Case 1:19-cv-01365-MN Document 13 Filed 11/06/19 Page 1 of 10 PageID #: 1543
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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 REPLY 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
`
`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
`
`Attorneys for Defendant ABB Inc.
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`Case 1:19-cv-01365-MN Document 13 Filed 11/06/19 Page 2 of 10 PageID #: 1544
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`TABLE OF CONTENTS
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`ARGUMENT .................................................................................................................................. 1
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` Direct Infringement ............................................................................................................. 1
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`A. SIPCO Inaccurately Characterizes ABB’s Argument ............................................... 1
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`B. SIPCO Fails to State a Clear and Consistent Claim of Direct Infringement ............. 1
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`C. Disc Disease is Distinguishable from the Current Case ............................................ 3
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`Indirect Infringement .......................................................................................................... 4
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`A. Counts I-V .................................................................................................................. 4
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`B. Count VI..................................................................................................................... 4
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`Doctrine of Equivalents .................................................................................................. 5
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` Willfulness ...................................................................................................................... 6
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`CONCLUSION ............................................................................................................................... 6
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`i
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`Case 1:19-cv-01365-MN Document 13 Filed 11/06/19 Page 3 of 10 PageID #: 1545
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`Cases
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`TABLE OF AUTHORITIES
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`Page(s)
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`ABB Turbo Sys. AG v. Turbousa, Inc.,
`774 F.3d 979 (Fed. Cir. 2014)....................................................................................................6
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`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...................................................................................................................1
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`Bell Atlantic Corp. v. Twombly,
`550 U.S. 544 (2007) ...........................................................................................................1, 2, 6
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`Chapterhouse, LLC v. Shopify, Inc.,
`2018 WL 6981828 (E.D. Tex. Dec. 11, 2018) ...........................................................................3
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`Disc Disease Sols. Inc. v. VGH Sols., Inc.
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`888 F.3d 1256 (Fed. Cir. 2018)..............................................................................................3, 6
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`Genedics, LLC v. Meta Co.,
`2018 WL 3991474 (D. Del. Aug. 21, 2018) ..........................................................................3, 4
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`Horatio Washington Depot Techs. LLC v. TOLMAR
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`2018 WL 5669168 (D. Del. 2018) .........................................................................................1, 3
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`Nalco Co. v. Chem–Mod, LLC,
`883 F.3d 1337 (Fed. Cir. 2018)..............................................................................................5, 6
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`ii
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`Case 1:19-cv-01365-MN Document 13 Filed 11/06/19 Page 4 of 10 PageID #: 1546
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`In its brief opposing the motion to dismiss, SIPCO does not provide any further
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`explanation or definition as to what an accused WirelessHART system is; does not provide an
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`explanation for how each device identified in the complaint infringes every asserted patent; and
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`does not even provide an explanation of what are and are not individual infringing devices. The
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`reason for that failure is that the Complaint simply does not include any such definition. As
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`such, SIPCO has failed to provide ABB fair notice of the allegations against it as required by
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`Twombly and Iqbal. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556
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`U.S. 662 (2009).
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`Direct Infringement
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`ARGUMENT
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`A.
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`SIPCO Inaccurately Characterizes ABB’s Argument
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`ABB noted the requirement that a plaintiff provide a defendant with an explanation of
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`how each claim limitation of at least one claim is met. (D.I. 11, at pp. 2-3) SIPCO either
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`misread or misinterpreted this argument to be asserting that a plaintiff is required to explain how
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`each claim of a patent is infringed, devoting nearly two full pages to rebut an argument that ABB
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`did not make. (D.I. 12, at pp. 3-5) A plaintiff must give notice to the defendant of how each
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`limitation of at least one claim from each asserted patent is met, not just some limitations. See
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`Horatio Washington Depot Techs. LLC v. TOLMAR, Inc., 2018 WL 5669168, at *11 (D. Del.
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`2018). SIPCO failed to do so, as discussed in ABB’s opening brief.
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`B.
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`SIPCO Fails to State a Clear and Consistent Claim of Direct Infringement
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`SIPCO’s opposition provides no answers to the question at hand: what are the accused
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`devices? For example, SIPCO does not provide any explanation of what an ABB
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`WirelessHART system is that allegedly infringes the claims of the asserted patents. SIPCO
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`merely repeats its strategy of pasting images from various ABB product manuals and marketing
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`1
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`Case 1:19-cv-01365-MN Document 13 Filed 11/06/19 Page 5 of 10 PageID #: 1547
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`materials that describe a variety of ABB products. This random compilation of materials fails to
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`provide any explanation of what a WirelessHART system is or how the claims read on any ABB
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`product or system. ABB is entitled to know what it is accused of doing, and broad assertions that
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`certain “systems” infringe SIPCO’s patents without any explanation of what those systems are or
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`how they infringe does not satisfy the burden SIPCO has under Twombly and Iqbal.
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`SIPCO argues that “[t]here is no reason to specify other non-essential components that
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`may be part of” a WirelessHART system. (D.I. 12 at 10) If SIPCO has an idea of what the
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`essential and non-essential components of a WirelessHART system are, it should identify them
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`clearly and directly. Instead, SIPCO pastes multiple images of different components, both in the
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`Complaint and exhibits, without any explanation, then includes claim charts with barely a
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`passing reference to any system.
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`SIPCO insists that it has identified individual components that allegedly infringe its
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`patents as well as provided an explanation as to how those individual components infringe. But
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`SIPCO’s definitions of what individual components infringe are vague, inconsistent, and without
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`any support or explanation for most of those components. The Complaint defines “Accused
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`Instrumentalities” to include individual components, both those specifically defined in the
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`complaint as well as “supporting components.” (D.I. 9, ¶ 19) Neither the Complaint nor any of
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`the corresponding exhibits provide any explanation of what a “supporting component” is or how
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`it could infringe any claim.
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`The exhibits provide an additional, inconsistent picture of what products are accused of
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`infringement. In Exhibit B, for example, SIPCO states that “Accused Products” or “Devices”
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`include the “following products, individually” and/or as part of a system. (Id., at Ex. B
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`(emphasis added)) The components listed in the exhibit, include, e.g., a “Control Room” or “AC
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`2
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`Case 1:19-cv-01365-MN Document 13 Filed 11/06/19 Page 6 of 10 PageID #: 1548
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`800M Controller.” (Id.). However, in its opposition, SIPCO claims that it “never alleged that a
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`control room by itself infringes.” (D.I. 12 at 10) If SIPCO is not even clear as to whether the
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`individual components listed in the Complaint and exhibits are alleged to be infringing, how can
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`ABB be expected to know what individual components are alleged to infringe?
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`C.
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`Disc Disease is Distinguishable from the Current Case
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`SIPCO relies on the narrow holding in Disc Disease Sols. Inc. v. VGH Sols., Inc., 888
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`F.3d 1256 (Fed. Cir. 2018), to support its position that minimal facts can adequately state a claim
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`for patent infringement. (D.I. 12 at 2-3) However, as recognized by multiple district courts,
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`Disc Disease “involve[d] a simple technology” with “only four independent claims” at issue.
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`Disc Disease, 888 F.3d at 1260. See Horatio Washington, 2018 WL 5669168, at *12
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`(distinguishing Disc Disease as involving “a simple technology”); Chapterhouse, LLC v.
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`Shopify, Inc., 2018 WL 6981828, at *2 (E.D. Tex. Dec. 11, 2018) (granting a motion to dismiss,
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`noting that “there are both more claims and more complicated patents than those at issue in Disc
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`Disease”); Genedics, LLC v. Meta Co., 2018 WL 3991474, at *12, n.15 (D. Del. Aug. 21, 2018)
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`(looking for detailed factual allegations in the body of the complaint because “the patents at issue
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`here concern subject matter that is much more technologically sophisticated than in Disc
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`Disease”). Unlike Disc Disease, the present case involves 14 independent claims, not four.
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`When the patent claims and accused product are very simple, a simple allegation of
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`infringement may suffice to put the defendant on notice. That is not this case. The SIPCO
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`patents contain dozens of claims and SIPCO has identified more than a dozen complex ABB
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`components. Due to both the complexity of the technology involved in this case and the number
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`of independent claims asserted, Disc Disease is not applicable to the present case.
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`3
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`Case 1:19-cv-01365-MN Document 13 Filed 11/06/19 Page 7 of 10 PageID #: 1549
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`Indirect Infringement
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`A.
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`Counts I-V
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`SIPCO asked for a judgment that ABB “directly and indirectly infringed” each of U.S.
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`Patent Nos. 6,914,893, 8,964,708, 9,430,936, 9,439,126, and 7,103,511. Complaint, ¶ A. ABB
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`noted that the Complaint did not make any reference to indirect infringement of those patents
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`outside of the Prayer for Relief section. (D.I. 11 at 9) SIPCO now indicates no awareness of the
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`request for a judgment of indirect infringement of those patents in its complaint, despite the
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`specific citation to the Prayer for Relief section in ABB’s brief. (D.I. 12 at 13) SIPCO now
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`agrees that it has not adequately alleged indirect infringement of at least those patents.
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`B.
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`Count VI
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`SIPCO does not dispute that the Complaint lacked even the barest allegation of specific
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`intent to induce infringement. (D.I. 12 at 14-15) Even if SIPCO was correct that the Complaint
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`alleged facts in other sections that were sufficient to support a finding of specific intent, that
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`would not cure the deficiency of the Complaint of completely failing to address one of the
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`elements that must be met in order to show induced infringement.
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`Similarly, SIPCO does not dispute that the Complaint lacked any facts that would support
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`the legal conclusion that there is no substantial non-infringing use for the Accused
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`Instrumentalities. SIPCO attempts to remedy the deficiency of the Complaint by adding new
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`facts not present in the Complaint, asserting now that “WirelessHART systems and devices are
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`specialized.” (Id. at 16) But allegations in a brief are not part of the Complaint and cannot be
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`used to remedy the lack of necessary facts in the Complaint.
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`Regardless, an examination of the claim chart of the ’059 patent included in the
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`Complaint demonstrates at least one straightforward non-infringing use. The claim limitation
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`labeled 7c requires that a transmitter generates an information signal that is “received by another
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`4
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`Case 1:19-cv-01365-MN Document 13 Filed 11/06/19 Page 8 of 10 PageID #: 1550
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`nearby transmitter … and repeated in the same signal type as received to additional transmitters
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`… for communicating the information signal to a gateway.” (D.I. 9, Ex. L, at 13-14) In other
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`words, the information signal is sent from a first transmitter to a “another nearby transmitter,”
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`which repeats the signal to a “additional transmitters” that eventually “communicat[e] the
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`information signal to a gateway.” (Id.) However, there is no reason why a WirelessHART
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`system could not include only a single transmitter or only include transmitters close enough to
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`the gateway to transmit directly. As this non-infringing use is self-evident from reviewing the
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`claim chart, the Complaint itself forecloses a finding of contributory infringement of claim 7 of
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`the ’059 patent.
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` Doctrine of Equivalents
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`SIPCO does not dispute that it provided no details or facts to support a claim under the
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`doctrine of equivalents and even goes so far as to say it would be impossible to do so. (D.I. 12 at
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`16-17) To support its position that a bare assertion of infringement under the doctrine of
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`equivalents can be plead without any facts whatsoever, SIPCO attempts to distinguish the
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`Federal Circuit decision in Nalco as not involving a claim of literal infringement and “relying
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`solely on the doctrine of equivalents.” (D.I. 12 at 17) That is incorrect. The Federal Circuit
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`devoted several pages to that pleading’s claims of direct, literal infringement before turning to
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`the allegations of infringement under the doctrine of equivalents. Nalco Co. v. Chem–Mod, LLC,
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`883 F.3d 1337, 1347-53 (Fed. Cir. 2018).
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`Further compounding its error, SIPCO points this court to Disc Disease in support of the
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`proposition that a bare bones assertion of infringement “either literally or equivalently” is
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`sufficient. (D.I. 12 at 17) However, unlike Nalco, Disc Disease does not separately address
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`pleading requirements for a claim under the doctrine of equivalents. Disc Disease, 888 F.3d at
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`5
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`Case 1:19-cv-01365-MN Document 13 Filed 11/06/19 Page 9 of 10 PageID #: 1551
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`1260. Instead, the Court in Disc Disease addressed the claim of infringement “either literally or
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`equivalently” as a whole without separately addressing the requirements for infringement under
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`the doctrine of equivalents. Id. As Nalco requires some specificity in a claim under the doctrine
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`of equivalents and SIPCO admits no specificity is present, the claim under the doctrine of
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`equivalents should be dismissed.
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` Willfulness
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`SIPCO tries to excuse its lack of facts supporting an allegation of willfulness by pointing
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`to a holding that, in certain cases, the threshold of plausibility can be met by assertions of
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`“circumstantial evidence.” (D.I. 12 at 19, citing ABB Turbo Sys. AG v. Turbousa, Inc., 774 F.3d
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`979, 988 (Fed. Cir. 2014).) However, permitting assertions of circumstantial facts to meet the
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`standard of plausibility does not remove the requirement to assert some facts—even if
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`circumstantial—to support a finding of plausibility. SIPCO failed to do so. Rather, SIPCO
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`merely stated that ABB products were identified in a claim chart sent to ABB (without actually
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`identifying any ABB product) together with a legal conclusion that the claim charts
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`demonstrated infringement. (D.I. 9, ¶ 15) That is insufficient to meet even a relaxed plausibility
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`standard that ABB knew or should have known it was infringing any of SIPCO’s patents.
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`CONCLUSION
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`SIPCO fails to adequately provide ABB with “fair notice of what the ... claim is and the
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`grounds upon which it rests” by failing to adequately state what “Accused Instrumentalities”
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`ABB is alleged to have made, used, or sold. Twombly, 550 U.S. at 555. The Complaint and
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`attached exhibits fail to identify facts supporting the allegation that ABB has practiced each
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`element of the patents.
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`SIPCO fails to allege facts supporting a finding of indirect infringement and
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`its doctrine of equivalents claim is “in a bare bones, conclusory form.”
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`6
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`Case 1:19-cv-01365-MN Document 13 Filed 11/06/19 Page 10 of 10 PageID #: 1552
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`SIPCO fails to allege any facts supporting a finding of willful infringement.
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`For the reasons stated herein, the First Amended Complaint should be dismissed.
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`Dated: November 6, 2019
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`14891111v2
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`BARNES & THORNBURG LLP
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`/s/ Chad S.C. Stover
`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
`
`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
`
`Attorneys for Defendant ABB Inc.
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`7
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