Case 1:19-cv-01365-MN Document 11 Filed 10/18/19 Page 1 of 18 PageID #: 1028
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Plaintiff,
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`Defendant.
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`C.A. No. 19-1365-MN
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`SIPCO, LLC,
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`v.
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`ABB INC.,
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`DEFENDANT’S OPENING BRIEF IN SUPPORT OF ITS
`MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
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`BARNES & THORNBURG LLP
`Chad S.C. Stover (No. 4919)
`1000 N. West Street, Suite 1500
`Wilmington, DE 19801
`Telephone: (302) 300-3474
`Facsimile: (302) 300-3456
`Chad.Stover@btlaw.com
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`Paul B. Hunt (admitted pro hac vice)
`Kevin T. McCusker (admitted pro hac vice)
`11 South Meridian Street
`Indianapolis, IN 46204
`Telephone: (317) 231-1313
`Facsimile: (317) 231-7433
`Paul.Hunt@btlaw.com
`Kevin.McCusker@btlaw.com
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`Attorneys for Defendant ABB Inc.
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`Case 1:19-cv-01365-MN Document 11 Filed 10/18/19 Page 2 of 18 PageID #: 1029
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`TABLE OF CONTENTS
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`NATURE AND STAGE OF PROCEEDING ................................................................................ 1
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`SUMMARY OF THE ARGUMENT AND BACKGROUND ...................................................... 1
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`ARGUMENT .................................................................................................................................. 2
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` Direct Infringement ............................................................................................................. 2
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`A. Legal Standards .......................................................................................................... 2
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`B. SIPCO Fails to State a Clear and Consistent Claim of Direct Infringement ............. 3
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`i.
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`Failure to Identify WirelessHART Systems ..................................................... 4
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`ii. Specific individual components ........................................................................ 6
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`iii. Failure to Identify Additional “components” ................................................... 7
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`Indirect Infringement .......................................................................................................... 8
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`A. Legal Standards .......................................................................................................... 8
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`B. SIPCO Fails to State a Claim of Indirect Infringement ............................................. 9
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`i. Counts I-V ......................................................................................................... 9
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`ii. Count VI............................................................................................................ 9
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`Infringement under the Doctrine of Equivalents .......................................................... 10
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`A. Legal Standards ........................................................................................................ 10
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` Willful Infringement ..................................................................................................... 12
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`A. Legal Standards ........................................................................................................ 12
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`B. SIPCO Fails to Allege Facts Stating a Claim of Willful Infringement.................... 12
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`CONCLUSION AND PRECISE RELIEF SOUGHT .................................................................. 13
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`i
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`Case 1:19-cv-01365-MN Document 11 Filed 10/18/19 Page 3 of 18 PageID #: 1030
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`
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`Cases
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`TABLE OF AUTHORITIES
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`Page(s)
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`ACCO Brands, Inc. v. ABA Locks Mfrs. Co.,
`501 F.3d 1307 (Fed. Cir. 2007)..............................................................................................8, 9
`
`Addiction and Detoxification Institute LLC. v. Carpenter,
`620 Fed.Appx. 934 (Fed. Cir. 2015) ......................................................................................2, 6
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ......................................................................................................... passim
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`Halo Elecs., Inc. v. Pulse Elecs., Inc.,
`136 S. Ct. 1923 (2016) .............................................................................................................12
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`Horatio Washington Depot Tech. LLC v. TOLMAR, Inc.,
`2018 WL 5669168 (D. Del. Nov. 1, 2018) ....................................................................2, 3, 6, 8
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`Iqbal. Bell Atlantic Corp. v. Twombly,
`550 U.S. 544 (2007) .........................................................................................................1, 2, 13
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`Macronix Int’l Co. v. Spansion Inc.
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`4 F. Supp. 3d 797, 804 (E.D. Va. 2014) ............................................................................11, 12
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`Midwest Athletics & Sports All. LLC v. Xerox Corp.
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`2018 WL 1400426, at *4 (D. Neb. Mar. 20, 2018)............................................................11, 12
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`Nalco Co. v. Chem-Mod, LLC,
`883 F.3d 1337 (Fed. Cir. 2018)..........................................................................................10, 11
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`SIPCO, LLC v. Streetline, Inc.,
`230 F. Supp. 3d 351 (D. Del. 2017) ...................................................................................3, 4, 8
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`Välinge Innovation AB v. Halstead New England Corp.,
`2018 WL 2411218 (D. Del. May 29, 2018) .............................................................................12
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`Vita-Mix Corp. v. Basic Holding, Inc.,
`581 F.3d 1317 (Fed. Cir. 2009)..................................................................................................9
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`Statutes
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`35 U.S.C. § 271 (2019) ....................................................................................................................8
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`35 U.S.C. § 271(b) ...........................................................................................................................8
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`35 U.S.C. § 271(c) .....................................................................................................................8, 10
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`ii
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`Case 1:19-cv-01365-MN Document 11 Filed 10/18/19 Page 4 of 18 PageID #: 1031
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`Other Authorities
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`Fed. R. Civ. P. 8(a)(2) ......................................................................................................................2
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`Fed. R. Civ. P. 12(b)(6)................................................................................................................1, 2
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`iii
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`Case 1:19-cv-01365-MN Document 11 Filed 10/18/19 Page 5 of 18 PageID #: 1032
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`Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant ABB Inc.
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`(“ABB”) moves the Court to dismiss the First Amended Complaint for Patent Infringement (D.I.
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`9) (“Complaint”) for failure to state a claim upon which relief may be granted.
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`NATURE AND STAGE OF PROCEEDING
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`Plaintiff SIPCO, LLC, (“SIPCO”) filed its First Amended Complaint for Patent
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`Infringement against ABB on September 25, 2019. (D.I. 9) The deadline to answer or otherwise
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`respond was extended to October 18, 2019. (D.I. 7, motion granted on September 25, 2019)
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`ABB now moves to dismiss the Complaint for failure to state a claim upon which relief may be
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`granted and submits this brief in support.
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`SUMMARY OF THE ARGUMENT AND BACKGROUND
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`SIPCO’s Amended Complaint fails to provide ABB fair notice of the allegations against
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`it as required by Twombly and Iqbal. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007);
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`Ashcroft v. Iqbal, 556 U.S. 662 (2009). SIPCO alleges that ABB infringes six of SIPCO’s
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`patents related to certain wireless network systems and devices that implement the
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`WirelessHART standard. However, the accused products are described inconsistently and
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`without adequate precision. Many of the claims, such as most of the claims for indirect
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`infringement and all of the claims under the doctrine of equivalents, consist of nothing more than
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`legally deficient, threadbare allegations of patent infringement. Despite claiming that it is
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`entitled to relief for indirect infringement, SIPCO fails to make even the barest assertion that
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`ABB has committed any act of indirect infringement for Counts I-V. (D.I. 9, ¶ A)
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`As with SIPCO’s claim of indirect infringement, SIPCO’s claim of infringement under
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`the doctrine of equivalents and claim of willful infringement are woefully deficient. The
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`pleading contains only the most threadbare allegations that are made without any of the
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`necessary factual statements sufficient to state a claim.
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`1
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`Case 1:19-cv-01365-MN Document 11 Filed 10/18/19 Page 6 of 18 PageID #: 1033
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`SIPCO fails to provide a factual basis to create a plausible inference that SIPCO is
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`entitled to relief for each of its claims. This Court should grant this motion to dismiss.
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`ARGUMENT
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`Direct Infringement
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`A. Legal Standards
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`The Federal Rules of Civil Procedure require a complaint to contain “a short and plain
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`statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In
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`turn, the Federal Rules permit a district court to dismiss a claim for “failure to state a claim upon
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`which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal is proper where the complaint
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`does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is
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`plausible on its face.” Iqbal, 556 U.S. at 678. In other words, “[w]hile legal conclusions can
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`provide the framework of a complaint, they must be supported by factual allegations.” Id. at
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`679.
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`A plaintiff must allege facts – not conclusions – sufficient to establish a plausible case for
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`relief and allow a court to “draw the reasonable inference that the defendant is liable for the
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`misconducted alleged.” Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555-56. A complaint must
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`“give the defendant fair notice of what the ... claim is and the grounds upon which it rests.”
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`Twombly, 550 U.S. at 555 (citation omitted) (internal quotation marks omitted). At a minimum,
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`a complaint must include “some allegation of specific services or products of the defendants
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`which are being accused.” Addiction and Detoxification Institute LLC. v. Carpenter, 620
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`Fed.Appx. 934, 937 (Fed. Cir. 2015) (emphasis added).
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`This standard was recently explained by this Court in Horatio Washington Depot Tech.
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`LLC v. TOLMAR, Inc., 2018 WL 5669168 (D. Del. Nov. 1, 2018). In Horatio Washington, the
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`complaint identified how certain features of the accused product corresponded to some of the
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`2
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`patent claim elements. Id. at *11. However, the complaint was silent as to how the remaining
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`claim elements were infringed. Id. at *12. This Court noted “Plaintiff has not pleaded facts
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`relating to these claim limitations, sufficient to explain why it is plausible that Defendants’
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`products/acts satisfy those elements of the claims….. Plaintiffs must have had its reasons for
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`thinking that Defendants practiced these limitations….. It should have just pleaded whatever
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`facts it had relating to those reasons.” Id. This Court also rejected the notion that the
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`Defendants, and the Court, could “otherwise figure out” how the accused product “necessarily
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`implicates those limitations.” Id.
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`SIPCO is well aware of the Twombly/Iqbal standard, as this Court has previously held
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`that SIPCO has failed to state a plausible claim of patent infringement. SIPCO, LLC v.
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`Streetline, Inc., 230 F. Supp. 3d 351 (D. Del. 2017). In Streetline, this Court noted that SIPCO’s
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`complaint “contain[ed] no attempt to connect anything in the patent claims to anything about any
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`of the accused products.” Id. at 353. Rather, the complaint merely made two factual allegations:
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`SIPCO owns some products, and the defendant sells some products. Id. The complaint further
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`included a legal allegation, that the sale of the identified products infringes SIPCO’s patents. Id.
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`“This is insufficient to plausibly allege patent infringement.” Id.
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`B. SIPCO Fails to State a Clear and Consistent Claim of Direct Infringement
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`In the Amended Complaint, SIPCO goes to great lengths to avoid actually identifying,
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`with any specificity, what products are at issue. In Paragraph 19, the Amended Complaint states
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`that the “Accused Instrumentalities are the ABB WirelessHART Systems,” followed by a
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`diagram of several components, most of which are not labeled or identified. (D.I. 9, ¶ 19) The
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`sentence continues: “and the accused components thereof, including the following:” (Id.) What
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`follows is a very specific identification of 3 types of products: a ‘temperature
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`3
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`sensor/transmitter,” a “pressure sensor/transmitter,” and a “vibration and temperature sensor
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`WiMon 100.” (Id.) Also in this listing of “components” is the statement “Gateways associated
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`with two or more of the above components.” (Id.) Last in the listing of “components” is “other
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`supporting components associated with systems that include two or more of the components”
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`listed above. (Id.)
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`The Amended Complaint does not identify, with any specificity, what components are
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`part of the “ABB WirelessHART Systems.” The Amended Complaint literally states that each
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`of the “components” is also, independently, an “Accused Instrumentality” but there are no facts
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`provided – no comparison to the claims – that any of these “components,” let alone all of them,
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`that could support a claim of infringement. (Id.)
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`i.
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`Failure to Identify WirelessHART Systems
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`SIPCO fails to adequately identify which ABB “systems” are alleged to infringe its
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`patents and, therefore, fails to provide ABB adequate notice of infringement. SIPCO generally
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`alleges in the Complaint that the “Accused Instrumentalities” are the “[A]BB WirelessHART
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`Systems” and “the components thereof.” (Id.) The only explanation in the Complaint of what an
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`“[A]BB WirelessHART System” is consists of a single picture with no supporting description.
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`(Id.) In addition to a “WirelessHART Gateway” and several “WirelessHART Devices,” the
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`picture includes a “System Workplace,” a “Control Room,” and an “AC 800M Controller.” (Id.)
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`The Complaint further identifies several individual components but does not tie them together to
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`any coherent definition or description of what a system is. Is SIPCO alleging that ABB sells
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`“Control Rooms” that infringe its patents? Is the “AC 800M Controller” alleged to be a part of
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`any system that infringes a patent? What are the minimum components that could form an
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`allegedly infringing “system?” Due to the lack of description in the Complaint ABB cannot
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`4
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`discern what is alleged to be the “[A]BB WirelessHART System” or how that system infringes
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`any claim.
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`The exhibits – although certainly lengthy - actually provide no insight into what the
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`alleged infringing systems are. For example, Exhibit B purports to be a claim chart for the ’893
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`patent. (D.I. 9, Ex. B) The Exhibit states that the ’893 patent is asserted “against each of the
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`ABB WirelessHART network devices and systems, including but not limited to the following
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`products:” (Id., at p. 1)
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`What follows are several diagrams, many without labels or identifiers, depicting any
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`number of “components.” The diagrams include many components not identified in the
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`Complaint, such as an “S800,” “S900,” “Panel 800,” “Extended Operator Workplace,”
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`“Collaboration Table,” “Base System Servers,” “Protection & Control IED,” “Motor Controller,”
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`“Variable Speed Driver,” “LV Switchgear,” “S800 I/O,” “S900I/O,” “AC800M High Integrity
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`Controller,” “Fire & Gas,” “Shut-down,” “ABB and 3rd party PLC & DCS,” “Other PLC,”
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`“Router/Firewall,” “DMZ MI Servers,” etc. (Id., at p. 10) Each of exhibits B, D, F, H, J, and L
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`includes an identical submission of these diagrams.
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`What follows these diagrams is a chart with the language of claim 1 of the ‘893 patent,
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`and a statement of “ABB’s Infringement.” (Id., at p. 11) For the preamble, the only reference to
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`any ABB product is the WiMon 100. (Id.) This citation is particularly peculiar, as the Amended
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`Complaint expressly states that the WiMon 100 has already been licensed to ABB, and the
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`Amended Complaint further states that the licensed products are “expressly excluded from this
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`action.” (D.I. 9, ¶ 13) For the second element of the claim, the chart fails to identify any ABB
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`product. (D.I. 9, Ex. B, at pp 12-16) For the third claim element, the chart identifies the ABB
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`AWIN GW100 product. (Id., at p. 17) For the fourth claim element, the chart again fails to
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`5
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`mention any ABB component. (Id., at pp. 20-29) For the fifth claim element, the chart states the
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`“ABB system comprises a controller” but does not describe where one could find such a
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`controller in the “system.” (Id., at p. 29) For the last claim element, the chart again fails to
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`identify any ABB product. (Id., at pp. 30-31)
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`In sum, although the charts contain many pages, there is almost nothing that ties the
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`specific elements of the claims to any ABB “system.” There is certainly no mention of the
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`dozens of “components” depicted in the diagrams, and ABB cannot tell if these are asserted to be
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`infringing products.
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`In short, ABB simply has no way of knowing what is and is not included as part of a
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`“WirelessHART System” that is alleged to infringe SIPCO’s patents. SIPCO fails to adequately
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`define what a “WirelessHART System” is and so did not include “some allegation of specific
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`services or products of the defendants which are being accused.” Addiction, 620 Fed.Appx. at
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`937 (emphasis added). It is not up to ABB, or the Court, to “otherwise figure out on its own why
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`it is” that the ill-defined “systems” infringe any claim. Horatio Washington, 2018 WL 5669168
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`at *11.
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`ii.
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`Specific individual components
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`SIPCO identifies three specific components in its Amended Complaint: (1) temperature
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`sensors/transmitters, (2) pressure sensors/transmitters, and (3) vibration and temperature sensor
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`WiMon100. (D.I. 9, ¶ 19) While these three components are certainly identified with
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`specificity, there are simply no facts supporting the assertion that each of these three products
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`infringe all of the asserted patents.
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`None of the claim charts explains how any one of these products could be said to satisfy
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`each element of at least one claim of the asserted patents. Some of the charts identify these
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`6
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`products as satisfying some—but not all—of the elements of some claims. For other claims,
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`these three products are not mentioned at all.
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`For the third listed component, the WiMon 100, the Amended Complaint expressly
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`excludes this product from the case. As noted above, the Amended Complaint acknowledges
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`that the WiMon 100 was licensed by SIPCO to ABB. (Id.) Further, in Paragraph 13 of the
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`Amended Complaint, SIPCO acknowledges that previously licensed products are “expressly
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`excluded from this action.” (Id., ¶ 13) Thus, even if the charts attached to the Amended
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`Complaint explained how the WiMon 100 product corresponds to all of the elements of any
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`claim of any patent (which they do not), such a claim would be expressly contradicted by the
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`allegations in the Amended Complaint.
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`iii.
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`Failure to Identify Additional “components”
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`In Paragraph 19, the Amended Complaint lists “Gateways associated with two or more of
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`the above components.” (Id., ¶ 19) There is, however, no clarification or explanation of how a
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`gateway is “associated” with two other components, or any identification of such an association
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`in an ABB product.
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`As for the “gateway,” the only ABB product identified is the AWIN GW 100. (Id.) Yet
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`neither the Amended Complaint nor the voluminous charts attempt to explain how the AWIN
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`GW 100 meets all the elements of any claim of the asserted patents.
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`Last, Paragraph 19 of the Amended Complaint refers to “other supporting components”
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`that are “associated” with some undefined “systems.” (Id.) The Amended Complaint provides
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`no guidance, however, as to what these “other components” might be, or how to know when they
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`are “associated” with some “system.”
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`7
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`As noted by this Court in Streetline, a bare factual allegation that a defendant sells a
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`product coupled with a bare legal allegation that the product infringes a patent “is insufficient to
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`plausibly allege patent infringement.” Streetline, 230 F. Supp. 3d at 353.
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`If SIPCO “had its reasons for thinking” that there are other products that are infringing or
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`are critical components of infringing systems, SIPCO “should have just pleaded whatever facts it
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`had relating to those reasons.” Horatio Washington, 2018 WL 5669168 at *11. Indeed, the fact
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`that SIPCO does identify some specific components suggests that the catchall allegation of
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`infringement by “other supporting components” is unnecessary and should be dismissed.
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`The Amended Complaint should be dismissed because SIPCO fails to identify, with any
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`reasonable specificity, what products are the “Accused Instrumentalities.” For the three products
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`that are specifically identified, the Amended Complaint – even with the voluminous charts – fails
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`to connect features from the specific components to all of the elements of any claim. Although
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`SIPCO attempts to hide its pleading deficiencies through volume, there is simply no specific
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`indication of what SIPCO alleges to constitute infringement.
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`Indirect Infringement
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`A. Legal Standards
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`A patent can be indirectly infringed under 35 U.S.C. § 271(b) through induced
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`infringement or under § 271(c) through contributory infringement. 35 U.S.C. § 271 (2019). To
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`succeed on an induced infringement claim under § 271(b), a plaintiff must not only prove direct
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`infringement by a third party, but also that the defendant “knowingly induced infringement and
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`possessed specific intent to encourage [the third party’s] infringement.” ACCO Brands, Inc. v.
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`ABA Locks Mfrs. Co., 501 F.3d 1307, 1312 (Fed. Cir. 2007). To show contributory infringement
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`under § 271(c), a plaintiff must show that a defendant sells, offers to sell, or imports a
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`8
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`component of a patented invention that is “especially made or especially adapted for use in an
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`infringement of such patent” and that is not “suitable for substantial noninfringing use.” 35
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`U.S.C. § 271(c). “[N]on-infringing uses are substantial when they are not unusual, far-fetched,
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`illusory, impractical, occasional, aberrant, or experimental.” Vita-Mix Corp. v. Basic Holding,
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`Inc., 581 F.3d 1317, 1327 (Fed. Cir. 2009).
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`B. SIPCO Fails to State a Claim of Indirect Infringement
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`i. Counts I-V
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`SIPCO does not allege any fact in the Complaint that would support a finding of indirect
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`infringement for Counts I-V. The required elements of a claim of induced or contributory
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`infringement are wholly absent from those counts of the Complaint. The only reference
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`anywhere in the Complaint to indirect infringement for Counts I-V is in the prayer for relief.
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`Given the lack of any relevant facts in the Complaint, SIPCO has failed to plead “factual content
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`[that] allows the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged.” Iqbal, 556 U.S. at 678. For at least that reason, the claim of indirect
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`infringement for Counts I-V should be dismissed.
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`ii. Count VI
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`SIPCO fails to adequately allege facts that would support a finding of indirect
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`infringement of the ’059 patent, found in Count VI. In fact, SIPCO fails to even allege adequate
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`legal conclusions that would support a finding of induced infringement. SIPCO states the legal
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`conclusion that ABB has induced infringement “by selling Accused Instrumentalities to their
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`customers for use in end-user systems in a manner that infringes” the ’059 patent. (D.I. 9, ¶ 65)
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`Even assuming that were true, that would be insufficient to establish induced infringement,
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`which would require that ABB “possessed specific intent to encourage [the third party’s]
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`9
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`Case 1:19-cv-01365-MN Document 11 Filed 10/18/19 Page 14 of 18 PageID #: 1041
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`infringement.” ACCO Brands, 501 F.3d at 1312. SIPCO fails to allege any intent on the part of
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`ABB, much less allege any facts that would support a finding of the required intent. As such,
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`SIPCO fails to even allege the legal conclusions required for a finding of induced infringement
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`of the ’059 patent.
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`SIPCO similarly fails to adequately allege contributory infringement. SIPCO fails to
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`allege any facts supporting its conclusion that “[t]here is no substantial use for the Accused
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`Instrumentalities that does not infringe Claim 7 of the ’059 patent.” (D.I. 9, ¶ 65) SIPCO
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`offered no analysis as to why the Accused Instrumentalities do not have substantial non-
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`infringing use. SIPCO does not make any statement identifying a particular product and
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`explaining how it could only be used in practicing the method of claim 7. Even if Exhibit L
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`could be considered to make such an allegation, that allegation would fail because Exhibit L does
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`not provide any explanation for the missing feature of a “transmitter electrically interfaced with a
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`sensor and an actuator.” Id. at Ex. L, pp. 11-12 (emphasis added). SIPCO, therefore, fails to
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`allege facts to support a finding that any of the Accused Instrumentalities are not “suitable for
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`substantial noninfringing use.” 35 U.S.C. § 271(c) (2019).
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`For at least those reasons, SIPCO fails to adequately allege induced or contributory
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`infringement of the ’059 patent. As such, the indirect infringement claims of the ’059 patent
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`should be dismissed.
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`Infringement under the Doctrine of Equivalents
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`A. Legal Standards
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`“A finding of infringement under the doctrine of equivalents requires a showing that the
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`difference between the claimed invention and the accused product or method was insubstantial or
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`that the accused product or method performs the substantially same function in substantially the
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`10
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`Case 1:19-cv-01365-MN Document 11 Filed 10/18/19 Page 15 of 18 PageID #: 1042
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`same way with substantially the same result as each claim limitation of the patented product or
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`method.” Nalco Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1354 (Fed. Cir. 2018) (internal quotation
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`omitted). “An analysis of the role played by each element in the context of the specific patent
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`claim will thus inform the inquiry as to whether a substitute element matches the function, way,
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`and result of the claimed element.” Id. (internal quotation omitted). The Nalco Court found these
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`standards met where the pleading “explicitly incorporated detailed infringement contentions
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`explaining its doctrine of equivalents claim.” Id.
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`The district court in Macronix Int'l Co. v. Spansion Inc., however, reached the opposite
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`conclusion where a complaint merely asserted liability under the doctrine of equivalents “in a bare
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`bones, conclusory form.” 4 F. Supp. 3d 797, 804 (E.D. Va. 2014). Since the complaint failed to
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`identify which particular claim elements were alleged to be present under the doctrine, the court
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`noted that it was “not even clear . . . what is alleged to be literally infringed and what is alleged to
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`be infringed by equivalents.” Id. As such, the court dismissed the infringement claims. Id.
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`In Midwest Athletics & Sports All. LLC v. Xerox Corp., another district court recently
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`dismissed a party’s claims of infringement under the doctrine of equivalents where the complaint’s
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`“explication of this theory [was] limited to one conclusory sentence repeated for each count.” 2018
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`WL 1400426, at *4 (D. Neb. Mar. 20, 2018). The court explained:
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`The technical and factual nature of an infringement claim under the
`doctrine of equivalents requires some level of specificity beyond a
`one-sentence accusation. If nothing else, plausibility requires
`sufficient allegations to allow the Court to infer an accused product
`performs substantially the same function in substantially the same
`way to obtain the same result as a patent-in-suit. Bare infringement
`allegations, unsupported
`legal conclusions, and
`formulaic
`recitations of the elements of infringement are insufficient.
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`Id. (internal quotations and citations omitted).
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`11
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`Case 1:19-cv-01365-MN Document 11 Filed 10/18/19 Page 16 of 18 PageID #: 1043
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`A. SIPCO Fails to Allege Facts Supporting Infringement under the Doctrine of Equivalents
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`SIPCO asserts that ABB has infringed the six asserted patents “literally and/or under the
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`doctrine of equivalents.” (D.I. 9, ¶¶ 28, 38, 42, 49, 56, and 63) Like the claims found lacking in
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`Macronix and Midwest Athletics, SIPCO’s claims of infringement under the doctrine of
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`equivalents are limited to one conclusory sentence repeated for each count. The Complaint
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`provides no identification whatsoever of which claim elements are purportedly met under this
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`doctrine (as opposed to literally), how the Accused Instrumentalities identified in ¶ 19 of the
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`Complaint are insubstantially different from the claim language for each such element, or how the
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`Accused Instrumentalities perform substantially the same function in substantially the same way
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`to obtain the same result for each such element. SIPCO fails to provide factual support for their
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`“naked assertions” of infringement under the doctrine of equivalents, which should be dismissed.
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`Iqbal, 556 U.S. at 678.
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` Willful Infringement
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`A. Legal Standards
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`An award for enhanced damages based on willful infringement is “reserved for egregious
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`cases.” Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1934 (2016). “[I]n order to
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`sufficiently plead willful infringement, a plaintiff must allege facts plausibly showing that as of
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`the time of the claim’s filing, the accused infringer: (1) knew of the patent-in-suit; (2) after
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`acquiring that knowledge, it infringed the patent; and (3) in doing so, it knew, or should have
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`known, that its conduct amounted to infringement of the patent.” Välinge Innovation AB v.
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`Halstead New England Corp., 2018 WL 2411218, at *13 (D. Del. May 29, 2018).
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`B. SIPCO Fails to Allege Facts Stating a Claim of Willful Infringement
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`SIPCO does not allege any facts that ABB knew or should have known that ABB was
`
`infringing any of SIPCO’s patents. Rather, SIPCO merely states the legal conclusion that there
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`12
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`Case 1:19-cv-01365-MN Document 11 Filed 10/18/19 Page 17 of 18 PageID #: 1044
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`
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`were “charts demonstrating that Defendant was infringing” certain SIPCO patents. (D.I. 9, ¶ 15)
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`SIPCO repeats this legal conclusion several times in the Complaint. (D.I. 9, ¶¶ 17, 37, 43) But
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`stating the legal conclusion does not meet the Twombly/Iqbal standard that legal conclusions
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`“must be supported by factual allegations.” Iqbal, 556 U.S. at 679.
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`First, it is apparent that the charts only relate to what SIPCO believed or alleged; they do
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`not, and cannot, be evidence of what ABB knew or believed. Further, SIPCO alleges no facts
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`explaining how the charts demonstrate infringement. SIPCO alleges no facts that ABB knew
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`that any specific product infringed any SIPCO patent. A mere statement that ABB products were
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`identified (without actually identifying any ABB product) coupled with the legal conclusion that
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`there were “claim charts demonstrating ABB’s infringement” does not provide sufficient factual
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`allegations to support a finding of willful infringement. (D.I. 9, ¶ 17)
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`CONCLUSION AND PRECISE RELIEF SOUGHT
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`1.
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`SIPCO fails to adequately provide ABB with “fair notice of what the ... claim is
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`and the grounds upon which it rests” by failing to adequately state what “Accused
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`Instrumentalities” ABB is alleged to have made, used, or sold. Twombly, 550 U.S. at 555
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`(citation omitted) (internal quotation marks omitted).
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`2.
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`Because SIPCO explicitly excluded the only identified WiMon100 model from
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`this case, all allegations involving the WiMon100 should be dismissed.
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`3.
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`SIP