Tuesday, July 26, 2022

U.S. court dismissed Lenovo-Motorola's FRAND, antitrust, declaratory-judgment case against IPCom; Deutsche Telekom appeals dismissal of Mannheim 'antitrust' complaint against IPCom

Germany-based patent licensing firm IPCom is technically facing a two-front antitrust war over its monetization of standard-essential patents (SEPs). But there's no such thing as a war without functional weapons, and neither a U.S. case brought by Lenovo and its Motorola Mobility subsidiary nor Deutsche Telekom's German complaint have impressed the courts of law:

  • Earlier this month, Judge Edward J. Davila of the United States District Court for the Northern District of California granted IPCom's December 2021 motion to dismiss an amended complaint by Lenovo and its Motorola Mobility subsidiary that alleged breach of contract, monopolization in violation of U.S. antitrust law (Sherman Act Sec. 2), and sought a declaratory judgment of non-infringement of two IPCom patents. I'll show you the documents further below.

    Judge Davila reached that decision for jurisdictional reasons: while IPCom was--and still is--asserting patents against Lenovo in other jurisdictions (UK, Germany), IPCom's contacts with the NorCal forum fall far short of what would establish personal jurisdiction. Consistently with that position, IPCom didn't even bring compulsory counterclaims to the DJ claims--and the court didn't even reach the merits of Lenovo's various claims.

    Lenovo hadn't explicitly requested leave to amend. The dismissed complaint was already an amended one--in fact, the amended came just two days before the order. If Lenovo had presented a theory that would have warranted another amendment, it would have been allowed to do so until July 22, but it appears that Lenovo is either giving up or, more likely, will appeal the dismissal to the Federal Circuit.

    Lenovo is represented in that action by the same law firm--Sheppard Mullin--that has just been on the receiving end of another dismissal: tire manufacturer Continental was definitively denied a rehearing en banc of its Fifth Circuit appeal of the dismissal of its "antitrust" complaint against the Avanci patent pool and some of its licensors (Nokia, Sharp, Optis).

  • Yesterday the press office of the Karlsruhe Higher Regional Court confirmed to me that Deutsche Telekom has filed a notice of appeal of the Mannheim Regional Court's rejection of its "antitrust" complaint against IPCom in late May. The appellate case number is 6 U 204/22. I don't see that case going anywhere.

When a licensing firm has to fend off apparently meritless FRAND/antitrust complaints brought by large operating companies on two continents, the question is who's actually "trolling" whom...

Finally, the documents I promised further above:

The last version of Lenovo's dismissed complaint:


IPCom's motion to dismiss:


The order granting IPCom's motion to dismiss: