Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 1 of 26 PageID #: 1046
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`
`Civil Action No. 1:19-cv-01365-CFC
`
`
`
`
`
`SIPCO, LLC,
`
` Plaintiff,
`
` v.
`
`ABB INC.,
`
` Defendant.
`
`
`
`
`
`PLAINTIFFS’ RESPONSE TO DEFENDANT’S
`
`MOTION TO DISMISS UNDER RULE 12(b)(6) (D.I. 10, 11)
`
`
`
`
`
`Dated: October 30, 2019
`
`
`
`George Pazuniak DE (No. 478)
`Sean T. O’Kelly (DE No. 4349)
`O’Kelly Ernst & Joyce, LLC
`901 N. Market Street, Suite 1000
`Wilmington, Delaware 19801
`(302) 478-4230 / 778-4000
`(302) 295-2873 (facsimile)
`gp@del-iplaw.com
`sokelly@oeblegal.com
`
`
`
`
`
`

`

`Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 2 of 26 PageID #: 1047
`
`TABLE OF CONTENTS
`
`NATURE AND STAGE OF PROCEEDING ................................................................................ 1
`
`SUMMARY OF THE ARGUMENT AND FACTS ...................................................................... 1
`
`ARGUMENT .................................................................................................................................. 2
`
`I.
`
`SIPCO HAS ADEQUATELY PLED DIRECT INFRINGEMENT ...................................................... 2
`
`a) Legal Standard For Pleading Infringement .................................................................... 2
`
`b) One Claim of a Patent Is Enough ................................................................................... 3
`
`c) Sipco Has Adequately Identified the Accused Instrumentalities ..................................... 5
`
`1) ABB Has Not Demonstrated Public Access To The Demanded Information ............ 5
`
`2) Sipco Has Provided Fair Notice of Accused WirelessHART Systems ...................... 6
`
`3) Sipco Has Sufficiently Identified Individual Components ....................................... 11
`
`4) Gateways Are Adequately Pleaded ........................................................................... 11
`
`5) Additional Components ............................................................................................ 12
`
`6) WiMon 100 Is Not “Licensed to ABB” .................................................................... 12
`
`II. SIPCO PROPERLY PLED INDUCEMENT TO INFRINGE AND CONTRIBUTORY INFRINGEMENT . 13
`
`a) Counts I-V ..................................................................................................................... 13
`
`b) Count VI ........................................................................................................................ 13
`
`1)
`
`Inducement to Infringe the ‘059 Patent .................................................................... 14
`
`2) Contributory Infringement of the ‘059 Patent .......................................................... 15
`
`III. LITERALLY OR UNDER THE DOCTRINE OF EQUIVALENTS ................................................... 16
`
`IV. SIPCO HAS ADEQUATELY PLED WILLFULNESS .................................................................. 18
`
`CONCLUSION ............................................................................................................................. 20
`
`
`
`i
`
`

`

`Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 3 of 26 PageID #: 1048
`
`TABLE OF CITATIONS
`
`CASES
`
`3G Licensing, S.A. v. Blackberry Ltd.,
`
`2018 WL 4375091 (D. Del. 2018) ---------------------------------------------------------------------- 9
`
`3Shape A/S v. Align Tech., Inc.,
`
`2019 WL 1416466 (D. Del. 2019) --------------------------------------------------------- 2, 14, 16, 19
`
`ABB Turbo Sys. AG v. Turbousa, Inc.,
`
`774 F.3d 979 (Fed. Cir. 2014) -------------------------------------------------------------------------- 19
`
`ACCO Brands, Inc. v. ABA Locks Mfrs. Co.,
`
`501 F.3d 1307 (Fed. Cir. 2007) ------------------------------------------------------------------------ 14
`
`AgroFresh Inc. v. Hazel Techs., Inc.,
`
`2019 WL 1859296 (D. Del. 2019) --------------------------------------------------------------------- 17
`
`Align Tech., Inc. v. 3Shape A/S,
`
`339 F.Supp.3d 435 (D. Del. 2018) ---------------------------------------------------------------------- 4
`
`Ashcroft v. Iqbal,
`
`556 U.S. 662 (2009) ----------------------------------------------------------------------------------- 2, 3
`
`Bell Atlantic Corp. v. Twombly,
`
`550 U.S. 544 (2007) ----------------------------------------------------------------------------------- 2, 3
`
`BioMerieux, S.A. v. Hologic, Inc.,
`
`2018 WL 4603267 (D. Del. 2018) --------------------------------------------------------------- 4, 6, 15
`
`British Telecommunications PLC v. IAC/InterActiveCorp,
`
`381 F. Supp. 3d 293 (D. Del. 2019) -------------------------------------------------------------------- 5
`
`
`
`ii
`
`

`

`Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 4 of 26 PageID #: 1049
`
`CSL Behring, LLC v. Bayer Healthcare, LLC,
`
`2019 WL 4451368 (D.Del. 2019) ----------------------------------------------------------------------- 1
`
`Deere & Co. v. AGCO Corp.,
`
`2019 WL 668492 (D. Del. 2019) -------------------------------------------------------- 14, 15, 16, 18
`
`DermaFocus LLC v. Ulthera, Inc.,
`
`201 F. Supp. 3d 465 (D. Del. 2016) ----------------------------------------------------------------- 4, 6
`
`Disc Disease Sols. Inc. v. VGH Sols., Inc.,
`
`888 F.3d 1256 (Fed. Cir. 2018) ------------------------------------------------------------------ passim
`
`Election Sys. & Software, LLC v. Smartmatic USA Corp.,
`
`2019 WL 1040541 (D. Del. 2019) ------------------------------------------------------------------ 2, 19
`
`Fujitsu Ltd. v. Netgear Inc.,
`
`620 F.3d 1321 (Fed. Cir. 2010) ------------------------------------------------------------------------- 7
`
`Grober v. Mako Prod., Inc.,
`
`686 F.3d 1335 (Fed. Cir. 2012) ------------------------------------------------------------------------- 4
`
`Groove Digital, Inc. v. Jam City, Inc.,
`
`2019 WL 351254 (D.Del. 2019) ----------------------------------------------------------------------- 20
`
`Horatio Washington Depot Techs. LLC v. TOLMAR, Inc.,
`
`2018 WL 5669168 (D. Del. 2018), order corrected, 2018 WL 6168617 (D. Del. 2018) ------- 3
`
`Horatio Washington Depot Techs. LLC v. Tolmar, Inc.,
`
`2019 WL 127602 (D. Del. 2019) ----------------------------------------------------------------------- 3
`
`In re Bill of Lading Transmission & Processing Sys. Patent Litig.,
`
`681 F.3d 1323 (Fed. Cir. 2012) ------------------------------------------------------------------------ 14
`
`
`
`iii
`
`

`

`Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 5 of 26 PageID #: 1050
`
`IOENGINE, LLC v. PayPal Holdings, Inc.,
`
`2019 WL 330515 (D. Del. 2019) ----------------------------------------------------------------------- 2
`
`K-Tech Telecommunications, Inc. v. Time Warner Cable, Inc.,
`
`714 F.3d 1277 (Fed. Cir. 2013) ------------------------------------------------------------------------- 5
`
`Liqwd, Inc. v. L'Oreal USA, Inc.,
`
`2019 WL 1977367 (D. Del. 2019) ---------------------------------------------------------------------- 9
`
`Macronix Int'l Co. v. Spansion Inc.,
`
`4 F. Supp. 3d 797 (E.D. Va. 2014) -------------------------------------------------------------------- 17
`
`Mayer v. Belichick,
`
`605 F.3d 223 (3d Cir. 2010) ----------------------------------------------------------------------------- 1
`
`Midwest Athletics & Sports All. LLC v. Xerox Corp.,
`
`2018 WL 1400426 (D. Neb. 2018) -------------------------------------------------------------------- 17
`
`Morton Buildings, Inc. v. SWS Innovations, LLC,
`
`2018 WL 6651527 (C.D. Ill. 2018) --------------------------------------------------------------------- 5
`
`Nalco Co. v. Chem-Mod, LLC,
`
`883 F.3d 1337 (Fed.Cir. 2018) ---------------------------------------------------------------- 14, 15, 17
`
`Nash v. Akinbayo,
`
`2019 WL 4393159 (D.Del. 2019) ----------------------------------------------------------------------- 1
`
`Ricoh Co. v. Quanta Comput. Inc.,
`
`550 F.3d 1325 (Fed. Cir. 2008)) ----------------------------------------------------------------------- 14
`
`Shire ViroPharma Inc. v. CSL Behring LLC,
`
`2019 WL 354669 (D. Del. 2019) ---------------------------------------------------------------- 2, 4, 16
`
`
`
`iv
`
`

`

`Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 6 of 26 PageID #: 1051
`
`Sipco, LLC v. Streetline, Inc.,
`
`230 F. Supp. 3d 351 (D. Del. 2017) -------------------------------------------------------------------- 5
`
`Skinner v. Switzer,
`
`562 U.S. 521 (2011) ------------------------------------------------------------------------------------- 15
`
`Sun Pharm. Indus. Ltd. v. Saptalis Pharm., LLC,
`
`2019 WL 2549267 (D. Del. 2019) --------------------------------------------------------------------- 17
`
`Super Interconnect Techs. LLC v. Sony Corp.,
`
`2019 WL 4722677 (D. Del. 2019) ------------------------------------------------------------------- 3, 8
`
`Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
`
`551 U.S. 308 (2007) -------------------------------------------------------------------------------------- 1
`
`VLSI Tech. LLC v. Intel Corp.,
`
`2019 WL 1349468 (D. Del. 2019) --------------------------------------------------------------------- 18
`
`Warner–Jenkinson Co. v. Hilton Davis Chem. Co.,
`
`520 U.S. 17 (1997) --------------------------------------------------------------------------------------- 16
`
`Waters Corp. v. Agilent Techs. Inc.,
`
`2019 WL 4572834 (D. Del. 2019) ---------------------------------------------------------------------- 9
`
`RULES
`
`Fed.R.Civ.P. 12(b)(6) --------------------------------------------------------------------------------------- 1
`
`Fed.R.Civ.P. 8 ------------------------------------------------------------------------------------------------ 2
`
`
`
`
`
`
`
`
`
`v
`
`

`

`Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 7 of 26 PageID #: 1052
`
`NATURE AND STAGE OF PROCEEDING
`
`This is the opposition of Plaintiff Sipco, LLC (“Sipco”) to the motion filed by Defendant
`
`ABB Inc. (“ABB”) to dismiss the First Amended Complaint for Patent Infringement (D.I. 9,
`
`“Complaint”). (D.I. 10, 11). Contemporaneously with this brief, Sipco is also filing two
`
`appendices. Appendix A (App 1-376) consists of Exhibit A through L (comprising the patents
`
`and claim charts) that were attached to the Complaint, but which are now consecutively
`
`numbered as “App. X” to ease reference in this brief. Appendix B (App 377-471) consists of
`
`selected documents that were cited in the above claim charts, and, which, thus are part of the
`
`record which the Court can consider on this motion.1
`
`SUMMARY OF THE ARGUMENT AND FACTS
`
`
`
`ABB’s motion is without merit and serves only to delay the litigation and waste the
`
`Court’s and Plaintiff’s time and resources. Sipco filed a proper Complaint. The main body of
`
`the Complaint is 16 pages long, and uses ABB’s own terminology and model numbers to identify
`
`the accused ABB products, systems and methods (“Accused Instrumentalities”). Attached to that
`
`main body are the patents and detailed claim charts that totaled 376 pages (App 1-376). Each of
`
`the claim charts includes images of the Accused Instrumentalities, citations to ABB and industry
`
`documentations and details how every element of at least one claim of every asserted patent is
`
`met by the Accused Instrumentalities.
`
`
`1 On a motion under Fed.R.Civ.P. 12(b)(6), the court considers “the allegations in the
`complaint, exhibits attached to the complaint, documents incorporated by reference, items
`subject to judicial notice, and matters of the public record.” CSL Behring, LLC v. Bayer
`Healthcare, LLC, 2019 WL 4451368 at *1 (D. Del. 2019) (citing Mayer v. Belichick, 605 F.3d
`223, 230 (3d Cir. 2010)). See also Nash v. Akinbayo, 2019 WL 4393159 at *3 (D.Del. 2019) (“a
`court may consider the pleadings, public record, orders, exhibits attached to the complaint, and
`documents incorporated into the complaint by reference”) (citing Tellabs, Inc. v. Makor Issues &
`Rights, Ltd., 551 U.S. 308, 322 (2007)).
`
`
`
`1
`
`

`

`Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 8 of 26 PageID #: 1053
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`These are not “threadbare” allegations as misstated by ABB, but a thoroughly
`
`comprehensive delineation of the Accused Instrumentalities and the reasons that they are
`
`infringed. ABB demands “precision” (Opening Brief, D.I. 11 [“Br.”] at 1). But, “precision” is
`
`for infringement contentions and discovery, and no court has required “precision” in pleadings.
`
`In fact, “very little is required in order to plead a claim of patent infringement.” Election Sys. &
`
`Software, LLC v. Smartmatic USA Corp., 2019 WL 1040541 at *1 (D. Del. 2019).
`
`The Complaint provides fair notice, which is all that is required. ABB’s motion is,
`
`unfortunately, merely the most recent of a long line of what has been a plague of unnecessary
`
`motions to dismiss filed by defendants whose only outcome is to delay cases and waste the
`
`Court’s and Plaintiff’s resources.2
`
`ARGUMENT
`
`I.
`
`Sipco Has Adequately Pled Direct Infringement
`
`a) Legal Standard For Pleading Infringement
`
`Fed.R.Civ.P. 8 requires that a complaint must contain a “short and plain statement of the
`
`claim showing that the pleader is entitled to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S.
`
`544, 555 (2007); and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Federal Circuit recently
`
`confirmed that the pleading requirements are fairly minimal and are sufficient:
`
`when “the plaintiff pleads factual content that allows the court to draw the
`reasonable inference that the defendant is liable for the misconduct alleged.”
`“Specific facts are not necessary; the statement need only ‘give the defendant fair
`notice of what the ... claim is and the ground upon which it rests.’”
`
`Disc Disease Sols. Inc. v. VGH Sols., Inc., 888 F.3d 1256, 1260 (Fed. Cir. 2018) (citations
`
`2 See, for example, the following reported cases decided this year: Shire ViroPharma
`Inc. v. CSL Behring LLC, 2019 WL 354669 (D. Del. 2019); Vertiv Corp. v. Svo Bldg. One, LLC,
`2019 WL 1454953 (D. Del. 2019); 3Shape A/S v. Align Tech., Inc., 2019 WL 1416466 (D. Del.
`2019); IOENGINE, LLC v. PayPal Holdings, Inc., 2019 WL 330515 (D. Del. 2019).
`
`
`
`
`2
`
`

`

`Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 9 of 26 PageID #: 1054
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`omitted). The Court then held that the Iqbal/Twombly standard was met where the complaint
`
`(1) named products accused of infringing the asserted patents, (2) included photographs of the
`
`packaging of the accused products, and (3) alleged that the accused products meet every element
`
`of at least one claim of the asserted patents “either literally or equivalently.” Id. The Court
`
`reasoned that “[t]hese disclosures and allegations are enough to provide [a defendant] fair notice
`
`of infringement of the asserted patents.” Id. This Court has further explained:
`
`A plaintiff … “need not prove its case at the pleading stage.” The complaint need
`only “place the potential infringer on notice of what activity is being accused of
`infringement.”
`
`Super Interconnect Techs. LLC v. Sony Corp., 2019 WL 4722677 at *1–2 (D. Del. 2019)
`
`(quoting Nalco Co. v. Chem–Mod, LLC, 883 F.3d 1337, 1350 (Fed. Cir. 2018)).
`
`b) One Claim of a Patent Is Enough
`
`ABB erroneously asserts that a patentee is required to separately support infringement of
`
`every asserted claim of a patent. ABB relies entirely on the Magistrate Judge’s report and
`
`recommendation in Horatio Washington Depot Techs. LLC v. TOLMAR, Inc., 2018 WL 5669168
`
`(D. Del. 2018), order corrected, 2018 WL 6168617 (D. Del. 2018). But that report was reviewed
`
`by the District Court which pointedly refused to endorse the Magistrate Judge’s recommendation
`
`that every claim of an asserted patent must be supported in the complaint. Horatio Washington
`
`Depot Techs. LLC v. Tolmar, Inc., 2019 WL 127602, at *3 n. 5 (D. Del. 2019) (“While the Court
`
`has resolved the motion to dismiss based on the motion to dismiss briefing, and the adequacy of
`
`the complaint, the Court has these additional bases for its confidence that Tolmar has sufficient
`
`notice to prepare its defense”). Hence, the Magistrate-Judge’s report does not support ABB’s
`
`argument.
`
`
`
`3
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`

`

`Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 10 of 26 PageID #: 1055
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`
`
`Moreover, the Magistrate-Judge’s statement and ABB’s argument are unanalyzed and
`
`unsupported by any authority, and overlook the well-established law that “a patent is infringed if
`
`a single claim is infringed.” Grober v. Mako Prod., Inc., 686 F.3d 1335, 1344 (Fed. Cir. 2012).
`
`In view of Grober, this and other Courts have consistently held that complaints need to back-up
`
`only one claim of an asserted patent, regardless of the number of other claims asserted in that
`
`patent. Thus, the most recent decision of this Court, rendered two-and-a-half months before
`
`ABB filed its brief and entirely ignored by ABB, specifically rejected ABB’s position:
`
`Defendants’ argument—that Plaintiffs must also plead precisely how
`HAEGARDA infringes on each of the almost 130 dependent claims—attempts to
`impose too stringent of a pleading standard. District courts, applying the dictates
`of Disc Disease, have repeatedly held that allegations establishing infringement of
`the independent claim are sufficient to encompass the dependent claims so long as
`the plaintiff pleads a connection between the dependent and independent claims.
`
`Shire ViroPharma Inc. v. CSL Behring LLC, supra, at *5. See also BioMerieux, S.A. v. Hologic,
`
`Inc., 2018 WL 4603267 at *3 (D. Del. 2018) (declining to dismiss a complaint where “the
`
`Complaint identifies the brand names and function of the accused products ... and describes, on a
`
`limitation-by-limitation basis, how the accused products infringe an exemplary claim”); Align
`
`Tech., Inc. v. 3Shape A/S, 339 F.Supp.3d 435, 444 (D. Del. 2018) (finding patent infringement
`
`complaint sufficient by “reciting the language of a representative claim, alleging that the accused
`
`products practice that claim, and providing examples drawn from ‘product documentation,
`
`demonstration and informational videos, user manuals, and/or promotional materials’
`
`demonstrating the alleged use of some aspect of the accused product of the products performing
`
`at least some of the requirements of the representative claim”); DermaFocus LLC v. Ulthera,
`
`Inc., 201 F. Supp. 3d 465, 470 (D. Del. 2016) (concluding plaintiff’s allegations gave “defendant
`
`reasonable notice of a plausible claim for direct infringement of at least independent claim 1” of
`
`defendant’s patent); Morton Buildings, Inc. v. SWS Innovations, LLC, 2018 WL 6651527 at *1
`
`
`
`4
`
`

`

`Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 11 of 26 PageID #: 1056
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`(C.D. Ill. 2018) (“Just as in Disc Disease Solutions, this Plaintiff has specified which of
`
`Defendant’s products allegedly infringes on the patent, and Plaintiff has specified an independent
`
`claim within the patent that the [alleged infringing product] allegedly infringes”) (emphasis
`
`added throughout).3
`
`c)
`
`Sipco Has Adequately Identified the Accused Instrumentalities
`
`Contrary to ABB’s arguments, Sipco has complied with Disc Disease and provided fair
`
`notice to ABB of the accused infringement.
`
`1) ABB Has Not Demonstrated Public Access To The Demanded Information
`
`Preliminarily, Sipco has adequately pled infringement as detailed below. Nevertheless, if
`
`there are any gaps in the details, the governing law is that courts cannot dismiss an action for
`
`lack of pleadings that are “not ascertainable without discovery,” and a “defendant cannot shield
`
`itself from a complaint for direct infringement by operating in such secrecy that the filing of a
`
`complaint itself is impossible.” K-Tech Telecommunications, Inc. v. Time Warner Cable, Inc.,
`
`714 F.3d 1277, 1286 (Fed. Cir. 2013). These principles were recently applied in this Court by
`
`Federal Circuit Judge William C. Bryson (sitting by designation) in British Telecommunications
`
`PLC v. IAC/InterActiveCorp, 381 F. Supp. 3d 293 (D. Del. 2019). Judge Bryson held:
`
`However, MGL's argument is based on a more rigorous pleading standard than
`the law imposes. That is especially clear in light of the fact that, as appears to be
`the case here, MGL's “Daily Match” algorithm is not in the public domain. MGL
`fails to demonstrate how British Telecom could have determined whether, for
`example, MGL's product contains “IF/THEN” rule statements that “are the
`hallmarks of the '105 Patent.”
`
`381 F. Supp. 3d at 301.
`
`
`3 ABB also attempts to taint Sipco with a prior decision in an earlier case, Sipco, LLC v.
`Streetline, Inc., 230 F. Supp. 3d 351 (D. Del. 2017). But Sipco had learned its lesson, and the
`present pleadings are far more extensive and detailed than those involved in Streetline.
`5
`
`
`
`

`

`Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 12 of 26 PageID #: 1057
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`Similarly, this Court has explained that “it is logical to presume that a defendant has
`
`greater access to and, therefore, more information about its accused method,” and, thus:
`
`the question a court must address with each case is whether the plaintiff at bar has
`provided sufficient information to allow the court to determine plausibility and to
`allow the named defendant to respond to the complaint. Absent specific guidance
`from the Federal Circuit directing the court to front-load the litigation process by
`requiring a detailed complaint in every instance, the court declines to do so.
`
`DermaFocus, supra, 201 F. Supp. 3d at 469. See also, BioMerieux, supra, at *4 (“Plaintiffs
`
`cannot be charged with knowing, at the time they drafted their Complaint, non-public
`
`information they could only obtain after filing suit and obtaining discovery”). Indeed, this
`
`Court’s typical Scheduling Order requires a plaintiff patentee to disclose only the Accused
`
`Instrumentalities of which plaintiff is aware with the “identification … as specific as possible.”
`
`Thus, ABB cannot seek dismissal for lack of pleading of facts that are solely in ABB’s
`
`possession. ABB should be required to demonstrate that any alleged gaps in the pleadings are
`
`matters that Sipco can obtain from the public record.
`
`2) Sipco Has Provided Fair Notice of Accused WirelessHART Systems
`
`ABB feigns that it does not understand what is a WirelessHART system. (Br. 4-6). But
`
`Sipco has complied with Disc Disease and provided fair notice of what is being accused.
`
`First, ABB concedes that “WirelessHART” is a recognized communication “standard.”4 (Br.
`
`1). Thus, this is largely a “standards case.”5
`
`
`4 See, e.g., https://fieldcommgroup.org/technologies/hart/hart-technology-detail; and
`https://fieldcommgroup.org/technologies/hart/hart-development-tools. ABB has published that
`
`WirelessHART was developed by HART Communication Foundation companies,
`including ABB. It was initiated as a standard in early 2004 and provides a
`wireless protocol for the full range of process measurement, control, and asset
`management. It is one of the most widely spread communication protocol for
`process instrumentation nowadays.
`
`
`
`6
`
`

`

`Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 13 of 26 PageID #: 1058
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`Second, in view of the fact that WirelessHART is a recognized industry standard, ABB has
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`itself repeatedly labeled its commercial products as “WirelessHART systems.” For example, the
`
`Complaint incorporates ABB’s User Manual for its WirelessHART system which has a section
`
`entitled “WirelessHART System Planning.” (App 412). As another example, the Complaint’s
`
`claim charts incorporate and reproduce the following descriptions and depictions by ABB of its
`
`WirelessHART systems.
`
`
`
`
`
`(App 392; emphasis supplied)
`
`https://new.abb.com/products/measurement-products/wireless-products-and-
`solutions/highlights/wirelesshart-information-and-faqs (last accessed Oct. 29, 2019).
`
` 5
`
` It is well-established that infringement can be demonstrated by showing that a defendant
`practices a standard that effectively requires infringement. See Fujitsu Ltd. v. Netgear Inc., 620
`F.3d 1321, 1327 (Fed. Cir. 2010) (a “district court may rely on an industry standard in analyzing
`infringement. If a district court construes the claims and finds that the reach of the claims
`includes any device that practices a standard, then this can be sufficient for a finding of
`infringement.”).
`
`
`
`7
`
`

`

`Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 14 of 26 PageID #: 1059
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`(App 377; emphasis supplied). Not unexpectedly, ABB’s above description of its
`
`
`
`WirelessHART systems includes the same devices that Sipco had listed in the Complaint at ¶ 19,
`
`and in its claim charts:
`
`
`
`Id.
`
`Thus, Sipco’s Complaint has given fair notice to ABB that it is accusing ABB of
`
`infringement for making, using, offering for sale and selling what ABB has advertised as its
`
`“WirelessHART systems.” Sipco did not create new terminology, but has applied ABB’s own
`
`concepts. ABB knows its WirelessHART systems, and, thus, has fair notice of what is asserted
`
`in the Complaint. The present case is no different that the pleading upheld in Super Interconnect
`
`Techs. LLC v. Sony Corp., supra:
`
`
`
`8
`
`

`

`Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 15 of 26 PageID #: 1060
`
`Each count (1) identifies a product accused of infringing the asserted patents;
`(2) includes images of the product, its specifications, and documents that tie the
`specifications to an industry standard; and (3) alleges that the accused products
`meet every element of at least one claim of the asserted patents.
`
`(at *2).
`
`ABB, nevertheless, argues that Sipco must “identify … what components are part of the
`
`‘ABB WirelessHART Systems.’” (Br. 4). But this argument makes no sense for several
`
`reasons. First, ABB has itself self-identified the WirelessHART systems that are the Accused
`
`Instrumentalities. Second, neither Disc Disease Solutions nor any other authority has required
`
`that a patentee delineate all the components that may be included in an infringing
`
`instrumentality. Third, ABB’s demand is inconsistent with the law. All the asserted claims
`
`utilize the “comprising” transition, and are thus open-ended. This is critical, because it “is well-
`
`established that transitional terms such as ‘comprising’ … are inclusive or open-ended and do
`
`not exclude additional, unrecited elements or method steps.” Waters Corp. v. Agilent Techs.
`
`Inc., 2019 WL 4572834 at *4 (D. Del. 2019); Liqwd, Inc. v. L'Oreal USA, Inc., 2019 WL
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`1977367 at *3 (D. Del. 2019) (“Use of the open-ended term of art, ‘comprising,’ allows the
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`addition of other elements so long as the named elements, which are essential, are included”); 3G
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`Licensing, S.A. v. Blackberry Ltd., 2018 WL 4375091 at *15 (D. Del. 2018) (“the claims are
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`open-ended, containing the transitional phrase comprising”).
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`Thus, there is no need, and in fact counter-productive, to “identify … what components are
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`part of the ‘ABB WirelessHART Systems.’” Consistent with Disc Disease, Sipco has provided
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`fair notice to ABB that its WirelessHART systems infringe because the claim charts demonstrate
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`that the systems directly and literally correspond to the exemplary asserted claims. (App 32-52,
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`103-17, 167-76, 225-38, 304-23 and 365-76). If ABB’s WirelessHART systems that include all
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`the elements recited in the claims neither law nor logic require that Sipco lists all the components
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`Case 1:19-cv-01365-MN Document 12 Filed 10/30/19 Page 16 of 26 PageID #: 1061
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`of that system. If the system meets the claims, that is the end of the story. There is no reason to
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`specify other non-essential components that may be part of that WirelessHART system, because
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`the claims are in the “comprising” format, and, hence, any system that meets the claim
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`limitations is infringing regardless of what other components or elements are included in the
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`systems. For example, the above-illustrated “ABB Ability™ System 800xA WirelessHART
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`Solution” or the system shown in the Complaint at ¶ 19 infringe as a whole because the systems
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`are WirelessHART systems that meet all the claim limitations. Because the WirelessHART
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`systems infringe as a whole, it does not matter how many other components that system includes
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`or what they are. Any WirelessHART system will necessarily and inherently infringe the
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`asserted system device and method claims and it is irrelevant what may be the components of
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`those systems provided that the system systems include the claimed elements. In short, whatever
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`is included in a WirelessHART system is part of an infringing system.
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`ABB asks, “Is SIPCO alleging that ABB sells ‘Control Rooms’ that infringe its patents?”
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`(Br. 4). The answer is that Sipco had never alleged that a control room by itself infringes, but
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`ABB has itself included the control room in its depiction of a WirelessHART system, and, if a
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`control room houses and operates an infringing WirelessHART network, then arguably that
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`control room is part of an infringing WirelessHART system. Such issues, however, would have
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`to be explicated on the particular facts of a given control room that are impossible to do without
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`discovery. Similarly, ABB asks “Is the ‘AC 800M Controller’ alleged to be a part of any system
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`that infringes a patent?” (Br. 4). Again, Sipco has never accused the AC 800M Controller of
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`infringement per se, but ABB itself has included the AC 800M Controller as part of an overall
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`WirelessHART system, and so the AC 800M Controller may be included as part of an infringing
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`WirelessHART system. Finally, ABB asks “What are the minimum components that could form
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`an allegedly infringing “system?” (Br. 4). The answer is found in “Patents 101”—an infringing
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`system is one that meets the limitations of a given claim. Sipco has provided fair notice to ABB
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`that what ABB has marketed to date as its WirelessHART systems infringe one or more of the
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`asserted claims. No law requires Sipco to speculate about hypothetical “minimum
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`requirements.” Moreover, Sipco cannot define “minimum components” because Sipco does not
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`have ABB’s internal information detailing ABB’s WirelessHART systems and components.
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`ABB does not dispute that it makes, uses, offers for sale and sells WirelessHART systems,
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`and the Complaint has afforded ABB fair notice that what ABB is doing is an infringement and
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`explained why in the claim charts. Nothing more is required of a pleading.
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`3) Sipco Has Sufficiently Identified Individual Components
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`ABB asserts that the Complaint presents “no facts supporting the assertion that [(1)
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`temperature sensors/transmitters, (2) pressure sensors/transmitters, and (3) vibration and
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`temperature sensor WiMon100] infringe all of the asserted patents.” (Br. 6). ABB errs. First,
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`the claim charts detail why these three devices meet the “wireless transceivers” or “remote
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`devices” claim limitations. (See, for example, App 33-37, 226-27, 307-315). Secondly, the
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`claim charts give fair notice why these three devices meet the limitations for “transceiver[s]
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`configured to send and receive wireless communications” specified in Counts II and III. (See,
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`for example, App 107, 167-68). ABB seems to have overlooked the claim charts.
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`4) Gateways Are Adequately Pleaded
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`ABB argues that “neither the Amended Complaint nor the voluminous charts attempt to
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`explain how the AWIN GW 100 meets all the elements of any claim of the asserted patents.”
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`(Br. 7). That is both factually incorrect and legally irrelevant. ABB errs on the law, because
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`Sipco is required to present fair notice of what it alleges to be ABB’s infringement. No law
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`requires that Sipco must “explain” its infringement contentions.
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`Even though ABB errs in its demands, the fact is that the Complaint’s claim charts explain
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`exactly how AWIN GW 100 “meets all the elements of any claim of the asserted patents,” as
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`ABB has demanded. Thus, the claim charts explain that the gateway meets the limitations of the
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`“a controller connected to one of the plurality of transceivers” (App. 38-39), and that of the “site
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`controller” (App. 319-20). Sipco’s claim charts