On February 28, the United States Court of Appeals for the Fifth Circuit held in Continental Automotive Systems, Inc. v. Avanci, L.L.C., that Continental--a maker of telematics control units (TCUs) used in automobiles--lacked article III standing to pursue its claims that Avanci, a patent pool, and its SEP owner codefendants (including Nokia, Optis, and Sharp entities) violated sections 1 and 2 of the Sherman Act by refusing to license FRAND-committed SEPs to Continental (as opposed to end-user automobile manufacturers).
Last week, the court withdrew the February opinion and stated that a revised opinion would be forthcoming. That opinion was handed down yesterday, and it's a bit, well, anticlimactic--and, as Florian Mueller notes, it is designated as nonprecedential. In a very brief per curiam opinion, the court now states that "Having reviewed the district court's detailed order, and considered the oral arguments and briefs filed by the parties and amicus curiae, we AFFIRM the judgment of the district court that Continental failed to state claims under Sections 1 and 2 of the Sherman Act. See Cont'l Auto. Sys., Inc. v. Avanci, LLC, 485 F. Supp. 3d 712 (N.D. Tex. 2020)." So the appellate court withdraws its previous conclusion on article III standing, which I thought was kind of weak, and does not address the district court's alternative holding on antitrust standing, but rather affirms on substantive grounds alone (albeit nonprecedentially). That's still potentially a big deal, though, since the district court specifically disavowed cases such as Broadcom v. Qualcomm, flatly stating that "The Court does not agree with those cases concluding that deception of an SSO constitutes the type of anticompetitive conduct required to support a § 2 claim."