EASTERN DISTRICT OF TEXAS MARSHALL DIVISION INNOVATIVE DISPLAY TECHNOLOGIES LLC Plaintiff, v. ACER INC. AND ACER AMERICA CORP., Defendants.
Civil Action No: 2:13-cv-522-J RG (CONSOLIDATED Lead Case)
INNOVATIVE DISPLAY TECHNOLOGIES LLC Plaintiff, v. MICROSOFT CORPORATION, Defendant, Third-party plaintiff, v. ACACIA RESEARCH CORPORAITON, Third-party defendant,
[PROPOSED] ORDER GRANTING THIRD-PARTY DEFENDANT ACACIA RESEARCH CORPORATIONS AND COUNTERCLAIM DEFENDANT INNOVATIVE DISPLAY TECHNOLOGIES, LLCS JOINT MOTION TO STRIKE CERTAIN MATTERS FROM MICROSOFT CORPORATIONS COUNTERCLAIM AND THIRD- PARTY COMPLAINT UNDER FED. R. CIV. P. 12(f) AND TO DISMISS MICROSOFTS ABUSE OF PROCESS CLAIM FOR RELIEF UNDER FED. R. CIV. P. 12(b)(6); AND REQUEST FOR JUDICIAL NOTICE
Before the Court is Third-Party Defendant Acacia Research Corporations (ARC) and Counterclaim Defendant Innovative Display Technologies, LLCs (IDT) J oint Motion to Strike certain matters from Microsoft Corporations Counterclaim and Third-Party Complaint Case 2:13-cv-00522-JRG Document 95-2 Filed 08/11/14 Page 1 of 4 PageID #: 2202
LITIOC/2100839v3/101022-0107 under Federal Rule of Civil Procedure 12(f) and to Dismiss Microsofts Abuse of Process claim for relief under Federal Rule of Civil Procedure 12(b)(6). Also before the Court are ARCs and IDTs Request for J udicial Notice. After consideration of the parties written submissions and any further argument, the Court finds that the Motion should be GRANTED. It is therefore ORDERED that: Microsofts allegations in Paragraphs 17-21 1 , 23-29, 52, 58(d), 58(e), and D, E, G, and H to Microsofts Prayer for Relief are stricken in their entirety; Microsofts allegations in Paragraphs 2, 37, 41, 42(c), 45, 48, 49, 51, 53, and B to Microsofts Prayer for Relief are stricken in part as identified below. Paragraph 2: the phrases seven separate ARC subsidiaries (all under ARCs control) filed seven separate lawsuits against Microsoft in four separate cities, and several of the lawsuits contain claims concerning patents that ARC had told Microsoft it did not infringe, and several contain allegations that ARC knew to be frivolous, are stricken. Paragraph 37: the phrase the ARC Actions because all of the ARC Actions assert patents covered by the Contract and, with respect to those patents, the ARC Actions all initially, is stricken. Paragraph 41: the phrase eight of the patents that are asserted in the ARC Actions are patents that ARC identified in December 2012 as patents ARC believed Microsoft did not infringe, is stricken. Paragraph 42(c): the phrase that ARC, in the ARC Actions, now asserts to be infringed by Microsoft sale and
1 Except for the allegation in Paragraph 18 referencing IDT. Case 2:13-cv-00522-JRG Document 95-2 Filed 08/11/14 Page 2 of 4 PageID #: 2203
LITIOC/2100839v3/101022-0107 activities occurring prior to September 30, 2013, including sales and activities from prior to December 2012, is stricken. Paragraph 45: the phrase as well as by the diversion of corporate personnel and resources to defend against the ARC Actions and to prosecute its case against ARC alleging breach of contract and abuse of process in the Southern District of New York, is stricken. Paragraph 48: the phrase ARC actions and the legal processes those lawsuits have set in motion, including early and extensive disclosures and discovery, is stricken. Paragraph 49: the phrases ARC knows that many of the claims and allegations in the ARC Actions lack any merit, and ARC orchestrated eight lawsuits that include these baseless claims and allegations in order to maximize the burden and expense of the ARC Actions on Microsoft. Two of the ARC Actions have already been voluntarily dismissed in light of their lack of merit, are stricken. Paragraph 51: the phrase in a number of the ARC Actions, ARC has injected allegations of willful infringement even though ARC knows that neither it nor the specifically named ARC Affiliate has any plausible basis for such allegations, is stricken. Paragraph 53: the phrase the ARC Actions, as well as by the diversion of corporate personnel and resources to defend against the ARC Actions . . . to prosecute its case in the southern District of New York, is stricken. Case 2:13-cv-00522-JRG Document 95-2 Filed 08/11/14 Page 3 of 4 PageID #: 2204
LITIOC/2100839v3/101022-0107 Paragraph B: the phrase and the Southern District of New York action to enforce ARCs and IDTs obligations under the Contract, is stricken. Additionally, all references in Microsofts Counterclaim and Third-Party Complaint to the ARC Actions and ARCs subsidiaries, except for references to IDT, are stricken. IT IS FURTHER ORDERED that Acacias motion to dismiss Microsofts Abuse of Process claim for relief is GRANTED, with prejudice. IT IS FURTHER ORDERED that Acacias Request for J udicial Notice is GRANTED. Case 2:13-cv-00522-JRG Document 95-2 Filed 08/11/14 Page 4 of 4 PageID #: 2205
Morex S.P.A. And Morex Usa, Inc., Plaintiffs-Counterdefendants-Appellees-Cross-Appellants v. Design Institute America, Inc., Defendant-Counterclaimant-Appellant-Cross-Appellee v. Frankart Distributors, Inc., Counterdefendant-Appellee-Cross-Appellant, 779 F.2d 799, 2d Cir. (1985)