Hytera Files Motion to Dismiss Copyright Infringement Claims in Motorola Lawsuit
Friday, September 14, 2018 | Comments

Hytera Communications filed a motion to dismiss a copyright infringement claim that Motorola Solutions recently added to its theft of trade secrets lawsuit in Illinois district court.

Judge Charles Norgle allowed Motorola to amend its original lawsuit in the U.S. District Court for the Northern District of Illinois in August. At the time, Motorola said it found information during the discovery period that showed Hytera had accessed and copied Motorola’s source code for its Digital Mobile Radio (DMR) products.

In its motion, Hytera argued that the new claim should be dismissed because Motorola did not specify what portions of its software Hytera allegedly copied.

“Despite having access to Hytera’s documents, products, source code and communications for over a year, Motorola’s copyright infringement allegations in its amended complaint are just a vague recitation of the elements of a copyright claim,” the filing said. “Motorola does not identify any portion of its software that Hytera allegedly copied.”

Hytera argued that Motorola said in previous court filings that it has concrete examples of portions of Hytera code that contains “verbatim copies of significant aspects of Motorola’s confidential and copyrighted source code.”

“If those representations were correct, Motorola should be able to identify those ‘substantial portions’ in Motorola’s and Hytera’s programs,” Hytera’s filing said.

Because Motorola has not offered specifics on its allegations, Hytera is unable to fully develop its defenses on the new claims in the lawsuit, the filing said.

“As filed, Motorola’s amended complaint handicaps Hytera’s ability to respond to the allegations, undermines Hytera’s ability to focus discovery on the aspects of the code that are at issue, and prevents Hytera from making legal arguments that the alleged similarities do not involve copyrightable aspects of the code or do not amount to copyright infringement as a matter of law,” Hytera’s filing said.

Specifically, Hytera said Motorola did not provide details on what in its source code is “protectable” under copyright law, which portions of the source code are registered with the U.S. Copyright Office, which specific portions of the code are at issue in the case and which Motorola MOTOTRBO products contain that code.

Hytera also noted that copyright registration certificates for MOTOTRBO products provided by Motorola suggest that some of Motorola’s code has been excluded from registration. Motorola’s amended complaint does not address the exclusion of any code from the copyright registration, Hytera argued.

“Hytera has no way of knowing whether the excluded code contains the allegedly copied code at issue in this action,” the filing said.

Hytera asked the judge to dismiss the copyright right claim with prejudice, meaning that it couldn’t be brought back before athecourt. Alternatively, if Norgle doesn’t dismiss the claim, Hytera asked him to order Motorola to provide more concrete details on that claim.

“Motorola Solutions’ newly added claim is an attempt to restart this case and get a second bite of the apple with respect to discovery,” Wineland said. “Motorola Solutions continues to use serial legal maneuvers to interfere with Hytera’s relationships with dealers and customers. Nonetheless, Hytera continues to compete in the U.S. marketplace with our industry-leading products and solutions, and our dealers and customers continue to benefit from Hytera’s focus on innovation.”

"During hearings related to Motorola Solutions' trade secret litigation against Hytera, evidence was uncovered showing that Hytera illegally obtained Motorola Solutions' copyrighted and confidential source code, and that code is now in use in Hytera's digital two-way radio products," a Motorola spokesperson said. "Hytera is a serial infringer and misappropriator of Motorola Solutions' intellectual property, and our copyright claim is part of our ongoing global efforts to protect our proprietary technologies from Hytera's copying and theft."

A Motorola response to Hytera’s motion to dismiss is due Oct. 4, and Hytera’s reply to that response is due Oct. 25.

Motorola sued Hytera in March 2017, alleging that three former Motorola employees accessed and copied thousands of confidential products before going to work for Hytera, where those secrets were used in Hytera products. Motorola also filed a patent infringement lawsuit. That particular case is stayed while the U.S. International Trade Commission (ITC) investigates a patent infringement claim that Motorola filed against Hytera.

An initial determination from an ITC administrative law judge found that Hytera infringed four Motorola patents. The ITC is reviewing that decision, and a final determination is expected by Nov. 16.

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