson’s Motion is timely, and no existing party
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`will suffer prejudice if Ericsson intervenes. Moreover, Ericsson’s intervention will not result in
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`the case being delayed, and Ericsson will not move to transfer the case if this Motion is granted.
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`I.
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`INTRODUCTION
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`In its complaint, Uniloc accuses AT&T of infringing three patents. Uniloc alleges that one
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`of those three patents is infringed through AT&T’s use of cellular base stations that implement a
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`4G LTE feature called “LTE Licensed Assisted Access” (“LTE-LAA”). Ericsson sells base
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`stations to AT&T that implement the accused LTE-LAA feature.
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`Ericsson moves to intervene as a matter of right. As the designer and manufacturer of
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`accused products, Ericsson is in the best position to defend those products against Uniloc’s
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`infringement allegations. Ericsson has an interest in the litigation because the dispute’s existence
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`alone could negatively affect Ericsson’s ability to sell its base station products to AT&T and other
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`customers.
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`AT&T cannot adequately represent Ericsson’s interests in this litigation because AT&T
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`does not possess the same thorough understanding of Ericsson’s products. In addition, AT&T’s
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`defensive strategies may be divided between Ericsson’s and other suppliers’ products, which could
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`1 Filed with this Motion is Ericsson’s Answer in Intervention as well as a proposed order.
`1
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`Case 2:18-cv-00514-JRG Document 20 Filed 03/08/19 Page 6 of 19 PageID #: 143
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`potentially lead to AT&T defending other suppliers’ products in ways that are contrary to
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`Ericsson’s interests.
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`In the alternative, Ericsson respectfully requests permission to intervene under Rule 24(b).
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`Permissive intervention is appropriate because Ericsson has claims that share questions of law or
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`fact with AT&T. Ericsson’s claims and defenses relate to the invalidity and noninfringement of
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`one of the asserted patents, and therefore share questions of law and fact with Uniloc’s claims and
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`AT&T’s defenses. Finally, because the case is in its earliest stages, Ericsson’s intervention will
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`not result in any case delay. In addition, Ericsson will not seek a transfer of the case to another
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`venue if the Court grants this Motion.
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`II.
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`FACTUAL BACKGROUND
`A.
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`The Nature and State of Proceedings
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`On August 29, 2018, Uniloc2 sued AT&T for allegedly infringing three patents. See Uniloc
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`2017 LLC et al. v. AT&T, Inc. et al., Case No. 2-18-cv-00379 (E.D. Tex. Aug. 29, 2018) (the “First
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`Action”), DE 1. On October 23, 2018, Uniloc filed a voluntary notice to dismiss certain AT&T
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`parties without prejudice.3 On November 17, 2018, Uniloc brought the instant action against
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`AT&T alleging infringement of the same three patents as in the First Action. DE 1 (“Complaint”)
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`¶ 1.4 The case remains in its early stages: the Court has not held a scheduling conference and
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`discovery has not begun.5
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`2 Uniloc Licensing USA LLC was also a plaintiff in the First Action.
`3 On November 19, 2018, the Court dismissed the First Action without prejudice. First Action, DE 17.
`4 On the same day, Uniloc brought other actions including Uniloc 2017 LLC v. Verizon Commc’ns Inc., et al., Case
`No. 2-12-cv-00513 (E.D. Tex. Nov. 29, 2018) (hereinafter Uniloc v. Verizon). Ericsson is filing a motion to
`intervene in the Uniloc v. Verizon case on the same grounds as this Motion.
`5 A scheduling conference has been set for March 18, 2019. DE 15.
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`2
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`B.
`Uniloc Asserts Infringement of Accused Products That Are Designed,
`Manufactured, Marketed and Sold by Ericsson
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`The patents-in-suit concern unrelated subject matter: the claims of U.S. Patent No.
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`6,901,272 are directed to wireless remote control of devices; the claims of U.S. Patent No.
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`6,519,005 are directed to digital video encoding; and the claims of U.S. Patent No. 7,016,676 (the
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`“’676 patent”) are directed to using a controller to manage shared access to a radio channel between
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`two different communications protocols. Complaint, Exs. A-C. Based upon Uniloc’s complaint,
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`only the allegations related to the ’676 patent are relevant to this Motion or Ericsson’s interests.
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`Uniloc appears to accuse any AT&T base station that uses the LTE-LAA feature (the
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`“Accused Base Stations”) of infringing the ’676 patent.6 See Complaint ¶ 58 (identifying AT&T’s
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`“network, base stations, and network controllers . . . that provide shared network access to LTE-
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`LAA and Wi-Fi capable devices over at least one common frequency band”). Ericsson designs,
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`manufactures, markets and sells at least some base stations that use the LTE-LAA feature (the
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`“Accused Ericsson Base Stations”). Declaration of Jacob W. S. Schneider filed herewith
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`(“Schneider Decl.”) ¶ 2. Ericsson supplied AT&T with the Accused Ericsson Base Stations.
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`Schneider Decl. ¶ 3.
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`AT&T does not oppose Ericsson’s Motion. Schneider Decl. ¶ 4. Uniloc has indicted that
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`it wishes to review Ericsson’s filed motion before deciding whether there is merit to opposing.
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`Schneider Decl. ¶ 5.
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`III. LEGAL STANDARD
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`Federal Rule of Civil Procedure 24 permits a party to intervene either under Rule 24(a),
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`when they have a right to do so, or under Rule 24(b), by permission of the court. Fed. R. Civ. P.
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`6 Ericsson believes that the scope of Uniloc’s infringement allegations includes LTE-LAA-enabled base stations that
`AT&T may purchase from other suppliers, although Ericsson lacks information about those other suppliers’ LTE-
`LAA-enabled base stations.
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`3
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`24. A movant must be permitted to intervene when the four requirements of Fed. R. Civ. P.
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`24(a)(2) are met:
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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; (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. 2015) (quoting New Orleans Pub. Serv., Inc.
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`v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir. 1984) (en banc)). Because the issue of
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`intervention is not unique to patent law, Fifth Circuit law controls. See Stauffer v. Brooks Brothers,
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`Inc., 619 F.3d 1321, 1328 (Fed. Cir. 2010) (denial of intervention reviewed under regional circuit’s
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`law). Rule 24 is to be “liberally construed,” under Fifth Circuit law. Texas, 805 F.3d at 656-57
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`(quoting Brumfield v. Dodd, 749 F.3d 339, 341 (5th Cir. 2014)). See also Sierra Club v. Espy, 18
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`F.3d 1202, 1205 (5th Cir. 1994)) (“Federal courts should allow intervention where no one would
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`be hurt and the greater justice could be attained.” (quoting McDonald v. E.J. Lavino Co., 430 F.2d
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`1065, 1074 (5th Cir. 1970)) (internal quotation marks omitted)); City of Houston v. Am. Traffic
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`Sols., Inc., 668 F.3d 291, 293 (5th Cir. 2012) (noting that intervention as of right “must be
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`measured by a practical rather than technical yardstick.”) (quoting Edwards v. City of Houston, 78
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`F.3d 983, 999 (5th Cir. 1996) (en banc)) (internal quotation marks omitted).
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`Under Rule 24(b)(1)(B), the Court may permit a party to intervene if it has a claim or
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`defense that shares a common question of law or fact with the main action. Fed. R. Civ. P.
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`24(b)(1)(B). “The decision to permit intervention under Rule 24(b)(2) requires a threshold
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`determination that the applicant’s claim or defense and the main action have a question of law or
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`fact in common.” Newby v. Enron Corp., 443 F.3d 416, 421 (5th Cir. 2006) (quoting Howse v.
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`S/V “Canada Goose I”, 641 F. 2d 317, 322 (5th Cir. 1981)) (internal quotation marks omitted).
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`4
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`IV. ARGUMENT
`A.
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`Ericsson Has a Right to Intervene Pursuant to Rule 24(a)(2)
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`Ericsson meets the four requirements to intervene as of right under Rule 24(a). See Texas,
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`805 F.3d at 657. Ericsson acted promptly in bringing this motion, and neither existing party will
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`suffer prejudice if Ericsson intervenes. As a manufacturer of products accused in the litigation,
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`Ericsson has a unique interest in defending against infringement claims that, by their mere
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`existence, could jeopardize its ability to provide those products to AT&T and other customers. As
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`the designer of products accused in the litigation, Ericsson is the party most knowledgeable
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`regarding how those products function, which will be a central issue as the case progresses. As a
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`result, Ericsson has a right to intervene and defend its interests in this case.
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`1.
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`Ericsson’s Motion to Intervene is Timely
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`Ericsson’s motion is timely because it seeks to intervene at the very beginning of the
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`litigation and no party to the suit will suffer prejudice should Ericsson intervene. Timeliness is
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`determined from all circumstances in a case, including the time elapsed between notice of the
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`intervenor’s interest in the case and the filing of the motion to intervene, the extent of prejudice to
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`existing parties as a result of the motion, the extent of prejudice to the moving party if leave to
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`intervene is denied and the existence of unusual circumstances militating either for or against a
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`determination that the motion is timely. Edwards, 78 F.3d at 1000 (citing Stallworth v. Monsanto
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`Co., 558 F.2d 257 (5th Cir. 1977). “A motion to intervene may still be timely even if all the
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`factors do not weigh in favor of a finding of timeliness.” John Doe No. 1 v. Glickman, 256 F.3d
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`371, 375 (5th Cir. 2001).
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`First, Ericsson brings this Motion while the case is in its early stages: AT&T answered
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`Uniloc’s complaint on January 18, 2019, Uniloc filed an answer to AT&T’s counterclaims on
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`February 1, 2019, the Court has not held a scheduling conference and discovery has not begun.
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`5
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`Case 2:18-cv-00514-JRG Document 20 Filed 03/08/19 Page 10 of 19 PageID #: 147
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`See DE 10; TiVo Inc. v. AT&T, Inc., C.A. No. 2:09-CV-259, 2010 U.S. Dist. LEXIS 146363, at
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`*18 (E.D. Tex. Mar. 31, 2010) (a motion to intervene was timely where nearly five months elapsed
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`between filing of complaint and motion to intervene); Edwards, 78 F.3d at 1001 (“[M]ost of [the
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`Fifth Circuit’s] case law rejecting petitions for intervention as untimely concern motions filed after
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`judgment was entered in the litigation”). As a result, Ericsson’s intervention will not delay the
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`case.
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`Second, in part because Ericsson is seeking to intervene so early in the litigation, no party
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`to the lawsuit will suffer prejudice if Ericsson intervenes. See Sierra Club, 18 F.3d at 1205 (“The
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`requirement of timeliness is not a tool of retribution to punish the tardy would-be intervenor, but
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`rather a guard against prejudicing the original parties by the failure to apply sooner.”). AT&T
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`does not oppose Ericsson’s Motion, and Uniloc wishes to review the filed motion before deciding
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`whether to oppose. Schneider Decl. ¶¶ 4-5. Far from imposing any prejudice, Ericsson’s presence
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`in the lawsuit will streamline discovery regarding the Accused Ericsson Base Stations because
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`Ericsson designed and manufactured those products.
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`Third, Ericsson will suffer prejudice if not allowed to intervene and defend the Accused
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`Ericsson Base Stations against Uniloc’s claims. As discussed in Section IV.A.4 below, Ericsson
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`is in the best position to defend its products because Ericsson designed and manufactured those
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`products. Ericsson likely possesses documentation and information relating to how the Accused
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`Ericsson Base Stations function, which will be a central issue in the litigation. In addition, there
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`is the possibility that AT&T’s defensive strategies would differ from Ericsson’s. Absent
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`intervention, Ericsson would not have the opportunity to provide the best defense of its products.
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`Finally, Ericsson is unaware of any unusual circumstances militating against a
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`determination that the motion is timely. As discussed above, the circumstances of this case militate
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`6
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`Case 2:18-cv-00514-JRG Document 20 Filed 03/08/19 Page 11 of 19 PageID #: 148
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`in favor of a finding of timeliness. Indeed, Ericsson’s intervention will not negatively affect the
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`case’s progress.
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`2.
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`Ericsson Has a Significant Interest in This Lawsuit
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`Ericsson has a “direct, substantial, legally protectable interest in the proceedings.” Texas,
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`805 F.3d at 657 (quoting Edwards, 78 F.3d at 1004) (internal quotation marks omitted); see also
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`Sierra Club, 18 F.3d at 1207 (“[T]he ‘interest’ test is primarily a practical guide to disposing of
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`lawsuits by involving as many apparently concerned persons as is compatible with efficiency and
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`due process.” (quoting Ceres Gulf v. Cooper, 957 F.2d 1199, 1203 (5th Cir. 1992) (internal
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`quotation marks omitted)). Ericsson’s interest stems from its position as the designer and
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`manufacturer of the Accused Ericsson Base Stations as well as the risk that the existence of
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`Uniloc’s allegations could negatively affect future sales of the Accused Ericsson Base Stations.
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`First, Courts have long recognized that manufacturers of accused products have a
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`substantial interest in patent litigations against their customers. See Honeywell Int’l Inc. v.
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`Audiovox Commc’ns Corp., Case No. 04-1337-KAJ, 2005 WL 2465898, at *4 (D. Del. May 18,
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`2005) (“[Intervenor] has a sufficient interest in the litigation; indeed, as a manufacturer of the
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`product component which is at the heart of these cases, it has a compelling interest.”). C .f. Kahn
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`v. Gen. Motors Corp., 889 F.2d 1078, 1081 (Fed. Cir. 1989) (explaining the “customer suit
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`exception” exists because a manufacturer has a “presumed greater interest in defending its actions
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`against charges of patent infringement”); Microsoft Corp. v. Commonwealth Scientific & Indus.
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`Research Organisation, No. 6:06-CV-549, 2007 WL 4376104, at *2 (E.D. Tex. Dec. 13, 2007),
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`aff’d sub nom Commonwealth Scientific & Indus. Research Organisation v. Toshiba Am. Info.
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`Sys., Inc., 297 F. App’x 970 (Fed. Cir. 2008) (“Underlying the customer-suit doctrine is the
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`preference that infringement determinations should be made in suits involving the true defendant
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`in the plaintiff’s suit, i.e., the party that controls the product’s design, rather than in suits involving
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`7
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`secondary parties, i.e. customers. The guiding principles in the customer suit exception cases
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`are efficiency and judicial economy.”) (citation omitted). Uniloc has brought infringement claims
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`against AT&T’s use of products that Ericsson designed and manufactured. As a result, Ericsson
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`has a strong interest in defending those claims.
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`Second, Ericsson has an interest in protecting ongoing sales of the Accused Ericsson Base
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`Stations. See, e.g., Team Worldwide Corp. v. Wal-Mart Stores, Inc., Civ. Action No. 2:17-cv-
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`00235-JRG, 2017 U.S. Dist. LEXIS 201769, at *13 (E.D. Tex. Dec. 7, 2017) (finding an
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`intervening manufacturer had an interest in “the ongoing sale and distribution of their products
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`[which] is put at risk by [the Plaintiff’s] allegations of infringement.”); Intellectual Ventures I LLC
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`v. AT&T Mobility LLC, C.A. No. 12-193-LPS et al., 2014 U.S. Dist. LEXIS 125280, at *13 (D.
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`Del. Sept. 8, 2014) (finding that an intervening manufacturer had an “interest in products which
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`Intervenors manufacture for Defendants, an interest put at risk by the litigation as Plaintiffs accuse
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`these products of infringement.”). The existence of the litigation could negatively affect Ericsson’s
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`sales of the Accused Ericsson Base Stations not only to AT&T, but also to other customers. See
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`U.S. Ethernet Innovations, LLC v. Acer, Inc., Civil No. 6:09-cv-448-JDL, 2010 U.S. Dist. LEXIS
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`150649, at *13 (E.D. Tex. May 10, 2010) (“a manufacturer such as [the Intervenor] faces the loss
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`of its customer base and reputation as a result of patent infringement allegations.”). Accordingly,
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`Ericsson’s interest in its ability to sell the Accused Ericsson Base Stations warrants intervention
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`as of right.
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`3.
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`Disposition of this Action May Impair Ericsson’s Ability to Protect Its
`Interests
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`If Ericsson cannot intervene in this action, disposition of this action may impair Ericsson’s
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`ability to protect and defend its interests. Without intervention, Ericsson cannot safeguard
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`8
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`Case 2:18-cv-00514-JRG Document 20 Filed 03/08/19 Page 13 of 19 PageID #: 150
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`prospective sales of the Accused Ericsson Base Stations or avoid the possibility of future,
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`inconsistent judgments.
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`First, absent intervention Ericsson will not be able to protect its interest in prospective sales
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`of the Accused Ericsson Base Stations. See Indus. Tech. Research Inst. v. LG Elecs., Inc., Case
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`No. 3:13-cv2016-GPC-WVG, 2014 U.S. Dist. LEXIS 148865, at *11 (S.D. Cal. Oct. 15, 2014)
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`(finding that “[the intervening manufacturer] may be unable to sell [the accused product] to U.S.
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`customers if Plaintiff were to succeed in this litigation,” which may “adversely impair
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`[intervenor’s] significantly protectable interest”). Although an adverse judgment would not have
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`preclusive effect, it could undermine the confidence that other customers have in the Accused
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`Ericsson Base Stations and more generally in Ericsson products. Team Worldwide, 2017 U.S.
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`Dist. LEXIS 201769, at *5 (“[A]dverse rulings could impact each proposed intervenor’s
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`relationships with other retail customers.”).
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`Second, Ericsson seeks to intervene to protect itself from the threat of inconsistent
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`judgments in future lawsuits against other customers. See Select Retrieval, LLC v. ABT Elecs.,
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`No. 11 C 03752, 2013 U.S. Dist. LEXIS 174442, at *8 (N.D. Ill. Dec. 13, 2013) (finding
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`intervention of right supported by fact that intervenor’s other customers were not subject to the
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`preclusive effects of the lawsuit, and “[Intervenor] (through its customers) would be subject to
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`potentially inconsistent judgments regarding whether its technology infringes the patent,” and
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`intervenor’s “ability to defend its technology could be compromised”). Should Uniloc bring
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`similar claims against Ericsson’s other customers in the future, any findings in the instant action
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`would not have preclusive effect. Id. Intervention provides Ericsson with the opportunity to
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`definitively litigate the allegations against the Accused Ericsson Base Stations and to use collateral
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`estoppel to defend its interests from the “repetitious litigation of what is essentially the same
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`dispute.” Hacienda Records, L.P. v. Ramos, 718 F.App’x 223, 228 (5th Cir. 2018) (quoting
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`Restatement (Second) of Judgments § 27, cmt. C. (1982)) (internal quotation marks omitted).7 As
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`a result, the disposition of this action may impair Ericsson’s ability to protect its interests if it
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`cannot intervene.
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`4.
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`AT&T Cannot Adequately Represent Ericsson’s Interests
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`AT&T cannot adequately represent Ericsson’s interests because AT&T is not as “well-
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`situated to understand and defend [Ericsson’s] products” as is Ericsson. Intellectual Ventures,
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`2014 U.S. Dist. LEXIS 125280, at *13-14. In the Fifth Circuit, in order to satisfy the “inadequate
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`representation” requirement of Rule 24(a)(2), Ericsson must merely demonstrate that its interests
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`“may be” inadequately represented by the existing parties. Texas, 805 F.3d at 661. Although
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`Ericsson bears the burden to establish inadequate representation, that burden is minimal. Id.
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`First, Ericsson and its employees – not AT&T – possess the most substantial knowledge
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`regarding the Accused Ericsson Base Stations’ design and function. Honeywell, 2005 WL
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`2465898 at *4 (Intervenor “is uniquely situated to understand and defend its own product.”).
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`Ericsson also likely possesses documents related to the design and function of the Accused
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`Ericsson Base Stations. As a result, Ericsson is better suited to defend the Accused Ericsson
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`Base Stations than is AT&T.
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`Second, although AT&T will defend against Uniloc’s allegations, Ericsson’s strategy to
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`protect the Accused Ericsson Base Stations from a finding of infringement could diverge from
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`AT&T’s. Other suppliers may have also sold Accused Base Stations to AT&T. AT&T’s defense
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`of the infringement claims may be inadequate to protect Ericsson’s interests to the extent that
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`7 The availability of collateral estoppel also advances the Court’s interest in “conserving judicial resources,
`maintaining consistency, and avoiding oppression or harassment of the adverse party.” Hacienda Records, 718
`F.App’x 223 at 228 (quoting Restatement (Second) of Judgments § 27, cmt. C. (1982)) (internal quotation marks
`omitted).
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`Case 2:18-cv-00514-JRG Document 20 Filed 03/08/19 Page 15 of 19 PageID #: 152
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`AT&T takes defensive positions with regard to other suppliers’ base stations that differ from or
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`harm defensive positions regarding Ericsson’s base stations. See Heaton v. Monogram Credit
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`Card Bank, 297 F.3d 416, 425 (5th Cir. 2002) (“That the [intervenor]’s interests and [the
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`Defendant]’s may diverge in the future, even though, at this moment, they appear to share common
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`ground, is enough to meet the [intervenor]’s burden on this issue.”). As a result, Ericsson is best
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`suited, and most motivated, to defend its interests from Uniloc’s claims.
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`Because Ericsson satisfies the Fifth Circuit’s four-part test for interventions of right under
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`Rule 24(a), the Court should grant Ericsson’s Motion as a matter of right. See Edwards, 78 F.3d
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`at 1000.
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`B.
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`In the Alternative, Ericsson Should Be Permitted to Intervene
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`As discussed above, because Ericsson has met all four requirements of Fed. R. Civ. P.
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`24(a), Ericsson may intervene as a matter of right. In the alternative, however, Ericsson
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`respectfully requests the Court’s permission to intervene under Federal Rule 24(b). Rule 24(b)
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`permits intervention by a party who “has a claim or defense that shares with the main action a
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`common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Permissive intervention presents a
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`lower bar than intervention as a matter of right, and does not require that the intervenor even “have
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`a direct personal or pecuniary interest in the subject of the litigation.” Newby v. Enron Corp., 443
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`F.3d 416, 423 (5th Cir. 2006) (quoting Sec. and Exch. Comm’n v. U.S. Realty & Imp. Co., 310
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`U.S. 434, 459 (1940)).
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`Permissive intervention would be appropriate in this case because Uniloc’s infringement
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`allegations are in part directed to the Accused Ericsson Base Stations. As a result, the Court could
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`potentially determine common issues of preclusion, claim construction, non-infringement,
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`invalidity and other matters that bear directly on Ericsson’s interests as well as AT&T’s. See, e.g.,
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`U.S. Ethernet, 2010 U.S. Dist. LEXIS 150649, at *12 (granting permissive intervention where
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`intervenor shared common questions of law and fact and similar defenses as named defendant);
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`Reid v. General Motors Corp., 240 F.R.D. 257, 260 (E.D. Tex. 2006) (granting intervention where
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`intervenor’s claims of non-infringement, invalidity and unenforceability shared common questions
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`of law and fact as those of its customers who were the named defendants). As noted above in
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`Section IV.A.1, at this early stage in the litigation, there will be no prejudice to either Uniloc or
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`AT&T if Ericsson is permitted to intervene. Finally, Ericsson’s intervention will not result in any
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`delay in the case.
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`V.
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`CONCLUSION
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`For the foregoing reasons, Ericsson respectfully requests that the Court permit Ericsson to
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`intervene as a matter of right pursuant to Fed. R. Civ. P. 24(a)(2), or in the alternative, permissively
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`pursuant to Fed. R. Civ. P. 24(b)(1)(B).
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`Case 2:18-cv-00514-JRG Document 20 Filed 03/08/19 Page 17 of 19 PageID #: 154
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`Respectfully Submitted,
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`Jacob K. Baron
`/s/
`Joshua C. Krumholz, Esq.
`(LEAD COUNSEL)
`(Pro hac vice application
`forthcoming)
`MA Bar No.: 552573
`Email: joshua.krumholz@hklaw.com
`Jacob K. Baron, Esq.
`MA Bar No.: 652568
`Email: jacob.baron@hklaw.com
`Jacob W. S. Schneider, Esq.
`(Pro hac vice application
`forthcoming)
`MA Bar No.: 675315
`Email: jacob.schneider@hklaw.com
`Rabi Fiotto, Esq.
`(Pro hac vice application
`forthcoming)
`MA Bar No.: 699571
`Email: rabi.fiotto@hklaw.com
`HOLLAND & KNIGHT LLP
`10 Saint James Avenue; 11th Floor
`Boston, MA 02116
`Telephone: 617-523-2700
`Facsimile: 617-523-6850
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`Attorneys for Ericsson Inc.
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`
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`Dated: March 8, 2019
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`/s/
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`Jacob K. Baron
`Jacob K. Baron, Esq.
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`Case 2:18-cv-00514-JRG Document 20 Filed 03/08/19 Pa