Case 3:13-cv-00352-DMS-WVG Document 15 Filed 07/03/13 PageID.132 Page 1 of 11
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`
`
`BRIAN J. DUNNE (Bar No. 275689)
`OLAVI DUNNE LLP
`800 Wilshire Blvd., Suite 320
`Los Angeles, California 90015
`Telephone: (213) 516-7900
`Facsimile: (213) 516-7910
`bdunne@olavidunne.com
`
`Attorneys for Defendant TICKETBISCUIT, LLC
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`Plaintiff,
`
`
`
`v.
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`AMERANTH, INC.,
`)
`Case No. 3:13-cv-0352-JLS-NLS
`
`
`)
`TICKETBISCUIT’S REPLY IN
`)
`SUPPORT OF ITS MOTION TO
`)
`DISMISS COMPLAINT FOR
`)
`PATENT INFRINGEMENT
`
`)
`Date: July 11, 2013
`)
`Time: 1:30 p.m.
`)
`Courtroom: 6
`Judge: Hon. Janis L. Sammartino
`)
`
`)
`Complaint Filed: Feb. 13, 2013
`)
`
`TRIAL BY JURY DEMANDED
`)
`)
`
`TICKETBISCUIT, LLC,
`
`
`Defendant.
`
`
`
`Case No. 3:13-cv-0352-JLS-NLS
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`TICKETBISCUIT’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS
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`TABLE OF CONTENTS
`INTRODUCTION ............................................................................................. 1
`I.
`II. ARGUMENT ..................................................................................................... 2
`A. AMERANTH’S COMPLAINT FAILS TO ALLEGE FACTS
`TO CREATE A PLAUSIBLE INFERENCE THAT
`TICKETBISCUIT SPECIFICALLY INTENDED THIRD
`PARTIES TO INFRINGE ....................................................................... 2
`B. AMERANTH’S COMPLAINT FAILS TO ALLEGE FACTS
`TO CREATE A PLAUSIBLE INFERENCE THAT
`TICKETBISCUIT KNEW THAT THE ACTS OF THIRD
`PARTIES CONSTITUTED INFRINGEMENT ..................................... 4
`C. AMERANTH’S COMPLAINT FAILS TO ALLEGE FACTS
`TO CREATE A PLAUSIBLE INFERENCE THAT THE
`TICKETBISCUIT SYSTEM HAS NO SUBSTANTIAL, NON-
`INFRINGING USES ............................................................................... 5
`D. AMERANTH OFFERS ABSOLUTELY NO FACTUAL
`SUPPORT FOR ITS WILLFULNESS CLAIMS AND THEY
`SHOULD BE DISMISSED WITH PREJUDICE ................................... 7
`III. CONCLUSION .................................................................................................. 8
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`TICKETBISCUIT’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS
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`I.
`
`INTRODUCTION
`At the conclusion of its Opposition to TicketBiscuit’s Motion to Dismiss,
`Ameranth argues that four simple questions should determine the outcome of
`TicketBiscuit’s Motion. Opp. at 8-9. TicketBiscuit agrees (for the most part). The
`questions before the Court are whether Ameranth has pleaded sufficient facts to
`create a plausible inference that:
`1. TicketBiscuit specifically intended third parties to infringe the Patents-in-
`Suit.
`2. TicketBiscuit knew that the acts of others constituted direct infringement.
`3. An identifiable TicketBiscuit product or service has no substantial non-
`infringing use.
`4. TicketBiscuit had pre-filing knowledge of the Patents-in-Suit.
`With one partial exception, these are the same questions identified by Ameranth in
`its Conclusion. Compare Opp. at 8-9. In short, the parties see (more or less) eye-
`to-eye on the law governing this motion. But this doesn’t help Ameranth’s
`Opposition—or its Complaint.
`
`The fundamental deficiencies in Ameranth’s inducement, contribution, and
`willfulness allegations spring not from incorrect recitations of the law, but from a
`wholesale failure to identify facts. Ameranth’s Complaint follows a simple, but
`legally deficient, recipe:
`• take one (heaping) serving of legal boilerplate;
`• add several self-aggrandizing paragraphs about Ameranth with no plausible
`connection (apparent or otherwise) to TicketBiscuit, its products, or its
`services;
`• mix in generic, conclusory allegations copied nearly word-for-word from
`Ameranth complaints filed against other defendants; and
`• seek extraordinary relief for indirect and willful infringement.
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`Twombley, Iqbal, and their progeny require more with respect to induced,
`contributory, and willful infringement. TicketBiscuit’s Motion should be granted,
`and the Complaint’s claims for induced infringement, contributory infringement,
`and willful infringement dismissed.
`II. ARGUMENT
`A. AMERANTH’S COMPLAINT FAILS TO ALLEGE FACTS
`THAT CREATE A PLAUSIBLE INFERENCE THAT
`TICKETBISCUIT SPECIFICALLY INTENDED THIRD
`PARTIES TO INFRINGE
`In its Opposition, Ameranth argues that it pleaded sufficient facts to
`plausibly infer that TicketBiscuit intended others to directly infringe the Patents-in-
`Suit. Opp. at 2. It then goes on to cite cases that, at least according to the vague
`parentheticals provided, would seem to support Ameranth’s position. However,
`even the very cases that Ameranth cites confirm that the Complaint is deficient; as
`with the Complaint itself, Ameranth’s Opposition cannot withstand factual
`scrutiny.
`For example, in In re Bill of Lading Transmission, the patent at issue
`claimed to increase efficiency in the trucking industry by automating the process of
`receiving transportation documentation and optimizing deliveries. In re Bill of
`Lading Transmission and Processing Sys. Patent Litig., 681 F.3d 1323, 1329 (Fed.
`Cir. 2012). In that case, the complaint alleged that the patent owner sent a cease
`and desist letter to the defendant, making it aware of the patent, the claimed
`functionality, and that its products could infringe the patent. Id. at 1341. The
`complaint further alleged that after receiving this letter, the defendant began
`advertising its products, focusing on those features which, if used, would infringe
`the patent at issue. Id. Based on these detailed allegations, the court held that the
`complaint had sufficiently alleged indirect infringement to survive a motion to
`dismiss.
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`In Fujifilm Medical Systems, the complaint at issue also contained detailed
`factual allegations to support its claim that the defendant intended third parties to
`infringe. See AntiCancer, Inc. v. Fujifilm Medical Systems U.S.A., Inc., 745
`F.Supp.2d 1165, 1170-71 (S.D. Cal. 2010). In that case, AntiCancer’s complaint
`alleged that Fujifilm employees had multiple meetings with AntiCancer to discuss
`AntiCancer’s patents, that those employees had indicated that Fujifilm was
`interested in licensing the patents, and that those employees had attended a
`demonstration where AntiCancer showed how Fujifilm’s products could practice
`the patented method. Id. at 1167-68. According to the complaint, those licensing
`discussions eventually ceased and soon thereafter, Fujifilm published a paper and
`related marketing materials touting its product’s ability to perform what it knew
`were AntiCancer’s patented methods. Id. at 1168. Based on these very detailed,
`fact-based allegations, the court held that induced infringement had been
`adequately plead.
`In Pacing Technologies, the plaintiff and defendant were direct competitors
`in the fitness industry. See Pacing Technologies. v. Garmin Int’l, Inc., 2013 WL
`444642 at *1 (S.D. Cal. Feb. 5, 2013). The complaint alleged that the defendant
`had pre-suit knowledge of the patent, for purposes of determining induced and
`willful infringement, because the defendant participated in the same market, would
`likely have seen the plaintiff’s media publicity, and would have become aware of
`the patent through unrelated litigation with the defendant’s competitors. See id. at
`*2. However, the court expressly rejected that argument, holding that the plaintiff’s
`allegations were “too speculative to support a reasonable inference that [defendant]
`knew of the patent prior to commencement of this suit.” Id.
`Here, Ameranth’s Complaint lacks even a scintilla of the detailed factual
`allegations to support its induced infringement claims that were endorsed by the
`courts deciding In re Bill of Lading and Fujifilm Medical Systems. Each Count of
`Ameranth’s Complaint contains four paragraphs dedicated to active inducement –
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`three of which are pure legal boilerplate and the last of which is addressed to the
`wrong legal standard. Mot. at 5-6. Ameranth’s strongest factual support for its
`induced infringement allegations occurs in paragraphs 10-14 of the Complaint,
`which discuss Ameranth’s purported acclaim, industry success, and patent
`enforcement efforts. Mot. at 6. However, even Ameranth’s strongest allegations,
`which are still conclusory and implausible at best, are almost identical to those
`expressly rejected by the court in Pacing Technologies and are insufficient to
`support a finding of intent as a matter of law. See, e.g., Pacing Technologies, 2013
`WL 444642, at *2 (quoting MONEC Holding AG v. Motorola Mobility, Inc., 2012
`WL 4340653, at *5 (D. Del. Sep. 20, 2012) (“This court has not been convinced of
`the sufficiency of pleading charging knowledge that is based upon a defendant’s
`participation in the same market, media publicity and unrelated litigation by the
`defendant’s competitors concerning the relevant patent.”)).
`B. AMERANTH’S COMPLAINT FAILS TO ALLEGE FACTS
`THAT CREATE A PLAUSIBLE INFERENCE THAT
`TICKETBISCUIT KNEW THAT THE ACTS OF THIRD
`PARTIES CONSTITUTED INFRINGEMENT
`
`In its Opposition, Ameranth relies entirely on Weiland Sliding Door and
`Windows, Inc. v. Panda Windows and Doors, LLC, 2012 WL 202664 (S.D. Cal.
`Jan 23, 2012) to argue that its Complaint creates a plausible inference that
`TicketBiscuit knew that the acts of third parties constituted infringement. This
`reliance is misguided as Weiland is inapplicable here.
`In Weiland, the plaintiff filed three amended complaints, only the third of
`which survived a Motion to Dismiss. Id. at *1. The third amended complaint
`(“TAC”), which is the subject of the Order cited by Ameranth, personifies a
`complaint that “alleges facts to create a plausible inference that [the defendant]
`knew that the acts of third parties constituted infringement and induced that
`infringement.” See Opp. at 4. Unsurprisingly, the TAC bears little resemblance to
`Ameranth’s Complaint in the instant case.
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`In analyzing the adequacy of the TAC’s allegations regarding the
`defendant’s knowledge that the acts of third parties constituted infringement and
`the defendant’s intent to induce that infringement, this Court held that:
`“Relevant to Defendants' knowledge and intent to induce infringement,
`Weiland alleges that Defendants' drainage system is identical to the systems
`protected by Weiland's patent, supporting an inference that Defendants'
`product is not capable of any noninfringing use, (TAC ¶ 16, ECF No. 112);
`that upon witnessing Weiland's later-patented system at a 2003 industry
`trade show Shoshan “stated words to the effect of ‘I'm going to copy that,’ ”
`(id. ¶ 18); that Defendants were in possession of a copy of Weiland's
`patented door system, (id. ¶ 19); that they received copies of Weiland's
`patents, (id. ¶ 21); that Defendants never sought an opinion of counsel
`regarding whether they were infringing Weiland's patents, (id.); and that
`Defendants disseminated an online brochure advertising the allegedly
`infringing product and providing installation and use instructions, (id. ¶¶ 26,
`38). Taken together, these allegations support an inference that Defendants
`had knowledge that their products infringed Weiland's patents, and that they
`intended to induce others to infringe.”
`
`Weiland, 2012 WL 202664 at *5. In Weiland, the TAC complained detailed
`allegations that the defendants were aware of the patents, had copied the patented
`systems, intended to copy later-patented systems, had a prototype of the system,
`and had actually received copies of the plaintiff’s patents, and, among other things,
`advertised the allegedly infringing product and provided installation and use
`instructions. Nothing of the sort is present here and Ameranth’s Complaint should
`be dismissed as requested in TicketBiscuit’s Motion.
`C. AMERANTH’S COMPLAINT FAILS TO ALLEGE FACTS
`THAT CREATE A PLAUSIBLE INFERENCE THAT THE
`TICKETBISCUIT SYSTEM HAS NO SUBSTANTIAL, NON-
`INFRINGING USES
`Ameranth’s Opposition fails to rebut or even attempt to rebut the substance
`of TicketBiscuit’s Motion as it relates to contributory infringement and does
`nothing to rectify the glaring inadequacies of its Complaint. Instead of identifying
`a specific accused system and “plead[ing] facts that allow an inference that the
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`components sold or offered for sale have no substantial non-infringing uses,” In re
`Bill of Lading, 681 F.3d at 1337, Ameranth’s Opposition merely copies and pastes
`four paragraphs from the complaint – one describing Ameranth’s purported
`acclaim and industry success and three boilerplate recitations of the legal standard
`for contributory infringement. Opp. at 6. The Opposition goes on to suggest that
`the pasted allegations, when read “in light of the [allegedly] factual allegations
`contained in paragraphs 18-19, 33-34, and 48-49” create a plausible inference that
`the TicketBiscuit System has no substantial non-infringing use. Opp. at 6.
`Accordingly, Ameranth’s Opposition argues that by reading a series of
`boilerplate paragraphs “in light of” one another, the Court should reach the
`conclusion that they are something other than boilerplate recitations of the legal
`standard for a showing of no substantial, non-infringing use. See Opp. at 6. This
`is absurd.
`In fact, this Court expressly rejected nearly identical claims in the Weiland
`case relied upon by Ameranth elsewhere in its Opposition. Weiland Sliding Door
`and Windows, Inc. v. Panda Windows and Doors, Case No. 3:10-cv-00677-JLS-
`MDD, Dkt. No. 109 (August 10, 2011). In the second amended complaint
`(“SAC”), plaintiff’s contributory infringement allegations were:
`“Defendants have sold and continue to sell in the United States components
`that are a material part of the Patented Door System taught by the ‘343 and
`the ‘651 Patents knowing the same are specially adapted for use in an
`infringement of the patents and which components are not a staple item of
`commerce suitable for substantial non-infringing uses.”
`
`Case No. 3:10-cv-00677-JLS-MDD, Dkt. No.83 (February 1, 2011) at 6.
`The Court expressly rejected this as insufficient because it “does nothing more
`than mirror statutory language.” Case No. 3:10-cv-00677-JLS-MDD, Dkt. No.109
`at 5. The same result is appropriate here and TicketBiscuit’s Motion should be
`granted.
`//
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`D. AMERANTH OFFERS ABSOLUTELY NO FACTUAL
`SUPPORT FOR ITS WILLFULNESS CLAIMS AND THEY
`SHOULD BE DISMISSED WITH PREJUDICE
`
`Relying on Sony Corporation v. LG Electronics US.A., Inc., 768 F. Supp. 2d
`1058 (C.D. Cal. 2011), Ameranth’s Opposition declares that its allegations that
`TicketBiscuit had knowledge of the Patents-in-Suit and acted despite this
`knowledge are sufficient to survive TicketBiscuit’s Motion to Dismiss. Opp. at 7.
`Not so.
`In Sony, the court found that the plaintiff’s complaint stated a claim for
`willful infringement because it "identifies the specific accused products and alleges
`that defendants had actual notice of the patents in suit.” Sony, 768 F. Supp. 2d at
`1064 (internal citations omitted). In Sony, the plaintiff identified the specific
`model numbers of the allegedly infringing products and alleged that it provided the
`defendant (and the defendant had received), actual notice of the asserted patents.
`Id. at 1063-64.
`Sony is not even remotely applicable to the instant case, because unlike the
`complaint in Sony, Ameranth's Complaint is facially devoid of facts to support a
`finding of willfulness. Ameranth’s Complaint does not allege that its products
`were marked, does not coherently identify the product alleged of infringement, and
`does not include any allegation of actual notice. Instead, Ameranth relies on its
`purported acclaim in an unrelated industry and its patent enforcement activities –
`conclusory allegations that cannot, as a matter of law, support of finding of
`inducted infringement, much less willful infringement. See, Pacing Technologies,
`2013 WL 444642, at *2 (quoting MONEC Holding AG v. Motorola Mobility, Inc.,
`2012 WL 4340653, at *5 (D. Del. Sep. 20, 2012) (“This court has not been
`convinced of the sufficiency of pleading charging knowledge that is based upon a
`defendant’s participation in the same market, media publicity and unrelated
`litigation by the defendant’s competitors concerning the relevant patent.”)).
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`Ameranth’s unfounded conclusion is not given a presumption of truth and cannot
`support a willful infringement claim. See IPVenture, Inc. v. Cellco P'ship, 2011
`WL 207978, at *2-3 (N.D. Cal. Jan. 21, 2011) (“Because there are no facts to
`support the claim that Defendants actually had knowledge of the issued patent, and
`there is merely the bare recitation of the required legal elements for willful
`infringement, the Court finds that Plaintiff has failed to state a cause of action for
`willful infringement.”)
`III. CONCLUSION
`For the foregoing reasons, pursuant to Federal Rule of Civil Procedure
`12(b)(6), TicketBiscuit respectfully requests that the Court dismiss Ameranth’s
`complaint with prejudice and without leave to amend.
`
`Dated: July 3, 2013
`
`Respectfully submitted,
`
`OLAVI DUNNE LLP
`
`By: /s/ Brian J. Dunne
`
`
`
`Brian James Dunne
`Attorneys for Defendant
`TICKETBISCUIT, LLC
`
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`Case No. 3:13-cv-0352-JLS-NLS
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`TICKETBISCUIT’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS
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`Case 3:13-cv-00352-DMS-WVG Document 15 Filed 07/03/13 PageID.142 Page 11 of 11
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`PROOF OF SERVICE
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`I, Brian Dunne, declare:
`I am a citizen of the United States, employed in the County of Los Angeles,
`State of California. I am over the age of 18 and not a party to this action. My
`business address is: 800 Wilshire Blvd., Suite 320, Los Angeles, California 90017.
`On July 3, 2013, I caused the following documents to be served:
`TICKETBISCUIT’S REPLY IN SUPPORT OF ITS MOTION TO
`DISMISS COMPLAINT FOR PATENT INFRINGEMENT
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`[X] by the court’s electronic filing system. I am familiar with the U.S.
`District Court, Southern District of California’s practice for collecting and
`processing electronic filings. Under the practice, documents are electronically
`filed with the court. The court’s CM/ECF system will generate a Notice of
`Electronic Filing (NEF) to the filing party, the assigned judge, and any registered
`users in this case. The NEF will constitute service of the document. Registration
`as a CM/ECF user constitutes consent to electronic service through the court’s
`transmission facilities. Under this practice, the CM/ECF user listed below was
`served:
`Attorneys for Ameranth, Inc.
`WILLIAM J. CALDARELLI
`E-mail: wjc@chplawfirm.com
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` I
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` declare under the penalty of perjury under the laws of the State of
`California that the above is true and correct. Executed on July 3, 2013, at Los
`Angeles, California.
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` /s/Brian J. Dunne
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`Brian J. Dunne
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`Case No. 3:13-cv-0352-JLS-NLS
`1
`PROOF OF SERVICE
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