Front Row Technologies, LLC v. NBA Media Ventures, LLC (163 F. Supp. 3d 938, 2016)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Defendants [Turner Sports Interactive, Inc. and Turner Digital Basketball Services, Inc.]’ Motion for Leave to File Defendants’ First Amended Answer, Defenses, and Counterclaims to Plaintiffs First Amended Complaint for Patent Infringement, filed October 30, 2013 (Doc. 39 in Front Row Techs., LLC v. Time Warner Inc., No. CIV 13-0636 JB/SCY (D.N.M.)(“Front Row v. Time Warner”))(“Motion for Leave”); (ii) Plaintiff Front Row Technologies, LLC’s Motion to Dismiss MLB Advanced Media, L.P.’s Inequitable Conduct Counterclaim, filed November 26, 2013 (Doc. 187); (iii) Plaintiff Front Row Technologies, LLC’s Motion to Dismiss NBA Media Ventures, LLC’s Inequitable Conduct Counterclaim, filed November 26, 2013 (Doc. 188); (iv) Plaintiff Front Row Technologies, LLC’s Motion to Dismiss GBTV, LLC’s & Mercury Radio Arts, Inc.’s Inequitable Conduct Counterclaim, filed November 26, 2013 (Doc. 189); (v) Plaintiff Front Row Technologies, LLC’s Motion to Dismiss Premiere Radio Networks, Inc.’s Inequitable Conduct Counterclaim, filed November 26, 2013 (Doc. 190); (vi) Plaintiffs 12(b)(6) Motion to Dismiss Defendants’ Inequitable Conduct Counterclaims, filed February 14, 2014 (Doc. 21 in Front Row Techs., LLC v. NBA Media Ventures, No. CIV 13-1153 JB/SCY (D.N.M.)(“Front Row v. NBA Media”))(“Turner Motion to Dismiss”); and (vii) Plaintiff Front Row Technologies, LLC’s Motion to Transfer, filed July 13, 2015 (Doc. 221)(“Motion to Transfer”). The Court held a hearing on October 27, 2015 on the Motions to Dismiss (ii)-(v) and the Motion to Transfer. The Court did not hold a hearing on the Motion for Leave and the Turner Motion to Dismiss, but the parties have indicated that the Court heard the substance of these- motions at the October 27, 2015 hearing. The primary issues are: (i) whether the allegations that attorneys Luis Ortiz and Kermit Lopez improperly filed patent applications on inventions properly attributed to Ericsson, Inc. and Telefonaktiebolaget LM Ericsson (collectively “Ericsson”) in MLB Advanced Media, L.P.’s Answers and Counterclaims to Plaintiff Front Row Technologies, LLC’s Fourth Amended Complaint, filed October 22, 2013 (Doc. 173)(“Counterclaim”), sufficiently allege inequitable conduct; (11) whether the Counterclaim’s allegations that Messrs. Ortiz and Lopez affirmatively misled the United States Patent and Trademark Office (“USPTO”) by submitting avowedly “independent” declarations from one of their law firm’s associates, Dr. Richard Krukar, and their business partner, Tony Verna, sufficiently allege inequitable conduct; (iii) whether the Counterclaim’s allegations that Messrs. Ortiz and Lopez concealed adverse Appeals Board decisions from patent examiners sufficiently allege inequitable conduct; (iv) whether the Counterclaim’s allegations that Messrs. Ortiz and Lopez withheld material information from examiners handling related, co-pending patent applications sufficiently allege inequitable conduct; (v) whether the Court should transfer this case to the United States District Court for the Eastern District of Texas, because the case could have been brought there and practical factors allegedly favor a transfer; and (vi) whether the Court should permit Turner Sports Interactive, Inc. (“Turner Sports”) and Turner Digital Basketball Services, Inc. (“Turner Basketball”) to amend their pleadings to assert similar counterclaims against Front Row. The Court concludes that the Counterclaim’s allegations related to: (i) Ericsson, Inc. and Telefonaktiebolaget LM Ericsson (collectively “Ericsson”); (ii) Tony Verna’s declaration to the USPTO; and (iii) Front Row’s failure to disclose material information to examiners handling related, co-pending patent applications do not satisfy rule 9(b) s particularity requirement. The Court will allow the Counterclaim’s allegations related to: (i) Dr. Krukar’s declaration to the USPTO; and (ii) Front Row’s concealment of adverse Appeals Board decisions to proceed. The Court will thus grant Front Row’s Motions to Dismiss in part and deny them in part. In light of the Court’s decision, the parties’ briefing on the Motion to Transfer is largely moot. The Court will deny the Motion to Transfer without prejudice to Front Row refiling the motion if it continues to desire transfer down the road. Finally, the Court will grant in part and deny in part the Motion for Leave to allow Turner Sports and Turner Basketball to assert the remaining inequitable conduct counterclaims against Front Row.

FACTUAL BACKGROUND

The Court takes its facts from the Counterclaim. It also draws on the Plaintiffs Fourth Amended Complaint for Patent Infringement and Jury Demand, filed April 23, 2013 (Doc. 149)(“Complaint”) and Plaintiff Front Row Technologies, LLC’s Original Complaint for Patent Infringement, filed July 10, 2013 (Doc. 1 in Front Row v. Time Warner)(“Turner Complaint”), for important details where necessary.

1. The Parties.

Plaintiff and Counterdefendant Front Row Technologies, LLC (“Front Row”) is a New Mexico limited liability company that holds patents related to streaming video on mobile devices. See Complaint ¶¶ 1-20, at 1-5. Attorneys Ortiz and Kermit Lopez founded Front Row in 2000 and are still its owners. See Counterclaim ¶¶ 18-19, at 37. They have filed “over twenty [patent] applications that relate to the same general subject matter.” Counterclaim ¶ 19, at 37. Front Row states that it owns “all rights, title, and interest in and under” ten such patents:

1. United States Patent No. 8,090,321 (“321 patent”), titled “Transmitting Sports and Entertainment Data to Wireless Hand Held Devices over a Telecommunications Network,” which duly and legally issued on January 3, 2012;

2. United States Patent No. 8,086,184 (“184 patent”), titled “Transmitting Sports and Entertainment Data to Wireless Hand Held Devices over a Telecommunications Network,” which-duly and legally issued on December 27, 2011;

3. United States Patent No. 8,270,895 (“895 patent”), titled “Transmitting Sports and Entertainment Data to Wireless Hand Held Devices over a Telecommunications Network,” which duly and legally issued on September 18, 2012;

4. United States Patent No. 7,812,856 (“856 patent”), titled “Providing Multiple Perspectives of a Venue Activity to Electronic Wireless Hand Held Devices,” which duly and legally issued on October 12, 2010;

5. United States Patent No. 7,796,162 (“162 patent”), titled “Providing Multiple Synchronized Camera Views for Broadcast from a Live Venue Activity to Remote Viewers,” which duly and legally issued on September 14, 2010;

6. United States Patent No. 7,884,855 (“855 patent”), titled “Displaying Broadcasts of Multiple Camera Perspective Recordings from Live Activities at Entertainment Venues on Remote Video Monitors,” which duly and legally issued on February 8, 2011;

7. United States Patent No. 7,782,363 (“363 patent”), titled “Providing Multiple Video Perspectives of Activities through a Data Network to a Remote Multimedia Server for Selective Display by Remote Viewing Audiences,” which duly and legally issued on August 24, 2010;

8. United States Patent No. 8,184,169 (“169 patent”), titled “Providing Multiple Video Perspectives of Activities through a Data Network to a Remote Multimedia Server for Selective Display by Remote Viewing Audiences,” which duly and legally issued on May 22, 2012;

9. United States Patent No. 8,401,460 (“460 patent”), titled “Transmitting Sports and Entertainment Data to Wireless Hand Held Devices over a Telecommunications Network,” which duly and legally issued on March 19, 2013; and

10. United States Patent No. 7,376,388 (“388 patent”), titled “Broadcasting Venue Data to a Wireless Hand Held Device,” which duly and legally issued on May 20, 2008.

Complaint ¶¶ 11-20, at 3-5. Front Row alleges that all of these patents are valid and enforceable. See Complaint ¶¶ 21-31, at 5-6.

Defendant and Counterclaimant MLB Advanced Media, L.P. (“MLB Media”) is in the business of broadcasting sporting events through electronic and wireless means, and selling software to support that broadcasting. See Complaint ¶ 2, at 1-2. Its primary product relevant to this litigation is “At Bat 13,” Major League Baseball’s official smartphone application. Complaint ¶ 33, at 6.

Defendants and Counterclaimants Mercury Radio Arts, Inc. and GBTV, LLC create and distribute multimedia content over the internet. See Complaint ¶¶ 3-4, at 2. They are both associated with talk show host and radio personality Glenn Beck. See Complaint ¶¶ 4-5, at 2.

Defendant and Counterclaimant Premiere Radio Networks, Inc. is a “national radio network that produces radio programming and services for radio stations, and distributes its own and various third-party radio programs to radio station affiliates throughout the world.” Complaint ¶ 5, at 2.

Defendant and Counterclaimant NBA Media Ventures, LLC (“NBA Media”), like MLB Advanced Media, L.P., is in the business of broadcasting sporting events through electronic and wireless means, and of selling software to support that broadcasting. See Complaint ¶¶ 6, 37, at 2, 8. Its primary products relevant to this litigation are “NBA League Pass Mobile” and “NBA League Pass Broadband,” which provide video of National Basketball Association games to consumers over the internet. Complaint ¶¶ 37, at 8.

Turner Sports and Turner Basketball are in the business of broadcasting sporting events through electronic and wireless means. See Turner Complaint ¶ 3, at 2.

The Counterclaimants allege that Messrs. Ortiz and Lopez “engaged in a comprehensive and deliberate scheme to deceive the USPTO and “mislead the patent examiners responsible for reviewing Front Row’s numerous patent applications” to obtain the patents relevant to this lawsuit. Counterclaim ¶ 21, at 37. Specifically, they state that Messrs. Ortiz and Lopez are liable for inequitable conduct, because they stole ideas from Ericsson, a former employer/client, and made numerous misrepresentations to the USPTO. See Counterclaim ¶¶ 23, 106, at 38, 60.

2. Stolen Ideas.

Between August 1998 and August 2000, Mr. Lopez was an in-house patent and intellectual property counsel at Ericsson’s North American headquarters in Dallas, Texas. See Counterclaim ¶¶ 23-25, at 38. Mr. Lopez was responsible for advising Ericsson on patent issues and prosecuting new patents for the firm. See Counterclaim ¶27, at 38 (citing Method and Sys. for Dynamically and Periodically Updating Mobile Station Location Data in a Tele-commc’ns Network, U.S. Patent No. 6,119,012 (issued September 12, 2000)). Mr. Lopez had access to Ericsson’s internal information through: (i) its files; (ii) news and status updates; and (iii) Contact, Ericsson’s proprietary magazine, which was “distributed to all Ericsson employees worldwide[.]” Counterclaim ¶ 28, at 38-39. “In August 2000, approximately two months prior to filing the provisional] patent application that led to all Patents-in-Suit, Lopez left Ericsson as in-house patent and intellectual property counsel and joined the law firm of Bickel & Brewer.” Counterclaim ¶ 29, at 39. Mr. Lopez “continued to represent Ericsson in intellectual property matters as an associate at Bickel & Brewer until he left the law firm in March 2001.” Counterclaim ¶ 29, at 39.

Mr. Ortiz represented Ericsson as outside counsel in intellectual property matters between at least May, 1999, and March, 2001. See Counterclaim ¶¶ 32-33, at 39 (citing Mr. Ortiz’ involvement in U.S. Patent No. 6,505,051). Although Mr. Ortiz was not Ericsson’s employee, he had access to similar information. See Counterclaim ¶¶ 33-85, at 39-40.

Messrs. Ortiz and Lopez worked together between August, 2000, and March, 2001, as attorneys at Bickel & Brewer (now Brewer, Attorneys & Counselors), Ericsson’s outside counsel. See Counterclaim ¶ 35, at 40. “During this time, Ortiz and Lopez filed a provisional patent application and a non-provisional patent application naming themselves as inventors. On information and belief, neither Ortiz nor Lopez ever disclosed these applications to Ericsson.” Counterclaim ¶ 35, at 40.

a. Ericsson’s “Arena Project”.

Beginning in 1998, Ericsson began a project known as “The Arena Project,” which involved a system designed to provide multimedia services over a wireless network. Counterclaim ¶¶ 38-39, at 41. The system used a central server located at a venue to receive, process, and transmit data, including real-time video, over a wireless network. See Counterclaim ¶ 41, at 41. It allowed spectators, both inside and outside the arena, to view a sports event from multiple angles, use instant reply, and receive statistics about the ongoing event. See Counterclaim ¶¶ 41-21, at 41.

Ericsson published issue 8 of its internal magazine, Contact Magazine, on May 18, 2000. See Counterclaim ¶ 43, at 41. Mr. Lopez “received a copy of this issue on or around” the same day. Counterclaim ¶ 44, at 42. The issue included a prominent article describing the Arena Project and its demonstration at a hockey game in Sweden. See Counterclaim ¶¶ 45^47, at 4243. The article explained that the system allowed journalists to “view the game via a wireless connection to the Internet,” adding that it was “the first live transmission over the internet of a professional hockey match.” Counterclaim ¶ 49, at 43. It also noted that the system relied on “IP[] multicast, a technology that makes it possible to save bandwidth!] when many people are connected” to a live transmission feed. Counterclaim ¶ 52, at 45. The system’s creators next planned to place sensors and small cameras on the players themselves. See Counterclaim ¶ 54, at 46.

The same magazine issue featured a second article on the Arena Project. See Counterclaim ¶ 56, at 46 (citing an article titled “Sports arena a new test lab for Ericsson Research”). The second article explained that Ericsson was “working on radio access networks, algorithms!] for radio networks, speech coding!] and radio network performance. IP can be involved in all these areas.” Counterclaim ¶ 56, at 46-47. The Counterclaimants say that these articles “described many key aspects of the patent applications that attorneys Ortiz and Lopez later filed,” including:

• wireless, real-time transmission of video of a sporting event at a venue

• simultaneously transmitting multiple perspectives of a venue-based activity to a display

• receiving venue-based data, including video, on a Smart phone

• transmitting statistics and instant replay as venue-based data

• transmitting “in-play” camera angles from players’ helmets as venue-based data

Counterclaim ¶ 58, at 47. They conclude that Messrs. Ortiz and Lopez were aware of the Arena Project and its intellectual property implications. See Counterclaim ¶¶ 59-60, at 47-48.

b. Ericsson’s “America’s Cup Project”.

In late 1999, Ericsson began a collaboration with a New Zealand company to cover the America’s Cup, a famous yacht race, with wireless internet technology. See Counterclaim ¶¶ 61-62 at 48. The project, known as the America’s Cup Project, would transmit real-time GPS information and statistics to spectators, in particular those using Ericsson’s “smart phones with WAP (Wireless Application Protocol)[] capability.” Counterclaim ¶ 61, at 48.

Ericsson published issue 14 of its Contact Magazine on September 16, 1999. See Counterclaim ¶ 64, at 49. The issue included a special “Contact IT/IP” supplement, which featured the America’s Cup Project on its front page. Counterclaim ¶ 67, at 49. The article described how the America’s Cup Project provided viewers with a choice of camera angles, speed and direction indicators for boats and the wind. See Counterclaim ¶¶ 68-70, at 49-50.

Ericsson also described the America’s Cup Project in issue 3 of its Contact Magazine, which it published in March 2000. See Counterclaim ¶ 66, at 49. This article also detailed how spectators could use Ericsson’s system to view various camera angles and receive information on racing conditions. See Counterclaim ¶ 75, at 52.

The Counterelaimants say that these articles “described many key aspects of the patent applications that attorneys Ortiz and Lopez later filed,” including:

• wireless transmission of statistics and GPS data regarding a live sporting event

• wireless transmission of statistics and GPS data over a cellular network

• simultaneous display of images from multiple camera angles generated from data received over a wireless network

• a system adaptable to other sports, including auto-racing

• a system adaptable to support more resource-intensive features as technology progressed

Counterclaim ¶ 58, at 47. They conclude that Messrs. Ortiz and Lopez were aware of the America’s Cup Project and its intellectual property implications. See Counterclaim ¶¶ 78-79, at 53.

c. Front Row’s Patent Applications.

As discussed above, Messrs. Ortiz and Lopez both worked at Bickel & Brewer, Ericsson’s outside counsel, in August 2000. See Counterclaim ¶ 80, at 53. They state that they conceived of their invention on August 25, 2000 — only days after Mr. Lopez departed from his in-house counsel position at Ericsson. See Counterclaim ¶ 81, at 53. They filed their first patent applications while they were still working for Ericsson, but failed to disclose their work for Ericsson to the USPTO. See Counterclaim ¶ 85, at 54.

Before December 13, 2001, Ericsson was planning a public announcement of its “Event System,” the commercialized version of its earlier Arena Project. Counterclaim ¶ 87, at 54. The Event System involves the use of in-play cameras, such as those placed on athletes’ or referees’ helmets. See Counterclaim, ¶ 87, at 54-55. Messrs. Ortiz and Lopez were aware of the Event System before December 13, 2001, through their connections to Ericsson. See Counterclaim ¶¶ 93-94, at 56. On December 13, 2001 — one day before Ericsson publicly announced this event system — Messrs. Ortiz and Lopez filed a patent application asserting, for the first time, “the use of ‘in-play’ cameras as part of a wireless video system.” Counterclaim ¶ 88, at 55. Ericsson’s announcement led to several news articles that mentioned features similar to the features listed in Messrs. Ortiz and Lopez’ patent application, such as helmet-mounted cameras. See Counterclaim ¶¶ 89-92, at 55-56.

Messrs. Ortiz and Lopez did not disclose Ericsson’s Arena, Event, or America’s Cup Projects to the USPTO. See Counterclaim ¶ 95, at 57. They instead “took essential parts of the projects and filed patent applications on them as if they had invented it instead of the scientists and engineers of their client.” Counterclaim ¶ 95, at 57. “Ortiz and Lopez deliberately chose a conception date after Lopez left Ericsson in order to avoid Lopez’s contractual obligation to assign, or at least disclose, his applications to Ericsson.” Counterclaim ¶ 96, at 57. Messrs. Ortiz and Lopez have filed over twenty patent applications, “nearly all of which claim priority back to the provisional application filed October 26, 2000,” and all of which “generally related to wireless transmission of venue-based data during live events.” Counterclaim ¶ 100, at 58. Neither attorney disclosed any information related to Ericsson’s projects in their patent applications. See Counterclaim ¶ 100, at 58.

Federal regulations require that every applicant submit an oath or declaration along with the patent application. In particular, 37 C.F.R. § 1.63 requires that the person(s) signing the oath or declaration declare that he or she “believes the named inventor or inventors to be the original and first inventor or inventors of the subject matter which is claimed and for which a patent is sought.”

Counterclaim ¶ 101, at 58. Messrs. Ortiz and Lopez allegedly submitted at least eighteen false declarations in connection with their patent applications; although they knew that they had stolen the ideas, they nonetheless certified that they were the inventions’ true and individual inventors. See Counterclaim ¶¶ 102-104, at 58-60. Their misconduct “was but-for material to each and every one of the patents-in-suit, as the PTO would certainly not have issued patents ... had they not falsely sword that they were the original inventors.” Counterclaim ¶ 103, at 59. The Counterclaimants thus argue that none of the patents are enforceable. See Counterclaim ¶ 105, at 60.

2. Material Misrepresentations to the USPTO.

The USPTO requires any individual “associated with the filing and prosecution of a patent application” to “disclose to the [USPTO] all information known to that individual to be material to patentability.Counterclaim ¶ 107, at 60 (citing 37 C.F.R. § 1.56). These individuals have a “duty of candor and good faith in dealing with the [USPTO].” Counterclaim ¶ 107, at 60 (citing 37 C.F.R. § 1.56).

Messrs. Ortiz and Lopez affirmatively misled the USPTO by submitting declarations that they falsely represented were “independent” analyses in favor of their patents. Counterclaim ¶ 110, at 61. These declarations came from the pair’s business partners and employees. See Counterclaim ¶ 106, at 60. First, Messrs. Ortiz and Lopez submitted a declaration from Dr. Krukar (the “Dr. Krukar Declaration”), a computer engineer, which they describe as “independent analysis.” Counterclaim ¶ 111, at 61. The Dr. Krukar Declaration did not disclose that he was an associate at Messrs. Ortiz and Lopez’ law firm. See Counterclaim ¶ 111, at 61.

Second, Messrs. Ortiz and Lopez submitted a declaration from Tony Verna (the “Verna Declaration”), the inventor of instant replay, to overcome the USPTO’s objections to Verna’s patent. See Counterclaim ¶ 167, at 74. The Verna Declaration stated that Verna was “retained by Front Row Technologies” for purposes of reexamination. Counterclaim ¶ 112, at 61-62. Messrs. Ortiz and Lopez repeatedly, however, suggested that Verna was an independent expert, despite that he “was their business partner and a co-inventor with them on other patent applications.” Counterclaim ¶ 112, at 61-62. They even filed their first provisional patent application with Verna the day after Verna signed his supposedly independent Declaration. See Counterclaim ¶ 181, at 77.

For each of these incidents, the Coun-terclaimants attempt to demonstrate that the misrepresentation was material to pat-entability. For the Dr. Krukar Declaration, they contend that the misstatements were “affirmative egregious misconduct that is inherently material.” Counterclaim ¶ 143, at 68. Furthermore, they allege that the original misconduct made further patents unenforceable, both directly and “under the doctrine of infectious unen-forceability.” Counterclaim ¶ 147, at 69. The Counterclaimants make similar contentions regarding the Verna Declaration. See Counterclaim ¶¶ 193-195, at 80.

3. Concealed Adverse Decisions.

The Board of Patent Appeals and Interferences (“Appeals Board”) is the appellate body for the USPTO. See Counterclaim ¶ 201, at 82. It reviews patent examiners’ final application rejections, reviews appeals of reexaminations, and gives guidance to patent prosecution attorneys and patent adjudicators. See Counterclaim ¶ 201, at 82. Its decisions govern further examinations in the USPTO. See Counterclaim ¶ 201, at 82.

Patent attorneys “have a duty to bring to the attention of the examiner ... information within their knowledge as to other co-pending United States applications which are ‘material to patentability’ of the application in question.” Counterclaim ¶ 203, at 82 (quoting The Manual of Patent Examining Procedure (MPEP) § 2001.06(b)). Patent attorneys’ duty of candor and good faith requires that inventors disclose adverse USPTO Appeals Board decisions, which are material to their arguments in related applications. See Counterclaim ¶ 203, at 82.

The USPTO’s Appeals Board issued a decision that rejected “several of Ortiz and Lopez’s arguments about the teachings of, and motivations to combine, the prior art.” Counterclaim ¶ 202, at 82 (referring to the decision as the “Board’s Decision”). The Board’s Decision denied several of Messrs. Ortiz and Lopez’ claims on the grounds that they would be obvious to a person of skill in the art. See Counterclaim ¶ 216, at 85. It rejected their argument that their proposed use of a server distinguished their invention from prior art, noting that the prior art’s analog interface was “equivalent to the server of the claimed invention since it performs the same functions of processing the video data and distributing it back to the user.” Counterclaim ¶ 217, at 85.

Messrs. Ortiz and Lopez failed to disclose the Board’s Decision as they prosecuted related patents, “and even asserted arguments that they knew were directly contrary to the Board’s Decision.” Counterclaim ¶204, at 83. For example, they continued to argue that their use of a server instead of an analog system distinguished their system from prior art. See Counterclaim ¶ 224, at 87.

The Counterclaimants assert that the Board’s Decision “was material to the prosecution of these related patents, and Messrs. Ortiz and Lopez’s deceitful misconduct violated their duties of candor and good faith.” Counterclaim ¶ 204, at 83. They explain that certain patents are unenforceable because, but for Messrs. Ortiz and Lopez’ deceit, the examiners would never have allowed their claims. See Counterclaim ¶ 205, at 83.

4. Withheld Material Information from Related Co-Pending Applications.

The MPEP “specifically states that applicants ‘have a duty to bring to the attention of the examiner ... information within their knowledge as to other copending United States applications which are ‘material to patentability’ of the application in question.’” MPEP § 2001.06(b). The MPEP also “declares that the individuals covered by 37 C.F.R. § 1.56 cannot assume that the examiner of a particular application is necessarily aware of other applications which are ‘material to patenta-bility’ of the application in question, but must instead bring such other applications to the attention of the examiner.” Counterclaim ¶ 282, at 100 (citing MPEP § 2001.06(b)). These duties to disclose material information also include an obligation to disclose “prior art references and office aetions[] of record in the co-pending applications if those references and office actions are ‘material to patentability’ of the application.” Counterclaim ¶ 283, at 100 (citing MPEP § 2001.06(b)). Finally, patent attorneys have separate duties of candor and good faith, which require them to “disclose co-pending applications they have filed regarding similar subject matter.” Counterclaim ¶ 282, at 100. These various duties are meant, in part, to prevent prosecuting attorneys from engaging in “examiner shopping.” Counterclaim ¶ at 100.

Messrs. Ortiz and Lopez allegedly violated these duties of disclosure by concealing material information, selectively disclosing information, and misrepresenting their disclosure with intent to deceive the USPTO. See Counterclaim ¶ 285, at 101. Front Row filed three “nearly identical” patent applications covering “a hand held device for display of venue-based data, including video data, transmitted from at least one venue-based source.” Counterclaim ¶ 296, at 103. All three applications sometimes used the same language, including a representation that “[t]he key aspect of [our] invention is simultaneous viewing of more than one video image captured by cameras at an entertainment venue on a single display associated with hand held devices.” Counterclaim ¶ 299, at 104. Messrs. Ortiz and Lopez filed all three submissions within one week. See Counterclaim ¶ 299, at 104.

Despite these similarities, Messrs. Ortiz and Lopez withheld the following information from patent Examiner Tilahun Gesesse: (i) co-pending applications with substantially similar claims; (ii) office actions in the co-pending applications; and (in) prior art references cited in the office actions in the co-pending applications. See Counterclaim ¶ 286, at 101. For example, Messrs. Ortiz and Lopez submitted Information Disclosure Statements (“IDS”) to Gesessee that did not disclose the other two similar applications pending before other examiners. See Counterclaim ¶ 301, at 104. They also concealed other examiners’ decisions to reject “nearly identical” claims. Counterclaim ¶¶ 306-07, at 105.

The Counterclaimants argue that this inequitable conduct made numerous patents unenforceable, either directly or under the doctrine of “infectious unenforce-ability.” Counterclaim ¶¶ 289-90, at 101— 02. Directly, the additional information would have led Gesesse to issue a double-patenting rejection. See Counterclaim ¶ 353, at 115. Indirectly, the same information would have made other related patents unenforceable. See Counterclaim ¶ 376, at 122.

5. “Pattern of Misconduct”.

The MPEP requires that, “[w]here the subject matter for which a patent is being sought is or has been involved in litigation, the existence of such litigation and any other material information arising therefrom must be brought to the attention of the U.S. Patent and Trademark Office.” Counterclaim ¶ 379, at 123 (citing MPEP § 2001.06(c)). On September 29, 2008, Messrs. Ortiz and Lopez, as Front Row’s principals, filed suit against several defendants on patent infringement grounds. See Counterclaim ¶¶ 379-380, at 123. Neither attorney disclosed this litigation’s existence to “any of the examiners of the related, pending applications.” Counterclaim ¶ 381, at 123. The Counterclaimants then sum up their account of Messrs. Ortiz and Lopez’ misconduct:

• Claiming the work of Ericsson and its engineers as their own invention

• Using their position of trust as legal counsel for Ericsson for their own personal gain

• Submitting declarations from interested parties without disclosing their interest

• Selectively disclosing information about a declarant to bolster his credibility as an expert while concealing information that would show his bias or interest

• Repeatedly and affirmatively misrepresenting that a declarant is independent when, in fact, the declarant has a clear business relationship with Ortiz and Lopez

• Concealing unfavorable authority of the Appeals Board from examiners of related patents

• Affirmatively presenting claims or arguments of patentability that they knew had been previously rejected by the Appeals Board

• Engaging in “examiner shopping” by filing multiple applications drawn to the same subject matter without disclosing the existence of those co-pending applications

• Withholding prior art references and office actions of record in co-pending applications from examiners of related applications drawn to the same subject matter

• Intentionally waiting for years to disclose prior art, which they had long known was material, until after they had secured patents from a particular examiner

• Affirmatively misrepresenting the completeness and timeliness of then-belated disclosure of material information

• Selectively disclosing one co-pending application while withholding other, more material co-pending applications in order to create the misleading impression that they had fully disclosed all related applications

Counterclaim ¶ 383, at 123-124.

PROCEDURAL BACKGROUND

The current case consists of four consolidated cases. Front Row filed its first lawsuit in the District of New Mexico on May 5, 2010. See Plaintiffs Original Complaint for Patent Infringement and Jury Demand, filed May 5, 2010 (Doc. l)(filed in Front Row v. MLB). Front Row filed its second lawsuit on May 25, 2012 in the United States District Court for the Northern District of Texas. See Complaint, filed May 25, 2012 (Doc. l)(filed in Front Row Techs., LLC v. MLB Advanced Media, L.P., No. 3:12-cv-01639-K (N.D.Tex.)(“Texas Action”)). On December 17, 2012, the Honorable Ed Kinkeade, United States District Judge for the Northern District of Texas, transferred the Texas Action to the District of New Mexico. See Order, filed December 17, 2012 (Doc. 44 in the Texas Action). The Texas Action then received a new case number, No. CIV 12-1309 JB/SCY (D.N.M.). On February 12, 2013, the Honorable District Judge William P. Johnson consolidated the Texas Action with Front Row v. MLB. See Order Consolidating Civil Cases, filed February 12, 2013 (Doc. 65 in the Texas Action).

Front Row filed its third lawsuit on July 10, 2013. See Plaintiff Front Row Technologies, LLC’s Original Complaint for Patent Infringement, filed July 10, 2013 (Doc. 1 in Front Row v. Time Warner). The Court granted the parties’ joint consolidation motion on December 3, 2013. See Proposed Order, filed December 3, 2013 (Doc. 43 in Front Row v. Time Warner).

Front Row filed its fourth lawsuit on December 5, 2013. See Plaintiff Front Row Technologies, LLC’s Original Complaint for Patent Infringement, filed December 5, 2013 (Doc. 1 in Front Row v. NBA Media). The Honorable District Judge Judith C. Herrera consolidated the case with Front Row v. MLB on April 22, 2014. See Order of Consolidation, filed April 22, 2014 (Doc. 65 in Front Row v. NBA Media).

1. The Complaint.

Front Row filed its Fourth Amended Complaint on April 23, 2013. See Complaint at 1. The Complaint alleges that the Defendants infringed its patents by: (i) selling applications that capture live video of entertainment events and transmit it over a cellular communications network to hand-held mobile devices; and (ii) knowingly inducing their customers to infringe on the patent by providing applications that those customers would use to access live video of entertainment events. See Complaint ¶¶ 33-37, at 6-8. They target in particular Major League Baseball’s MLB.TV, At Bat 13, PostseasomTV, MiLB.TV, and MiLB applications; the National Basketball Association’s NBA League Pass Mobile and NBA League Pass Broadband applications; and Mercury Radio Arts, Inc., GBTV, LLC, and Premiere Radio Networks, Inc.’s TheBlaze TV and TheBlaze TV Plus applications. See Complaint ¶¶ 33, 35, 37, at 6-8.

Front Row seeks extensive relief against all Defendants, including: (i) a declaration that Front Row “exclusively owns” all of the patents; (ii) a declaration that all of the patents are valid and enforceable; (iii) a declaration that all of the Defendants are liable for past and present infringement, “both literally and under the doctrine of equivalents,” on certain patents; (iv) all damages to which Front Row is entitled; and (vi) permanent injunctions against the Defendants for infringing certain patents. Complaint ¶¶ (a)-(f), at 32-33.

2. The Answers and Counterclaims.

The Counterclaimants responded to the Complaint with four similar pleadings on October 22, 2013. See MLB Advanced Media, L.P.’s Answers and Counterclaims to Plaintiff Front Row Technologies, LLC’s Fourth Amended Complaint, filed October 22, 2013 (Doc. 173)(“Counter-claim”); NBA Media Ventures, LLC’s Answer, Defenses, and Counterclaims to Plaintiffs Fourth Amended Complaint for Patent Infringement, filed October 22, 2013 (Doc. 75); Defendants Mercury Radio Arts, Inc.’s and GBTV, LLC’s Answer and Counterclaims to Fourth Amended Complaint, filed October 22, 2013 (Doc. 76); Defendant Premiere Radio Networks, Inc.’s Answer to Fourth Amended Complaint and Counterclaim, filed October 22, 2013 (Doc. 177).

The 400-paragraph Counterclaim first alleges that all of Front Row’s patents “are invalid and unenforceable for failure to comply with Title 35 of the U.S.Code.” Counterclaim ¶ 14, at 36. It then alleges that, in any case, the Counterclaimants did not infringe, directly or indirectly, any of the relevant patents’ claims. See Counterclaim ¶ 16, at 36. Third, relying on the allegations described above, the Counter-claimants allege that all of Front Row’s patents are unenforceable, because Messrs. Ortiz and Lopez engaged in inequitable conduct. See Counterclaim ¶¶ 17-402, at 87-126.

The Counterclaimants seek relief against Front Row, including: (i) a declaration that they have not infringed any of Front Row’s patents; (ii) a declaration that Front Row’s patents are invalid and unenforceable; (iii) a declaration that Front Row is not entitled to damages or any injunctive relief against them; (iv) a preliminary and permanent injunction against Front Row preventing it from asserting patent infringement with respect to any of the relevant patents; (v) attorney’s fees and costs under 35 U.S.C. § 285; and (vi) “such further and additional relief as the Court deems just and proper.” Counterclaim ¶¶ (a)-(f), at 126-127.

3. The Motion for Leave.

On October 30, 2013, Turner Sports and Turner Basketball filed the Motion for Leave to assert the same counterclaim allegations against Front Row. See Motion for Leave at 1-6. The Motion for Leave first emphasizes the liberal nature of leave to amend under rule 15(a) of the Federal Rules of Civil Procedure. See Motion to Amend at 2. It contends that the proposed amendment does not involve delay, bad faith, or any dilatory motive, see Motion for Leave at 3; that Front Row will not be prejudiced, because it “filed an amended complaint less than two months ago” and faces overlapping counterclaims from other defendants, Motion for Leave at 34; and that granting leave to amend will not be futile, see Motion for Leave at 4-6.

Front Row responded on November 26, 2013. See Plaintiff Front Row Technologies, LLC’s Opposition to Defendants’ Motion for Leave to Amend, filed November 26, 2013 (Doc. 42 in Front Row v. Time Warner)(“Leave Response”). Front Row argues that Turner Sports and Turner Basketball filed the Motion for Leave in bad faith, see Leave Response at 5-6; and that leave to amend would be futile because the proposed allegations fail to satisfy rule 9(b)’s particularity requirement, see Leave Response at 6-10. Front Row also attached a series of affidavits denying the counterclaim allegations. See Leave Response at 14-61.

Turner Sports and Turner Basketball replied on December 20, 2013. See Defendants’ Reply in Support of their Motion for Leave to File Defendants’ First Amended Answer, Defenses, and Counterclaims to Plaintiffs First Amended Complaint for Patent Infringement, filed December 20, 2013 (Doc. 46 in Front Row v. Time Warner)(“Leave Reply”). The Leave Reply contends that the accusations of bad faith are “baseless,” noting that Front Row cannot “prevent the assertion of a claim simply by producing a declaration from an interested party.” Leave Reply at 2. It argues that Front Row attacks only the weight of the evidence and not the sufficiency of its proposed pleadings. See Leave Reply at 8.

4. The Motions to Dismiss.

Front Row moved to dismiss the Coun-terclaimants’ inequitable conduct counterclaims on November 26, 2013. See Motions to Dismiss at 1. It advances two principal arguments: (i) that the Counterclaim fails to satisfy rule 9(b)’s particularity requirement; and (ii) that the Counter-claimants acted in bad faith, and solely to slander and intimidate Messrs. Ortiz and Lopez. See Motions to Dismiss at 1.

Front Row places most of its reliance on the Counterclaim’s inconsistency with rule 9(b). It contends that “[Unequitable conduct is a species of fraud that must be pled with particularity under Federal Rule of Civil Procedure 9(b).” Motions to Dismiss at 6 (citing Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1326 (Fed.Cir.2009)(“FlxerpeTC”)(“Inequitable conduct, while a broader concept than fraud, must be pled with particularity under Rule 9(b).”)(internal quotation omitted)). It argues that rule 9(b) permits pleading “on information and belief’ only when “essential information lies uniquely within another party’s control, but only if the pleading sets forth the facts on which the belief is reasonably based.” Motions to Dismiss at 6 (emphasis in Mo-tionsXquoting Exergen, 575 F.3d at 1330). It then notes that: (i) the Counterclaim-ants base most of their allegations on information that they could have obtained from third parties, such as Bickel & Brewer, LLP and Ericsson; and (ii) no “specific facts upon which the belief is reasonably based” support the allegations. Motions to Dismiss at 6 (quoting Exergen, 575 F.3d at 1330). They add that the Counterclaim-ants have not “issued a single subpoena, ha[ve] not deposed a single witness, and ha[ve] not produced a single document evidencing that its allegations against Kermit [Lopez] and Luis [Ortiz] can be corroborated, much less proven.” Motions to Dismiss at 6-7.

Front Row begins its argument on this point by questioning whether Mr. Lopez had access to Ericsson’s proprietary information. See Motions to Dismiss at 7. It notes that Ericsson employed 105,100 people worldwide during the events in question. See Motions to Dismiss at 7. It states that Mr. Lopez was a “low-level intellectual property attorney employed in Richardson, Texas” assigned “to prosecute patents based on the inventions created by fellow employees” in the Texas office. Motions to Dismiss at 7. It notes that Mr. Lopez had no access to any other research and development information, and that the Projects mentioned in the Counterclaim took place in Luleá, Sweden. See Motions to Dismiss at 7. It thus concludes that the Counterclaimants’ assertions of Mr. Lopez’ knowledge are “not reasonably based on any specific facts that have been alleged, and ... in fact demonstrably false.” Motions to Dismiss at 7.

Front Row then turns to the Counter-claimants’ Contact Magazine theory. It notes that “[i]t is not reasonable to infer that Ericsson AB printed and distributed copies of Contact to each and every one of its 105,100 worldwide employees or that it was required reading.” Motions to Dismiss at 9. Mr. Lopez, it explains, has no memory of ever having read or seen the magazine before reading the Counterclaim. See Motions to Dismiss at 9. It concludes that the Counterclaimants cannot reasonably infer that Mr. Lopez either read Contact or was aware of Ericsson’s various Projects from the specific facts presented. See Motions to Dismiss at 9.

Front Row is even more dismissive of Mr. Ortiz’ possible knowledge of Ericsson’s Projects. See Motions to Dismiss at 10. It points out that there is no explanation why or how Mr. Ortiz would have received Contact Magazine. See Motions to Dismiss at 10. It contrasts the Coun-terclaimants’ statement that Mr. Ortiz had access to “[o]ther sources of information available to Ericsson’s outside counsel or the public in general,” with Mr. Ortiz’ denial that he “had ‘no knowledge of the Arena project, the Virtual Spectator project, the America’s Cup Project or the Event System project.” Motions to Dismiss at 10.

Front Row concludes by emphasizing that the Counterclaimants’ allegations are “highly inflammatory and potentially career-threatening,” and that their willingness to “slander the reputations of two upstanding New Mexico attorneys is reprehensible” and contrary to their professional obligations as lawyers. Motions to Dismiss at 11. It notes that it provided their attorneys with “with sworn testimony and other documentary evidence demonstrating the falsity of [their] allegations,” without any effect on the case. Motions to Dismiss at 2. Front Row concludes that the Court should dismiss “paragraphs 17-105” of the Counterclaim. Motions to Dismiss at 11.

5. Counterclaimants’Responses.

Three sets of Counterclaimants filed their responses on December 20, 2013. See Defendant Major League Baseball Advanced Media’s Opposition to Plaintiff Front Row’s Motion to Dismiss, filed December 20, 2013 (Doc. 194)(“MLB Response”); GBTV, LLC, Mercury Radio Arts, Inc. and Premiere Radio Networks Inc.’s Opposition to Plaintiffs Motion to Dismiss, filed December 20, 2013 (Doc. 195)(“Beck Response”); NBA Media Ventures, LLC’s Opposition to Plaintiff Front Row Technologies, LLC’s Motion to Dismiss Inequitable Conduct Counterclaim, filed December 20, 2013 (Doc. 196)(“NBA Response”). The remaining Counterclaim-ants filed their response on March 3, 2014. See Defendants’ Opposition to Plaintiffs 12(b)(6) Motion to Dismiss Inequitable Counterclaims, filed March 3, 2014 (Doc. 38 in Front Row v. NBA Media)(“Turner Response”). The Counterclaimants’ response briefs are not quite identical, so the Court will discuss them separately. They raise similar, but slightly distinct, arguments to rebut Front Row’s arguments,

a. MLB Media’s Response.

MLB Media begins by highlighting the limited nature of the Motions to Dismiss, noting that Front Row’s Motions to Dismiss focused narrowly on the relationship among Messrs. Ortiz and Lopez, and Ericsson. See MLB Response at 1. First, it notes that “Front Row makes no attempt to deny or dismiss the other serious allegations of misconduct described in paragraphs 106 to 384.” MLB Response at 1. Second, it contends that Front Row “only challenges the factual veracity of MLBAM’s allegations rather than their legal sufficiency.” MLB Response at 1. It says that it pled “facts that are more than sufficient to create a reasonable inference that Ortiz and Lopez knew of Ericsson’s projects, took ideas from them, and failed to disclose them to the PTO.” MLB Response at 1.

MLB Media then moves to shore up its Counterclaim’s sufficiency. See MLB Response at 10-17. It explains that Exergen requires the party alleging inequitable conduct to “identify the specific who, what, when, where, and how of the material misrepresentation or omission committed before the PTO.” MLB Response at 10 (quoting Exergen, 575 F.3d at 1326). It provides a chart listing each element, relying on Contact Magazine for the “where.” MLB Response at 11. It adds that the proper legal standard requires the Court to focus solely on its allegations and exhibits, ignoring any of Front Row’s extrinsic evidence. See MLB Response at 11.

MLB Media then focuses on subsections of Front Row’s Motions to Dismiss. See MLB Response at 15. First, it argues that it has sufficiently pled Messrs. Ortiz and Lopez’ knowledge of the Arena Project and of the America’s Cup Project. See MLB Response at 15. It contends that the Court may infer Messrs. Ortiz and Lopez’ access to internal information, because: (i) “they filed patents in this area on Ericsson’s behalf,” MLB Response at 16; (ii) “Ericsson freely distributed information about its Arena Project and America’s Cup Project,” MLB Response at 16; and (iii) Mr. Lopez received copies of Contact Magazine, because he worked as an IP counsel for Ericsson, see MLB Response at 16. It cites cases involving “publications that were widely known in the art,” Johnson Outdoors Inc. v. Navico Inc., 774 F.Supp.2d 1191, 1200 (M.D.Ala.2011)(Watkins, J.); documents referenced at a meeting that at least one inventor attended, see HTC Corp. v. IPCom GmbH & Co., KG, 671 F.Supp.2d 146, 151 (D.D.C.2009)(Collyer, J.); and a reference presented or discussed at a conference “where reference was presented or discussed, see Aerocrine AB v. Apieron Inc., 2010 WL 1225090, at *10 (D. Del. March 30, 2010)(Stark, J.). It also contends that the Court cannot require it to show that Contact Magazine was “required reading” for all Ericsson employees, “particularly at the pleading stage.” MLB Response at 14. In any case, it says, the magazine was available online, regardless whether Ericsson distributed it to all employees in print. See MLB Response at 14. It dismisses Front Row’s declarations that Messrs. Ortiz and Lopez were not aware of Ericsson’s Projects on the grounds that they are “irrelevant and improper on a motion to dismiss.” MLB Response at 15 (citing Auxilium Pharms., Inc. v. Watson Labs., Inc., No. 12-3084, 2013 WL 5503209, at *5, 7 (D.N.J. Oct. 2, 2013)(Hammer, J.)). It contends that Front Row’s arguments are analogous to those of a defendant who simply declares, at the pleading stage, that it lacked the requisite state of mind. See MLB Response at 15.

Second, MLB Media makes the same argument for Messrs. Ortiz and Lopez’ intent. It points to several allegations of knowledge and materiality in the Counterclaim, including, among others: (i) the suspicious timing of Messrs. Ortiz and Lopez’ supposedly new idea; (ii) the suspicious timing of their patent application— one day before Ericsson’s public announcement for the Event System; (iii) Messrs. Ortiz and Lopez’ failure to disclose any Ericsson Projects as prior art; and (iv) Messrs. Ortiz and Lopez’ financial interests in deception. See MLB Response at 16. It states that these “multiple instances of misconduct” are sufficient to support a reasonable inference that Messrs. Ortiz and Lopez acted with deceptive intent. MLB Response at 16.

Third, MLB Media defends its use of “on information and belief’ allegations in the Counterclaim. It argues that “[wjhether the individuals prosecuting the [patent-in-suit] had knowledge or intent to deceive the PTO falls within the category of information that lies uniquely within another party’s control,” thus allowing the use of these allegations. MLB Response at 17 (citing Johnson Outdoors Inc. v. Navico Inc., 774 F.Supp.2d at 1200). It notes that it relies both on these allegations and on specific facts. See MLB Response at 17.

MLB Media reiterates that Front Row’s extrinsic evidence is irrelevant. See MLB Response at 18. It contends that the Court cannot consider this evidence because: (i) Front Row did not incorporate it into the Complaint by reference; and (ii) it is not subject to judicial notice. See MLB Response at 18. To review this evidence, MLB Media argues, the Court would have to convert Front Row’s rule 12(b)(6) motion to dismiss into a rule 56 motion for summary judgment. See MLB Response at 18. Summary judgment, it says, would be premature, given that it has had neither a scheduling conference nor an opportunity to conduct full discovery. See MLB Response at 18.

As a fallback, MLB Media contends that Front Row’s extrinsic evidence supports its allegations. It notes that Front Row’s documents confirm its allegations about Mr. Lopez’ employment, that Mr. Lopez had access to confidential information, and that Messrs. Ortiz and Lopez both knew that there was clear overlap between their inventions and Ericsson’s Event System as early as April 2002. See MLB Response at 19. MLB Media dismisses declarations from Messrs. Ortiz and Lopez as “uncorroborated” and “self-serving.” MLB Response at 20. MLB Media asserts that the Court cannot properly grant summary judgment to Front Row without assessing the pair’s credibility. See MLB Response at 20.

b. GBTV, LLC, Mercury Radio Arts, Inc., and Premiere Radio Networks, Inc.’s Response.

Counterclaimants GBTV, LLC, Mercury Radio Arts, Inc., and Premiere Radio Networks, Inc. (collectively “Beck Counter-claimants”) jointly submitted a single response. See Beck Response at 1. Like MLB Media, the Beck Counterclaimants begin by noting that Front Row attacks only “a narrow segment of the many factual allegations that give Defendants’ counterclaim ample fodder.” Beck Response at 1. The Beck Counterclaimants argue that Front Row’s motion to dismiss is “really a motion to strike in disguise, even though it falls short of the heightened requirement to strike a portion of a pleading.” Beck Response at 1.

The Beck Counterclaimants first contend that Front Row’s motion is a motion to strike, which carries a much higher burden. See Beck Response at 6. They explain that Front Row’s “crocodile tears” cannot overcome their specific allegations, which set out “one of at least four independent reasons why Front Row’s patents-in-suit are unenforceable.” Beck Response at 6-7.

The Beck Counterclaimants next argue that the Counterclaim complies with rule 9(b). See Beck Response at 13. They explain that inequitable conduct merely requires “a higher degree of notice” so that the defendant can respond specifically and at an early stage “to potentially damaging allegations of immoral and criminal conduct.” Beck Response at 13 (quoting Abels v. Farmers Commodities Corp., 259 F.3d 910, 920 (8th Cir.2001)). They say that they have provided that notice, because they identify “the specific who, what, when, where, and how of the material misrepresentation or omission committed before the PTO.” Beck Response at 8 (quoting Exergen, 575 F.3d at 1326). See Beck Response at 11-12 (listing different factors).

They also state that there are two necessary elements for a claim for inequitable conduct: intent and materiality. See Beck Response at 8. To plead intent, “the proponent of the inequitable conduct theory need only plead facts supporting a reasonable inference that a specific individual knew of the misrepresentation and had the specific intent to deceive the PTO.” Beck Response at 8 (quoting Sanders v. The Mosaic Co., 418 Fed.Appx. 914, 919 (Fed.Cir.2011)). The Beck Counterclaimants argue that, to plead materiality, “the proponent need only allege that the patentee’s ‘misrepresentation to the USPTO’ qualifies as a ‘but-for cause of the patent’s issuance.’ ” Beck Response at 8 (quoting Spectrum Pharm., Inc. v. Sandoz, Inc., 2:12-cv-00111-GMN-NJK, 2013 WL 5492667, at *2-3 (D.Nev. Sept. 30, 2013)(Navarro, J.)). They contend that materiality is presumed if “affirmative egregious misconduct” occurs. Beck Response at 8 (citing Spectrum Pharm., Inc. v. Sandoz, Inc., 2013 WL 5492667, at *2-3).

The Beck Counterclaimants assert that they can plead based on “information and belief’ even if evidence is available from third parties. See Beck Response at 9. They contend that a requirement to the contrary would “turn Rule 8(a), Twombly and the purpose of discovery, generally, on their heads, creating an insurmountable hurdle for claimants at the pleading stage.” Beck Response at 9.

Like MLB Media, the Beck Counter-claimants dismiss Front Row’s proffered affidavits as outside “the proper [sufficiency] inquiry under Exergen.” Beck Response at 9. According to the Beck Coun-terclaimants, the Court’s consideration of Front Row’s evidence “would prematurely foreclose Defendants’ opportunity to challenge the veracity of their statements, including on cross-examination at deposition, and conduct full discovery in support of their claims.” Beck Response at 10.

Finally, the Beck Counterclaimants argue that Front Row has failed to refute that Ericsson’s technology is but-for material to the patents-in-suit. See Beck Response at 14. They contend that Messrs. Ortiz and Lopez’ theft of ideas from Ericsson constitutes “affirmative egregious conduct” that is per se material. Beck Response at 14 (quoting Therasense, Inc. v. Becton, Dickinson and Co., 649 F.3d 1276, 1292 (Fed.Cir.2011)(en banc)(“Therasense”)).

c. NBA Media’s Response.

NBA Media makes three primary arguments in its response. See NBA Response at 1-14. First, NBA Media argues that the Court should ignore Front Row’s submissions until it has a chance to conduct discovery. See NBA Response at 1. It cites Tal v. Hogan, 453 F.3d 1244 (10th Cir.2006), for the proposition that “motions to dismiss are not designed to weigh evidence or consider the truth or falsity of an adequately pled complaint.” 453 F.3d at 1265-66. It notes that summary judgment is inappropriate, given the lack of depositions or document productions. See NBA Response at 9.

Second, NBA Media argues that its “information and belief’ pleadings are reasonably based on its specific pleaded facts. NBA Response at 1. NBA Media conceives of this inquiry differently from Front Row — it asks whether the relevant information is “in ‘another party’s control,’ i.e., not NBA[ ]’s control.” NBA Response at 12. NBA Media contends that the fact that information might be discoverable from Ericsson, for example, is irrelevant, because the information is not within NBA Media’s control. See NBA Response at 12. It argues in favor of a reasonable inference that “Mr. Lopez conveyed information about the Arena Project and America’s Cup Project to Mr. Ortiz while they were employed at Bickel & Brewer and working together to prepare and file Front Row’s first patent applications on the subject matter claimed in the patents-in-suit.” NBA Response at 14.

Third, NBA Media argues that Front Row’s Motions to Dismiss left its primary allegations intact. It argues that numerous points went uncontested:

(1) Mr. Kermit Lopez and Mr. Luis Ortiz, the principals of Front Row, both worked as patent counsel for Ericsson (as in-house and outside counsel, respectively), (2) at a time when Ericsson was developing technology remarkably similar to that eventually claimed by Messrs. Lopez and Ortiz in their subsequent patent applications (which ripened into the patents-in-suit), (3) Ericsson published documents reflecting its technological developments, which on their face reflect distribution to all Ericsson employees, and (4) Messrs. Lopez and Ortiz never disclosed this information to the U.S. Patent and Trademark Office (“PTO”).

NBA Response at 2.

d. Turner Sports and Turner Basketball’s Response.

Turner Sports and Turner Basketball advance two primary arguments in their Response. See Turner Response at 16-33. First, they state that they adequately pled the “what,” “where,” and “how” of the alleged inequitable conduct. Turner Response at 17. They note that Front Row overlooked the distinction between their two types of arguments: “Throughout its motion, Front Row addresses Defendants’ inequitable conduct claims as if they, like certain claims in Exergen, all involve allegations concerning withheld prior art. Defendants’ inequitable conduct claim, however, includes two types of allegations: (1) ‘misrepresentation’ claims that constitute affirmative egregious misconduct and (2) information ‘withholding’ claims.” Turner Response at 17 (citations omitted). They assert that specific paragraphs within the Counterclaim met each of the primary requirements within each of these two categories. See Turner Response at 13-18. Second, they argue that Front Row has failed to rebut their intent pleadings with respect to the Ericsson allegations. See Turner Response at 23-24.

6. Front Row’s Replies.

Front Row replied to three of the Coun-terclaimants’ responses on January 16, 2014. See Plaintiff Front Row Technologies, LLC’s Reply in Support of its Motion to Dismiss MLB Advanced Media, L.P.’s Inequitable Conduct Counterclaim, filed January 16, 2014 (Doc. 198); Plaintiff Front Row Technologies, LLC’s Reply in Support of its Motion to Dismiss NBA Media Ventures, LLC’s Inequitable Conduct Counterclaim, filed January 16, 2014 (Doc. 199); Plaintiff Front Row Technologies, LLC’s Reply in Support of its Motion to Dismiss GBTV LLC’s, Mercury Radio Arts, Inc.’s, and Premiere Radio Networks Inc.’s Inequitable Conduct Counterclaim, filed January 16, 2014 (Doc. 200).

Front Row makes two primary arguments in its Reply. First, it argues that the Counterclaimants have failed to meet Exergen’s “who, what, when, where, and how” requirements. See Reply at 1. Second, it contends that the Counterelaimants’ “other inequitable conduct counterclaims are so voluminous that they are virtually incomprehensible.” Reply at 1. Front Row thus argues that the Court should dismiss the Counterclaimants’ targeted inequitable conduct allegations and require them to condense their other allegations into an “Exergen Pleading Chart.” Reply at 1.

Front Row begins by laying out its conception of the Exergen pleading standards. See Reply at 1-3. It contends that there are two primary requirements: (i) the defendant must identify the “specific who, what, when, where, and how of the material misrepresentation or omission committed before the PTO”; and (ii) the defendant must identify “the relevant conditions of the mind, which are ‘(1) knowledge of the withheld material information or of the falsity of the material misrepresentation, and (2) specific intent to deceive the PTO.’ ” Reply at 1.

Front Row lays out an elaborate set of legal arguments on the first prong:

Who: the name of the specific individual associated wit