1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 U-BLOX AG, et al, Case No.: 23-cv-0002-CAB-AHG

12 Plaintiffs, ORDER GRANTING DEFENDANTS’ 13 v. MOTION TO DISMISS

14 INTERDIGITAL INC., et al,

15 Defendants. [Doc. No. 36] 16 17 On August 8, 2023, the Court held a hearing on Defendants’ motion to dismiss. [Doc. 18 No. 36]. For the reasons stated on the record, the Court issues the following ORDER: 19 1. Based on the Parties’ representations at the hearing, this case is solely an issue 20 related to breach of contract. Accordingly, Plaintiffs’ cause of action for 21 declaratory judgment of non-infringement of the ‘067 Patent is DISMISSED 22 without prejudice. 23 2. In light of recent Ninth Circuit precedent, Plaintiffs have failed to allege 24 anticompetitive harm in violation of section 2 of the Sherman Act. See FTC 25 v. Qualcomm Inc.,

, 996 (9th Cir. 2020) (“in order to make out a 26 § 2 violation, the anticompetitive harm identified must be to competition 27 itself, not merely competitors”). Plaintiffs also appear to have released any 28 antitrust claims in their 2019 Patent Licensing Agreement with Defendants. 1 [Doc. No. 36-4]. Thus, Plaintiffs’ cause of action under section 2 of the 2 Sherman Act is hereby DISMISSED with prejudice. 3 3. The Court is not convinced that Plaintiffs have provided sufficient notice for 4 a breach of contract claim as a third-party beneficiary of the European 5 Telecommunications Standards Institute’s Intellectual Property Rights 6 (“IPR”) Policy. Therefore, Defendants’ motion to dismiss based on breach of 7 contract and declaratory judgment for setting FRAND terms and conditions is 8 GRANTED with leave to amend. Plaintiffs have until August 25, 2023 to 9 file their first amended complaint, alleging both (1) the conforming products 10 they create and (2) the standard essential patents they utilize that are covered 11 by the IPR policy. Defendants shall answer, or otherwise respond to, the first 12 amended complaint no later than September 15, 2023. 13 14 It is SO ORDERED. 15 Dated: August 8, 2023 € ZL 16 Hon. Cathy Ann Bencivengo 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28