In mid-June, both Apple and Intel opposed Fortress Investment's motion to dismiss their second amended antitrust complaint in the Northern District of California. A week later, Apple withdrew from the case, allowing Apple to take a purely defensive perspective on antitrust law (case in point, Apple just lost an appeal to Epic Games in Australia).
Last night, Fortress filed its reply brief in support of its motion to dismiss (this post continues below the document):
21-07-08 Fortress Reply ISO... by Florian Mueller
My impression was that some of the arguments in favor of dismissal are more like summary judgment than motion-to-dismiss arguments. I will give this more thought, and if there are any other observations worth sharing, I may do a follow-up post. What I found most interesting at first sight is that Fortress argues that, after Apple's withdrawal, "five out of the nine alleged 'markets' now contain no Defendants or patents that have ever been involved in a lawsuit against Intel." According to Fortress, the complaint failed to properly allege antitrust injury even while Apple was a party to the case, but Fortress believes it is now in an even stronger position.
Fortress makes a similar argument in connection with supracompetitive royalties (which are key to the complaint's theory of harm):
"[...] Intel does not dispute there is no allegation that it has ever paid any royalties to any Defendant ('supracompetitive' or otherwise). Intel states that 'Plaintiffs have 'engaged in licensing negotiations' with Defendants,' [...], but the only 'negotiations' alleged in the [Second Amended Complaint] occurred between Inventergy, INVT, and Apple, who is no longer a plaintiff in this case. [...] There are no allegations that Intel has been involved in any licensing negotiations with any Defendant, let alone any that would be likely to result in a deal."
The Fortress-funded companies mentioned in that passage--Inventergy and INVT--also made a separate filing (Scribd, PDF) arguing that there is no patent aggregation issue with respect to the standard-essential patents those entities hold.
Fortress also replied to amicus curiae briefs filed in support of Intel (and, at the time, Apple) by ACT | The App Association and Unified Patents (this post continues below the document):
21-07-08 Fortress Reply to ... by Florian Mueller
Fortress disputes that ACT | The App Association's members have actually experienced any problems with patent assertions by Fortress-funded NPEs:
"Notably, the App Association does not name a single 'small company' out of its 5,000 members that has supposedly been 'abused' by any of the Defendants. Thus, whatever the merits of the App Association's arguments about supposed abusive patent assertions against small companies, they are simply irrelevant here."
The motion-to-dismiss hearing will be held in San Francisco in a couple of months.
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