Monday, June 13, 2022

Continental's reply brief in support of petition for rehearing of SEP antitrust case not contemplated by Fifth Circuit rules, and wrong at any rate, Avanci and licensors tell appeals court

Continental continues to keep U.S. courts busy with its attempts to force companies like Nokia to extend them an exhaustive component-level license to standard-essential patents (SEPs). It would have been as reasonable as it would have been realistic for Conti to recognize that its U.S. antitrust case against Avanci and its licensors is lightyears from making the slightest commercial impact after a Fifth Circuit panel identified a third independent reason for dimissing Conti's complaint. And even if--which goes beyond stretching the imagination--Conti overcame all three reasons for dismissal at this stage, I strongly doubt it could prove its conspiracy theories even if permitted to conduct discovery. So the rational and respectful thing would be to give up. Instead, Conti filed a petition for a rehearing and then, toward the end of last week, even a motion for leave to file a proposed reply to the recent response by Avanci, Nokia, Sharp, and Optis to the rehearing petition.

But appeals courts don't consider rehearing petitions a motion that requires or warrants extensive briefing: many such petitions are resolved just based on the petition alone. By asking Avanci and its licensors to respond to Conti's petition (which I attribute to all the brouhaha by Conti's amici rather than the actual issues), the Fifth Circuit has apparently emboldened Conti to try something the appeals court's rule don't even provide for: a reply in support of a rehearing petition.

A few days ago I explained two reasons for which Conti's proposed reply brief makes no sense: Conti is trying to revive a federal antitrust case through an argument that is solely about (state) contract law, even though the district court declined to exercise supplemental jurisdiction over those claims after the federal claims had been dismissed; and the Fifth Circuit panel opinion said that even if Conti had contractual rights (which it failed to show), it wouldn't make a difference in the end.

The second one of those points is also made by Avanci, Nokia, Optis, and Sharp, who on Friday filed an opposition to Conti's motion:

Avanci and its co-defendants point out that the Fifth Circuit rule governing rehearing petitions doesn't even contemplate a reply brief. The above filing then explains that the appeals court simply doesn't need a reply to understand the scope of the petition on the one hand and the points made in the defendants' response on the other hand.

This case is a waste of time anyway, but at least I have hope that Conti can resist the urge to make yet another filing with the Fifth Circuit at this procedural stage, such as a reply brief in support of its motion for leave to file a reply in support of its rehearing petition...

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