Case 1:15-cv-00228-RGA Document 16 Filed 06/01/15 Page 1 of 10 PageID #: 973
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ACTIVISION|BLIZZARD, INC.’S REPLY BRIEF IN SUPPORT OF ITS
`MOTION TO DISMISS PLAINTIFF’S CLAIMS OF INDUCED INFRINGEMENT
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`Defendant.
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
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`Attorneys for Defendant
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`OF COUNSEL:
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`Michael A. Tomasulo
`David P. Enzminger
`Dae Hee Cho
`David K. Lin
`WINSTON & STRAWN LLP
`333 S. Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
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`Daniel K. Webb
`WINSTON & STRAWN LLP
`35 W. Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
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`June 1, 2015
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`C.A. No. 15-228 (RGA)
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`v.
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`ACTIVISION BLIZZARD, INC.
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`Case 1:15-cv-00228-RGA Document 16 Filed 06/01/15 Page 2 of 10 PageID #: 974
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`TABLE OF CONTENTS
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`Table of Authorities ............................................................................................................ ii
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`I.
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`II.
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`III.
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`IV.
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`Plaintiff’s Induced Infringement Claims All Fail Because The Complaint Does
`Not Identify Any Single Direct Infringer. ................................................................1
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`Plaintiff’s Unpleaded Hypotheticals Do Not Make Its Pleading Plausible. ............2
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`Plaintiff’s Pre-Filing Induced Infringement Claims Should Be Dismissed .............4
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`Conclusion. ..............................................................................................................6
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`-i-
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`Case 1:15-cv-00228-RGA Document 16 Filed 06/01/15 Page 3 of 10 PageID #: 975
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`TABLE OF AUTHORITIES
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`Cases
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`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...................................................................................................................3
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`Chalumeau Power Systems LLC v. Alcatel-Lucent,
`C.A. No. 11-1175 (RGA), 2012 WL 6968938 (D. Del. July 18, 2012) ................................ 4-5
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`Commil USA, LLC v. Cisco Systems, Inc.,
`575 U.S. _____, 2015 WL 2456617 (Mar. 26, 2015) ................................................................3
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`IpVenture Inc. v. Lenovo Group Ltd.,
`C.A. No. 11-588 (RGA), 2013 WL 126276 (D. Del. Jan. 8, 2013) ...........................................5
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`Limelight Networks, Inc. v. Akamai Technologies Inc,
`134 S.Ct. 2111 (2014) ................................................................................................................6
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`Rules and Statutes
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`35 U.S.C. § 271(b) ...........................................................................................................................6
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`-ii-
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`Case 1:15-cv-00228-RGA Document 16 Filed 06/01/15 Page 4 of 10 PageID #: 976
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`I.
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`Plaintiff’s Induced Infringement Claims Fail Because The Complaint Does
`Not Identify Any Single Direct Infringer.
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`Activision|Blizzard, Inc. (“Defendant” or “Activision”) moved to dismiss all of Plaintiff’s
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`induced infringement claims because the Amended Complaint failed to identify – even
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`generically – any single alleged direct infringer. Plaintiff’s opposition acknowledges that a claim
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`for induced infringement must identify at least one direct infringer and argues that the Amended
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`Complaint meets that requirement. According to Plaintiff’s Opposition (“Opp.”), D.I. 15 at 1-3,
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`the Amended Complaint alleges that Activision’s “customers, users and developers are each
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`single direct infringers.”
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`Plaintiff’s argument relies on selective short-quoting to assert that the Amended
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`Complaint alleges that “all the steps of the method claims are performed by either Defendant, its
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`customers, users or developers.” See Opp. at 2 (citing Amended Complaint ¶¶ 75, 106, 127).
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`When those allegations are read in full, the Amended Complaint does not allege that any of these
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`actors, standing alone, is a direct infringer or performs all of the steps of any method claim.
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`What those paragraphs actually allege is that Activision induces “others” to perform “one or
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`more” of the steps of the method claims and that “all of the steps of the method claims” are
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`performed by either “Defendant, its customers, users or developers” or “some combination
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`thereof”:
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`Defendant indirectly infringes… by instructing, directing and/or
`requiring others, including but not limited to, its customers, users
`and developers, to perform one or more of the steps of the method
`claims, either literally or under the doctrine of equivalents, of the
`[] Patent, where all the steps of the method claims are performed
`by either Defendant, its customers, users or developers, or some
`combination thereof.
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`(D.I. 7, ¶¶ 75, 106 and 127.) Plaintiff’s Opposition never addresses these allegations, but simply
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`ignores them to make unsupported arguments that the Amended Complaint alleges that a single
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`-1-
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`Case 1:15-cv-00228-RGA Document 16 Filed 06/01/15 Page 5 of 10 PageID #: 977
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`user, a single customer or single developer, standing alone, performs all of the steps of the
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`asserted method claims. The Amended Complaint makes no such allegations, and the induced
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`infringement claims should all be dismissed.
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`II.
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`Plaintiff’s Unpleaded Hypotheticals Do Not Make Its Pleading Plausible.
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`Even if the Court were to accept Plaintiff’s argument that the Amended Complaint allege
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`underlying direct infringement by a single “user,” “developer” or “customer,” Plaintiff’s
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`inducement claims still fail because the Amended Complaint lacks sufficient factual allegations
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`to make such a claim plausible. The opposition’s reliance on unpleaded hypotheticals divorced
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`from the allegations of the Amended Complaint only underscores the defects of the Amended
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`Complaint.
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`In its opening brief, Activision demonstrated that each of the asserted method claims
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`facially appears to require more than one actor. (D.I. 12 (“Op. Br.”) at 7.) Activision also noted
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`that – in addition to its failure to identify any single, direct infringer – the Amended Complaint
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`does not plead facts explaining how any single actor allegedly performed all of the steps of any
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`of the asserted method claims. (Id. at 8.) Activision explained that the nature of the claims,
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`coupled with the “one or more of the steps” and “or some combination thereof” style of pleading,
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`confirms that the Amended Complaint fails to state a plausible claim or to provide notice of what
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`is in fact alleged to be the infringing conduct. (Id.)
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`In response to these arguments, Plaintiff does not deny that the claims require multiple
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`actors. Instead, Plaintiff departs from the facts pleaded in the Amended Complaint to assert
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`that unpleaded hypothetical facts could show a single “user,” “developer” or “customer” might
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`perform the roles of multiple actors and therefore perform all of the steps of an asserted method
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`claim. (Opp. at 4-5.) Plaintiff argues that direct infringement by a single entity such as “a
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`-2-
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`Case 1:15-cv-00228-RGA Document 16 Filed 06/01/15 Page 6 of 10 PageID #: 978
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`single customer household” or a “developer” is “facially plausible” because such a single entity
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`could theoretically perform the roles of the multiple actors. See Opp. at 4 (“a single customer
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`household … may have multiple computers running Activision’s game software and connecting
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`to each other using the infringing methods”; “developers are also likely to … play[] the accused
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`products’ multiplayer modes to ensure that the infringing methods are actually performed and
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`provide an efficient broadcasting of data.”). This argument fails for several reasons.
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`First, Plaintiff’s argument is not based on facts it actually pleaded in the Amended
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`Complaint. “A claim has facial plausibility when the plaintiff pleads factual content that allows
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`the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added). The Supreme Court’s
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`recent Commil USA decision confirms that a claim for inducement requires, in addition to proof
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`of infringing acts, proof the defendant knew of the patent and that “the defendant knew the acts
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`were infringing.” Commil USA, LLC v. Cisco Systems, Inc., 575 U.S. _____, 2015 WL 2456617,
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`at *7 (Mar. 26, 2015). Here, the Amended Complaint fails to identify what infringing acts
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`Activision induces a user, developer or customer to perform or how those acts infringe the
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`claims. The Amended Complaint fails to plead facts sufficient to create a plausible claim that
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`Activision is inducing acts it knows are infringing because the Amended Complaint does not
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`actually explain how the user, developer or customer could possibly infringe any of the asserted
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`multi-actor method claims. The facts as alleged, moreover, do not permit the Court to draw the
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`reasonable inference that Plaintiff’s unpleaded hypotheticals actually occur; and even if they did,
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`the unpleaded hypotheticals do not cure Plaintiff’s failure to allege facts setting forth how a user,
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`developer or customer is alleged to directly infringe any of the three asserted patents.
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`-3-
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`Case 1:15-cv-00228-RGA Document 16 Filed 06/01/15 Page 7 of 10 PageID #: 979
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`Second, the substance of the unpleaded hypotheticals does not actually address the issue
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`at hand. Plaintiff’s inducement counts involve three discrete patents, three separate accused
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`products, and, according to Plaintiff’s brief, three separate direct infringers (users, developers,
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`customers). Yet, Plaintiff’s one-paragraph, unpleaded hypotheticals do not identify any claim of
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`any patent or reference any specific accused product. Plaintiff’s induced infringement
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`allegations are implausible and should be dismissed.
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`III.
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`Plaintiff’s Pre-Filing Induced Infringement Claims Should Be Dismissed.
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`Activision also moved to dismiss Plaintiff’s claims for pre-filing induced infringement
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`because Plaintiff failed to plead any facts from which the Court could plausibly conclude that
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`Activision (1) knew of the patents, and (2) specifically intended others to infringe the patents,
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`before the filing of the original complaint. Op. Br. at 9-10. In its opposition, Plaintiff does not
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`even address the insufficiency of its pre-filing allegations. Rather, Plaintiff attempts to create a
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`straw-man argument that “Activision’s argument that it is entitled to dismissal of the entire
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`indirect infringement claims is wrong.” Opp. at 6 (emphasis added). Plaintiff then argues that
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`pleading Activision’s knowledge of the patents “as of the filing of this action” is sufficient to
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`state a “claim of post-filing induced infringement.” Opp. at 1 (emphasis added).
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`Plaintiffs’ argument misses the point. Plaintiff’s arguments and citations of cases are
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`directed to post-filing inducement allegations and simply do not apply to the inadequacy of its’
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`pre-filing inducement allegations. See Opp. at 5-7. To be sure, Activision seeks to dismiss the
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`entire inducement claim, as noted above. But Activision points out that even if some aspect of
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`Plaintiff’s induced infringement claims can survive the failure to identify a direct infringer,
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`Plaintiffs’ claims for pre-filing induced infringement should be dismissed for failing to
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`adequately plead Activision’s pre-filing knowledge and intent. As acknowledged by this Court,
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`it is entirely proper to dismiss pre-filing inducement claims for such failure. Chalumeau Power
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`-4-
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`Case 1:15-cv-00228-RGA Document 16 Filed 06/01/15 Page 8 of 10 PageID #: 980
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`Systems LLC v. Alcatel-Lucent, C.A. No. 11-1175 (RGA), 2012 WL 6968938, at *1 (D. Del.
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`July 18, 2012); IpVenture Inc. v. Lenovo Group Ltd., C.A. No. 11-588 (RGA), 2013 WL 126276,
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`at *2-3 (D. Del. Jan. 8, 2013).
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`Plaintiff also argues that Activision’s reliance on Chalumeau Power Systems is
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`inapposite because the complaint there “failed to provide any detail regarding the plaintiff’s
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`infringement theories,” while Plaintiff’s complaint “consists of 37 pages with nine counts, each
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`identifying specific accused products and infringing acts.” Opp. at 7. But notably absent from
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`Plaintiff’s opposition is any suggestion of where in these 37 pages one could find factual
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`allegations to support Plaintiff’s claims for pre-filing induced infringement. There are no such
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`allegations.
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`As to the sufficiency of pre-filing allegations, Chalumeau Power Systems is directly on
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`point. The critical issue for pre-filing allegations there was whether the complaint had made
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`“actual knowledge of the [] patent’s existence by the two moving defendants plausible,” and
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`whether “the defendants knew that the actions of others . . . constituted infringement.”
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`Chalumeau Power Systems, 2012 WL 6968938, at *1. Because the complaint lacked sufficient
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`allegations as to the defendants’ pre-filing knowledge and intent, the court dismissed
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`“allegations of indirect infringement prior to the filing of the complaint.” Id. The case for
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`dismissal is even stronger here because, as explained in Activision’s opening brief and
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`unrebutted by Plaintiff’s opposition, the Original and Amended Complaints are devoid of any
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`factual allegations whatsoever that (1) Activision knew of the ’147, ’069, or ’497 Patent and
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`(2) specifically intended others to infringe these patents, before Plaintiff served its original
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`complaint. Thus, Plaintiff’s claims for pre-filing induced infringement should be dismissed.
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`-5-
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`Case 1:15-cv-00228-RGA Document 16 Filed 06/01/15 Page 9 of 10 PageID #: 981
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`IV. Conclusion.
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`For the reasons set forth in its opening brief and herein, Activision respectfully requests
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`that this Court dismiss (1) Plaintiff’s claims of induced infringement under 35 U.S.C. § 271(b)
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`for failure to identify a single actor that is the actual direct infringer, as required by Limelight
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`Networks, Inc. v. Akamai Technologies Inc, 134 S.Ct. 2111 (2014), and (2) Plaintiff’s pre-filing
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`claims of induced infringement under 35 U.S.C. § 271(b).
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
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`/s/ Stephen J. Kraftschik
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`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
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`Attorneys for Defendant
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`-6-
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`OF COUNSEL:
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`Michael A. Tomasulo
`David Enzminger
`Daniel Cho
`David Lin
`WINSTON & STRAWN LLP
`333 South Grand Avenue
`Los Angeles, CA 90071-1543
`(310) 774-6486
`
`Daniel K. Webb
`WINSTON & STRAWN LLP
`35 W. Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
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`June 1, 2015
`9192656
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`Case 1:15-cv-00228-RGA Document 16 Filed 06/01/15 Page 10 of 10 PageID #: 982
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`CERTIFICATE OF SERVICE
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`I hereby certify that on June 1, 2015, I caused the foregoing to be electronically
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`filed with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
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`registered participants.
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`I further certify that I caused copies of the foregoing document to be served on
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`June 1, 2015, upon the following in the manner indicated:
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`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
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`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`/s/ Stephen J. Kraftschik
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`Stephen J. Kraftschik (#5623)
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`9192656
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`-1-