Case 1:20-cv-01163-RGA Document 20 Filed 08/25/21 Page 1 of 11 PageID #: 534
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`IN THE UNITED STATES DISTRJCT COURT
`FOR THE DISTRJCT OF DELAWARE
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`EXPRESS MOBILE, INC.,
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`Plaintiff;
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`V.
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`Civil Action No. 20-1163-RGA
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`$QUARESPACE, INC.,
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`Defendant.
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`MEMORANDUM OPINION
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`Timothy Devlin, DEVLIN LAW FIRM LLC, Wilmington, DE; Steven J. Rizzi, Ramy Hanna,
`MCKOOL SMITH, New York, NY,
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`Attorneys for Plaintiff.
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`Daniel M. Silver, Alexandra M. Joyce, MCCARTER & ENGLISH, LLP, Wilmington, DE; Adam
`R. Brausa, Timothy C. Saulsbury, Vera Ranieri, Raghav R. Krishnapriyan, Eric C. Wiener,
`DURJE TANGRJ LLP, San Francisco, CA,
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`Attorneys for Defendant.
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`August 1'5 ,2021
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`Case 1:20-cv-01163-RGA Document 20 Filed 08/25/21 Page 2 of 11 PageID #: 535
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`Before the Court is Defendant's Motion to Dismiss. (D.I. 9). I have considered the
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`parties' briefing. (D.I. 10, 13, 16).
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`I. BACKGROUND
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`Plaintiff Express Mobile filed suit against Defendant Squarespace on September 1, 2020.
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`(D.I. 1). It alleges that Defendant infringes U.S. Patent Nos. 6,546,397 ("the '397 Patent"),
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`7,;594,168 ("the '168 Patent"), 9,063,755 ("the '755 Patent"), 9,471,287 ("the '287 Patent"), and
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`9,;928,044 ("the '044 Patent") through its use of certain website building tools. The Asserted
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`I
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`Patents solve technical problems "related to the creation and generation of websites" and
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`"associated with methods and systems for displaying dynamic content on displays of devices."
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`(Jc/ at 2, 9).
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`II. LEGAL STANDARD
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`The Federal Rules of Civil Procedure mandate that a complainant provide "a short and
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`plain statement of the claim showing that the pleader is entitled to relief .... " Fed. R. Civ. P.
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`i
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`8(a)(2) .. Rule 12(b)(6) allows the accused party to bring a motion to dismiss the claim for failing
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`to meet this standard. A Rule 12(b)(6) motion may be granted only if, accepting the well-pleaded
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`allegations in the complaint as true and viewing them in the light most favorable to the
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`complainant, a court concludes that those allegations "could not raise a claim of entitlement to
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`relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007).
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`When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure
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`12(b)(6), the Court must accept the complaint's factual allegations as true. See id at 555-56.
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`"Though 'detailed factual allegations' are not required, a complaint must do more than simply
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`provide 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action."'
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`Case 1:20-cv-01163-RGA Document 20 Filed 08/25/21 Page 3 of 11 PageID #: 536
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`Davis v. Abington Mem'l Hosp., 765 F.3d 236,241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at
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`555). A complainant must plead facts sufficient to show that a claim has "substantive
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`plausibility." Id. at 347. That plausibility must be found on the face of the complaint. Ashcroft v.
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`Iqbal, 556 U.S. 662,678 (2009).
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`"A claim has facial plausibility when the [complainant] pleads factual content that allows
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`the court to draw the reasonable inference that the [ accused] is liable for the misconduct
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`alleged." Id. The facial plausibility standard is satisfied when the complaint's factual content
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`"allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alJeged." Twombly, 550 U.S. at 555-56. Id. Deciding whether a claim is plausible will be a
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`"context-specific task that requires the reviewing court to draw on its judicial experience and
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`common sense." Iqbal, 556 U.S. at 679. I am "not required to credit bald assertions or legal
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`conclusions improperly alleged in the complaint." In re Rockefeller Ctr. Props., Inc. Sec. Litig.,
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`3Il F.3d 198,216 (3d Cir. 2002).
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`To satisfy the Iqbal pleading standard in a patent case, "[s]pecific facts are not
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`ne,cessary." Disc Disease Solutions Inc. v. VGH Solutions, Inc., 888 F.3d 1256, 1260 (Fed. Cir.
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`2018) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). The Complaint need only give the
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`defendant "fair notice of what the [infringement] claim is and the ground upon which it rests."
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`Id
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`Ill. ANALYSIS
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`Defendant moves to dismiss Plaintiffs allegations of direct infringement, divided
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`infringement, induced infringement, and contributory infringement. I will address each argument
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`in tum.
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`Case 1:20-cv-01163-RGA Document 20 Filed 08/25/21 Page 4 of 11 PageID #: 537
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`a. Direct Infringement
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`Defendant argues that certain of Plaintiff's direct infringement allegations are not
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`plausible: (1) the "runtime file" and "runtime engine" of the '397 and '168 Patents; (2) the
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`"virtual machine" or "virtual machine commands" limitations of the '397 Patent; (3) the "defined
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`entirely" limitation ofthe '168 Patent; (4) the "object number" limitation ofthe '168 Patent; (5)
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`the "produc[es] a player" and player is "provided to the device" limitations of the '755, '287, and
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`'044 Patents; (6) the "preferred UI object" limitations of the '287 and '044 Patents; and (6) the
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`"building an application ... utilizing the player" limitation of the '044 Patent. (D.I. 10 at 6-14).
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`Defendant contends that the Complaint does not contain sufficient factual allegations to plausibly
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`allege that the Accused Instrumentalities [principally, the Squarespace website builder platform,
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`D.I. 1 at 13] meet the limitations ofthe claims. (See, e.g., D.I. 10 at 9-11, 12-14). For some
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`claims, Defendant asserts that Plaintiff has not alleged that claim limitations are met under
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`certain claim constructions. (Id at 9, 12).
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`Plaintiff counters that its Complaint meets the plausibility pleading standard. (D.I. 13 at
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`8-9). Plaintiff argues that Defendant is "prematurely seeking detailed infringement contentions
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`that are simply not required to satisfy the pleading standard" and that the level of detail that
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`Defendant "demands" concerning certain claim limitation allegations is not required at this stage.
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`(Id at 9).
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`I agree with Plaintiff. The Complaint identifies the patents at issue, details how the
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`Accused Instrumentalities build a user's website, and explains how the actions infringe on each
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`Asserted Patent. (See D.I. 1 at 13-24). The Complaint need not allege "specific facts" to meet the
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`plausibility pleading standard, but must put the alleged infringer on fair notice of the claim of
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`infringement and the grounds upon which it rests. See Disc Disease Solutions, 888 F.3d at 1260.
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`Case 1:20-cv-01163-RGA Document 20 Filed 08/25/21 Page 5 of 11 PageID #: 538
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`Here, there are sufficient factual allegations of infringement to meet that standard and put
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`Defendant on notice of the grounds of its alleged infringement.
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`Contrary to Defendant's arguments, Plaintiff need not explain how each element of an
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`Asserted Claim is met by the Accused Instrumentalities. "[T]he Federal Rules of Civil Procedure
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`do not require a plaintiff to plead facts establishing that each element of an asserted claim is
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`met." Nalco Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1350 (Fed. Cir. 2018) (quoting In re Bill of
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`Lading Transmission & Processing Sys. Patent Litig., 681 F.3d 1323, 1335 (Fed. Cir. 2012)).
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`The "purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the
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`merits." Id. ( citation omitted). Plaintiff has plausibly alleged direct infringement. The merits of
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`Defendant's arguments regarding claim construction and specific details of how the Accused
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`Instrumentalities map to each claim element will be properly tested at future stages of this
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`litigation. For these reasons, Defendant's motion to dismiss Plaintiffs direct infringement
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`allegations is denied.
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`b. Divided Infringement
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`Defendant argues that there are no supporting factual allegations to support an
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`infringement theory based on divided infringement, should Plaintiff be raising this theory. (D .I.
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`10 at 14-15). Defendant contends that Plaintiff bases its infringement allegations on actions taken
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`by Defendant and other third parties (users browsing Defendant-hosted websites). (Id. at 14).
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`Defendant maintains that in addition to failing to plausibly allege direct infringement, Plaintiff
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`has also failed to plausibly allege a divided infringement theory, as the Complaint did not
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`address any "direction or control" or 'joint enterprise" between Defendant and the third parties.
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`(Id. at 15).
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`Case 1:20-cv-01163-RGA Document 20 Filed 08/25/21 Page 6 of 11 PageID #: 539
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`Plaintiff counters that the issue of divided infringement is premature. (D .I. 13 at 11 ).
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`Plaintiff contends that issues of divided infringement should be determined later in the litigation,
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`as claim construction will better illuminate the appropriate theory of infringement. (Id at 12).
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`Further, Plaintiff asserts that even if divided infringement were required to be pleaded at this
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`stage, it has provided sufficient allegations to support that theory as the Complaint "details how
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`each step of the asserted method claims [is] performed using the Squarespace server" and that
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`the user's participation is conditioned on performing the claimed steps. (Id at 13-14).
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`For divided infringement, the pleading stage requires that the "allegations adequately
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`plead attribution of the ... activities to Defendant[]." Nalco, 883 F.3d at 1353. Here, Plaintiff
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`has done so. Plaintiff has plausibly alleged that Defendant directly infringed the Asserted
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`Patents. (See D.l. 1 at 13-24). Further, in each count, the Complaint sets forth factual allegations
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`that show how a user must perform the claimed steps in order to obtain the benefit of building a
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`website, by describing the steps a user must take using Defendant's server. (Id at 13-24, 33-45,
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`59-73). These allegations make plausible Plaintiffs claim that the infringing activities were
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`taken by Defendant or by third parties at Defendant's direction or control. Defendant's motion to
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`dismiss Plaintiffs divided infringement theory is denied.
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`c. Induced Infringement
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`Defendant asserts that Plaintiffs induced infringement allegations fail as there are
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`insufficient factual allegations that Defendant acted with the requisite specific intent. (D.I. 10 at
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`15-18). Defendant asserts that Plaintiffs "boilerplate paragraphs" of "induced infringement
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`allegations are premised simply on pre-suit knowledge of the patent and Squarespace's
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`marketing of products," but that "is not sufficient to demonstrate that Squarespace specifically
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`Case 1:20-cv-01163-RGA Document 20 Filed 08/25/21 Page 7 of 11 PageID #: 540
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`intended its customers to infringe the patents or knew that the third-party conduct constitutes
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`infringement." (Id.).
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`Plaintiff counters that the Complaint sufficiently alleges both knowledge of the patent
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`and the requisite specific intent for induced infringement. (D.I. 13 at 14). Plaintiff points to the
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`portions of the Complaint that allege that Defendant had notice of each asserted patent and its
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`infringement thereof prior to filing the complaint. (Id.).
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`"[F]or an allegation of induced infringement to survive a motion to dismiss, a complaint
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`must plead facts plausibly showing that the accused infringer specifically intended another party
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`to infringe the patent and knew that the other party's acts constituted infringement." Lifetime
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`Indus., Inc. v. Trim-Lok, Inc., 869 F.3d 1372, 1379 (Fed. Cir. 2017) (internal quotes and citation
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`omitted). Plaintiff's allegations of induced infringement survive for all Asserted Patents except
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`the '755 Patent.
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`Plaintiff has plausibly alleged that that Defendant specifically intended another party to
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`infringe. For each patent, the Complaint alleges that Defendant "actively encourages the
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`adoption of the Accused Instrumentalities and provides support sites for the vast network of
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`developers working with the Accused Instrumentalities, emphasizing the customizable and user(cid:173)
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`friendly nature of the Accused Instrumentalities." (D.I. 1 at 23). The Complaint also identifies
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`language from Defendant's website that promotes and advertises use of the Accused
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`Instrumentalities by third parties. (Id.). These allegations show that it is plausible that Defendant
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`"specifically intended another party to infringe" as Defendant was actively encouraging third
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`parties to use its products.
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`The Complaint also contains sufficient factual allegations that Defendant knew the other
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`party's acts constituted infringement. It alleges Defendant had knowledge of the '397 Patent, the
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`Case 1:20-cv-01163-RGA Document 20 Filed 08/25/21 Page 8 of 11 PageID #: 541
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`'168 Patent, the '287 Patent, and the '044 Patent, at least as of April 9, 2019 when Plaintiff
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`provided notice of the patents and Defendant's alleged infringement. (D.I. 1 at 22, 31, 57, 71).
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`As Def end ant was on notice of its alleged infringement of the identified patents, it is plausible
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`that Defendant knew that the third parties' acts constituted infringement.
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`For the '755 Patent, however, Plaintiff has not plausibly alleged that Defendant knew that
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`the third parties' acts were infringing. The Complaint states that Defendant had knowledge of
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`this patent as of April 9, 2019, when "Plaintiff provided notice of the '287 and '044 patents, and
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`Defendant's infringement thereof, both of which identify on their face the '755 patent and its
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`issuance from a parent patent application of the '287 and '044 patents, and no later than August
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`31, 2020, when Plaintiff provided notice of the '755 patent, and Defendant's infringement
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`thereof." (D.I. 1 at 44). Plaintiff did not directly notify Defendant that it was allegedly infringing
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`the '755 Patent until August 31, 2020, the day before the Complaint was filed. (See D.I. 1 at 44,
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`74). These facts do not plausibly support an allegation that Defendant knew that the third parties'
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`acts were infringing the '755 Patent, as Defendant was not notified of its infringement until a day
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`before this suit was filed. Therefore, I will grant Defendant's motion to dismiss Plaintiff's claim
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`of induced infringement as to the '755 Patent and deny it as to the other Asserted Patents.
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`d. Contributory Infringement
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`Defendant moves to dismiss Plaintiff's contributory infringement allegations, arguing
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`that such allegations are not supported by sufficient facts regarding lack of substantial non(cid:173)
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`infringing uses for the Accused Platform and Defendant's knowledge of the Accused Platform's
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`use in an infringing manner. (Id at 19-20). Plaintiff counters that its factual allegations describe
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`the nature of the Accused Instrumentalities and that such facts "give rise to a reasonable
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`Case 1:20-cv-01163-RGA Document 20 Filed 08/25/21 Page 9 of 11 PageID #: 542
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`inference that Squarespace's Accused Products are 'especially made or especially adapted' for
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`infringement and have 'no substantial non-infringing use."' (D.I. 13 at 16).
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`In order to establish contributory infringement, the patent owner must demonstrate sale of
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`a "a component or material for use in a patented process constituting a material part of the
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`invention; knowledge by the defendant that the component is especially made or especially
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`adapted for use in an infringement of such patent; and the component is not a staple or article
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`suitable for non-infringing use." DermaFocus LLC v. Ulthera, Inc., 201 F. Supp. 3d 465,470 (D.
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`Del. 2016) (numbering omitted). "The Federal Circuit has ruled that affirmatively pleading the
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`absence of substantial non-infringing uses renders the claim plausible if the pleadings do not
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`undermine that allegation." Merck Sharp & Dahme Corp. v. Teva Pharma USA, Inc., 2015 WL
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`4036951, at *7 (July 1, 2015) (citing In re Bill of Lading, 681 F.3d at 1339).
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`For all patents except the '755 Patent, Plaintiff has pleaded facts that allow for the
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`reasonable inference that Defendant had knowledge of the infringing use and that the Accused
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`Instrumentalities have no substantial non-infringing use. Based on Plaintiff's allegations of
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`notice to Defendant, Defendant knew of its alleged infringing use as of April 9, 2019 for the
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`'397, '168, '287, and '044 Patents. There are no facts to plausibly support Defendant's
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`knowledge of the '755 Patent prior to Plaintiff's notice on August 31, 2020.
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`Regarding no substantial non-infringing use, the Complaint states "the infringing aspects
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`of [Defendant's] infringing products and services, including but not limited to the Accused
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`Instrumentalities, are made for use in an infringement, and are not staple articles of commerce
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`suitable for substantial non-infringing use." (D.I. 1 at 32). This "affirmative pleading [ofJ the
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`absence of substantial non-infringing uses renders the claim plausible." Merck Sharp & Dahme,
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`2015 WL 4036951, at *7; see also Netgear, Inc. v. Ruckus Wireless, Inc., 852 F. Supp. 2d 470,
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`Case 1:20-cv-01163-RGA Document 20 Filed 08/25/21 Page 10 of 11 PageID #: 543
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`476,476 n.8 (D. Del. 2012) (finding the complaint met the plausibility pleading standard where
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`the plaintiff stated that there was no substantial non-infringing use). For these reasons,
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`Defendant's motion to dismiss Plaintiff's contributory infringement allegations is denied as to
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`the '397, '168, '287, and '044 Patents, and granted as to the '755 Patent.
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`e. Willful Infringement of the '755 Patent
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`Defendant argues that the Complaint does not plausibly allege willful infringement of the
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`'755 Patent, as it did not allege sufficient facts that Defendant had pre-suit notice of the '755
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`Patent. (D.I. 10 at 20). Plaintiff counters that its willful infringement claim is plausible as it has
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`sufficiently alleged Defendant's knowledge. (D.I. 13 at 17).
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`I agree with Defendant. "[T]o state a claim of willful infringement, the patentee must
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`allege facts in its pleading plausibly demonstrating that the accused infringer had committed
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`subjective willful infringement as of the date of the filing of the willful infringement claim."
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`Valinge Innovation AB v. Halstead New England Corp., 2018 WL 2411281, at *10-12 (D. Del.
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`May 29, 2018) (discussing Mentor Graphics Corp. v. EVE-USA, Inc., 851 F.3d 1275, 1282 (Fed.
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`Cir. 2017), cert. dismissed, 139 S. Ct. 44 (2018). Here, Plaintiff notified Defendant of its alleged
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`infringement of the '755 Patent on August 31, 2020. (D.1. 1 at 44). Plaintiff filed suit the
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`following day. (Id at 74). These facts do not plausibly support an allegation that Defendant
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`willfully infringed between the time it was notified of the alleged infringement of the '755 Patent
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`and the filing of the suit the subsequent day. I grant Defendant's motion to dismiss Plaintiff's
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`claim of willful infringement of the '755 Patent.
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`Case 1:20-cv-01163-RGA Document 20 Filed 08/25/21 Page 11 of 11 PageID #: 544
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`IV. CONCLUSION
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`Defendant's motion to dismiss (D.I. 9) is granted as to Plaintiffs induced infringement,
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`contributory infringement, and willful infringement claims for the '755 Patent. Plaintiffs claims
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`are dismissed without prejudice. Defendant's motion is denied on all other grounds.
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`A separate order will be entered.
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`11
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