Case 1:12-cv-00574-LPS Document 114 Filed 01/09/15 Page 1 of 13 PageID #: 2896
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 12-574-LPS
`(consolidated)
`
`JURY TRIAL DEMANDED
`
`))))))))))))
`
`ROBERT BOSCH LLC,
`
`Plaintiff,
`
`v.
`
`ALBEREE PRODUCTS, INC.,
`API KOREA CO., LTD.,
`SAVER AUTOMOTIVE PRODUCTS, INC.,
`and COSTCO WHOLESALE CORPORATION,
`
`Defendants.
`
`ROBERT BOSCH LLC’S BRIEF IN OPPOSITION TO
`COSTCO WHOLESALE CORPORATION’S MOTION TO DISMISS
`
`OF COUNSEL:
`
`Mark A. Hannemann
`Jeffrey S. Ginsberg
`Rose Cordero Prey
`Ksenia Takhistova
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004
`Tel.: (212) 425-7200
`
`Dated: January 9, 2015
`1177681 / 39026
`
`Richard L. Horwitz (#2246)
`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`rhorwitz@potteranderson.com
`dmoore@potteranderson.com
`bpalapura@potteranderson.com
`
`Attorneys for Plaintiff Robert Bosch LLC
`
`

`
`Case 1:12-cv-00574-LPS Document 114 Filed 01/09/15 Page 2 of 13 PageID #: 2897
`Case 1:12—cv—OO574—LPS Document 114 Filed 01/09/15 Page 2 of 13 Page|D #: 2897
`
`TABLE OF CONTENTS
`TABLE OF CONTENTS
`
`I. NATURE AND STAGE OF THE PROCEEDINGS ............................................................... 1
`I. NATURE AND STAGE OF THE PROCEEDINGS ............................................................. .. 1
`
`II. SUMMARY OF THE ARGUMENT ....................................................................................... 2
`II. SUMMARY OF THE ARGUMENT ..................................................................................... .. 2
`
`III. ARGUMENT............................................................................................................................ 3
`III. ARGUMENT .......................................................................................................................... .. 3
`
`A. BOSCH SUFFICIENTLY PLED CONSTRUCTIVE NOTICE IN ITS
`A. BOSCH SUFFICIENTLY PLED CONSTRUCTIVE NOTICE IN ITS
`COMPLAINTS............................................................................................................ 3
`COMPLAINTS .......................................................................................................... .. 3
`
`B. BOSCH IS NOT REQUIRED TO PROVE COMPLIANCE WITH THE
`B. BOSCH IS NOT REQUIRED TO PROVE COMPLIANCE WITH THE
`MARKING PROVISIONS OF 35 U.S.C. § 287(A) AT THE PLEADINGS
`MARKING PROVISIONS OF 35 U.S.C. § 287(A) AT THE PLEADINGS
`STAGE ........................................................................................................................ 6
`STAGE ...................................................................................................................... .. 6
`
`C. BOSCH’S CONSOLIDATED AMENDED COMPLAINT PROVIDED
`C. BOSCH’S CONSOLIDATED AMENDED COMPLAINT PROVIDED
`SUFFICIENT NOTICE TO COSTCO OF BOSCH’S CLAIMS REGARDING
`SUFFICIENT NOTICE TO COSTCO OF BOSCH’S CLAIMS REGARDING
`THE GOODYEAR HYBRID PRODUCT .................................................................. 7
`THE GOODYEAR HYBRID PRODUCT ................................................................ .. 7
`
`D. BOSCH ADEQUATELY PLED THE REQUISITE KNOWLEDGE FOR ITS
`D. BOSCH ADEQUATELY PLED THE REQUISITE KNOWLEDGE FOR ITS
`INDIRECT INFRINGEMENT CLAIMS IN ITS COMPLAINTS............................. 8
`INDIRECT INFRINGEMENT CLAIMS IN ITS COMPLAINTS ........................... .. 8
`
`IV. CONCLUSION......................................................................................................................... 9
`IV. CONCLUSION ....................................................................................................................... .. 9
`
`i
`
`

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`Case 1:12-cv-00574-LPS Document 114 Filed 01/09/15 Page 3 of 13 PageID #: 2898
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Am. Med. Sys., Inc. v. Med. Eng’g Corp.,
`6 F.3d 1523 (Fed. Cir. 1993) ..................................................................................................... 5
`
`AVID Identification Sys., Inc. v. Philips Elecs. N. Am. Corp.,
`No. 2:04-CV-183, 2006 WL 1408318 (E.D. Tex. May 18, 2006) ............................................ 5
`
`Cordance Corp. v. Amazon.com, Inc.,
`631 F. Supp. 2d 484 (D. Del. 2009)....................................................................................... 4, 6
`
`Dunlap v. Schofield,
`152 U.S. 244 (1894)................................................................................................................... 4
`
`E. Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc.,
`No. 12-cv-517-LM, 2014 WL 4979853 (D.N.H. Oct. 6, 2014) ................................................ 4
`
`Inzer v. Frantz,
`No. 03 C 0552, 2003 WL 21877645 (N.D. Ill. Aug. 7, 2003)............................................... 2, 6
`
`Jackson v. Intel Corp.,
`No. 09 C 2178, 2009 WL 2851742 (N.D. Ill. Aug. 31, 2009)................................................... 5
`
`Maxwell v. J. Baker, Inc.,
`86 F. 3d 1098 (Fed. Cir. 1996) .............................................................................................. 5, 6
`
`Netgear, Inc. v. Ruckus Wireless, Inc.,
`852 F. Supp. 2d 470 (D. Del. 2012)....................................................................................... 3, 7
`
`Nike, Inc. v. Wal-Mart Stores, Inc.,
`138 F. 3d 1437 (Fed. Cir. 1998) ................................................................................................ 6
`
`Sentry Prot. Prods. v. Eagle Mfg. Co.,
`400 F.3d 910 (Fed. Cir. 2005) ....................................................................................... 2, 4, 5, 6
`
`Siemens v. Seagate Tech.,
`No. SACV 06-788-JVS, 2008 WL 9028522 (C.D. Cal. Sept. 23, 2008) .............................. 3, 4
`
`Statutes
`
`35 U.S.C. § 287(a) ................................................................................................................. passim
`
`Fed. R. Civ. P. 12(b)(6)........................................................................................................... 1, 2, 6
`
`Fed. R. Civ. P. 8(a) ......................................................................................................................... 2
`
`ii
`
`

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`Case 1:12-cv-00574-LPS Document 114 Filed 01/09/15 Page 4 of 13 PageID #: 2899
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`Defendant Costco Wholesale Corporation’s (“Costco”) motion to dismiss challenges
`
`Bosch’s allegation of direct infringement for the period before Plaintiff Robert Bosch LLC
`
`(“Bosch”) gave actual notice based on Costco’s contention that marking was required to be pled.
`
`However, Bosch’s complaint did plead marking sufficiently, by pleading willful infringement.1
`
`Costco’s motion also challenges Bosch’s allegation of indirect infringement for the period
`
`before Bosch gave actual notice. However, Bosch is not alleging indirect infringement for any
`
`patent/product combination during any period when actual notice had not been provided.
`
`Accordingly, Costco’s motion should be denied.
`
`I.
`
`NATURE AND STAGE OF THE PROCEEDINGS
`
`Bosch filed its original complaint for patent infringement of twelve of its wiper blade
`
`patents on May 4, 2012, naming as defendants Alberee Products, Inc., API Korea Co., LTD, and
`
`Saver Automotive Products, Inc. (D.I. 1.) On May 30, 2012, Bosch sent Costco a notice letter,
`
`in which it identified all of the originally asserted patents and accused products. On October 9,
`
`2014, Bosch filed a consolidated amended complaint combining Case No. 14-142 with this case,
`
`asserting a total of seventeen patents, and adding Costco as a defendant. (D.I. 84.) Costco was
`
`served with the consolidated amended complaint on October 10, 2014. (D.I. 86.) On October
`
`22, 2014, Bosch gave notice of its intent to assert an eighteenth patent in a second amended
`
`complaint, which was filed on October 31, 2014. (D.I. 95.) On December 23, 2014, Costco filed
`
`a Rule 12(b)(6) Motion to Dismiss Claims for Alleged Pre-Notice Damages and Pre-Notice
`
`Indirect Infringement (“Costco MTD”). (D.I. 112, 113.) Bosch respectfully submits this brief in
`
`opposition to Costco’s motion.
`
`1
`If the Court concludes that there is alleged direct infringement for which Bosch did not
`properly plead marking, Bosch (which does mark its products) requests leave to amend.
`
`

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`Case 1:12-cv-00574-LPS Document 114 Filed 01/09/15 Page 5 of 13 PageID #: 2900
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`II.
`
`SUMMARY OF THE ARGUMENT
`
`In its non-dispositive motion to dismiss, Costco asserts that Bosch has failed to state a
`
`claim for damages prior to the time when Costco received actual notice from Bosch because
`
`Bosch allegedly failed to adequately plead and prove compliance with the marking statute, 35
`
`U.S.C. § 287(a), and specifically name every accused product in its complaints. Costco also
`
`asserts that Bosch failed to adequately plead the requisite knowledge to seek damages for
`
`indirect infringement. Costco is incorrect, and its motion fails for several reasons.
`
`First, as to compliance with 35 U.S.C. § 287(a), as a matter of law, Bosch’s complaints
`
`against Costco (D.I. 84, 95) sufficiently plead constructive notice for all asserted patents by
`
`pleading willful infringement. See, e.g., Sentry Prot. Prods. v. Eagle Mfg. Co., 400 F.3d 910,
`
`918 (Fed. Cir. 2005) (finding that pleading willful infringement is sufficient to rely on marking
`
`for damages).
`
`Second, Costco is incorrect that Bosch is required to prove compliance with the marking
`
`requirement of 35 U.S.C. § 287(a) at the pleadings stage. While “the patentee bears the burden
`
`of proving compliance with the marking and notice provisions by a preponderance of evidence,”
`
`for a motion to dismiss under Fed. R. Civ. P. 12(b)(6) “the Federal Rules require only a ‘short
`
`and plain statement of the claim.’” See Fed. R. Civ. P. 8(a); see, e.g., Inzer v. Frantz, No. 03 C
`
`0552, 2003 WL 21877645, at *7 (N.D. Ill. Aug. 7, 2003) (finding that the plaintiff need not
`
`prove compliance with the marking requirement at the pleading stage). As set forth above,
`
`Bosch’s complaints contain sufficient pleading of compliance with the marking statute to state a
`
`claim for past damages. Further, Costco fails to demonstrate that Bosch is required to comply
`
`with § 287(a) for all eighteen asserted patents. Costco also fails to show that Bosch’s products
`
`were not marked or challenge the sufficiency of Bosch’s marking practices to justify a
`
`determination at this stage of the case that there was a lack of constructive notice to Costco. See,
`
`2
`
`

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`Case 1:12-cv-00574-LPS Document 114 Filed 01/09/15 Page 6 of 13 PageID #: 2901
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`e.g., Siemens v. Seagate Tech., No. SACV 06-788-JVS, 2008 WL 9028522, at *16–17 (C.D. Cal.
`
`Sept. 23, 2008) (denying summary judgment on the issue of notice and finding that pleading
`
`willful infringement is sufficient to satisfy plaintiff’s burden to plead compliance with the
`
`marking statute).
`
`Third, Costco is also incorrect in its assertions that Bosch failed to allege that Costco was
`
`provided notice of Bosch’s infringement claims as to the Goodyear Hybrid wiper blade. Bosch’s
`
`second amended complaint states that Costco had notice of those claims since “at least” the
`
`October 22, 2014 notice letter that Bosch sent to Costco. (D.I. 95 at ¶¶ 77, 159, 163, 218, 222,
`
`431.) Further, since patent infringement pleadings do not need to identify all accused products
`
`by name, see, e.g., Netgear, Inc. v. Ruckus Wireless, Inc., 852 F. Supp. 2d 470, 473–74 (D. Del.
`
`2012) (plaintiff’s pleading must only “identify a general category of products.”), Bosch’s first
`
`complaint against Costco (D.I. 84) also sufficiently provided notice of Bosch’s infringement
`
`allegations as to the Goodyear Hybrid wiper blade by alleging infringement through the sale and
`
`use of “windshield wiper blades.”
`
`Last, as to Bosch’s indirect infringement claims, Bosch’s complaints against Costco
`
`explicitly allege both a date and method of notice for when Costco had knowledge of each of the
`
`asserted patents and its infringements. Bosch does not seek damages for Costco’s indirect
`
`infringement prior to the time when actual notice was provided. Thus, there is no claim to
`
`dismiss for pre-notice indirect infringement.
`
`For these reasons, Costco’s motion should be denied.
`
`III.
`
`ARGUMENT
`
`A.
`
`Bosch Sufficiently Pled Constructive Notice in Its Complaints
`
`Costco asserts that Bosch fails to state an actionable claim for “pre-[actual] notice”
`
`damages because Bosch failed to allege compliance with the marking requirement of 35 U.S.C. §
`
`3
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`

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`Case 1:12-cv-00574-LPS Document 114 Filed 01/09/15 Page 7 of 13 PageID #: 2902
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`287(a).
`
`(Costco MTD at 4–5, 9–10.) Costco’s argument fails because Bosch sufficiently pled
`
`constructive notice in its complaints by pleading willful infringement.
`
`In cases where a patent owner makes, offers for sale, or sells a product embodying the
`
`invention, a patentee may seek damages for infringement occurring during the period in which
`
`the accused infringer had actual or constructive notice of the asserted patents. See 35 U.S.C. §
`
`287(a); Sentry, 400 F.3d at 918. Costco relies heavily on the Supreme Court’s decision in
`
`Dunlap v. Schofield, 152 U.S. 244 (1894), for the proposition that Bosch must affirmatively
`
`plead and prove marking under 35 U.S.C. § 287(a).
`
`(Costco MTD at 6–8.) While a patentee
`
`must plead compliance with 35 U.S.C. § 287(a), the Federal Circuit has held that “pleading that
`
`the ‘infringements have been willful and with full knowledge of the [asserted patents]’ was
`
`sufficient.” Sentry, 400 F.3d at 918. The Federal Circuit explained that under Dunlap, pleading
`
`constructive notice only requires the patentee to allege that the accused infringer acted “with a
`
`knowledge of the patent and of his infringement.”
`
`Id. (citing Dunlap, 152 U.S. at 249).
`
`Therefore, pleading willful infringement is sufficient to plead constructive notice.
`
`Other courts,
`
`including courts in this District, have followed the Federal Circuit’s
`
`decision in Sentry in concluding that pleading willful infringement satisfies a plaintiff’s duty to
`
`plead compliance with 35 U.S.C. § 287(a). See, e.g., Cordance Corp. v. Amazon.com, Inc., 631
`
`F. Supp. 2d 484, 499 (D. Del. 2009) (finding that “pleading willful infringement also pleads
`
`marking”); E. Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc., No. 12-cv-517-LM, 2014
`
`WL 4979853, at *2 (D.N.H. Oct. 6, 2014) (rejecting defendant’s argument that plaintiff waived
`
`its right to pre-complaint damages by failing to adequately plead marking in its amended
`
`complaint because plaintiff asserted willful infringement); Siemens, 2008 WL 9028522, at *16–
`
`17 (finding that pleading willful infringement is sufficient to satisfy plaintiff’s burden to plead
`
`4
`
`

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`Case 1:12-cv-00574-LPS Document 114 Filed 01/09/15 Page 8 of 13 PageID #: 2903
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`compliance with the marking statute); AVID Identification Sys., Inc. v. Philips Elecs. N. Am.
`
`Corp., No. 2:04-CV-183, 2006 WL 1408318, at *1 (E.D. Tex. May 18, 2006) (“Philips argues
`
`that AVID failed to plead compliance with § 287(a) in the four Complaints filed by AVID in the
`
`present case. However, AVID in every one of its Complaints made multiple allegations that
`
`Philips and the other Defendants ‘willfully and deliberately infringed’ AVID’s patents. The
`
`Federal Circuit has held a plaintiff’s pleading that the ‘infringements have been willful and with
`
`full knowledge of the patents was sufficient’ to fulfill a plaintiff's duty to plead compliance with
`
`287(a). Therefore, AVID has met its pleading obligation.”) (internal citations omitted).
`
`None of the cases cited by Costco support the dismissal of constructive notice damage
`
`claims where willful infringement is pled. The Maxwell case makes the “bare statement that the
`
`plaintiff ‘had the burden of pleading and proving at trial that she complied with the statutory
`
`requirements.’” Sentry, 400 F.3d at 918 (citing Maxwell v. J. Baker, Inc., 86 F. 3d 1098, 1111
`
`(Fed. Cir. 1996)) (emphasis added). There, the denial of the defendant’s JMOL on the issue of
`
`marking was affirmed because there was substantial evidence to support the jury’s finding that
`
`the plaintiff complied with the marking statute. Maxwell, 86 F. 3d at 1111–12. The Jackson
`
`case similarly does not address whether pleading willfulness is sufficient to seek damages based
`
`on constructive notice. Jackson v. Intel Corp., No. 09 C 2178, 2009 WL 2851742, at *1–2 (N.D.
`
`Ill. Aug. 31, 2009). Instead, that court treated the motion before it as one for summary judgment,
`
`not a motion to dismiss, and considered evidence provided by the defendant to rule on the merits
`
`of the plaintiff’s compliance with the marking requirement.
`
`Id. at *6. The remaining cases
`
`Costco cites concern the merits of proving marking, not the pleading requirements necessary to
`
`rely on constructive notice for damages. See Am. Med. Sys., Inc. v. Med. Eng’g Corp., 6 F.3d
`
`1523, 1534–1538 (Fed. Cir. 1993) (analyzing marking activities of plaintiff to determine when
`
`5
`
`

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`Case 1:12-cv-00574-LPS Document 114 Filed 01/09/15 Page 9 of 13 PageID #: 2904
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`compliance with marking statute began for calculating damages); Nike, Inc. v. Wal-Mart Stores,
`
`Inc., 138 F. 3d 1437, 1438 (Fed. Cir. 1998) (reversing district court’s ruling that the marking
`
`statute does not apply to recovery for design patent infringement under § 289, and remanding for
`
`determination of whether plaintiff complied with the marking requirement).
`
`Each of Bosch’s complaints against Costco allege that “the acts of infringement . . . have
`
`occurred with full knowledge of the” asserted patents and that “the acts of infringement have
`
`been willful and deliberate.” (D.I. 84 at ¶ 420; D.I. 95 at ¶ 438.) These willfulness allegations
`
`encompass all eighteen asserted patents and are sufficient to plead constructive notice as a matter
`
`of law. Therefore, Costco’s motion to dismiss Bosch’s claims for damages prior to Costco
`
`receiving actual notice should be denied.
`
`B.
`
`Bosch Is Not Required to Prove Compliance with the Marking Provisions of
`35 U.S.C. § 287(a) at the Pleadings Stage
`
`Costco’s motion to dismiss conflates the pleading requirements for constructive notice
`
`with the requirements to prove marking on the merits. The patentee bears “the burden of
`
`pleading and proving at trial that she complied with the statutory [notice] requirements.”
`
`Maxwell, 86 F.3d at 1111; Sentry, 400 F. 3d at 918; Cordance, 631 F. Supp. 2d at 499. In order
`
`to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), Bosch need only comply with the
`
`appropriate pleading requirements to rely on constructive notice for damages, see, e.g., Inzer,
`
`2003 WL 21877645, at *7, which, as explained above, Bosch has done.
`
`Costco asserts that it voluntarily discontinued selling certain “beam-type” replacement
`
`blades prior to being named as a defendant in this lawsuit, and that such action “would likely
`
`lead to dismissal of Bosch’s claims as to those products in their entirety.” (Costco MTD at 8,
`
`n.3.) Such argument lacks support. Indeed, Costco does not provide a date, let alone evidence to
`
`support a date, for when Costco allegedly discontinued sales of the identified “beam-type”
`
`6
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`

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`Case 1:12-cv-00574-LPS Document 114 Filed 01/09/15 Page 10 of 13 PageID #: 2905
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`replacement windshield wiper blades. Even if Costco provided this information, there are still
`
`questions of fact regarding constructive notice.
`
`Costco’s motion provides no support for a determination that Bosch is required to comply
`
`with the marking requirement for all eighteen asserted patents2 or that Bosch has failed to do so.
`
`Costco also provides no evidence or argument challenging the sufficiency of Bosch’s marking
`
`practices.
`
`C.
`
`Bosch’s Consolidated Amended Complaint Provided Sufficient Notice to
`Costco of Bosch’s Claims Regarding the Goodyear Hybrid Product
`
`Costco asserts that Bosch’s second amended complaint (D.I. 95) fails to allege that Bosch
`
`gave prior notice to Costco that the sale of the Goodyear Hybrid product infringed Bosch patents.
`
`(Id. at 10). This is incorrect.
`
`Bosch’s second amended complaint alleges that Costco was notified of Bosch’s
`
`infringement claims as to the Goodyear Hybrid product “since at least October 22, 2014 from a
`
`notice sent” to Costco. (D.I. 95 at ¶¶ 77, 159, 163, 218, 222, 431 (emphasis added).) Bosch’s
`
`allegation is that Costco received actual notice of its infringement by letter from counsel as of the
`
`date provided. However, this alleged date is open ended as to when Costco was first notified.
`
`Costco was on notice of Bosch’s infringement allegations regarding its wiper blades,
`
`including the Goodyear Hybrid product, prior to October 22, 2014. A complaint for patent
`
`infringement is not required to identify accused products by name; a complaint that identifies a
`
`category of products provides sufficient notice to defendants. See, e.g., Netgear, 852 F. Supp. 2d
`
`at 473 (Plaintiff’s pleading must only “identify a general category of products.”). Both of
`
`Bosch’s complaints that include Costco as a defendant identify the general category of accused
`
`2
`Bosch is only obligated to comply with the marking requirement for the patents that
`cover products that Bosch makes, offers for sale, or sells within the United States. See 35 U.S.C.
`§ 287(a).
`
`7
`
`

`
`Case 1:12-cv-00574-LPS Document 114 Filed 01/09/15 Page 11 of 13 PageID #: 2906
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`products as “windshield wiper blades.” (See D.I. 84 at ¶ 12; D.I. 95 at ¶ 12; see also Costco
`
`MTD at 2.) The Goodyear Hybrid product is a windshield wiper blade encompassed by the
`
`general category of products accused in the first complaint against Costco. Therefore, Costco
`
`had actual notice of Bosch’s infringement allegations as to the Goodyear Hybrid wiper blades
`
`since at least October 10, 2014.3
`
`Costco’s motion to dismiss Bosch’s claims for damages related to the Goodyear Hybrid
`
`product should be denied.
`
`D.
`
`Bosch Adequately Pled the Requisite Knowledge for Its Indirect
`Infringement Claims in Its Complaints
`
`Costco seeks to dismiss Bosch’s claims for indirect infringement damages because
`
`Bosch’s complaints allegedly fail to plead that Costco had knowledge of the asserted patents
`
`prior to Costco receiving actual notice. However, Bosch’s complaints do not seek damages for
`
`indirect infringement during that time prior to actual notice.
`
`Bosch’s complaints make explicit allegations that Costco had knowledge of the asserted
`
`patents, including providing specific dates and methods of notice for each patent. (See, e.g., D.I.
`
`95 at ¶¶ 38, 42, 60, 76, 77, 100, 104, 129, 133, 158, 159, 163, 188, 192, 217, 218, 222, 247, 251,
`
`276, 280, 305, 309, 334, 338, 431, 438.) Costco does not dispute that it had knowledge of the
`
`asserted patents on the respective dates that Bosch alleges, and Costco specifically acknowledges
`
`and attaches to its motion the first notice letter it received from Bosch. (See Costco MTD at 9,
`
`Exhibit C.) Since Bosch’s complaints are not seeking damages for indirect infringement prior to
`
`the dates of actual notice, there are no claims for pre-notice indirect infringement to dismiss.
`
`3
`Bosch’s May 30, 2012 notice letter identified the category of accused products as “beam-
`style wiper products.” Since the Goodyear Hybrid wiper blades include a beam, they are
`included in this category of products. Therefore, Costco had notice of Bosch’s patents and their
`infringement by the Goodyear Hybrid beam-style wiper blades even prior to October 10, 2014.
`
`8
`
`

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`Case 1:12-cv-00574-LPS Document 114 Filed 01/09/15 Page 12 of 13 PageID #: 2907
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`IV.
`
`CONCLUSION
`
`Bosch’s willfulness allegations are legally sufficient to plead constructive notice for all
`
`eighteen asserted patents. Therefore, Bosch has stated a claim for damages for infringement by
`
`Costco as of the date of the constructive notice. Bosch is not required to prove compliance with
`
`the marking requirement of 35 U.S.C. § 287(a) at this stage of the litigation; and Costco’s motion
`
`fails to provide any evidence that Bosch cannot satisfy the marking requirement.
`
`Bosch’s second amended complaint sufficiently alleged that Costco had prior notice of
`
`Bosch’s allegations as to the Goodyear Hybrid product—which notice was provided, at a
`
`minimum, in Bosch’s first complaint against Costco.
`
`Finally, Costco does not dispute the circumstances surrounding Costco’s actual
`
`knowledge of the asserted patents that are alleged in Bosch’s complaints, and Bosch does not
`
`seek damages for indirect infringement prior to the dates included in the complaints.
`
`For the reasons summarized here and explained in detail above, Bosch respectfully
`
`requests that Costco’s Motion to Dismiss Claims for Alleged Pre-Notice Damages and Pre-
`
`Notice Indirect Infringement be denied. To the extent the Court is inclined to grant Costco’s
`
`motion, Bosch respectfully requests that the Court grant Bosch leave to amend its complaint.
`
`9
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`

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`Case 1:12-cv-00574-LPS Document 114 Filed 01/09/15 Page 13 of 13 PageID #: 2908
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`Respectfully submitted,
`
`POTTER ANDERSON & CORROON LLP
`
`OF COUNSEL:
`
`By:
`
`Mark A. Hannemann
`Jeffrey S. Ginsberg
`Rose Cordero Prey
`Ksenia Takhistova
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004
`Tel.: (212) 425-7200
`
`Dated: January 9, 2015
`1177681 / 39026
`
`/s/ David E. Moore
`Richard L. Horwitz (#2246)
`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`rhorwitz@potteranderson.com
`dmoore@potteranderson.com
`bpalapura@potteranderson.com
`
`Attorneys for Plaintiff Robert Bosch LLC
`
`10