U.S. Circuit Judge Stephanos Bibas, who's sitting in the district court by designation from the Third Circuit, issued an opinion and order on Friday granting a pair of summary judgment motions from Thomson Reuters.
The claims addressed Friday were all that remained of broader counterclaims from ROSS that were previously dismissed. The lingering claims accused Thomson Reuters of illegally tying Westlaw's caselaw database to its search tools, but the judge found ROSS has not shown the database and search tools are separate products. The judge also said ROSS did not properly explain the markets at issue.
"Without showing separate products, none of Ross's remaining antitrust counterclaims can proceed," Friday's opinion said. "Even if Ross's allegation of tying had not failed on separate products, it would still fail because Ross has not properly defined the market in which Thomson Reuters allegedly exercises excessive power."
A representative for Thomson Reuters said in a statement the company is pleased the court granted summary judgment on the antitrust counterclaims in its favor.
The counterclaims from ROSS come in a suit lodged by Thomson Reuters Enterprise Centre GmbH and West Publishing Corp. in 2020 accusing the tech startup of creating an AI legal research platform using copyrighted material from the media company's Westlaw database.
ROSS, which said it closed in January 2021 because of the litigation, created what it called a "natural language search engine" for finding and researching judicial opinions using AI and machine learning. Intellectual property attorneys are following the case closely and have been looking forward to a trial that could provide insight into how other courts might rule on dozens of pending AI lawsuits.
The copyright claims were set for trial in August, but Judge Bibas said on the eve of jury selection that he would continue the trial and directed the parties to renew their motions for summary judgment after largely denying each side's bids last year.
The court previously tossed several counterclaims from ROSS accusing Thomson Reuters of restraining trade and monopolizing markets for legal research tools. Friday's order said the only remaining counterclaims focus on the tying allegations.
ROSS had argued that Thomson Reuters used to sell its public-law database in hardcopy books without the legal search tools, which it said shows they are separate products. But the judge found the table of contents, indices and page numbers found in the physical books were a form of search tools included with the database.
The judge also said the evolution from books to digital search tools is like how the horse-drawn carriage market evolved into the car market.
"Just as we no longer use horse-drawn carriages for transportation (except for fun), few consumers want caselaw separated from the sophisticated search tools that make it digestible," the order said. "A market for public law in book form used to exist, but that does not mean that a market for separate caselaw still exists in a world with more sophisticated search tools. Ross has not done enough to show that this market is a helpful analogue."
The court also rejected ROSS' effort to show consumers have asked to buy the public-law database separately, saying the "smidge" of demand shown through emails from BakerHostetler and Skadden Arps Slate Meagher & Flom LLP was not enough.
"Ross could have done more to try to develop the record during discovery, perhaps subpoenaing Skadden representatives," the order said. "But it did not."
ROSS also contended that Westlaw's offering of different levels of search plans shows demand in the public for purchasing the database and search products separately. But the judge found this only shows that it bundles the database with different search tools.
"This shows demand for different levels of search-tool sophistication, not demand for a public-law database with no search tool at all or for a search tool on its own," the order said.
Representatives for ROSS did not respond to a request for comment Monday.
Thomson Reuters and West are represented by Michael J. Flynn and Jack B. Blumenfeld of Morris Nichols Arsht & Tunnell LLP, and by Dan Laytin, Christa Cottrell, Cameron Ginder, Max Samels, Dale Cendali, Josh Simmons and Miranda Means of Kirkland & Ellis LLP.
ROSS is represented by David E. Moore, Bindu A. Palapura and Andrew L. Brown of Potter Anderson & Corroon LLP, and Warrington S. Parker III, Joachim B. Steinberg, Jacob Canter and Crinesha B. Berry of Crowell & Moring LLP.
The case is Thomson Reuters Enterprise Centre GmbH et al. v. ROSS Intelligence Inc., case number 1:20-cv-00613, in U.S. District Court for the District of Delaware.
–Additional reporting by Matt Perez and Ivan Moreno. Editing by Michael Watanabe.
Update: This story has been updated with additional counsel information and a comment from Thomson Reuters.
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