In late August, Avanci, Nokia, Sharp, and a couple of non-practicing entities filed a joint motion to dismiss automotive supplier Continental#s San Jose FRAND/antitrust complaint over component-level SEP licensing. In early October, Continental opposed the defendants' motion and accused the Avanci patent pool of a "conspiracy" to "boycott[] suppliers so [patentees] can collect hold-up royalties downstream."
Yesterday the defendants filed their reply brief, and they keep pursuing each and every attack vector (this post continues below the document):
19-10-25 Avanci Et Al. Reply ISO Motion to Dismiss Continental's Complaint by Florian Mueller on Scribd
The defendants' most fundamental argument still is that Continental lacks standing in the absence of some concrete injury. Unlike Microsoft in its FRAND dispute with Motorola, Continental hasn't even been threatened to be sued.
A sworn declaration by Nokia's Lasse Holopainen makes very clear that Nokia is unwilling to license end-product makers. While the question of whether there is an antitrust injury involves more difficult questions, it's hard to see why Continental shouldn't at least be able to enforce its third-party beneficiary rights under the defendants' ATIS and TIA FRAND declarations (the ones underlying last year's summary judgment against Qualcomm).
The defendants deny Continental's allegations of a boycott as all contributors to the Avanci patent pool remain free to enter into direct license agreements with entities like Continental if they so choose. They say that the boycott theory is a new approach by Continental, and any conspiracy would have to meet a pleading standard requiring a "specific time, place, or person involved in the alleged conspiracies."
Interestingly, even Continental's fairly recent attempts to serve the complaint on Sharp are deemed insufficient by Sharp. They insist on international service under the Hague Convention (as did Continental Automotive Systems with respect to the Munich anti-antisuit injunction). Apart from service of process, the reply brief states that Continental "did not make [a request for a license from Sharp] until after it filed this lawsuit, or that Continental has repeatedly refused since then to provide any of the basic information Sharp has requested from Continental in order to prepare an offer"--but Sharp believes to have made a FRAND-compliant offer to Continental based on its own assumptions.
Judge Lucy H. Koh of the United States District Court for the Northern District of California will hold a motion-to-dismiss hearing on November 21, unless she decides to take the matter under advisement based on the party's briefs.
The reply brief makes seome reasonably strong points, so I wouldn't be surprised in the slightest if at least parts of Continental's complaint were dismissed, but I lack the time to research this in greater detail. The defendants are even pushing for a dismissal with prejudice as opposed to one that would allow Continental to amend its complaint.
On Wednesday (October 30), Nokia and Continental will square off in court again as the Munich I Regional Court's 21st Civil Chamber under Presiding Judge Tobias Pichlmaier will hold first hearings on two of Nokia's ten German patent infringement complaints against Daimler. Continental will be present as an intervenor supporting Daimler.
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