Case 2:22-cv-08050-CJC-JDE Document 29 Filed 05/15/23 Page 1 of 22 Page ID #:362
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`Gregory Dovel (SBN 135387)
`Email: greg@dovel.com
`Richard Lyon (SBN 229288)
`Email: rick@dovel.com
`DOVEL & LUNER, LLP
`201 Santa Monica Blvd., Suite 600
`Santa Monica, CA 90401
`Tel: 310-656-7066
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`Attorneys for Plaintiff
`Network-1 Technologies, Inc.
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`NETWORK-1 TECHNOLOGIES,
`INC.,
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`Plaintiff,
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`v.
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`HIKVISION USA, INC.,
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`Defendant.
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` Case No. 2:22-CV-08050 CJC(JDEx)
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`OPPOSITION TO PARTIAL MOTION TO
`DISMISS UNDER FED. R. CIV. P. 12(B)(6)
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`-i-
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`Opposition to Partial Motion to Dismiss
`2:22-CV-08050 CJC (JDEx)
`
`

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`Case 2:22-cv-08050-CJC-JDE Document 29 Filed 05/15/23 Page 2 of 22 Page ID #:363
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`I.
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`II.
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`III.
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`IV.
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`Table of Contents
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`HIKVISION’S MOTION SHOULD BE DENIED IF THE AMENDED
`COMPLAINT CONTAINS ALLEGATIONS WHICH, ACCEPTED AS TRUE,
`STATE CLAIMS FOR INDIRECT INFRINGEMENT THAT ARE PLAUSIBLE. ......... 1
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`THE AMENDED COMPLAINT CONTAINS FACTS WHICH, ACCEPTED AS
`TRUE, STATE PLAUSIBLE CLAIMS FOR INDIRECT INFRINGEMENT. ................. 2
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`A.
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`B.
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`C.
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`Network-1’s indirect infringement claims should not be dismissed if it is
`plausible that Hikvision knew of the ‘930 patent and patent infringement. ........... 2
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`The Amended Complaint alleges facts, which accepted as true, make it
`plausible that Hikvision knew of the ‘930 patent. ................................................... 2
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`The Amended Complaint alleges facts which, accepted as true, make it
`plausible that Hikvision knew of the ‘930 patent infringement. ........................... 13
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`THE AMENDED COMPLAINT ALSO ALLEGES FACTS THAT HIKVISION
`WAS WILLFULLY BLIND TO THE ‘930 PATENT AND ITS INFRINGEMENT
`UNDER THE GLOBAL-TECH STANDARD. ................................................................. 15
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`CONCLUSION. ................................................................................................................ 18
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`
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`-ii-
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`Opposition to Partial Motion to Dismiss
`2:22-CV-08050 CJC (JDEx)
`
`

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`Case 2:22-cv-08050-CJC-JDE Document 29 Filed 05/15/23 Page 3 of 22 Page ID #:364
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`
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`CASES
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`Table of Authorities
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`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ............................................................................................ 1, 2, 10, 14
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`Bell Atlantic Corp. v. Twombly,
`550 U.S. 544 (2007) .................................................................................................. 1, 2, 14
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`Cellular Communs. Equip. LLC v. HTC Corp.,
`No. 6:13-cv-507, 2015 U.S. Dist. LEXIS 179461 (E.D. Tex. Mar. 27, 2015) ................... 4
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`Commil USA, LLC v. Cisco Systems,
`Inc., 575 U.S. 632 (2015) .................................................................................................. 14
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`Core Optical Techs., LLC v. Juniper Networks Inc.,
`562 F. Supp. 3d 376 (N.D. Cal. 2021) ................................................................................ 4
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`Elm 3DS Innovations, Ltd. Liab. Co. v. Samsung Elecs. Co.,
`Civil Action No. 14-1430-LPS-CJB, 2016 U.S. Dist. LEXIS 42948 (D. Del.
`Mar. 31, 2016) ............................................................................................................... 3, 10
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`Erickson v. Pardus,
`551 U.S. 89 (2007) .............................................................................................................. 1
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`Global-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754 (2011) ............................................................................................ 1, 2, 16, 17
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`InvestPic, LLC v. FactSet Research Sys.,
`No. 10-1028-SLR, 2011 U.S. Dist. LEXIS 112891 (D. Del. Sep. 30, 2011) ...................... 3
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`MONEC Holding AG v. Motorola Mobility, Inc.,
`897 F. Supp. 2d 225 (D. Del. 2012) ........................................................................ 9, 10, 12
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`Robocast, Inc. v. Netflix, Inc.,
`No. CV 22-305-RGA, 2022 WL 16921956 (D. Del. Nov. 14, 2022) ............................... 10
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`SoftView LLC v. Apple Inc.,
`No. 10-389-LPS, 2012 U.S. Dist. LEXIS 104677, 2012 WL 3061027. (D.
`Del. July 26, 2012) .............................................................................................................. 9
`
`Soverain IP, LLC v. Microsoft Corp.,
`No. 2:17-CV-00204-RWS-RSP, 2018 U.S. Dist. LEXIS 49661 (E.D. Tex.
`Mar. 26, 2018) ................................................................................................................... 13
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`RULES
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`Fed. R. Civ. P. 8(a)(2) ..................................................................................................................... 1
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`-iii-
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`Opposition to Partial Motion to Dismiss
`2:22-CV-08050 CJC (JDEx)
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`

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`Case 2:22-cv-08050-CJC-JDE Document 29 Filed 05/15/23 Page 4 of 22 Page ID #:365
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`Hikvision asserts that Network-1’s indirect infringement claims should be dismissed
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`because the Amended Complaint does not allege facts that support a reasonable inference that
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`Hikvision knew of the ‘930 patent and knew of infringement before the patent expired. 1
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`Hikvision is wrong. The Amended Complaint alleges specific facts that make it plausible that
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`Hikvision was aware of the ‘930 patent and knew about its infringement. Moreover, the Amended
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`Complaint alleges facts that line up with the willful blindness standard set forth in Global-Tech
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`Appliances, Inc. v. SEB S.A., 563 U.S. 754, 765-66 (2011). Accordingly, Hikvision’s Motion
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`should be denied with respect to indirect infringement. To simplify the issues, Network-1 does
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`not oppose Hikvision’s Motion with respect to willful infringement.
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`I.
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`HIKVISION’S MOTION SHOULD BE DENIED IF THE AMENDED
`COMPLAINT CONTAINS ALLEGATIONS WHICH, ACCEPTED AS TRUE,
`STATE CLAIMS FOR INDIRECT INFRINGEMENT THAT ARE PLAUSIBLE.
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`Rule 8 requires a complaint to provide “a short and plain statement of the claim showing
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`that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not necessary; the
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`statement need only give the defendant fair notice of what the claim is and the grounds upon
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`which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 2200 (2007) (internal quotations omitted).
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`The short and plain statement “must contain sufficient factual matter, accepted as true, to state a
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`claim that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
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`Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotations omitted). To meet this
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`factual plausibility standard, the plaintiff must plead “factual content that allows the court to draw
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`the reasonable inference that the defendant is liable for the misconduct alleged,” based on “more
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`than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678
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`(quoting Twombly, 550 U.S. at 570). Rule 8(a) “[plausibility] does not impose a probability
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`requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation
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`that discovery will reveal evidence” to support the allegations. Twombly, 550 U.S. at 556. “[O]f
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`course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
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`1 Hikvision does not present any other challenge to Network-1’s indirect infringement
`allegations, which are properly plead in the Amended Complaint. See Dkt 25 ¶¶82-90; Exh. 4.
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`-1-
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`Opposition to Partial Motion to Dismiss
`2:22-CV-08050 CJC (JDEx)
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`

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`Case 2:22-cv-08050-CJC-JDE Document 29 Filed 05/15/23 Page 5 of 22 Page ID #:366
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`those facts is improbable, and that a recovery is very remote and unlikely.” Id. (internal
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`quotations omitted). Plaintiff’s claims may be dismissed only when plaintiff’s explanation
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`is implausible—the factual allegations need only “plausibly suggest an entitlement to
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`relief.” Iqbal, 556 U.S. at 680.
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`II.
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`THE AMENDED COMPLAINT CONTAINS FACTS WHICH, ACCEPTED AS
`TRUE, STATE PLAUSIBLE CLAIMS FOR INDIRECT INFRINGEMENT.
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`A.
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`Network-1’s indirect infringement claims should not be dismissed if it is
`plausible that Hikvision knew of the ‘930 patent and patent infringement.
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`Pleading indirect infringement requires plausible, factual allegations that the defendant
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`knew of the infringed patent and of the infringing acts, or was willfully blind to these facts.
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`Global-Tech, 563 U.S. at 765-66; 35 U.S.C. § 271(b), (c). If it is plausible—i.e., if there is a
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`“reasonable inference” based on the facts alleged, accepted as true—that these knowledge
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`requirements are satisfied, then Hikvision’s Motion should be denied. Ashcroft, 556 U.S. at 677-
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`79. Only if the knowledge requirements are implausible should the Motion be granted. Id.
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`B.
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`The Amended Complaint alleges facts, which accepted as true, make it
`plausible that Hikvision knew of the ‘930 patent.
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`The Amended Complaint alleges that “Defendant knew of … the ‘930 Patent.” Dkt. 25
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`¶84. It supports this conclusion with fifty-seven paragraphs of detailed, factual allegations. Dkt.
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`25 ¶¶24 –76; 84-89. These allegations make it plausible that Hikvision knew of the ‘930 patent.
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`First, if a patent is widely known and recognized for fifteen years as a “hugely important”
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`patent in a tight-knit industry, it is plausible that a business person, in house attorney, marketing
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`person, or engineer at a company in that tight-knit industry would know about the hugely
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`important patent. See InvestPic, LLC v. FactSet Research Sys., No. 10-1028-SLR, 2011 U.S. Dist.
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`LEXIS 112891, at *6-7 (D. Del. Sep. 30, 2011) (denying motion to dismiss under 12(b)(6)
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`because “if a patent is ‘publicly’ known, one can infer (i.e., it is more probably true than not) that
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`an individual defendant had knowledge of it.”). As alleged in the Amended Complaint, it is
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`plausible that Hikvision knew of the ‘930 patent because “[s]ince 2005, the ‘930 Patent (often
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`referred to in the Power over Ethernet industry as the ‘Remote Power Patent’), has been widely
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`-2-
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`Opposition to Partial Motion to Dismiss
`2:22-CV-08050 CJC (JDEx)
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`

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`Case 2:22-cv-08050-CJC-JDE Document 29 Filed 05/15/23 Page 6 of 22 Page ID #:367
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`known and recognized as a ‘hugely important’ patent in the tight-knit standard-based Power over
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`Ethernet industry.” Dkt 25 ¶¶35, 59. See Elm 3DS Innovations, Ltd. Liab. Co. v. Samsung Elecs.
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`Co., Civil Action No. 14-1430-LPS-CJB, 2016 U.S. Dist. LEXIS 42948, at *2-4 (D. Del. Mar. 31,
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`2016) (holding that knowledge allegations are plausible because “Defendants’ knowledge may be
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`inferred from their participation in the semiconductor market where, allegedly, the existence of the
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`patent-in-suit was common knowledge.”). 2
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`Second, it is even more plausible that Hikvision knew of the ‘930 patent because the ‘930
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`patent was “highly publicized in press releases and business, technical, industry, and legal articles
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`and publications.” Dkt. 25 ¶¶35, 40-55, 57. “Because Network-1 is a public company,”
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`information about the ‘930 patent was “widely disseminated through press releases to the public
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`and in business, technical, industry, and legal articles and publications in the Power over Ethernet
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`industry,” resulting in the ‘930 patent being the most well-known and highly-publicized patent in
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`the Power over Ethernet industry. Dkt. 25 ¶¶36, 40-55. And “[t]he ‘930 Patent was highlighted
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`and emphasized in these press releases and publications because Network-1 asserted only a single
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`patent (not a portfolio of patents) against the Power over Ethernet industry, and there have been
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`few other patents asserted against the Power over Ethernet standard.” Dkt. 25 ¶38.
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`Third, it is even more plausible that Hikvision knew of the ‘930 patent because it was
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`widely known that the “‘930 patent was [litigated] against 25 major companies in the Power over
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`Ethernet industry based on the Power over Ethernet standard,” including in two highly-publicized
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`trials against seven Power over Ethernet manufacturers based on their standard-based products.
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`Dkt. 25 ¶¶35, 40-55. Identifying as few as three prior lawsuits involving the same patent in a
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`broad industry in which an industry standard is not accused of infringing the patent can
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`demonstrate pre-suit knowledge. Core Optical Techs., LLC v. Juniper Networks Inc., 562 F.
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`2 Hikvision asserts that Network-1 “advances a novel and unsupported theory that imputes
`purported ‘Industry Knowledge’ to Hikvision.” Dkt. 27 at 9 (emphasis in original). Hikvision is
`wrong. Network-1 does not advance an imputed theory—i.e., because everyone but Hikvision in
`the Power over Ethernet industry knew of the ‘930 patent, the knowledge of others should be
`imputed to Hikvision. Rather, Network-1 alleges that it is plausible that Hikvision knew of the
`‘930 patent because the ‘930 patent was so widely known.
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`-3-
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`Opposition to Partial Motion to Dismiss
`2:22-CV-08050 CJC (JDEx)
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`

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`Case 2:22-cv-08050-CJC-JDE Document 29 Filed 05/15/23 Page 7 of 22 Page ID #:368
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`Supp. 3d 376, 381 (N.D. Cal. 2021) (“filing of complaints for infringement in prior cases against”
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`three companies is an allegation that allows pre-suit knowledge to “pass the plausibility line at this
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`stage”). If it is well known in a tight-knit industry that a patent was litigated against 25
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`competitors for infringing the industry standard, including in two highly publicized trials against
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`seven players in the industry, then these factual allegations go beyond the plausibility line. As
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`alleged, it was well known in the tight-knit Power over Ethernet industry that the ‘930 patent,
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`which was identified as essential to practicing the 802.3af standard, was asserted against the
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`802.3af Power over Ethernet standard, including in two highly publicized trials in which “the ‘930
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`Patent was asserted against seven major Power over Ethernet manufacturers based on their
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`standard-based products.” Dkt. 25 ¶¶29, 33-35, 38. See Cellular Communs. Equip. LLC v. HTC
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`Corp., No. 6:13-cv-507, 2015 U.S. Dist. LEXIS 179461, at *27 (E.D. Tex. Mar. 27, 2015) (it’s
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`“plausible that Defendants that … make or sell products that allegedly infringe standard-
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`implicated patents would be motivated to maintain some level of familiarity with patents
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`declared essential to the standard.”).
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`Fourth, it is even more plausible that Hikvision knew of the ‘930 patent because it was
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`widely known in the Power over Ethernet industry that the ‘930 patent was “extensively licensed”
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`to “twenty-eight companies that made … PoE products that comply with the IEEE 802.3af and
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`802.3at standards,” “generating over $180 million dollars in royalties covering products that
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`comply with the Power over Ethernet standard.” Dkt. 25 ¶¶15, 16, 35, 72.
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`If it is well known that a patent is licensed to 25 competitors in a tight-knit industry,
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`generating over $180 million in royalties from standard-compliant products, then it would be
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`likely that a business or legal person at the company would know about this patent that is being
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`asserted against the standard, especially if that standard is fundamental to many of the company’s
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`product lines. As alleged in the Amended Complaint, “[t]he ‘930 Patent has been extensively
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`licensed. Prior to the expiration of the ‘930 Patent, twenty-eight companies that made, used, and
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`sold PoE products that comply with the IEEE 802.3af and 802.3at standards have licensed the
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`‘930 Patent.” Dkt. 25 ¶15. And it was widely known that “licensees have paid Network-1 more
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`-4-
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`Opposition to Partial Motion to Dismiss
`2:22-CV-08050 CJC (JDEx)
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`

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`Case 2:22-cv-08050-CJC-JDE Document 29 Filed 05/15/23 Page 8 of 22 Page ID #:369
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`than $187,000,000” to license the ‘930 patent, generating over $187 million in licensing revenues
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`for the 802.3af standard. Dkt. 25 ¶16. For example, it was widely known that Cisco licensed the
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`‘930 patent for infringing the 802.3af industry standard (Dkt. 25 ¶¶15, 44, 72):
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`“Cisco went to trial for infringing the ‘930 Patent based on its standardized
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`Power over Ethernet products and licensed the ‘930 Patent for up to $112 million
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`to cover the same standard-based products that Defendant intended to incorporate
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`into its product.”
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`Dkt. 25 ¶72.
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`Fifth, it is even more plausible that Hikvision knew of the ‘930 patent because “the ‘930
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`Patent, and Network-1’s assertion of the ‘930 Patent against the Power over Ethernet standard
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`were described in the SEC filings of manufacturers of Power over Ethernet products.” Dkt. 25
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`¶58.
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`Sixth, it is even more plausible that Hikvision knew of the ‘930 patent because “[t]he chip
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`manufacturers provided the same Power over Ethernet chips to Defendant that they provided to
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`Network-1’s licensees who litigated the ‘930 Patent for years and paid over $100 million in
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`royalties to license the ‘930 Patent.” Dkt. 25 ¶74. Companies who manufacture the Power over
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`Ethernet chips used in Power over Ethernet products, including Hikvision’s, “were aware of the
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`‘930 Patent and the ‘930 Patent’s read on the Power over Ethernet Standard.” Dkt. 25 ¶¶60, 61.
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`“suppliers of Power over Ethernet chips who were involved and witnesses in the
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`lawsuits involving the ‘930 Patent discussed the ‘930 Patent and the lawsuits that
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`Network-1 brought against the Power over Ethernet standard with the Defendant
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`who purchased the exact same Power over Ethernet chips for its own Power over
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`Ethernet products.”
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`Dkt. 25 ¶74.
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`After participating in these trials in which their Power over Ethernet chips were
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`accused of being used to infringe by the defendants to infringe the ‘930 patent, these chip
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`-5-
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`Opposition to Partial Motion to Dismiss
`2:22-CV-08050 CJC (JDEx)
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`manufactures sold these same Power over Ethernet chips to Hikvision to use in Hikvision’s
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`products accused in this case. Dkt. 25 ¶¶73-74.
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`Each of these six categories of allegations summarized above are independent,
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`detailed sets of factual allegations demonstrating that it is plausible that Hikvision knew
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`about the ‘930 patent, even without a notice letter sent to Hikvision. Sonos, Inc. v. Google
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`LLC, 591 F. Supp. 3d 638, 644 (N.D. Cal. 2022) (“there can be circumstances where
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`willful infringement is properly alleged despite the absence of a notice letter”). Hikvision
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`points out that a notice letter does not establish the requisite knowledge if the letter “did
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`‘not identify any accused product or technology’ and did ‘not state a specific charge of
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`infringement.’” Dkt. 27 at 7 (quoting Core Optical Techs., LLC v. Nokia Corp., No. 19-
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`02190, 2020 WL 6126285, at *7 (C.D. Cal. Oct. 8, 2020). But the six categories of
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`allegations set forth above provide knowledge of the accused product at issue—those that
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`comply with the 802.3af standard—and provide knowledge of a charge of infringement.
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`Moreover, theses six categories of allegations are directed to a single patent, not a
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`“reference to a set of sixty-five patents” which would not provide notice of which patent
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`infringes. Dkt. 27 at 21 (quoting Parity Networks, LLC v. Moxa Inc., No. 20-698, 2020
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`WL 6064636, at*4 (C.D. Cal. Sept. 11, 2020)).
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`* * *
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`As alleged in the Amended Complaint, before Hikvision introduced 802.3af “standard-
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`compliant products in to the market,” Hikvision performed due diligence. Dkt. 25 ¶¶68-269.
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`“[B]efore investing in introducing new standard-based Power over Ethernet
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`products into the market, Defendant’s business, legal, marketing, and
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`engineering employees did a deep dive into the standardized Power over
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`Ethernet industry and investigated all aspects of the investment. As part of
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`their diligence, before introducing their standard-compliant products into the
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`market, Defendant analyzed:
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`-6-
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`2:22-CV-08050 CJC (JDEx)
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`technical issues associated with introducing new standard-compliant Power
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`over Ethernet products into the market;
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`•
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`the standardized Power over Ethernet products of others, including Cisco and
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`Axis who Defendant specifically identified as Defendant’s competitors in its
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`SEC filings;
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`•
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`the business landscape of the standard-compliant Power over Ethernet market,
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`such as the revenues, sales, pricing, and profitability of its competitors’ Power
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`over Ethernet standard-compliant products; and
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`•
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`the legal landscape of the standard-compliant Power over Ethernet market, such
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`as lawsuits asserted against its competitors based on their standard-compliant
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`Power over Ethernet products.”
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`Dkt. 25 ¶68.
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`Hikvision asserts that the allegations that Hikvision performed diligence before
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`introducing 802.3af compliant devices into the United States market are “hypothetical” and “pure
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`speculation.” Dkt. 27 at 6-8, 16. Not only must these facts be accepted as true for purposes of this
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`Motion, it is inconceivable that Hikvision did not perform such diligence. And it is inconceivable
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`that Hikvision did not consider technical, business, and legal issues associated with its
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`competitors’ standard-compliant products, especially when Hikvision’s products would be
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`copying the 802.3af standard technology and Hikvision’s products would need to be interoperable
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`with its competitors’ products. Dkt. 25 ¶¶66, 68. 3
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`Hikvision cites Midwest Energy Emissions Corp. v. Arthur J. Gallagher & Co., Civil
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`Action No. 19-1334-RGA-CJB, 2021 U.S. Dist. LEXIS 95947, at *27 (D. Del. May 20, 2021),
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`asserting that while it is plausible that the accused infringer may have conducted “some due
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`diligence,” “the leap from there that any such ‘due diligence’ necessarily included ‘discover[ing]
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`3 “Defendant’s standard compliant Power over Ethernet products need to be interoperable
`with the Power over Ethernet products of other manufacturers and would be connected to
`products of others in the Power over Ethernet industry to perform standard-compliant Power
`over Ethernet.” Dkt. 25 ¶66.
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`Opposition to Partial Motion to Dismiss
`2:22-CV-08050 CJC (JDEx)
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`Case 2:22-cv-08050-CJC-JDE Document 29 Filed 05/15/23 Page 11 of 22 Page ID #:372
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`the [original asserted patents]’ is one too far.” Dkt. 27 at 16. The “leap” in Midwest Energy was
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`too far because the diligence required that “every competitor knows of every patent owned by
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`every other competitor at all times. That just does not track logically.” Midwest Energy, 2021
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`U.S. Dist. LEXIS 95947, at *27. Here, no such leap is required. Network-1 does not allege that,
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`as a result of Hikvision’s diligence, Hikvision knew of all patents owned by all of its competitors
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`at all times by regularly searching the Patent and Trademark database or Google patents (id. at
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`*27-28) or diligence consisting of “patent searches and prior art searches related to” switching
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`technology that would uncover all patents in the space. Pacing Techs., LLC v. Garmin Int’l., Inc.,
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`No. 12-CV-1067 BEN (WMC), 2013 U.S. Dist. LEXIS 15728, at *5 (S.D. Cal. Feb. 5, 2013).
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`Rather, Network-1 alleges that, as a result of Hikvision’s diligence associated with Hikvision
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`introducing new 802.3af standard compliant products into the market, Hikvision would have
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`learned of the most important patent in the 802.3af industry, which was (a) highly publicized, (b)
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`asserted against 25 competitors for infringing the industry standard, (c) licensed to 28 competitors,
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`generating over $180 million dollars in royalties, and (d) identified in its competitor’s SEC filings.
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`Based on the six categories of allegations summarized above, “at that time when Defendant
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`was introducing new standard-compliant Power over Ethernet products, even the most cursory
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`diligence or investigation would have revealed the existence of the ‘930 patent and its read on the
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`Power over Ethernet Standard,” especially because “there have been few other patents asserted
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`against the Power over Ethernet standard.” Dkt. 25 ¶¶38, 63, 70. For example, it is plausible that
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`“a legal or business employee of Defendant learned that Cisco paid up to $112 million in royalties
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`to license a standard-based patent for the same standard-based products that Defendant intended to
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`introduce into the market to sell.” Dkt. 25 ¶71.
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`If Network-1 alleged that it previously asserted a different version of a relatively obscure
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`patent (one of hundreds asserted in a broad industry) against only three companies that resulted in
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`no trials and no publicly disclosed licenses but instead a motion for summary judgment of non-
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`infringement being granted, then it might not be plausible that Hikvision knew about this obscure
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`patent. See MONEC Holding AG v. Motorola Mobility, Inc., 897 F. Supp. 2d 225 (D. Del. 2012).
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`Case 2:22-cv-08050-CJC-JDE Document 29 Filed 05/15/23 Page 12 of 22 Page ID #:373
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`Based on the allegations in the Amended Complaint, however, it is plausible that Hikvision knew
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`about the ‘930 patent when it performed its diligence. And while just one of the six categories of
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`allegations from the Amended Complaint is sufficient, by itself, to cross the plausibility standard,
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`the combined nine categories of allegations are more than sufficient. See SoftView LLC v. Apple
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`Inc., No. 10-389-LPS, 2012 U.S. Dist. LEXIS 104677, 2012 WL 3061027, at *5-6 (D. Del. July
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`26, 2012) (noting that “none of the allegations standing alone adequately alleges that [the
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`defendant] was aware of the patents-in-suit prior to the initiation of this litigation,” but “[t]aken in
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`combination, the Court concludes that SoftView has alleged a plausible basis from which one
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`might reasonably infer [the defendant] had knowledge of the patent-in-suit”); Elm 3DS
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`Innovations, LLC v. Samsung Elecs. Co., No. 14-1430-LPS-CJB, 2015 U.S. Dist. LEXIS 130699,
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`2015 WL 5725768, at *3 (D. Del. Sept. 29, 2015) (“[Separately,] (1) Defendants’ knowledge of
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`patents related to the ‘239 patent or (2) the ‘239 patent’s ubiquity in Defendants’ industry, may not
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`have been sufficient here . . . But considered as a whole, they render it at least plausible that
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`Defendants were aware of the ‘239 patent and its claims prior to suit.” (emphasis in original)).
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`These combined allegations more than establish a “reasonable inference” that Hikvision’s
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`knowledge of the ‘930 patent was plausible and not “implausible.” Iqbal, 556 U.S. at 678.
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`Hikvision cites cases in which, based on the particular allegations, the plausibility standard
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`was not satisfied. Dkt. 27 at 6-16 (citing and quoting MONEC Holding AG v. Motorola Mobility,
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`Inc., 897 F. Supp. 2d 225, 232 (D. Del. 2012); EON Corp. IP Holdings LLC v. FLO TV Inc., 802
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`F. Supp. 2d 527, 533 (D. Del. 2011); Radware, Ltd. v. A10 Networks, Inc., No. 13-02021, 2013
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`WL 5373305, at *3 (N.D. Cal. Sept. 24, 2013); Valinge Innovation AB v. Halstead New England
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`Corp., No. 16-1082, 2017 WL 5196379, at *2–3 (D. Del. Nov. 9, 2017); PPG Indus. Ohio, Inc. v.
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`Axalta Coating Sys., LLC, No. 21-346-LPSSRF, 2022 WL 610740, at *5 (D. Del. Jan. 26, 2022),
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`R&R adopted, 2022 WL 611260 (D. Del. Feb. 18, 2022); Robocast, Inc. v. Netflix, Inc., No. CV
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`22-305-RGA, 2022 WL 16921956, at *4 (D. Del. Nov. 14, 2022). None of these cases, however,
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`addressed the key allegations found in the Amended Complaint, including that:
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`•
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`it was widely known that the patent at issue was a “‘hugely important’” patent in a tight-
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`Case 2:22-cv-08050-CJC-JDE Document 29 Filed 05/15/23 Page 13 of 22 Page ID #:374
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`knit industry (Dkt. 25 ¶¶35, 69);
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`•
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`it was widely known that the patent at issue, which was identified as being essential to
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`practicing an industry standard, reads on and was asserted against an industry standard and
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`the defendant’s standard-compliant products (id. ¶¶24, 27, 34, 35);
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`•
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`the patent at issue was a single patent asserted in two heavily publicized trials against
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`seven major players in a tight-knit standard-based industry (id. at ¶¶35, 44);
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`• chip manufacturers, who supply the technology to the defendant used to perform the
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`infringing standard, were aware of the patent at issue, having been directly involved in the
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`prior litigations and two trials involving the patent in which the exact same chips used in
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`the defendant’s accused products were trial exhibits (id. at ¶¶60, 61, 74, 75);
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`•
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`it was widely known in the tight-knit standard-based industry that the patent at issue
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`generated more than $100 million in royalties for infringing the industry standard, e.g.:
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` (id. at ¶¶15, 16, 35, 44, 72); and
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`•
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`the patent at issue, the litigation and trials involving the patent at issue, and the $100+
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`million in royalties generated based on the industry standard were reported in the SEC
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`filings of companies that the defendant specifically identified as its competitors in the
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`industry (id. at ¶58).
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`Contrary to Hikvision’s suggestion, no court in this district (or any other district) has held that
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`these allegations are insufficient to plead knowledge. For example, this chart compares the
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`allegations in the Amended Complaint with the allegations that were found insufficient in
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`Hikvision’s primary case (cited the most times in its Motion):
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`Opposition to Partial Motion to Dismiss
`2:22-CV-08050 CJC (JDEx)
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`Case 2:22-cv-08050-CJC-JDE Document 29 Filed 05/15/23 Page 14 of 22 Page ID #:375
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`Amended Complaint
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`it is widely known in the industry that a single patent,
`the only patent in its family, identified as being
`essential to practicing an industry standard, is asserted
`against the 802.3af industry standard (¶¶15, 24, 27, 29,
`38)
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`the ‘930 patent is asserted in the tight knit standard-
`based Power over Ethernet market (¶¶35, 59)
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`“there have been few other patents asserted against the
`Power over Ethernet standard” (¶38)
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`“lawsuits asserting its ‘930 Patent against more than 25
`major companies in the Power over Ethernet industry
`based on the Power over Ethernet standard” (¶35)
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`MONEC Holding AG v. Motorola
`Mobility, Inc., 897 F. Supp. 2d
`225, 233 (D. Del. 2012)
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`N/A
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`a different (pre-reexamination)
`version of the patent is asserted in
`the broad and ever changing
`“smart phones and tablet
`computers” markets 4