EDWARD M. CHEN, District Judge.
Plaintiff Capella Photonics filed suit against Cisco Systems, Fujitsu Network Communications (collectively "Defendants"), and two other parties alleging infringement of U.S. Patent Nos. RE42,368 (the '368 patent) and RE 42,678 (the '678 patent). See, e.g., Docket No. 30 (First Amended Complaint Against Cisco). Both Cisco and Fujitsu answered Capella's complaint, and both assert inequitable conduct as an affirmative defense. Docket No. 108 (Cisco's Amended Answer and Counterclaims) (hereafter CAAC); No. 14-cv-3349, Docket No. 23 (Fujitsu's Answer) (hereafter FA).
Capella now moves to strike Defendants' largely identical inequitable conduct defenses, and to dismiss Cisco's UCL counterclaim. Docket Nos. 115, 116. For the reasons discussed below, the Court grants Capella's motions to strike in part and denies them in part. Capella's motion to dismiss is granted because Cisco has not pleaded a necessary element of the "fraudulent" prong under the UCL, namely that members of the public were likely to be deceived by the challenged practice.
Capella filed this patent infringement action on February 12, 2014, in the Southern District of Florida. See Docket No. 1. Capella considers itself "a pioneer of optical switching technologies for use in optical transmissions networks," and the patents-in-suit are directed towards methods of optical switching in such communications networks. See Docket No. 30 at ¶¶ 7, 12-20, 26.
Cisco answered Capella's complaint on April 4, 2014. Docket No. 17. Fujitsu answered on April 15. FA at 25. Both answers pleaded substantially identical inequitable conduct defenses. Compare Docket No. 17 with FA. Cisco's answer also contained a counterclaim for violation of the UCL, predicated on Capella's alleged "bad faith" assertion of patent rights against Cisco that Capella "knew to be overbroad and invalid in light of prior art, and that [] Capella obtained through fraud on the Patent Office." Docket No. 17 at 25-26. After Capella filed an amended complaint, and Cisco filed an amended answer, Capella moved to strike Cisco's inequitable conduct defenses and dismiss Cisco's UCL counterclaim. Docket Nos. 46, 47 (Motions to Strike and Dismiss). Capella did not move to strike Fujitsu's inequitable conduct defenses.
On July 14, 2014, Judge Seitz granted Capella's motion to strike in a one-line order. Docket No. 74. Judge Seitz explained at oral argument that he felt Cisco should "cure" certain unspecified "defects" in its pleading, and granted Cisco leave to amend its inequitable conduct defenses.
Cisco filed its amended and operative answer on September 15, 2014. CAAC at 25. On September 25, Capella once again filed a motion to strike Cisco's inequitable conduct defenses pursuant to Federal Rule of Civil Procedure 12(f), and to dismiss Cisco's UCL counterclaim pursuant to Federal Rule of Civil Procedure 12(b). Docket No. 114.
In their respective answers, both Defendants plead substantially similar affirmative defenses of inequitable conduct with respect to the patents-in-suit. See CAAC at 6-20; FA at 6-20. Specifically, they claim that during the re-issue prosecutions of the patents-in-suit, Capella intentionally withheld or mischaracterized three different
The two patents-in-suit are reissue patents. See Docket Nos. 127-4, 127-5 (Patents-In-Suit). In order to obtain a reissue patent, an inventor must "specifically identify [to the Patent Office] at least one error" in the original patent "and state that the applicant believes the original patent to be wholly or partly inoperative or invalid" due to that error. 37 C.F.R. § 1.175(a). Sometime around June 10, 2010, Capella sought reissue of what would become the patents-in-suit. FA at 13; CAAC at 13.
In seeking re-issue of the patents-in-suit, Capella allegedly represented to the Patent Office that its originally issued patents were invalid because they claimed more than Capella had a right to claim. Specifically, Capella allegedly told the Patent Office in May 2011 that its original patents "fail[ed] to include limitations regarding the spatial array of beam deflecting elements being individually and continuously controllable in two dimensions to control the power of the spectral channels." FA at 13; CAAC at 13. Put differently, Capella allegedly admitted that its patents were invalid because their claims did not require two-dimensional (2-D) micromirrors for power control. FA at 13-14; CAAC at 13-14. Consequently, Capella sought re-issue of its patents with narrower claims that added limitations calling for 2-D mirrors for power control. FA at 14; CAAC at 14. The PTO eventually granted the amended claims as part of the reissue patents-in-suit, apparently concluding that "the prior art of record does not teach or suggest using" 2-D mirrors for power control. FA at 14; CAAC at 14. Defendants claim that Capella admitted that "the only allegedly novel aspects of" the reissue patents-in-suit over the prior art were 2-D mirrors and power control. FA at 14; CAAC at 13 (emphasis added).
Defendants allege that the "first instance" of inequitable conduct occurred where Capella, and specifically Capella CEO Larry Schwerin, patent prosecutor Barry Young, and former CEO and current Emeritus Board Member Joseph Davis (collectively "the Applicants"), knowingly failed to cite U.S. Patent No. 6,798,941 (the Smith patent) to the PTO during the reissue prosecution of the patents-in-suit that took place in 2010 and 2011. See FA at 7-8; CAAC at 7. While the face of the Smith patent lists a filing date of September 20, 2001, it claims priority to a provisional application (the Smith provisional) filed on September 22, 2000. The earliest provisional application to which the asserted patents may claim priority was filed on March 19, 2001. Thus, according to Defendants, if the Smith patent is entitled to its earliest priority date, it would be prior art to the patents-in-suit.
Defendants claim that the Applicants first learned about the Smith patent sometime in 2007 when a patent examiner cited the Smith patent as prior art during the prosecution of another Capella patent on which Mr. Davis was a named inventor. See FA at 9-10, 12-13; CAAC at 9, 12. Defendants further allege that during the prosecution of this other Capella patent, the Applicants learned that the Smith patent discloses the use of 2-D mirrors for power control — the exact same features
Defendants' alleged "second instance" of inequitable conduct actually appears to be two separate allegations of inequitable conduct. First, Defendants allege that Capella concealed the true "nature of the `mistake' on which it based the reissue of the '368 and '678 patents." FA at 15-16; CAAC at 15-16. Specifically, Defendants allege that Capella initially represented to the PTO that its original patents "may have claimed more than there was a right to claim in view of the cited prior art." FA at 16; CAAC at 16 (emphasis added). The Patent Office responded that "[t]he phrase `may have claimed more'" was insufficiently specific and failed to comply with the requirement that a party seeking a reissue patent must "specifically identify [to the Patent Office] at least one error" in the original patent "and state that the applicant believes the original patent to be wholly or partly inoperative or invalid" due to that error. FA at 16; CAAC at 16; 37 C.F.R. § 1.175(a). Only after the Patent Office rejected Capella's first attempt to obtain reissue patents did Capella eventually concede that its original patents were actually invalid in light of the prior art. FA at 16; CAAC at 16.
Defendants' second claim is that the Applicants "said nothing about" about U.S. Patent No. 5,629,790 (the Neukermans patent) to the PTO during the reissue prosecution of the patents-in-suit, despite the Applicants' alleged awareness that the Neukermans patent disclosed 2-D mirror control. FA at 18; CAAC at 17. Defendants' pleadings later acknowledge that Capella did, in fact, cite the Neukermans patent to the PTO in both re-issue prosecutions. FA at 18; CAAC at 17. They claim, however, that Capella "mischaracterized" the Neukermans patent by telling the PTO that Neukermans disclosed certain unimportant pieces of prior art while completely failing to disclose to the PTO that Neukermans also allegedly discloses critical and invalidating prior art (i.e., 2-D mirror control).
For the "third instance" of inequitable conduct, Defendants allege that the Applicants purposefully withheld a prior art reference they refer to as the "Lucent 2-Axis Mirror." CAAC at 18-19; FA at 19-20. According to Defendants, Applicants knew about the Lucent 2-axis mirror — which allegedly discloses the concept of using a 2-D mirror for power control — because they themselves cited it as prior art to the Patent Office in the original provisional patent application to which both patents-in-suit claim priority.
Defendants also allege that each of the three above-described instances of inequitable conduct were performed with the specific "intent to deceive the Patent Office." See, e.g., CAAC at 20; FA at 20 ("Applicants purposely omitted the disclosure of the Lucent 2-D mirrors with an intent to deceive the PTO."). Fujitsu's answer stated that "[t]he Applicants had strong motivations to [deceive the PTO], as they stood to profit from [the] sale of [the] company at a higher valuation or through a patent licensing campaign if the sale failed." FA at 20; see also CAAC at 20 (same). Cisco's answer alleges in even greater detail that:
CAAC at 13. Moreover, both Defendants assert that intent to deceive can further be inferred from Capella's alleged "systematic[] withholding or obfuscating the relevance of the known prior art," its "multiple attempts to hide the real `mistakes' in the patents that were re-issued as the Patents-in-Suit," and Capella's claimed practice of "amending claims to highlight distinctions over weaker, disclosed, prior art while withholding art that disclosed some or all of those same distinctions." CAAC at 20; FA at 20.
Cisco also filed a UCL counterclaim against Capella. Cisco contends that Capella engaged in unfair business practices by filing this infringement lawsuit against Cisco when Capella allegedly knew that the patents-in-suit are invalid and were procured by fraud.
Id. at 22-23. Cisco prays for injunctive relief as well as restitution/disgorgement of any monies Capella received from Cisco as a result of Capella's allegedly fraudulent practices. Id. at 23. Cisco does not identify, however, what monies Capella received from Cisco that would be subject to a UCL restitution award.
Capella's motions to strike are governed by Federal Rule of Civil Procedure 12(f), which allows the Court to strike any "insufficient defense, or any redundant, immaterial, impertinent, or scandalous
Federal Circuit law governs the sufficiency of allegations of inequitable conduct. See Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1318 (Fed.Cir. 2009). "Under Federal Circuit law, all averments of fraud and inequitable conduct, including affirmative defenses, fall within the strictures of [Federal] Rule [of Civil Procedure] 9(b) and must be stated with particularity." Zep Solar, 2012 WL 1293873 at *2 (citing Exergen, 575 F.3d at 1326). To satisfy the "particularity required by Rule 9(b), the pleading must state the `who, what, when, where, and how' of the misrepresentation or omission made to the PTO." Id (quoting Exergen, 575 F.3d at 1327).
"The essential elements of a claim of inequitable conduct under Federal Circuit law are: (1) an individual associated with the filing and prosecution of a patent application affirmatively misrepresents a material fact, fails to disclose material information, or submits false material information; and (2) the individual does so with the specific intent to deceive the [Patent Office]." Id. (citing Exergen, 575 F.3d at 1327 n. 3). The "materiality required to establish inequitable conduct is but-for materiality." Therasense, Inc. v. Becton, Dickinson and Co., 649 F.3d 1276, 1291 (Fed.Cir.2011) (en banc). As the en banc court in Therasense explained, "prior art is but-for material if the PTO would not have allowed a claim had it been aware of the undisclosed prior art." Id.
Capella's motion to dismiss Cisco's UCL counterclaim is governed by Federal Rule of Civil Procedure 12(b)(6), which tests the legal sufficiency of Cisco's pleading. "All well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party." Faulkner v. ADT Sec. Services, Inc., 706 F.3d 1017, 1019 (9th Cir.2013) (citations omitted). "To survive a motion to dismiss, a complaint must allege enough facts to state a claim to relief that is plausible on its face." Id. (internal quotation and quotation marks omitted).
Defendants alleged three separate "instances" of inequitable conduct in their answers. After carefully reviewing the Defendants' pleadings and motions papers, the Court thus assumed that each separate "instance" of inequitable conduct was just that — a claimed instance of inequitable conduct. Put differently, the Court understood Defendants to allege that Capella committed inequitable conduct at least three separate times: first when it allegedly withheld the Smith patent; again when it concealed the "true nature" of the mistake on which reissue was initiated, including misrepresenting the contents of the Neukermans patent; and finally when it "excised" and/or withheld any reference to the Lucent 2-axis mirror during the reissue prosecution.
The Court will hold counsel to its waiver, and thus strikes with prejudice Cisco's and Fujitsu's inequitable conduct defenses based on the alleged withholding or misrepresentation of the Nuekermans and Lucent references. As explained below, the Court will also strike with prejudice the remaining aspect of Defendants' "second instance" of inequitable conduct, namely concealing the true nature of the "mistake" in Capella's initial reissue filing, because that claim fails as a matter of law.
However, the Court will not strike Defendants' "first instance of inequitable conduct" based on Capella's alleged withholding of the Smith patent, as the Court determines that both Defendants adequately pleaded that defense.
Before discussing Defendants' one legally sufficient inequitable conduct defense, the Court will attempt to put to bed the remainder of the legal quagmire that Defendants' second and third inequitable conduct defenses have become. As noted above, Defendants conceded that their inequitable conduct allegations with respect to the Neukermans and Lucent references are insufficient as a matter of law. The Court thereby strikes with prejudice all separate allegations of inequitable conduct relating to those references.
Defendants did not concede, however, the first part of their claimed "second instance" of inequitable conduct. Defendants allege that the Applicants committed inequitable conduct by concealing the "true nature of the mistake" on which they sought reissue of the asserted patents. FA at 15-16; CAAC at 15-16. Specifically, Defendants claim that Capella initially represented to the PTO that its original patents "may have claimed more than there was a right to claim in view of the cited prior art." FA at 16; CAAC at 16 (emphasis added). Only after the Patent Office responded that Capella's averment was insufficiently specific did Capella eventually concede that its original patents were actually invalid in light of the prior art. FA at 16; CAAC at 16.
The Court strikes this aspect of Defendants' defenses because the behavior
According to Defendants, Capella committed inequitable conduct when it failed to cite the Smith patent to the PTO during the reissue prosecutions of the patents-in-suit. FA at 8-15; CAAC at 8-15. The Court finds that both Fujitsu and Cisco adequately pleaded this defense.
Defendants allege that the Smith patent is but-for material
The patents-at-issue are reissue patents. In order to obtain a reissue patent, the applicant must "specifically identify at least one error" that caused the "original patent to be wholly or partly inoperative or invalid." 37 C.F.R. § 1.175(a). Here, Defendants allege that the sole "mistake" identified by Capella was that its original patents were invalid because they did not limit their claims to require 2-D micromirrors for power control. FA at 13-14; CAAC at 13-14. Thus, Capella sought re-issue of its patents with narrower claims that included limitations calling for 2-D mirrors for power control. FA at 14; CAAC at 14. According to Defendants, the PTO eventually granted the amended
Because the PTO specifically granted Capella's re-issue patents on the ground that the prior art did not "teach or suggest using" 2-D mirrors for power control, any prior art that
According to Defendants, Capella (and specifically Mr. Davis) first learned of the Smith patent by at least 2007.
The crux of Capella's motion to strike the "first instance" of inequitable conduct is that Defendants did not sufficiently plead or establish that Smith is actually
The face of the Smith patent, however, does claim priority back to an earlier application, namely the Smith provisional application filed on September 22, 2000. The parties vigorously dispute the merits of whether the Smith patent is actually entitled to this earlier priority date. For instance, Capella argues that there is no written description support in the Smith provisional that would entitle the Smith patent to claim the provisional's earlier priority date (at least with respect to Smith's claims regarding 2-D mirrors for power control). See Docket No. 116 at 6. But these arguments are largely irrelevant at this stage of these proceedings. At the pleading stage, the Court must review Defendants' defenses in the light most favorable to them. Defendants pleaded that the Smith patent is entitled to the provisional filing date of the Smith provisional, and cite portions of the Smith provisional that seem to support this argument.
Assuming that the Smith patent is actually material prior art to the patents-in-suit, the remaining dispositive question is whether any of the Capella Applicants
Capella's argument, however, is not well taken. Fujitsu alleges that at least Davis knew that the Smith patent disclosed 2-D mirrors for power control — the very same features that Capella later cited to the PTO as a point of novelty in order to obtain reissuance of the patents-in-suit. Indeed, the face of the Smith patent seems to clearly disclose these features. And the face of the Smith patent also clearly claims priority to a provisional application that pre-dates any filing to which Capella's asserted patents could claim priority. It is therefore a highly plausible inference that Davis would have acquainted himself with the contents of the Smith provisional in order to determine whether or not the Smith patent actually is but-for material prior art to either of the patents-in-suit.
Indeed, this is exactly the inferential reasoning that Cisco explicitly added to its pleading after it was initially struck by Judge Seitz. Cisco's amended (and operative) defense alleges that "Schwerin, Young, and possibly other applicants such as Davis were aware of the [Smith] provisional and its contents. This is because the Smith patent lists on its face the [Smith] provisional and the filing date of that provisional, and because the first paragraph in the Smith patent's specification claims priority to the [Smith] provisional application." CAAC at 14. That is,
In fact, the above logic is so plausible that Fujitsu did not need to explicitly plead each inferential step in its defense in order to survive Capella's motion to strike. Fujitsu alleges that the Applicants knew what the Smith patent purports to claim, and knew that the Smith patent claims priority to a provisional filing that pre-dated all of Capella's filings. Under those circumstances, it would be both reasonable and plausible for the Court to assume that the Applicants actually learned of the contents of the Smith provisional, because the only way they could possibly determine whether the seemingly invalidating Smith patent actually is prior art would be to review the Smith provisional and determine if the Smith patent is truly entitled to claim priority to that application.
In sum, Defendants "first instance" of inequitable conduct is well-pleaded. Defendants identify the who (i.e., Davis and possibly the other Applicants), the what (i.e., the Smith patent's disclosure of 2-D mirrors for power control), the when (i.e., during the reissue prosecutions of the asserted patents in 2010), the where (i.e., the abstract and specification of the Smith patent and the disclosure of the Smith provisional), and how (i.e., the Examiner would have rejected the claims of the reissue patent had she known Smith disclosed 2-D mirrors for power control) of the alleged fraud. See Exergen, 575 F.3d at 1327. And, as described below, Defendants also have satisfactorily alleged that the Applicants knowingly withheld the Smith patent from the PTO with the specific intent to deceive the Patent Office.
A finding of inequitable conduct also requires that the applicant (or applicants) withhold or misrepresent material prior-art "with a specific intent to deceive the PTO." Exergen, 575 F.3d at 1329. While intent "may be averred generally" under Rule 9(b), a pleading of inequitable conduct "must include sufficient allegations of underlying facts from which a court may reasonably infer that a specific individual" acted with the requisite state of mind. Id. at 1328; see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1954, 173 L.Ed.2d 868 (2009) (noting that "Rule 9 merely excuses a party from pleading [] intent under an elevated pleading standard," and holding that intent must be able to be inferred from a pleading's factual context to survive a motion to dismiss).
Here, the Court concludes that both answers contain sufficient factual material from which the Applicants's specific intent to deceive the PTO can reasonably be inferred, particularly given that on a motion to strike this Court must view the pleadings in the light most favorable to the pleader. Zep Solar, 2012 WL 1293873 at
Barry Young was the prosecuting attorney of the reissue patents,
Moreover, with respect to both Davis and Schwerin, Fujitsu further explicitly alleged that specific intent is reasonably inferable because "they stood to profit from the sale of [the] company at a higher valuation or through a patent licensing campaign if the sale failed." FA at 20. And Cisco's answer goes into even more detail, alleging that:
CAAC at 13. The above factual allegations, taken together with allegations that Capella misrepresented other references and purposefully filed a misleading request for patent re-issuance, are sufficient to satisfy the intent requirement on a motion to strike.
Capella counters that a "desire to make money by obtaining patents (a desire common to nearly every patent applicant)" cannot "support an inference of specific intent to deceive by withholding material information." Docket No. 132 at 11. Notably, Capella does not cite any authority in support of this position, and it does not appear to hold up to scrutiny. The desire to make money is by far the most likely explanation for attempting to obtain patents via acts of inequitable conduct.
In any event, there are additional allegations that bolster the inference of specific intent. For instance, Capella initially refused to identify the precise flaw in its original patents when seeking re-issue, only identifying the error with specificity after the PTO initially rejected its re-issue application. Moreover, Capella allegedly failed fairly to disclose the Lucent 2-axis mirror — an apparently material piece of 2-D mirror art Capella undoubtedly knew about — to the Patent Office in a filing that was likely to be reviewed by the Examiner. Taken together, Defendants have adequately pleaded intent at the pleading stage.
Capella also moves to dismiss Cisco's UCL counterclaim. Cisco alleges that Capella engaged in a fraudulent business practice by filing this lawsuit against Cisco in bad faith, knowing that the asserted patents-in-suit are invalid and were procured through fraud.
In its motion, Capella argues that the UCL claim must be dismissed for a number of reasons including: (1) Cisco's UCL claim is precluded by the Noerr-Pennington doctrine; (2) Cisco's UCL claim is pre-empted by Federal patent law; (3) Cisco cannot show it is entitled to restitution; (4) any injunctive relief awarded under the UCL would be entirely co-extensive with any relief obtained under the Patent Act, and therefore the UCL cause of action is duplicative and essentially moot; and (5) Cisco has not adequately pleaded facts that constitute a violation of the "fraudulent" prong. Docket No. 116 at 13-17. Because Capella's fifth and final contention (i.e., Cisco has not adequately alleged a fraudulent prong violation) is correct, the Court only discusses that argument.
The California Supreme Court has held that a business practice is "fraudulent" in violation of the UCL if "members of the public are likely [to be] deceived by the practice." Committee on Children's Television v. Gen. Foods. Corp., 35 Cal.3d 197, 214, 197 Cal.Rptr. 783, 673 P.2d 660 (1983); see also Nat'l Rural Telecomm. Co-op. v. DIRECTV, 319 F.Supp.2d 1059, 1077 (C.D.Cal.2003). Under this standard, Cisco's UCL counterclaim is fatally defective for two straightforward reasons. First, Cisco does not allege that members of the public have been deceived by Capella's alleged fraudulent misrepresentations about the strength of its patent rights. Indeed, Cisco does not even allege that members of the public are aware of Capella's alleged misrepresentations. See, e.g., Nat'l Rural Telecomm. Co-op., 319 F.Supp.2d at 1078 ("Here, Plaintiffs have not made a showing that the public was impacted at all by DIRECTV's alleged
Moreover, under prevailing case law, Cisco is not itself a member of the "public," and thus it is ineligible to bring a claim under the fraudulent prong for any alleged misrepresentations Capella made to it. See Rosenbluth International, Inc. v. Superior Court, 101 Cal.App.4th 1073, 1077-79, 124 Cal.Rptr.2d 844 (2002) (holding that "sophisticated corporations" are not members of the "general public" for the purposes of the UCL); see also Nat'l Rural Telecomm. Co-op., 319 F.Supp.2d at 1078 n. 28 ("Sophisticated companies, like Plaintiffs here, are not members of the `general public.'"). As one judge succinctly explained, a corporate-competitor "is not entitled to the protection of [the fraudulent] prong of § 17200 because it is not a member of the public or a consumer entitled to such protection. The Court has identified no case under the `fraudulent' prong of § 17200 allowing one competitor to proceed against another on the basis that the defendant deceived him." Watson Laboratories, Inc. v. Rhone-Poulenc Rorer, Inc., 178 F.Supp.2d 1099, 1121 (C.D.Cal.2001). Courts in this district have held similarly. See, e.g., Travelers Prop. Casualty Co. of America v. Centex Homes, No. 12-0371-SC, 2013 WL 4528956, at *5 (N.D.Cal. Aug. 26, 2013) (holding that corporation could not bring a UCL fraud prong claim absent a showing "that the alleged wrongdoing has some impact on the general public"); Medical Instrument Development Laboratories v. Alcon Laboratories, No. C-05-1138 MJJ, 2005 WL 1926673, at *5 (N.D.Cal. Aug. 10, 2005) (same).
At oral argument, Cisco's attorney argued that a rule prohibiting "sophisticated" companies from pursuing fraudulent prong claims under the UCL, while allowing arguably "unsophisticated" companies to bring such claims is inadvisable as a policy matter, and requires the Court to draw an arbitrary line between sophisticated companies and unsophisticated companies. While the Court does not dismiss these arguments out-of-hand, it notes that the rule is one that the California Court of Appeal and other California courts have seen fit to adopt. Cisco's challenge to this line drawing misses the notion established by case law that the protections of the UCL's fraudulent prong are directed to the protection of the "general public"; if a sophisticated business customer is deemed part of the "general public," it is hard to imagine what meaningful limitation would be imposed by that term. Moreover, while in some cases, determining whether a company was so "sophisticated" as to bar a fraudulent prong claim may be subtle, this is not such a case; by any measure or definition, Cisco is a "sophisticated corporation." Thus, Cisco may not bring a UCL action under the fraudulent prong based on Capella's allegedly fraudulent conduct in bringing this lawsuit over purportedly invalid patents.
Because Cisco is not a member of the public itself, and because it does not allege Capella's misrepresentations about the patents-in-suit misled any members of the public, its UCL counterclaim is dismissed with prejudice.
Capella's motions to strike Cisco's and Fujitsu's "first instance of inequitable conduct" are
To the extent Defendants wish to continue to rely on the Neukermans or Lucent
Capella's motion to dismiss Cisco's UCL counterclaim is
This order disposes of Docket Nos. 115 and 116.
IT IS SO ORDERED.