Case: 20-11032 Document: 00516291326 Page: 1 Date Filed: 04/22/2022

20-11032
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
CONTINENTAL AUTOMOTIVE SYSTEMS, INCORPORATED,
a Delaware corporation,
Plaintiff-Appellant,
v.
AVANCI, L.L.C., a Delaware corporation; AVANCI PLATFORM
INTERNATIONAL LIMITED, an Irish company; NOKIA
CORPORATION, a Finnish corporation; NOKIA OF AMERICA
CORPORATION, a Delaware corporation; NOKIA SOLUTIONS AND
NETWORKS U.S. L.L.C., a Delaware corporation; NOKIA SOLUTIONS
AND NETWORKS OY, a Finnish corporation; NOKIA TECHNOLOGIES
OY, a Finnish corporation; OPTIS UP HOLDINGS, L.L.C., a Delaware
corporation; OPTIS CELLULAR TECHNOLOGY, L.L.C., a Delaware
corporation; OPTIS WIRELESS TECHNOLOGY, L.L.C., a Delaware
corporation; SHARP CORPORATION, a Japanese corporation,
Defendants-Appellees.
On Appeal from the United States District Court for the Northern
District of Texas, No. 19-cv-2933 (Hon. Barbara M.G. Lynn)
PROPOSED BRIEF OF AMERICAN HONDA MOTOR CO., INC.,
TOYOTA MOTOR CORP., AND TESLA, INC. AS AMICI CURIAE
IN SUPPORT OF PLAINTIFF-APPELLANT’S
PETITION FOR REHEARING EN BANC

Nicole A. Saharsky
Minh Nguyen-Dang
MAYER BROWN LLP
1999 K Street, N.W.
Washington, DC 20006
(202) 263-3000
nsaharsky@mayerbrown.com
Counsel for Amici Curiae
 Case: 20-11032 Document: 00516291326 Page: 2 Date Filed: 04/22/2022

CORPORATE DISCLOSURE STATEMENT AND

SUPPLEMENTAL STATEMENT OF INTERESTED PERSONS

No. 20-11032, Continental Automotive Sys., Inc. v. Avanci L.L.C. et al.

The undersigned counsel of record certifies that the following listed

persons and entities as described in the fourth sentence of Fifth Circuit Rule

28.2.1, in addition to those disclosed in the parties’ statements of interested

persons, have an interest in the outcome of this case. These representations

are made in order that the judges of this Court may evaluate possible dis-

qualification or recusal.

Amicus Curiae Counsel

American Honda Motor Co., 1. Mayer Brown LLP (Nicole A.
Inc. Saharsky; Minh Nguyen-Dang)
2. American Honda Motor Co., Inc.
(James Oliva)
Toyota Motor Corp. 1. Mayer Brown LLP (Nicole A.
Saharsky; Minh Nguyen-Dang)
Tesla, Inc. 1. Mayer Brown LLP (Nicole A.
Saharsky; Minh Nguyen-Dang)
2. Tesla, Inc. (Emily Lough; Jim Sher-
wood)

Amicus curiae American Honda Motor Co., Inc., is a wholly owned

subsidiary of Honda Motor Co., Ltd. Honda Motor Co., Ltd. is a publicly

held company, and no publicly held company owns 10% or more of its stock.

Amicus curiae Toyota Motor Corp., is a publicly held company, and no

publicly held company owns 10% or more of it stock.

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Amicus curiae Tesla, Inc., has no parent company, and no publicly

held company owns 10% or more of it stock.

Dated: April 20, 2022 /s/ Nicole A. Saharsky

Nicole A. Saharsky

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TABLE OF CONTENTS
Page
INTEREST OF THE AMICI CURIAE ........................................................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT ................................ 1
ARGUMENT .................................................................................................... 3
I. The Issue Presented Is Exceptionally Important To The
Automotive Industry ................................................................................ 3
II. The Panel’s Decision Is Wrong And Irreconcilable With
Decisions From This And Other Circuits ............................................... 7
III. The Panel’s Decision, If Left Uncorrected, Will Significantly
Harm The Automotive Industry And Other Industries ...................... 11
CONCLUSION .............................................................................................. 13

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TABLE OF AUTHORITIES

Cases Page(s)

Ericsson, Inc. v. D-Link Sys., Inc.,

773 F.3d 1201 (Fed. Cir. 2014) ................................................................... 9

HTC Corp. v. Telefonaktiebolaget LM Ericsson,

12 F.4th 476 (5th Cir. 2021)..................................................... 2, 4, 5, 8, 11

Impression Prods., Inc. v. Lexmark Int’l, Inc.,

137 S. Ct. 1523 (2017) ...........................................................................3, 10

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ..................................................................................... 7

Microsoft Corp. v. Motorola, Inc.,

696 F.3d 872 (9th Cir. 2012) ....................................................................... 9

Microsoft Corp. v. Motorola, Inc.,

795 F.3d 1030 (9th Cir. 2015) ..................................................................... 9

Pagan v. Calderon,
448 F.3d 16 (1st Cir. 2006) ........................................................................ 10

Perry v. Thomas,
482 U.S. 483 (1987) ..................................................................................... 9

Quanta Computer, Inc. v. LG Elecs., Inc.,

553 U.S. 617 (2008) ..................................................................................... 4

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

702 F.3d 794 (5th Cir. 2012) ...................................................................3, 9

Spokeo v. Robins,
578 U.S. 330 (2016) ................................................................................... 10

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021) ................................................................................. 7

Uzuegbunam v. Preczewski,
141 S. Ct. 792 (2021) ...............................................................................3, 9

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TABLE OF AUTHORITIES
(continued)

Rule Page(s)

Fed. R. App. P. 29(a)(4)(E) ............................................................................... 1

Other Authorities

Avanci, Enabling the IoT: Wireless Connectivity for the

Internet of Things (last accessed Apr. 20, 2022) ...................................... 12

Mathilde Charlier, Number of Vehicles in Operation in the

United States, Statista (Dec. 15, 2021) ...................................................... 7

Continental, Premium Telematics (2021) ....................................................... 4

Fair Standards Alliance, Competitive and Industry Harms

Related to Refusals to License SEPs and Other Forms of
“Level Discrimination” in SEP Licensing (Dec. 2, 2020) .................6, 8, 12

Kim Hill et al., Contribution of the Auto Industry to the

Economies of All Fifty States and the United States, Center
for Automotive Research (Jan. 2015) ......................................................... 6

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INTEREST OF THE AMICI CURIAE

Amici are automobile manufacturers, known in the industry as origi-

nal equipment manufacturers or OEMs. Amici purchase parts from compa-

nies like Continental and use them in manufacturing vehicles. Those parts

use technologies covered by standard essential patents (SEPs) owned by De-

fendants, but Defendants refuse to provide Continental with the necessary

patent licenses on fair, reasonable, and non-discriminatory (FRAND) terms.

That hurts Continental’s business, decreases competition in the parts avail-

able to OEMs, and ultimately hurts consumers. Yet a panel of this Court

held that Continental lacks standing to challenge the denial of the patent

licenses on FRAND terms. Amici submit this brief to explain how Defend-

ants’ actions harmed Continental, and how the panel’s decision, if left un-

corrected, will create serious problems for the automotive industry and

other industries that use standard technologies.1

INTRODUCTION AND SUMMARY OF ARGUMENT

The panel held that Continental – an automotive parts supplier that

has a right to obtain patent licenses for standard essential patents on

1 No counsel for a party authored this brief in whole or in part, and no

person other than amici curiae or their counsel contributed money that was
intended to fund the preparation or submission of this brief. See Fed. R.
App. P. 29(a)(4)(E).

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FRAND terms – lacks Article III standing to sue when Defendants denied

it that right. The denial of the licenses obviously hurts Continental’s busi-

ness, because it means that Continental must limit its sales to only the

OEMs that already have licenses, or risk being sued for patent infringe-

ment. Yet the panel concluded that Continental has no recourse in the fed-

eral courts.

The panel’s decision is wrong and cannot be reconciled with decisions

of this Court, other federal courts of appeals, and the Supreme Court. The

panel’s first theory was that Continental was not an intended beneficiary of

Defendants’ contractual obligations to provide FRAND licenses. But this

Court previously recognized that all potential licensees are intended bene-

ficiaries of those types of contracts in HTC Corp. v. Telefonaktiebolaget LM

Ericsson, 12 F.4th 476 (5th Cir. 2021). The Ninth Circuit and the Federal

Circuit have agreed. The panel’s second theory was that even if Continental

had a contractual right to obtain a FRAND license, it was not injured when

Defendants denied it that right. That is not only factually wrong (Conti-

nental’s business obviously is injured), but it also is inconsistent with deci-

sions from this Court and the Supreme Court holding that a denial of a con-

tractual right is by itself an injury sufficient to confer Article III standing.

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See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 798 (2021); Servicios Az-

ucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794,

800 (5th Cir. 2012).

If left uncorrected, the decision below could severely harm the auto-

motive industry as well as other industries that use standard technologies.

It would allow holders of widely used and essential patents to ignore their

obligations to provide licenses to any applicant on fair and non-discrimina-

tory terms. Instead, the patent holders would be able to abuse their monop-

oly power to extract extortionate royalties and to control who can and cannot

compete in the marketplace. That, in turn, would increase costs to consum-

ers. The Court should grant rehearing en banc.

ARGUMENT

I. THE ISSUE PRESENTED IS EXCEPTIONALLY IMPORTANT

TO THE AUTOMOTIVE INDUSTRY

This case involves licensing for standard essential patents for motor

vehicle components – a critically important issue for the automotive indus-

try. Modern automobiles are exceptionally complex machines, each com-

prising tens of thousands of parts. See Impression Prods., Inc. v. Lexmark

Int’l, Inc., 137 S. Ct. 1523, 1532 (2017). Those include the telematics control

units (TCUs) at issue, which connect vehicles to cloud services through cel-

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lular networks to enable features such as navigation, driver assistance, ve-

hicle health monitoring, roadside assistance, and self-driving systems. See

Continental, Premium Telematics (2021), perma.cc/RH6D-FPPJ. Suppliers

like Continental make TCUs and then sell them to the manufacturers (i.e.,

the OEMs). See ROA.1720.

Components like TCUs incorporate patented technologies and there-

fore require licenses. The supplier of a component (not the OEM) typically

obtains the necessary licenses. ROA.1720-1721. That is because the sup-

plier is the one researching, designing, and developing the product that

practices the patents. Once a supplier obtains the licenses, it can freely sell

the product that practices the patents to any customer unencumbered (i.e.,

without additional licensing). See Quanta Computer, Inc. v. LG Elecs., Inc.,

553 U.S. 617, 625 (2008).

Some of the patents used in automotive components, including the pa-

tents at issue in this case, are SEPs. SEPs are patents that are incorporated

into industry-wide standards, such as cellular networking standards like

5G. HTC, 12 F.4th at 481. A product has to practice the SEPs to be com-

patible with the standard.

Having industry-wide standards is important because it allows de-

vices to all work together. HTC, 12 F.4th at 481. For example, using the

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standards at issue, any OEM’s vehicle can connect to any cell provider’s net-

work. See id. Standards also promote innovation, because companies can

focus on developing new features, instead of their own competing standards.

Id. But standardization carries a risk of anticompetitive conduct. Because

any company that wishes to make a standard-compliant product must prac-

tice the SEPs, SEP holders are “in a powerful position to extract as much

money as they want from potential licensees.” Id.

To prevent patent holders from unfairly abusing that monopoly

power, the standard setting organizations (SSOs) that develop the stand-

ards require SEP holders to make licenses available to all potential licen-

sees on FRAND terms. See, e.g., ROA.1699. That encourages widespread

adoption of the standard, which benefits both businesses and consumers.

HTC, 12 F.4th at 481. Companies outside the SSOs rely on those FRAND

commitments; they invest in developing products that incorporate the

standards expecting that they will be able to acquire the necessary licenses

on FRAND terms.

FRAND obligations are particularly important to the automotive in-

dustry. Each vehicle incorporates technology covered by many thousands

of patents. Without FRAND obligations, each patent holder would be able

to demand extortionate royalties for SEPs practiced by components in the

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vehicles, massively driving up the cost of automobiles. See Fair Standards

Alliance, Competitive and Industry Harms Related to Refusals to License

SEPs and Other Forms of “Level Discrimination” in SEP Licensing 9-10

(Dec. 2, 2020), https://perma.cc/9DE6-RT2M (Fair Standards Alliance, Com-

petitive Harms).

Defendants refuse to abide by their FRAND obligations. Defendants

are the owners and licensor of SEPs required to connect to cellular net-

works. They promised the SSOs that developed the cellular-networking

standards that they would provide FRAND licenses to any applicant. See

ROA.1715-1720. But when Continental sought FRAND licenses, Defend-

ants would not provide it with any. Defendants refuse to provide licenses

to any company in the automotive industry other than OEMs. ROA.1747-

1749. Defendants do that to make it easier for them to demand unreasona-

ble royalties based on the prices of vehicles, rather than the prices of the

components, which unfairly inflates the royalty rates beyond the values of

the SEPs. Fair Standards Alliance, Competitive Harms 9-10.

The automotive industry is enormous. It is one of the largest manu-

facturing sectors in the Nation, accounting for 3% of GDP. Kim Hill et al.,

Contribution of the Auto Industry to the Economies of All Fifty States and

the United States 3, Center for Automotive Research (Jan. 2015),

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perma.cc/TXT3-7NNU. There are 284 million vehicles on U.S. roads, with

16 million new vehicles registered each year. Mathilde Charlier, Number

of Vehicles in Operation in the United States, Statista (Dec. 15, 2021),

perma.cc/D42L-VM7T. Each vehicle includes tens of thousands of parts,

and the parts practice thousands of patents. The panel’s decision that sup-

pliers have no recourse when SEP holders fail to abide by their FRAND

obligations thus is enormously important for businesses and consumers

across the Nation.

II. THE PANEL’S DECISION IS WRONG AND IRRECONCILA-

BLE WITH DECISIONS FROM THIS AND OTHER CIRCUITS

The panel took an exceptionally restrictive view of Article III stand-

ing. To establish Article III standing, a plaintiff must show that it has a

concrete and actual injury, fairly traceable to the defendant, that a court

can redress. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Con-

tinental easily satisfies that standard: Because Defendants will not provide

it with FRAND licenses, it cannot make TCUs that it can freely sell to any

customer. ROA.1728-1729. Instead, it must limit its sales to only the OEMs

that have licenses, or risk being sued (or having its customers sued) for pa-

tent infringement. The resulting loss of profits is a paradigmatic Article III

injury. See, e.g., TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021)

(“monetary harms” “readily qualify as concrete injuries under Article III”).

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And a court could redress that injury by finding Defendants’ licensing prac-

tices unlawful.

The panel nonetheless held that Continental did not suffer a cogniza-

ble injury when Defendants refused to provide it with FRAND licenses.

Op. 10-13. It gave two reasons, both of which are mistaken. First, it stated

that only competitors of Defendants or members of the SSOs are intended

beneficiaries of Defendants’ FRAND agreements. Id. at 10-11. That is not

what the agreements say, and it fundamentally misunderstands the nature

of FRAND obligations. One of the core obligations is that the patent holders

must issue licenses on a non-discriminatory basis – i.e., to anyone. Fair

Standards Alliance, Competitive Harms 3-4. Indeed, the SSOs that devel-

oped the standards at issue expressly require SEP holders to provide

FRAND licenses to “all applicants,” ROA.1699 (emphasis added), or to “all

third parties, whether or not they are” members of the SSO, 3GPP, What Is

the 3GPP Policy on Licensing (Feb. 21, 2020), perma.cc/BNH7-5XQD (em-

phasis added).

This Court in HTC recognized that a central obligation of SEP holders

is to provide FRAND licenses to all potential licensees. 12 F.4th at 481. The

Court accordingly held – in direct conflict with the panel’s decision here –

that everyone “seeking to license under [FRAND] terms become[s] [a] third-

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party beneficiar[y]” of a FRAND agreement. Id. The Ninth and Federal

Circuits similarly have recognized that FRAND agreements require SEP

holders to provide licenses to “all seekers.” Microsoft Corp. v. Motorola, Inc.,

795 F.3d 1030, 1031 (9th Cir. 2015); see Microsoft Corp. v. Motorola, Inc.,

696 F.3d 872, 885 (9th Cir. 2012) (SEP holders “promise” to provide licenses

“to all comers”); Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1209 (Fed.

Cir. 2014) (SEP holders “pledge that they will grant licenses to an unre-

stricted number of applicants”). The panel’s holding cannot be squared with

those decisions.

The panel’s second reason was that even if Continental was a third-

party beneficiary to the FRAND agreements, it was not injured when De-

fendants denied it licenses because it could use OEMs’ licenses. Op. 11-13.

That holding is irreconcilable with decisions from the Supreme Court and

this Court holding that injuries to contract rights “have always been suffi-

cient for standing.” Servicios Azucareros, 702 F.3d at 800; see, e.g., Uzueg-

bunam, 141 S. Ct. at 798. If a third-party beneficiary plausibly alleges that

it was denied a contractual right, then it has standing to bring suit; whether

it is entitled to relief goes to the merits, not standing. See Perry v. Thomas,

482 U.S. 483, 492 (1987).

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The panel’s reasoning also is wrong as a factual matter. The panel, in

effect, held that Continental’s ability to use OEMs’ licenses was just as good

as having its own license. See Op. 12. But if Continental must rely on OEMs

licenses, it can only sell TCUs to those OEMs that have licenses, on the

terms negotiated by the OEMs. It cannot control or foresee which OEMs

will acquire licenses in the future, or on what terms. If Continental had its

own licenses, obtained on terms that are reasonable for its business, it could

sell its TCUs to any customer, free of further patent encumbrances. See

Impression Prods., 137 S. Ct. at 1532. Not having its own licenses thus

substantially restricts Continental’s business, and that restriction is suffi-

cient for Article III standing.

Finally, the majority reasoned that it is enough that OEMs could sue

to challenge Defendant’s licensing practices. Op. 13. That is incorrect. The

fact that one person has standing does not preclude the other from also hav-

ing standing. See Pagan v. Calderon, 448 F.3d 16, 26 (1st Cir. 2006) (“stand-

ing inquiry” is “plaintiff-specific”). OEMs can bring suit to seek redress for

the harms that they suffer, but they cannot seek redress for separate harms

to suppliers – such as Defendants’ refusal to provide licenses to the suppli-

ers. See Spokeo v. Robins, 578 U.S. 330, 338 n.6 (2016). Suppliers are the

ones who are targeted by that boycott, so they should be able to bring suit.

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III. THE PANEL’S DECISION, IF LEFT UNCORRECTED, WILL

SIGNIFICANTLY HARM THE AUTOMOTIVE INDUSTRY AND
OTHER INDUSTRIES

The panel’s decision threatens severe harm to the automotive indus-

try. The result of the decision is that if companies in one part of an industry

(here, OEMs) are able to get licenses, then companies in other parts of the

industry (here, suppliers like Continental) are not entitled to FRAND li-

censes. Op. 12. That massively weakens FRAND obligations. The FRAND

agreements do not give OEMs special status among potential licensees; they

say that SEP holders must provide licenses to anyone. See ROA.1699-1700.

Nonetheless, Defendants decided to provide the licenses exclusively to

OEMs in an effort to seek higher, non-FRAND royalty rates. ROA.1723.

Allowing SEP holders to pick and choose which licensees they will deal with

is completely contrary to the letter and spirit of FRAND agreements; it ef-

fectively allows SEP holders to pick winners and losers in each industry.

See HTC, 12 F.4th at 481. The reason FRAND agreements exist is to pre-

vent SEP holders from abusing their monopoly control over the standards.

Allowing SEP holders to pick and choose licensees imposes substan-

tial and unjustified costs on the automotive industry. First, it hurts suppli-

ers’ business, as they must either restrict their sales or face the risk of them

or their customers being sued for patent infringement. ROA.1697-1698.

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That reduces competition among suppliers, which drives up component

costs for OEMs.

Second, it enables SEP holders to demand non-FRAND royalties, be-

cause they can seek to charge royalty rates for each vehicle made by OEMs,

rather than on each component made by suppliers. Fair Standards Alli-

ance, Competitive Harms 9-10; see Avanci, Enabling the IoT: Wireless Con-

nectivity for the Internet of Things, perma.cc/ XF7D-CT4V (last accessed

Apr. 20, 2022) (explaining that Defendants base their royalty rates on the

value of the features enabled by cellular connectivity to the vehicle). De-

fendants then coerce OEMs into accepting those unfair rates by threatening

to enjoin automobile production, particularly in jurisdictions where injunc-

tions are more freely granted. ROA.1729. If Defendants had to provide

licenses to component suppliers, they would find it much harder to justify

those inflated rates.

Third, it adds to the OEMs’ transaction costs and thus the overall

costs of manufacturing vehicles. Each OEM must negotiate licensing agree-

ments with Defendants, for parts that the OEM does not develop and man-

ufacture, instead of only the limited number of specialized component sup-

pliers that make those parts.

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All of this ultimately harms consumers, by increasing the price of au-

tomobiles and reducing the resources available for research and develop-

ment into new performance and safety features. Further, the panel’s deci-

sion, if uncorrected, would give Defendants a path to replicate their unfair

practices in any of the thousands of other industries that use cellular tech-

nologies, with similar harmful consequences. Defendants could charge un-

reasonable royalties in each of those industries, essentially imposing a

global tax on innovation. The full Court’s immediate review is needed to

prevent that result.

CONCLUSION

The Court should grant the petition for rehearing en banc.

Dated: April 20, 2022 Respectfully submitted,

/s/ Nicole A. Saharsky

Nicole A. Saharsky
Minh Nguyen-Dang
MAYER BROWN LLP
1999 K Street, N.W.
Washington, D.C. 20006
(202) 263-3000
nsaharsky@mayerbrown.com

Counsel for Amici Curiae

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CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(g), undersigned

counsel certifies that this brief:

(i) complies with the type-volume limitation of Rule 29(b)(4) be-

cause it contains 2,597 words, including footnotes and excluding the parts

of the brief exempted by Rule 32(f௘); and

(ii) complies with the typeface requirements of Rule 32(a)(5) and the

type style requirements of Rule 32(a)(6) because it has been prepared using

Microsoft Office Word 2016 and is set in Century Schoolbook font in a size

equivalent to 14 points or larger.

Pursuant to Paragraph A(6) of this Court’s ECF Filing Standards, un-

dersigned counsel certifies that (1) required privacy redactions have been

made in compliance with 5th Cir. R. 25.2.13; (2) the electronic submission is

an exact copy of the paper document, in compliance with 5th Cir. R. 25.2.1;

and (3) the document has been scanned for viruses with the most recent

version of a commercial virus scanning program and is free of viruses.

Dated: April 20, 2022 /s/ Nicole A. Saharsky

Nicole A. Saharsky

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk

of the Court for the United States Court of Appeals for the Fifth Circuit by

using the appellate CM/ECF system on April 20, 2022. I certify that all

participants in the case are registered CM/ECF users and that service will

be accomplished by the appellate CM/ECF system.

/s/ Nicole A. Saharsky

Nicole A. Saharsky

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