Case 1:13-cv-00919-LPS Document 92 Filed 12/03/18 Page 1 of 3 PageID #: 1098
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`VIA ELECTRONIC FILING
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`December 3, 2018
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`The Honorable Leonard P. Stark
`U.S. District Court for the District of Delaware
`844 N. King Street
`Wilmington, DE 19801
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`Re: Arendi S.A.R.L. v. Google LLC, C.A. No. 13-919-LPS
`Dear Chief Judge Stark:
`As Arendi stated in its opening letter, granting Arendi leave to amend and supplement its
`complaint would comport with the liberal standards of Rule 15. Google’s contention that the
`proposed amendments would prove futile rests on a failure to recognize the unique application of
`the Twombly/Iqbal pleading standard in the context of patent cases. Google’s suggestion that the
`amendments would violate an agreement between the parties, the Scheduling Order, D.I. 84, or
`the Joint Stipulation to Stay, D.I. 35, reflects a misunderstanding of the relevant documents.
`Google misapprehends the application of the Twombly/Iqbal standard to patent claims. A
`plaintiff need not embed a claim chart in its complaint. Rather, a complaint can satisfy the
`requirements of Twombly/Iqbal “by ‘specifically identifying . . . products’ which ‘perform the
`same unique function as [the] patented system.’” DermaFocus LLC v. Ulthera, Inc., 201 F. Supp.
`3d 465, 469 (D. Del. 2016) (citation omitted). Moreover, “exemplary pleading of claims is
`sufficient to satisfy Rule 12(b)(6).” ProMOS Techs., Inc. v. Samsung Elecs. Co. Ltd., No. 18-
`307-RGA, 2018 WL 5630585, at *2 (D. Del. Oct. 31, 2018).
`Google fails to explain why the Amended Complaint is deficient as compared to the
`current Complaint, which takes the same form. The original Complaint gave Google sufficient
`notice of the claims against it that Google proved able to answer, D.I. 9, produce core technical
`documents, D.I. 30, and submit invalidity contentions, D.I. 32. Those actions belie Google’s
`current contention that the Amended Complaint is too vague to permit it to respond.
`Disc Disease Solutions Inc. v. VGH Solutions, Inc. reflects how little the Twombly/Iqbal
`standard requires. 888 F.3d 1256, 1260 (Fed. Cir. 2018). The Federal Circuit approved a
`complaint that succinctly “alleg[ed] that the accused products meet ‘each and every element of at
`least one claim of the ‘113 [or ‘509] Patent, either literally or equivalently.’” Id. Following Disc
`Disease, this Court approved an equally brief allegation of infringement in KOM Software Inc. v.
`NETAPP, Inc., No. 1:18-cv-00160-RGA, 2018 WL 6167978 (D. Del. Nov. 24, 2018). That
`complaint followed a form similar to those in Arendi’s proposed amendments:
`[Defendants are] directly infringing at least [a claim] of [the Patent], as infringement is
`defined by 35 U.S.C. § 271(a), including through making, using . . . , selling and offering
`for sale methods and articles infringing one or more claims of [the Patent]. . . . Exemplary
`infringing instrumentalities include [NetApp software and hardware].
`Id. at *2. Arendi’s complaint includes the same allegations, identifying exemplary products with
`“information handling technology” that infringe specified claims. E.g., D.I. 89-1, at ¶¶ 5, 18–19.
`Moreover, the complaint alone need not satisfy Twombly/Iqbal; rather, the complaint is
`read in conjunction with the plaintiff’s disclosure of accused products. E.g., IP Commc’n
`Solutions, LLC v. Viber Media (USA) Inc., No. 16-134-GMS, 2017 WL 1312942, at *2 (D. Del.
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`Case 1:13-cv-00919-LPS Document 92 Filed 12/03/18 Page 2 of 3 PageID #: 1099
`The Honorable Leonard P. Stark
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`Page 2
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`Apr. 5, 2017). Google complains that Arendi did not adequately identify accused products and
`applications in its complaint; yet, Google fails to note that Arendi served its Rule 4(a)
`Supplemental Disclosure of Accused Products on November 12, 2018. Ex. A.
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`Finally, in response to Google’s concerns, Arendi proposed additions to its complaint.
`Ex. B. Google accepted neither Arendi’s proposal nor Arendi’s invitation to suggest alternative
`language. Ex. C. Should this Court find Arendi’s amendments futile as currently drafted, Arendi
`would request leave to file a revised amended complaint. Valinge Innovation AB v. Halstead
`New England Corp., No. 16-1082-LPS-CJB, 2017 WL 5196379, at *4 (D. Del. Nov. 9, 2017).
`Arendi’s proposed amendments are consistent with the stipulated Scheduling Order, and
`Arendi made no commitment to forgo any of its proposed amendments. Google advances
`curious readings of an email from Arendi’s counsel (Ex. D) and a footnote of the Scheduling
`Order to accuse Arendi of violating a commitment to limit amendment. The email introduced a
`list of accused instrumentalities by stating, “The list below is provisional for what we intend to
`put in supplemental charts . . . .” Ex. D. It then listed claims that Arendi “intend[s] to chart.” Id.
`Far from a binding commitment to limit amendment, the email emphasized the provisional
`character of the list. Moreover, the email referenced claim charts—not the amended complaint.
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`Google further misconstrues the Scheduling Order. Google writes, “Arendi agreed that it
`would not seek to add any previously unasserted patent claims other than those of the ’993 patent
`that it had specifically ‘identified’ to Google (and Yahoo!) prior to the Stipulation.” D.I. 90 at 4
`(quoting D.I. 84 at 4 n.3). Yet, as just noted, the email did not identify claims for the amendment.
`The Scheduling Order also says nothing about previously identified claims:
`This deadline applies only to Arendi’s filing of motions for leave to amend its
`Complaints (1) to identify the correct corporate defendants . . . ; and (2) to assert new
`patents and claims against Yahoo! and Google. . . . Other than these identified
`amendments . . . , Arendi has agreed to seek no further amendment . . . .
`D.I. 84 at 4 n.3. The “identified amendments” are the two classes of amendments enumerated:
`the correction of corporate parties and “new patents and claims against Yahoo! and Google.”
`Nowhere is Arendi limited to asserting specified patents or claims.
`Arendi’s proposed amendments are consistent with the Joint Stipulation to Stay. Nothing in
`the Joint Stipulation prohibits Arendi’s amendment; nor, despite Google’s contentions, would
`amendment “defeat the entire purpose of the stay.” D.I. 90 at 5. Even after amendment, the stay
`will have “simplif[ied] the issues for trial.” D.I. 35 at 5. The parties will not litigate the validity
`of patent claims previously asserted against Google and reviewed by the PTAB. See D.I. 35 at 4.
`Moreover, the PTAB’s invalidation of several of Arendi’s patent claims has eliminated certain
`infringement claims that Arendi may assert (and must prove) against Google.
`Contrary to Google’s suggestion, the Stipulation envisions the possibility of additional
`infringement claims: Google agreed only to be bound by final PTAB decisions concerning
`“claims asserted against [it] in [Arendi’s] Disclosures Pursuant to the Delaware Default Standard
`on Discovery Rule 4(c).” D.I. 35 at 4. That limitation would have been unnecessary were Arendi
`unable to revise the scope of its suit. Likewise, the Stipulation did not envision that all invalidity
`contentions would terminate with the stay; Google remained free to challenge claims’ validity
`under certain circumstances. E.g., D.I. 35 at 4, 6. Thus, Arendi’s addition of claims does not alter
`the dimensions of the suit. Arendi respectfully requests that the Court grant it leave to amend.
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`Case 1:13-cv-00919-LPS Document 92 Filed 12/03/18 Page 3 of 3 PageID #: 1100
`The Honorable Leonard P. Stark
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`Page 3
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`Respectfully,
`/s/ Eve H. Ormerod
`Eve H. Ormerod (No. 5369)
`Enclosures
`cc:
`Clerk of Court (via CM/ECF)
`All Counsel of Record (via CM/ECF)
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