S&C now has even less reason to worry. Last week, Los Angeles federal district court judge Mariana Pfaelzer dismissed Nero’s suit, finding it short on facts. [Hat tip: IP Law360.] Nero, represented by Winston & Strawn, had claimed that MPEG, which licenses patents essential to DVD technology, had not lived up to conditions laid out by the Department of Justice. According to Nero, the DOJ hadn’t pursued enforcement against MPEG on the condition that the company carry out pro-competitive measures. Nero claimed that MPEG failed to live up to those promises. Among other things, Nero claimed that MPEG had loaded up on non-essential patents in order to prolong the life of the license, and to make it unfeasible for a licensee to acquire the patents individually.
Judge Pfaelzer called that allegation “speculative” and “implausible.” She found that Nero had not determined which patents it needs. “Nero’s conclusion that it lacks a realistic opportunity to obtain the individual licenses necessary to practice Nero’s technology is a hypothesis,” she wrote. “If this case were to proceed, Nero would have the burden of proving the non-availability of alternatives to MPEG LA’s patent pool.”
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