FWIW
In Part I of our year end summary of key developments regarding patents subject to a commitment to license on a Fair Reasonable and Non-Discriminatory (FRAND) or Reasonable and Non-Discriminatory (RAND) basis, we looked at various developments involving patent pools and reviewed some interesting damages awards and interlocutory decisions. In this installment, we consider a pair of antitrust cases dismissed in 2023 and explore what may come next on the policy front.
Dismissed Suits
u-blox v. IDCC
Following on a case between the same parties in 2019, which featured an intervention by the U.S. Department of Justice’s antitrust division and ended in settlement, u-blox once again accused InterDigital of antitrust violations in January of 2023 stemming from InterDigital’s alleged refusal to offer u-blox a new license on FRAND terms (see: u-blox AG v. Interdigital Inc., Case No. 23-cv-0002-CAB-AHG (S.D. California)). This time around the DOJ did not intervene and u-blox’s antitrust claims were dismissed with prejudice, the Order Granting Defendants’ Motion to Dismiss providing as follows:
“In light of recent Ninth Circuit precedent, Plaintiffs have failed to allege anticompetitive harm in violation of section 2 of the Sherman Act. See FTC v. Qualcomm Inc., 969 F.3d 974, 996 (9th Cir. 2020) (“in order to make out a § 2 violation, the anticompetitive harm identified must be to competition itself, not merely competitors”). Plaintiffs also appear to have released any antitrust claims in their 2019 Patent Licensing Agreement with Defendants. [Doc. No. 36-4]. Thus, Plaintiffs’ cause of action under section 2 of the Sherman Act is hereby DISMISSED with prejudice.”
Judge Cathy Ann Bencivengo also granted InterDigital’s motion to dismiss u-blox’s breach of contract claim, but with leave to amend. Following u-blox’s filing of an amended complaint on August 25, InterDigital brought another motion to dismiss. u-blox’s case was voluntarily dismissed after an Order to Show Cause indicating that the court did not believe it held subject matter jurisdiction over the case given “the only issue before this Court is a state law breach of contract claim” and there was no diversity jurisdiction. With respect to the state law claims the Order further notes that “[a]lthough the breach of contract claim concerns a patent licensing agreement, the Court is not convinced that the dispute arises from the patent laws of the United States to satisfy §1388(a).”
AI
