Case 1:20-cv-00518-LPS Document 21 Filed 09/18/20 Page 1 of 2 PageID #: 368
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`Richard C. Weinblatt
`weinblatt@swdelaw.com
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`VIA CM/ECF
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`September 18, 2020
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`The Honorable Leonard P. Stark
`U.S. District Court for the District of Delaware
`844 N. King Street
`Wilmington, DE 19801
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`Re: Ameranth, Inc. v. Olo Inc., C.A. 1:20-cv-518-LPS
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`Dear Judge Stark:
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`Plaintiff Ameranth, Inc. ("Ameranth") submits this letter opposing Defendant Olo Inc.'s
`request for leave to file a supplemental letter. (D.I. 20.) Ameranth's Complaint only asserts claims
`1, 3, 6, and 11 of U.S. Patent No. 9,747,651 (the "Asserted Claims). (D.I. 1 at ¶ 25.) The
`Complaint does not assert "at least" these claims, and Defendant did not file a counterclaim seeking
`declaratory judgment of any claims of the '651 patent.
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`The Federal Circuit's opinion in Ameranth, Inc. v. Domino's Pizza, LLC, 792 Fed. Appx.
`780 (Fed. Cir. 2019) – which currently is the subject of a petition for writ of certiorari set for
`Conference on September 29, 2020 before the U.S. Supreme Court and anticipated ruling on
`October 5, 2020 – demonstrates that for the court to have jurisdiction over a patent claim in a
`patent asserted by a plaintiff, (1) a complaint must actually assert the patent claims or (2) if a
`plaintiff asserts but does not formally withdraw any of the asserted patent claims and the defendant
`filed a counterclaim seeking a declaratory judgment that all of the patent's claims are invalid, only
`then would the court maintain subject matter jurisdiction over all of the asserted claims. Id. at
`783-84. Here, Ameranth's September 16, 2020 letter merely identifying an alternative reason for
`the Court to deny Defendant's Motion to Dismiss is to "permit Ameranth to amend its Complaint
`and to assert additional claims 4, 9, and 10, based on two new products and integrations Defendant
`announced on September 3 and 10, 2020, after the Court scheduled oral argument, and thus to
`assert indirect infringement and willfulness, before deciding a motion to dismiss." (D.I. 19 at 3
`(emphasis added).) This statement seeking permission is not the same as Ameranth's having filed
`an amended complaint and in so doing having its due process right to fully defend the validity of
`the new claims. There was insufficient time prior to the September 16, 2020 date for Ameranth to
`have filed its amended complaint.
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`While Ameranth intends to amend its Complaint by September 25, 2020, until such time
`as either the parties stipulate to an amended complaint and the Court grants the stipulation or
`Ameranth files an opposed motion seeking leave to amend and the Court grants it, the only claims
`presently before the Court are the Asserted Claims – claims 1, 3, 6, and 11 of the '651 patent. After
`the Complaint is amended, claims 4, 9, and 10, would require further additional briefing.
`Ameranth raised this issue with Defendant and while Defendant does not wish to move the hearing
`on its Motion to Dismiss, continuing the hearing may be the more prudent option so that the Court
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`Case 1:20-cv-00518-LPS Document 21 Filed 09/18/20 Page 2 of 2 PageID #: 369
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`The Honorable Leonard P. Stark
`September 18, 2020
`Page 2
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`has before it a complaint that puts into controversy all claims that may be at issue in this case and
`full briefing on all of those claims before deciding a motion to dismiss. In the event the Court
`grants Defendant's request for leave filed today, Ameranth hereby requests leave to file a response
`to Defendant's letter, pending the filing of Ameranth's amended complaint.
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`Respectfully,
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`/s/ Richard C. Weinblatt
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`Richard C. Weinblatt #5080
`Counsel for Plaintiff
`Ameranth, Inc.
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`All Registered Counsel (via CM/ECF)
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`cc:
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