Case No. 1:23-cv-01252-DDD-SKC Document 18 filed 07/20/23 USDC Colorado pg 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`DENVER DIVISION
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`UPSTREAM DATA INC.,
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`Plaintiff,
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`v.
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`CRUSOE ENERGY SYSTEMS LLC,
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`Defendant.
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` Civil Action No. 1:23-CV-01252-SKC
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` JURY TRIAL DEMANDED
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`DEFENDANT’S MOTION TO DISMISS THE COMPLAINT
`UNDER FED. R. CIV. P. 12(b)(6)
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`______________________________________________________________________________
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`Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Crusoe Energy Systems
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`LLC (“Crusoe”) respectfully requests that the Court dismiss Plaintiff Upstream Data Inc.’s
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`(“Upstream”) complaint for infringement of United States Patent No. 11,574,372 (the ’372
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`Patent”) because it is based on a flawed theory of “joint infringement” and does not plead facts to
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`show Upstream has a plausible claim for infringement on any grounds in its pleading.
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`INTRODUCTION
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`Upstream alleges that Crusoe’s “Digital Flare Mitigation” system (“Accused Product”)
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`infringes its ’372 patent. ECF 1 at ¶ 1. The complaint is full of accolades for Stephen Barbour,
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`CEO of Upstream and inventor of the ’372 patent, lauding him for supposedly inventing the use
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`of waste natural gas to generate cheap electricity for bitcoin mining. But this simple idea was
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`neither innovative or novel: waste gas had been used as cheap fuel by well operators for a long
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`time, and generating electricity to power computers at the well-site was not a novel or non-obvious
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`Case No. 1:23-cv-01252-DDD-SKC Document 18 filed 07/20/23 USDC Colorado pg 2 of 13
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`use of electricity. To the contrary, Mr. Barbour only received a patent after adding a myriad of
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`components and modifications to components (underlined below) to his “system”:
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`A system comprising:
`1.
`a source of combustible gas produced from [[an oil]] a facility selected from
`a group consisting of a hydrocarbon production, storage, or processing facility;
`a generator connected to the source of combustible gas to receive a
`continuous flow of combustible gas to power the generator; and
`[[a]] blockchain mining devices connected to the generator;
`in which
`the blockchain mining devices each have a mining processor and are
`connected to a network interface;
`the network interface is connected to receive and transmit data through the
`internet to a network that stores or has access to a blockchain database;
`the mining processors are connected to the network interface and adapted
`to mine transactions associated with the blockchain database and to communicate
`with the blockchain database;
`the network is a peer-to-peer network;
`the blockchain database is a distributed database stored on plural nodes in
`the peer-to-peer network; and
`the blockchain database stores transactional information for a digital
`currency.
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` But, because Mr. Barbour added these additional elements to persuade the patent examiner to
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`approve his system claims, he cannot sue Crusoe for infringement of Claims 1 and 2 without
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`showing that all of the element are in the accused Digital Flare Mitigation product. Although
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`Upstream tries to overcome this problem by pleading joint infringement, this judicially created
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`legal theory only applies to method, not system claims. Without direct infringement, there is no
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`indirect or willful infringement, and the complaint must be dismissed.
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`This is not just a pleading exercise. The real issue here is many of the elements do not
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`appear in Crusoe’s Digital Flare Mitigation product or any other Crusoe product. Upstream cannot
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`plead direct infringement of a system claim by Crusoe.
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`Case No. 1:23-cv-01252-DDD-SKC Document 18 filed 07/20/23 USDC Colorado pg 3 of 13
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`I.
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`Upstream Cannot Meet the Pleading Standard to Overcome Rule 12(b)(6)
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`Rule 12(b)(6) requires that a complaint contain sufficient factual matter, if accepted as true,
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`to “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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`(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this facial plausibility
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`standard, the plaintiff must plead “factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.” Id.
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`“Plaintiff cannot assert a plausible claim for patent infringement by reciting claim elements
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`and merely concluding that the accused product has those elements; there must be some factual
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`allegations that, when taken as true, articulate why it is plausible that the accused product infringes
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`the patent claim.” Bot M8 LLC v. Sony Corp. of Am., 4 F.4th 1342, 1353, 1355 (Fed. Cir. 2021)
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`(“[W]e agree with the district court that Bot M8's allegations are conclusory, merely track the claim
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`language, and do not plausibly allege that gaming information and a mutual authentication
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`program are stored together on the same memory.”).1 Here, there are no specific facts to show
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`every element of Claim 1 is in the Digital Flare Mitigation System charted at Exhibit 3 to the
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`Complaint. ECF 1-3. Furthermore, even as to its legally deficient joint infringement theory,
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`Upstream only pleads the elements of the theory in rote form with no specific facts to support it.2
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`1 The court further wrote, "[M]ere recitation of claim elements and corresponding conclusions, without supporting
`factual allegations, is insufficient to satisfy the Iqbal/Twombly standard."
`2 Complaint, paragraph 30, “30. To the extent specific components of the Infringing Crusoe Products are provided
`and/or operated by Crusoe’s customers, vendors or agents, Crusoe infringes at least claims 1-2 of the ’372 Patent
`jointly with its customers, vendors, or agents. On information and belief, Crusoe directs and controls such infringing
`act(s) of one or more of these third parties by establishing the manner and timing of the one or more third parties’
`infringing act(s) and conditioning the participation of an activity or receipt of a benefit upon completion of the
`infringing act(s). Thus, Crusoe and the one or more third-parties jointly infringe the ’372 Patent.”
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`Case No. 1:23-cv-01252-DDD-SKC Document 18 filed 07/20/23 USDC Colorado pg 4 of 13
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`II.
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`DIRECT INFRINGEMENT REQUIRES OWNERSHIP OR CONTROL OF
`THE ENTIRE SYSTEM
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`The asserted claims here are system claims. SiRF Tech., Inc. v. Int'l Trade Comm'n, 601
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`F.3d 1319, 1332 (Fed. Cir. 2010) (“We have defined a machine as a concrete thing, consisting of
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`parts, or of certain devices and combination of devices.” (citation and internal quotation marks
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`omitted)).” In re Nuijten, 500 F.3d 1346, 1355 (Fed. Cir. 2007)(A machine claim—often referred
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`to as an “apparatus” or “system” claim—covers “a concrete thing, consisting of parts, or of certain
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`devices and combination of devices.”). Direct infringement occurs when a person or entity,
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`“without authority makes, uses, offers to sell, or sells any patented invention, within the United
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`States or imports into the United States any patented invention during the term of the patent.” 35
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`U.S.C. § 271(a).
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`In a system claim, “[t]he infringement analysis is a two-step inquiry. ‘First, the court
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`determines the scope and meaning of the patent claims asserted, and then the properly construed
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`claims are compared to the allegedly infringing device.’ ” Cordis Corp. v. Boston Scientific Corp.,
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`658 F.3d 1347, 1354 (Fed.Cir.2011) (citing Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454
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`(Fed.Cir.1998) (en banc)).” In order to directly infringe a system claim, every item listed must be
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`owned or controlled by a single entity. Centillion Data Sys., LLC v. Qwest Commc'ns Int'l, Inc.,
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`631 F.3d 1279, 1284 (Fed. Cir. 2011)
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`Here, Crusoe does not infringe the asserted system claims, and it is doubtful they can be
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`directly infringed by anyone because the premise of a blockchain database is the lack of central
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`control. A blockchain database is a reliable record of transactions because they are recorded by
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`many unrelated, parallel users, and downloaded frequently to every user. It is the lack of common
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`Case No. 1:23-cv-01252-DDD-SKC Document 18 filed 07/20/23 USDC Colorado pg 5 of 13
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`ownership or control of the blockchain database that makes its ledger of transactions immutable.3
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`Further, there are other elements of the system claims that Crusoe does not own or control.
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`III.
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`JOINT INFRINGEMENT ONLY APPLIES TO METHOD CLAIMS
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`Upstream knows that Crusoe does not own or control the laundry list of elements in the
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`claimed systems, so it attempts to plead joint infringement among Crusoe, its vendors, and
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`customers. Joint infringement is a judicial doctrine that applies to method claims. In Akamai
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`Techs., Inc. v. Limelight Networks, Inc., 797 F.3d 1020, 1023 (Fed. Cir. 2015), the Federal Circuit
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`on remand from the Supreme Court stated that direct infringement under § 271(a) can be found
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`“when an alleged infringer conditions participation in an activity on receipt of a benefit upon
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`performance of a step or steps of a patented method and establishes the manner or timing of that
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`performance.” (emphasis added). In Eli Lilly & Co., the court said: “The performance of method
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`steps is attributable to a single entity in two types of circumstances: when that entity directs or
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`controls others’ performance, or when the actors form a joint enterprise.” 845 F.3d at 1364
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`(emphasis added) (internal quotation marks omitted). See also Lyda v. CBS Corp., 838 F.3d 1331,
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`1339-41 (Fed. Cir. 2016).
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`Infringement of a system claim, on the other hand, requires all elements be found in the
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`accused system. Centillion Data Systems, LLC, 631 F.3d at 1286 (“Supplying the software for the
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`customer to use is not the same as using the system.”). Recently, in Boston Scientific Corp. v.
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`Cook Group Incorporated, 2023 WL 1452172, *26 (S.D. Ind. 2013), the district court specifically
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`considered an attempt to extend the Akamai line of cases on joint infringement from method to
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`3 https://www.ibm.com/topics/blockchain
`https://www.sciencedirect.com/science/article/pii/S2772485922000606
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`Case No. 1:23-cv-01252-DDD-SKC Document 18 filed 07/20/23 USDC Colorado pg 6 of 13
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`apparatus claims, and rejected the argument.4 See also Deep9 Corp. v. Barnes & Noble, Inc., No.
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`11-cv-35, 2012 WL 4336726, at *10 (W.D. Wash. Sept. 21, 2012), aff ’d, 504 F. App’x 923 (Fed.
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`Cir. 2013)(joint or vicarious infringement does not apply to system claim). In Deep9 Corp., the
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`district court confronted a single system claim that dealt with the software to perform the steps of
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`the method claims in the patent. However, because the system required the internet as one of its
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`elements there was no direct infringement: “In other words, logically, Barnes & Noble cannot
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`provide each and every limitation required by the system disclosed in Claim 24 because it does
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`not provide the “common communications,” i.e., the Internet.” Id. at *10-11. Likewise, here
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`Crusoe does not own or control the internet, so it too cannot infringe the claimed system.
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`A.
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`Claims 1 And 2 Are To Systems That Crusoe Does Not Own or Control
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`Upstream’s factual allegations begin and end with the Digital Flare Management System.
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`See ECF 1 at ¶ 16 and ECF 1-3 (“Ex. 3”).5 Claim 1 is the sole independent system claim in the
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`4 “Plaintiffs first cite to Autronic Plastics, Inc. v. Apogee Lighting, Inc., No. 19-CV-6268 (MKB), 2021 WL 5965715,
`(E.D.N.Y. Dec. 16, 2021), for the proposition that “[a]n actor may be held liable for direct infringement based on
`another entity's actions where that actor directs or controls the other entity's performance.” Id. at *4. But that court's
`reasoning is not persuasive nor binding on this Court and is inapposite in any case. In that case, the court relied on a
`family of Federal Circuit cases all stemming from Akamai Technologies, Inc. v. Limelight Networks, Inc., 797 F.3d
`1020 (Fed. Cir. 2015). But Akamai and its progeny do not stand for a rule that a party can be liable for direct
`infringement any time it directs or controls the infringing activity of a subsidiary. Rather, these cases apply to a
`particular context that is not relevant here: when the patent claim allegedly infringed is a method claim and more
`than one party is performing the pertinent steps. See Akamai, 797 F.3d at 1022 (emphasis added) (discussing
`vicarious liability applicability for direct infringement and stating that “[w]e will hold an entity responsible for
`others' performance of method steps in two sets of circumstances: (1) where that entity directs or controls others’
`performance, and (2) where the actors form a joint enterprise”); see also Travel Sentry, Inc. v. Tropp¸ 877 F.3d 1370,
`1378 (Fed. Cir. 2017) (citing to Akamai and stating that one actor may be liable for direct infringement of a method
`claim if it directed or controlled another entity to perform certain steps). Plaintiffs attempt to transplant this language
`into the apparatus claim context and argue that a parent entity can be liable for direct infringement when it directs a
`subsidiary entity to make, use, sell, offer to sell, or import an infringing product; Akamai did not go this far. ”
`5 Moreover, Upstream cannot plead method claims, because each step of a method claim must be performed in the
`United States. “[D]irect infringement of a method claim requires that each of the claimed steps are performed within
`the United States. Meyer Intell. Properties Ltd. v. Bodum, Inc., 690 F.3d 1354, 1371 (Fed. Cir. 2012) (citing NTP,
`Inc. v. Rsch. In Motion, Ltd., 418 F.3d 1282, 1318 (Fed. Cir. 2005). See also Cardiac Pacemakers, Inc. v. St. Jude
`Med., Inc., 576 F.3d 1348, 1364-65 (Fed. Cir. 2009) (holding that Section 271(f) does not apply to method patents
`because method patents do not have physical components that could be combined outside the United States). The
`world-wide web does not limit access to computers and networks outside of the United States.
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`Case No. 1:23-cv-01252-DDD-SKC Document 18 filed 07/20/23 USDC Colorado pg 7 of 13
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`’372 patent. Since all other system claims (2-23) depend from it, none can be infringed if Claim
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`1 is not infringed by the Digital Flare Management System.
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`Claim 1 is “[a] system” comprising “a source of combustible gas” from a “hydrocarbon
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`production, storage or processing facility.” It then adds “a generator” connected to “the source”
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`of natural gas to “power the generator”. This electricity powers “blockchain mining devices
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`connected to the generator”, and “the blockchain mining devices each have a mining processor
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`and are connected to a network interface.” Claim 1 further states: “the network interface is
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`connected to receive and transmit data through the internet to a network that stores or has access
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`to a blockchain database; the mining processors are connected to the network interface and adapted
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`to mine transactions associated with the blockchain database and to communicate with the
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`blockchain database.” Claim 1 refers expressly to the internet, and also says “the network is a
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`peer-to-peer network; the blockchain database is a distributed database stored on plural nodes in
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`the peer-to-peer network; and the blockchain database stores transactional information for a digital
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`currency.” Claim 2 simply adds “[t]he system of claim 1 isolated from a sales gas line and an
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`external electrical power grid”.
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`There are no facts to show that Crusoe owns or control the source of the gas, the
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`hydrocarbon facility. There are no facts pled that Crusoe owns or controls the internet, and as in
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`Deep9, this alone is enough to require dismissal of the system claims. Likewise, there are no facts
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`alleged that Crusoe owns or controls the blockchain database, the peer-to-peer network or the
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`plural nodes on which the blockchain database resides.
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`Upstream is trying to plead and enforce the claims Mr. Barbour applied for, not the claims
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`that issued in the ‘372 patent. As a consequence, gaping holes exist in the specific facts needed to
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`show the system of Claim 1 is owned or controlled by Crusoe. And, since all elements of Claim 1
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`must be in all system claims that depend from it, Claim 2 likewise fails.6
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`B. There Are No Facts for a Plausible Allegation of Direct Infringement ‘Making’
`the System.
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`Upstream relies mainly on a claim chart in Exhibit 3 for its allegations of specific facts to
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`support its infringement claims. The claim chart, however, does not refer to or show any facts that
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`show it is plausible to believe Crusoe makes the parts of the system that are the source of the gas,
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`the hydrocarbon production, storage or processing facility or the internet, blockchain database,
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`peer-to-peer network, plural nodes on which the blockchain database resides, or digital currency.
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`See Complaint, Claim Chart Exh. 3, ECF 1-3.
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`For these reasons, Plaintiff’s claims for “makes”-type direct infringement of the ’372
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`Patent should be dismissed. See Bowlby, 681 F.3d at 219; Cevallos, 541 F. App’x at 392 (explaining
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`plaintiff’s factual allegations must be sufficient to “raise a right to relief above the speculative
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`level”).
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`C. Plaintiff Fails to Plead Facts Supporting ‘Selling’ or ‘Offering to Sell’ the
`Claimed Inventions
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`Selling or offering to sell a system requires each element of the claims be found in the
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`alleged apparatus. See Fujitsu Ltd. v. Belkin Int'l, Inc., 782 F. Supp. 2d 868, 887 (N.D. Cal. 2011)
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`(“[L]iability for infringement requires a party to make, use, sell, or offer to sell the patented
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`invention, meaning the entire patented invention.”). Because it is impossible for Upstream to plead
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`Crusoe sells or offers to sell a system that includes the source of the gas, the hydrocarbon
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`production, storage or processing facility, or the internet, blockchain database, peer-to-peer
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`6 All of the system claims depend directly or indirectly from Claim 1, and so include all of its elements.
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`network, plural nodes on which the blockchain database resides, or digital currency, Upstream
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`cannot plead direct infringement based on “sell or offer to sell”. Accordingly, the direct
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`infringement claims for “sell”, or “offering to sell” the systems of Claims 1 and 2 of the ’372 patent
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`must be dismissed.
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`D. Plaintiff Fails to Plead Facts Supporting Importation of the Invention
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`The complaint makes the unsupported statement that Crusoe “import[s] products, including
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`at least the Accused Products, that meet every limitation, either literally or under the doctrine of
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`equivalents, of at least claims 1-2 the ʼ372 Patent, in violation of 35 U.S.C. § 271(a).” ECF 1 at ⁋
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`29. Plaintiff simply restates statutory language, nothing more. Nevertheless, importation of the
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`claimed system cannot be pled because Crusoe, at best, only imports computers by purchasing
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`them from a foreign manufacturer. However, these computers are only one element, not all
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`elements, of the system. The allegation of direct infringement by importation of the claimed
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`invention should be dismissed.
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`E. Plaintiff Fails to Plead Facts Supporting ‘Use’ of the Invention
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`Infringement for use of a system requires the user to benefit from each element of the
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`claimed system and have control over each element of the claimed system. In Centillion Data Sys.,
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`LLC, the Court explained that “direct infringement by ‘use’ of a system claim ‘requires a party . .
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`. to use each and every . . . element of a claimed [system].’” 631 F.3d at 1284. The Court further
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`concluded that “to ‘use’ a system for purposes of infringement, a party must put the invention into
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`service, i.e., control the system as a whole and obtain benefit from it.” Id. More recently, in
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`Intellectual Ventures I LLC v. Motorola Mobility LLC, 870 F.3d 1320, 1329 (Fed. Cir. 2017), the
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`majority held that the user must control and benefit from each element of the system. Judge
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`Newman wrote a separate concurrence and dissent that illustrates Intellectual Ventures’ holding is
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`not simply directed at the system as whole, but goes to each individual element of the system. Id.
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`at 1333.7
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`However, as stated above, Upstream has not pled any specific facts to show Crusoe has
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`control over the source of the gas (hydrocarbon production, storage or processing facility),
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`blockchain transactions, blockchain database, peer-to-peer network, the plural nodes on which the
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`blockchain resides or digital currency. Indeed, Plaintiff cannot plead facts to show direct or
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`indirect control of the blockchain database because the benefit of blockchain is that no one entity
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`directly or indirectly controls or can change the ledger. See ’372 Pat. at 11:65-12:12. The
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`blockchain transactions are analogous to a competition, where participants are trying to perform
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`more transactions faster than their competitors to record a block of information into the chain: no
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`one competitor controls the competition or which transactions are placed in the record. No one
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`has the ability to change a transaction after it has been recorded in the ledger.8 Another benefit of
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`a blockchain database is that the blockchain ledger is frequently downloaded on every computer
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`participating in the “competition”, hence none of the competitors (including Crusoe) can change
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`transactions on every copy of the ledger once recorded in and downloaded from the database. If
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`7 “The district court correctly stated: “Centillion did not hold that the infringer ‘benefit’ from every single limitation.
`Rather Centillion held that the user must ‘obtain benefit’ from the ‘system as a whole’ and its analysis of (and
`finding of) benefit was not on a limitation-by-limitation basis.” Dist. Ct. Op. at 422. My colleagues “disagree,” Maj.
`Op. 1328, stating that:
`Centillion and NTP held that to “use” something is to put it into service, which means to control and benefit
`from it. And Centillion explicitly added that, to use a claimed system, what must be “used” is each element.
`From those two propositions, it follows that, to use a system, a person must control (even if indirectly) and
`benefit from each claimed component.
`Id. (citations and parenthetical omitted).
`With respect, my colleagues are incorrect.” Intell. Ventures, at 1333.
`8 https://www.ibm.com/topics/blockchain ("No participant can change or tamper with a transaction after it’s been
`recorded to the shared ledger.")
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`Upstream believes it can plead the facts necessary to make a plausible case for infringement by
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`use, then it must actually state facts, rather than rote, baseless allegations.
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`F. Indirect Infringement Fails Because No Direct Infringement Is Properly Pled
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`Indirect infringement requires direct infringement by someone. Plaintiff’s allegations of
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`indirect infringement are deficient because, as shown above, Plaintiff fails to provide factual
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`support for its allegations of direct infringement by Crusoe or anyone else. See Aro Mfg. Co. v.
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`Convertible Top Replacement Co., 365 U.S. 336, 341 (1961); In re Bill of Lading Transmission &
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`Processing Sys. Patent Litig., 681 F.3d 1323, 1333 (Fed. Cir. 2012) (“Because liability for indirect
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`infringement of a patent requires direct infringement, [the] amended complaints must plausibly
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`allege that the ’078 patent was directly infringed to survive Appellees’ motion to dismiss.”). Thus,
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`claims for inducement to infringe and for contributory infringement must be dismissed.
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`X.
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`Plaintiff’s Claims for Willful Infringement Should Be Dismissed.
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`Because Plaintiff has not pled sufficient facts that allows the court to draw a reasonable
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`inference that Crusoe is liable for direct or indirect infringement, the allegation of willful
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`infringement likewise fails.
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`CONCLUSION
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`For the above reasons, Plaintiff’s Complaint fails to state claims for direct infringement,
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`joint infringement, induced infringement, and contributory infringement, and those claims should
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`be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).
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`Dated: July 20, 2023
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` Respectfully submitted,
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`By: /s/ Danielle Joy Healey
`Danielle Joy Healey
`SPENCER FANE LLP
`3040 Post Oak Blvd, Suite 1300
`Houston, TX 77056
`Telephone: (713) 212-2676
`Fax: (713) 963-0859
`dhealey@spencerfane.com
`
`By: /s/ Jacob Hollars
`Jacob Hollars
`Spencer Fane, LLP
`1700 Lincoln Street, Suite 2000
`Denver, CO 80202
`Telephone: (303) 839-3707
`Fax: (303) 839-3838
`jhollars@spencerfane.com
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`Attorneys for Defendant
`Crusoe Energy Systems LLC
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`CERTIFICATE OF SERVICE
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`It is hereby certified that on July 20, 2023, a true and correct copy of the foregoing
`MOTION TO DISMISS THE COMPLAINT UNDER FED. R. DIV. P. 12(b)(6) was
`electronically served via the E-Filing system, to all counsel of record.
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`/s/ Karen Lancaster
`Karen Lancaster
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