19-10-25 Avanci Et Al. Reply ISO Motion To Dismiss Continental's Complaint

Case 5:19-cv-02520-LHK Document 193 Filed 10/25/19 Page 1 of 27
1 Teresa T. Bonder (SBN 321558) Mark A. McCarty (pro hac vice granted)
ALSTON & BIRD LLP Matthew D. Richardson (pro hac vice granted)
2 560 Mission Street, Suite 2100 John D. Haynes (pro hac vice granted)
San Francisco, CA 94105 Andrew J. Tuck (pro hac vice granted)
3
Telephone: (415) 243-1000 Cassandra Kerkhoff Johnson (SBN 300064)
4 Facsimile: (415) 243-1001 ALSTON & BIRD LLP
[email protected] 1201 W. Peachtree St.
5 Atlanta, GA 30309
Ryan W. Koppelman (SBN 290704) Telephone: (404) 881-7000
6 ALSTON & BIRD LLP Facsimile: (404) 881-7777
950 Page Mill Road [email protected]
7 Palo Alto, CA 94304 [email protected]
8 Telephone: (650) 838-2000 [email protected]
Facsimile: (650) 838-2001 [email protected]
9 [email protected] [email protected]
10 Attorneys for Defendants Nokia Corporation,
Nokia of America Corporation, Nokia Solutions
11
and Networks US LLC, Nokia Solutions and
12 Networks Oy, and Nokia Technologies Oy
(Counsel for additional defendants on signature
13 page)
14
15 UNITED STATES DISTRICT COURT
16 NORTHERN DISTRICT OF CALIFORNIA
17
18 CONTINENTAL AUTOMOTIVE SYSTEMS, Case No. 19-cv-2520-LHK

19 INC.,
Plaintiff, DEFENDANTS’ REPLY IN SUPPORT OF
20 MOTION TO DISMISS FIRST AMENDED
v. COMPLAINT
21
AVANCI, LLC, et. al.,
22 The Honorable Lucy H. Koh
Defendants.
23 Hearing Date: November 21, 2019
Time: 1:30 p.m.
24 Courtroom: 8, 4th Floor
25
26
27
28
DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 19-cv-2520-LHK

1 TABLE OF CONTENTS
2 Page
3 I. CONTINENTAL LACKS ARTICLE III STANDING FOR ALL CLAIMS
BECAUSE IT DOES NOT ALLEGE ANY CONCRETE INJURY CAUSED BY
4 THE DEFENDANTS................................................................................................................ 1
5 II. CONTINENTAL HAS NOT ADEQUATELY ALLEGED AN ANTITRUST
CLAIM. ..................................................................................................................................... 3
6
A. Continental Has Not Alleged Antitrust Injury. ............................................................. 3
7
B. Continental’s Section 1 Claim Should Be Dismissed Because It Fails to
8 Allege an Agreement that Restrains Trade. .................................................................. 4
9 C. Continental Has Not Sufficiently Pled the Exclusionary Conduct Required for
a Section 2 Sherman Act Claim. ................................................................................... 6
10
1. Continental Has Not Adequately Alleged Deceptive Conduct. ........................ 7
11
2. Continental Has Not Alleged Reliance By Any SSO. ...................................... 8
12
D. Continental Does Not Adequately Allege a Conspiracy to Monopolize. ..................... 8
13
E. The Complaint Does Not Adequately Allege Any Relevant Market. .......................... 9
14
1. Technology Markets ....................................................................................... 10
15
2. Licensing Markets ........................................................................................... 10
16
3. Baseband Market ............................................................................................ 10
17
III. CONTINENTAL FAILS TO PLAUSIBLY ALLEGE ANY OTHER CLAIMS. ................. 11
18
A. Continental Has Not Pled a Promissory Estoppel Claim. ........................................... 11
19
B. Continental’s Declaratory Judgment Claim Is Not Ripe. ........................................... 12
20
C. Continental Has Not Stated a Claim For Specific Performance For Any
21 Alleged Breach of Contract. ....................................................................................... 12
22 D. Continental’s UCL Claim Should Be Dismissed. ....................................................... 13
23 IV. THE COURT SHOULD ALSO DISMISS MANY OF THE CLAIMS AGAINST
INDIVIDUAL DEFENDANTS FOR ADDITIONAL REASONS. ....................................... 14
24
A. Nokia Corp. and APIL Should Be Dismissed for Lack of Personal
25 Jurisdiction. ................................................................................................................. 14
26 B. The Non-California Defendants Should Be Dismissed for Lack of Personal
Jurisdiction If the Court Dismisses the Antitrust Claims............................................ 14
27
C. Sharp Cannot Be Properly Served Through Its U.S. Subsidiary in this Case. ............ 15
28
i
D. Continental ’s Response Confirms That the Optis Entities Should Be

1 Dismissed. ................................................................................................................... 16
2 V. CONCLUSION ....................................................................................................................... 17
3
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ii
TABLE OF AUTHORITIES
1
2 Page(s)
3 Cases
4 Advideo, Inc. v. Kimel Broad. Grp., Inc.,

727 F. Supp. 1337 (N.D. Cal. 1989) ..............................................................................................14
5
Alta Devices, Inc. v. LG Elecs., Inc.,
6 No. 18-cv-00404-LHK, 2019 WL 1924992 (N.D. Cal. Apr. 30, 2019) ..........................................7
7 Am. Ad Mgmt., Inc. v. Gen. Tel. Co.,
8 190 F.3d 1051 (9th Cir. 1999) .........................................................................................................4
9 Apple Inc. v. Samsung Elecs. Co.,

No. 11-cv-01846-LHK, 2011 WL 4948567 (N.D. Cal. Oct. 18, 2011) .................................7, 8, 10
10
Avago Techs. Fiber Ip Sing. Pte v. IPtronics, Inc.,
11 No. 10-cv-02863 EJC (PSG), 2012 U.S. Dist. LEXIS 151037 (N.D. Cal. Oct. 19,
2010) ..............................................................................................................................................10
12
13 Bay Area Surgical Mgmt. LLC v. Aetna Life Ins. Co.,

166 F. Supp. 3d 988 (N.D. Cal. 2015) .............................................................................................4
14
Bell Atl. Corp. v. Twombly,
15 550 U.S. 544 (2007) .....................................................................................................................2, 9
16 Bly-Magee v. Cal.,
236 F.3d 1014 (9th Cir. 2001) .........................................................................................................8
17
Broadcom Corp. v. Qualcomm,
18
501 F.3d 297 (3d Cir. 2007).........................................................................................................6, 7
19
Cascades Comput. Innovation LLC v. RPX Corp.,
20 No. 12-cv-01143-YGR, 2013 WL 316023 (N.D. Cal. Jan. 24, 2013) .............................................9
21 Chandler v. State Farm Mut. Auto. Ins. Co.,

598 F.3d 1115 (9th Cir. 2010) .......................................................................................................12
22
Doe 1 v. Xytex Corp.,
23 No. C 16-02935 WHA, 2017 WL 1112996 (N.D. Cal. Mar. 24, 2017) ........................................13
24
Funai Elec. Co. v. LSI Corp.,
25 No. 16-CV-01210-BLF, 2017 WL 1133513 (N.D. Cal. Mar. 27, 2017) .........................................2
26 Georgia v. Pennsylvania R. Co.,

324 US 439 (1945) .........................................................................................................................16
27
Glen Holly Entm’t, Inc. v. Tektronix, Inc.,
28 100 F. Supp. 2d 1086 (C.D. Cal. 1999) .........................................................................................12
iii
Khachatryan v. Toyota Motor Sales, U.S.A,

1
578 F. Supp. 2d 1224 (C.D. Cal. 2008) .........................................................................................15
2
KM Enters., Inc. v. Glob. Traffic Techs., Inc.,
3 725 F.3d 718 (7th Cir. 2013) .........................................................................................................16
4 LA Gem & Jewelry Design, Inc. v. Gold Star Jewelry PVT Ltd.,
No. CV 14-4807 DSF, 2014 WL 10401936 (C.D. Cal. Aug. 11, 2014)........................................15
5
Lesnik v. Se,
6 No. 16-CV-01120-LHK, 2018 WL 4700342 (N.D. Cal. Oct. 1, 2018) ...........................................3
7
Lorenzo v. Qualcomm Inc.,
8 603 F. Supp. 2d 1291 (S.D. Cal. 2009) ............................................................................................4
9 MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) .......................................................................................................................12
10
Microsoft Corp. v. Motorola, Inc.,
11 No. 10-cv-1823-JLR, 2011 WL 11480223 (W.D. Wash. June 1, 2011) .......................................11
12
Microsoft Mobile Inc. v. InterDigital, Inc.,
13 No. 15-cv-723-RGA, 2016 WL 1464545 (D. Del. Apr. 13, 2016) ..................................................2
14 Nero AG v. MPEG LA, L.L.C.,

No. 10-CV-3672-MRP-RZ, 2010 WL 4366448 (C.D. Cal. Sept. 14, 2010) .............................5, 10
15
Norwest Mortg., Inc. v. Superior Court,
16 85 Cal. Rptr. 2d 18 (Cal. App. 1999) .............................................................................................14
17 Official Comm. of Unsecured Creditors v. City Nat’l Bank, N.A.,
18 No. C09-03817 MMC, 2011 WL 1832963 (N.D. Cal. May 13, 2011) .........................................13
19 Orion Tire Corp. v. General Tire, Inc.,

No. 92-cv-2391, 1992 WL 295224 (C.D. Cal. Aug. 17, 1992) .....................................................16
20
Perez v. State Farm Mut. Auto. Ins. Co.,
21 No. C 06-01962 JW, 2012 WL 3777162 (N.D. Cal. Aug. 29, 2012) ..............................................3
22 Pony v. Cnty. of L.A.,
433 F.3d 1138 (9th Cir. 2006) .......................................................................................................17
23
24 Prime Healthcare Servs., Inc. v. Harris,

216 F. Supp. 3d 1096 (S.D. Cal. 2016) ............................................................................................2
25
Rambus Inc. v. F.T.C.,
26 522 F.3d 456 (D.C. Cir. 2008) .........................................................................................................8
27 Realtek Semiconductor Corp. v. LSI Corp.,
No. 5:12-cv-03451-RMW, 2012 WL 4845628 (N.D. Cal. Oct. 10, 2012) ....................................11
28
iv
Richmond Techs., Inc. v. Aumtech Bus. Sols.,

1
No. 11-cv-02460-LHK, 2011 WL 2607158 (N.D. Cal. July 1, 2011) ...........................................16
2
Rick-Mik Enters. v. Equilon Enters., LLC,
3 532 F.3d 963 (9th Cir. 2008) ...........................................................................................................9
4 Rio Properties, Inc. v. Rio Int’l Interlink,

284 F.3d 1007 (9th Cir. 2002) .......................................................................................................16
5
Schneider v. Cal. Dep’t of Corrs.,
6 151 F.3d 1194 (9th Cir. 1998) .........................................................................................................3
7
Seirus Innovative Accessories, Inc. v. Cabela’s, Inc.,
8 No. 09-CV-102, 2010 WL 6675046 (S.D. Cal. Apr. 20, 2010) .......................................................9
9 Sumitomo Mitsubishi Silicon Corp. v. MEMC Elec. Materials, Inc.,

No. 05-cv-2133 SBA, 2007 WL 2318903 (N.D. Cal. Aug. 13, 2007) ............................................5
10
Thomas v. Takeda Pharms. U.S., Inc.,
11 No. 1:16-cv-01566-LJO, 2017 WL 2214956 (E.D. Cal. May 19, 2017) .......................................15
12
Thurston v. FCA US LLC,
13 No. 17-cv-2183-JFW, 2018 WL 700939 (C.D. Cal. Jan. 26, 2018) ................................................2
14 Va. Sur. Co. v. Northrup Grumman Corp.,

144 F.3d 1243 (9th Cir. 1998) .........................................................................................................1
15
Vernon v. S. Cal. Edison Co.,
16 955 F.2d 1361 (9th Cir. 1992) .........................................................................................................6
17 Zenith Electronics, LLC v. Sceptre, Inc.,
18 2015 WL 12765633 (C.D. Cal. Feb. 5, 2015)............................................................................9, 11
19 Statutes
20 15 U.S.C. § 2 ......................................................................................................................................6, 7
21 15 U.S.C. § 22 ......................................................................................................................................16
22 15 U.S.C. § 26 ......................................................................................................................................16
23 Cal. Bus. & Prof. Code § 17204 ..........................................................................................................13
24 Cal. Code Civ. Proc. § 416.10 .............................................................................................................15
25
Other Authorities
26
Fed. R. Civ. P. 4 ...................................................................................................................................16
27
Fed. R. Civ. P. 9 .....................................................................................................................................8
28
v
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 Continental’s Opposition only serves to demonstrate why this case must be dismissed. It fails
3 to address critical arguments presented by Defendants and improperly tries to rely upon new “facts”
4 and theories that appear nowhere in the Complaint. Simply put, Continental is the wrong party to bring
5 this action, and it has failed to set forth the necessary allegations to state any plausible claim for relief.
6 I. CONTINENTAL LACKS ARTICLE III STANDING FOR ALL CLAIMS BECAUSE
IT DOES NOT ALLEGE ANY CONCRETE INJURY CAUSED BY THE
7 DEFENDANTS.
8 Continental alleges a purely speculative injury that is not fairly traceable to Defendants because
9 (1) Continental has not paid any non-FRAND royalties or been threatened with patent litigation; and
10 (2) Continental has not alleged that any of its OEM customers has actually enforced any indemnity
11 provision to pass non-FRAND royalties through to it. See Dkt. No. 162 (“Mot.”) at 5-6. Nothing in
12 the Opposition remedies this deficiency. Continental cites no allegations from its Complaint that
13 establish any concrete injury caused by Defendants’ conduct. Moreover, Continental improperly
14 attempts to introduce new allegations not alleged in its Complaint—allegations which cannot be
15 considered on a motion to dismiss, but which nonetheless fail to establish concrete injury.
16 First, Continental argues that its injury stems from “the fact that Defendants unlawfully refuse
17 to grant Continental a FRAND license for its products.” Dkt. No. 182 (“Opp’n”) at 2. But Continental
18 fails to show how such a refusal, even if assumed to be true, has caused it any concrete injury.1
19 Continental asserts it has been (or could be) harmed by higher royalties, Opp’n at 2-5, but Continental
20 cannot be harmed by a royalty it does not pay—nowhere does it allege that it has paid any royalty, to
21 any Defendant. To the contrary, Continental alleges that it rejected the royalty terms Avanci and other
22 Defendants proposed. FAC ¶¶ 141-143. Continental also does not allege that any Defendant has
23 threatened patent infringement litigation against it, and thus it cannot allege any injuries flowing from
24 potential liability in litigation. This distinguishes this case from those Continental cites. Cf. Va. Sur.
25 Co. v. Northrup Grumman Corp., 144 F.3d 1243, 1246 (9th Cir. 1998) (finding standing based on
26
1
While Continental has failed to establish standing on the face of the Complaint, should the Court
27 consider the filings beyond the Complaint, Continental still cannot establish standing. Continental
provides the declaration of David Djavaherian as evidence of standing, but his declaration is incorrect
28 and misleading, and does not establish that the Continental entity has even been involved in trying to
secure a patent license, much less suffering any harm. See Fourth Decl. of Lasse Holopainen.
1
1 $14,000,000 in potential liability in separate suit); Funai Elec. Co. v. LSI Corp., No. 16-CV-01210-
2 BLF, 2017 WL 1133513, at *6-8 (N.D. Cal. Mar. 27, 2017) (finding defendants’ sham litigation and
3 false FRAND commitments caused injury in the form of litigation costs); Microsoft Mobile Inc. v.
4 InterDigital, Inc., No. 15-cv-723-RGA, 2016 WL 1464545, at *3 (D. Del. Apr. 13, 2016) (same). A
5 “generalized grievance” against Defendants, without any actual injury-in-fact, is simply insufficient
6 to convey Article III standing. See Thurston v. FCA US LLC, No. 17-cv-2183-JFW, 2018 WL 700939,
7 at *3 (C.D. Cal. Jan. 26, 2018).
8 Second, Continental argues it has suffered harm because its purported inability to obtain a
9 license from Defendants “has also restricted Continental’s ability to create new products which
10 practice the standards.” Opp’n at 3. But Continental has not alleged a single product it was purportedly
11 blocked from creating. And, despite vaguely referencing lost “opportunities” as a result of not having
12 a license, Continental fails to identify any such opportunity or favored competitor(s), unlike the
13 plaintiffs in the cases it cites.2
14 Unable to allege any direct injury, Continental falls back on its allegations of indirect injury
15 relating to unidentified and unenforced indemnity provisions. Opp’n at 3-5. But such allegations of
16 speculative injury that might result from the hypothetical enforcement of an unidentified indemnity
17 provision are insufficient to withstand a motion to dismiss.3 Bell Atl. Corp. v. Twombly, 550 U.S. 544,
18 555 (2007); Thurston, 2018 WL 700939, at *3. Further, the facts pled in the Complaint demonstrate
19 that any increased indemnity costs—even if a specific indemnity claim were ever to be asserted against
20 Continental—would be fairly traceable to the intense competition for OEM contracts pled in the
21 Complaint, not to Defendants’ conduct. Mot. at 8.
22 Continental’s Opposition introduces a host of new allegations about purported demands on
23 Continental that appear nowhere in the Complaint. Opp’n at 3-4. Such extra-Complaint allegations are
24
2
Cf. Prime Healthcare Servs., Inc. v. Harris, 216 F. Supp. 3d 1096, 1108 (S.D. Cal. 2016) (finding
25 specific and concrete threat of injury where defendant’s conduct would force plaintiff to lose $843
million bid); Funai Elec., 2017 WL 1133513, at *6-8 (finding injury due to impairment of plaintiff’s
26 new product development from denial of FRAND license); Microsoft Mobile, 2016 WL 1464545, at
*3 (finding injury due to lack of access to necessary technology in the relevant markets).
27 3
See Mot. at 4-6; see FAC ¶¶ 135, 177 (indemnity obligations OEMs might demand); id. ¶ 157
28 (speculating “should Defendants succeed in procuring a non-FRAND license from those OEM
customers”) (emphasis added); id. ¶ 203 (speculating as to hypothetical indemnity obligations); see
also id. ¶¶ 164, 185, 195 (conclusory assertions of injury).
2
1 plainly improper on a motion to dismiss and should be disregarded. See, e.g., Schneider v. Cal. Dep’t
2 of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); Lesnik v. Se, No. 16-CV-01120-LHK, 2018 WL
3 4700342, at *8 (N.D. Cal. Oct. 1, 2018). And, even if Continental were permitted to raise such
4 allegations in an amended complaint, the proposed supplementation would still fail to identify any
5 specific instance in which there was: (1) actual enforcement of any indemnity provision against
6 Continental with respect to non-FRAND royalties that an OEM agreed to pay; (2) any preclusion of
7 Continental developing any new products; (3) the deprivation of any licenses by Defendants to any
8 Continental customers covering Continental and other upstream suppliers; or (4) any other concrete
9 and non-speculative harm to Continental. Accordingly, leave to amend should not be granted because
10 it would be futile. Perez v. State Farm Mut. Auto. Ins. Co., No. C 06-01962 JW, 2012 WL 3777162,
11 *3 (N.D. Cal. Aug. 29, 2012) (when proposed amended complaint “contains little more than bare
12 assertions” of antitrust violations and would likely be dismissed for failure to state a claim if filed,
13 amendment is futile).
14 II. CONTINENTAL HAS NOT ADEQUATELY ALLEGED AN ANTITRUST CLAIM.
15 A. Continental Has Not Alleged Antitrust Injury.
16 Even if Continental had Article III standing, it would still fail to allege antitrust injury because
17 (1) it did not directly participate in the allegedly restrained market; and (2) its purported harm flows
18 from competition with other suppliers in the TCU component supply market and the automotive
19 OEMs’ exercise of bargaining power, not from any alleged restraint of trade. Mot. at 8-9. Continental
20 responds to these arguments with examples of claimed injury not alleged in the Complaint that
21 purportedly relate to instances where Continental suffered effects from not being able to get a FRAND
22 license. Opp’n at 4, 6-7.
23 Continental’s argument proves Defendants’ point: any alleged injury Continental has suffered
24 is too remote because it is the result of a pass-through after negotiations with a customer. Indeed, the
25 Opposition asserts that Continental is alleging a “scheme to extort the OEMs”; any injury to
26 Continental would only result from those OEMs passing on some or all of an allegedly non-FRAND
27 royalty to Continental after negotiations in a competitive market. Mot. at 7; Opp’n at 7.
28
3
1 Continental tries to overcome this defect by arguing that remoteness “has little application to
2 equitable actions,” and that Continental is “a participant in the market for cellular SEP licensing”
3 where it alleges Defendants restrain competition “because its products use the standards.” Opp’n at 6.
4 Continental is wrong, as illustrated by Lorenzo v. Qualcomm Inc., which involved a claim for
5 injunctive relief under the Clayton Act. 603 F. Supp. 2d 1291, 1301 (S.D. Cal. 2009). There, the
6 plaintiff brought an indirect purchaser action claiming that the defendant’s licensing practices
7 indirectly caused the plaintiff to pay supra-competitive prices which rippled through the supply chain.
8 Id. The court found that, although the plaintiff’s indirect purchaser status alone did not preclude
9 antitrust standing, the passed-through injury was too remote from the alleged antitrust violations in
10 the upstream market to support standing for injunctive relief. Id. Here, Continental alleges that Avanci
11 may license to OEMs (in the “cellular SEP licensing” market) and certain OEMs may seek
12 reimbursement or indemnification rights for “excessive” licensing costs from Continental in the TCU
13 market. FAC ¶ 135. Like in Lorenzo, such an injury claim—in a different market—is simply too
14 remote and uncertain to satisfy antitrust injury requirements. See 603 F. Supp. 2d at 1301; see also
15 Am. Ad Mgmt., Inc. v. Gen. Tel. Co., 190 F.3d 1051, 1057 (9th Cir. 1999).
16 B. Continental’s Section 1 Claim Should Be Dismissed Because It Fails to Allege an
Agreement that Restrains Trade.
17
Defendants also moved to dismiss Continental’s Section 1 antitrust claim because (1) the
18
Avanci agreement itself does not restrain trade; and (2) Continental’s bare allegations of a side
19
agreement among Defendants fails to meet the Twombly standard. Mot. at 9-12. Continental now
20
abandons the “side agreement” theory and focuses solely on the argument that the Avanci agreement
21
constitutes a group boycott.4 Compare FAC ¶ 171 with Opp’n 8-12. This new argument fails for
22
multiple reasons.
23
First, the Avanci agreement does not restrain trade. Properly-structured patent pools—like the
24
Avanci platform—are procompetitive, and patent pools cannot be antitrust violations where the
25
4
26 Any alleged conspiracy beyond the four corners of the Avanci agreement must meet the Twombly
standard, 550 U.S. 557, 565 n.10, which requires a “specific time, place, or person involved in the
27 alleged conspiracies.” There is no exception for a group boycott claim. Bay Area Surgical Mgmt. LLC
v. Aetna Life Ins. Co., 166 F. Supp. 3d 988, 995 (N.D. Cal. 2015) (dismissing boycott claim because
28 it failed to allege “who, did what, to whom (or with whom), where, and when”). Continental’s
opposition does not address this requirement.
4
1 potential licensee “had the opportunity to license independently from individual owners.” Sumitomo
2 Mitsubishi Silicon Corp. v. MEMC Elec. Materials, Inc., No. 05-cv-2133 SBA, 2007 WL 2318903, at
3 *15 (N.D. Cal. Aug. 13, 2007). Thus, Continental must plausibly allege an agreement among
4 Defendants to refuse individual licensing outside the pool—otherwise there is no restraint. Id. Here,
5 the Avanci agreement expressly preserves the rights of each patent owner to license independently of
6 Avanci to any licensee on any terms that it chooses. Dkt. No. 162-1, Ex. A (“MLMA”) § 4.3. Tellingly,
7 Continental admitted in the Complaint that it engaged in separate negotiations with various Defendants
8 and received an individual license offer from at least Conversant. Mot. at 11-12.5 These allegations
9 undercut Continental’s claim that there was an agreement by Defendants to ignore the terms of the
10 MLMA and to refuse to engage in individual licensing discussions.
11 Continental argues that the Avanci agreement does not provide a “realistic” opportunity to
12 obtain patents from individual license holders. Id. at 10 (citing Nero AG v. MPEG LA, L.L.C., No. 10-
13 CV-3672-MRP-RZ, 2010 WL 4366448, at *6 (C.D. Cal. Sept. 14, 2010)). But Continental’s
14 Complaint does not advance any facts to support this bald assertion. As Nero makes clear, it is the
15 plaintiff’s burden to come forward with factual allegations on this issue. 2010 WL 4366448, at *6.
16 There, the court found the plaintiff’s conclusory allegation that there was no “realistic” opportunity to
17 license amounted to a mere “hypothesis” that individual licenses were not available. Id. The Nero
18 court thus dismissed the claim and required the plaintiff to specifically plead that it had been denied
19 the opportunity to license the patents at issue individually. Id. Similarly, here, Continental fails to
20 allege any facts in its Complaint to demonstrate that the Avanci agreement forecloses a realistic
21 opportunity to individually license. This failure is glaring where, as here, the agreement provides for
22 such licensing (§ 4.3), and Continental’s allegations show that several Defendants offered to license
23 Continental. FAC ¶¶ 142, 143. As to the remaining Defendants, Continental has failed the
24 requirements set out in Nero to actually make an effort to seek out licenses for the patents it needs.
25
5
26 Continental also asserts that “Sharp has failed to make any license offer to Continental, despite
Continental’s request.” Opp. at 10 n.7. Continental fails to disclose that it did not make this request
27 until after it filed this lawsuit, or that Continental has repeatedly refused since then to provide any of
the basic information Sharp has requested from Continental in order to prepare an offer. Despite
28 Continental’s refusals, Sharp has now made a FRAND offer to Continental based on Sharp’s own
assumptions.
5
1 Continental’s theory is further confused by the non-sequitur that the authorization by patent
2 owners to Avanci to license on a group basis only within a certain field of use (vehicles) and not within
3 others (such as TCUs) somehow constitutes “an express boycott agreement targeting suppliers like
4 Continental.” Opp’n at 9. The Complaint alleges zero facts to support this conclusory assertion, which
5 contradicts the plain terms of the Avanci agreement. Similarly, while Continental makes the assertion
6 that Section 4.4 of the MLMA is “irreconcilable with individual licensing as a practical matter”
7 because patent-owner participants “have little practical incentive to individually license their SEPs,”
8 (Opp’n at 9-10), the essential premise of this claim—that there would be a “double royalty”
9 disincentive—is undercut by Section 4.4, which on its face expressly provides a mechanism to prevent
10 any such double royalties. A mechanism like this is a pro-competitive feature of a properly-structured
11 patent pool, like the Avanci platform. Continental cannot plausibly support a group boycott claim
12 where the very agreement at issue preserves the right of each patent owner to engage in such individual
13 licensing without any economic penalty.
14 In short, nothing that Continental has alleged (or seeks to add to its allegations) changes the
15 fact that Continental has the exact same opportunity to license individually from the Defendants that
16 it would have if the Avanci agreement did not exist. In such a situation, the Avanci agreement cannot
17 be said to restrain trade in any way, let alone constitute a group boycott.
18 C. Continental Has Not Sufficiently Pled the Exclusionary Conduct Required for a
Section 2 Sherman Act Claim.
19
Defendants moved to dismiss Continental’s Section 2 antitrust claims because Continental has
20
failed to adequately allege any exclusionary conduct and failed to plausibly allege any conspiracy to
21
monopolize. Mot. at 13-16. Continental’s entire Section 2 argument is based on the Third Circuit’s
22
decision in Broadcom Corp. v. Qualcomm, which held that a breach of a FRAND commitment may
23
constitute part of the actionable conduct under Section 2 in narrowly circumscribed circumstances.
24
501 F.3d 297, 310 (3d Cir. 2007). The Broadcom decision still has not been endorsed by any other
25
Circuit, and its “hold-up” rationale is outdated in today’s legal landscape because courts generally
26
recognize that FRAND commitments are enforceable by contract, not antitrust law.6 Regardless,
27
28 6
See Vernon v. S. Cal. Edison Co., 955 F.2d 1361, 1368 (9th Cir. 1992) (“[A] claimed breach of
contract by unreasonable conduct, standing alone, should not give rise to antitrust liability.”).
6
1 Continental cannot show that it has adequately alleged a Section 2 claim even under the Broadcom
2 opinion itself.
3 Broadcom held that a Section 2 claim requires showing both “a patent holder’s intentionally
4 false promise to license essential proprietary technology on FRAND terms” and reliance by the SSO
5 on that promise, in addition to the subsequent breach of that promise. Broadcom, 501 F.3d at 314;
6 Apple Inc. v. Samsung Elecs. Co., No. 11-cv-01846-LHK, 2011 WL 4948567, at *4 (N.D. Cal. Oct.
7 18, 2011). The key elements of this test are (1) deceptive conduct, and (2) reliance by the SSOs on
8 that conduct to incorporate a technology into the standard. Continental fails to allege facts satisfying
9 either element.
10 1. Continental Has Not Adequately Alleged Deceptive Conduct.
11 First, Continental argues that it need not allege any misrepresentation at all—even though
12 Broadcom indisputably requires such allegations—because it claims that it can state a Section 2 claim
13 by merely alleging maintenance of monopoly power based on Defendants’ alleged reneging of their
14 FRAND commitments. Opp’n at 13. In making this argument, Continental urges this Court to expand
15 the Broadcom decision to every single FRAND rate dispute, regardless of any deceptive conduct to
16 an SSO. Id. Under Continental’s unprecedented theory, any time a licensor offers a license that the
17 licensee does not believe is FRAND, the licensor has committed a monopolization offense
18 (notwithstanding that the FRAND commitment is enforceable as a contract). It is not surprising that
19 Continental cites no authority in support, because no court has ever adopted such an expansive theory
20 of Section 2 liability.7
21 Alternatively, Continental argues that the Complaint’s allegations establish deceptive
22 conduct—including that every Defendant made intentionally false promises to the SSO about every
23 patent (i.e., thousands of intentionally false promises)—and that the Court should reject Defendants’
24 challenges to these allegations, no matter how threadbare or implausible, because the allegations must
25
7
26 Moreover, this is not even the theory of Section 2 liability asserted in the Complaint. The Complaint
alleges that Defendants violated Section 2 by making material misrepresentations to the SSOs. See
27 FAC ¶ 182. The Court should refuse to consider this brand new liability theory on this ground alone.
See Alta Devices, Inc. v. LG Elecs., Inc., No. 18-cv-00404-LHK, 2019 WL 1924992, at *6 (N.D. Cal.
28 Apr. 30, 2019).
7
1 be taken as true at the motion to dismiss stage. See Mot. at 15 (noting that the Conversant and Optis
2 Defendants are not even alleged to have existed at the time the relevant standards were adopted, and
3 that the Avanci Defendants do not hold any patents and thus could not have made any commitments
4 to any SSO).8 Continental is wrong. As this Court has held, Continental’s misrepresentation
5 allegations must meet Rule 9(b) and, at a minimum, set forth when the allegedly false declarations
6 were made to the SSOs, by whom, and for which patents. Apple, 2011 WL 4948567, at *4. Continental
7 fails to make any such allegations, which are necessary to provide “notice to defendants of the specific
8 fraudulent conduct against which they must defend.” Bly-Magee v. Cal., 236 F.3d 1014, 1018 (9th Cir.
9 2001). Without such allegations, Defendants have no way of knowing which of thousands of patents
10 Continental actually is claiming were the subject of false representations to which SSO and by whom.
11 Defendants cannot fairly defend against such generalized and amorphous claims.
12 2. Continental Has Not Alleged Reliance By Any SSO.
13 Broadcom also requires reliance by SSOs on an allegedly false statement to incorporate a
14 defendant’s patent into the standard. That showing is required to prove exclusionary conduct, as
15 described by the D.C. Circuit in Rambus Inc. v. F.T.C., 522 F.3d 456 (D.C. Cir. 2008) and this Court
16 in Apple v. Samsung, No. 11-cv-01846-LHK, 2011 WL 4948567, at *4 (N.D. Cal. Oct. 18, 2011).
17 Here, Continental fails even to identify the SSOs at issue, let alone what alternative technologies could
18 have been substituted for the Defendants’ technology in the standards (or that the standards could have
19 worked without any such technology). Simply put, if an SSO would have adopted the same standard
20 without the alleged “false FRAND promise,” then the false FRAND promise caused no exclusion.
21 Rambus, 522 F.3d at 456.
22 D. Continental Does Not Adequately Allege a Conspiracy to Monopolize.
23 Defendants detailed the ways in which Continental failed to plead facts supporting any of the
24 elements of a conspiracy to monopolize. Mot. at 16. Continental argues that it has satisfied the first
25 element (existence of a conspiracy) based on a single paragraph of its Complaint, in which Continental
26 makes the wholly conclusory allegation that Defendants conspired to use Avanci as a tool to exploit
27
8
Continental illogically argues that the Court must accept its false allegations that Conversant and
28 Optis could have made representations to the SSOs, Opp’n at 15 fn. 11, even though the Complaint
itself notes that both entities took their patents by assignment.
8
1 each Defendant’s separate monopoly. Opp’n at 17 (citing FAC ¶ 192). This allegation must be
2 disregarded under Twombly because it is unsupported by facts such as the “specific time, place, or
3 person involved in the alleged conspiracies.” 550 U.S. at 557, 565 n.10; Mot. at 11, 16. Continental’s
4 failure to respond to this argument is a concession that its allegations lack the requisite factual detail
5 to “nudge[] [its] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. This
6 alone is fatal to its conspiracy to monopolize claim.
7 Further, Continental has not shown that any single entity would gain monopoly power from
8 the alleged conspiracy. See Mot. at 16-17. Continental argues that its allegations are sufficient under
9 Zenith Electronics, LLC v. Sceptre, Inc., in which the court found that plaintiffs stated a conspiracy to
10 monopolize where they alleged that defendants conspired to license their SEPs on non-FRAND terms.
11 Case No. LA CV14-05150 JAK (AJWx), 2015 WL 12765633, at *7 (C.D. Cal. Feb. 5, 2015); see
12 also Cascades Comput. Innovation LLC v. RPX Corp., No. 12-cv-01143-YGR, 2013 WL 316023, at
13 *7 (N.D. Cal. Jan. 24, 2013) (where “[t]he alleged conspiracy was not to negotiate a license . . . , even
14 a spurious and bad faith offer, is not conduct consistent with participation in the conspiracy as pled.”).
15 But, here, Defendants retain and exercise the right to independently license their patents, which
16 negates the allegation of a conspiracy. Thus, unlike in Zenith, there is no way that pooling Defendants’
17 SEPs creates monopoly power in any company.
18 E. The Complaint Does Not Adequately Allege Any Relevant Market.
19 Defendants also moved to dismiss all of Continental’s antitrust claims because Continental
20 failed to adequately allege any relevant markets in which competition could be harmed. Mot. at 17-
21 20. As an initial matter, this Court can dismiss Continental’s antitrust claims for failure to state a
22 relevant market at the pleading stage, contrary to Continental’s arguments. See, e.g., Rick-Mik Enters.
23 v. Equilon Enters., LLC, 532 F.3d 963, 972-73 (9th Cir. 2008) (finding allegations of market power
24 insufficient where plaintiff failed to plead any facts relating to “the amount of power or control” in the
25 relevant market); see also Seirus Innovative Accessories, Inc. v. Cabela’s, Inc., No. 09-CV-102 H
26 (WMC), 2010 WL 6675046, at *3 (S.D. Cal. Apr. 20, 2010).
27
28
9
1 1. Technology Markets
2 Continental concedes that it has not alleged relevant technology markets with the requisite
3 level of detail but claims that doing so would be impossible because Avanci does not provide a
4 comprehensive list of the essential patents it licenses. Opp’n at 18-19. This argument is a red herring.
5 Both the declared essential patents and the standards are publicly available. Avago Techs. Fiber Ip
6 Sing. Pte v. IPtronics, Inc., No. 10-cv-02863 EJC (PSG), 2012 U.S. Dist. LEXIS 151037, at *7 (N.D.
7 Cal. Oct. 19, 2010). Continental cites no case law that supports its assertion that it can defer defining
8 the market because it does not want to review publicly available information. This precise argument
9 was rejected in Nero. 2010 WL 4366448 at *8 (“This information is in the public domain.”). To state
10 an antitrust claim in a technology market, Continental needs at a minimum to identify the relevant
11 technology market and the patents that are valid and infringed that help define that market. See Apple
12 Inc. v. Samsung Elecs. Co., No. 11-cv-01846-LHK, 2011 WL 4948567, at *4 n.6 (N.D. Cal. Oct. 18,
13 2011) (unless a patent is valid and essential, there are likely no “antitrust implications” to the licensing
14 dispute because “the ‘lock-in’ effect of the standard setting does not exist”).
15 2. Licensing Markets
16 Continental’s “licensing market” allegations make no economic sense because the holders of
17 different complementary standard essential patents do not compete with each other; a license to one
18 SEP in a particular standard is not a substitute for a license to another SEP in the same standard.
19 Continental urges the Court to reject Defendants’ argument because it claims that there is substantial
20 case law establishing that one SEP owner’s licensing behavior affects what other SEP owners can
21 charge. Opp’n at 19. But Continental points to nothing other than Section III.D of its brief (about
22 conspiracy to monopolize) and allegations in its Complaint, neither of which contains the promised
23 case law. As explained in Defendants’ Motion, the Defendant Licensors license distinct SEPs, so they
24 cannot compete in any single “licensing market.” Mot. at 16-17. As such, they cannot conspire to
25 eliminate competition in such a market.
26 3. Baseband Market
27 Finally, Continental defends its baseband processor market allegations on the grounds that it
28 has alleged that Qualcomm, a major baseband processor manufacturer, is a key patent owner in the
10
1 Avanci platform. Continental argues that the fact that no Defendant in this action was itself engaged
2 in a particular business “does not perforce exclude any claim that it conspired with another company
3 that was so engaged.” Opp’n at 20. But Continental’s Complaint never alleges that any Defendant
4 entered into a conspiracy with Qualcomm that would satisfy Twombly’s plausibility standard.
5 III. CONTINENTAL FAILS TO PLAUSIBLY ALLEGE ANY OTHER CLAIMS.
6 A. Continental Has Not Pled a Promissory Estoppel Claim.
7 According to the Complaint, the only SSO that Nokia, Conversant, Sharp, and PanOptis all
8 participate in is the European Telecommunications Standards Institute (ETSI). See FAC ¶¶ 87, 89, 92,
9 93, 95, 96. Continental concedes that ETSI is governed by French law, which does not recognize the
10 doctrine of promissory estoppel. Opp’n at 20; Mot. at 20-21. Continental argues, however, that
11 Defendants “ignore that Continental’s claim is also based on FRAND commitments to American SSOs
12 like the ATIS [Alliance for Telecommunications Industry Solutions] and TIA [Telecommunications
13 Industry Association], which are not governed by French law.” Opp’n at 20. Far from ignoring those
14 SSOs, Defendants’ Motion also raised Continental’s failure to allege that any Defendant made any
15 clear and unambiguous commitment to ATIS or TIA. Mot. at 21. Continental’s Opposition stands
16 mute in response.
17 While Continental cites authorities in which promissory estoppel claims have survived motions
18 to dismiss, the allegations challenged in those cases included claims that the plaintiffs had suffered
19 injury by their reasonable reliance on identified FRAND promises (in the form of an infringement
20 proceeding). See e.g., Microsoft Corp. v. Motorola, Inc., No. 10-cv-1823-JLR, 2011 WL 11480223,
21 at *1 (W.D. Wash. June 1, 2011) (“Motorola . . . filed suit against Microsoft for patent infringement”).9
22 That is not the case with Continental, which has not been sued for infringement, and it has not
23 identified any specific promises on which it relied to its detriment. Rather, Continental affirmatively
24 alleges that it has practiced the standard and sold products incorporating the standardized technology
25
26
27 9
Zenith Elec., 2015 WL 12765633, at *1 (noting plaintiffs’ infringement allegations); Realtek
Semiconductor Corp. v. LSI Corp., No. 5:12-cv-03451-RMW, 2012 WL 4845628, at *6 (N.D. Cal.
28 Oct. 10, 2012) ( LSI “filed a complaint with the U.S. International Trade Commission (“ITC”) against
Realtek and other respondents alleging, inter alia, that Realtek infringed the ’958 and ’867 patents.”).
11
1 to its customers unimpeded—free from threats of exclusion or infringement litigation by any of the
2 Defendants. As such, it cannot state a claim for promissory estoppel against any of the Defendants.
3 Moreover, Continental cannot state a promissory estoppel claim against Avanci for the
4 additional reason that Avanci holds no patents and made no promises to any SSOs. Mot. at 21. As for
5 the statement on Avanci’s website that Continental cites, Continental does not allege that it even saw,
6 let alone relied upon, that statement. See Opp’n at 21 n.14. Nor does Continental cite any authority to
7 support the contention that a general public statement of principles could constitute a sufficiently
8 detailed promise to support a promissory estoppel claim. See Glen Holly Entm’t, Inc. v. Tektronix,
9 Inc., 100 F. Supp. 2d 1086, 1101-02 (C.D. Cal. 1999) (holding that a general public statement is not
10 sufficient for a promissory estoppel claim).
11 B. Continental’s Declaratory Judgment Claim Is Not Ripe.
12 The undisputed fact that Continental has been practicing the standard and selling products
13 incorporating the standardized technology without threat or interference by Defendants also dooms its
14 declaratory judgment claim. As the Supreme Court has recognized, the Declaratory Judgment Act was
15 designed to ameliorate the dilemma a plaintiff would face if forced to choose between “bet[ting] the
16 farm, or . . . risk[ing] treble damages and the loss of 80 percent of its business before seeking a
17 declaration.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007) (quoting Abbott Labs. v.
18 Gardner, 387 U.S. 136 (1967)). Continental faces no such dilemma. It has not been denied access to
19 the patented technology, nor has its right to practice that technology been put at risk via an
20 infringement litigation or injunction proceeding. Accordingly, Continental’s declaratory judgment
21 claim is not ripe. Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122-23 (9th Cir. 2010)
22 (“The central concern [of the ripeness inquiry] is whether the case involves uncertain or contingent
23 future events that may not occur as anticipated, or indeed may not occur at all.”).
24 C. Continental Has Not Stated a Claim For Specific Performance For Any Alleged
Breach of Contract.10
25
Defendants demonstrated that Continental’s request for specific performance was improper
26
because Continental failed to identify what contract it seeks to enforce, under what law, and the source
27
10
28 The Optis Entities do not join this section, but agree with the result. Further, the Optis Entities
respectfully submit that because this Court does not sit in diversity jurisdiction, it is a court of
12
1 of the Court’s jurisdiction to dictate the terms and conditions of a license as to foreign patents. Mot.
2 at 22;11 Doe 1 v. Xytex Corp., No. C 16-02935 WHA, 2017 WL 1112996, at *7 (N.D. Cal. Mar. 24,
3 2017). Continental’s Opposition ignores these critical questions in its contract claims which make it
4 impossible for Continental to pursue its specific performance claims.
5 Moreover, to the extent that Continental’s contractual complaint is that Avanci will not license
6 to Continental on the terms it desires, so that the Court should impose a joint license via the Avanci
7 platform license on the terms Continental asserts are FRAND, this claim fails on multiple levels. First,
8 there can be no contract claim against Avanci because Avanci owns no patents and thus made no
9 contractual commitments to any SSOs that Continental can invoke as a third-party beneficiary. Mot.
10 at 21. Second, as the Complaint recognizes, Avanci’s patent-owner participants have authorized
11 Avanci to act as their limited joint licensing agent for the Vehicles Licensing Program pursuant to the
12 terms and conditions of the Avanci agreement. Mot. at 26; see also MLMA at JX0116-003; FAC ¶
13 141. Thus, it is not possible for Continental to obtain an order from this Court requiring Avanci to
14 grant a license in a different field of use or on different terms, because Avanci has no legal right to
15 grant such a license.12
16 D. Continental’s UCL Claim Should Be Dismissed.
17 The UCL requires that the plaintiff must have “lost money or property as a result of the unfair
18 competition.” Cal. Bus. & Prof. Code § 17204. Yet, nothing in the Complaint indicates that
19 Continental has been unable to sell its TCUs (indeed, the Complaint characterizes Continental as a
20
21 limited jurisdiction and therefore should not reach issues of FRAND licensing of worldwide patent
rights. This would be in contrast to a situation where the Court has both federal question original
22 jurisdiction (e.g., due to a claim of patent infringement) and diversity jurisdiction (such that it may
23 act as a court of general jurisdiction on state law claims).
11
Conversant writes (alone) to clarify its position: While the Motion suggested that the Court lacks
24 authority to dictate the terms of a license for foreign patents, where the Court otherwise has jurisdiction
over the parties and subject matter (e.g. in the context of an infringement action), the Court could
25 declare the terms of a global FRAND license as remedy.
12
26 Agents may not act beyond the authority their principal grants them. Official Comm. of Unsecured
Creditors v. City Nat’l Bank, N.A., No. C09-03817 MMC, 2011 WL 1832963, at *5-6 (N.D. Cal. May
27 13, 2011). Moreover, as the Complaint concedes, there is a large number of patent-owner participants
in the Avanci platform that are not defendants in this action, and therefore it would be impossible for
28 Continental to obtain an order from the Court binding those non-defendant patent owners to grant
Avanci the authority to issue Continental a license on mandated terms. See FAC ¶ 107 (identifying 20
non-Defendant patent-owner participants in the Avanci platform).
13
1 leading provider of such units), or that it has suffered monetary damages (it seeks no such damages in
2 this case). In short, Continental makes no plausible allegation of lost money or property. In addition,
3 as noted in Defendants’ Motion, a non-resident plaintiff may not invoke the UCL where none of the
4 alleged misconduct occurred in California. Norwest Mortg., Inc. v. Superior Court, 85 Cal. Rptr. 2d
5 18, 23-24 (Cal. App. 1999). While Continental refers to its Opposition to the Motion to Transfer, that
6 brief concedes (through non-denial) that it is a non-resident of California and points to no alleged
7 misconduct in this state. See Dkt. No. 157.
8 IV. THE COURT SHOULD ALSO DISMISS MANY OF THE CLAIMS AGAINST
INDIVIDUAL DEFENDANTS FOR ADDITIONAL REASONS.
9
A. Nokia Corp. and APIL Should Be Dismissed for Lack of Personal Jurisdiction.
10
In its Opposition, Continental makes no attempt to refute Nokia Corp.’s declaration, which
11
demonstrates that Nokia Corp. does not have contacts with the United States sufficient to confer
12
personal jurisdiction. See Second Holopainen Decl., Dkt. 162-2. Instead, Continental erroneously
13
claims personal jurisdiction exists because Nokia Corp. supposedly admitted in Defendants’ Transfer
14
Motion that it was subject to personal jurisdiction in any federal court. Opp’n at 26. This is incorrect—
15
Nokia Corp. stated that it is subject to personal jurisdiction in Texas only to the same extent it is subject
16
to that jurisdiction in California. See Dkt. 110 at 9. It also specifically reserved the right to assert lack
17
of personal jurisdiction as a defense. Id. at n.14. Continental’s unsupported assertions that Nokia Corp.
18
has sufficient contacts with the U.S. is refuted by the materials submitted in connection with
19
Defendants’ Motion to Transfer. Dkts. 110-1, 110-2, 110-3.
20
Similarly, Continental does not refute any of the facts about APIL’s lack of presence in the
21
United States set forth in the APIL declaration. See generally Fasell Decl., Dkt. 162-4. Instead, it
22
points only to the fact that New York law governs the Avanci agreement signed by APIL with a U.S.
23
arbitration provision. But a U.S. choice of venue or law provision in a contract is insufficient to give
24
rise to personal jurisdiction, especially in an action not arising from a claimed breach of that contract.
25
Advideo, Inc. v. Kimel Broad. Grp., Inc., 727 F. Supp. 1337, 1340 (N.D. Cal. 1989).
26 B. The Non-California Defendants Should Be Dismissed for Lack of Personal
Jurisdiction If the Court Dismisses the Antitrust Claims.
27
Continental argues that personal jurisdiction is proper for the antitrust claims based on the
28
national contacts of various non-California Defendants, and therefore also proper for all of the state
14
1 law claims against these Defendants which arise out of the same operative facts. Opp.’n at 28. If the
2 Court dismisses the antitrust claims, it should also dismiss the state court claims against these
3 Defendants based on their insufficient contacts with California.13 Continental has no other basis to
4 assert personal jurisdiction against these Defendants.
5 C. Sharp Cannot Be Properly Served Through Its U.S. Subsidiary in this Case.
6 Continental maintains that its service on Sharp Corporation (“Sharp Japan”) through its U.S.
7 subsidiary Sharp Electronics Corporation (“Sharp USA”) was proper. Opp’n at 29. As set forth in
8 Defendants’ Motion (at 26-27), Continental is wrong. Sharp USA is simply not Sharp Japan’s general
9 manager with respect to the licensing of patents owned by Sharp Japan—indeed, Sharp USA is not
10 involved with any patent licensing at all. See Mot. at Fox Decl.¶ 5.14 Although Continental cites
11 evidence to show that Sharp USA is Sharp Japan’s “U.S. sales and marketing subsidiary,” this is
12 exactly the sort of relationship that the cases cited by Continental hold is not sufficient. See Thomas
13 v. Takeda Pharms. U.S., Inc., No. 1:16-cv-01566-LJO, 2017 WL 2214956, at *2 (E.D. Cal. May 19,
14 2017) (“Plaintiff claims the [defendant’s] subsidiaries together constitute [defendant’s] ‘sales agents
15 and distributors in the United States, including California’ . . . . This is simply not enough information
16 to conclude that the subsidiaries qualify as [defendant’s] general managers under C.C.C.P. §
17 416.10.”).15 Consequently, Sharp Japan can only be properly served under the Hague Convention in
18 this case, and Continental should be required to follow those procedures. Notably, that is what
19 Continental’s German parent company, Continental AG, has insisted when others have tried to serve
20 it through its U.S. subsidiaries, including in this case. See Dkt. 95-1 at 3 (Letter from S. Korniczky to
21 13
Defendants disagree that any further briefing on the California contacts of the non-California
22 Defendants is necessary. Continental chose not to address Defendants’ arguments and evidence in its
Opposition, so it should not get another opportunity in any further briefing.
23 14
Cf. Khachatryan v. Toyota Motor Sales, U.S.A, 578 F. Supp. 2d 1224, 1227 n.1 (C.D. Cal. 2008)
24 (cited by Continental) (“By way of hypothetical, assume that Toyota had a subsidiary in California
whose exclusive business was importing koi fish. That subsidiary could hardly be considered the
25 general manger of Toyota’s American automotive activities.”).
15
26 Continental also argues that Section 416.10(b) does not require that the “general manager” to be
served be located in California, but that is wrong. See LA Gem & Jewelry Design, Inc. v. Gold Star
27 Jewelry PVT Ltd., No. CV 14-4807 DSF, 2014 WL 10401936, at *2 (C.D. Cal. Aug. 11, 2014)
(reviewing Section 416.10(b) and holding service was improper because there was no evidence that
28 the subsidiaries served as defendant’s general managers “in California.”).
15
1 Judge Koh, stating that service of a German court order “by Nokia’s German counsel upon Continental
2 in the United States is ineffective because it circumvents formal requirements under international laws
3 of the Hague Convention.”) (emphasis added); see also Orion Tire Corp. v. General Tire, Inc., No.
4 92-cv-2391, 1992 WL 295224, at *1 (C.D. Cal. Aug. 17, 1992) (arguing that service on Continental
5 AG through a US subsidiary was improper). There is no reason why Sharp Japan should be treated
6 differently.16
7 D. Continental ’s Response Confirms That the Optis Entities Should Be Dismissed.
8 Venue: Continental argues that under 15 U.S.C. § 26, “venue is [allegedly] proper in any
9 district having jurisdiction over the parties.” Opp’n at 30. But 15 U.S.C. § 22 is the only venue statute
10 that Continental has pled against the Optis Entities.17 FAC ¶ 66. The Supreme Court has long made
11 clear that 15 U.S.C. § 26 must be read in conjunction with 15 U.S.C. § 22 such that antitrust defendants
12 may only be sued “in the judicial district where they are inhabitants or where they may be found or
13 transact business.” Georgia v. Pennsylvania R. Co., 324 US 439, 465-66 (1945) (permitting Georgia
14 to invoke the Supreme Court’s original jurisdiction because it was not apparent that all defendants
15 “could be found in some convenient forum” under Clayton Act). This is precisely the position the
16 Optis Entities took in the Motion to Dismiss. Mot. at 28; KM Enters., Inc., 725 F.3d at 730. Further,
17 as Continental acknowledges, 15 U.S.C. § 26 relates only to injunctive relief. Continental has not
18 provided any reasoning why venue is proper for non-injunctive counts.
19 No Case or Controversy: Continental states that it “vigorously disputes” allegations made by
20 the Optis Entities regarding the parties’ dealings. Opp. at 30. But Continental does not dispute that (1)
21 Continental went silent for more than 1 year after the Optis Entities informed Continental that they
22 did not have a licensing program in CDMA2000, the only cellular standard mentioned in its original
23 16
Continental’s request for alternative service pursuant to Rule 4(f)(3) should be denied. A plaintiff
24 seeking this relief must show that “the particularities and necessities of a given case require [such]
alternative service.” Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002);
25 see also Richmond Techs., Inc. v. Aumtech Bus. Sols., No. 11-cv-02460-LHK, 2011 WL 2607158, at
*13 (N.D. Cal. July 1, 2011) (permitting alternative service where plaintiff faced a threat of
26 “irreparable harm” and “presented issues that require resolution with greater urgency than the Hague
27 Convention process can accommodate”). There is no such showing here.
17
15 U.S.C. § 22 is the only personal jurisdiction provision pled by Continental. FAC ¶ 59. 15 U.S.C.
28 § 22 “provides for both personal jurisdiction and venue in the case of a corporate defendant” under
Clayton Act. KM Enters., Inc. v. Glob. Traffic Techs., Inc., 725 F.3d 718, 724 (7th Cir. 2013).
16
1 contact letter; (2) Zonar never informed Optis that it was affiliated with Continental and went silent
2 after the Optis Entities asked its Seattle-based outside counsel to coordinate within the firm; and (3)
3 Continental has never at any point in time through the present identified any applicable cellular
4 standards that it practices other than CDMA2000, never proposed any licensing terms, and the Optis
5 Entities never refused to license it. Dkt. 102-6 [Warren Decl.] at ¶¶ 5-7; Mot. at 29. Instead,
6 Continental plays word games, claiming that “any applicable SEPs” in its litigation-inspired
7 correspondence means it needs a license beyond CDMA2000. Opp’n at 30. This is a game. The Optis
8 Entities do not know what products Continental sells, and they do not know what standards
9 Continental uses. After this litigation was filed, the Optis Entities have repeatedly asked Continental
10 to begin a good faith process, and it has been met with nothing but litigation gamesmanship. See
11 Petersen Decl. Continental also implies that a case and controversy exists because Optis supposedly
12 “was harassing Continental’s customers for a license” and that harassment would continue to exist as
13 long as the Optis Entities remain a member of Avanci. Opp’n at 30. Even if this were the case,
14 Continental lacks standing to assert claims on behalf of its non-party customers. See Pony v. Cnty. of
15 L.A., 433 F.3d 1138, 1146 (9th Cir. 2006) (plaintiff may not raise claims based on the rights of another
16 party). In other words, the alleged injury by a third party does not create a case or controversy between
17 Continental and the Optis Entities. Given these undisputed facts, there is nothing “real” about the
18 alleged disputes between Continental and the Optis Entities.
19 V. CONCLUSION
20 For all the reasons set forth herein, the Complaint should be dismissed in its entirety.
21 DATED: October 25, 2019
22
23 WINSTON & STRAWN LLP ALSTON & BIRD LLP
24 /s/ Jeffrey L. Kessler /s/ Ryan W. Koppelman

Jeffrey L. Kessler (pro hac vice) Ryan W. Koppelman (SBN 290704)
25 [email protected] ALSTON & BIRD LLP
Aldo A. Badini (SBN 257086) 950 Page Mill Road
26 [email protected] Palo Alto, CA 94304
Susannah P. Torpey (pro hac vice) Telephone: (650) 838-2000
27 Facsimile: (650) 838-2001
[email protected]
28 WINSTON & STRAWN LLP [email protected]
200 Park Avenue
17
New York, NY 10166-4193 Teresa T. Bonder (SBN 321558)

1
Telephone: (212) 294-6700 ALSTON & BIRD LLP
2 Facsimile: (212) 294-4700 560 Mission Street, Suite 2100
San Francisco, CA 94105
3 Ian L. Papendick (SBN 275648) Telephone: (415) 243-1000
[email protected] Facsimile: (415) 243-1001
4 Jeanifer E. Parsigian (SBN 289001) [email protected]
[email protected]
5
WINSTON & STRAWN LLP Mark A. McCarty (pro hac vice granted)
6 101 California Street Matthew D. Richardson (pro hac vice granted)
San Francisco, CA 94111 John D. Haynes (pro hac vice granted)
7 Telephone: (415) 591-1000 Andrew J. Tuck (pro hac vice granted)
Facsimile: (415) 591-1400 Cassandra Kerkhoff Johnson (SBN 300064)
8 ALSTON & BIRD LLP
9 Counsel for Defendants Avanci, LLC and 1201 W. Peachtree St.
Avanci Platform International Ltd. Atlanta, GA 30309
10 Telephone: (404) 881-7000
Facsimile: (404) 881-7777
11 IRELL & MANELLA LLP [email protected]
[email protected]
12 /s/ H. Annita Zhong [email protected]
13 Jason G. Sheasby (SBN 205455) [email protected]
[email protected] [email protected]
14 H. Annita Zhong (SBN 266924)
[email protected] Attorneys for Defendants Nokia Corporation,
15 IRELL & MANELLA LLP Nokia of America Corporation, Nokia Solutions
1800 Avenue of the Stars, Suite 900 and Networks US LLC, Nokia Solutions and
16 Los Angeles, CA 90067-4276 Networks Oy, and Nokia Technologies Oy
17 Telephone: (310) 277-1010
Facsimile: (310) 203-7199
18 BAKER BOTTS LLP
Counsel for Defendants
19 Optis UP Holdings, LLC, Optis Wireless /s/ James G. Kress
Technology, LLC, and Optis Cellular James G. Kress (pro hac vice)
20
Technology, LLC [email protected]
21 1299 Pennsylvania Ave., NW
Washington, D.C. 20004
22 PILLSBURY WINTHROP SHAW Telephone: (202) 639-7700
PITTMAN LLP Facsimile: (202) 639-7890
23
/s/ Christopher Kao Peter K. Huston (SBN 150058)
24 Christopher Kao (SBN 237716) [email protected]
[email protected] Stuart C. Plunkett (SBN 187971)
25
David J. Tsai (SBN 244479) [email protected]
26 [email protected] Tina V. Ngo (SBN 324102)
PILLSBURY WINTHROP SHAW [email protected]
27 PITTMAN LLP 101 California Street, Suite 3600
Four Embarcadero Center, 22nd Floor San Francisco, California 94111
28 San Francisco, CA 94111 Telephone: (415) 291-6200
Telephone: (415) 983-1000 Facsimile: (415) 291-6300
18
Facsimile: (415) 983-1200

1
Counsel for Defendant Conversant Wireless
2 Specially Appearing for Defendant Sharp Licensing SARL
Corporation
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1 FILER’S ATTESTATION
2 I, Ryan W. Koppelman, am the ECF User whose identification and password are
3 being used to file this document. I hereby attest that the concurrence to the filing of this document,
4 and accompanying declarations and exhibits, has been obtained from each signatory hereto.
5
6 DATED: October 25, 2019 ALSTON & BIRD LLP
7 By: /s/ Ryan W. Koppelman
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CERTIFICATE OF SERVICE
1
2 I certify that on October 25, 2019, I cause of a copy of this Motion to be served on all counsel
3 of record via the Court’s Electronic Filing system.

4
Dated: October 25, 2019 /s/ Ryan W. Koppelman
5 Ryan W. Koppelman (SBN 290704)
6 ALSTON & BIRD LLP
950 Page Mill Road
7 Palo Alto, CA 94304
Telephone: (650) 838-2000
8 Facsimile: (650) 838-2001
[email protected]
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Case 5:19-cv-02520-LHK Document 193-1 Filed 10/25/19 Page 1 of 5
1 Teresa T. Bonder (SBN 321558) Mark A. McCarty (pro hac vice granted)
ALSTON & BIRD LLP Matthew D. Richardson (pro hac vice granted)
2 560 Mission Street, Suite 2100 John D. Haynes (pro hac vice granted)
San Francisco, CA 94105 Andrew J. Tuck (pro hac vice granted)
3 Telephone: (415) 243-1000 Cassandra Kerkhoff Johnson (SBN 300064)
4 Facsimile: (415) 243-1001 ALSTON & BIRD LLP
[email protected] 1201 W. Peachtree St.
5 Atlanta, GA 30309
Ryan W. Koppelman (SBN 290704) Telephone: (404) 881-7000
6 ALSTON & BIRD LLP Facsimile: (404) 881-7777
950 Page Mill Road [email protected]
7 Palo Alto, CA 94304 [email protected]
Telephone: (650) 838-2000 [email protected]
8
Facsimile: (650) 838-2001 [email protected]
9 [email protected] [email protected]
10 Attorneys for Defendants Nokia Corporation,
Nokia of America Corporation, Nokia Solutions
11 and Networks US LLC, Nokia Solutions and
12 Networks Oy, and Nokia Technologies Oy
(Counsel for additional defendants on signature
13 page)
16 CONTINENTAL AUTOMOTIVE SYSTEMS,

INC., Case No. 19-cv-2520-LHK
17
Plaintiff, FOURTH DECLARATION OF LASSE
18 HOLOPAINEN
v.
19
AVANCI, LLC, AVANCI PLATFORM
20 INTERNATIONAL LIMITED, NOKIA The Honorable Lucy H. Koh
CORPORATION, NOKIA OF AMERICA
21 CORPORATION, NOKIA SOLUTIONS AND Hearing Date: November 21, 2019
NETWORKS US LLC, NOKIA SOLUTIONS Time: 1:30 p.m.
22 AND NETWORKS OY, NOKIA Courtroom: 8, 4th Floor
TECHNOLOGIES OY, CONVERSANT
23 WIRELESS LICENSING SARL, OPTIS UP
HOLDINGS LLC, OPTIS CELLULAR REDACTED VERSION OF DOCUMENT
24 TECHNOLOGY, LLC, OPTIS WIRELESS SOUGHT TO BE SEALED
TECHNOLOGY, LLC,
25
Defendants.
26
27
28
FOURTH DECLARATION OF LASSE HOLOPAINEN
Case No. 19-cv-2520-LHK
1 Fourth Declaration of Lasse Holopainen
2 1. I am currently the Senior Licensing Manager of Patent Licensing at Nokia Technologies Oy
3 (“Nokia Technologies”) in Espoo, Finland. In that role, I am responsible for handling automotive
4 licensing. Unless otherwise stated, I have personal knowledge of the facts set forth in this declaration,
5 and if called as a witness, could and would testify competently to them.
6 2. On 29 August 2019, I submitted a declaration in support of Defendants’ Motion to Dismiss
7 First Amended Complaint. In that declaration, I explained, among other things, that (1) neither I nor
8 anyone at Nokia Technologies ever had discussions with any employee of Continental Automotive
9 Systems, Inc. and instead only communicated with representatives of Continental Automotive GmbH
10 regarding a potential license; and (2)
11
12
13 3. On 4 October 2019, David Djavaherian submitted a declaration in support of Plaintiff’s
14 Opposition to Motion to Dismiss First Amended Complaint. In his declaration, Mr. Djavaherian states
15 that certain of the statements contained in my 29 August 2019 declaration were incorrect. I disagree
16 with Mr. Djavaherian’s characterization and therefore I submit this declaration to provide clarification.
17 4. In response to my assertion that Nokia Technologies only dealt with Continental Automotive
18 GmbH and had no dealings with Continental Automotive Systems, Inc., Mr. Djavaherian states that
19 Nokia Technologies, on 24 October 2017, received a letter on behalf of the “Continental Group”
20 stating that the Continental Group
21
22 The 24 October 2017 letter, however, was not sent on behalf of the Continental Group.
23 Instead, the letter was sent on a Continental Automotive GmbH letterhead and was signed by Dr.
24 Roman Bonn, Vice President of Intellectual Property, and Dr. Jürgen Richter, Director of Intellectual
25 Property, who was employed by Continental Automotive GmbH according to his e-mail signature.
26 Thus, even though there is one single reference to the “Continental Group” in the body of the 24
27 October 2017 letter, the letter certainly was not sent on “behalf” of the Continental Group as Mr.
28
1 Djavaherian suggests.
2 5. Additionally, Mr. Djavaherian’s statement that the Non-Disclosure Agreement was executed
3 “by Nokia Technologies Ltd. and Continental AG” is incorrect. The Parties to the agreement were
4 Nokia Technologies Ltd and Continental Automotive GmbH.
5 6. Mr. Djavaherian also repeatedly states that the negotiations between Nokia Technologies and
6 Continental Automotive GmbH
7
8
9
10
11
12
13 7. The point I was emphasizing in my 29 August 2019 declaration was that, despite Nokia
14 Technologies’ position that
15
16 Specifically, during both the 15
17 February 2018 conference call and the 28 February 2018 conference call,
18
19
20
21 Moreover, in a 27 March 2018 email, Dr. Richter declined a meeting with
22 representatives of Nokia Technologies because
23 Therefore, I agree with Mr. Djavaherian that the parties’ discussions and proposals
24
25 But it was Nokia Technologies—not Continental Automotive GmbH—that was
26 1
Although Mr. Djavaherian references discussions between the parties in November of 2017, he was
27 not involved in those discussions and therefore I do not believe that he has personal knowledge
regarding the subject of those discussions.
28
1 proposing such a license.
2 8. Mr. Djavaherian then relies on his 30 October 2018 letter to Nokia Technologies in order to
3 support his statement that
4 Importantly, this letter marked a shift
5 in Continental Automotive GmbH’s licensing strategy. Mr. Djavaherian’s 30 October 2018 letter was
6 the first time that any Continental entity
7 Mr. Djavaherian’s letter was therefore directly contrary to the
8 position that representatives of Continental Automotive GmbH took during the negotiations that took
9 place in late 2017 and early 2018.
10 9. Mr. Djavaherian also makes much of the fact that
11
12
13 But that does not change the fact that in its bilateral discussions with
14 Continental, Nokia Technologies never engaged in any direct communications or negotiations with
15 Continental Automotive Systems, Inc. regarding a license. As I explained in detail in my 29 August
16 2019 declaration, Nokia Technologies only communicated with representatives of Continental
17 Automotive GmbH regarding a potential license.
18 10. With respect to the communications between Nokia Technologies and Zonar, Mr. Djavaherian
19 states that
20 This is incorrect.
21
22
23
24
25
26
27 11. Finally, Mr. Djavaherian’s suggestion that Nokia offered direct licenses to other component
28
1 IRELL & MANELLA LLP

Jason G. Sheasby (SBN 205455)
2 [email protected]
Hong Annita Zhong (SBN 266924)
3 [email protected]
1800 Avenue of the Stars, Suite 900
4 Los Angeles, California 90067-4276
Telephone: (310) 277-1010
5 Facsimile: (310) 203-7199
6 Ingrid Petersen (SBN 313927)

[email protected]
7 840 Newport Center Drive, Suite 400
Newport Beach, California 92660-6324
8 Telephone: (949) 760-0991
Facsimile: (949) 760-5200
9
Attorneys for Defendants
10 OPTIS UP HOLDINGS LLC, OPTIS
CELLULAR TECHNOLOGY, LLC, and
11 OPTIS WIRELESS TECHNOLOGY, LLC

14 CONTINENTAL AUTOMOTIVE SYSTEMS, ) Case No. 5:19-cv-02520-LHK
INC., a Delaware corporation, )
15 ) DECLARATION OF INGRID
Plaintiff, ) PETERSEN IN SUPPORT OF
16 ) DEFENDANTS’ REPLY IN SUPPORT
v. ) OF MOTION TO DISMISS FIRST
17 ) AMENDED COMPLAINT
AVANCI, LLC, a Delaware corporation, )
18 AVANCI PLATFORM INTERNATIONAL ) The Honorable Lucy H. Koh
LIMITED, an Irish company, NOKIA )
19 CORPORATION, a Finnish corporation, ) Hearing Date: November 21, 2019
NOKIA OF AMERICA CORPORATION, a ) Time: 1:30 p.m.
20 Delaware corporation, NOKIA SOLUTIONS ) Courtroom: 8, 4th Floor
AND NETWORKS US LLC, a Delaware )
21 corporation, NOKIA SOLUTIONS AND ) Action filed: May 10, 2019
NETWORKS OY, a Finnish corporation, )
22 NOKIA TECHNOLOGIES OY, a Finnish )
corporation, CONVERSANT WIRELESS )
23 LICENSING SARL, a Luxembourg corporation, )
OPTIS UP HOLDINGS LLC, a Delaware )
24 corporation, OPTIS CELLULAR )
TECHNOLOGY, LLC, a Delaware corporation, )
25 OPTIS WIRELESS TECHNOLOGY, LLC, a )
Delaware corporation, )
26 )
Defendants. )
27 )
28
IRELL & MANELLA LLP DECLARATION OF INGRID PETERSEN
A Registered Limited Liability
Law Partnership Including (Case No. 5:19-cv-02520-LHK)
Professional Corporations
10753909
1 DECLARATION OF INGRID PETERSEN
2 I, Ingrid Petersen, declare as follows:
3 1. I am an attorney at the law firm of Irell & Manella LLP, counsel of record for Optis
4 Up Holdings LLC, Optis Cellular Technology, LLC, and Optis Wireless Technology, LLC
5 (collectively, the "Optis Entities") in the above-captioned action. I am a member in good standing
6 of the State Bar of California and have been admitted to practice before this Court. I have personal
7 knowledge of the facts set forth in this Declaration and, if called as a witness, could and would
8 testify competently to such facts under oath.
9 2. Attached hereto as Exhibit A is a true and correct copy of an email chain between
10 General Counsel for Continental Group's Global Expert Teams and the Americas Region on the one
11 hand and General Counsel for PanOptis Patent Management, LLC (" PPM")on the other hand. PPM
12 is an affiliate of the Optis Entities and manages patents owned by Optis Cellular Technology, LLC,
13 Optis Wireless Technology, LLC, Unwired Planet, LLC and Unwired Planet International Limited.
14 Executed on October 24, 2019, at Newport Beach, California.
15 I declare under penalty of perjury under the laws of the United States of America that the
16 foregoing is true and correct.
17
18 /s/ Ingrid Petersen

Ingrid Petersen
19
20
21
22
23
24
25
26
27
28
IRELL & MANELLA LLP DECLARATION OF INGRID PETERSEN
A Registered Limited Liability
Law Partnership Including (Case No. 5:19-cv-02520-LHK)
Professional Corporations
10753909 -1-
EXHIBIT A
From: Chad Hilyard

Sent: Monday, October 21, 2019 6:23 AM
To: Jurch, George
Subject: RE: Contact
Dear George,
It has been some time since we made our proposal to you. But we are still in the same place we have been, which is not
having any clear idea what exactly Continental’s goals are. We are concerned that Continental’s correspondence is part
of a litigation tactic. In an attempt to move this forward this is what we propose.
Continental will provide us with:
1. The names of all the subsidiaries and affiliates who will be covered by the license we will be negotiating.
2. All the product lines that the Continental entities wish to license (the "Continental Products").
3. The communications standards (including optional sections) implemented by the Continental Products that you
seek to have licensed.
4. Over what period of time do you desire a license.
Separately, we would like to understand the following:
1. What pre-existing licenses do you have to essential patents for communications standards for the Continental
Products?
2. What is your currently royalty burden for the licensing of essential patents for the communications standards
you have implemented?
3. Because you have asked us not to communicate with your customers, who are the customers to which you
supply Continental Products?
We can receive all of this information under a non-disclosure agreement, which we are happy to enter into. If there is
certain information that you believe should only be shared with outside counsel, we are open to exploring that, as well.
Finally, we again urge Continental to accept our offer of arbitration to try to resolve these issues.
Best regards.
Chad
Chad S. Hilyard
General Counsel
312 690 3701 W

303 918 2858 M
[email protected]
This e-mail message is confidential and intended only for the named recipient(s) above. If you are not the intended recipient you are
hereby notified that any dissemination, distribution or copying of this e-mail and any attachment(s) is strictly prohibited. If you have
1
received this e-mail in error, please immediately notify the sender by replying to this e-mail and delete the message and any
attachment(s) from your system. Thank you.
From: Jurch, George <[email protected]>

Sent: Tuesday, September 3, 2019 8:49 AM
To: Chad Hilyard <[email protected]>
Sorry for the delay in responding. Your outside lawyer will receive some correspondence from Dave Djavaherian, one of
outside lawyers, this week. Thanks.
George R. Jurch III

Continental
General Counsel – Global Expert Teams (Digitalization, OE Relations, PLPI)
and the Americas Region
1830 MacMillan Park Drive
Fort Mill, South Carolina 29707
Telephone: (704) 583-8545
Facsimile: (704) 583-8815 and
One Continental Drive
Auburn Hills, Michigan 48326-1581
Telephone: (248) 393-6514
Facsimile: (248) 393-8722
E-mail: [email protected]
This e-mail may be privileged and/or confidential, and the sender does not waive any related rights and obligations. Any distribution,
use or copying of this e-mail or the information it contains by other than an intended recipient is unauthorized. If you receive this e-mail
in error, please advise me (by return e-mail or otherwise) immediately.
From: Chad Hilyard <[email protected]>

Sent: Wednesday, August 28, 2019 4:45 PM
To: Jurch, George <[email protected]>
Hi George,
Any update on this? Thanks in advance.
Best.
Chad

Sent: Monday, August 19, 2019 9:09 PM
We are discussing this week your information below. We will be back in touch likely end of the week/beginning of next
week. Tks.
2
George R. Jurch III

Continental
Telephone: (704) 583-8545
Telephone: (248) 393-6514
Facsimile: (248) 393-8722

Hi George,
My apologies. The below should say “Subject to Federal Rule of Evidence 408” – not 403.
Thanks.
Chad
From: Chad Hilyard

**** Subject to Federal Rule of Evidence 403 -- Proposal to Settle the Northern District of California Law Suit ****
Hi George,
Thanks for the call on Friday. I appreciate your time.
On the call, you requested our position in writing. Here is what we propose:
1. The Optis defendants, and all of their affiliates (the “PanOptis Entities”) will license all their declared standard
essential patents for cellular communication to Continental on fair, reasonable and non-discriminatory
(“FRAND”) terms.
2. The PanOptis Entities will negotiate directly with Continental without any involvement of Avanci or Continental’s
customers.
3
3. If the negotiations break down, or if there is a need to address any concern that the PanOptis Entities’ licensing
behavior could somehow be controlled by an obligation or incentive from Avanci or other companies that use
Avanci (which is not the case), the PanOptis Entities would agree to binding arbitration before three neutrals
(process to be discussed) to determine the appropriate royalty rate for a global FRAND patent license to their
portfolio of declared standard essential patents for cellular communication.
4. Continental will dismiss the PanOptis Entities from the Northern District of California suit.
5. Continental would be entitled to use any settlement agreement in the Northern District of California suit.
If you have any questions, or if you would like to discuss this proposal in further detail, please let me know. I’m happy to
discuss anytime. Thanks.
Best regards.
Chad
Chad S. Hilyard
General Counsel
312 690 3701 W

303 918 2858 M
[email protected]

Sent: Thursday, August 8, 2019 9:32 PM
Got your voice mails, sorry I have been out of the office some this week. Are you available for a call tomorrow at 1130a
EDT? Tks
George R. Jurch III

Continental
Telephone: (704) 583-8545
Telephone: (248) 393-6514
Facsimile: (248) 393-8722
4

Sent: Wednesday, July 31, 2019 4:29 PM
Thanks George. I look forward to it.
Best.
Chad
Chad S. Hilyard
General Counsel
312 690 3701 W

303 918 2858 M
[email protected]

Chad
I got your voice mail late Monday. I have been travelling the last few days, but am back in the office tomorrow
and will give you a call. Thanks.
George
George R. Jurch III

Continental
Telephone: (704) 583-8545
5
Telephone: (248) 393-6514
Facsimile: (248) 393-8722

To: Mike Scarborough <[email protected]>; Sheasby, Jason <[email protected]>
Cc: Jurch, George <[email protected]>
Thanks Mike.
George, nice to meet you. I will try to give you a call in the next day or so.
Best regards.
Chad
Chad S. Hilyard
General Counsel
312 690 3701 W

303 918 2858 M
[email protected]
From: Mike Scarborough <[email protected]>

To: Sheasby, Jason <[email protected]>
Cc: Chad Hilyard <[email protected]>; Jurch, George <[email protected]>
Jason – we are OK with this. Your client can reach out to George Jurch at Continental, its Americas GC. He is copied
here and also can be reached at (704) 583-8545 or (248) 393-6514. Thanks.
Mike
Mike Scarborough | Partner

Antitrust & Competition Practice Group Leader
+1 415-774-2963 | direct
6
[email protected] | Bio
SheppardMullin
Four Embarcadero Center, 17th Floor
San Francisco, CA 94111-4109
+1 415-434-9100 | main
www.sheppardmullin.com | LinkedIn | Twitter
From: Sheasby, Jason <[email protected]>

Sent: Monday, July 22, 2019 10:36 AM
To: Mike Scarborough <[email protected]>
Cc: [email protected]
Subject: Contact
My client would like to contact your client. Can you send contact information. I am copying him on this email.
Best
JS
PLEASE NOTE: This message, including any attachments, may include privileged, confidential and/or inside information.
Any distribution or use of this communication by anyone other than the intended recipient(s) is strictly prohibited and
may be unlawful. If you are not the intended recipient, please notify the sender by replying to this message and then
delete it from your system. Thank you.
Attention: This message is sent by a law firm and may contain information that is privileged or confidential. If you
received this transmission in error, please notify the sender by reply e-mail and delete the message and any
attachments.

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Case 5:19-cv-02520-LHK Document 193 Filed 10/25/19 Page 1 of 27

15 UNITED STATES DISTRICT COURT

16 NORTHERN DISTRICT OF CALIFORNIA

18 CONTINENTAL AUTOMOTIVE SYSTEMS, Case No. 19-cv-2520-LHK

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 19-cv-2520-LHK

D. Continental ’s Response Confirms That the Optis Entities Should Be

4 Advideo, Inc. v. Kimel Broad. Grp., Inc.,

9 Apple Inc. v. Samsung Elecs. Co.,

13 Bay Area Surgical Mgmt. LLC v. Aetna Life Ins. Co.,

21 Chandler v. State Farm Mut. Auto. Ins. Co.,

26 Georgia v. Pennsylvania R. Co.,

Khachatryan v. Toyota Motor Sales, U.S.A,

9 MedImmune, Inc. v. Genentech, Inc.,

14 Nero AG v. MPEG LA, L.L.C.,

19 Orion Tire Corp. v. General Tire, Inc.,

24 Prime Healthcare Servs., Inc. v. Harris,

Richmond Techs., Inc. v. Aumtech Bus. Sols.,

4 Rio Properties, Inc. v. Rio Int’l Interlink,

9 Sumitomo Mitsubishi Silicon Corp. v. MEMC Elec. Materials, Inc.,

14 Va. Sur. Co. v. Northrup Grumman Corp.,

1 MEMORANDUM OF POINTS AND AUTHORITIES

18 provided any reasoning why venue is proper for non-injunctive counts.

19 No Case or Controversy: Continental states that it “vigorously disputes” allegations made by

23 WINSTON & STRAWN LLP ALSTON & BIRD LLP

24 /s/ Jeffrey L. Kessler /s/ Ryan W. Koppelman

New York, NY 10166-4193 Teresa T. Bonder (SBN 321558)

Facsimile: (415) 983-1200

6 DATED: October 25, 2019 ALSTON & BIRD LLP

7 By: /s/ Ryan W. Koppelman

3 of record via the Court’s Electronic Filing system.

14 UNITED STATES DISTRICT COURT

15 NORTHERN DISTRICT OF CALIFORNIA

16 CONTINENTAL AUTOMOTIVE SYSTEMS,

1 Fourth Declaration of Lasse Holopainen

2 1. I am currently the Senior Licensing Manager of Patent Licensing at Nokia Technologies Oy

5 and if called as a witness, could and would testify competently to them.

6 2. On 29 August 2019, I submitted a declaration in support of Defendants’ Motion to Dismiss

10 regarding a potential license; and (2)

4 Nokia Technologies Ltd and Continental Automotive GmbH.

6 Continental Automotive GmbH

14 Technologies’ position that

22 representatives of Nokia Technologies because

1 proposing such a license.

3 support his statement that

4 Importantly, this letter marked a shift

6 the first time that any Continental entity

7 Mr. Djavaherian’s letter was therefore directly contrary to the

9 place in late 2017 and early 2018.

10 9. Mr. Djavaherian also makes much of the fact that

15 Continental Automotive Systems, Inc. regarding a license. As I explained in detail in my 29 August

16 2019 declaration, Nokia Technologies only communicated with representatives of Continental

17 Automotive GmbH regarding a potential license.

1 IRELL & MANELLA LLP

6 Ingrid Petersen (SBN 313927)

12 UNITED STATES DISTRICT COURT