Case 6:14-cv-00982-KNM Document 179 Filed 12/24/15 Page 1 of 15 PageID #: 2209
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`
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`
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`CIVIL ACTION NO. 6:14-cv-982-KNM
`LEAD CASE
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`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC,
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` Plaintiff,
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`v.
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`LG ELECTRONICS, INC., ET AL.,
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` Defendants.
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`
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`SONY MOBILE’S OPPOSITION TO PLAINTIFF’S MOTION TO DISMISS BREACH
`OF CONTRACT COUNTERCLAIMS BY CERTAIN MANUFACTURER
`DEFENDANTS
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`

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`Case 6:14-cv-00982-KNM Document 179 Filed 12/24/15 Page 2 of 15 PageID #: 2210
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`TABLE OF CONTENTS
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`LEGAL STANDARD ..................................................................................................................... 1
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`STATEMENT OF THE FACTS .................................................................................................... 2
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`ARGUMENT .................................................................................................................................. 3
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`I.
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`SONY MOBILE’S BREACH OF CONTRACT COUNTERCLAIM IS
`ADEQUATELY PLEADED ON ITS FACE ........................................................................ 3
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`A. Licensing Declarations Made by CCE’s Predecessors-in-Interest Constitute
`Express or Implied Contracts Between CCE and Sony Mobile ..................................... 4
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`B. CCE is Bound by the Licensing Declarations of Its Predecessors ................................. 6
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`C. Performance or Tendered Performance Has Been Adequately Pleaded ........................ 7
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`II.
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`THE DOCUMENTS REFERENCED IN THE COMPLAINT PROVIDE
`ADDITIONAL FACTUAL SUPPORT FOR THE BREACH OF CONTRACT
`COUNTERCLAIM ............................................................................................................... 9
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`CONCLUSION ............................................................................................................................... 9
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`i
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`Case 6:14-cv-00982-KNM Document 179 Filed 12/24/15 Page 3 of 15 PageID #: 2211
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`
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`CASES
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`TABLE OF CONTENTS
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`Apple Inc. v. Samsung Elecs. Co.,
`Case No. 11-CV-01846, 2012 U.S. Dist. LEXIS 67102 (N.D. Cal. May 14, 2012) .............. 6, 8
`
`Apple, Inc. v. Motorola Mobility, Inc.,
`Case No. 11-CV-178, 2011 U.S. Dist. LEXIS 72745 (W.D. Wis. June 7, 2011) ...................... 6
`
`Apple, Inc. v. Motorola, Inc.,
`869 F. Supp. 2d 901 (N.D. Ill. 2012) .......................................................................................... 8
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ........................................................................................................ 1, 4, 8, 9
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 554 (2007) .................................................................................................................... 1
`
`BMC Software, Inc. v. ServiceNow, Inc.,
`Case No. 2:14-CV-903, 2015 U.S. Dist. LEXIS 64366 (E.D. Tex. May 18, 2015) ....... 4, 6, 8, 9
`
`Bowlby v. City of Aberdeen,
`681 F.3d 215 (5th Cir. 2012) ...................................................................................................... 1
`
`Castillo v. Ocwen Loan Servicing, L.L.C.,
`539 Fed. App'x 621 (5th Cir. Tex. 2013). ................................................................................... 6
`
`Datatreasury Corp. v. Wells Fargo & Co.,
`522 F.3d 1368 (Fed. Cir. 2008). ................................................................................................. 7
`
`Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,
`594 F.3d 383 (5th Cir. 2010) .................................................................................................. 2, 9
`
`Microsoft Corp. v. Motorola, Inc.,
`864 F. Supp. 2d 1023 (W.D. Wash. 2012), aff’d, 795 F.3d 1024 (9th Cir. 2015) ................... 6, 8
`
`O’Shea v. Parkey,
`No. 4:12CV265, 2014 WL 494905 (E.D. Tex. Feb. 4, 2014) .................................................... 1
`
`Realtek Semiconductor Corp. v. LSI Corp.,
`946 F. Supp. 2d 998 (N.D. Cal. 2013) ................................................................................ 5, 7, 8
`
`TQP Dev., LLC v. Callidus Software Inc.,
`No. 2:12-CV-799-JRG-RSP, 2013 WL 4826011 (E.D. Tex. Sept. 9, 2013) .............................. 1
`
`United States v. Bollinger Shipyards, Inc.,
`775 F.3d 255 (5th Cir. 2014) ...................................................................................................... 6
`
`ii
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`Case 6:14-cv-00982-KNM Document 179 Filed 12/24/15 Page 4 of 15 PageID #: 2212
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`OTHER AUTHORITIES
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`United States Department of Justice and United States Patent & Trademark Office, “Policy
`Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND
`Commitments” (January 8, 2013) ............................................................................................... 6
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`RULES
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`Fed. R. Civ. P. 12(b)(6)........................................................................................................... 1, 2, 4
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`Fed. R. Civ. P. 8(a)(2) ..................................................................................................................... 1
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`iii
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`Case 6:14-cv-00982-KNM Document 179 Filed 12/24/15 Page 5 of 15 PageID #: 2213
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`Plaintiff Cellular Communications Equipment LLC (“CCE”), after serving a threadbare
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`amended complaint with formulaic recitations of claim language, now argues in a three-page
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`motion to dismiss that the detailed breach of contract counterclaim of Defendant Sony Mobile
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`Communications (USA), Inc. (“Sony Mobile”) is somehow deficient. Sony Mobile’s
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`counterclaim is grounded in the express commitment of CCE and/or its predecessors-in-interest
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`to license the patents-in-suit on FRAND terms pursuant to the very same standards around which
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`CCE has framed its infringement contentions. Sony Mobile’s counterclaim details the factual
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`and legal basis for the contractual commitment as well as the bases for Sony Mobile’s allegations
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`of breach. It passes muster under all relevant case law, including the Twombly pleading
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`standard. CCE’s Motion to Dismiss Breach of Contract Counterclaims by Certain Manufacturer
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`Defendants (Dkt. No. 169 (hereafter, “Mot.”)) should therefore be denied.
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`LEGAL STANDARD
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`A complaint must contain “a short and plain statement of the claim showing that the
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`pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss under
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`Federal Rule of Civil Procedure 12(b)(6), a pleading “must contain sufficient factual matter,
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`accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). A court
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`“must assume that all well-pleaded facts are true, and view those facts in the light most favorable
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`to the plaintiff.” TQP Dev., LLC v. Callidus Software Inc., No. 2:12-CV-799-JRG-RSP, 2013
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`WL 4826011, at *1 (E.D. Tex. Sept. 9, 2013) (citing Bowlby v. City of Aberdeen, 681 F.3d 215,
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`218 (5th Cir. 2012)). A party does not need to present “detailed factual allegations,” though
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`mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” are
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`insufficient to meet the pleading standard. Iqbal, 556 U.S. at 678. A party “meets this standard
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`when it ‘pleads factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.’” O’Shea v. Parkey, No. 4:12-CV-265, 2014 WL
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`494905, at *2 (E.D. Tex. Feb. 4, 2014) (quoting Iqbal, 556 U.S. at 678).
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`Case 6:14-cv-00982-KNM Document 179 Filed 12/24/15 Page 6 of 15 PageID #: 2214
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`When applying this pleading standard, the Court considers “the complaint, any
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`documents attached to the complaint, and any documents attached to the motion to dismiss that
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`are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v.
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`Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). In reviewing these documents in
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`response to a Rule 12(b)(6) motion to dismiss, “[t]he court’s task is to determine whether the
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`plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff’s
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`likelihood of success.” Id.
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`STATEMENT OF THE FACTS
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`On December 19, 2014,1 CCE filed its Original Complaint for Patent Infringement
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`against Sony Mobile. (Civ. Action No. 6:14-cv-983, Dkt No. 1). CCE alleged that Sony Mobile
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`infringed U.S. Patent Nos. 8,385,966 (“the ’966 Patent); 8,848,556 (“the ’556 Patent); and
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`8,868,060 (“the ’060 Patent”). CCE also alleged that all three asserted patents were “standard
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`essential” patents (collectively “the Alleged Standard Essential Patents”) that had been disclosed
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`to the 3rd Generation Partnership Project (or “3GPP”) via the European Telecommunications
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`Standards Institute (or “ETSI”), “an organizational member of 3GPP.” (Civ. Action No. 6:14-
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`cv-983, Dkt No. 1 at ¶¶ 21, 35, 46). Further, CCE alleged that Sony Mobile was a 3GPP
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`“member organization” or was “affiliated with a 3GPP member organization.” (Id.)
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`On April 16, 2015, CCE filed its First Amended Complaint for Patent Infringement. (Dkt
`
`No. 29).2 The First Amended Complaint continued to assert all three Alleged Standard Essential
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`Patents and to maintain that they were “standard essential.” (Id. at ¶¶ 20, 35, 46). CCE also
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`continued to allege that Sony Mobile was a 3GPP member organization or was “affiliated with a
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`3GPP member organization.” (Id.)
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`1 CCE alleges (Mot. at 2) that Sony Mobile has “participated in this lawsuit from as early as
`2013” and had “years” to formulate counterclaims. These statements are wrong on their face.
`Sony Mobile has nothing to do with the cases that CCE filed in 2013. Those cases concern
`entirely separate defendants and patents.
`2 All subsequent citations to docket numbers refer to the lead 982 case.
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`Sony Mobile answered the First Amended Complaint on November 13, 2015. (Dkt. No.
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`149.) In its accompanying counterclaims, Sony Mobile alleged that “[a]s a member of ETSI, and
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`to comply with ETSI’s Intellectual Property Rights (‘IPR’) Policy, CCE and/or its predecessors
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`represented to ETSI, ETSI members, and third parties that it would grant irrevocable licenses to
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`the Alleged Standard Essential Patents on fair, reasonable, and non-discriminatory (‘FRAND’)
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`terms and conditions.” (Id. at ¶ 38.) Sony Mobile also alleged that “CCE did not make an offer
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`to license the Alleged Standard Essential Patents on FRAND terms to Sony Mobile prior to filing
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`its Complaint for patent infringement.” (Id. at ¶ 42.) Accordingly, Sony Mobile asserted a
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`breach of contract counterclaim based on ETSI’s IPR Policy and CCE’s (or its predecessors’)
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`ETSI membership and activities, including any FRAND licensing declarations made to ETSI to
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`comply with ETSI’s IPR Policy. (Id. at ¶¶ 36-46.)
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`On December 7, 2015, CCE moved to dismiss Sony Mobile’s breach of contract
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`counterclaim. (Dkt. No. 169.)
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`ARGUMENT
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`I.
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`SONY MOBILE’S BREACH OF CONTRACT COUNTERCLAIM IS
`ADEQUATELY PLEADED ON ITS FACE
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`CCE advances two arguments for dismissing Sony Mobile’s counterclaim.
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`First, CCE maintains that Sony Mobile fails to identify an “express and/or implied
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`contract” between Sony Mobile and CCE. (Mot. at 3). CCE also alleges that even if such an
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`express or implied contract existed between Sony Mobile and one of CCE’s predecessors, Sony
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`Mobile fails to allege “why CCE is a proper party to sue” for breach of this contract. (Id.)
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`However, CCE cherry picks one sentence from Sony Mobile’s pleading while ignoring the other
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`nine paragraphs.
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`Second, CCE asserts that Sony Mobile’s counterclaim is deficient because it does not
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`plead Sony Mobile’s “performance or tendered performance,” which according to CCE is a
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`required element of a breach of contract claim. (Mot. at 3). CCE’s arguments are contrary to
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`established law concerning FRAND obligations.
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`Case 6:14-cv-00982-KNM Document 179 Filed 12/24/15 Page 8 of 15 PageID #: 2216
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`When read as a whole (as opposed to CCE’s misleading excerpt), Sony Mobile’s breach
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`of contract counterclaim includes more than sufficient factual detail to state a plausible – indeed,
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`compelling – claim for relief. Iqbal, 556 U.S. at 678; see also BMC Software, Inc. v.
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`ServiceNow, Inc., Case No. 2:14-CV-903, 2015 U.S. Dist. LEXIS 64366, at *8-10 (E.D. Tex.
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`May 18, 2015) (denying three motions to dismiss under Rule 12(b)(6) because the pleadings
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`were “sufficiently plausible”).
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`A.
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`Licensing Declarations Made by CCE’s Predecessors-in-Interest
`Constitute Express or Implied Contracts Between CCE and Sony Mobile
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`CCE’s motion to dismiss Sony Mobile’s breach of contract counterclaim turns on one
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`sentence that CCE isolates and inexplicably characterizes as Sony Mobile’s purported “best
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`attempt” at pleading the counterclaim. (Mot. at 2-3). Yet Sony Mobile provided ten paragraphs
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`of detailed factual allegations in its pleading supporting this counterclaim. (Dkt. No. 149 at ¶¶
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`37-46.)
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`Sony Mobile pleaded that the contract in question arises from the ETSI IPR Policy and
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`reflects FRAND licensing commitments that CCE and/or its predecessors-in-interest made to
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`ETSI and its members regarding the Alleged Standard Essential Patents.3 More specifically,
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`Sony Mobile also pleaded that the licensing declarations “represented to ETSI, ETSI members,
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`and third parties that it would grant irrevocable licenses to the Alleged Standard Essential Patents
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`on fair, reasonable, and non-discriminatory (‘FRAND’) terms and conditions” with respect to the
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`very same ETSI standards that are at the heart of CCE’s infringement contentions. (Id. at ¶ 38.)
`
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`3 As described above, CCE asserts in its own pleadings that all three of the patents CCE asserts
`against Sony Mobile are “standard essential patents” disclosed to 3GPP and its member
`organizations via ETSI. (Dkt. No. 29 at ¶¶ 20, 35, 46) In fact, CCE relies on these disclosures
`as evidence that Sony Mobile allegedly had actual knowledge of these patents. (Id.) As the
`licensing declarations produced in this case by CCE confirm, each of these patents was expressly
`the subject of a FRAND licensing commitment made by CCE’s predecessor to ETSI in
`accordance with the ETSI IPR Policy. Ex. A (June 21, 2011 Declaration) (’966 Patent); Ex. B
`(Oct. 26, 2012 Declaration) (’556 Patent); Ex. C (Dec. 14, 2010 Declaration) (’060 Patent).
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`Sony Mobile—as an affiliate of an ETSI member and/or third party—is an express or implied
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`party4 to the irrevocable licensing declarations, which, as Sony Mobile pleaded, “are permanent,
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`and cannot be revoked by sale of the patent.” (Id. at ¶ 41.) CCE breached those obligations by
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`failing to “make an offer to license the Alleged Standard Essential Patents on FRAND terms to
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`Sony Mobile prior to filing its Complaint for patent infringement” and by seeking more than a
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`FRAND royalty in its prayer for relief. (Id. at ¶¶ 42-44.)
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`CCE ignores these details of the contractual obligations and instead cites only a single
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`overview sentence. Sony Mobile in fact alleged in detail:
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`CCE and/or its predecessors ETSI membership and activities, including the
`declarations it made to comply with ETSI’s IPR policy for the Alleged Standard
`Essential Patents, created an express and/or implied contract with ETSI and/or
`ETSI members including an agreement that CCE and/or its predecessors would
`license those patents on FRAND terms and conditions.
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` (Id. at ¶ 39 (emphasis added).) Further, Sony Mobile alleged that “[u]nder ETSI’s IPR Policy,
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`third parties that are not ETSI members also have the right to be granted licenses under those
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`patents on FRAND terms and conditions. (Id. at ¶ 40.)
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`Assuming the foregoing assertions are true—as the Court must on a motion to dismiss—
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`Sony Mobile has sufficiently pleaded that a valid express and/or implied contract exists between
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`CCE and Sony Mobile through the licensing declarations submitted by CCE (or its predecessors-
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`in-interest) concerning the Alleged Standard Essential Patents and that these declarations
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`obligate CCE to provide Sony Mobile a FRAND license to the Alleged Standard Essential
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`Patents. Several district and circuit courts have found that similar FRAND licensing declarations
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`create contractual obligations. E.g., Realtek Semiconductor Corp. v. LSI Corp., 946 F. Supp. 2d
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`998, 1005 (N.D. Cal. 2013) (“There is no dispute in this case that defendants entered into a
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`binding contract with the [standards-setting organization] to license their declared standard-
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`essential patents … on RAND terms, and that Realtek is a third party beneficiary to that
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`4 Even if Sony Mobile were not an express party to the licensing declarations, it was at least an
`intended third-party beneficiary to those declarations. See § I(C), infra.
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`contract.”); Apple Inc. v. Samsung Elecs. Co., Case No. 11-CV-01846, 2012 U.S. Dist. LEXIS
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`67102 at *40-44 (N.D. Cal. May 14, 2012); Microsoft Corp. v. Motorola, Inc., 864 F. Supp. 2d
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`1023, 1036-39 (W.D. Wash. 2012), aff’d, 795 F.3d 1024 (9th Cir. 2015); Apple, Inc. v. Motorola
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`Mobility, Inc., Case No. 11-CV-178, 2011 U.S. Dist. LEXIS 72745 at *22-33 (W.D. Wis. June 7,
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`2011); see also United States Department of Justice and United States Patent & Trademark
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`Office, “Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary
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`F/RAND Commitments” (January 8, 2013) at 7, n.14 (Ex. D).
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`The sole case (Castillo v. Ocwen Loan Servicing) that CCE cites granting a motion to
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`dismiss a contract claim is inapposite and indeed has nothing to do with licensing obligations.
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`In Castillo, the plaintiff relied on the doctrine of partial performance of a contract that did not
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`satisfy the statute of frauds and was hence invalid. 539 F. App’x 621, 624 (5th Cir. 2013). The
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`Castillo court merely reiterated that the existence of a valid contract is a required element to any
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`breach of contract claim. Here, Sony Mobile has pleaded sufficient facts to allow this Court to
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`draw the “reasonable inference” that CCE has plausibly breached its obligation—by “more than
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`a sheer possibility”—to license the Alleged Standard Essential Patents on FRAND terms. BMC
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`Software, 2015 U.S. Dist. LEXIS 64366, at *2-3 (quoting United States v. Bollinger Shipyards,
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`Inc., 775 F.3d 255, 260 (5th Cir. 2014)).
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`B.
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`CCE is Bound by the Licensing Declarations of Its Predecessors
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`Sony Mobile also adequately pleaded the factual basis indicating why CCE—the
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`purported current owner of the Alleged Standard Essential Patents—is the proper party to sue for
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`breaching this contractual commitment. As the counterclaim emphasizes, “[w]hen a patent is
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`declared as a Standard Essential Patent, the commitments made with regard to the declared
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`patent are permanent, and cannot be revoked by sale of the patent.” (Dkt. No. 149 at ¶ 41).
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`In other words, the contractual obligations associated with the licensing declarations bind all
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`successors-in-interest and current owners of the Alleged Standard Essential Patents.
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`CCE, as the purported current owner of the Alleged Standard Essential Patents, is
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`therefore also obligated to license these patents on FRAND terms because assignees “take[ ] a
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`patent subject to the legal encumbrances thereon.” Datatreasury Corp. v. Wells Fargo & Co.,
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`522 F.3d 1368, 1372–72 (Fed. Cir. 2008). Sony Mobile has therefore pleaded sufficient facts to
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`state a plausible claim for relief against CCE, as the successor-in-interest and purported current
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`owner of the Alleged Standard Essential Patents.
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`C.
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`Performance or Tendered Performance Has Been Adequately Pleaded
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`CCE’s argument regarding Sony Mobile’s failure to plead “performance or tendered
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`performance” (Mot. at 3) also misses the mark. Lacking any supporting case law, CCE baldly
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`asserts that Sony Mobile “must allege the tender of [its] willingness to license CCE patents on
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`FRAND terms.” CCE misunderstands the nature of the underlying licensing declarations. As
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`explained in Sony Mobile’s counterclaim, the declarations contain promises that “CCE and/or its
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`predecessors would license [the alleged standard essential] patents on FRAND terms and
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`conditions” to both ETSI members and non-members alike. (Dkt. No. 149 at ¶¶ 39-41.) Sony
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`Mobile is therefore entitled to FRAND licenses for the Alleged Standard Essential Patents. CCE
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`breached its commitment at least when it filed this lawsuit without even offering a FRAND
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`license and sought damages in excess of FRAND terms. See, e.g., Realtek, 946 F. Supp. 2d at
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`1005 (instigating an ITC Section 337 action prior to offering a FRAND license is a breach of a
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`FRAND licensing declaration). Indeed, as CCE’s own complaint acknowledges, Sony Mobile is
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`“affiliated with a 3GPP member organization.” (Dkt. No. 29 at ¶¶ 20, 35, 46). This affiliation
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`constitutes the requisite performance under the contract. All third parties, including those who
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`implement the ETSI technical specification or standard under which the Alleged Standard
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`Essential Patents are declared essential, are also entitled to a FRAND license.
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`As an intended third-party beneficiary to the licensing declarations made to ETSI, Sony
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`Mobile is also eligible to sue to enforce the declarations. See Apple Inc. v. Samsung Elecs. Co.,
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`2012 U.S. Dist. LEXIS 67102 at *41-42 (third party may sue to enforce ETSI licensing
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`declarations under a third-party beneficiary contract theory); Realtek, 946 F. Supp. 2d at 1005
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`(same as applied to IEEE licensing declarations). Under this theory, ETSI tendered performance
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`under the contract when it accepted the declarations under the terms of the ETSI IPR Policy. See
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`Apple, Inc. v. Motorola, Inc., 869 F. Supp. 2d 901, 914 (N.D. Ill. 2012) (standard essential patent
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`owner “agreed to license its standards-essential patents on FRAND terms as a quid pro quo for
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`their being declared essential to the standard”).
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`Sony Mobile has thus adequately pleaded “performance or tendered performance” under
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`both a third-party beneficiary and an express or implied contract theory.
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`Contrary to CCE’s unsupported assertions, there is no requirement to negotiate or ask for
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`a FRAND license before a breach of a FRAND commitment occurs. See Microsoft Corp. v.
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`Motorola, Inc., 864 F. Supp. 2d at 1035 (negotiation of a FRAND license is not a condition
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`precedent to a patent owner’s FRAND obligations); see also Apple, Inc. v. Motorola, Inc., 869 F.
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`Supp. 2d at 914 (agreements to license on FRAND terms are not “conditioned [] on prospective
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`licensees’ making counteroffers in license negotiations”).
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`Instead, CCE breached its FRAND obligations by filing the present lawsuit without first
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`offering Sony Mobile the FRAND license to which it was entitled. Realtek, 946 F. Supp. 2d at
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`1005. Sony Mobile’s counterclaim makes this clear: “CCE did not make an offer to license the
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`Alleged Standard Essential Patents on FRAND terms to Sony Mobile before filing its Complaint
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`for patent infringement …. CCE’s conduct…constitutes a breach of its contractual obligations to
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`ETSI and/or ETSI members and deprives third parties of their right to be granted FRAND
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`licenses under the Alleged Standard Essential Patents.” (Dkt. No. 149 at ¶¶ 42, 44.) Sony
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`Mobile’s breach of contract counterclaim therefore includes more than sufficient factual detail to
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`state a “sufficiently plausible” claim for breach of contract. Iqbal, 556 U.S. at 678; BMC
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`Software, 2015 U.S. Dist. LEXIS 64366, at *8-10.
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`Case 6:14-cv-00982-KNM Document 179 Filed 12/24/15 Page 13 of 15 PageID #: 2221
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`II.
`
`THE DOCUMENTS REFERENCED IN THE COMPLAINT PROVIDE
`ADDITIONAL FACTUAL SUPPORT FOR THE BREACH OF CONTRACT
`COUNTERCLAIM
`
`Given that Sony Mobile’s counterclaim referenced the ETSI IPR Policy and licensing
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`declarations, these documents must also be considered when assessing the sufficiency of Sony
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`Mobile’s pleading. Lone Star Fund, 594 F.3d at 387. These documents provide further factual
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`support for Sony Mobile’s breach of contract counterclaim.
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`Each of the licensing declarations made by Nokia Siemens Networks (CCE’s
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`predecessor-in-interest) states that the declarant is “prepared to grant irrevocable licenses…on
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`terms and conditions which are in accordance with Clause 6.1 of the ETSI IPR Policy.” (Ex. A
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`at 1; Ex B at 1; Ex. C at 2.) Clause 6.1 of the ETSI IPR Policy explains that when a patent is
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`identified to ETSI as “essential,” the patent owner will be immediately requested to give “an
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`irrevocable undertaking in writing that it is prepared to grant irrevocable licenses on fair,
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`reasonable and non-discriminatory (‘FRAND’) terms and conditions.” (Ex. E at § 6.1.) ETSI’s
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`IPR Policy also requires that “FRAND licensing undertakings made pursuant to Clause 6 shall be
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`interpreted as encumbrances that bind all successors-in-interest,” like CCE. (Id. at § 6.1bis
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`(emphasis added).) On their face, therefore, the ETSI IPR Policy and licensing declarations can
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`be reasonably interpreted to create an express and/or implied contract between CCE (i.e., the
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`successor-in-interest to the Alleged Standard Essential Patents), and Sony Mobile (i.e., affiliated
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`with an ETSI member). (See also id. at § 12 (explaining that rights and obligations under the
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`ETSI IPR Policy are of “a contractual nature”).) These documents, along with the pleadings
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`contained within Sony Mobile’s counterclaim, include more than sufficient factual detail to state
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`a “sufficiently plausible” claim for relief for breach of contract. Iqbal, 556 U.S. at 678; BMC
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`Software, 2015 U.S. Dist. LEXIS 64366, at *8-10.
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`CONCLUSION
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`For the foregoing reasons, CCE’s Motion to Dismiss should be denied.
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`Case 6:14-cv-00982-KNM Document 179 Filed 12/24/15 Page 14 of 15 PageID #: 2222
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`Dated: December 24, 2015
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`Respectfully submitted by,
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`/s/ Michael N. Rader
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`Michael N. Rader (admitted pro hac vice)
`Charles T. Steenburg (admitted pro hac vice)
`Chelsea A. Loughran (admitted pro hac vice)
`WOLF, GREENFIELD & SACKS, P.C.
`600 Atlantic Avenue
`Boston, MA 02210
`Tel: (617) 646-8000
`Fax: (617) 646-8646
`mrader@wolfgreenfield.com
`csteenburg@wolfgreenfield.com
`chelsea.loughran@wolfgreenfield.com
`
`Richard L. Wynne
`Texas State Bar No. 24003214
`THOMPSON & KNIGHT LLP
`One Arts Plaza
`1722 Routh St., Suite 1500
`Dallas, TX 75201
`Telephone: 214.969.1386
`Fax: 214.880.3267
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`COUNSEL FOR DEFENDANT SONY
`MOBILE COMMUNICATIONS (USA) INC.
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`Case 6:14-cv-00982-KNM Document 179 Filed 12/24/15 Page 15 of 15 PageID #: 2223
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing document was filed
`electronically in compliance with Local Rule CV-5 on this December 24, 2015. As of this date
`all counsel of record have consented to electronic service and are being served with a copy of
`this document through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A).
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`/s/ Michael N. Rader
`Michael N. Rader
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