As noted in the article interlocutory appeals are seldom granted, so it appears that IDCC is taking another approach to have MSFT’s suit dismissed. Yesterday IDCC filed their Answer to MSFT’s Complaint and Counter claims against MSFT.
In their Answer, IDCC simply denied all of MSFT’s allegations. The following are the two Counterclaims that IDCC asserted against MSFT:
COUNTERCLAIM I
(Declaratory Judgment that Microsoft’s Sherman Act Claim Is Invalid or Preempted as Applied Under the First Amendment to the U.S. Constitution, the Patent Clause of the U.S. Constitution and Title 35 of the U.S. Code)
34. InterDigital restates and realleges the preceding allegations of its Counterclaims.
35. Counterdefendants have asserted and currently assert that the Sherman Act may
be applied against InterDigital’s patent enforcement activity without any adequate pleading or
proof that such conduct is objectively and subjectively baseless.
36. The Complaint filed by Counterdefendants in this action contains a claim for violation of the Sherman Act that is based on InterDigital’s patent enforcement activity. Any allegations in the Complaint of other activity by InterDigital causing purported injury to Microsoft are irrelevant and/or false.
37. There is an actual and immediate controversy between InterDigital and
Counterdefendants on the issue of the applicability of the Sherman Act to InterDigital’s patent enforcement activity.
38. At all times, InterDigital’s patent enforcement activities with respect to
Counterdefendants and their predecessors-in-interest, including without limitation lawsuits, prelawsuit communications, and licensing demands, were undertaken in good faith and were not objectively and subjectively baseless.
39. InterDigital has the right to pursue good faith patent enforcement activity under the First Amendment to the U.S. Constitution, the Patent Clause of the U.S. Constitution, and Title 35 of the U.S. Code, and accordingly is entitled to immunity from tort claims based on such activity. Microsoft’s Sherman Act claim impermissibly burdens InterDigital’s Constitutional and statutory rights, and is therefore invalid or preempted as applied.
40. InterDigital requests that the Court enter a declaratory judgment that Microsoft’s Sherman Act claim is invalid or preempted as applied under the First Amendment to the U.S. Constitution, the Patent Clause of the U.S. Constitution, and Title 35 of the U.S. Code.
COUNTERCLAIM II
(Declaratory Judgment That Counterdefendants Waived Entitlement to Benefit From FRAND Commitments By InterDigital Due to Counterdefendants’ Reverse Hold-Up)
41. InterDigital restates and realleges the preceding allegations of its Counterclaims.
42. Counterdefendants assert in the Complaint as part of their Sherman Act claim that InterDigital deceptively made false FRAND commitments to ETSI that it never intended to fulfill, and then breached said FRAND commitments, including by refusing to enter into a license with Microsoft or its predecessors-in-interest on FRAND terms and conditions.
43. ETSI FRAND commitments apply only to essential patents.
44. Pursuant to ETSI’s IPR Policy, the definition of ESSENTIAL is as follows:
“‘ESSENTIAL’ as applied to IPR means that it is not possible on technical (but not commercial) grounds, taking into account normal technical practice and the state of the art generally available at the time of standardization, to make, sell, lease, otherwise dispose of, repair, use or operate EQUIPMENT or METHODS which comply with a STANDARD without infringing that IPR.
For the avoidance of doubt in exceptional cases where a STANDARD can only be implemented by technical solutions, all of which are infringements of IPRs, all such IPRs shall be considered ESSENTIAL.” ETSI IPR Policy, § 16 (emphasis added).
45. With respect to each allegedly standards-essential patent on which Microsoft bases its Sherman Act claim, Microsoft waived any entitlement to benefit from FRAND commitments made by InterDigital during Microsoft’s actual and constructive refusals to license, resulting in reverse hold-up against InterDigital.
46. There is an actual and immediate controversy between Counterdefendants and InterDigital as to whether Counterdefendants waived the ability to benefit from ETSI FRAND commitments made by InterDigital in light of Counterdefendants’ conduct during the timeperiods relevant to the Complaint.
47. InterDigital is entitled to a declaratory judgment that Counterdefendants waived any entitlement to benefit from ETSI FRAND commitments made by InterDigital with respect to the patents on which Counterdefendants base their Sherman Act claim during Counterdefendants’ actual and constructive refusals to license and their reverse hold-up.
PRAYER FOR RELIEF
Wherefore, InterDigital respectfully requests that Plaintiff take nothing by its claim, and that the Court:
Deny all relief and/or remedies requested by Plaintiff;
B. Grant the relief requested in InterDigital’s Counterclaims;
C. Enter a declaratory judgment that Microsoft’s Sherman Act claim based on patent enforcement activity is invalid or preempted as applied under the First Amendment to the U.S. Constitution, the Patent Clause of the U.S. Constitution, and Title 35 of the U.S. Code;
D. Enter a declaratory judgment that Counterdefendants waived the ability to benefit from ETSI FRAND commitments made by InterDigital with respect to the individual patents on which Counterdefendants base their Sherman Act relevant market;
E. Enter judgment in favor of InterDigital and against Plaintiff, assessing the costs of this action against Plaintiff;
F. Award InterDigital such other and further relief as the Court may deem just and proper.
