Monday, June 13, 2022

Fifth Circuit gives short shrift to Continental's request for permission to file reply brief calling for rehearing of Avanci, Nokia antitrust case

On Thursday, Continental had the chuzpe to file a proposed reply brief in support of its petition for rehearing en banc (full-court review) of the dismissal of its "antitrust" case against the Avanci patent pool and some of its licensors, most notably Nokia. The procedural rules of the United States Court of Appeal for the Fifth Circuit do not envision reply briefs in connection with a petition for rehearing, as Avanci, Nokia, Sharp, and Optis pointed out in their prompt opposition to Conti's motion for leave (request for permission) to file a reply brief.

Conti's reply brief has been rejected. Circuit Judge Carl E. Stewart, a member of the panel who held that Conti didn't even have basic Article III standing (thus never had to address antitrust standing, much less antitrust pleading standards), just entered the following order:

IT IS ORDERED that Appellant’s opposed motion for leave to file a reply to the petition for rehearing en banc is DENIED.

It's too early to tell what this means for the petition itself. I don't think the petition is a whole lot better than the motion for leave to file a reply brief was. But the appeals court will certainly give the petition more thought, while Conti's desire to file a reply brief was just ridiculous.

Conti may have expected the denial of its motion to file a reply brief. In that case, Conti would have decided to bring a long-shot motion anyway. But such behavior comes across as desperate, and doesn't generate goodwill. Conti has to just sit back, relax, and wait for the Fifth Circuit's decision on the actual petition. If the appellate judges and their clerks quickly realize that Conti's amici are notoriously interested in the devaluation of standard-essential patents (SEPs), the focus will be on the merits of the petition, and in that regard it falls far short, not because one couldn't ask questions or raise issues (that's almost always possible), but because Conti's case is doomed one way or the other. It's a dead lawsuit walking.

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