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Nero AG v. MPEG LA

November 24, 2010

NERO AG, PLAINTIFF,
v.
MPEG LA, L.L.C., AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Hon. Mariana R. Pfaelzer United States District Judge

ORDER RE: DEFENDANT MPEG LA, L.L.C.'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

I.INTRODUCTION

Plaintiff Nero AG ("Nero") brings this antitrust lawsuit against Defendant MPEG LA, LLC*fn1 ("MPEG LA") and Does 1 through 10 for anticompetitive conduct in MPEG LA's licensing of patent pools related to industry standards for consumer electronics. Nero contends MPEG LA has violated Section 2 of the Sherman Antitrust Act, 15 U.S.C. § 2, by unlawfully maintaining, extending, and/or abusing its monopoly power. The Court dismissed without prejudice Nero's first complaint for failure to state a claim upon which relief can be granted. See Nero AG v. MPEG LA, L.L.C., No. 10-cv-3672-MRPRZ, 2010 WL 4366448 (C.D. Cal. Sep. 14, 2010). The Court found the complaint lacked the necessary factual allegations to raise its claim above the level of speculation and hypothesis, but granted Nero an opportunity to amend.*fn2 Nero filed a First Amended Complaint ("FAC") on October 4, 2010, which MPEG LA now moves to dismiss on the ground that Nero has failed to remedy the defects in its pleading. The Court agrees and DISMISSES the FAC with prejudice.

II.LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. In deciding whether the plaintiff has stated a claim upon which relief can be granted, the Court must assume that the plaintiff's allegations are true and must draw all reasonable inferences in the plaintiff's favor. See Usher, 828 F.2d at 561. However, the Court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Moreover, the Court will not accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged. Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

As the Court explained in detail in its prior Order, "to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Nero AG, 2010 WL 4366448, at *5. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.

III.THE PLEADING REMAINS IMPLAUSIBLE

The FAC relies on three basic allegations: (1) Nero has no practical alternative to licensing from the MPEG-2 pool; (2) MPEG LA has impermissibly expanded the temporal scope of its monopoly by adding non-essential patents with later term expiration dates to the MPEG-2 patent pool; and (3) MPEG LA coerced licensees into an Extended MPEG-2 License, which cannot be cancelled until January 31, 2016. None of these allegations have the factual foundation to raise them above the speculative level.

1.Economic Unfeasibility of Direct Licensing

Nero's monopolization claim continues to rely heavily on the economic unfeasibility of individual licensing, but Nero has not demonstrated any attempt to license the necessary patents individually. "The burden of proving lack of a realistic opportunity to license directly cannot be met where a plaintiff never makes an inquiry or attempts to negotiate a single individual license." Nero AG, 2010 WL 4366448, at *6(citing Matsushita Elec. Indus. Co., Ltd. v. Cinram Int'l, Inc., 299 F. Supp. 2d 370, 377-78 (D. Del. 2004)). As the Court explained in its prior Order, because Nero has not tried to individually license only the patents it needs, its argument that direct licensing is economically infeasible remains a speculative hypothesis. See id.

The FAC includes a new allegation that it would cost Nero $7 million to determine which essential patents Nero must license to comply with the MPEG-2 standard.*fn3 FAC ¶ 42. Even if Nero's estimate were accurate, this allegation adds nothing to pleading because the time and effort Nero will have to expend to determine which patents it needs to license to avoid infringement litigation is irrelevant to the feasibility determination. Nero AG, 2010 WL 4366448, at *6(citing Buffalo Broadcasting Co., Inc. v. Am. Soc'y of Composers, Authors & Publishers, 744 F.2d 917, 926 (2d Cir. 1984); Columbia Broadcasting Sys., Inc. v. Am. Soc'y of Composers, Authors & Publishers, 620 F.2d 930, 936 (2d Cir. 1980); Cinram Int'l Inc., 299 F. Supp. 2d at 378-79); see also Nero AG, 2010 WL 4366448, at *7 (rejecting Nero's "prohibitively expensive" justification for failing to identify non-essential patents). Thus, having already rejected Nero's excuse that it would be cost-prohibitive for Nero to determine which patents it needs to license in order to practice its technology without infringing, the Court concludes again that Nero has failed to plausibly allege that direct licensing is infeasible.

2.Predatory Conduct: Willful Addition of Non-Essential Patents

Nero's allegations of predatory conduct continue to be premised on inference. Nero infers that because of the "drastic and unforeseen increase in the number of patents" in the patent pool, MPEG LA must have added hundreds of non-essential patents to the pool for predatory purposes. Compl. ¶ 11(b); FAC ¶ 11(b). The Court found Nero's original allegations were unsupported by any actual investigation into the essentiality of the patents in the pool because, for instance, Nero "fail[ed] to name even one example of one patent that is non-essential and added for the purpose of unlawfully extending the temporal scope of the patent pool." Nero AG, 2010 WL 4366448, at *7.

To its discussion of nonessential patents in the MPEG-2 pool, the FAC adds six examples of nonessential patents that Nero alleges were added for predatory purposes. Nero includes the following patents and the corresponding parenthetical descriptions in the FAC: U.S. Patent Nos. 5,420,866 (encryption, transmission of multiple program streams, and remote tower transmission and the like); 4,833,543 (hardware-implemented MPEG-2); 4,849,812 (same); 5,457,701 (remote tower transmission and the like); 5,461,420 (telecine processing schemes); 5,453,790 (digital playback in real time). FAC ΒΆ 40. Nero alleges: Those patents and others are not infringed by the products offered by Nero and other similarly-situated (MPEG-2-compliant) companies, and, as a result, these patents are not essential to complying with the ...


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