Case 2:17-cv-04273-JVS-JCG Document 33-2 Filed 10/23/17 Page 1 of 4 Page ID #:591
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`Case 2:17-cv-04273-JVS-JCG Document 33-2 Filed 10/23/17 Page 2 of 4 Page ID #:592
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`From: Ben bdavidson@davidson-lawfirm.com
`Subject: DSS v. Everlight
`Date: August 31, 2017 at 10:34 AM
`To: Brian Ledahl bledahl@raklaw.com, Neil Rubin nrubin@raklaw.com, Jacob Buczko jbuczko@raklaw.com
`Cc: Michael Bednarek Michael.Bednarek@arlaw.com
`
`Dear Brian, Neil, and Jacob:
`
` We are writing to meet and confer under Local Rule 7-3 regarding a motion to
`dismiss for failure to state a claim that Defendants Everlight Electronic Co. Ltd. and
`Everlight Americas Inc. (“Defendants”) intend to file pursuant to Rule 12(b)(6).
`
`As you know, while a complaint does not need detailed factual allegations to survive
`a 12(b)(6) motion, a plaintiff must provide grounds demonstrating its entitlement to relief.
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
`570 (2007). To do so, “the plaintiff must allege sufficient factual allegations to raise a right
`to relief above the speculative level.” Id. Under Twombly and Iqbal, this threshold requires
`that the complaint contains “sufficient factual matter . . . to ‘state a claim to relief that is
`plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A
`complaint will fail to state a claim if factual allegations “do not permit the court to infer
`more than the mere possibility of misconduct . . . .” Id. at 679.
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`The Complaint in this case alleges infringement of patents without alleging facts that
`would allow the Court to infer more than the mere possibility of infringement. As to the
`‘771 Patent, for example, paragraphs 14 and 15 of the Complaint merely allege that a wide
`array of products and, apparently, all of their “predecessor and successor models” somehow
`infringe claims 1-8 “because they contain each element of those claims.” This conclusory
`allegation obviously fails to include “sufficient factual matter” to show that DSS is entitled
`to relief on its infringement claim as to any particular product.
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` The Complaint uses the same or very similar language to allege that the ‘087 Patent,
`355 Patent, ‘486 Patent are infringed. In each case, the allegations in support of these
`claims are conclusory and fail to include factual matter to show why any claim has allegedly
`been infringed. As a result, the Complaint fails to state a claim for infringement of these
`patents by Defendants. There are no facts alleged at all but only the conclusion that various
`series of products and their predecessors and successors, whatever those are, somehow
`infringe and that Defendants somehow indirectly are liable for direct infringement by
`others. As a result, the Complaint fails to state a claim for infringement, either literally or
`through the doctrine of equivalents. There is no plausible factual basis for the Court to
`determine that any product directly infringes, let alone that either Defendant has induced
`through any factual allegations another party’s infringement of a specific product. See, e.g.,
`Jenkins v. LogicMark, LLC, No. 3:16-CV-751-HEH, 2017 WL 376154, at *1, 3 (E.D. Va.
`Jan. 25, 2017) (complaint “fail[ed] to specify which features of [the accused products]
`correspond to the limitations of any claims in the identified patents,” and “d[id] not identify
`with any particularity how each allegedly infringing features of the accused products
`infringe any of the named patents”); N. Star Innovations, Inc. v. Etron Tech. Am. Inc., No.
`CV 8:16-00599, 2016 WL 9046909, at *4 (C.D. Cal. Sept. 21, 2016) (dismissing complaint
`that contained only “conclusory statement[s] that the referenced product … infringes
`because the referenced product allegedly includes the identified claim language” and did not
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`Case 2:17-cv-04273-JVS-JCG Document 33-2 Filed 10/23/17 Page 3 of 4 Page ID #:593
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`because the referenced product allegedly includes the identified claim language” and did not
`“draw any parallels between the accused products and the claim elements and further
`fail[ed] to cite any supporting product documentation in its allegations”); Asghari-Kamrani
`v. United Servs. Auto. Ass’n, No. 2:15-CV-478, 2016 WL 1253533, at *3-4 (E.D. Va. Mar.
`22, 2016) (dismissing complaint because plaintiff failed to map the patented functionality to
`the accused product).
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`In addition, with respect to the inducement claims, DSS alleges that “at least as of
`the service of this Complaint . . . Defendants know and intend that customers that purchase
`the . . . Accused Instrumentalities will use those products for their intended purpose.” These
`allegations are insufficient to plausibly support a claim that either of the Defendants
`intended to induce infringement. The Federal Circuit has held that the “specific intent
`necessary to induce infringement requires more than just intent to cause the acts that
`produce direct infringement … the inducer must have an affirmative intent to cause direct
`infringement.” Kyocera Wireless Corp. v. Int’l Trade Comm’n, 545 F.3d 1340, 1354 (Fed.
`Cir. 2008) (internal quotation marks omitted). As explained above, the Complaint failed to
`provide notice that any product was infringing. In addition, the only facts DSS cites to
`support for the specific intent to induce infringement are the commonplace distribution of
`technical guides, product data sheets and the like. See, e.g., Complaint, ¶ 23. That is
`insufficient to plausibly allege that Defendants have intended to induce others to infringe
`any specific patents using any specific products merely because of the service of a
`conclusory Complaint. See e.g., Unisone Strategic IP, Inc. v. Life Techs. Corp., No. 3:13-cv-
`1278-GPC-JMA, 2013 WL 5729487, at *3 (S.D. Cal. Oct. 22, 2013) (“[Plaintiff’s
`allegations] fail because they merely indicate that Defendant provides instruction, technical
`support, and training for using its own software … [and are] not sufficient to plausibly infer
`that Defendant had the specific intent to induce others to infringe.”); Ameranth, Inc. v.
`Hilton Resorts Corp., No. 11-CV-1810 JLS (NLS), 2013 WL 12071642, at *8-9 (S.D. Cal.
`July 18, 2013) (allegations that the defendant “provides instructions and direction … and
`advertises, promotes, and encourages the use of [the accused product]” were insufficient).
`At a minimum, even assuming that the Court accepts the view that service of a Complaint is
`sufficient to allege inducement, we would ask that DSS clarify that it is only seeking
`damages for the period after service of the Complaint.
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` We also intend to ask the Court to dismiss any allegation of willfulness that DSS
`would pursue but that it has not alleged based. DSS purports to reserve the right to pursue
`willfulness allegations without amending the complaint to allege willfulness. We do not
`believe there is any support for that approach. The reservation of rights does not give our
`clients notice of any willfulness allegation that DSS is contemplating pursuing at some point
`in the future.
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`We are aware that DSS recently has agreed to file amended complaints to avoid
`motion practice in connection with cases it has filed against other defendants. We also would
`like to avoid burdening the Court with unnecessary motion practice and would like to reach
`agreement with you on a stipulation to file an amended complaint.
`
`Please let me know what time(s) you are available to discuss our anticipated motion
`either later today, Friday between 8:30 a.m. and 11:30 a.m. or after 3:30 p.m. or any time
`Tuesday of next week.
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`Case 2:17-cv-04273-JVS-JCG Document 33-2 Filed 10/23/17 Page 4 of 4 Page ID #:594
`Tuesday of next week.
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`Thank you.
`
`--Ben
`
`
`Ben M. Davidson
`Davidson Law Group
`11377 West Olympic Blvd.
`Los Angeles, California 90064
`310-473-2300
`Email: bdavidson@davidson-lawfirm.com
`www.davidson-lawfirm.com
`
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