Case 1:23-cv-00758-GBW Document 23 Filed 01/05/24 Page 1 of 15 PageID #: 1176
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR DISTRICT OF DELAWARE
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`
`
`C.A. No. 23-0758-GBW
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`
`
`
`))))))))))
`
`ORCA SECURITY LTD.,
`Plaintiff,
`
`v.
`
`WIZ, INC.
`
`Defendants.
`
`
`DEFENDANT WIZ, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO
`DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT
`
`
`
`OF COUNSEL:
`
`Jordan R. Jaffe
`Catherine Lacey
`Callie Davidson
`Alex Miller
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`(415) 947-2000
`
`Dated: January 5, 2024
`
`RICHARDS, LAYTON & FINGER, P.A.
`Frederick L. Cottrell, III (#2555)
`Kelly E. Farnan (#4395)
`Christine D. Haynes (#4697)
`One Rodney Square
`920 N. King Street
`Wilmington, DE 19801
`(302) 651-7700
`cottrell@rlf.com
`farnan@rlf.com
`haynes@rlf.com
`
`Counsel for Defendant Wiz, Inc.
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`Case 1:23-cv-00758-GBW Document 23 Filed 01/05/24 Page 2 of 15 PageID #: 1177
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`
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`TABLE OF CONTENTS
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`Page
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`TABLE OF AUTHORITIES .......................................................................................................... ii
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`INTRODUCTION .......................................................................................................................... 1
`ARGUMENT .................................................................................................................................. 2
`I.
`The Asserted Patents, This Litigation, and Orca’s Complaints .......................................... 2
`II.
`Patents or Purported Infringement Prior the Filing of the Complaint ................................ 3
`III.
`of the Later Asserted Patents or Their Alleged Infringement ............................................. 6
`IV.
`Plausible Knowledge of the Asserted Patents or Their Purported Infringement ................ 9
`V.
`Orca Fails to Plausibly Plead Other Elements of Indirect Infringement ............................ 9
`CONCLUSION ............................................................................................................................. 10
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`Pre-Suit: Orca Has Not Plausibly Alleged Wiz’s Knowledge of the Asserted
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`During the Lawsuit: Orca’s Mid-Suit C&D Does Not Show Plausible Knowledge
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`The Filing of the Complaint or Amended Complaints Does Not Show Wiz Had
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`i
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`Case 1:23-cv-00758-GBW Document 23 Filed 01/05/24 Page 3 of 15 PageID #: 1178
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`
`
`TABLE OF AUTHORITIES
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`CASES
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`Page(s)
`
`Chimie v. PPG Indus.,
`218 F.R.D. 416 (D. Del. 2003) ............................................................................................3
`
`Cleveland Medical Devices Inc. v. ResMed, Inc., No. 22-794-GBW,
`2023 WL 6389628 (D. Del. Oct. 2, 2023) .......................................................................8, 9
`
`
`Corephotonics, Ltd. v. Apple, Inc., No. 17-CV-06457-LHK,
`2018 WL 4772340 (N.D. Cal. Oct. 1, 2018)........................................................................7
`
`
`Deere & Co. v. AGCO Corp., No. 18-827-CFC,
`2019 WL 668492 (D. Del. Feb. 19, 2019) ...........................................................................5
`
`
`Glob-Tech Appliances Inc. v. SEB S.A.,
`563 US 754 (2011) ...............................................................................................................8
`
`Gustafson, Inc. v. Intersystems Indus. Prods., Inc.,
`897 F.2d 508 (Fed. Cir. 1990)..............................................................................................3
`
`iFIT Inc. v. Peloton Interactive, Inc., No. 21-507-RGA,
`2022 WL 609605 (D. Del. Jan. 28, 2022) ............................................................................9
`
`
`LiTL LLC v. Dell Techs. Inc., No. 23-121-RGA,
`2023 WL 7922176 (D. Del. Nov. 16, 2023) ........................................................................5
`
`
`LiTL LLC v. HP Inc.,No. 23-120-RGA,
`2023 WL 7921477 (D. Del. Nov. 16, 2023) ........................................................................5
`
`
`Malvern Panalytical Ltd. v. Instruments-Waters LLC, No. 19-cv-2157-RGA,
`2021 WL 3856145 (D. Del. Aug. 27, 2021) ........................................................................6
`
`
`Monec Holding AG v. Motorola Mobility, Inc.,
`897 F. Supp. 2d 225 (D. Del. 2012) .....................................................................................8
`
`Neology, Inc. v. Kapsch Trafficcom IVHS, Inc., No. 13-2052,
`2014 WL 4675316 (D. Del. Sept. 19, 2014) ......................................................................10
`
`
`Philips v. ASUSTeK Comput. Inc, No. 15-1125,
`2016 WL 6246763 (D. Del. Oct. 25, 2016) .......................................................................10
`
`
`SEB SA v. Montgomery Ward & Co,
`594 F. 3d 1360 (Fed. Cir. 2010)...........................................................................................8
`
`
`
`ii
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`Case 1:23-cv-00758-GBW Document 23 Filed 01/05/24 Page 4 of 15 PageID #: 1179
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`Sonos, Inc. v. Google LLC,
`591 F. Supp. 3d 638 (N.D. Cal. 2022) .............................................................................7, 8
`
`State Indus., Inc. v. A.O. Smith Corp.,
`751 F.2d 1226 (Fed. Cir. 1985)............................................................................................3
`
`VLSI Tech. LLC v. Intel Corp., No. 17-cv-05671,
`2023 WL 8654391 (N.D. Cal. Dec. 14, 2023) .....................................................................6
`
`
`VLSI Tech. LLC v. Intel Corp., No. 18-0966-CFC,
`2020 WL 3488584 (D. Del. June 26, 2020) .........................................................................6
`
`STATUTES
`
`35 U.S.C. § 271(c) .........................................................................................................................10
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`iii
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`Case 1:23-cv-00758-GBW Document 23 Filed 01/05/24 Page 5 of 15 PageID #: 1180
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`INTRODUCTION
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`After three tries, Orca still has not plausibly alleged willful or indirect infringement. Its
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`conclusory and farfetched allegations of copied “coffee” or “copied lawyers” readily show this.
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`Indeed, Orca’s Opposition abandons many of its initial allegations, highlighting that this lawsuit
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`is premised on a baseless narrative to distract from Wiz’s success and Orca’s failures. Notably
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`missing from Orca’s opposition is any discussion of its allegations that Wiz “copied” a coffee
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`booth at a conference and many responses are relegated exclusively to footnotes.
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`After Wiz identified the lack of pre-suit notice in its original motion to dismiss, Orca
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`resorted to sending a cease-and-desist letter (“C&D”) while this lawsuit was ongoing—and three
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`days before its opposition to Wiz’s motion was due—to try and manufacture claims of willful
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`and indirect infringement for additional related patents. Orca’s mid-lawsuit tactics do not create
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`a willful infringement claim where none exists. Wiz created its products independently and
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`denies the allegations that it had the requisite pre-suit knowledge of the Asserted Patents.
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`Still, Orca continues to claim that several pieces of implausible allegations are
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`collectively enough to create at least one plausible allegation. This misses the mark. The
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`accused products have all been in the market for years. Orca’s allegations of copying do not
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`make sense where the patents did not exist when the product was created and first sold. This is
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`why Orca has sought to create a claim for willful infringement via its mid-lawsuit C&D.
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`Finally, Orca doubles down on its belief that threadbare allegations regarding inducement
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`to infringe and Wiz’s CSP not having non-infringing uses are somehow enough to support claims
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`of induced and contributory infringement. But neither claim is viable. Orca’s claims against
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`Wiz for indirect and willful infringement should be dismissed.
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`1
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`Case 1:23-cv-00758-GBW Document 23 Filed 01/05/24 Page 6 of 15 PageID #: 1181
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`I.
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`
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`ARGUMENT
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`The Asserted Patents, This Litigation, and Orca’s Complaints
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`Orca accuses certain of Wiz’s products of infringing six patents—U.S. Patent Nos.
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`11,663,031 (the “’031 patent”) (D.I. 15-1, Ex. 1); 11,663,032 (the “’032 patent”) (D.I. 15-1, Ex.
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`2); 11,693,685 (the “’685 patent”) (D.I. 15-1, Ex. 7); 11,726,809 (the “’809 patent”) (D.I. 15-1,
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`Ex. 8); 11,740,926 (the “’926 patent”) (D.I. 15-1, Ex. 9); and 11,775,326 (the ’326 patent”) (D.I.
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`15-1, Ex. 14) (together the “Asserted Patents”). The Asserted Patents all claim priority to the
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`same original provisional application filed on January 28, 2019 and are directed at methods of
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`allegedly improving cloud security. See generally D.I. 15 (“SAC”); Asserted Patents.
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`
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`Because Orca’s brief conflates its various patents, allegations, and arguments together, it
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`is helpful to walk through the timeline. The ’031 and ’032 patents issued on May 30, 2023, less
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`than two months before the initial complaint (“Complaint”) was filed. See D.I. 1, ¶¶ 34, 63.
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`Even though Wiz’s product has been in the market for years, there are no allegations that Orca
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`contacted Wiz before filing suit on July 12, 2023 to either notify Wiz of its patents or its alleged
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`infringement. For the patents asserted in the Complaint (’031 and ’032), Orca relies solely on
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`baseless “copying” allegations and a conclusory assertion that Wiz “monitors” Orca’s patent
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`portfolio. There are no allegations specific to the time between when Orca’s ’031 and ’032
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`patents issued on May 30, 2023 and when its Complaint was filed on July 12, 2023.
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`
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`The remaining Asserted Patents were not included in the Complaint. With one exception,
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`they issued after the Complaint was filed: the ’809 patent issued on August 15, 2023, the ’926
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`patent on August 29, 2023, and the ’326 patent on October 3, 2023. See SAC, ¶¶ 145, 180, 214.
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`The ’685 patent issued on July 4, 2023, shortly before the Complaint was filed. Id., ¶ 110. For
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`each of these patents, Orca relies on a C&D it sent on September 12, 2023, a month after it filed
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`this lawsuit and three days before Orca’s response to Wiz’s motion to dismiss the Complaint was
`2
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`Case 1:23-cv-00758-GBW Document 23 Filed 01/05/24 Page 7 of 15 PageID #: 1182
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`due. Other than its mid-lawsuit C&D, Orca’s FAC includes no allegations regarding knowledge
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`of the patents or infringement between patent issuance and the filing of the operative complaint,
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`which ranges from a week (the ’326 patent) to two months (the ’685 patent).
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`II.
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`Pre-Suit: Orca Has Not Plausibly Alleged Wiz’s Knowledge of the Asserted Patents
`or Purported Infringement Prior the Filing of the Complaint
`
`
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`It is undisputed that Orca provided no pre-suit notice to Wiz of any of its patents or their
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`alleged infringement before commencing suit. Rather, Orca relies on pre-issuance “copying”
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`allegations. See Opp. (D.I. 22), at 10-13. These arguments are insufficient as a matter of law.
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`First, all the allegations of copying occurred before the two patents asserted in the
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`Complaint existed. Wiz cited several cases directly on point (Op. Br. (D.I. 18), at 10) that Orca
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`does not distinguish. See Gustafson, Inc. v. Intersystems Indus. Prods., Inc., 897 F.2d 508, 510
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`(Fed. Cir. 1990) (“It is obvious that a party cannot be held liable for ‘infringement’, and thus not
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`for ‘willful’ infringement, of a nonexistent patent”). Instead, Orca wrongly argues that its pre-
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`issuance copying allegations are adequate to show plausible knowledge. Opp. at 10-13. Even
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`where pre-issuance conduct is considered, courts have found such conduct relevant only where
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`“there is particularly egregious behavior showing a party intent on misappropriating a
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`competitor’s proprietary technology.” Chimie v. PPG Indus., 218 F.R.D. 416, 422 (D. Del.
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`2003); State Indus., Inc. v. A.O. Smith Corp., 751 F.2d 1226, 1238 (Fed. Cir. 1985)
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`(distinguishing case where evidence of pre-issuance copying was admitted due to egregious
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`circumstances that the Federal Circuit described as “a most elaborate and detailed copying . . . by
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`a corps of engineers working in secrecy over a period of a couple of years to pry loose the secret
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`of Milgo’s inventions.”). No such egregious behavior has been plausibly alleged here, so Orca’s
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`argument that pre-issuance conduct is relevant is unavailing.
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`3
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`Instead of meaningfully engaging with Wiz’s arguments demonstrating the faulty
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`“copying” allegations, Orca simply regurgitates some of the “many examples” it initially put
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`forth. Opp. at 11-12. But for the same reasons detailed in Wiz’s Opening Brief—and ignored by
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`Orca—there is no nexus between these examples and the Asserted Patents. See Op. Br. at 14-16.
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`They are thus not sufficient to show plausible knowledge of the patents or their infringement. Id.
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`For example, Orca fails to address its failed “copied patent boilerplate” argument after Wiz
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`showed that the same generic content was in several applications filed years prior to Orca’s,
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`comprised ~1% of the text and was filed three years prior to any Asserted Patent issued. Id. at
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`10-12. There’s similarly no mention of copying the word “MRI” or serving coffee.
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`Tellingly, Orca’s scant attempts to engage with Wiz’s substantive arguments often occur
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`exclusively in footnotes. In one footnote, Orca claims that Wiz “does not dispute” that analysts
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`have recognized Wiz’s platform has similar features as Orca’s. Opp. at 11 n.3. Wiz did not
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`dispute this claim because the shared features Orca refers to are merely conventional
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`cybersecurity terms and features (as Wiz previously explained). See Op. Br. at 15. That both
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`companies have “Cybersecurity Features” does not equate to copying in any manner, let alone in
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`a manner relevant to willful infringement of the Asserted Patents.
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`In another footnote, Orca incorrectly argues that it is “reasonable” to impute outside
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`counsel’s knowledge to Wiz. Opp. at 12 n.4. As Wiz previously detailed, the consequences of
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`this theory are severe and should not be overlooked. Op. Br. at 9-10. Orca’s theory is that a
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`lawyer’s work for every client should be imputed to every other client. Orca cites no case law
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`supporting such a theory. Orca further does not distinguish Wiz’s cited authority that makes
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`clear that imputing knowledge from one client to another unrelated client is inappropriate. Id. at
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`9. Instead, Orca cites to two inapposite cases, where the court found that outside counsel’s
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`knowledge could be imputed only because the knowledge concerned work done by outside
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`Case 1:23-cv-00758-GBW Document 23 Filed 01/05/24 Page 9 of 15 PageID #: 1184
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`counsel for the same client. See Opp. at 12 n.4 (citing LiTL LLC v. Dell Techs. Inc., No. 23-121-
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`RGA, 2023 WL 7922176, at *2 (D. Del. Nov. 16, 2023); LiTL LLC v. HP Inc., No. 23-120-RGA,
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`2023 WL 7921477, at *2 (D. Del. Nov. 16, 2023)).
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`In an attempt to explain away its cursory dismissal of Wiz’s arguments, Orca claims that
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`“alternative explanations” to its individual allegations that purportedly show knowledge go to
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`defenses and merits of Orca’s claims, not adequacy of pleadings.1 Opp. at 14. Not so. If a party
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`could propound any baseless allegation to support plausible knowledge without consideration of
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`arguments to the contrary, no claims would ever be dismissed on the pleadings. As an example
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`of an “alternative explanation,” Orca points to Wiz’s rebuttal to its argument that Wiz “copied”
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`Orca’s lawyers. Opp. at 14. But Orca does not dispute that Wiz had hired the same lawyer
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`before Orca even existed, as public judicially noticeable records show. Op. Br. at 15. Instead,
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`Orca now claims that it is possible that Wiz could also have later hired the same lawyer
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`specifically to copy Orca. Opp. at 14. Repeatedly hiring the same lawyer is not “copying”
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`under any reasonable definition, making the suggestion squarely implausible.2 Regardless, Orca
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`pleads no facts to support that fanciful theory.
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`Even though Orca has no basis for claiming that its individual allegations are plausible,
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`Orca wrongly claims that those implausible allegations taken together somehow make it
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`“plausible, on information and belief” that Wiz monitors Orca’s patent portfolio and knew of
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`Orca’s patents, and somehow knew of its alleged infringement. Opp. at 11-12. Its allegations are
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`1 Orca’s cite to Deere & Co. v. AGCO Corp., is inapposite. No. 18-827-CFC, 2019 WL 668492,
`at *5-6 (D. Del. Feb. 19, 2019). Opp. at 14. The Deere court found that while it was plausible
`that plaintiff was using the lawsuit to scare competitors out of the marketplace with baseless
`assertions, plaintiff had also included sufficient allegations to make its claim plausible. 2019
`WL 668492 at * 5-6. Here, while Orca seems to be using this lawsuit to attempt to scare Wiz out
`of the marketplace, there are insufficient allegations to make Orca’s claims for willful and
`indirect infringement plausible. See supra Section II; Op. Br. § V.A.
`2 There are no allegations of malfeasance by any attorney here.
`5
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`Case 1:23-cv-00758-GBW Document 23 Filed 01/05/24 Page 10 of 15 PageID #: 1185
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`just as insufficient collectively as they are individually. Op. Br. at 14; see also VLSI Tech. LLC
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`v. Intel Corp., No. 17-cv-05671, 2023 WL 8654391, at *30 (N.D. Cal. Dec. 14, 2023) (“VLSI
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`has put forth several pieces of evidence that are unrelated, tenuous, and not significantly
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`probative, perhaps in the hope that in combination they are equivalent to a single piece of
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`material evidence. But VLSI’s evidence is just as weak when viewed collectively under the
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`totality of the circumstances as it is individually.”); Malvern Panalytical Ltd. v. Instruments-
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`Waters LLC, No. 19-cv-2157-RGA, 2021 WL 3856145, at *3 (D. Del. Aug. 27, 2021) (pleading
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`pre-suit competitor monitoring supports inference of knowledge of infringements only where
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`there are “detailed allegations” and “pre-suit knowledge [i]s undisputed.”).
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`Critically, simply stating that Wiz had knowledge of the Asserted Patents because of this
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`alleged monitoring is not enough. Orca does not allege that this alleged “monitoring” resulted in
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`knowledge of infringement after the patents issued. See Op. Br. at 16-17; see also VLSI Tech.
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`LLC v. Intel Corp., No. 18-0966-CFC, 2020 WL 3488584, at *5 (D. Del. June 26, 2020)
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`(“Allegations about monitoring competition generally and about patents not asserted here do not
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`plausibly establish that Intel had knowledge of infringement of the [asserted] patents.”). Orca in
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`its Opposition never identifies any pre-lawsuit fact allegations that would establish that Wiz
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`knew of its alleged infringement of any Asserted Patents after they issued starting in May 2023.
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`This is determinative for the claims of pre-suit willful infringement. Id.
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`III. During the Lawsuit: Orca’s Mid-Suit C&D Does Not Show Plausible Knowledge of
`the Later Asserted Patents or Their Alleged Infringement
`
`
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`Orca does not dispute that it sent its C&D three days before its response to Wiz’s original
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`motion to dismiss was due, with a deadline to respond corresponding almost exactly to the filing
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`deadline. Instead, Orca insists that regardless of when the C&D was sent, it was “formal pre-suit
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`notice” for the later Asserted Patents. Opp. at 7. If, as Orca claims, its “examples of pre-
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`6
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`Case 1:23-cv-00758-GBW Document 23 Filed 01/05/24 Page 11 of 15 PageID #: 1186
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`issuance copying” and the “pattern of copying” are adequate pre-suit knowledge (id. at 11-12),
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`Orca would not have had to send a C&D mid-suit. Regardless, Orca’s manufactured “notice”
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`cannot be considered “pre-suit.” Orca makes four arguments for why its mid-suit C&D is
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`adequate notice; each fails.
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`First, for the ’685, ’809 and ’926 patents, Orca tries a sleight of hand, pointing at “the
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`four weeks that passed between Orca’s [C&D] and the SAC.” Id. at 9. But all these patents
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`were asserted in the First Amended Complaint (“FAC”), so there was no time to “consider” the
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`C&D between the FAC and SAC. Orca had already sued on them. That is not pre-suit notice
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`under any reading. Orca then dedicates one sentence to arguing that “three days was sufficient”
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`because of its allegations of pre-suit copying. Id. As explained above and in Wiz’s Opening
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`Brief, Orca has not sufficiently alleged that Wiz had plausible knowledge of, or copied, Orca’s
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`technology and patents. This case is nothing like Orca’s sole cited authority of Corephotonics,
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`Ltd. v. Apple, Inc., where the court found that Apple was willfully blind because it had worked
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`closely with Corephotonics’ technology, cited to one of the asserted patents, and sent a message
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`to Corephotonics cautioning them not to send it additional patents—all before it received a notice
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`of infringement. No. 17-CV-06457-LHK, 2018 WL 4772340, at *9-10 (N.D. Cal. Oct. 1, 2018).
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`On the contrary, Orca’s tactics here are more objectionable than those in Wiz’s cited
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`authority because litigation was already ongoing here and all the Asserted Patents have the same
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`accused functionality. Wiz could not have ceased “infringing” on some patents when the same
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`activity was allegedly already infringing the ’031 and ’032 patents in the pending litigation. See
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`Op. Br. at 13 (discussing Sonos, Inc. v. Google LLC, 591 F. Supp. 3d 638 (N.D. Cal. 2022)).
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`Orca’s conduct is the exact type of gamesmanship that Sonos and other cases seek to prevent.
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`Second, Orca argues that “Wiz’s infringing acts would not have changed with additional
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`time.” Opp. at 9. Orca cites no case law supporting this “it does not matter” theory, and Wiz is
`7
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`aware of none. The only relevant question is whether the C&D plausibly alleges pre-suit
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`knowledge. And the answer is clear: it does not. And as stated above, Orca ignores the relevant
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`cases cited by Wiz (e.g., Sonos, 591 F. Supp. 3d at 638).
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`Orca cites Cleveland Medical Devices Inc. v. ResMed, Inc., No. 22-794-GBW, 2023 WL
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`6389628, at *4 (D. Del. Oct. 2, 2023), for the proposition that “alleged knowledge of patent
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`family members and related patents . . . can be sufficient to overcome a motion to dismiss.”
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`Opp. at 10. However, Cleveland rejected pre-suit knowledge based on related patents where the
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`asserted patents issued later. 2023 WL 6389628 at *4. The same is true here.
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`Third, Orca claims that its “virtual marking” of the ’685, ’809, and ’926 patents is
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`“sufficient to defeat Wiz’s motion.”3 Opp. at 10. But there are no allegations that Wiz knew of
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`the Asserted Patents or their marking after issuance and further knew of its alleged infringement.
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`Indeed, the ’926 patent issued on August 29, 2023 and was asserted two weeks later on
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`September 12, 2023. Orca does not allege when it added the ’926 patent to its virtual marking or
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`that Wiz would have been daily monitoring Orca’s website for newly identified patents, and
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`instantly knew it was infringing–without any notice from Orca. Similar conclusory “monitoring”
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`allegations have been continually rejected and should again be here. See Op. Br. at 14-16.4
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`Finally, Orca relies on the ’326 patent, stating that it “first asserted the ’326 patent in the
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`SAC on October 10, 2023, meaning Wiz had four weeks from the September 12 [C&D] to
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`address its ongoing infringement.” Opp. at 8. This is misleading. The ’326 patent did not issue
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`3 Orca’s cited authority is irrelevant. It simply highlights that marking can be considered
`constructive notice for damages. SEB SA v. Montgomery Ward & Co, 594 F. 3d 1360, 1378 (Fed.
`Cir. 2010); Glob-Tech Appliances Inc. v. SEB S.A., 563 US 754 (2011). “[A]ctual (not
`constructive) knowledge is necessary to state a claim for indirect infringement.” Monec Holding
`AG v. Motorola Mobility, Inc., 897 F. Supp. 2d 225, 232 n.6 (D. Del. 2012).
`4 Orca did not plead that it practiced its patents until Wiz pointed out the deficiency in its initial
`motion to dismiss.
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`8
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`Case 1:23-cv-00758-GBW Document 23 Filed 01/05/24 Page 13 of 15 PageID #: 1188
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`until October 3, 2023 (D.I. 15-1, Ex. 14 at (45)), so there was no enforceable patent until one
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`week before it was asserted in the SAC. The C&D also did not differentiate between the other
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`patents and what became the ’326 patent. It required an affidavit in less than three days’ time for
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`all the newly Asserted Patents, including for what led to the ’326 patent.
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`IV.
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`The Filing of the Complaint or Amended Complaints Does Not Show Wiz Had
`Plausible Knowledge of the Asserted Patents or Their Purported Infringement
`
`
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`Orca attempts to dismiss Wiz’s argument that, as courts in this district have found,
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`knowledge of a patent gained through a complaint or amended complaint cannot serve as
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`knowledge for purposes of indirect or willful infringement.5 Orca argues that Wiz is incorrect
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`because it “ignores” the “majority view.” Opp. at 15. But in its Opening Brief, Wiz recognized
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`the split in authority but chose to follow Cleveland, where this Court adopted the well-reasoned
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`view that a complaint cannot serve as notice because a lawsuit does not create a claim. 2023 WL
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`6389628 at *7. Orca then tries to distinguish Cleveland using Torchlight Technologies LLC v.
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`Daimler AG, et al. (D. Del. Feb. 2, 2023) (D.I. 22-1). Id. at 16. But Torchlight was decided over
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`8 months before Cleveland and has no import on the Cleveland decision. And Orca ignores
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`Wiz’s cite to iFIT Inc. v. Peloton Interactive, Inc., No. 21-507-RGA, 2022 WL 609605, at *2 (D.
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`Del. Jan. 28, 2022), which explicitly states that an amended complaint is insufficient.
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`
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`V.
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`
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`Orca Fails to Plausibly Plead Other Elements of Indirect Infringement
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`Orca has not sufficiently shown that Wiz’s challenges to Orca’s indirect infringement
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`claims fail. First, Orca does not explain how Wiz’s instructions caused customers to infringe
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`Orca’s patents as required for induced infringement. Instead, Orca simply claims that its
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`conclusory allegations that Wiz’s blog posts and video purportedly instruct users how to do
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`5 Orca also entirely ignores Wiz’s Opening Brief when it claims that Wiz does not “challenge”
`that the Complaint and the FAC plausibly allege willful and indirect infringement. Opp. at 15.
`9
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`Case 1:23-cv-00758-GBW Document 23 Filed 01/05/24 Page 14 of 15 PageID #: 1189
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`certain things “in a manner that infringes” are enough to plausibly show how those instructions
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`cause customers to infringe. Opp. at 17. Not so. As Wiz explained in its Opening Brief, these
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`are precisely the kind of allegations that have been found insufficient because the purported
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`instructions just describe the operation of Wiz’s products. See Op. Br. at 18.
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`
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`Additionally, Orca is wrong that Wiz keeping its marketing materials on its website after
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`the filing of the complaint and receipt of the C&D constitutes “specific intent” to encourage
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`another’s infringement. Opp. at 17. Orca has not established that any of these materials
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`plausibly caused customers to infringe. Nor has it pointed to any authority stating that merely
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`keeping up marketing materials is enough to support specific intent.
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`
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`Second, Orca does not dispute that it failed to sufficiently allege that Wiz’s CSP was
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`especially made for infringement and has no non-infringing use, as is needed to show
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`contributory infringement. Instead, it baselessly asserts that Wiz does not argue that its platform
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`is suitable for substantial non-infringing use. Id. at 18. While Wiz’s platform is suitable for such
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`use, that is not relevant at this juncture because, as even Orca recognizes, it is plaintiff’s burden
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`to show that the infringing product does not have such a use. 35 U.S.C. § 271(c); see also Opp. at
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`18. And Orca does not dispute that in cases with facts analogous to this case, contributory
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`infringement claims have been dismissed because the complaint does not provide facts to support
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`the inference that the accused functionalities have no substantial non-infringing use. See Op. Br.
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`at 20 (citing Philips v. ASUSTeK Comput. Inc, No. 15-1125, 2016 WL 6246763, at *4 (D. Del.
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`Oct. 25, 2016); Neology, Inc. v. Kapsch Trafficcom IVHS, Inc., No. 13-2052, 2014 WL 4675316,
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`at *7 n.8 (D. Del. Sept. 19, 2014)).
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`CONCLUSION
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`For the foregoing reasons, Wiz respectfully requests that Orca’s claims for indirect and
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`willful infringement be dismissed.
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`10
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`Case 1:23-cv-00758-GBW Document 23 Filed 01/05/24 Page 15 of 15 PageID #: 1190
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`OF COUNSEL:
`
`Jordan R. Jaffe
`Catherine Lacy
`Callie Davidson
`Alex Miller
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`(415) 947-2000
`
`Dated: January 5, 2024
`
`
`
`
`/s/ Frederick L. Cottrell, III
`Frederick L. Cottrell, III (#2555)
`Kelly E. Farnan (#4395)
`Christine D. Haynes (#4697)
`RICHARDS, LAYTON & FINGER, P.A.
`One Rodney Square
`920 N. King Street
`Wilmington, DE 19801
`(302) 651-7700
`cottrell@rlf.com
`farnan@rlf.com
`haynes@rlf.com
`
`Counsel for Defendant Wiz, Inc.
`
`
`
`11
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`