Last month, Judge James F. Holderman dismissed various claims brought by Cisco, Motorola Solutions, and NETGEAR against Innovatio IP Ventures, LLC over Innovatio’s vast licensing and litigation campaign relating to the IEEE 802.11 Wi-Fi standard. These suppliers claimed that Innovatio — in threatening the suppliers’ customers and bringing litigation over standard-essential patents — violated various unfair competition laws, and even the Federal Racketeering and Corrupt Organizations Act (“RICO”). But the court found that Innovatio’s conduct was protected petitioning activity under the Noerr-Pennington doctrine, and that the suppliers did not properly plead that the conduct was a “sham” that would exempt this activity from protection. Yesterday, the suppliers filed a motion for entry of final judgment under Federal Rule of Civil Procedure 54(b), which indicates that the suppliers want to appeal the dismissal of these claims as soon as possible to keep the heat on Innovatio.
Rule 54(b) allows a court to certify final judgment on a claim when more than one claim is presented in an action. This is important because generally, only final judgments may be appealed to appellate courts. (There’s no reason to get into a deep legal analysis here of the standard for certifying a final judgment under Rule 54(b) — the most notable thing here is that the suppliers want a clear, expedited path to appeal.)
The suppliers point to two main issues relating to the dismissal, which will likely be the ones that they want most addressed on appeal: (1) whether Innovatio’s action were eligible for protection under the Noerr-Pennington doctrine, and (2) whether the “sham” exception to Noerr-Pennington applies to Innovatio’s conduct. As Judge Holderman recognized in his order dismissing the claims, these issues require resolving questions of both Seventh Circuit law and Federal Circuit law, although the majority of analysis rests on Federal Circuit case law.
Appropriately, then, if these claims are certified as a final judgment, any appeal will go to the Court of Appeals for the Federal Circuit, as the original complaint in this action sought declaratory judgments of non-infringement and invalidity (the unfair competition claims came in an amended complaint) — making it an action that “arose under” the patent laws for which the Federal Circuit has exclusive appellate jurisdiction.