If all of these InterDigital-related FRAND issues seem hard to keep track of, they are — InterDigital is currently suing Huawei, Nokia, Samsung, and ZTE all in a single ITC action (337-TA-868) and in separate parallel actions in Delaware (as well as some of the same parties in a different ITC case, 337-TA-800, where an Initial Determination is due next month). In the Delaware district court cases, Huawei and ZTE are jointly addressing FRAND issues, but Nokia and Samsung are taking their own separate paths. But one thing remains in common in all of the cases — InterDigital is trying to dismiss the defendants’ FRAND-related counterclaims. Last month, it moved to dismiss Nokia’s FRAND counterclaims. Yesterday, Nokia filed its brief opposing this motion.
Nokia’s arguments boil down into five main categories: (1) its FRAND counterclaims are compulsory in this action, and the presence of earlier-filed cases between the parties does not mandate dismissal here; (2) its declaratory judgment claims are ripe and not merely advisory; (3) its breach of contract claims were properly pleaded, and ambiguity regarding scope and relief does not mandate dismissal; (4) its promissory estoppel and implied license claims are valid; and (5) it has alleged a violation of California state unfair competition law, in part because Nokia imports products into ports in California.
Many of Nokia’s FRAND-related claims and arguments overlap with Huawei’s and ZTE’s [see here and here], so we’ll allow you to read Nokia’s brief and won’t go over well-tread ground here. But it is worth noting Nokia’s argument regarding the effect of prior actions between the parties. While InterDigital argued that Nokia’s FRAND claims were compulsory in these earlier-filed actions and should have been filed there, Nokia points out that both of those cases were stayed before a responsive pleading was required to be filed — and will remain stayed at least until two pending ITC investigations are resolved. Additionally, Nokia notes that 4G-related patents were not present in the earlier actions, and forum-shopping issues are not a problem, because all of the cases are in Delaware. Thus, according to Nokia, the relatively advanced state of this case and judicially efficiency mandates that the court deny InterDigital’s motion and decide the FRAND issues here.