Case 1:21-cv-01445-JPM Document 24 Filed 03/16/22 Page 1 of 16 PageID #: 1018
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`GLOBUS MEDICAL, INC.,
`
`
`Plaintiff,
`
`
`
`v.
`
`LIFE SPINE, INC.,
`
`
`Defendant.
`
`
`
`
`
`C.A. No. 21-1445 (JPM)
`
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`
`
`DEFENDANT LIFE SPINE, INC.’S REPLY BRIEF IN SUPPORT
`OF ITS RENEWED MOTION TO DISMISS THE AMENDED COMPLAINT
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Jennifer Ying (#5550)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`jying@morrisnichols.com
`
`Attorneys for Defendant
`
`
`
`
`OF COUNSEL:
`
`Brianne M. Straka
`Dave A. Nelson
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`191 North Wacker Drive, Suite 2700
`Chicago, IL 60606
`(312) 705-7400
`
`
`March 16, 2022
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`

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`Case 1:21-cv-01445-JPM Document 24 Filed 03/16/22 Page 2 of 16 PageID #: 1019
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`TABLE OF CONTENTS
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`Page
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`I. 
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`II. 
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`III. 
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`IV. 
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`V. 
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`
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`SUMMARY OF ARGUMENT ...........................................................................................1 
`
`PLAINTIFF’S SPECULATIVE ASSERTIONS ARE INSUFFICIENT TO
`PLEAD ACTUAL KNOWLEDGE OF THE ASSERTED PATENTS ..............................2 
`
`PLAINTIFF HAS NOT PLED PRE-SUIT KNOWLEDGE OF INFRINGEMENT
`OR SPECIFIC INTENT TO INDUCE ................................................................................8 
`
`PLAINTIFF PLEADS NO FACTS TO SHOW THAT LIFE SPINE KNEW OR
`SHOULD HAVE KNOWN THAT IT WAS INFRINGING ............................................10 
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`CONCLUSION ..................................................................................................................10 
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`i
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`

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`Case 1:21-cv-01445-JPM Document 24 Filed 03/16/22 Page 3 of 16 PageID #: 1020
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`TABLE OF AUTHORITIES
`
`Cases
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`
` Page(s)
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`Ashcroft v. Iqbal,
` 556 U.S. 662, 678 (2009) ........................................................................................................... 1
`Bayer HealthCare LLC v. Baxalta Inc.,
` 989 F.3d 964 (Fed. Cir. 2021).................................................................................................. 10
`Bell Atlantic Corp. v. Twombly,
` 550 U.S. 544 (2007) ............................................................................................................... 2, 6
`Bonutti Skeletal Innovations LLC v. Conformis, Inc.,
` 2013 WL 6040377 (D. Del. Nov. 14, 2013) .............................................................................. 1
`Callwave Comm’ns LLC v. AT&T Mobility LLC,
` 2014 WL 5363741 (D. Del. Jan. 28, 2014) ................................................................................ 1
`Commil USA, LLC v. Cisco Sys., Inc.,
` 135 S. Ct. 1920 (2015) ............................................................................................................... 8
`DermaFocus LLC v. Ulthera, Inc.,
` 201 F. Supp. 3d 465 (D. Del. 2016) ........................................................................................... 6
`Dodots Licensing Sols. LLC v. Lenovo Holding Co.,
` 2018 WL 6629709 (D. Del. Dec. 19, 2018)............................................................................... 9
`Dynamic Data Techs., LLC v. Brightcove Inc.,
` 2020 WL 4192613 (D. Del. July 21, 2020) ......................................................................... 1, 10
`Elm 3DS Innovations, LLC v. Samsung Elecs. Co.,
` 2015 WL 5725768 (D. Del. Sept. 29, 2015) .............................................................................. 6
`Evolved Wireless, LLC v. Samsung Elecs. Co.,
` 2016 WL 1019667 (D. Del. March 5, 2016).............................................................................. 6
`Genomics, Inc. v. Celsee, Inc. is,
` misplaced. 2019 WL 5595666 (D. Del. Oct. 30, 2019) ............................................................. 3
`Halo Elecs., Inc. v. Pulse Elecs., Inc.,
` 579 U.S. 93 (2016) ..................................................................................................................... 5
`Helios Streaming, LLC v. Vudu, Inc.,
` 2020 WL 2332045 (D. Del. May 11, 2020) ............................................................................... 8
`Imonex Servs. v. W.H. Munzprufer Dietmar Trenner GmbH,
` 408 F.3d 1374 (Fed. Cir. 2005).............................................................................................. 4, 6
`Lippert Components Mfg. v. MOR/ryde, Inc.,
` 2018 WL 345767 (N.D. Ind. Jan. 10, 2018) .............................................................................. 4
`Longitude Licensing v. Apple Inc,
` 2015 WL 1143071 (N.D. Cal. Mar. 13, 2015) ....................................................................... 3, 6
`
`
`
`ii
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`Case 1:21-cv-01445-JPM Document 24 Filed 03/16/22 Page 4 of 16 PageID #: 1021
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`Lytone Enter., Inc. v. Agrofresh Sols., Inc.,
` 2021 WL 534868 (D. Del. Feb. 12, 2021) ................................................................................. 3
`Mallinckrodt, Inc. v. E-Z-Em Inc.,
` 670 F. Supp. 2d 349 (D. Del. 2009) ........................................................................................... 1
`MONEC Holding AG v. Motorola Mobility, Inc.,
` 897 F. Supp. 2d 225 (D. Del. 2012) ............................................................................... 4, 6, 8, 9
`NETGEAR Inc. v. Ruckus Wireless Inc.,
` 2013 WL 1124036 (D. Del. Mar. 14, 2013) .............................................................................. 1
`Nike Inc. v. Wal-Mart Stores, Inc.,
` 138 F.3d 1437 (Fed. Cir. 1998).............................................................................................. 4, 6
`Novozymes N. Am., Inc. v. Danisco US Inc.,
` 2020 WL 12895027 (D. Del. Feb. 12, 2020) ......................................................................... 2, 3
`Pacing Tech, LLC. v. Garmin Int’l Inc.,
` 2013 WL 444642 (S.D. Cal. Feb. 5, 2013) ................................................................................ 4
`Princeton Digital Image Corp. v. Ubisoft Entm’t SA,
` 2016 WL 6594076 (D. Del. Nov. 4, 2016) .................................................................... 2, 3, 6, 7
`SIPCO, LLC v. Streetline, Inc.,
` 2018 WL 762335 (D. Del. Feb. 7, 2018) ................................................................................... 9
`Softview LLC v. Apple Inc.,
` 2012 WL 3061027 (D. Del. July 26, 2012) ............................................................................... 3
`Spherix Inc. v. Juniper Networks, Inc.,
` 2015 U.S. Dist. LEXIS 41057 (D. Del. March 31, 2015) .......................................................... 7
`State Indus., Inc. v. A.O. Smith Corp.,
` 751 F.2d 1226 (Fed. Cir. 1985).................................................................................................. 5
`Välinge Innovation AB v. Halstead New England Corp.,
` 2017 WL 5196379 (D. Del. Nov. 9, 2017), report and recommendation adopted, 2018 WL
`11013902 (D. Del. Jan. 10, 2018) ......................................................................................... 2, 10
`VLSI Tech., LLC v. Intel Corp.,
` 2019 WL 1349468 (D. Del. March 26, 2019)...................................................................... 1, 10
`Xpoint Techs., Inc. v. Microsoft Corp.,
` 730 F. Supp. 2d 349 (D. Del. 2010) ........................................................................................... 1
`Zapfraud, Inc. v. Barracuda Networks,
`2021 U.S. Dist. LEXIS 55658 (D. Del. March 24, 2021) ........................................................... 1
`Statutory Authorities
`
`35 U.S.C. § 271(b) .................................................................................................................... 9, 10
`35 U.S.C. § 287(a) .......................................................................................................................... 4
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`iii
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`Case 1:21-cv-01445-JPM Document 24 Filed 03/16/22 Page 5 of 16 PageID #: 1022
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`I.
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`SUMMARY OF ARGUMENT
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`In order to survive a motion to dismiss, a complaint’s allegations must present “more than
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`a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
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`(2009). In its Amended Complaint (D.I. 15) and Opposition (D.I. 22), Plaintiff Globus Medical,
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`Inc. (“Globus”) stretches both the facts and law to argue that it is conceivable that Defendant Life
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`Spine, Inc. (“Life Spine”) knew of the Asserted Patents, but this is not enough. None of Plaintiff’s
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`allegations support a plausible inference that Life Spine had actual pre-suit knowledge of the
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`Asserted Patents, and Plaintiff doesn’t even attempt to establish such knowledge for each of the
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`patents as it must for each of its claims to survive against the respective patents. Nor can post-suit
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`knowledge sustain Plaintiff’s claims.1 Plaintiff asserts that its alleged facts, which would be
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`present in nearly every single patent suit between competitors, are sufficient to plead both induced
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`and willful infringement. But the logical leaps to possibility that Plaintiff is asking the Court to
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`make fall short of plausibility. Because Plaintiff’s threadbare knowledge allegations do not meet
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`the pleading standard, these claims should be dismissed.
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`Plaintiff’s induced and willful infringement claims fail for the additional reasons that the
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`Amended Complaint contains no additional factual allegations regarding Life Spine’s knowledge
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`of infringement or specific intent to infringe. Thus, Life Spine’s Motion to Dismiss (D.I. 18)
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`1 Judges in this district have held that the complaint cannot serve as the source of knowledge for
`induced or willful infringement claims, and thus Life Spine’s motion should be granted as to all
`post-suit conduct. See, e.g., Zapfraud, Inc. v. Barracuda Networks, 2021 U.S. Dist. LEXIS 55658,
`at *4, 8, (D. Del. March 24, 2021); Dynamic Data Techs., LLC v. Brightcove Inc., 2020 WL
`4192613, at *2-3 (D. Del. July 21, 2020); VLSI Tech. LLC v. Intel Corp., 2019 WL 1349468, at *2
`(D. Del. Mar. 26, 2019); Callwave Comm’ns LLC v. AT&T Mobility LLC, 2014 WL 5363741, at
`*1 (D. Del. Jan. 28, 2014); Bonutti Skeletal Innovations LLC v. Conformis, Inc., 2013 WL
`6040377, at *2 n.5 (D. Del. Nov. 14, 2013); NETGEAR Inc. v. Ruckus Wireless Inc., 2013 WL
`1124036, at *1 (D. Del. Mar. 14, 2013); Xpoint Techs., Inc. v. Microsoft Corp., 730 F. Supp. 2d
`349, 357 (D. Del. 2010); Mallinckrodt, Inc. v. E-Z-Em Inc., 670 F. Supp. 2d 349, 354 n.1 (D. Del.
`2009).
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`
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`1
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`

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`Case 1:21-cv-01445-JPM Document 24 Filed 03/16/22 Page 6 of 16 PageID #: 1023
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`should be granted.
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`II.
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`PLAINTIFF’S SPECULATIVE ASSERTIONS ARE INSUFFICIENT TO PLEAD
`ACTUAL KNOWLEDGE OF THE ASSERTED PATENTS
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`If a plaintiff does not “nudge [its] claims across the line from conceivable to plausible, [its]
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`complaint must be dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Here,
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`Plaintiff argues that the Court should credit its tenuous allegations that Life Spine knew of the
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`Asserted Patents (allegations that essentially boil down to the fact that Plaintiff and Defendant are
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`competitors), simply because Plaintiff’s allegations are numerous. But the Court is not required
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`to do so, and quantity does not trump quality in this case.
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`First, the Court is not required to accept several individual tenuous allegations of
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`knowledge as sufficient in their totality. In Välinge Innovation AB v. Halstead New England
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`Corp., the court granted defendant’s motion to dismiss when that plaintiff alleged that the
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`defendant was a competitor, that it was “well known in the flooring products industry that
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`[plaintiff] has a substantial patent portfolio covering flooring products,” and that it licensed rights
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`to other manufacturers. 2017 WL 5196379, at *3 (D. Del. Nov. 9, 2017), report and
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`recommendation adopted, 2018 WL 11013902 (D. Del. Jan. 10, 2018). The court found that “it is
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`still too far of a leap to conclude, at least on the few facts pleaded here, that it is plausible that
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`[defendant] knew of every patent in [plaintiff’s] ‘substantial’ [] portfolio (including the asserted
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`patents) and what it would take to infringe those patents.” Id.; see also Princeton Digital Image
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`Corp. v. Ubisoft Entm’t SA, 2016 WL 6594076, at *8 (D. Del. Nov. 4, 2016) (finding that even if,
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`in addition to the knowledge allegations actually pled, plaintiff had also pled that the asserted
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`patent was “well-known in the relevant industry,” those allegations taken together would still fail).2
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`2 Plaintiff cites several inapposite cases, such as Novozymes N. Am., Inc. v. Danisco US Inc., 2020
`WL 12895027, at *2 (D. Del. Feb. 12, 2020), stating that “[i]t is well established that factual
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`2
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`Case 1:21-cv-01445-JPM Document 24 Filed 03/16/22 Page 7 of 16 PageID #: 1024
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`The Court is permitted to discount Plaintiffs’ threadbare allegations for their individual
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`insufficiencies, and as described fully below, Plaintiff has not sufficiently pled knowledge of the
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`Asserted Patents. See Välinge, 2017 WL 5196379 at *3; Princeton, 2016 WL 6594076 at *8.
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`Plaintiff argues that Life Spine had knowledge of the Asserted Patents because it “studied
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`similar products already in the market and the patents disclosing those existing products’
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`‘functions and features.’” D.I. 22 at 4 (emphasis in original).3 But the Amended Complaint fails
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`to connect Life Spine to the Asserted Patents, alleging only that Life Spine “studied existing
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`patents in the spinal fusion space.” D.I. 15 ¶ 32. Plaintiff’s failure to allege knowledge of the
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`specific Asserted Patents is fatal. See Longitude Licensing v. Apple Inc, 2015 WL 1143071, at *3
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`(N.D. Cal. Mar. 13, 2015) (“knowledge of the specific patents-in-suit before this lawsuit was filed”
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`is required to survive a motion to dismiss). And merely participating in the same market does not
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`allegations supporting an inference of knowledge must be considered in their totality.” D.I. 22 at
`4 (emphasis added). But the language that Plaintiff quotes from Novozymes in the very next
`sentence explicitly says that “the Court may consider the allegations as a whole.” Id. Regardless,
`Novozymes is easily distinguished. There, defendants were aware of the asserted patent’s PCT
`application and defendants’ representatives attended a presentation where plaintiff discussed the
`invention of the asserted patent. Novozymes, 2020 WL 12895027 at *2-3. None of those facts are
`present here. And although Plaintiff alleges that Life Spine attended the same conference as
`Plaintiff (D.I. 22 at 7), Plaintiff has not alleged that Life Spine attended any presentations by
`Plaintiff or that the Asserted Patents were presented in any way at that conference. D.I. 15 at ¶¶
`52, 61. The other cases cited are also distinguishable. Lytone Enter., Inc. v. Agrofresh Sols., Inc.,
`2021 WL 534868, at *3-4 (D. Del. Feb. 12, 2021) (crediting allegations that, unlike here, defendant
`directly cited Asserted Patent during prosecution of its own patent application and that plaintiff
`disclosed invention of asserted patent to defendant’s predecessor); Softview LLC v. Apple Inc.,
`2012 WL 3061027, at *5-6 (D. Del. July 26, 2012) (unlike here, plaintiff alleged that defendant
`had relationship with inventor of asserted patent and that, as the “exclusive seller” of the iPhone,
`defendant learned of the asserted patent through Apple).
`3 Plaintiff has not alleged “reverse engineering and copying” so its reliance on 10x Genomics, Inc.
`v. Celsee, Inc. is misplaced. 2019 WL 5595666, at *4 (D. Del. Oct. 30, 2019) (complaint alleged,
`unlike here, that defendant’s “entire business model is aimed at capturing market share and
`diverting business from [plaintiff] by copying [plaintiff’s] technology and business plans” and that
`defendant “recruits [plaintiff] employees who bring confidential information from [plaintiff] with
`them.”).
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`3
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`

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`Case 1:21-cv-01445-JPM Document 24 Filed 03/16/22 Page 8 of 16 PageID #: 1025
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`establish knowledge. MONEC Holding AG v. Motorola Mobility, Inc., 897 F. Supp. 2d 225, 232
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`(D. Del. 2012).
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`Later, Plaintiff adds that “Life Spine searched the Internet for its competitors’ patents.”
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`D.I. 22 at 6. If the Court accepts this generalized allegation as establishing knowledge of the
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`Asserted Patents, then induced and willful infringement would be present in virtually every patent
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`infringement suit between competitors.4 See Pacing Tech, LLC. v. Garmin Int'l Inc., 2013 WL
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`444642 at *2 (S.D. Cal. Feb. 5, 2013) (allegations that defendant “performs due diligence including
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`patent searches and prior art searches” were “too speculative to support a reasonable inference” of
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`pre-suit knowledge); Lippert Components Mfg. v. MOR/ryde, Inc., 2018 WL 345767, at *2 (N.D.
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`Ind. Jan. 10, 2018) (allegations “that the companies were competitors and [the defendant] actively
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`monitored intellectual property in the recreational vehicle industry” did not make defendant’s
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`knowledge of the patents-in-suit plausible). Generic allegations of Life Spine’s general knowledge
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`of spinal fusion patents is insufficient to establish knowledge of the Asserted Patents.
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`Next, Plaintiff asserts that because Life Spine has referenced Plaintiff’s products in its
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`510(k) submissions to the FDA in the past, it must have had knowledge of all of the Asserted
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`Patents. D.I. 22 at 5. But the Amended Complaint contains no allegation regarding when Life
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`Spine cited Plaintiff’s products in its 510(k) submissions, which specific model numbers were cited
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`in the submissions, and which specific individual Asserted Patents allegedly cover those models.
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`D.I. 22 at 5; D.I. 15 ¶¶ 49-50. These details are important. For instance, the ’739 and ’087 patents
`
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`4 Plaintiff’s reference to its website and citation to 35 U.S.C. § 287(a) regarding “notice” is
`irrelevant—it is black letter law that “[c]onstructive notice . . . is insufficient,” and Plaintiff does
`not allege that any Life Spine employee visited the website. Imonex Servs. v. W.H. Munzprufer
`Dietmar Trenner GmbH, 408 F.3d 1374, 1377 (Fed. Cir. 2005); see also Nike Inc. v. Wal-Mart
`Stores, Inc., 138 F.3d 1437, 1446 (Fed. Cir. 1998) (“However, the issue of willfulness turns on the
`actual knowledge of the infringer, and is unrelated to the adequacy of constructive notice by the
`patentee.”).
`
`
`
`4
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`

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`Case 1:21-cv-01445-JPM Document 24 Filed 03/16/22 Page 9 of 16 PageID #: 1026
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`did not even issue until 2021, only a few months before Globus filed suit. If Life Spine “reviewed
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`patents as part of that [510(k)] process,” D.I. 15 ¶ 49, then the Asserted Patents must have issued
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`by the time of that alleged review for Life Spine to plausibly have gained knowledge of them.
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`State Indus., Inc. v. A.O. Smith Corp., 751 F.2d 1226, 1236 (Fed. Cir. 1985) (“To willfully infringe
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`a patent, the patent must exist and one must have knowledge of it.”). “Culpability, however, is
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`generally measured against the actor’s knowledge at the time of the challenged conduct.” Halo
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`Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93, 94 (2016). It is impossible to infer from the Amended
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`Complaint that Life Spine submitted its 510(k) application after all of the Asserted Patents had
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`issued.5
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`Federal Circuit law establishes that constructive notice does not equate to actual knowledge
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`of the Asserted Patents. Supra, n.4. Plaintiff’s attempt to avoid this fact by pointing to its website
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`reveals the weakness of its position. The Amended Complaint makes no allegation that anyone at
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`Life Spine ever actually visited Plaintiff’s website that supposedly lists its patents. Plaintiff makes
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`the entirely speculative allegation that “Globus’s Patents page has received thousands of total
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`pageviews and unique pageviews, including over a hundred views originating from Huntley,
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`Illinois, where Life Spine is headquartered.” D.I. ¶ 29. Plaintiff is asking the Court to make
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`several logical leaps to infer that (1) someone who worked at Life Spine (and was not simply
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`located in Huntley, IL or somewhere nearby), (2) whose personal knowledge would impute
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`knowledge to Life Spine, (3) viewed Plaintiff’s patent web page, (4) at a time when the Asserted
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`Patents had issued, (5) specifically saw the Asserted Patents listed there, and (6) understood what
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`they covered. Again, Plaintiff fails to allege a time frame, making it impossible to know whether
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`5 Globus alleges that “[o]n October 8, 2021, Life Spine received a letter from the FDA approving
`its section 501(k) [sic] submission for a new PROLIFT product” which says nothing about when
`Life Spine supposedly “reviewed patents” for its application, if it did so at all. D.I. 15 at ¶ 50.
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`
`
`5
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`

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`Case 1:21-cv-01445-JPM Document 24 Filed 03/16/22 Page 10 of 16 PageID #: 1027
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`any of the Asserted Patents had issued at the time of these webpage “views.” D.I. ¶ 29. Because
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`constructive notice does not substitute for actual knowledge, this allegation falls short of the
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`“plausible” standard for surviving a motion to dismiss. See Twombly, 550 U.S. at 570; Imonex
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`Servs. v. W.H. Munzprufer Dietmar Trenner GmbH, 408 F.3d 1374, 1377 (Fed. Cir. 2005); see
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`also Nike Inc. v. Wal-Mart Stores, Inc., 138 F.3d 1437, 1446 (Fed. Cir. 1998).
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`Plaintiffs then ask the Court to infer knowledge of the Asserted Patents from allegations
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`that the spinal implant industry is “tight-knit,” Life Spine “monitor[s] competitors’ patent
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`portfolios,” and Plaintiff’s patent portfolio is “prominen[t].” D.I. 22 at 8.6 This allegation is
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`insufficient and, again, has no ties to the specific Asserted Patents and would be present in nearly
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`any competitor case. Välinge, 2017 WL 5196379 at *3 (“[I]t is still too far of a leap to conclude,
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`at least on the few facts pleaded here, that it is plausible that [defendant] knew of every patent in
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`that ‘substantial’ [plaintiff] portfolio (including the asserted patents) . . . .”); MONEC, 897 F. Supp.
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`2d 225 at 232 (“This court has not been convinced of the sufficiency of pleadings charging
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`knowledge that is based upon a defendant’s participation in the same market.”); Longitude, 2015
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`WL 1143071 at *3 (“neither the breadth of [plaintiff’s] patent portfolio nor its licensing revenue
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`show that [defendant] had knowledge of the specific patents-in-suit before this lawsuit was filed.”).
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`Finally, Plaintiff argues that “Life Spine consistently cited Globus’s patent portfolio—
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`including the Patents-in-Suit” during prosecution of Life Spine’s patents. D.I. 22 at 9-10. Yet,
`
`
`6 Elm 3DS Innovations, LLC v. Samsung Elecs. Co., 2015 WL 5725768, at *3 (D. Del. Sept. 29,
`2015) is inapposite and has been repeatedly distinguished because it presented a unique situation
`where, unlike here, defendants had “fairly detailed specific discussions about” patents “that shared
`the same specification as the asserted patent.” Princeton, 2016 WL 6594076 at *7-8; see also
`Välinge, 2017 WL 5196379 at *3; DermaFocus LLC v. Ulthera, Inc., 201 F. Supp. 3d 465, 471
`(D. Del. 2016); Evolved Wireless, LLC v. Samsung Elecs. Co., 2016 WL 1019667 at *4 (D. Del.
`March 5, 2016).
`
`
`
`
`6
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`

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`Case 1:21-cv-01445-JPM Document 24 Filed 03/16/22 Page 11 of 16 PageID #: 1028
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`the Amended Complaint does not contain a single allegation that Life Spine ever cited one of the
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`Asserted Patents. The closest allegations Plaintiff makes are that Life Spine cited the application
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`that issued as the ’732 Patent (D.I. 15 ¶¶ 54 & n.9, 55, 58) and the application of a patent that is
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`not asserted here, that is related to the ’739 Patent, in other PTO proceedings (D.I. 15 ¶ 59).7 These
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`are insufficient. There is no allegation that Life Spine “directly cited to the [asserted] patent, nor
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`to any member of [an asserted] patent’s family” when prosecuting its own patents. Princeton,
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`2016 WL 6594076 at *9. Furthermore, reference during prosecution may not be “compelling
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`evidence of knowledge, i.e., that the patent was ‘called to the attention’ of defendant.” Spherix
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`Inc. v. Juniper Networks, Inc., 2015 U.S. Dist. LEXIS 41057, *6 (D. Del. March 31, 2015).8
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`Therefore “[t]he record simply does not indicate that Defendants had any real level of engagement
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`with the particular subject matter that provides the background for the patent[s] in question.”
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`Princeton, 2016 WL 6594076 at *9; see also Välinge, 2017 WL 5196379 at *3.
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`Plaintiff also makes the conclusory assertion that “Life Spine had a practice of citing
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`Globus’s published applications after the patents had already issued” which “might be indicative
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`of willful blindness.” D.I. 22 at 12, n.7. Even if two citations to patent applications constituted a
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`“practice” (it does not), Plaintiff makes this point belatedly, in its brief only. The Amended
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`Complaint contains only the conclusory assertion that Life Spine was “willfully blind to the
`
`
`7 Plaintiff does not allege that the ’087 or ’752 Patent are related to either of these.
`8 Plaintiff dismisses Spherix, where the court found the plaintiff’s knowledge allegations
`insufficient because it claimed that defendant cited the asserted patent during only two of its many
`other patent prosecutions. D.I. 22 at 11, n.6. Plaintiff states that “the number of references Life
`Spine submitted to the PTO when prosecuting its patents is not pleaded in the Amended
`Complaint” and the “Amended Complaint does not indicate how many total patents are owned by
`Life Spine, but it is reasonable to infer that Life Spine has far fewer than 1,700.” Id. Plaintiff
`misses the point of Spherix, which is that a few citations during prosecution doesn’t rise to the
`level of actual knowledge if they were needles in a haystack. 2015 WL 1517508 at *3.
`
`
`
`
`7
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`

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`Case 1:21-cv-01445-JPM Document 24 Filed 03/16/22 Page 12 of 16 PageID #: 1029
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`disclosures of” the Asserted Patents and their “infringement by [] third parties.” D.I. 15 at ¶¶ 84,
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`95, 106, 117, 125, 137, 147.9 And willful blindness requires that (1) defendant subjectively
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`believed there was a high probability that a fact existed and (2) the defendant took a deliberate
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`action to avoid learning that fact. Helios Streaming, LLC v. Vudu, Inc., 2020 WL 2332045, at *8-
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`9 (D. Del. May 11, 2020) (dismissing willful blindness allegations that plaintiff directly notified
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`defendant of the asserted patents and defendant’s infringement, and defendant “repeatedly avoided
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`substantive licensing discussions.”). In any event, allegations that a defendant “monitors the
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`activities of its primary competitors . . including patent litigation” and that the defendant had
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`“constructive knowledge” of the asserted patent are “insufficient to establish ‘active efforts by an
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`inducer’ to avoid knowledge of the patent-in-suit” as required by the Supreme Court. MONEC,
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`897 F. Supp. 2d at 234. Plaintiff has neither pleaded Life Spine’s subjective belief of the Asserted
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`Patents’ existence nor a deliberate act taken to avoid that knowledge and therefore has not
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`sufficiently pled willful blindness. Id. (willful blindness requires, e.g., defendant making a
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`deliberate effort to omit disclosure of the patent to its attorney preparing a patent opinion).
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`For the foregoing reasons, Plaintiff has failed to sufficiently plead actual pre-suit
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`knowledge of the Asserted Patents.
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`III.
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`PLAINTIFF HAS NOT PLED PRE-SUIT KNOWLEDGE OF INFRINGEMENT
`OR SPECIFIC INTENT TO INDUCE
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`Mere knowledge that a patent exists does not equate to knowledge of infringement of that
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`patent nor intent to induce infringement of that patent. See Commil USA, LLC v. Cisco Sys., Inc.,
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`135 S. Ct. 1920, 1926 (2015); Boston Sci., 415 F. Supp. at 492; MONEC, 897 F. Supp. 2d at 235.
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`Because Plaintiff has not alleged additional facts demonstrating knowledge of infringement and
`
`
`9 Willful blindness is alleged as an alternative to actual knowledge for induced infringement only,
`and not willful infringement.
`
`
`
`8
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`

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`Case 1:21-cv-01445-JPM Document 24 Filed 03/16/22 Page 13 of 16 PageID #: 1030
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`intent to induce infringement, Plaintiff has failed to sufficiently plead induced infringement.
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`Plaintiff puts much weight on its allegations regarding Life Spine’s “encouragement” of
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`its distributors to sell PROLIFT and that Life Spine “encouraged customers to . . . use [PROLIFT]
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`in an infringing manner.” D.I. 22 at 16-17. But merely instructing customers to use the accused
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`products does not satisfy the requirements of induced infringement. MONEC, 897 F. Supp. 2d at
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`234 (“Defendant’s conduct in selling, advertising, supplying and instructing its respective
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`customers on the use of the infringing product” were merely “conclusory averments” that
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`“contain[ed] no factual support to establish the requisite ‘intent.’”); see also id. (“[a]llegations of
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`the marketing activities of the Defendants do not, on their own, demonstrate that Defendants knew
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`such activities were infringing or that Defendants possessed the specific intent to encourage
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`another’s infringement.”); Dodots Licensing Sols. LLC v. Lenovo Holding Co., 2018 WL 6629709
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`at *4 (D. Del. Dec. 19, 2018).
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`Plaintiff also makes note of the infringement charts that it included with the Amended
`
`Complaint. D.I. 22 at 18 n.12. But even where infringement charts are included, “a bare recitation
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`of the legal elements of an inducement claim” fail to support an inference of specific intent to
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`induce infringement. SIPCO, LLC v. Streetline, Inc., 2018 WL 762335, at *1-2 (D. Del. Feb. 7,
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`2018) (dismissing inducement claim when amended complaint added “claim charts, which appear
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`to show how the accused products meet each limitation of the asserted claims of the ten patents-
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`in-suit” and “a portion of the [defendant’s] website” but only included a “formulaic” allegation of
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`induced infringement that “contain[ed] no facts to support the allegation that [defendant]
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`specifically intended others to infringe Plaintiff's patents.”). Plaintiff’s “formulaic” allegations of
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`induced infringement therefore are insufficiently pled. See, e.g., D.I. 15 at ¶ 84 (“Life Spine has
`
`also actively induced infringement of the ’731 Patent pursuant to 35 U.S.C. § 271(b) by others,
`
`
`
`9
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`

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`Case 1:21-cv-01445-JPM Document 24 Filed 03/16/22 Page 14 of 16 PageID #: 1031
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`including non-party partners and distributors of the Accused Products, as well as surgeons who
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`use the Accused Products, directly and/or indirectly, on its own and/or through its agents.”); see
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`also id. at ¶¶ 95, 106, 117, 125, 137, 147.
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`IV.
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`PLAINTIFF PLEADS NO FACTS TO SHOW THAT LIFE SPINE KNEW OR
`SHOULD HAVE KNOWN THAT IT WAS INFRINGING
`
`While Plaintiff accuses Life Spine of a “cursory” willfulness analysis, Life Spine’s
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`argument is proportional to the facts that Plaintiff alleges regarding willful infringement; i.e., none.
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`D.I. 22 at 18. Indeed, Plaintiff does not include a single citation to the Amended Complaint in its
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`argument. Id. at 18-19. As noted in the Motion to Dismiss, the only allegation that Plaintiff makes
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`regarding willful infringement is that “Life Spine’s infringement of the [Asserted Patents] has been
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`and continues to be willful, as Life Spine had notice of the [Asserted Patents] and deliberately
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`continued to infringe.” D.I. 15 at ¶¶ 88, 99, 110, 121, 130, 141, 151. First, Plaintiff’s willful
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`infringement claim fails for failing to plausibly assert knowledge of the Asserted Patents. See
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`supra at Section II. But even if knowledge was sufficiently pled (it was not), the willfulness claim
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`also fails because the Amended Complaint fails to allege that Life Spine “knew, or should have
`
`known, that its conduct amounted to infringement of the patent.” See Välinge Innovation, 2018
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`WL 2411218 at *13; Dynamic Data Techs., 2020 WL 4365809 at *5. In other words, Plaintiff
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`fails to plead that Life Spine’s alleged infringement was “deliberate or intentional,” and therefore,
`
`its willfulness claimed should be dismissed. Bayer HealthCare LLC v. Baxalta Inc., 989 F.3d 964,
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`988 (Fed. Cir. 2021); see also Dynamic Data Techs., 2020 WL 4365809 at *5; VLSI Tech., LLC
`
`v. Intel Corp., 2019 WL 1349468, at *2 (D. Del. March 26, 2019).
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`V.
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`CONCLUSION
`
`Plaintiff has failed to sufficiently plead induced infringement and willful infringement of
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`all Asserted Patents. Life Spine respectfully requests that its Motion to Dismiss be granted.
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`
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`10
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`

`

`Case 1:21-c