Assertion of standard-essential patents are all the rage at the ITC these days, with an upcoming trial on InterDigital’s claims (Inv. No. 337-TA-800), another recent complaint filed by InterDigital, dueling Ericsson-Samsung complaints, and the highly anticipated Final Determination in ITC Inv. No. 337-TA-794 involving Apple and Samsung due in March.  And today, a company named Adaptix — a subsidiary of noted non-practicing entity Acacia Research — threw its hat into the ring, firing off a Section 337 complaint accusing Ericsson’s 4G LTE base stations of infringing U.S. Pat. No. 6,870,808, titled “Channel Allocation in Broadband Orthoganol Frequency-Division Multiple-Access/Space-Division Multiple-Access Networks.”  But this might not be your typical standard-essential patent case — it has a couple of twists.

According to the complaint, Adaptix has asserted this patent in seven litigations against a number of various entities over the past year, including a case against Ericsson currently pending in the Eastern District of Texas (No. 6:13-cv-00050).  Adaptix requests that the ITC institute an investigation, determine that a violation of Section 337 has occurred, and issue both a permanent exclusion order and a cease and desist order against Ericsson.

Not surprisingly, Adaptix’s complaint addresses the alleged essentiality of the ‘808 patent and any effect that a FRAND obligation may have on remedies at the ITC.  Adaptix first turns Ericsson’s own ITC complaint against Samsung around on Ericsson (where Ericsson is asserting standard-essential patents against Samsung’s cellular infrastructure products).  Adaptix also notes Ericsson’s public interest statement in Inv. No. 337-TA-794, where Ericsson stated generally that infringement of a standard-essential patent should result in an exclusion order in the absence of a FRAND obligation.  Adaptix claims that it did not participate in any LTE standard-setting procedures and thus has no FRAND obligation for the ‘808 patent.  This is unlike many of the assertions of standard-essential patents that we have typically seen, where patent holders agree that there is a FRAND obligation but dispute the scope of these obligations.

Aside from the FRAND considerations (or lack thereof), there is another reason why this suit may be noteworthy.  Acacia Research acquired Adaptix last year for $160 million and promptly signed up both Microsoft and Samsung as licensees.  Almost simultaneously, Adaptix filed suit against Alcatel-Lucent on several of its 4G LTE patents (including the ‘808 patent), accusing Alcatel-Lucent’s End-to-End LTE Solution infrastructure — a competitor of Samsung’s infrastructure products — of infringing the patents.  This lead some to believe that Samsung might have had some interest in Adaptix’s enforcement.  Given Samsung’s recent spat with Ericsson over cellular-essential patents in the ITC and the Eastern District of Texas, the timing of Adaptix’s suit(s) against Ericsson is certainly interesting.