(1) DENYING PLAINTIFFS' RULE 12(c) MOTION TO DISMISS DEFENDANTS' ANTITRUST AND UNFAIR COMPETITION COUNTERCLAIMS; AND
[Doc. No. 56.]
(2) GRANTING PLAINTIFFS' RULE 12(c) MOTION TO DISMISS DEFENDANTS' UNENFORCEABILITY COUNTERCLAIM
[Doc. No. 61.]
On February 1, 2019, Plaintiffs Wi-LAN Inc., Wi-LAN USA, Inc., and Wi-LAN Labs, Inc. filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) to dismiss Defendants LG Electronics, Inc., LG Electronics U.S.A., Inc., and LG Electronics Mobilecomm U.S.A., Inc.'s antitrust and unfair competition counterclaims. (Doc. No. 56.) On February 22, 2019, LG filed its response in opposition to Wi-LAN's motion related to its antitrust and unfair competition counterclaims. (Doc. No. 60.) On March 1, 2019, Wi-LAN filed its reply. (Doc. No. 62.)
On February 27, 2019, Plaintiffs filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) to dismiss LG's infectious unenforceability counterclaim. (Doc. No. 61.) On March 25, 2019, LG filed its response in opposition to Wi-LAN's motion related to its infectious unenforceability counterclaim. (Doc. No. 74.) On April 1, 2019, Wi-LAN filed its reply. (Doc. No. 75.)
On April 3, 2019, the Court took Wi-LAN's motion to dismiss LG's antitrust and unfair competition counterclaims under submission. (Doc. No. 76.) On April 8, 2019, the Court held a hearing on Wi-LAN's *1019motion to dismiss LG's infectious unenforceability counterclaim. Victor M. Felix and Christopher M. First appeared for Wi-LAN. Richard D. Harris appeared for LG. For the reasons below, the Court denies Wi-LAN's motion to dismiss LG's antitrust and unfair competition counterclaims, and the Court grants Wi-LAN's motion to dismiss LG's infectious unenforceability counterclaim.
Background
On July 11, 2018, Wi-LAN filed a complaint for patent infringement against LG, alleging infringement of U.S. Patent Nos. 8,787,924, 8,867,351, 9,226,320, and 9,497,743. (Doc. No. 1.) Specifically, Wi-LAN alleges that LG's wireless communication products that are compliant with the 3rd Generation Partnership Project 4G LTE standard directly infringe the patents-in-suit. (Id. ¶¶ 37, 40, 53, 66, 79.)
On October 10, 2018, LG filed an answer to Wi-LAN's complaint along with counterclaims for: (1) declaratory judgments of non-infringement and invalidity of the patents-in-suit; (2) declaratory judgment of unenforceability for failure to disclose to standard setting organizations; (3) declaratory judgment of unenforceability of the '351 patent ; (4) declaratory judgment that LG is entitled to license the patents-in-suit on FRAND/RAND terms and conditions; (5) breach of contract; (6) monopolization and attempted monopolization in violation of section 2 of the Sherman Act; and (7) unfair business practices under California Business and Profession Code § 17200 et seq. (Doc. No. 17.) On November 13, 2018, the Court issued a scheduling order in the action. (Doc. No. 36.) By the present motions, Wi-LAN moves pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings to dismiss: (1) LG's counterclaim for monopolization in violation of section 2 of the Sherman Act; (2) LG's counterclaim for attempted monopolization in violation of section 2 of the Sherman Act; (3) LG's counterclaim for unfair business practices under California Business and Profession Code § 17200 et seq. ; and (4) LG's counterclaim for unenforceability of the '351 patent. (Doc. Nos. 56-1, 61-1.)
Discussion
I. Legal Standards for a Rule 12(c) Motion for Judgment on the Pleadings
In patent cases, a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is governed by the "the procedural law of the regional circuit." Amdocs (Israel) Ltd. v. Openet Telecom, Inc.,
A complaint will survive a Rule 12(b)(6) motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly,
In reviewing a Rule 12(b)(6) motion to dismiss, a district court must accept as true all facts alleged in the complaint, and draw all reasonable inferences in favor of the plaintiff. See Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am.,
II. Analysis of LG's Counterclaims
A. LG's Counterclaim for Monopolization under Section 2 of the Sherman Act
In its answer and counterclaims, LG alleges a counterclaim for monopolization in violation of Section 2 of the Sherman Act. (Doc. No. 17, Counterclaims ¶¶ 284-339.) Wi-LAN argues that this counterclaim should be dismissed because LG has failed to adequately allege a claim for monopolization. (Doc. No. 56-1 at 4-14.)
Section 2 of the Sherman Act provides: "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other persons, to monopolize any part of the trade or commerce ... shall be deemed guilty of a felony."
i. Monopoly Power
Wi-LAN argues that LG has failed to plausibly plead that Wi-LAN has monopoly power. (Doc. No. 56-1 at 4-5.) "In order to state a valid claim under the Sherman Act, a plaintiff must allege that the defendant has market power within a 'relevant market.' " Newcal Indus., Inc. v. Ikon Office Sol.,
In its counterclaims, LG alleges that the relevant markets for purposes of its monopolization claim "are the various markets for technologies that-before the IEEE 802.16 standard and the 3GPP LTE standard were implemented-were competing to perform each of the various functions covered by each of Wi-LAN's purported essential patents for the IEEE 802.16 standard and the 3GPP LTE standard (collectively, the relevant 'Wireless Technologies Markets')."
LG explains in its allegations that:
If Wi-LAN in fact has patents covering technologies that have been incorporated into the relevant standards, it has the power to raise prices and exclude competition with respect to each of the technologies covered by its patents and incorporated in the relevant standards.... Barriers to entry into these markets are high because, among other reasons, the poststandardization lock-in effect means that other technologies are no longer viable substitutes for the technologies the standards specify to perform functions included in the standards.
(Id. ¶ 308.) LG alleges that: "by asserting the Patents-in-Suit, Wi-LAN can (and has) extracted royalties or other licensing terms for those patents that greatly exceed what it could have obtained before the IEEE and 3GPP standardized the technologies that Wi-LAN claims are covered by the Patents-in-Suit." (Id. ¶ 309.)
These allegations are sufficient to plead that Wi-LAN had monopoly power within the relevant market. See Apple,
ii. Anticompetitive Conduct
Wi-LAN argues that LG has failed to plausibly plead antitrust conduct. (Doc. No. 56-1 at 6-12.) In response, LG argues that it has sufficiently pled anticompetitive conduct by Wi-LAN under its failure to disclose IPR theory, its false FRAND theory, and its sham litigation theory. (Doc. No. 60 at 10-13.)
a. Failure to Disclose IPR Theory
In order to establish anticompetitive conduct based a failure to disclose intellectual property rights theory, a plaintiff "must show that the patent holder's failure to disclose its intellectual property rights induced the SSO to set the standard incorporating the essential patent." Apple Inc. v. Samsung Elecs. Co., No. 11-CV-01846-LHK,
Further, because allegations of anticompetitive conduct based on a failure to disclose intellectual property rights theory sound in fraud, a plaintiff must satisfy the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). See
Wi-LAN agues that LG's allegations that the SSOs could have chosen a different technology instead of the standards adopted are insufficient. (Doc. No. 56-1 at 10-11.) The Court disagrees. In its counterclaims, LG alleges: "Wi-LAN's non-disclosure excluded viable alternative technologies from the relevant Wireless Technologies Markets. Had Wi-LAN properly disclosed the existence of its IPR, the IEEE and 3GPP would have decided to standardize alternative technologies to perform the relevant functions." (Doc. No. 17, Counterclaims ¶ 315.) LG then alleges in detail for each of the patents-in-suit the specific alternative technology that the SSOs could have adopted. (Id. ) These allegations are sufficient to allege that there was an alternative technology and that the SSO would have adopted an alternative standard even under Rule 9(b)'s heightened pleading standard. See Apple,
Wi-LAN also argues that it cannot be liable under antitrust law for the alleged *1023actions of the prior owners of the patents-in-suit. (Doc. No. 56-1 at 11-12.) Wi-LAN explains that LG's claims are based on the conduct of prior owners of the patents-in-suit, not Wi-LAN, and, therefore, Wi-LAN cannot be held liable for this prior conduct. (Id. ) But a review of LG's counterclaims shows that this is not correct. In the counterclaims, LG alleges specific conduct and specific representations made by Wi-LAN to the SSOs, not just representations by the prior patent owners. (See, e.g., Doc. No. 17, Counterclaims ¶¶ 115, 127, 188, 267-69.) In sum, LG has adequately alleged antitrust conduct by Wi-LAN based on a failure to disclose intellectual property rights theory in support of its monopolization claim.
b. Fraudulent FRAND Declarations Theory
"Courts have recognized that fraudulent FRAND declarations that are used to induce SSOs to adopt standards essential patents can be monopoly conduct for the purposes of establishing a Section 2 claim." Apple,
Wi-LAN argues that LG's allegations are insufficient because LG has failed to specifically identify what statements it claims were misrepresentations. (Doc. No. 56-1 at 12.) In its counterclaims, LG alleges specific facts providing the who, what, when, where and which patents of the alleged false FRAND declarations. (Doc. No. 17, Counterclaims ¶¶ 267-73.) These allegations are sufficient to satisfy Rule 9(b).
Wi-LAN also argues that LG's allegations regarding Wi-LAN's subjective intent are insufficient. (Doc. No. 56-1 at 12.) In its counterclaims, LG alleges: "Wi-LAN's failure to inform the IEEE, ETSI, and 3GPP that, contrary to its undertakings, it in fact would not meet its commitments under its FRAND declarations was intentional and made with deceptive intent in order to induce the IEEE and 3GPP to include in the IEEE 802.16 and 3GPP LTE standards technologies that Wi-LAN claims are covered by the Patents-in-Suit." (Doc. No. 17, Counterclaims ¶ 318.) These allegations are sufficient to allege intent. See Fed. R. Civ. P. 9(b) ("[I]ntent ... may be alleged generally.").
Finally, Wi-LAN argues that LG's allegations in support of this antitrust theory conflict with LG's allegations regarding its failure to disclose intellectual property rights theory. (Doc. No. 56-1 at 12.) But Rule 8 allows parties to plead inconsistent factual allegations in the alternative. See Fed. R. Civ. P. 8(d)(2) ("A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient."); Molsbergen,
*1024iii. Antitrust Injury
Wi-LAN argues that LG has failed to adequately allege an antitrust injury. (Doc. No. 56-1 at 13-14.) In order for a plaintiff to properly plead that it has suffered an antitrust injury, "it must allege injury to competition." Apple,
In its counterclaims, LG alleges:
Wi-LAN's conduct more broadly has and continues to threaten unlawfully to exclude other LG competitors from, and increase royalties and other costs associated with, the manufacture and sale of downstream wireless communications devices that implement the IEEE 802.16 and 3GPP LTE standards and chill competition to develop and sell innovative new IEEE 802.16 and/or 3GPP LTE-compliant products, resulting in increased prices and decreased quality and innovation in downstream product markets and complementary innovation markets.
(Doc. No. 17, Counterclaims ¶ 333.) These allegations are sufficient to allege antitrust injury. See Apple,
B. LG's Counterclaim for Attempted Monopolization under Section 2 of the Sherman Act
In its answer and counterclaims, LG alleges a counterclaim for attempted monopolization in violation of Section 2 of the Sherman Act. (Doc. No. 17, Counterclaims ¶¶ 340-44.) In order to state a claim for attempted monopolization in violation of the Sherman Act, the plaintiff must allege facts demonstrating the following four elements: "(1) specific intent to control prices or destroy competition; (2) predatory or anticompetitive conduct directed at accomplishing that purpose; (3) a dangerous probability of achieving 'monopoly power'; and (4) causal antitrust injury." Rebel Oil Co. v. Atl. Richfield Co.,
Wi-LAN argues that LG's attempted monopolization counterclaim should be dismissed because this counterclaim suffers from the same pleading defects as LG's counterclaim for monopolization. (Doc. No. 56-1 at 14.) But LG has adequately alleged a claim for monopolization in violation of section 2 of the Sherman Act. See supra. As such, the Court rejects this argument.
Wi-LAN also argues that LG has failed to adequately allege specific intent in support of its counterclaim for attempted monopolization. (Doc. No. 56-1 at 14-15.) In order to state a claim for attempted monopolization, a plaintiff must allege "specific intent to control prices or destroy competition." Ernest W. Hahn, Inc. v. Codding,
LG's counterclaims contain sufficient allegations of anticompetitive conduct by Wi-LAN. See supra. Further, LG alleges: "Wi-LAN has willfully engaged in the anticompetitive conduct described above with the specific intent to acquire and maintain market power in a relevant antitrust market-namely, the relevant Wireless Technologies Market-and destroy competition therein." (Doc. No. 17, Counterclaims ¶ 341.) These allegations combined are sufficient to infer the specific intent necessary to support LG's counterclaim for attempted monopolization. See Hunt-Wesson,
C. LG's Counterclaim for Unfair Business Practices Under California Business & Professions Code § 17200 et seq.
In its answer and counterclaims, LG alleges a counterclaim for unfair business practices under California Business & Professions Code § 17200 et seq. (Doc. No. 17, Counterclaims ¶¶ 345-49.) Wi-LAN argues that because LG's antitrust allegations fail, LG's counterclaim for unfair business practices also fails to state a claim. (Doc. 56-1 at 15.)
The California Supreme Court has explained that the "unfair" prong of section 17200 "means conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition." Cel-Tech Commc'ns, Inc. v. Los Angeles Cellular Tel. Co.,
Here, LG has properly alleged counterclaims for monopolization and attempted monopolization in violation of Section 2 of the Sherman Act. See supra. As such, LG has adequately alleged a counterclaim for unfair business practices under Section 17200, and the Court declines to dismiss that counterclaim. See Apple,
D. Wi-Lan's Motion for Severance of LG's Antitrust Counterclaims
Wi-LAN argue that if the Court declines to dismiss LG's antitrust counterclaims, the Court should bifurcate and stay those counterclaims to conserve judicial economy and reduce jury confusion. (Doc. No. 56-1 at 16.) In response, LG argues that the Court should deny Wi-LAN's bifurcation request because, among other reasons, the *1026request is premature at this stage of the litigation. (Doc. No. 60 at 17.)
Federal Rule of Civil Procedure 42(b) provides:
For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.
"Courts have broad discretion under Federal Rule of Civil Procedure 42(b) to bifurcate and stay counterclaims." Fitbit, Inc. v. Aliphcom, No. 5:15-CV-04073-EJD,
Nevertheless, the Court agrees with LG that Wi-LAN's motion for bifurcation is premature. This case is in its initial stages: fact discovery has just begun, the Court has not held a claim construction hearing, expert discovery has not begun, and the trial date is a year away. As such, the Court, exercising its sound discretion, declines to bifurcate and stay LG's antitrust counterclaims at this time. See Actividentity Corp. v. Intercede Grp. PLC, No. C 08-4577 VRW,
E. LG's Counterclaim for Unenforceability of the '351 Patent
In its answer and counterclaims, LG alleges a counterclaim for unenforceability of the '351 patent. (Doc. No. 17, Counterclaims ¶¶ 190-260.) Specifically, LG alleges that one or more persons involved in the prosecution of the '351 patent's parent patent,
i. Legal Standards for Pleading Inequitable Conduct
"Inequitable conduct is an equitable defense to patent infringement that, if proved, bars enforcement of a patent." Therasense, Inc. v. Becton, Dickinson & Co.,
The elements of a claim for "inequitable conduct are: (1) an individual associated with the filing and prosecution of a patent application made an affirmative misrepresentation of a material fact, failed to disclose material information, or submitted false material information; and (2) the individual did so with a specific intent to deceive the PTO." Exergen Corp. v. Wal-Mart Stores, Inc.,
In addition, the Federal Circuit has explained that to meet the standard for materiality, the misrepresentation or omission must be "but-for material."
An inequitable conduct counterclaim must be pled with "particularity" under Federal Rule of Civil Procedure 9(b). Exergen,
Moreover, although "knowledge" and "intent" may be averred generally, a pleading of inequitable conduct under Rule 9(b) must include sufficient allegations of underlying facts from which a court may reasonably infer that a specific individual (1) knew of the withheld material information or of the falsity of the material misrepresentation, and (2) withheld or misrepresented this information with a specific intent to deceive the PTO.
ii. Failure to Disclose
Wi-LAN argues that LG's allegations of withholding of material information that LG uses to support its infectious unenforceability counterclaim are false and contradicted by a review of the prosecution history. (Doc. No. 61-1 at 1, 8-9.) In order to properly state a claim for unenforceability due to inequitable conduct, LG must allege, among other requirements, that "an individual associated with the filing and prosecution of a patent application made an affirmative misrepresentation of a material fact, failed to disclose material information, or submitted false material information." Exergen,
Here, LG alleges that during the prosecution of the '435 patent, the named inventor and his counsel failed to disclose the International Search Report at issue, the Emanuel reference ( U.S. Patent Pub. No. 2002/032788 ), Emanuel's foreign counterparts, a First Examination Report, and a Second Examination Report. (Doc. No. 17, Counterclaims ¶ 241.)
Wi-LAN argues that a review of the prosecution history for the '435 patent shows that the International Search Report at issue was indeed disclosed to the PTO. (Doc. No. 61-1 at 5-6, 9.) The Court agrees. "When considering a motion for judgment on the pleadings, [a] court may consider facts that 'are contained in materials of which the court may take judicial notice.' " Heliotrope Gen., Inc. v. Ford Motor Co.,
*1028United States v. 14.02 Acres of Land More or Less in Fresno Cty.,
A review of the prosecution history for the '435 patent reflects that the inventor and his counsel did disclose the International Search Report to the PTO, and the search report identifies the Emanuel reference and Emanuel's foreign counterparts. (Doc. No. 61-2, Ex. A at 38-39, 111, 114-16.) Indeed, LG's own allegations acknowledge that the named inventor and his counsel submitted a copy of the International Search Report to the PTO, and the PTO issued an "acceptance of application" form indicating that the International Search Report was included in the file. (Doc. No. 17, Counterclaims ¶¶ 215, 217.) Thus, both the prosecution history, and LG's own allegations contradict LG's assertion that the International Search Report was not disclosed to the PTO.
In response, LG argues that this is not fatal to its counterclaim because the counterclaim is also based on the inventor's failure to disclose the Emanuel reference itself along with Emanuel's foreign counterparts and two examination reports. (Doc. No. 74 at 8-11.) But a review of the prosecution history shows that the inventor and his counsel disclosed the International Search Report to the PTO, and the search report specifically identified the Emanuel reference as a published U.S. patent application, listed the relevant portions of the Emanuel reference, and stated what claims in the application for which it is relevant. (Doc. No. 61-2, Ex. A at 114.)
LG argues that under the PTO's Manual of Patent Examining Procedure ("MPEP") rules, the mere submission of a search report is insufficient to satisfy an applicant's duty to disclose in a national stage application. (Doc. No. 74 at 8-9.) In making this argument, LG specifically relies on MPEP § 609.03 and 1893.03(g). (Id. ) MPEP § 609.03 provides: "The examiner will consider the documents cited in the international search report in a PCT national stage application when the Form PCT/DO/EO/903 indicates that both the international search report and the copies of the documents are present in the national stage file." MPEP § 609.03 ; accord MPEP § 1893.03(g). LG notes that in the "notice of acceptance of application" form (the Form PCT/DO/EO/903) for the '435 patent, the PTO examiner only noted that *1029a copy of the international search report itself was present. (Doc. No. 74 at 10.)
LG is correct. In the Form PCT/DO/EO/903 at issue, the PTO examiner only notes that the international search report is present in the file. (Doc. No. 61-2, Ex. A at 38-39.) The form does not mention any copies of references being present. (Id. ) Nevertheless, a further review of section 609.03 reveals that the listing of the Emanuel in the international search report was still sufficient to disclose that reference for consideration by the PTO.
MPEP § 609.03 provides a list of three scenarios "regarding references listed in the search report of the international application." MPEP § 609.03. The third scenario concerns references listed in an international search report that will not be considered by the PTO absent further action by the applicant. MPEP § 609.03 ¶ 6.55. Section 609.03 instructs the examiner, when appropriate to notify the applicant that: "The listing of references in the PCT international search report is not considered to be an information disclosure statement (IDS) complying with 37 CFR 1.98. 37 CFR 1.98(a)(2) requires a legible copy of [certain references].... Therefore, the references cited in the international search report have not been considered."
The first and second scenarios listed in section 609.03 pertain to situations "where copies of [the] references are not required under 37 CFR 1.98," such as for U.S patent application publications like the Emanuel reference. MPEP § 609.03 ¶¶ 6.53, 6.54. In both of these scenarios, section 609.03 explains that the reference will be considered. See
In response, at the hearing, LG noted that the examiner did not list Emanuel as one of the references considered on the PTO-892 form for the '435 patent. (See Doc. No. 61-2, Ex. A at 29.) But this is of no consequence because section 609.03 explains that if a reference is properly disclosed through an international search report "[t]here is no requirement that the examiner list the documents on a PTO-892 form." MPEP § 609.03.
LG also noted that its inequitable conduct counterclaim is also based on the inventor and his counsel's failure to disclose Emanuel's foreign counterparts and two examination reports. But LG has failed to adequately allege or explain how these additional references would not be cumulative of the Emanuel reference itself. (See Doc. No. 17, Counterclaims ¶¶ 247-51.) See
*1030Baxter Int'l, Inc. v. McGaw, Inc.,
iii. Specific Intent
Further, LG has failed to adequately allege intent in support of its inequitable conduct allegations. In order to properly allege "intent" to support of an inequitable conduct claim, the pleading must contain "sufficient allegations of underlying facts from which a court may reasonably infer that a specific individual ... withheld or misrepresented th[e] information with a specific intent to deceive the PTO." Exergen,
Here, a review of the prosecution history shows that the inventor and his counsel disclosed the International Search Report, which included a description of the Emanuel reference (a published U.S. patent application), to the PTO. (Doc. No. 61-2, Ex. A at 38-39, 111, 114-16.) The inventor was not required to submit a separate copy of the Emanuel reference under
iv. Conclusion
In sum, LG has failed to properly state a counterclaim for unenforceability of the '351 patent, and the Court dismisses LG's counterclaim for a declaratory judgment of unenforceability of the '351 patent due to infectious unenforceability. Further, because the defects in counterclaim cannot be cured through amendment of the pleadings, particularly in light of the contents of the judicially noticeable prosecution history of the '435 patent, the Court dismisses LG's unenforceability counterclaim with prejudice. See Telesaurus VPC, LLC v. Power,
Conclusion
For the reasons above, the Court denies Wi-LAN's Rule 12(c) motion to dismiss LG's antitrust and unfair competition counterclaims, and the Court grants Wi-LAN's Rule 12(c) motion to dismiss LG's infectious unenforceability counterclaim. The Court dismisses LG's counterclaim for a declaratory judgment of unenforceability of the '351 patent due to infectious unenforceability with prejudice. The action will *1031proceed on the remaining claims and counterclaims.
IT IS SO ORDERED.
Notes
Wi-LAN notes that this allegation is contradicted elsewhere in LG's monopolization counterclaim when LG's alleges that the patents-in-suit are not infringed by products having components designed based upon the IEEE 802.16 standard or the 3GPP LTE standard. (Doc. No. 56-1 at 4-5 (citing Doc. No. 17, Counterclaims ¶ 285).) But this inconsistent allegation is of no consequence because Federal Rule of Civil Procedure 8 allows parties to plead inconsistent factual allegations in the alternative. See Fed. R. Civ. P. 8(d)(2) ("A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient."); Molsbergen v. United States,
Wi-LAN also argues that LG has failed to properly plead sham litigation as part of its antitrust conduct allegations in support of its monopolization counterclaim. (Doc. No. 56-1 at 6-10.) Because LG's allegations of deceptive conduct before the SSOs are sufficient to allege antitrust conduct in support of its monopolization counterclaim, the Court declines to address these additional allegations at this time.
In addition, the Court notes that it may also consider the '435 patent's prosecution history in ruling on LG's Rule 12(c) motion under the "incorporation by reference doctrine" because LG's counterclaim allegations extensively reference and rely on the prosecution history as the basis for LG's unenforceability counterclaim. See Coto Settlement,
The Court notes that a review of the prosecution history does not show that the examiner ever provided the inventor of the '435 patent with this specific notice under MPEP § 609.03 ¶ 6.55. (See generally Doc. No. 61-2, Ex. A.)