Motorola Mobility, Inc. v. Openwave Systems, Inc. et al

Filing 63

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 8/27/12: For the reasons stated in this Memorandum Opinion and Order, the Court grants in part Myriad France's motion for reconsideration and motion to dismiss [docket nos. 37, 48], grants the parties' joint motion to amend/correct [docket no. 61], and terminates Myriad Group's motion as moot [docket no. 45]. The Court's decision in Motorola Mobility, Inc. v. Myriad France SAS, __ F. Supp. 2d __, 11 C 7373, 2012 WL 367118 (N.D. Ill. Feb. 2, 2012) is vacated to the extent it is inconsistent with the present decision. The case is set for a status hearing on September 4, 2012 at 9:30 a.m. to set a schedule for further proceedings. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MOTOROLA MOBILITY, INC.,
Plaintiff,
vs.
MYRIAD FRANCE SAS and MYRIAD
GROUP AG,
Defendants.

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Case No. 11 C 7373

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Motorola Mobility, Inc. has sued Myriad France SAS and Myriad Group AG for
breach of contract, alleging that they failed to comply with their contractual obligations to
indemnify Motorola Mobility for damages it sustained as a result of defective software
they produced. Both defendants filed motions to dismiss, one of which the Court
granted in part. Motorola Mobility, Inc. v. Myriad France SAS, __ F. Supp. 2d __, 11 C
7373, 2012 WL 367118 (N.D. Ill. Feb. 2, 2012).
Motorola Mobility has since filed a third amended complaint. Both defendants
have moved to dismiss the third amended complaint in its entirety. Myriad France’s
motion incorporates part of a motion it previously filed seeking reconsideration of a part
of the Court’s previous decision. For the reasons stated below, the Court grants Myriad
France’s motions in part (thereby modifying the Court’s February 2, 2012 decision) and
terminates Myriad Group’s motion as moot.

Background
The Court draws the following facts from the allegations in Motorola Mobility’s
complaint, which the Court accepts as true for purposes of the motions to dismiss.
Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 853 (7th Cir. 2012).
As the Court explained in its previous decision, with which the Court assumes
familiarity, Motorola, Inc. and Phone.com, Inc. entered into a Master License and
Services Agreement (MSA) in October 1999. Phone.com agreed to license messaging
and browser software for use in Motorola phones. Later, Motorola Mobility (“Motorola”)
was substituted for Motorola, Inc. Openwave Systems was substituted for Phone.com,
and Myriad France was later substituted for Openwave. Myriad France does not
dispute that it is bound to Phone.com’s and Openwave’s obligations under the MSA and
several of its amendments. Myriad Group is Myriad France’s parent corporation.
Motorola alleges that defendants breached the MSA by delivering defective
software products on three occasions and failing to address the consequences
adequately. First, Motorola claims that in 2005, Openwave designed, developed, and
delivered a defective mobile phone Internet browser that Motorola included in a mobile
phone it sold to Verizon. The software failed to promptly terminate browser sessions.
This resulted in the overcharging of Verizon customers, who later sued Verizon in a
class action. Motorola was contractually obligated to defend and indemnify Verizon for
the damages arising out of this action, and Motorola in turn sought defense and
indemnification from Openwave, which refused Motorola’s request. Motorola ultimately
paid a portion of the costs of settling the Verizon class action and alleges that it was
thereby damaged “in excess of $500,000.” Third Am. Compl. ¶ 29. In count one of its
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complaint, Motorola seeks indemnification from defendants for this amount.
Motorola also alleges that Openwave designed, developed, and delivered a
second defective software product in late 2008 and early 2009. The defect caused
mobile phone browsers to issue an erroneous message that rendered the browser
unusable. Motorola included the software in phones it was developing for Tracfone,
which discovered the defect during pre-release testing. “Motorola immediately notified
Defendants of the defect and asked Defendants to remedy the defect.” Id. ¶ 33.
“Defendants failed to timely remedy the defect, and, as a result, [Tracfone] cancelled its
purchase of the phone from Motorola.” Id. This caused Motorola to be damaged “in
excess of $5 million,” id. ¶ 36, for which it sought indemnification but was refused.
Motorola seeks damages for defendants’ failure to indemnify (count two) and for
defendants’ breach of the warranties set out in the MSA (count three).
Finally, Motorola alleges that Openwave designed, developed, and delivered a
defective software product in 2010 that rendered the browser unusable. Motorola
included the software in phones it was developing for Tracfone, which again discovered
the defect during pre-release testing. This delayed the release of the phone, damaging
Motorola “in excess of $1.7 million.” Id. ¶ 47. Motorola again notified defendants of the
defect immediately, but they failed to remedy the problem, and they later rejected
Motorola’s request for indemnification. Motorola seeks damages for defendants’ failure
to indemnify (count four) and for breach of the software warranties (count five).
In Myriad France’s previous motion to dismiss, it argued that section 14.1 of the
MSA, on which Motorola bases its indemnification claims, did not provide a basis for
relief. That provision states, in relevant part:
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Scope of Indemnification. PHONE.COM agrees to defend, indemnify, and hold
harmless Motorola from and against any claim, suit or proceeding and any
damages, liability, or other expenses (including, but not limited to, reasonable
attorneys’ fees and court costs) which arise out of or result from: (I) gross
negligence or wrongful acts of employees of PHONE.COM while performing
PHONE.COM’s obligations hereunder; and/or (ii) infringement of any third party
patent, copyright, trade secret, or trademark rights.
Id. Ex. B. at 40. Myriad France contended that the MSA was an agreement to license
software, not to design or develop it, and that its “obligations hereunder” did not include
the provision of functioning software. The Court ruled that Motorola’s allegations “that
Openwave delivered defective software; the defect resulted in a class action against
which Motorola was obligated to defend and indemnify Verizon; and Openwave then
refused to defend and indemnify Motorola” constituted “allegations that, if proven, could
establish that Myriad France has breached its indemnification obligations under the
terms of the MSA, entitling Motorola to relief.” Motorola Mobility, 2012 WL 367118, at
*5. The Court also stated that if “Motorola could not bring a claim under section 14.1 of
the MSA for lawsuits like this one, it is not clear what purpose that provision would
serve.” Id. Motorola now seeks reconsideration of this ruling.
Myriad Group has, throughout this litigation, contended that it cannot be held
liable under the MSA because only Myriad France succeeded to Phone.com’s and
Openwave’s obligations. Motorola contended that it could “pierce the corporate veil” to
reach Myriad Group as Myriad France’s parent company, but Myriad Group maintained
in its motion to dismiss that Motorola had failed to allege a sufficiently close relationship
between the companies for that doctrine to apply. After these motions were fully
briefed, however, the parties filed a joint stipulation in which they ask the Court to hold
Myriad France and Myriad Group “jointly and severally liable for any and all claims and
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damages for which one or the other entity is found to be liable in this case.” Joint Mot.
to Amend/Correct at 2. They also ask the Court to allow the filing of a fourth amended
complaint alleging the same claims directly against both Myriad France and Myriad
Group and to allow the withdrawal of Myriad Group’s motion to dismiss the third
amended complaint as moot.
The Court grants these requests. Although Motorola did not attach its
proposed fourth amended complaint to the motion, the parties state that Myriad
France’s motion to dismiss the third amended complaint is “fully applicable to the Fourth
Amended Complaint and ripe for decision by the Court.” Id. at 3. The Court will
therefore proceed to rule on Motorola’s claims as they are alleged in the third amended
complaint.
Discussion
On a motion to dismiss under Rule 12(b)(6), the Court accepts the facts stated in
the complaint as true and draws reasonable inferences in favor of the plaintiff. Hallinan
v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). To
survive the motion, the complaint must include enough facts to state a claim for relief
that is plausible on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). A claim is
plausible on its face “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. at 1949.
1.

Indemnification
Defendants have moved the Court to reconsider its decision regarding the

previous version of the complaint. Because Motorola’s third (and fourth) amended
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complaint contain similar claims, defendants have incorporated the arguments from
their motion to reconsider the earlier decision into their motion to dismiss counts one,
two, and four of the current version of the complaint. Defendants’ argument that
Motorola cannot obtain damages for the software errors it discusses essentially has
three parts: the MSA does not obligate them to provide functioning software; the
warranty provisions contain only limited remedies that do not contemplate damages;
and the indemnification provision is not intended to cover first-party claims.
a.

Obligations outside the warranty provisions

As noted, section 14.1 of the MSA provides for indemnification for “gross
negligence or wrongful acts of employees of PHONE.COM while performing
PHONE.COM’s obligations hereunder.” Defendants contend that this cannot provide a
basis for Motorola’s claims because nothing in the MSA (outside of the warranty
provisions, which the Court will discuss below) obligates them to provide functioning
software.
First, defendants maintain that section 14.1 is intended to provide “standard
indemnification for claims based on the tortious acts of the company’s employees while
interacting and servicing the software, such as personal injury, theft, or
misappropriation.” Defs.’ Mot. to Reconsider at 6. There is no language in section 14.1
or elsewhere in the MSA establishing that this is the sole purpose of the provision, and
the Court agrees with Motorola that it may not read absent language into a written
contract. Defendants’ contention, however, may address the Court’s previously stated
concern that section 14.1 would be superfluous if it did not cover claims for software
errors.
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As quoted earlier, however, section 14.1 deals with negligent or wrongful acts by
defendants while performing their “obligations hereunder,” that is, under the MSA.
Defendants’ primary assertion is that their obligations under MSA do not include
providing properly functioning software, because the MSA is not an agreement to
design or develop software, but only to license software that already exists. See Third
Am. Compl. Ex. B at 1 (fifth recital, stating that the parties to the MSA are setting forth
the terms under which each party will license software to the other and provide
maintenence and support services).
Motorola responds that “[s]everal provisions of the MSA obligate Myriad to
provide functioning software.” Pl.’s Resp. to Defs.’ Mot. to Reconsider at 6. Other than
the MSA’s warranty provisions, however, the only portion of the MSA that Motorola cites
is an appendix to an amendment added to the MSA in 2005. The opening portion of the
appendix states as follows:
APPENDIX E - Custom Development
The provisions of this Appendix will apply to the Custom Development Services
provided to Licensee under this Agreement. Separate Ordering Documents or
Statements of Work (SOW) will specify the Services to be provided for the
development of unique features and applications to customer specifications
and/or bug fixes and enhancements to prior efforts.
“Services” will mean work performed by Openwave for Customer pursuant to an
Ordering Document or SOW agreed to by the parties in writing, under this
Agreement. The schedule for Services will be agreed upon by the parties,
subject to availability of Openwave personnel.
“Ordering Document” or “Statement of Work (SOW)” will mean Openwave’s
standard form for ordering Services which specifies the Services and applicable
fees. Each Ordering Document or SOW will be governed by the terms of this
Agreement and will reference the Effective Date of such.
Defs.’ Mot. to Reconsider Ex. 3.
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Motorola contends that the MSA “incorporates [the ordering documents or
statements of work] by reference,” that those documents “further identify unique
software features and applications for specific Motorola customers,” and that “any
failure by Myriad to comply with any of these software specifications is a breach of the
indemnification provision.” Pl.’s Resp. to Defs.’ Mot. to Reconsider at 6-7. Motorola has
not, however, provided any examples of ordering documents or statements of work.
Nor has it identified any provisions of any such documents that establish an obligation
that it claims Myriad breached. In addition, defendants contend that because “[i]t is
those agreements that provide the terms of whether a software error can constitute an
actionable claim for damages, not the MSA,” section 14.1 does not extend to any
breach of defendants’ obligations under an ordering document or statement of work.
Defs.’ Mot. to Reconsider at 7.
The Court concludes that defendants have the stronger argument. Motorola’s
argument is that Myriad’s obligations under the MSA include providing software that
functions according to the specifications in the ordering documents or statements of
work. Nothing in the language quoted above, however, indicates that these documents
give rise to an “obligation” regarding functioning software. Nor does the remainder of
Appendix E, which addresses licensing and pricing rather than product specifications.
Other than the warranty provisions, Motorola has not cited any other provision in
the MSA in support of its argument. After reviewing the entire MSA, the Court has not
found any other provision that suggests that Myriad employees’ obligations under the
MSA extend to providing properly functioning software. The Court concludes that no
provision of the MSA outside the warranty section obligates defendants to provide
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functioning software.
b.

Warranty provisions

Defendants contend that the MSA’s warranty provisions address any obligation
they might have to deal with software errors. In particular, they point to the following
disclaimer:
16.3 Warranty Disclaimer. EXCEPT AS PROVIDED SPECIFICALLY IN
SECTION 16.2.1 [and] 16.2.2[,] EACH PARTY PROVIDES NO WARRANTY,
WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF
MERCHANTABILITY, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR
FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
APPLICABLE LICENSED SOFTWARE . . . . NEITHER PARTY WARRANTS
THAT USE OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR
ERROR FREE.
Third Am. Compl. Ex. B at 43. Defendants argue that the last sentence of this
paragraph affirmatively indicates that nothing in the agreement outside of sections
16.2.1 and 16.2.2 obligates them to provide error-free software. Motorola responds that
because those sections “are expressly exempted from the warranty disclaimer . . . [the
disclaimer] does not alter Myriad’s obligations to provide functioning software and has
no relevance to the scope of the indemnification provision.” Pl.’s Resp. to Defs.’ Mot. to
Reconsider at 7.
Section 16.2.1 provides:
PHONE.COM warrants to Motorola, and solely for the benefit of Motorola, that for
a period of ninety (90) days after delivery of each commercially released version
of the PHONE.COM Client Software to Motorola, such version of the
PHONE.COM Client Software . . . will perform in accordance with the applicable
PHONE.COM Client Software Specification listed in Exhibit B (“Functional
Specifications”) . . . . During the above noted warranty period, PHONE.COM’s
obligation for any breach of the warranty shall be to remedy the breach without
additional charge to Motorola in accordance with PHONE.COM’s obligations to
correct Errors under the PHONE.COM Support Agreement.
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Id. Section 16.2.2 contains similar language.
Defendants argue that these sections are the only source of any obligation on
their part to provide functioning software. They argue that even if section 14.1 would
otherwise allow for damages for software errors based on the section’s ambiguity
regarding other “obligations” in the MSA, the warranty provisions would foreclose this,
because they specifically address the point. Defendants rely on the proposition that “[i]t
is a well-settled principle of contract construction that where a contract contains both
general and specific provisions relating to the same subject, the specific provision
controls.” Medcom Holding Co. v. Baxter Travenol Labs., Inc., 984 F.2d 223, 227 (7th
Cir. 1993); see also Jadwin v. County of Kern, 610 F. Supp. 2d 1129, 1190 (E.D. Cal.
2009); DCV Holdings, Inc. v. ConAgra, Inc., 889 A.2d 954, 961 (Del. 2005).1 According
to defendants, because the warranty provisions specify a remedy for software errors
that is limited in time and scope, they control over the more general language of section
14.1.
Motorola responds that the indemnification and warranty provisions provide for
“separate and cumulative remedies” because the provisions do not mention each other
or reference whether one supersedes the other. Pl.’s Resp. to Defs.’ Mot. to
Reconsider at 2. Motorola does not address defendants’ legal argument regarding the
more specific language, however, nor does it provide any support for its preferred
interpretation of the contract. The Court concludes that because the warranty
provisions are the only provisions in the contract that deal specifically with software

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The parties dispute whether Delaware or California law governs the MSA.
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functioning, they control over the more general indemnification provisions.
Motorola argues that the language of the disclaimer “does not alter Myriad’s
obligation to provide functioning software.” Id. at 8. The contention that the warranty
provisions create an obligation that provides a basis for indemnification, however, is
unavailing. Although Motorola is correct that the disclaimer contains an exception for
sections 16.2.1 and 16.2.2, those sections do not create a free-standing obligation to
provide functioning software for which section 14.1 provides a remedy. Rather, they
create an obligation, self-contained within sections 16.2.1 and 16.2.2, that by its own
express terms lasts for ninety days and specifically defines and limits Myriad’s
obligations in the event of a breach.
Finally, Motorola argues that the warranty provisions’ remedy of free error
correction is not exclusive and does not foreclose the possibility of a claim for damages.
Under both Delaware and California law, a contract must clearly express the intention to
make a remedy exclusive. See, e.g., Interim Healthcare, Inc. v. Spherion Corp., 884
A.2d 513, 549 (Del. Super. 2005); Fosson v. Palace (Waterland), Ltd., 78 F.3d 1448,
1455 (9th Cir. 1996). Motorola contends that the statement in the warranty provisions –
“During the above noted warranty period, PHONE.COM’s obligation for any breach of
the warranty shall be to remedy the breach without additional charge” – is insufficient to
establish exclusivity.
The Court disagrees. Although Motorola is correct that the provision does not
contain a word like “exclusive” or “sole,” the clear thrust of the language in context is to
establish that the defendant’s obligation “shall be” error correction. This language
identifies Myriad France’s obligation in a definite and limited way. Thus, the language of
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the warranty provisions is more specific than section 14.1 with respect to the remedy as
well as the scope of defendants’ obligations. Motorola has not cited, and the Court has
not found, cases from Delaware or California specifically analyzing language to this
effect, but the Seventh Circuit has found that under Illinois’s similar doctrine, “courts
have not required such a provision to actually employ the word ‘exclusive’ [when] a
reasonable construction of the contract indicates that the parties intended a limited
remedy to be exclusive.” CogniTest Corp. v. Riverside Pub. Co., 107 F.3d 493, 498
(7th Cir. 1997); see also Lennar Homes, Inc. v. Masonite Corp., 32 F. Supp. 2d 396,
403 (E.D. La. 1998) (under Florida law, “[t]he U.C.C. requires only that the exclusivity be
clearly expressed, not that ‘magic words’ be employed”).
For these reasons, the Court concludes that section 14.1 does not provide for
indemnification on the basis of software errors and grants the portions of Myriad
France’s motion for reconsideration and motion to dismiss that seek that holding. The
Court acknowledges that this differs from the conclusion it reached in its previous
decision. See Motorola Mobility, 2012 WL 367118, at *5. After careful review, however,
the Court concludes that this is the correct outcome. The Court therefore dismisses
counts one, two, and four of Motorola’s complaint.
2.

Breach of warranty
Motorola’s claims in counts three and five are based on its allegations that after

Tracfone discovered the software defects at issue, “Motorola immediately notified
Defendants of the defect and asked Defendants to remedy the defect” but that
“Defendants failed to timely remedy the defect.” Third Am Compl. ¶¶ 33, 44. Motorola
argues that defendants thereby breached their obligation under the warranty provisions
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to provide free error correction.
Defendants first point out that the previous version of Motorola’s complaint did
not include these allegations. Although they appear to suggest that Motorola’s late
addition of this claim makes the claim less credible, they do not indicate why this should
prevent Motorola from amending its complaint or the Court from crediting the allegations
on a motion to dismiss. Defendants argue next that Motorola’s allegations are
inconsistent because the allegations do not specify what Motorola means by “timely”
and do not indicate which provision in particular was breached.
These contentions are unavailing. Motorola has clearly alleged that it attempted
to avail itself of the warranty provision upon discovering the software defects at issue
but that defendants failed to provide what was promised. Motorola has made these
allegations with sufficient specificity to survive the motion to dismiss.
Defendants also contend that Motorola’s claim cannot succeed because the
warranty provisions did not actually cover the software at issue. They maintain that the
software at issue “is only required to meet the ‘Functional Specifications’ attached to the
MLSA as Exhibit B, applicable to the software as it existed in 1999” and that these
“outdated specifications . . . do not govern the 2008-2010 software at issue in this case.”
Myriad France Mot. to Dismiss at 11. “Moreover, the alleged software errors (shutdown
failure and memory leak) do not render the software non-compliant with the 1999
specifications.” Id. There is some tension between this argument and defendants’
contention, discussed in the previous section, that the warranty provisions provide the
exclusive remedy for software errors – it is difficult to see how that could be true if the
provisions do not cover the errors at issue. Nevertheless, if defendants are correct that
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the software errors that occurred were not covered by the specifications listed in the
warranty provisions – and that those provisions were not amended to allow for changing
software requirements – then they are correct that their failure to address this defect
cannot provide a basis for relief under the MSA.
Motorola maintains, however, that it has alleged that the software failed to meet
the specifications both in Exhibit B and in the separate “Statement of Work” and
“Ordering Documents” and that those specifications governed the software at issue in
this case. Motorola is correct that the Court must take its allegations as true unless they
are contradicted by documents referred to in the complaint. See Ogden Martin Sys. of
Indianapolis, Inc. v. Whiting Corp., 179 F.3d 523, 529 (7th Cir. 1999).
Defendants maintain that the original Exhibit B to the MSA indicates that the
defects Motorola has alleged cannot constitute a breach. Nothing in that document,
however, affirmatively indicates that this is the case. The version of Exhibit B provided
by defendants does not indicate the actual requirements for the software. Instead, it
references other “documentation [that] shall serve as functional specifications.” Myriad
France Mot. to Dismiss Ex. D. It also includes the statement: “Functional Specifications
shall include specifications published by PHONE.COM for all releases of the
PHONE.COM Licensed Products licensed under this Agreement.” Id. The precise
meaning of this statement is not clear, but it suggests that the document allows for other
specifications covering future products. And as the Court noted in the previous section,
neither party has provided the specific ordering documents that cover the software at
issue. The Court therefore takes Motorola’s allegations about those documents as true
and concludes that, for purposes of the motion to dismiss, Motorola has adequately
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alleged that the software failed to comply with the specifications that were applicable to
it.
Defendants also argue that because section 16.2.1 provides a warranty only for
the “commercially released version” of the software, the claim cannot succeed because
Motorola alleges that Tracfone discovered the defects during pre-release testing. The
Court addressed this argument in its previous decision, noting that the timing of
discovery “does not conclusively establish that the version of the software at issue was
not the commercially released version.” Motorola Mobility, 2012 WL 367118, at *6.
Defendants argue that this is incorrect because “custom software designed and
developed for Motorola cannot be said to be the ‘commercially released version’ until it
clears the pre-release testing authorizing it for commercial release.” Myriad France
Mot. to Dismiss at 13.
The Court does not agree with defendants, for two reasons. First, the complaint
alleges that defendants “breached the Licensed Software Warranties set forth in Section
16.2 of the MSA.” Third Am. Compl. ¶¶ 38, 49. Although section 16.2.1 refers to
“commercially released” software, section 16.2.2 does not. The language of section
16.2.1 therefore would not, by itself, foreclose Motorola’s claims. Second, as the Court
indicated in its previous decision, the meaning of “commercially released version” is not
clear from the MSA, which contains no definition of the term. Whether the “version” in
which errors were discovered was indeed the version that was later released to the
public, or whether any changes in the commercially-released software rendered it a new
“version,” is not yet apparent. The Court therefore declines to dismiss Motorola’s claims
on this basis.
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Finally, defendants maintain that because the warranty provisions provide for
error correction as an exclusive remedy, Motorola may not sue for damages even if it
has successfully alleged a breach. As Motorola argues, however, its claim is based on
its allegations that defendants failed to provide error correction at all. The MSA does
not limit Motorola’s ability to sue for defendants’ failure to provide the stated remedy.
See S.F. Bay Area Rapid Transit v. GE Transp. Sys. Global Signaling LLC, No. C 063479, 2010 WL 2179769, at *6 (N.D. Cal. May 27, 2010) (noting that a plaintiff may
“pursue all of the remedies available for breach of contract if its exclusive or limited
remedy fails of its essential purpose,” meaning that “enforcement of the limited remedy
would essentially leave plaintiff with no remedy at all”) (internal citations omitted); United
States ex rel. Metal Building Components, Inc. v. Angelini, No. Civ. A 98-8, 2000 WL
1728287, at *4 (D. Del. Mar. 27, 2000).
For these reasons, the Court denies defendants’ motion to dismiss counts three
and five of the third amended complaint.
Conclusion
For the reasons stated above, the Court grants in part Myriad France’s motion for
reconsideration and motion to dismiss [docket nos. 37, 48], grants the parties’ joint
motion to amend/correct [docket no. 61], and terminates Myriad Group’s motion as moot
[docket no. 45]. The Court’s decision in Motorola Mobility, Inc. v. Myriad France SAS,
__ F. Supp. 2d __, 11 C 7373, 2012 WL 367118 (N.D. Ill. Feb. 2, 2012) is vacated to the
extent it is inconsistent with the present decision. The case is set for a status hearing

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on September 4, 2012 at 9:30 a.m. to set a schedule for further proceedings.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: August 27, 2012

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