IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

MARSHALL DIVISION 

XR COMMUNICATIONS, LLC, dba 

VIVATO TECHNOLOGIES, 

 Plaintiff, 

v. 

AT&T SERVICES INC.; AT&T MOBILITY 

LLC; and AT&T CORP., 

 Defendants, 

ERICSSON INC., 

Intervenor.

Case No. 2:23-cv-00468-JRG-RSP 

JURY TRIAL DEMANDED 

XR COMMUNICATIONS, LLC, dba 

VIVATO TECHNOLOGIES, 

 Plaintiff, 

v. 

VERIZON COMMUNICATIONS INC., AND 

CELLCO PARTNERSHIP D/B/A VERIZON 

WIRELESS, 

 Defendants, 

ERICSSON INC., 

Intervenor. 

Case No. 2:23-cv-00470-JRG-RSP 

JURY TRIAL DEMANDED

XR COMMUNICATIONS, LLC, dba 

VIVATO TECHNOLOGIES, 

 Plaintiff, 

v. 

T-MOBILE USA, INC., 

 Defendant, 

ERICSSON INC., 

Intervenor. 

Case No. 2:23-cv-00469-JRG-RSP 

JURY TRIAL DEMANDED

Case 2:23-cv-00469-JRG-RSP Document 18 Filed 12/12/23 Page 1 of 13 PageID #: 711
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ERICSSON INC.’S UNOPPOSED MOTION TO INTERVENE 

Pursuant to Federal Rule of Civil Procedure 24, Movant Ericsson Inc. (“Ericsson”) moves 

for leave to intervene in each of the above-captioned related actions as of right under Rule 24(a)(2) 

or, alternatively, with the Court’s permission under Rule 24(b)(1)(B), to defend allegations of 

infringement with respect to its base stations that were provided to Defendants AT&T Services 

Inc., AT&T Mobility LLC, AT&T Corp. (“AT&T”), Verizon Communications Inc. and Cellco 

Partnership d/b/a Verizon Wireless (“Verizon”), and T-Mobile USA, Inc. (“T-Mobile”) 

(collectively, “Defendants”). As required by Federal Rule of Civil Procedure 24(c), Ericsson 

attaches, as Exhibits A, B, and C to this motion, proposed responsive pleadings for each of the 

cases. This motion is unopposed across all three related cases. 

INTRODUCTION 

Plaintiff XR Communications, LLC (“Plaintiff” or “XR”) sued each of the Defendants on 

October 4, 2023, for infringement of two patents. Each of AT&T, Verizon, and T-Mobile is an 

Ericsson customer for, among other things, 5G cellular base stations used in cellular networks. 

XR’s Complaints accuse of infringement certain functionality in Ericsson’s 5G cellular base 

stations, namely, “cellular base stations / 5G NR RAN solutions that support 3GPP 5G NR 

beamforming.” AT&T Compl., Case No 2:23-cv-00468, Dkt. No. 1, at ¶¶ 31, 41; Verizon Compl., 

Case No. 2:23-cv-00470, Dkt. No. 1, at ¶¶ 29, 39; T-Mobile Compl., Case No. 2:23-cv-00469, 

Dkt. No. 1, at ¶¶ 28, 38. Accordingly, Ericsson seeks to intervene in each case so that the dispute 

over the infringement of Ericsson’s products can be efficiently disposed of in this proceeding. 

Neither XR nor Defendants oppose Ericsson’s intervention to defend allegations of infringement 

with respect to Ericsson base stations. And under similar circumstances, this Court recently 

granted Ericsson leave to intervene. See Cobblestone Wireless, LLC v. T-Mobile USA, Inc., 2:22-

cv-00477 (E.D. Tex) (LEAD CASE), Dkt. No. 70 and XR Communications LLC d/b/a Vivato 

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Technologies v. AT&T Inc. et. al., 2:23-cv-00202 (E.D. Tex) (LEAD CASE), Dkt. No. 55, 56 

(granting Ericsson and Nokia’s unopposed motions for leave to intervene). 

Ericsson’s intervention will result in the most efficient and complete resolution of these 

disputes. In its Complaints, XR makes clear that its allegations of infringement relate to 5G base 

stations of the sort that Ericsson provides to Defendants, along with certain functionality that XR 

claims is present in such base stations. Specifically, as to each of the patents-in-suit, XR defines 

the “Accused Products” as “cellular base stations / 5G NR RAN solutions that support 3GPP 5G 

NR beamforming.” AT&T Compl., Case No 2:23-cv-00468, Dkt. No. 1, at ¶¶ 31, 41; Verizon 

Compl., Case No. 2:23-cv-00470, Dkt. No. 1, at ¶¶ 29, 39; T-Mobile Compl., Case No. 2:23-cv00469, Dkt. No. 1, at ¶¶ 28, 38. 

As a designer, manufacturer, and seller of certain of the accused base stations in 

Defendants’ networks, Ericsson has a substantial interest in the litigation and is in the best position 

to defend infringement claims directed to those products. “[I]t is a simple fact of life that a 

manufacturer must protect its customers, either as a matter of contract, or good business, or in 

order to avoid the damaging impact of an adverse ruling against its products.” Katz v. Lear Siegler, 

Inc., 909 F.2d 1459, 1464 (Fed. Cir. 1990) (quoting Codex Corp. v. Milgo Electronics Corp., 553 

F.2d 735, 737-38 (1st Cir. 1977)); see also Chandler & Price Co. v. Brandtjen & Kluge, Inc., 296 

U.S. 53, 55 (1935) (noting a manufacturer’s intervention in infringement action against a customer 

is “necessary for the protection of its interest”). 

Accordingly, Ericsson respectfully moves to intervene in each of the above-captioned cases 

so that it can defend against allegations of infringement with respect to Ericsson base stations. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

A. The Complaints and Infringement Contentions Accuse Equipment Supplied 

by Ericsson 

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XR accuses Defendants of infringing two patents because each “provides 

telecommunication, Internet service, and other services to customers via cellular base stations.” 

AT&T Compl., Case No 2:23-cv-00202, Dkt. No. 1, at ¶ 28; Verizon Compl., Case No. 2:23-cv00203, Dkt. No. 1, at ¶ 26; T-Mobile Compl., Case No. 2:23-cv-00204, Dkt. No. 1, at ¶ 25. 

Ericsson supplies, among other things, equipment and technology incorporated by Defendants into 

their cellular networks, including cellular base stations. XR’s infringement allegations relate to 

Defendants’ 5G networks and specifically identify “cellular base stations / 5G NR RAN solutions” 

of the type supplied by Ericsson. AT&T Compl., Case No 2:23-cv-00468, Dkt. No. 1, at ¶¶ 31, 

41; Verizon Compl., Case No. 2:23-cv-00470, Dkt. No. 1, at ¶¶ 29, 39; T-Mobile Compl., Case 

No. 2:23-cv-00469, Dkt. No. 1, at ¶¶ 28, 38. In this case, as explained above, XR asserts that 

Defendants have infringed two patents that “support 3GPP 5G NR beamforming”. 

In short, Ericsson-supplied 5G base stations are integral to the resolution of these cases, 

and Ericsson has a substantial interest in protecting its technology. 

B. Ericsson Has a Substantial and Direct Interest in Protecting Its Technology, 

and Defendants Have Tendered Indemnities to Ericsson 

Defendants are Ericsson’s customers and each has demanded indemnification based on the 

nature of XR’s infringement allegations directed to Ericsson’s 5G base stations, as described 

above. In light of XR’s infringement allegations, there can be no serious dispute that Ericsson 

may be injured under the circumstances of this case, if it is not permitted to intervene in this suit 

to defend allegations of infringement with respect to Ericsson base stations. 

C. This Case Is in Its Early Stages 

Defendants’ answers were due in mid-December, and this motion comes on the heels of 

those filings. The Court has not entered a Docket Control Order or set any hearing dates. In short, 

these cases are at an early stage and XR will experience no prejudice or delay from intervention at 

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this early stage, as shown by XR’s non-opposition to this motion. 

II. ARGUMENT AND CITATIONS TO AUTHORITY 

Federal Rule of Civil Procedure 24(a)(2) provides for intervention by right where a party 

claims an interest relating to the property or transaction at issue in a case and where the intervenor 

is so situated that disposing of the action without it may as a practical matter impair the intervenor’s 

ability to protect that interest. Meanwhile, under Rule 24(b)(2), the Court may allow a party to 

intervene when the intervenor has a claim or defense that shares a common question of law or fact 

with the main action. As explained below, Ericsson’s motion to intervene should be granted under 

either standard. 

The issue of intervention is not unique to patent law, and therefore, the law of the regional 

circuit applies. Stauffer v. Brooks Bros., Inc., 619 F.3d 1321, 1328 (Fed. Cir. 2010) (reviewing a 

district court’s Rule 24 intervention decision under regional circuit law). Under Fifth Circuit law, 

intervention is permitted where “no one would be hurt, and the greater justice could be attained.” 

Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015) (quoting Sierra Club v. Espy, 18 F.3d 

1202, 1205 (5th Cir. 1994)). “Although the movant bears the burden of establishing its right to 

intervene, Rule 24 is to be liberally construed.” Id. at 656 (quoting Brumfield v. Dodd, 749 F.3d 

339, 341 (5th Cir. 2014)). 

Ericsson is entitled to intervene to defend against XR’s allegations of infringement with 

respect to Ericsson’s base stations as a matter of right and, therefore, respectfully requests that the 

Court grant the present motion under Rule 24(a)(2), or in the alternative, permissively pursuant to 

Fed. R. Civ. P. 24(b)(1)(B). 

A. Ericsson is Entitled to Intervene as a Matter of Right Pursuant to Rule 

24(a)(2) 

Under Rule 24(a)(2), a movant must be permitted to intervene as a matter of right whenever 

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four conditions are met: 

(1) the application for intervention is timely; 

(2) the applicant has an interest relating to the property or transaction which is the subject 

of the action; 

(3) the applicant is 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 is inadequately represented by the existing parties to the suit. 

Fed. R. Civ. P. 24(a)(2); Texas, 805 F.3d at 657. This inquiry is “a flexible one,” which “must be 

measured by a practical rather than technical yardstick.” City of Houston v. Am. Traffic Sols., Inc., 

668 F.3d 291, 293 (5th Cir. 2012) (quoting Edwards v. City of Houston, 78 F.3d 983, 999 (5th Cir. 

1996) (en banc)). Ericsson meets the four requirements to intervene as of right under Rule 24(a). 

1. Ericsson’s Motion to Intervene is Timely 

Timeliness is determined from all the facts and circumstances of a particular case, 

including the time from notice of the intervenor’s interest to the filing of the motion to intervene, 

the extent of prejudice to existing parties from the timing of the motion, the extent of prejudice to 

the movant if leave to intervene were denied, and other special circumstances (if any exist and 

apply). Edwards, 78 F.3d at 1000. 

Ericsson’s motion is timely, and indeed comes just a few months after these cases were 

filed and still before a Markman hearing has been scheduled to be held. XR filed its Complaints 

less than two months ago. Ericsson’s motions to intervene are therefore filed close in time to the 

commencement of these actions and to the time that Ericsson was on notice of its interests. See 

Edwards, 78 F.3d at 1000-01 (citing Fifth Circuit intervention cases finding that delays as long as 

five months or more are not unreasonable); Ericsson Inc. v. D-Link Sys., Inc., No. 6:10-cv-473 

(E.D. Tex. May 4, 2012), Dkt. No. 205 (granting Intel’s partially opposed motion to intervene filed 

Case 2:23-cv-00469-JRG-RSP Document 18 Filed 12/12/23 Page 6 of 13 PageID #: 716
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five months after the scheduling conference took place and nearly one year into the case). 

The timing of Ericsson’s Motion likewise will not prejudice any existing parties.1 Neither 

the Defendants nor Plaintiff XR oppose Ericsson’s Motion. This non-opposition underscores the 

lack of prejudice to any party. Further, XR has no basis to claim prejudice because this proceeding 

is at an early stage and no significant event has taken place. Edwards, 78 F.3d at 1001 (considering 

the stage of the proceeding under the timeliness inquiry); see also TiVo Inc. v. AT&T Inc., No. 

2:09-cv-259, 2010 WL 10922068, at *4 (E.D. Tex. Mar. 31, 2010) (finding no showing of 

“untimeliness” under Rule 24); Wal-Mart Stores, Inc. v. Tex. Alcoholic Bev. Comm’n, 834 F.3d 

562, 565 (5th Cir. 2016) (“Because the Association sought intervention before discovery 

progressed and because it did not seek to delay or reconsider phases of the litigation that had 

already concluded, the Association’s motion was timely”). Consistent with this precedent, this 

Court recently granted Ericsson’s motion to intervene in a case in which Ericsson similarly sought 

intervention approximately four months after the case was filed. Cobblestone Wireless, LLC v. TMobile USA, Inc., 2:22-cv-00477 (E.D. Tex), at Doc. No. 70 (Complaint filed Dec. 16, 2022; 

motion to intervene filed April 11, 2023). 

Given that claim construction or trial has not been scheduled, the timing of this motion is 

not prejudicial to any party. The first factor thus weighs heavily in favor of allowing Ericsson’s 

intervention to defend allegations of infringement with respect to Ericsson base stations. 

2. Ericsson Has a Significant Interest in this Lawsuit 

A party is entitled to intervene in an action when it has “a direct, substantial, legally 

 

1

 The relevant prejudice in this inquiry is only prejudice from the timing of the motion; “prejudice” 

from intervention itself is irrelevant to the timeliness of a motion to intervene. Edwards, 78 F.3d 

at 1002 (“This factor is concerned only with the prejudice caused by the applicants’ delay, not that 

prejudice which may result if intervention is allowed.”). 

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protectable interest in the proceedings.” Texas, 805 F.3d at 657 (internal quotations omitted); see 

also Glickman, 256 F.3d at 376 (quoting cases). Ericsson has such an interest in this action because 

Ericsson manufactures, develops, and/or distributes to the Defendants the very network equipment 

that XR alleges infringes the asserted patents. As the developer, manufacturer and distributor of 

accused technology, Ericsson has an interest in defending its technology and in clarifying the 

intellectual property rights that apply to such technology. See, e.g., Team Worldwide Corp. v. 

Wal-Mart Stores, Inc., No. 2:17-cv-00235-JRG, 2017 WL 6059303, at *4 (E.D. Tex. Dec. 7, 2017) 

(finding an intervening manufacturer had an interest in “the ongoing sale and distribution of their 

products [which] is put at risk by [the Plaintiff’s] allegations of infringement.”); see Intellectual 

Ventures I LLC v. AT&T Mobility LLC, No. 12-193-LPS, 2014 WL 4445953, at *2 (D. Del. Sept. 

8, 2014) (Stark, J.) (“[In a patent infringement suit,] intervention is necessary to enable Intervenors 

to protect their interest in products which Intervenors manufacture for Defendants, an interest put 

at risk by the litigation as Plaintiffs accuse these products of infringement.”). Overall, Ericsson’s 

interest in the issues to be litigated in this case—such as claim interpretation, validity, 

infringement, damages—is direct, substantial, and legally protectable. 

Ericsson has an additional, direct, substantial, and legally-protectable interest defending 

any allegations in this case for which Defendants have demanded indemnification. First Gibraltar 

Bank v. Bradley, No. 95-20500, 1996 WL 556852, at *4 (5th Cir. Sept. 10, 1996) (unpublished) 

(“Given the agency’s obligation to indemnify ... , [the agency] had a concrete financial interest in 

the litigation that would justify its status as [an intervenor.]”); Team Worldwide Corp, 2017 WL 

6059303, at *4 (finding sufficient interest where “each [intervenor] has acknowledged a 

contractual obligation to defend and indemnify” the defendant). Given that Ericsson is facing an 

indemnity demand from each of the Defendants, Ericsson also has a strong interest in ensuring that 

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the claims in this action with respect to its base stations are fully and vigorously defended. 

3. Ericsson’s Ability to Protect Its Interests Will Be Impaired if It 

Cannot Intervene 

Ericsson will be prejudiced if its intervention is denied. An adverse ruling of infringement 

could affect Ericsson and its relationship with its customers due to the demanded indemnity. See 

Katz v. Lear Siegler, Inc., 909 F.2d 1459, 1464 (Fed. Cir. 1990) (“[I]t is a simple fact of life that a 

manufacturer must protect its customers, either as a matter of contract, or good business, or in 

order to avoid the damaging impact of an adverse ruling against its products.”) (quoting Codex 

Corp. v. Milgo Electronic Corp., 553 F.2d 735, 737-38 USPQ 49 (1st Cir. 1977). Further, an 

adverse ruling could potentially affect Ericsson’s reputation, its relationship with its other 

customers and its customer base. See Team Worldwide, 2017 WL 6059303, at *5 (“[A]dverse 

rulings could impact each proposed intervenor’s relationships with other retail customers.”). 

Ericsson must be allowed to eliminate the cloud of uncertainty that XR has cast over Ericsson’s 

base station equipment, software and technology. 

Moreover, an adverse decision could create precedent that could be used in other 

circumstances or proceedings against Ericsson or its other customers. This potential “stare decisis 

effect of an adverse judgment constitutes a sufficient impairment to compel intervention.” Heaton 

v. Monogram Credit Card Bank of Ga., 297 F.3d 416, 424 (5th Cir. 2002) (quoting Sierra Club v. 

Glickman, 82 F.3d 106, 109-10 (5th Cir. 1996)). 

4. Defendants Cannot Adequately Represent Ericsson’s Interests in 

Defending Against XR’s Infringement Allegations 

In the Fifth Circuit, a movant satisfies the requirement of showing inadequate 

representation if it demonstrates that the defense of the case by the existing parties may be 

inadequate to protect its interests. Texas, 805 F.3d at 661. The burden to satisfy this requirement 

has been described as “minimal,” but not so minimal as to eliminate it. Id.

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Although Defendants also seek to defeat XR’s infringement allegations, Ericsson has 

interests to defend the infringement allegations against its 5G base stations above and beyond those 

that it shares with Defendants. See Heaton, 297 F.3d at 422, 425 (reversing a district court’s denial 

of a motion to intervene and noting the intervenor had met its burden because “the [intervenor’s] 

interests and [the defendant’s interests] may diverge in the future, even though, at this moment 

they appear to share common ground”). For example, Defendants may be satisfied with indemnity 

rather than a finding of non-infringement. Sw. Bell Tel., L.P. v. Arthur Collins, Inc., No. 3:04-cv00669, 2005 WL 8158383, at *2 (N.D. Tex. Jan. 28, 2005) (finding under the inadequate 

representation inquiry that manufacturer of cell phone equipment should be allowed to intervene 

because “[the original defendant], as a customer, may be satisfied with indemnity rather than a 

finding of noninfringement”). As a result, Ericsson is most motivated to defend its interests from 

XR’s claims with respect to Ericsson’s 5G base stations. 

Ericsson also possesses a broad and deep understanding of its equipment and technology. 

Accordingly, it is the most important source of information about its equipment and is likely the 

keeper of potentially key, relevant documents. It would be unfair to force Defendants to litigate 

the issues that Ericsson best understands. Id. (finding under the inadequate representation inquiry 

that “the customer would not be the best source for providing the detailed information about the 

[intervenor-manufacturer’s] products”). Intervention promotes both fairness and judicial 

economy. As a result, Ericsson is best suited, and most motivated, to defend its interests from 

XR’s claims with respect to Ericsson base stations. 

Because Ericsson satisfies the Fifth Circuit’s four-part test for interventions of right under 

Rule 24(a), the Court should grant Ericsson’s Motion as a matter of right. 

B. In the Alternative, Ericsson Should Be Permitted to Intervene Permissively 

Ericsson alternatively requests that the Court allow Ericsson to intervene permissively, 

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under Federal Rule of Civil Procedure 24(b), which permits a party to intervene if it “has a claim 

or defense that shares with the main action a common question of law or fact” and no undue delay 

or prejudice will result. Fed. R. Civ. P. 24(b)(1)(B); TiVo Inc., 2010 WL 10922068, at *4. 

Permissive intervention presents a lower bar than intervention as a matter of right, and does not 

require that the intervenor even “have a direct personal or pecuniary interest in the subject of the 

litigation.” Newby v. Enron Corp., 443 F.3d 416, 423 (5th Cir. 2006) (quoting SEC v. U.S. Realty 

& Improvement Co., 310 U.S. 434, 459 (1940)). 

For the same reasons noted above, permissive intervention for Ericsson to defend 

allegations of infringement with respect to Ericsson base stations is appropriate in this case. First, 

given that XR’s Complaint make it clear that its allegations are directed at 5G cellular base stations, 

including those supplied by Ericsson to Defendants, Ericsson’s defenses will involve common 

questions of law and fact. TiVo Inc., 2010 WL 10922068, at *4. As noted, the issues to be litigated 

in these cases—such as claim interpretation, validity, infringement, and damages—are common 

questions as to all parties. See U.S. Ethernet Innovations, LLC v. Acer, Inc., No. 6:09-cv-448-

JDL, 2010 WL 11488729, at *2 (E.D. Tex. May 10, 2010) (granting permissive intervention where 

intervenor shared common questions of law and fact and similar defenses as named defendant). 

Thus, the threshold requirement of Rule 24(b) is met. 

Second, at this early stage in the litigation, there will be no prejudice to any party if 

Ericsson is permitted to intervene to defend allegations of infringement with respect to Ericsson 

base stations. No party opposes these motions, which underscores a lack of prejudice. Further, 

Ericsson does not expect any delay to result from its intervention to defend allegations of 

infringement with respect to Ericsson base stations. Accordingly, there will be no undue delay or 

prejudice. 

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Finally, permissive intervention is “wholly discretionary,” and in the present case, judicial 

economy weighs in favor of intervention. New Orleans Pub. Serv., Inc. v. United Gas Pipe Line 

Co., 732 F.2d 452, 471 (5th Cir. 1984). Ericsson likely possesses the relevant evidence about 

certain of the accused equipment and technology it supplies to Defendants, including equipment 

specifications and testimony. Ericsson likely possesses the technical know-how. Further, 

intervention will allow Ericsson and XR to resolve the disputes in the context of the pending 

proceedings. Thus, intervention will streamline and simplify the litigation by facilitating discovery 

and promoting accurate presentation of the evidence. It would be inefficient to force Defendants 

to litigate the issues that Ericsson best understands. 

Thus, to the extent intervention is not permitted under Fed. R. Civ. P. 24(a), Ericsson 

respectfully requests the Court’s permission to intervene under Rule 24(b). 

CONCLUSION

For the foregoing reasons, Ericsson respectfully requests that the Court permit Ericsson to 

intervene to defend allegations of infringement with respect to Ericsson base stations as a matter 

of right pursuant to Fed. R. Civ. P. 24(a)(2), or in the alternative, permissively pursuant to Fed. R. 

Civ. P. 24(b)(1)(B). 

Dated: December 12, 2023 Respectfully submitted, 

/s/ Matthew S. Yungwirth 

Matthew S. Yungwirth 

msyungwirth@duanemorris.com 

John R. Gibson 

jrgibson@duanemorris.com 

Alice E. Snedeker 

aesnedeker@duanemorris.com 

DUANE MORRIS LLP 

1075 Peachtree Street NE 

Suite 1700 

Atlanta, Georgia 30309 

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T: (404)-253-6900 

Deron R. Dacus (TX SBN 00790553) 

ddacus@dacusfirm.com 

THE DACUS FIRM, P.C. 

821 ESE Loop 323, Suite 430 

Tyler, Texas 75701 

Telephone: 903.705.1117 

Email: ddacus@dacusfirm.com 

Counsel for Movant Ericsson Inc. 

CERTIFICATE OF SERVICE 

The undersigned counsel hereby certifies that on December 12, 2023, a true and correct 

copy of the foregoing was filed with the Court’s CM/ECF service, which will provide an electronic 

notification of the service of such pleading to all counsel of record. 

 /s/ Matthew S. Yungwirth 

 Matthew S. Yungwirth 

CERTIFICATE OF CONFERENCE

 Pursuant to LR CV-7(h), the undersigned hereby certifies compliance with the meet and 

confer requirements in LR CV-7(h), and confirms that the motion is unopposed. 

/s/ Matthew S. Yungwirth

 Matthew S. Yungwirth 

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