United States Court of Appeals For The Fifth Circuit: Plaintiff-Appellant

Case: 20-11032 Document: 00516346263 Page: 1 Date Filed: 06/06/2022
No. 20-11032
United States Court of Appeals

for the Fifth Circuit
_________________________
CONTINENTAL AUTOMOTIVE SYSTEMS, INC.,

Plaintiff-Appellant,
v.
AVANCI, LLC, ET. AL.,
Defendants-Appellees.
_________________________
Appeal from the U.S. District Court for the Northern District of Texas
Case No. 3:19-cv-02933 (Hon. Barbara J.G. Lynn)
_______________________________________________________________________________________________
APPELLEES’ RESPONSE IN OPPOSITION

TO PETITION FOR REHEARING EN BANC
_______________________________________________________________________________________________
Mark A. McCarty Jeffrey L. Kessler

Matthew D. Richardson Aldo A. Badini
Andrew J. Tuck Susannah P. Torpey
ALSTON & BIRD LLP Patrick S. Opdyke
1201 West Peachtree St. WINSTON & STRAWN LLP
Atlanta, GA 30309 200 Park Avenue
(404) 881-7000 New York, NY 10166
mark.mccarty@alston.com (212) 294-6700
Jeffrey A. Lamken jkessler@winston.com
Eugene A. Sokoloff Andrew E. Tauber
MOLOLAMKEN LLP WINSTON & STRAWN LLP
600 New Hampshire Ave., NW 1901 L Street, NW
Suite 500 Washington, DC 20036
Washington, DC 20037 (202) 282-5000
(202) 556-2000
Counsel for Defendants-Appellees
[Additional counsel listed inside]
Lauren F. Dayton Counsel for Avanci LLC

MOLOLAMKEN LLP and Avanci Platform
430 Park Avenue International Ltd.
New York, NY 10022
(212) 607-8160 Theodore J. Angelis
K&L GATES LLP
Counsel for Nokia
925 4th Avenue
Corporation, Nokia of
Suite 2900
America Corporation, Nokia
Seattle, WA 98104
Solutions and Networks US
theo.angelis@klgates.com
LLC, Nokia Solutions and
Networks Oy, and Nokia Counsel for Sharp
Technologies Oy Corporation
H. Annita Zhong
IRELL & MANELLA LLP
1800 Avenue of the Stars
Suite 900
Los Angeles, CA 90067
(310) 203-7183
Hzhong@Irell.Com
Counsel for Defendants-
Appellees Optis UP
Holdings, LLC; Optis
Wireless Technology, LLC;
and Optis Cellular
Technology, LLC
No. 20-11032
United States Court of Appeals

for the Fifth Circuit
_________________________
CONTINENTAL AUTOMOTIVE SYSTEMS, INC.,
Plaintiff-Appellant,
v.
AVANCI, LLC, ET. AL.,
Defendants-Appellees.
_________________________
CERTIFICATE OF INTERESTED PERSONS
The following persons and entities as described in the fourth sentence

of Circuit Rule 28.2.1 have an interest in the outcome of this case. These
representations are made so that members of the Court may evaluate
possible recusal.
Plaintiff-Appellant:
1. According to its disclosure statement, Plaintiff-Appellant Continental
Automotive Systems, Inc. is wholly owned by Continental Automotive,
Inc., which is wholly owned by Continental Automotive Holding
Netherlands B.V., which is wholly owned by CGH Holding B.V., which
is wholly owned by CAS-One Holdinggesellschaft mbH, which is
wholly owned by Continental Caoutchouc-Export-GmbH, which is
owned 51% by Continental Automotive GmbH and 49% by Continental
A.G. According to Continental Automotive Systems, Inc.’s disclosure
- iii -
statement, no publicly-held company owns 10% or more of

Continental Automotive Systems, Inc., but Continental Automotive
Systems, Inc. is an indirect subsidiary of Continental A.G., a German
public corporation.
Counsel for Plaintiff-Appellant Continental Automotive Systems,
Inc.:
According to its disclosure statement, the below are counsel for
Plaintiff-Appellant Continental Automotive Systems, Inc.:
Stephen S. Korniczky Jennifer Klein Ayres

Martin R. Bader SHEPPARD, MULLIN, RICHTER &
Matthew W. Holder HAMPTON LLP
SHEPPARD, MULLIN, RICHTER & 2200 Ross Avenue, Suite 2400
HAMPTON LLP Dallas, TX 75201
12275 El Camino Real, Suite 200 Telephone: (469) 391-7414
San Diego, CA 92130-4092 Facsimile: (469) 391-7558
Telephone: (858) 720-8900
Facsimile: (858) 509-3691 Michael W. Scarborough
Mona Solouki
Karin Dougan Vogel Helen C. Eckert
SHEPPARD, MULLIN, RICHTER & SHEPPARD, MULLIN, RICHTER &
HAMPTON LLP HAMPTON LLP
501 West Broadway, Suite 1900 4 Embarcadero Center, 17th Floor
San Diego, CA 92101 San Francisco, CA 94111-0000
Telephone: (619) 338-6500 Telephone: (415) 434-9100
Facsimile: (619) 234-3815 Facsimile: (415) 434-3947
Mark S. Davies E. Joshua Rosenkranz

ORRICK, HERRINGTON & ORRICK, HERRINGTON &
SUTCLIFFE LLP SUTCLIFFE LLP
1152 15th Street, NW 51 West 52nd Street
Washington, DC 20005 New York, NY 10019
Telephone: (202) 339-8631 Telephone: (212) 506-5000
Attorneys for Appellant and Petitioner CONTINENTAL AUTOMOTIVE

SYSTEMS, INC.
- iv -
Defendant-Appellees
1. Avanci, LLC
a. Inception IP, LLC is the parent company of, and wholly
owns Avanci, LLC. Inception Holdings, LLC is the parent company of,
and wholly owns, Inception IP, LLC.
2. Avanci Platform International Ltd.
a. Inception International Limited is the parent company of,
and wholly owns, Avanci Platform International Limited. Inception
Holdings, LLC is the parent company of, and wholly owns, Inception
International Limited.
3. Nokia Corporation
a. Nokia Corporation is a publicly traded company organized
under the laws of Finland. Nokia Corporation is not owned by any
parent corporation, and no other publicly held corporation owns 10%
or more of its stock.
4. Nokia of America Corporation
a. Nokia of America Corporation is a wholly owned subsidiary
of Nokia Solutions and Networks B.V., a company organized under the
laws of the Netherlands, which is a wholly owned subsidiary of Nokia
Solutions and Networks Oy, a company organized under the laws of
Finland.
-v-
5. Nokia Solutions and Networks US LLC

a. Nokia Solutions and Networks US LLC no longer exists. It
was merged into Alcatel Lucent USA Inc., effective January 1, 2018,
which later changed its name to Nokia of America Corporation.
6. Nokia Solutions and Networks Oy
a. Nokia Solutions and Networks Oy is a wholly owned
subsidiary of Nokia Corporation.
7. Nokia Technologies Oy
a. Nokia Technologies Oy is a Finnish company and is a
wholly owned subsidiary of Nokia Corporation.
8. Optis UP Holdings, LLC
a. Optis UP Holdings, LLC is wholly owned by PanOptis
Equity Holdings. H57 Acquisition, LLC, H57 Acquisition Fund, LP,
and H57 Acquisition Partners, LLC, own PanOptis Equity Holdings.
No publicly held company owns 10% or more of any of the Optis
Entities.
9. Optis Wireless Technology, LLC
a. Optis Wireless Technology, LLC is wholly owned by Optis
WT Holdings, LLC, which is wholly owned by PanOptis Equity
Holdings. H57 Acquisition, LLC, H57 Acquisition Fund, LP, and H57
Acquisition Partners, LLC, own PanOptis Equity Holdings. No publicly
held company owns 10% or more of any of the Optis Entities.
- vi -
10. Optis Cellular Technology, LLC

a. Optis Cellular Technology, LLC is wholly owned by Optis
CT Holdings, LLC, which is wholly owned by PanOptis Equity
Holdings. H57 Acquisition, LLC, H57 Acquisition Fund, LP, and H57
Acquisition Partners, LLC, own PanOptis Equity Holdings. No publicly
held company owns 10% or more of any of the Optis Entities.
11. Sharp Corporation
a. Sharp Corporation is a publicly traded company organized
under the laws of Japan. The following companies own at least 10% of
the stock of Sharp Corporation:
i. Hon Hai Precision Industry Co. Ltd.,
ii. Foxconn (Far East) Limited,
iii. Foxconn Technology Pte. Ltd.
iv. CTBC Bank Co., Ltd. - ES Platform LP
Counsel for Defendants-Appellees Avanci, LLC and Avanci

Platform International Ltd.:
Jeffrey L. Kessler Aldo A. Badini
WINSTON & STRAWN LLP WINSTON & STRAWN LLP
200 Park Ave. 200 Park Ave.
New York, NY 10166 New York, NY 10166
(212) 294-6700 (212) 294-6700
jkessler@winston.com abadini@winston.com
Susannah P. Torpey Andrew E. Tauber
WINSTON & STRAWN LLP WINSTON & STRAWN LLP
200 Park Ave. 1901 L Street NW
New York, NY 10166 Washington, DC 20036
(212) 294-6700 (202) 282-5000
storpey@winston.com atauber@winston.com
- vii -
Patrick S. Opdyke
WINSTON & STRAWN LLP
200 Park Ave.
New York, NY 10166
(212) 294-6700
popdyke@winston.com
Dated: June 6, 2022 /s/ Jeffrey L. Kessler

Jeffrey L. Kessler
Attorney of Record for Defendants-
Appellees Avanci, LLC and Avanci
Platform International Ltd.
Counsel for Defendants-Appellees Nokia Corporation, Nokia of
America Corporation, Nokia Solutions and Networks US LLC,
Nokia Solutions and Networks Oy, and Nokia Technologies Oy:
Matthew D. Richardson Mark A. McCarty
ALSTON & BIRD LLP ALSTON & BIRD LLP
1201 West Peachtree St. 1201 West Peachtree St.
Atlanta, GA 30309 Atlanta, GA 30309
(404) 881-7000 (404) 881-7000
matt.richardson@alston.com mark.mccarty@alston.com
Andrew J. Tuck John Haynes
(404) 881-7000 (404) 881-7000
andy.tuck@alston.com john.haynes@alston.com
Teresa Bonder Ryan W. Koppelman
560 Mission St., Suite 2100 950 Page Mill Rd.
San Francisco, CA 94105 Palo Alto, CA 94304
(415) 243-1000 (650) 838-2000
teresa.bonder@alston.com ryan.koppelman@alston.com
Bryan Lutz Amanda Waide
(404) 881-7000 (404) 881-7000
bryan.lutz@alston.com amanda.waide@alston.com
- viii -
Kristen Bromberek Lauren F. Dayton

ALSTON & BIRD LLP MOLOLAMKEN LLP
1201 West Peachtree St. 430 Park Ave.
Atlanta, GA 30309 New York, NY 10012
(404) 881-7000 (212) 607-8160
kristen.bromberek@alston.com ldayton@mololamken.com
Michael J. Newton Warren H. Lipschitz
ALSTON & BIRD LLP MCKOOL SMITH LLP
2200 Ross Ave., Suite 2300 300 Crescent Ct., Suite 1500
Dallas, TX 75201 Dallas, TX 75201
(214) 922-3423 (214) 979-4973
mike.newton@alston.com wlipschitz@mckoolsmith.com
Jeffrey A. Lamken Theodore Stevenson, III
MOLOLAMKEN LLP ALSTON & BIRD LLP
600 New Hampshire Ave., N.W., 2200 Ross Avenue, Suite 2300
Suite 500 Dallas, TX 75201
Washington, D.C. 20037 Telephone: (214) 922-3507
(202) 556-2000
jlamken@mololamken.com Facsimile: (214) 922-3899
ted.stevenson@alston.com
Lauren M. Weinstein
MOLOLAMKEN LLP Eugene A. Sokoloff
600 New Hampshire Ave., N.W., MOLOLAMKEN LLP
Suite 500 600 New Hampshire Ave., N.W.,
Washington, D.C. 20037 Suite 500
(202) 556-2000 Washington, D.C. 20037
lweinstein@mololamken.com (202) 556-2000
esokoloff@mololamken.com
Dated: June 6, 2022 /s/ Mark A. McCarty

Mark A. McCarty
Appellees Nokia Corporation, Nokia of
America Corporation, Nokia Solutions
and Networks US LLC, Nokia Solutions
and Networks Oy, and Nokia
Technologies Oy
- ix -
Counsel for Defendants-Appellees Optis UP Holdings, LLC;

Optis Wireless Technology, LLC; and Optis Cellular Technology,
LLC:
Jason Sheasby H. Annita Zhong
IRELL & MANELLA LLP IRELL & MANELLA LLP
1800 Ave. of the Stars, Suite 900 1800 Ave. of the Stars, Suite 900
Los Angeles, CA 90067 Los Angeles, CA 90067
(310) 203-7096 (310) 203-7183
jsheasby@irell.com hzhong@irell.com
Eric S. Tautfest M. Jill Bindler
GRAY REED & MCGRAW, P.C. GRAY REED & MCGRAW, P.C.
1601 Elm St., Suite 4600 1601 Elm St., Suite 4600
Dallas, TX 75201 Dallas, TX 75201
(214) 954-4135 (469) 320-6125
etautfest@grayreed.com jbindler@grayreed.com
Francis B. Majorie
MAJORIE FIRM
3514 Cedar Springs Rd.
Dallas, TX 75219
(214) 522-7400
fbmajorie@themajoriefirm.com
Dated: June 6, 2022 /s/H. Annita Zhong

H. Annita Zhong

Appellees Optis UP Holdings, LLC; Optis
Wireless Technology, LLC; and Optis
Cellular Technology, LLC
Counsel for Defendant-Appellee Sharp Corporation:
Theodore J. Angelis
K&L GATES LLP
925 4th Avenue, Suite 2900
Seattle, WA 98104
theo.angelis@klgates.com
Dated: June 6, 2022 /s/ Theo J. Angelis
Theo J. Angelis
Attorney of Record for Defendant-
Appellee Sharp Corporation
-x-
TABLE OF CONTENTS
Page
Certificate of Interested Persons .................................................................. iii
Table of Contents ......................................................................................... xi
Table of Authorities ..................................................................................... xii
Statement of the Issue Presented .................................................................. 1
Introduction .................................................................................................. 1
Argument....................................................................................................... 3
I. Resolution of the issue presented cannot alter the
judgment..................................................................................... 3
II. The panel decision does not conflict with other authority. ........ 7
A. The panel decision does not conflict with other circuit
authority. ........................................................................... 8
B. The panel decision does not conflict with Supreme
Court precedent. .............................................................. 10
III. The Panel’s fact-bound, case-specific decision implicates
no issues of broad concern. ...................................................... 13
A. The panel decision does not threaten competition. ........ 13
B. The panel decision does not threaten the patent
system. ............................................................................ 14
Conclusion ................................................................................................... 16
Certificate of Service .................................................................................... 18
Certificate of Compliance ............................................................................ 19
- xi -
TABLE OF AUTHORITIES
Page(s)
Cases
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ............................................................................... 12
California v. Rooney,
483 U.S. 307 (1987) ................................................................................. 3
Carnegie Mellon Univ. v. LSI Corp.,
2020 WL 5592990 (N.D. Cal. 2020) ......................................................... 5
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984) ................................................................................. 3
Conwill v. Greenberg Traurig, L.L.P.,
448 F. App’x 434 (5th Cir. 2011) .............................................................. 3
Ericsson, Inc. v. D-Link Sys., Inc.,
773 F.3d 1201 (Fed. Cir. 2014) ................................................................ 9
FTC v. Qualcomm Inc.,
969 F.3d 974 (9th Cir. 2020) ........................................................ 5, 14, 15
HTC Corp. v. Telefonaktiebolaget LM Ericsson,
12 F.4th 476 (5th Cir. 2021)............................................................... 9, 14
HTC Corp. v. Telefonaktiebolaget LM Ericsson,
2019 WL 126980 (E.D. Tex. 2019)......................................................... 15
LaserDynamics, Inc. v. Quanta Computer, Inc.,
694 F.3d 51 (Fed. Cir. 2012) .................................................................... 5
Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) ................................................................................. 6
Microsoft Corp. v. Motorola, Inc.,
696 F.3d 872 (9th Cir. 2012) (Microsoft I) .............................................. 9
Microsoft Corp. v. Motorola, Inc.,
795 F.3d 1024 (9th Cir. 2015) (Microsoft II) ........................................... 9
Perry v. Thomas,
482 U.S. 483 (1987) ............................................................................... 10
- xii -
Servicios Azucareros de Venezuela, C.A. v. John Deere

Thibodeaux, Inc.,
702 F.3d 794 (5th Cir. 2012) .............................................................. 8, 11
Spokeo, Inc. v. Robins,
578 U.S. 330 (2016) ............................................................................... 11
Other Authorities
5th Cir. R. 35 I.O.P. ....................................................................................... 4
David J. Teece & Edward F. Sherry, On the “Smallest Saleable
Patent Practicing Unit” Doctrine: An Economic and Public
Policy Analysis 11 (2016) ...................................................................... 15
Reply Br. of Appellant Qualcomm Inc., FTC v. Qualcomm Inc.,
No. 19-16122, ECF No. 228,
2019 WL 7187003 (9th Cir. 2019) ......................................................... 15
RESTATEMENT (SECOND) OF CONTRACTS § 302 (1981) ..................................... 7
- xiii -
STATEMENT OF THE ISSUE PRESENTED

Whether the complaint in this case fails to establish Article III standing
to assert antitrust claims because it does not plead facts plausibly alleging
injury-in-fact.
INTRODUCTION
Applying well-established pleading standards, the panel decision held
that Continental had failed to establish Article III standing because the
complaint did not allege facts sufficient to plausibly allege a concrete injury.
That run-of-the-mill, case-specific result creates no division in circuit
authority and raises no issue worthy of further review. Asserting otherwise,
Continental and its amici attack a straw man, disregarding what the panel
actually held and assailing a holding that appears nowhere in its decision.
The panel’s conclusion that Continental’s well-pleaded allegations
failed to establish an injury-in-fact rests on two independent grounds.
Continental and its amici ignore one ground entirely. Not once do they
address the decision’s conclusion that Continental lacks standing to pursue
antitrust claims—the claims Continental raised on appeal 1—because it
pleaded no facts plausibly suggesting that it faced or would imminently face
a concrete injury, such as infringement suits, from not having concluded a
direct license from Defendants for the relevant patents. Because Continental
does not challenge that independently dispositive basis for the panel’s
decision, rehearing cannot change the outcome here.
1 Continental did not appeal the district court’s decision not to exercise
supplemental jurisdiction over its contract claims.
-1-
To create the appearance of a conflict in circuit authority where none

exists, Continental and its amici mischaracterize the panel’s other
independently dispositive holding. Contrary to what they assert, the panel
did not hold that only competitors or members of Standard Setting
Organizations may have third-party beneficiary standing to assert FRAND
commitments. Nor did it hold that component suppliers could never invoke
a FRAND commitment in any context. Far from adopting a new, categorical
rule regarding who may have third-party beneficiary standing, the panel
rendered a fact-bound, case-specific decision based on the application of
well-established legal principles to the factual allegations in Continental’s
complaint. The panel recognized that deprivation of a contractual right,
including a third-party right under SSO contracts, might constitute concrete
injury sufficient to establish Article III standing. It further recognized that a
would-be licensee may have standing to assert a particular FRAND
commitment in a breach-of-contract case if it were “an intended beneficiary
contractually entitled to a license on FRAND terms.” Op. 11. However, the
panel also recognized that determining whether a particular third party is an
intended beneficiary of a specific contract depends on whether recognizing
third-party beneficiary status will “effectuate the intention of the
[contracting] parties.” Id.
Based on the allegations included—and not included—in Continental’s
complaint in this case, the panel determined that Continental failed to plead
facts plausibly suggesting that it is an intended beneficiary of the specific
FRAND commitments at issue. Specifically, it found that Continental did not
-2-
allege facts sufficient to establish that the contracting parties intended that
direct licenses be made available to component suppliers, such as
Continental, licenses that would be “redundant” of the licenses available to
the OEMs, which cover the components that Continental supplies to the
OEMs.
That fact-bound, case-specific determination does not conflict with the
prior decisions of this Court, other circuits, or the Supreme Court. Nor would
reconsideration of this alternative ruling by the panel alter the outcome of
this case. Continental falls far short of the high bar for rehearing en banc.
ARGUMENT
I. Resolution of the issue presented cannot alter the judgment.
Continental’s rehearing petition is academic; resolution of the issue

that it presents could not alter the outcome in this case. The panel decision
rests on two independent alternative grounds, one of which the rehearing
petition does not even address: Continental’s failure to plead facts plausibly
suggesting that its failure to license directly from the Defendants caused it to
suffer an injury-in-fact. Consequently, even if Continental had pleaded facts
sufficient to establish it was an intended beneficiary of a relevant FRAND
commitment, it has not shown that the panel’s contrary conclusion “resulted
in an erroneous judgment.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 842 (1984) (emphasis added).
Appellate courts review “judgments, not statements in opinions.”
California v. Rooney, 483 U.S. 307, 311 (1987); accord Conwill v.
Greenberg Traurig, L.L.P., 448 F. App’x 434, 438 (5th Cir. 2011). Because
-3-
Continental seeks rehearing on only one of two independently dispositive

holdings, rehearing could not change the judgment here. This is therefore a
singularly inappropriate case for the “extraordinary procedure” of en banc
review. 5th Cir. R. 35 I.O.P.
In addition to ruling that Continental had failed to allege facts showing
that it is an intended beneficiary of the FRAND commitments at issue, the
panel separately held that Continental lacks standing even if it were an
intended beneficiary because it failed to allege an actual or imminent injury-
in-fact. Op. 11–12. Continental pleaded no facts plausibly suggesting that it
needs to conclude direct licenses to manufacture and sell its components to
OEMs. Id. at 12. It pleaded no facts plausibly suggesting that a patent owner
has ever sued, threatened to sue, or is likely to sue Continental for
infringement of the relevant patents. Id. at 13. It pleaded no facts plausibly
suggesting that its failure to conclude direct licenses from Avanci or its
members impeded sales of its components to any OEM. See generally
ROA.1692-1756. And it pleaded no facts plausibly suggesting that its lack of
direct licenses has prevented it from pursuing any other business
opportunity. Id.
To the contrary, Continental pleaded facts affirmatively
demonstrating that it suffers no injury from not concluding its own direct
licenses. As the panel noted, Continental “acknowledges that Avanci and
Patent-Holder Defendants are ‘actively licensing the [Standard Essential
Patents] to the OEMs.’ ” Op. 12. Those licenses give OEMs the right to have
Continental, a third-party supplier, make components for them. ROA.3706
-4-
at § 2.1. As a result, what Continental makes for licensed OEM customers is

covered by their licenses. 2 And Continental does not allege that it has been
threatened with suit for not having concluded a direct license for the relevant
patents. Op. 13. The pleadings here thus show that Continental is in a “no
license, no problem” position. FTC v. Qualcomm Inc., 969 F.3d 974, 995 (9th
Cir. 2020). Instead, Continental receives the benefit of access to standardized
technologies through the direct licenses made available to their customers
the OEMs. Op. 12. There thus are no allegations in Continental’s complaint
plausibly suggesting that Continental has suffered an injury-in-fact.
Continental protests that it needs its own licenses because its
“customers require that components be provided free and clear of third-
party IP rights.” Pet. 11. Continental claims that a lack of direct licenses “(1)
interferes with [its] ability to win business, keep customers, and enter new
markets, (2) hurts [its] incentives to grow and invest, and (3) exposes
Continental to harm in the form of lost profits and loss of goodwill.” Id. But
Continental’s complaint alleges no well-pleaded facts to support any of those
conclusory assertions. Although it pleads that OEMs “traditionally” impose
2 Continental’s amici question that conclusion, arguing that “the

doctrine of patent exhaustion does not run upstream to protect suppliers.”
Amicus Br. of the German Ass’n of the Auto. Indus. at 3 (emphasis omitted).
But that ignores that licenses offered to OEMs may include “have made”
rights giving the OEM the right to have its products or their components
manufactured by others. Such “have made rights function as an implied
license to a supplier of products to a licensee customer.” Carnegie Mellon
Univ. v. LSI Corp., 2020 WL 5592990, at *3 (N.D. Cal. 2020) (citing
LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51, 73 (Fed. Cir.
2012)). Continental does not allege that the licenses Avanci offers OEMs lack
“have made” provisions. See generally ROA.1692-1756.
-5-
certain requirements on suppliers, which “typically” include “assurances”

that components do not infringe any patents, Continental does not plead
that any OEM customer has in fact demanded that Continental directly
license the patents at issue. ROA.1721:2-5.
Continental would have the Court infer that some unidentified OEM
might one day demand that Continental directly license the patents, but to
establish Article III standing a plaintiff must allege well-pleaded facts
showing an injury that is “ actual or imminent, not conjectural or
hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal
quotation marks omitted). For the reasons explained above (see supra at 4–
5), Continental’s pleading belies the suggestion that Continental needs to
conclude its own direct licenses when its business is selling to OEMs that can
and do obtain licenses from Avanci and its patent-owner members. 3
Having forfeited any right to amend its complaint in both the district
court and again on appeal (see Op. 14 n.13), Continental must stand on its
insufficient pleadings. Those “pleadings,” the panel held, “reflect that
[Continental] has suffered no cognizable injury” even “assuming
Continental is contractually entitled to a license on FRAND terms as a third-
party beneficiary.” Id. at 11 (emphasis added). Thus, nothing that this Court
3 See, e.g., Avanci Announces Patent License Agreement with General

Motors, Avanci (May 3, 2022), https://www.avanci.com/2022/05/03/
avanci-announces-patent-license-agreement-with-general-motors/ (noting
that there are 37 “auto brands licensed through the Avanci marketplace”);
Avanci Announces Patent License Agreement with Ford (May 31, 2022),
https://www.avanci.com/2022/05/31/avanci-announces-patent-license-
agreement-with-ford/ (“A total of 41 auto brands and more than 65 million
vehicles are now licensed by Avanci.”).
-6-
might say about the issue Continental presents could resuscitate

Continental’s claims. 4
II. The panel decision does not conflict with other authority.
Continental’s assertion of a conflict with decisions of this Court, other

Circuits, and the Supreme Court rests on a misreading of the panel’s fact-
bound, case-specific analysis. Contrary to what Continental implies (Pet. 6),
the panel did not hold that only competitors or SSO members may invoke
FRAND commitments. Nor did it hold that component suppliers are
categorically barred from asserting FRAND commitments. To the contrary,
the panel expressly agreed that, “[a]s our sister circuits have recognized,
entities that create standard-conforming products can be third-party
beneficiaries under FRAND contracts between SSOs and SEP holders”
because “FRAND obligations exist to protect the parties that must adopt a
standard in order to conduct their business.” Op. 10.
The panel also recognized the well-established principle that whether
someone is a third-party beneficiary entitled to invoke the provisions of a
particular contract depends on whether that status is necessary “ ‘to
effectuate the intention of the [contracting] parties.’ ” Op. 11 (quoting
RESTATEMENT (SECOND) OF CONTRACTS § 302 (1981)). Applying those
incontestable principles to the allegations in Continental’s complaint, the
4 Rehearing on the issue raised by Continental also would not change the
outcome of this case because there are yet other grounds on which
Continental’s complaint would have to be dismissed, including its failure to
allege an antitrust injury or an antitrust violation—as Judge Ho recognized
(Op. 2 n.1), and the district court held (ROA.6689, 6691, 6696).
-7-
panel simply concluded that Continental had failed to plead facts plausibly
suggesting that, under the circumstances here, it was an intended beneficiary
of the specific FRAND commitments at issue. Based on Continental’s own
allegations, the panel rightly determined that licensing the relevant patents
“up the chain” directly to Continental would be “redundant” of the licenses
made available to OEMs and thus “unnecessary to effectuate the purpose of
the FRAND commitments” in this particular case. Op. 11. Because
Continental pleaded no facts “suggest[ing] that [the] Patent-Holder
Defendants and SSOs intended to require redundant licensing of third
parties” (id.), Continental failed to establish that it was an intended
beneficiary of the specific contracts at issue here.
Similarly, and again contrary to what Continental suggests (Pet. 10),
the panel accepted “the core tenet of federal jurisdiction that ‘[i]njuries to’ ”
contractual rights, including contractual rights held by third-party
beneficiaries, can be “sufficient for standing purposes.’ ” Op. 12 (quoting
Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc.,
702 F.3d 794, 800 (5th Cir. 2012)). It simply found that Continental had
failed to plead such an injury here. These fact-bound, case-specific holdings
are entirely consistent with well-established legal principles and with the
purportedly conflicting authority cited by Continental.
A. The panel decision does not conflict with other circuit
authority.
Continental asserts that the panel’s determination conflicts with

decisions of this Circuit, the Ninth Circuit, and the Federal Circuit that, in
-8-
Continental’s view, have “recognized that any business that implements the
standards and seeks a license to an SEP is a third-party beneficiary of the
patent holder’s FRAND promise and can enforce that promise.” Pet. 5. Not
so. None of the decisions that Continental cites purported to resolve any
dispute over a would-be licensee’s status as a third-party beneficiary of a
FRAND commitment. 5
In each case, the would-be licensee was the manufacturer of an end
product that practiced the standard. In each case, the holders of the
standard-essential patents traditionally licensed at that end-product level. In
each case, the would-be licensee undisputedly needed a license for the
patents at issue. In each case, neither the parties nor the Court questioned
whether the would-be licensee properly pleaded that it was an intended
beneficiary of the FRAND promise at issue. Thus, for each of those cases, the
broad statements that Continental cites about who may constitute a third-
party beneficiary of a given FRAND commitment was dicta in a background
discussion, not part of the court’s holding. See HTC, 12 F.4th at 481;
Microsoft II, 795 F.3d at 1031; Ericsson, 773 F.3d at 1209; Microsoft I, 696
F.3d at 879. Because those decisions do not address the pleading issue, they
do not—and cannot—conflict with the panel’s complaint-specific analysis of
the issue in this case.
5 Cf. HTC Corp. v. Telefonaktiebolaget LM Ericsson, 12 F.4th 476 (5th

Cir. 2021); Microsoft Corp. v. Motorola, Inc., 795 F.3d 1024 (9th Cir. 2015)
(Microsoft II); Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201 (Fed. Cir.
2014); Microsoft Corp. v. Motorola, Inc., 696 F.3d 872 (9th Cir. 2012)
(Microsoft I).
-9-
Continental’s effort to manufacture a conflict forces it to characterize

the panel decision as adopting a bright-line rule automatically denying third-
party beneficiary status to all component suppliers. Thus, Continental
frames the issue presented as “[w]hether suppliers of components … have
Article III standing” to enforce FRAND commitments. Pet. 1. But, contrary
to what Continental implies, the panel did not adopt such a categorical rule.
To the contrary, as already noted, the panel explicitly stated that “entities
that create standard-conforming products can be third-party beneficiaries
under FRAND contracts between SSOs and SEP holders.” Op. 10.
The panel still had to determine whether, “in this case,” Continental
had alleged sufficient facts to plausibly show, in the context of this dispute,
that it was an intended beneficiary of the particular FRAND commitments at
issue. Id. at 10, 12 (emphasis added). The panel’s conclusion that
Continental failed to do so is a fact-bound, case-specific determination that
does not conflict with any of the decisions cited by Continental. Nor could it:
Again, those decisions do not address what facts must be pleaded to show
that a specific component supplier is a third-party beneficiary of a particular
FRAND commitment.
B. The panel decision does not conflict with Supreme
Court precedent.
There is also no merit to Continental’s contention that the panel

decision “departed from Supreme Court precedent.” Pet. 9.
Quoting a lone sentence in Perry v. Thomas, 482 U.S. 483, 492 (1987),
Continental argues that “the panel disregarded the fundamental principle
-10-
that the question of whether a party can ‘enforce [an] agreement’ ‘simply
presents a straightforward issue of contract interpretation,’ not ‘standing
under Article III.’ ” Pet. 9–10. But the fact-specific decision in Perry
establishes no such “fundamental principle.” The panel decision, moreover,
is not to the contrary. The panel merely determined that Continental had
failed to allege facts sufficient to establish an injury-in-fact and had thus
failed to establish Article III standing (see Spokeo, Inc. v. Robins, 578 U.S.
330, 338 (2016)), even on the (erroneous) assumption that “Continental is
contractually entitled to a license on FRAND terms.” Op. 11.
Tacitly acknowledging that this determination negates any supposed
departure from Perry’s purported “principle,” Continental argues that “the
panel also disregarded Supreme Court precedent when it concluded that …
Continental did not suffer ‘an injury in fact’ ” even if it were a third-party
beneficiary of Defendants’ contractual FRAND commitments at issue. Pet.
10. Specifically, Continental asserts that the panel ignored the rule that
“[i]njuries to rights recognized at common law,” including contractual rights,
“have always been sufficient for standing purposes.” Id. (quoting Servicios,
702 F.3d at 800). But the panel “d[id] not take issue with … th[at] core tenet
of federal jurisdiction.” Op. 12. Rather, it found, as a matter of fact, that “in
this case” Continental’s allegations showed that it “experienced no such
injury.” Id. (emphasis added). That is because, in the specific circumstances
pleaded here, Continental “does not need” to conclude “licenses from [the
Defendants] to operate.” Id. at 11. As a result, “[o]n the face of Continental’s
complaint, there are no allegations that [the Defendant patent holders] have
-11-
sued or threatened to sue Continental for infringing their [patents].” Id. at

13. Lacking such allegations, Continental’s complaint in this case failed to
adequately allege a concrete injury sufficient to establish Article III
standing. 6
Finally, Continental contends that the panel determined that
Continental had failed to allege a concrete injury “only by ignoring” the
complaint’s allegations in purported contravention of “Supreme Court
precedent.” Pet. 11 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56
(2007)). The panel did no such thing and, even if it had, the misreading of a
complaint in a specific case would not be grounds for en banc review in any
event. The panel accepted all of Continental’s well-pleaded allegations but
found “no allegations that” the Defendant patent owners “have sued or
threatened to sue Continental for infringing” their patents. Op. 13; see supra
at 1, 4. The same goes for Continental’s claim (Pet. 11) that it needs to
conclude its own licenses to compete for OEM business.
And the complaint concedes that Avanci’s Master License
Management Agreement (“MLMA”)—the sole basis for Continental’s
antitrust claims—allows individual patent owners to license their patents
on an individual basis; that multiple Defendants in fact offered Continental
licenses; and that Avanci offered to seek authority to license Continental on
6 The panel also rejected Continental’s theory that it suffered injury

because it might someday be required to indemnify OEMs that allegedly pay
above-FRAND rates. Op. 7-9. The panel rejected that theory as “ ‘too
speculative to confer Article III standing.’ ” Id. at 8 (collecting cases).
Continental has abandoned any challenge to that holding as well.
-12-
the same terms as OEMs; and that Continental simply refused. See
ROA.1730–31, 1736–37. Thus, it was Continental’s allegations—not the
panel’s purported disregard for them—that doomed Continental’s claims.
III. The Panel’s fact-bound, case-specific decision implicates no
issues of broad concern.
Contrary to the assertions of Continental and its amici, the panel’s

decision threatens no deleterious consequences to the economy. Far from
creating a new rule of law, it applies established pleading principles,
articulated in Twombly and Iqbal, to the factual allegations of Continental’s
complaint. That case-specific determination in no way disturbs the policies
of standard-setting organizations or how licensing of standard-essential
patents has been conducted for decades.
A. The panel decision does not threaten competition.
Having carefully examined the complaint, the panel ruled that

Continental did not under the circumstances here plead facts sufficient to
show that it is a third-party beneficiary of the FRAND commitments at issue.
On the pleaded facts, the panel found that Continental was not injured
because it “does not need SEP licenses from Defendants-Appellees to
operate.” Op. 11. That case-specific ruling in no way prevents parties that do
plausibly allege a need to conclude licenses for standard-essential patents—
e.g., implementers that face imminent threat of concrete injury—from
asserting claims concerning relevant FRAND commitments. See id. at 13.
Moreover, what the antitrust laws mandate and what FRAND
commitments require are distinct issues. Continental’s allegations show that
-13-
it can sell its components without directly licensing the relevant patents; that
the Avanci agreement permits its members to individually license their
patents; and that there is no instance in which the Defendants have
prevented Continental from manufacturing and selling its components. Op.
4-5, 13.
Nothing in the panel decision prevents beneficiaries of FRAND
commitments from asserting claims about those commitments through
breach-of-contract suits. See, e.g., HTC, 12 F.4th at 482. And there was
therefore no need to do what Continental attempted here, namely, to use an
antitrust action to enforce claimed contractual rights without pleading facts
plausibly showing that it was an intended beneficiary of those rights or that
it suffered injury-in-fact.
B. The panel decision does not threaten the patent system.
For decades, innovators have licensed their patents at the end-product

level to the manufacturers of cellular handsets and other complex electronic
devices that implement the relevant technical standards—not, as Continental
tries to impose here, at the component-supplier level. See Qualcomm, 969
F.3d at 984 & n.5. Standards are typically implemented by the end products,
not by individual components. See id. Licensing at the OEM level avoids the
“inefficiencies” of “multi-level licensing,” including “overlapping and
duplicative licensing,” the increased “transaction costs and complexities”
that come from “negotiating and executing licenses at multiple points in the
supply chain,” and the need for complicated technical analysis for each end-
product to determine which supplier provided each component, what that
-14-
component does, and whether that supplier has or needs a license. Id. at 996
& n.17. Furthermore, licensing at the end-product level also avoids complex
patent-exhaustion issues. See id. at 984.
Thus, contrary to Continental’s claims (Pet. 12-14), the panel’s
decision reflects—rather than upsets—longstanding licensing practices and
SSO policies. The American National Standards Institute (“ANSI”), for
example, has stated that its intellectual-property-rights policy does not
impose a general component-level licensing requirement. See Decision of the
ANSI Executive Standards Council Appeals Panel at 14 (Feb. 23, 2018),
https://bit.ly/38QLSGK (rejecting proposition that “ANSI’s Patent Policy
requires licensing at the component level”) (emphasis omitted). Similarly,
the European Telecommunications Standards Institute (“ETSI”) has rejected
an across-the-board requirement of component-level licensing; ETSI
requires licensing only of devices that fully implement its standards, i.e., end
products. See, e.g., Reply Br. of Appellant Qualcomm Inc., FTC v. Qualcomm
Inc., No. 19-16122, ECF No. 228, 2019 WL 7187003, at *14–15 (9th Cir.
2019); ETSI Intellectual Property Rights Policy, Art. 6.1,
https://www.etsi.org/intellectual-property-rights.
In sum, “the prevailing industry standard or approach has been to base
FRAND licenses on the end-user device.” HTC Corp. v. Telefonaktiebolaget
LM Ericsson, 2019 WL 126980, at *5 (E.D. Tex. 2019); see also Qualcomm,
969 F.3d at 984 (licensing “exclusively at the OEM level” is “not unique to
Qualcomm”); see also David J. Teece & Edward F. Sherry, On the “Smallest
Saleable Patent Practicing Unit” Doctrine: An Economic and Public Policy
-15-
Analysis 11 (2016) (“In the cellular communications industry, it is common

practice to license at the device level (cellphones and base stations), rather
than at either the chipset or cellular service provider levels.”). There simply
is no legal requirement that licenses be offered to all component suppliers—
much less such a requirement under the antitrust laws.
CONCLUSION
The petition for rehearing en banc should be denied.
Dated: June 6, 2022 Respectfully submitted,
/s/ Mark A. McCarty /s/ Jeffrey L. Kessler

Mark A. McCarty Jeffrey L. Kessler
Matthew D. Richardson Aldo A. Badini
Andrew J. Tuck Susannah P. Torpey
ALSTON & BIRD LLP Patrick S. Opdyke
1201 West Peachtree St. WINSTON & STRAWN LLP
Atlanta, GA 30309 200 Park Avenue
(404) 881-7000 New York, NY 10166
mark.mccarty@alston.com (212) 294-6700
Jeffrey A. Lamken jkessler@winston.com
Eugene A. Sokoloff Andrew E. Tauber
MOLOLAMKEN LLP WINSTON & STRAWN LLP
600 New Hampshire Ave., NW 1901 L Street, NW
Suite 500 Washington, DC 20036
Washington, DC 20037 (202) 282-5000
(202) 556-2000
Lauren F. Dayton Counsel for Avanci LLC
MOLOLAMKEN LLP and Avanci Platform
430 Park Avenue International Ltd.
New York, NY 10022 /s/ Theodore J. Angelis
(212) 607-8160 Theodore J. Angelis
Counsel for Nokia K&L GATES LLP
Corporation, Nokia of 925 4th Avenue
America Corporation, Suite 2900
Nokia Solutions and Seattle, WA 98104
Networks US LLC, Nokia
-16-
Solutions and Networks theo.angelis@klgates.com

Oy, and Nokia
Technologies Oy Counsel for Sharp
Corporation
/s/ H. Annita Zhong
H. Annita Zhong
IRELL & MANELLA LLP
1800 Avenue of the Stars
Suite 900
Los Angeles, CA 90067
(310) 203-7183
Hzhong@Irell.Com
Counsel for Defendants-
Appellees Optis UP
Holdings, LLC; Optis
Wireless Technology, LLC;
and Optis Cellular
Technology, LLC
-17-
CERTIFICATE OF SERVICE
I certify that this brief was served on all participating counsel on June
6, 2022, via the CM/ECF system.
Dated: June 6, 2022 By: /s/ Andrew E. Tauber______

Andrew E. Tauber
-18-
CERTIFICATE OF COMPLIANCE
I certify that the foregoing document complies with the type-volume
limit of Fed R. App. P. 35(e), the typeface requirement of Fed. R. App. P.
32(a)(5), and the type-style requirements of Fed. R. App. P. 32(a)(6). The
document uses a proportional-spaced typeface, fourteen-point Georgia Pro
font. Based on a count under Microsoft Office Word 2016 for Windows, the
document contains 3,877 words, excluding the parts of the document
exempted by Fed R. App. P. 32(f).
Dated: June 6, 2022 By: /s/ Andrew E. Tauber_

Andrew E. Tauber
-19-

United States Court of Appeals For The Fifth Circuit: Plaintiff-Appellant

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Case: 20-11032 Document: 00516346263 Page: 1 Date Filed: 06/06/2022

United States Court of Appeals

CONTINENTAL AUTOMOTIVE SYSTEMS, INC.,

APPELLEES’ RESPONSE IN OPPOSITION

Mark A. McCarty Jeffrey L. Kessler

Lauren F. Dayton Counsel for Avanci LLC

United States Court of Appeals

The following persons and entities as described in the fourth sentence

statement, no publicly-held company owns 10% or more of

Stephen S. Korniczky Jennifer Klein Ayres

Mark S. Davies E. Joshua Rosenkranz

Attorneys for Appellant and Petitioner CONTINENTAL AUTOMOTIVE

5. Nokia Solutions and Networks US LLC

10. Optis Cellular Technology, LLC

Counsel for Defendants-Appellees Avanci, LLC and Avanci

Dated: June 6, 2022 /s/ Jeffrey L. Kessler

Kristen Bromberek Lauren F. Dayton

Dated: June 6, 2022 /s/ Mark A. McCarty

Counsel for Defendants-Appellees Optis UP Holdings, LLC;

Dated: June 6, 2022 /s/H. Annita Zhong

Attorney of Record for Defendants-

Servicios Azucareros de Venezuela, C.A. v. John Deere

STATEMENT OF THE ISSUE PRESENTED

To create the appearance of a conflict in circuit authority where none

Continental’s rehearing petition is academic; resolution of the issue

Continental seeks rehearing on only one of two independently dispositive

at § 2.1. As a result, what Continental makes for licensed OEM customers is

2 Continental’s amici question that conclusion, arguing that “the

certain requirements on suppliers, which “typically” include “assurances”

3 See, e.g., Avanci Announces Patent License Agreement with General

might say about the issue Continental presents could resuscitate

Continental’s assertion of a conflict with decisions of this Court, other

Continental asserts that the panel’s determination conflicts with

5 Cf. HTC Corp. v. Telefonaktiebolaget LM Ericsson, 12 F.4th 476 (5th

Continental’s effort to manufacture a conflict forces it to characterize

There is also no merit to Continental’s contention that the panel

sued or threatened to sue Continental for infringing their [patents].” Id. at

6 The panel also rejected Continental’s theory that it suffered injury

Contrary to the assertions of Continental and its amici, the panel’s

Having carefully examined the complaint, the panel ruled that

For decades, innovators have licensed their patents at the end-product

Analysis 11 (2016) (“In the cellular communications industry, it is common

/s/ Mark A. McCarty /s/ Jeffrey L. Kessler

Solutions and Networks theo.angelis@klgates.com

Dated: June 6, 2022 By: /s/ Andrew E. Tauber______

Dated: June 6, 2022 By: /s/ Andrew E. Tauber_

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