Case 3:19-cv-07651-EMC Document 271 Filed 07/08/21 Page 1 of 5

1 Christopher A. Seidl (pro hac vice)

[email protected]
2 John K. Harting (pro hac vice)
[email protected]
3
ROBINS KAPLAN LLP
4 800 LaSalle Avenue, Suite 2800
Minneapolis, MN 55402
5 Telephone: 612-349-8500
Facsimile: 612-349-4181
6 Counsel for Defendants
INVT SPE LLC
7
INVENTERGY GLOBAL, INC.
8
Additional Counsel Listed on Signature Page
9

10 UNITED STATES DISTRICT COURT

11 NORTHERN DISTRICT OF CALIFORNIA
12

13 INTEL CORPORATION and APPLE INC., Case No. 3:19-cv-07651-EMC

14 Plaintiffs,
DEFENDANTS INVT SPE LLC AND
15 v. INVENTERGY GLOBAL, INC.’S
SUPPLEMENTAL REPLY BRIEF IN
16 FORTRESS INVESTMENT GROUP LLC, SUPPORT OF DEFENDANTS’ JOINT
FORTRESS CREDIT CO. LLC, UNILOC
17 2017 LLC, UNILOC USA, INC., UNILOC MOTION TO DISMISS AND TO STRIKE
LUXEMBOURG S.A.R.L., VLSI PLAINTIFF INTEL’S SECOND
18 TECHNOLOGY LLC, INVT SPE LLC, AMENDED COMPLAINT
INVENTERGY GLOBAL, INC., and IXI IP,
19 LLC, Hon. Edward M. Chen
20 Defendants.
[REDACTED VERSION]
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INVT AND INVENTERGY SUPPLEMENTAL REPLY BRIEF
IN SUPPORT OF MOTION TO DISMISS AND STRIKE

Case No 3:19-cv-07651-EMC
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1 As this Court recognized, to succeed on their only remaining claims—which are based on

2 what this Court referred to as Plaintiff’s “Patent Aggregation Theory”—Intel must show that the

3 alleged supracompetitive pricing was the result of alleged aggregation. See, e.g., Dkt. 229 at

4 24:11-12; id. at 26:25-27:2. As to INVT and Inventergy, the only supracompetitive pricing alleged

5 in Intel’s Second Amended Complaint (“SAC”) is by reference to two licensing letters, one from

6 January 2015 and the other from June 2018. SAC at ¶¶ 128-130. INVT/Inventergy’s opening

7 Supplemental Brief explains how those two letters show the opposite of supracompetitive royalty

8 demands as a result of aggregation, instead evidencing licensing offers for specific standard

9 essential patents (“SEPs”) calculated to reflect INVT/Inventergy’s pro rata share of the 3G and

10 LTE standards. Dkt. 246.

11 Intel’s opposition does not dispute that those letters show a pro rata calculation. In fact, in

12 responding to INVT/Inventergy’s Supplemental Brief, Intel admits that those two letters “relate

13 only to claimed SEPs,” whereas the three specific INVT/Inventergy patents identified in the SAC

14 are non-SEPs. Dkt. 256 at 3:12-13. Thus, Intel asserts that the letters, and the offered royalty rates

15 reflected therein, are “irrelevant” to Intel’s remaining claims. Id. at 3:11; see also id. at 3:17-20

16 (“Because neither letter encompasses non-SEPs, neither is relevant to assessing whether

17 Defendants have been able to demand inflated royalties for the ’579, ’242, or ’620 patents as a

18 result of competition eliminated through the challenged acquisitions.”). 1

19 INVT and Inventergy agree. Indeed, based on Intel’s own admission (and thus setting

20 those two letters aside), Intel has no evidence whatsoever upon which it can plausibly allege

21 supracompetitive pricing as to the ’579, ’242, or ’620 patents as a result of alleged aggregation of

22 patents by INVT and Inventergy. To the contrary, Intel admits that those three patents are outside

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24 1 Intel’s opposition, however, misstates INVT and Inventergy’s argument as what the two
25 licensing letters show. INVT/Inventergy’s argument is not that there is no supracompetitive
royalty demand because the “ .”
26 Dkt. 256 at 2:18-22. Rather, INVT/Inventergy’s argument is that the calculation shown in the two
27 letters demonstrates the offered rates were tied to specific standard essential patents and calculated to
reflect INVT/Inventergy’s pro rata (proportional) share of patents essential to the 3G and LTE
28 standards, which is the opposite of a rate based on aggregation. Dkt. 246 at 1-4.
INVT AND INVENTERGY SUPPLEMENTAL REPLY BRIEF
IN SUPPORT OF MOTION TO DISMISS AND STRIKE

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1 the scope of INVT/Inventergy’s only prior offers, as the offers were limited to SEPs. Dkt. 256

2 at 3:12-16. Without reference to the royalty rates offered in the two letters, Intel is left with no

3 evidence whatsoever of any alleged supracompetitive prices offered by INVT or Inventergy, let

4 alone supracompetitive prices as a result of aggregation. On this basis alone, Intel’s SAC should

5 be dismissed with prejudice as to both INVT and Inventergy.

6 In a blatantly improper attempt to shift theories, obfuscate, and avoid dismissal, Intel now

7 alleges—for the first time in its opposition brief—that its claims against INVT and Inventergy are

8 not based on alleged supracompetitive royalties. Instead, Intel alleges “the letters show that

9 Inventergy/INVT are willing to assert patents, and [Intel is] therefore suffering continuing

10 antitrust injury as a result of the illegal patent acquisition scheme.” Id. at 3:20-22. As this Court

11 previously ruled, simply alleging a patent holder is willing to assert patents, without more, and

12 where those patents have not actually been asserted, cannot establish “standing to assert antitrust

13 claims . . . .” Dkt. 229 at 1:1-23 (dismissing previously defined “Product Markets (10)-(13)” with

14 prejudice).

15 Here, the evidence in front of this Court shows INVT/Inventergy has never made any

16 assertion at all against Intel based on the identified three patents. To the contrary, the two letters

17 show INVT/Inventergy only ever offered royalties on SEPs, and the SAC contains no allegations

18 to the contrary. Dkt. 247, Ex. 24; Ex. 25; Dkt. 256 at 3:13-16 (letters “have no bearing on . . .

19 demands for those three non-SEPs.” (emphasis in original)). 2

20 Indeed, even as to the three patents identified in the SAC, the SAC does not allege that

21 Intel has been harmed by INVT or Inventergy in the corresponding markets, instead only

22 identifying harm allegedly caused by other Defendants who have “targeted” Intel or Apple with

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24 2 Even more, such offers were only extended to Plaintiff Apple, who recently filed a notice
25 of dismissal with prejudice as to both INVT and Inventergy. Dkt. 263. The record is devoid of any
evidence or allegations that INVT or Inventergy ever even approached Plaintiff Intel on any
26 patent, let alone indicated suit would be filed against Intel. To that end, neither INVT nor
Inventergy were even named as Defendants in the original complaint filed only by Plaintiff Intel.
27
Intel Corp. v. Fortress Investment Group LLC et al., No. 5:19-cv-06856, Dkt. 1 (N.D. Cal. Oct.
28 21, 2019).
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1 their own patents. SAC at ¶¶ 174 (as related to purported market containing the ’579 patent), 354

2 (as related to purported market containing the ’242 and ’620 patents). Moreover, while Intel fails

3 to expressly address this Court’s concerns regarding the significance of the ’579, ’242, or ’620

4 patents in their purported markets (e.g. whether such patents are the “crown jewels” in the field or

5 just one of many potential substitutes), by confirming their claims no longer address SEPs, Intel

6 indicates its belief that the significance is low.

7 Intel’s three remaining claims against INVT and Inventergy all rise and fall based on

8 Intel’s ability (or inability) to plausibly assert that the rates offered by INVT/Inventergy were the

9 result of the aggregation of substitute patents. Intel’s admission that the only patents still at issue

10 are non-SEPs, and that INVT/Inventergy have never asserted non-SEPs against Intel (either via

11 letter or lawsuit), confirms Intel’s failure to meet that burden. Intel’s untimely attempt to change

12 theories to an alleged harm based on “willingness to sue” also fails to meet the “plausibility”

13 standard where the only evidence of record entirely undermines Intel’s assertions. Intel’s

14 remaining claims against INVT and Inventergy must be dismissed with prejudice. See Cook,

15 Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (leave to

16 amend is inappropriate when “the pleading could not possibly be cured by the allegation of other

17 facts.”).

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INVT AND INVENTERGY SUPPLEMENTAL REPLY BRIEF
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1 Dated: July 8, 2021 Respectfully submitted,

2
ROBINS KAPLAN LLP
3

4
By: /s/ Christopher A. Seidl
5 Christopher A. Seidl (pro hac vice)
6 [email protected]
John K. Harting (pro hac vice)
7 [email protected]
8 ROBINS KAPLAN LLP
800 LaSalle Avenue, Suite 2800
9 Minneapolis, MN 55402
10 Telephone: 612 349 8468
Facsimile: 612 339-4181
11 Counsel for Defendants
INVT SPE LLC
12
INVENTERGY GLOBAL, INC.
13
Steven Carlson
14
[email protected]
15 ROBINS KAPLAN LLP
2440 West El Camino Real, Suite 100
16
Mountain View, California 94040
17 Telephone: (650) 784-4012
Facsimile: (650) 784-4041
18

19 William V. Reiss (pro hac vice)

[email protected]
20
ROBINS KAPLAN LLP
21 399 Park Avenue. Suite 3600
New York, NY 10022
22
Telephone: 212-980-7400
23 Facsimile: 212-980-7499

24
Counsel for Defendants
25 INVT SPE LLC
INVENTERGY GLOBAL, INC.
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INVT AND INVENTERGY SUPPLEMENTAL REPLY BRIEF
IN SUPPORT OF MOTION TO DISMISS AND STRIKE

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