Microsoft Mobile, Inc. et al v. InterDigital, Inc. et al
MEMORANDUM ORDER Denying 29 MOTION for Certification of Interlocutory Appeal (D.I. 29 ). Signed by Judge Richard G. Andrews on 6/13/2016. (nms)
Case 1:15-cv-00723-RGA Document 35 Filed 06/13/16 Page 1 of 3 PageID #: 952
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MICROSOFT MOBILE INC. and
MICROSOFT MOBILE OY,
INTERDIGITAL, INC., INTERDIGITAL
CORPORATION, INTERDIGITAL PATENT
HOLDINGS, INC., INTERDIGITAL
HOLDINGS, INC., and IPR LICENSING,
Presently before the Court is Defendants' (collectively "JDC") Motion for Certification
of Interlocutory Appeal. (D.1. 29). The issue has been fully briefed. (D.I. 30, 31, 32). For the
reasons set forth herein, IDC's motion is DENIED.
On April 13, 2016, the Court denied IDC's motions to dismiss and to strike. (D.I. 27).
JDC now moves for certification of interlocutory appeal, specifically "request[ing] that the Court
amend its [Order] by certifying for interlocutory appeal ... the following questions: (1) Whether
a complaint alleging monopolization attributable to an allegedly false promise to license
standards-essential patents on FRAND terms states a claim under Sherman Act Section 2 without
identification of any patent that is, in fact, essential to a standard; and (2) Whether a complaint
alleging monopolization based on alleged abuse of standards-essential patents- is barred by the
Noerr-Pennington doctrine when the complaint relies on non-sham patent enforcement conduct
as the primary cause of the alleged antitrust violation." (D.1. 29).
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"The decision of whether to grant leave to file an interlocutory appeal is 'informed by the
criteria set forth in 28 U.S.C. § 1292(b)."' Chase Bank USA, NA. v. Hess, 2011WL4459604, at
*1 (D. Del. Sept. 26, 2011) (quoting In re Phi/a. Newspapers, LLC, 418 B.R. 548, 556 (E.D. Pa.
2009)). "Leave to file an interlocutory appeal may be granted when the order at issue (1)
involves a controlling question of law upon which there is (2) substantial grounds for difference
of opinion as to its correctness, and (3) if appealed immediately, may materially advance the
ultimate termination of the litigation." In re SemCrude, L.P., 407 B.R. 553, 556-57 (D. Del.
2009) (citing Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974)); see also 28 U.S.C.
§ 1292(b). "Interlocutory appeal is meant to be used sparingly and only in exceptional cases
where the interests cutting in favor of immediate appeal overcome the presumption against
piecemeal litigation." DeLalla v. Hanover Ins., 2010 WL 3908597, at *3 (D.N.J. Sept. 30,
IDC seeks appeal on two bases, neither of which satisfies the criteria set forth in§
IDC contends that Microsoft did not allege sufficient facts to sustain a § 2
monopolization claim. Even assuming that this is a controlling question oflaw, I do not believe
that there is a substantial ground for difference of opinion on this question. The Third Circuit's
decision in Broadcom Corp. v. Qualcomm Inc., 501 F .3d 297 (3d Cir. 2007), is squarely on point
and is controlling.
Additionally, neither basis, if appealed immediately, would "materially advance the
ultimate termination of the litigation." In re SemCrude, 407 B.R. at 557. IDC seeks appeal from
a denial of a motion to dismiss. Even if the motion to dismiss were eventually granted,
Microsoft would be afforded leave to amend its complaint. Further, as to the Noerr-Pennington
Case 1:15-cv-00723-RGA Document 35 Filed 06/13/16 Page 3 of 3 PageID #: 954
question, since Microsoft alleged harms flowing from conduct outside of the scope of Noerr-
Pennington immunity, even a successful dismissal would only narrow the scope of Microsoft's
antitrust claim, rather than dispose of it entirely.
I conclude that IDC has failed to present the exceptional circumstances which would
justify an interlocutory appeal.
For the reasons stated above, IDC's motion for certification of interlocutory appeal (D.I.
29) is DENIED.
It is SO ORDERED this
day of June, 2016.
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