Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 1 of 20 PageID #: 470
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`LINKEDIN, CORPORATION,
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`Defendant.
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`ALMONDNET, INC. and INTENT IQ, LLC,
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`v.
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`Plaintiffs,
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`C.A. No. 23-1373 (MN)
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`OPENING BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Rodger D. Smith II (#3778)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19801
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`rsmith@morrisnichols.com
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`Attorneys for Defendant
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`OF COUNSEL:
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`David J. Silbert
`Michelle Ybarra
`Erin E. Meyer
`Theresa Dawson
`Amos J. B. Espeland
`Sydnee Joi Robinson
`KEKER, VAN NEST & PETERS LLP
`633 Battery Street
`San Francisco, CA 94111-1809
`(415) 391-5400
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`
`
`February 12, 2024
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`

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`Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 2 of 20 PageID #: 471
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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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`TABLE OF CONTENTS
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`INTRODUCTION ...............................................................................................................1
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`NATURE AND STAGE OF PROCEEDINGS ...................................................................2
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`SUMMARY OF ARGUMENT ...........................................................................................2
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`STATEMENT OF FACTS ..................................................................................................4
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`LEGAL STANDARD ..........................................................................................................5
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`VI.
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`ARGUMENT .......................................................................................................................6
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`A.
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`AlmondNet’s induced, contributory, and willful infringement claims
`should be dismissed for failure to plead LinkedIn’s knowledge of or
`willful blindness to the Relevant Patents. ................................................................6
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`1.
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`2.
`
`The Complaint does not adequately allege that LinkedIn had
`knowledge of the Relevant Patents. .............................................................6
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`AlmondNet has not plausibly alleged that LinkedIn was willfully
`blind to the Relevant Patents........................................................................9
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`B.
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`C.
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`AlmondNet’s induced and contributory infringement claims should be
`dismissed because AlmondNet fails to allege direct infringement by a third
`party. ......................................................................................................................10
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`AlmondNet’s induced infringement claims should be dismissed because
`AlmondNet fails to plead that LinkedIn acted with specific intent to
`induce infringement. ..............................................................................................12
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`VII. CONCLUSION ..................................................................................................................15
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`Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 3 of 20 PageID #: 472
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`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`AgroFresh Inc. v. Essentiv LLC,
`C.A. No. 16-662 (MN), 2019 WL 350620 (D. Del. Jan. 29, 2019) ...................................... 5
`
`AgroFresh Inc. v. Essentiv LLC,
`C.A. No. 16-662-MN-SRF, 2018 WL 6974947 (D. Del. Dec. 27, 2018) ............................ 3
`
`Alarm.com, Inc. v. SecureNet Techs. LLC,
`345 F. Supp. 3d 544 (D. Del. 2018) ...................................................................................... 8
`
`Align Tech., Inc. v. 3Shape A/S,
`339 F. Supp. 3d 435 (D. Del. 2018) ...................................................................................... 7
`
`APS Tech., Inc. v. Vertex Downhole, Inc.,
`C.A. No. 19-1166 (MN), 2020 WL 4346700 (D. Del. 2020) ............................................... 6
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .............................................................................................................. 1
`
`Bayer Healthcare LLC v. Baxalta Inc.,
`989 F.3d 964 (Fed. Cir. 2021)............................................................................................... 7
`
`Bench Walk Lighting LLC v. LG Innotek Co.,
`530 F. Supp. 3d 468 (D. Del. 2021) ...................................................................................... 4
`
`Commil USA, LLC v. Cisco Sys., Inc.,
`575 U.S. 632 (2015) .............................................................................................................. 7
`
`Dodots Licensing Sols. LLC v. Lenovo Holding Co., Inc.,
`C.A. No. 18-098 (MN), 2018 WL 6629709 (D. Del. 2018) ................................................. 7
`
`Global-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754, 760 (2011) ...................................................................................................... 5
`
`H. Lundbeck A/S v. Lupin Ltd.,
`87 F.4th 1361 (Fed. Cir. 2023) ............................................................................................. 4
`
`Helios Streaming, LLC v. Vudu, Inc.,
`C.A. No. 19-1792-CFC-SRF, 2021 WL 254069 (D. Del. Jan. 26, 2021)........................... 10
`
`Intuitive Surgical, Inc. v. Auris Health, Inc.,
`549 F. Supp. 3d 362 (D. Del. 2021) ...................................................................................... 7
`
`Limelight Networks, Inc. v. Akamai Techs., Inc.,
`572 U.S. 915 (2014) ............................................................................................................ 11
`
`
`
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`

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`Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 4 of 20 PageID #: 473
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`
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`MONEC Holding AG v. Motorola Mobility, Inc.,
`897 F. Supp. 2d 225 (D. Del. 2012) ...................................................................................... 7
`
`Nalco Co. v. Chem-Mod, LLC,
`883 F.3d 1337 (Fed. Cir. 2018)............................................................................................. 3
`
`Novel Drug Sols., LLC v. Imprimis Pharms., Inc.,
`C.A. No. 18-539 (MN), 2018 WL 4795627 (D. Del. Sept. 26, 2018) .................................. 5
`
`Pragmatus Telecom, LLC v. Ford Motor Co.,
`C.A. No. 12-92-RGA, 2012 WL 2700495 (D. Del. July 5, 2012) ........................................ 3
`
`Robocast, Inc. v. Netflix, Inc.,
`640 F. Supp. 3d 365 (D. Del. 2022). ..................................................................................... 9
`
`SoftView LLC v. Apple Inc.,
`C.A. No. 10-389-LPS, 2012 WL 3061027 (D. Del. July 26, 2012) ..................................... 8
`
`Software Rsch., Inc. v. Dynatrace LLC,
`316 F. Supp. 3d 1112 (N.D. Cal. 2018) ................................................................................ 9
`
`Sonos, Inc. v. Google LLC,
`591 F. Supp. 3d 638 (N.D. Cal. 2022) .................................................................................. 9
`
`Telecomm Innovations, LLC v. Ricoh Co., Ltd.,
`966 F. Supp. 2d 390 (D. Del. 2013) .................................................................................... 11
`
`Varian Med. Sys., Inc. v. Elekta AB,
`C.A. No. 15-871-LPS, 2016 WL 3748772 (D. Del. July 12, 2016) ..................................... 3
`
`Xiros, Ltd. v. Depuy Synthes Sales, Inc.,
`2022 WL 3592449 (W.D. Tex. Aug. 22, 2022) .................................................................... 8
`
`ZitoVault, LLC v. Int’l Bus. Machines Corp.,
`2018 WL 2971131 (N.D. Tex. Mar. 29, 2018) ..................................................................... 8
`
`Statutes
`
`35 U.S.C. § 271 ........................................................................................................................... 5
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`35 U.S.C. § 284 ......................................................................................................................... 15
`
`Fed. R. Civ. P. 12(b)(6)............................................................................................................... 1
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`

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`Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 5 of 20 PageID #: 474
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`I.
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`INTRODUCTION
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`Plaintiffs have recently sued a number of technology companies for infringement
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`of several patents related to certain internet advertising methods. LinkedIn is their latest target.
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`Plaintiffs attempt to embellish their instant Complaint—which advances claims of direct
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`infringement of nine asserted patents—with boilerplate claims of induced, contributory, and
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`willful infringement for four of the asserted patents, in a superficial attempt to inflate damages.
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`But Plaintiffs’ theory that LinkedIn had the knowledge of Plaintiffs’ patents required to support
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`Plaintiffs’ claims of induced, contributory, and willful infringement is based entirely on allegations
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`of Microsoft’s knowledge of a subset of those patents. Microsoft is LinkedIn’s parent company,
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`but it is well-established that a parent’s knowledge cannot, without more, be imputed to a
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`subsidiary. LinkedIn now moves to dismiss Plaintiffs’ add-on claims for induced, contributory,
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`and willful infringement under Fed. R. Civ. P. 12(b)(6). The scant factual allegations and
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`conclusory recitation of elements in Plaintiffs’ Complaint do not permit this Court to “draw the
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`reasonable inference” that LinkedIn actively induced or contributed to others’ direct infringement,
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`or that LinkedIn willfully infringed any of the asserted patents. See Ashcroft v. Iqbal, 556 U.S.
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`662, 678 (2009). In particular, the Complaint fails to allege facts sufficient to infer that LinkedIn
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`had knowledge of the four patents for which Plaintiffs allege induced, contributory, and willful
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`infringement; that any third party directly infringed the patents-in-suit; or that LinkedIn took active
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`steps to encourage, recommend, or promote infringement. Accordingly, LinkedIn respectfully
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`requests that the Court dismiss Plaintiffs’ claims for induced, contributory, and willful
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`infringement of the ʼ139, ʼ146, ʼ398, and ʼ878 patents.
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`

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`Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 6 of 20 PageID #: 475
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`II.
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`NATURE AND STAGE OF PROCEEDINGS
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`On December 1, 2023, Plaintiffs AlmondNet, Inc. and Intent IQ, LLC (collectively,
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`“AlmondNet”) filed their Complaint, accusing Defendant LinkedIn, Corp. (“LinkedIn”) of directly
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`infringing nine patents: U.S. Patent Nos. 8,244,582 (“the ʼ582 patent”); 7,979,307 (“the ʼ307
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`patent”); 8,775,249 (“the ʼ249 patent”); 7,822,639 (“the ʼ639 patent”); 8,244,586 (“the ʼ586
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`patent”); 8,671,139 (“the ʼ139 patent”); 8,959,146 (“the ʼ146 patent”); 8,677,398 (“the ʼ398
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`patent”); and 10,715,878 (“the ʼ878 patent”) . D.I. 1 at ¶¶ 12, 19, 26, 33, 40, 50, 60, 70, 80. The
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`Complaint further alleges that LinkedIn is liable for induced and contributory infringement, and
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`for enhanced damages due to willful infringement, of the ʼ139, ʼ146, ʼ398, and ʼ878 patents
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`(collectively, the “Relevant Patents”). D.I. 1 at ¶¶ 47–48, 57–58, 67–68, 77–78. LinkedIn has not
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`yet filed an answer to the Complaint. This motion seeks the dismissal of AlmondNet’s claims for
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`induced, contributory, and willful infringement of the Relevant Patents.
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`III.
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`SUMMARY OF ARGUMENT
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`AlmondNet’s claims for induced, contributory, and willful infringement of the
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`Relevant Patents should be dismissed for several reasons.
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`1.
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`The Complaint fails to adequately plead that LinkedIn had knowledge of
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`the Relevant Patents, as required to state a claim for induced, contributory, and willful
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`infringement. AlmondNet’s theory that LinkedIn had the requisite knowledge of the Relevant
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`Patents is based entirely on allegations of Microsoft’s knowledge of a subset of those patents.
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`AlmondNet’s only allegations related to LinkedIn’s purported knowledge are that (a) Microsoft
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`Corp. (“Microsoft”) had knowledge of the ’139 and ’398 patents (which are in the same patent
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`families, respectively, as the ʼ146 and ʼ878 patents) as a result of AlmondNet’s August 2021
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`lawsuit against Microsoft; (b) AlmondNet allegedly informed Microsoft that the accused products
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`in that suit included “LinkedIn Ads”; and (c) Microsoft is LinkedIn’s parent company. D.I. 1 at
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`2
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`

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`Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 7 of 20 PageID #: 476
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`¶¶ 46, 56, 66, 76. But it is not enough to survive a motion to dismiss to plead a parent company’s
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`knowledge of the patents, without more, when knowledge of the subsidiary company (here,
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`LinkedIn) is required. See, e.g., Varian Med. Sys., Inc. v. Elekta AB, C.A. No. 15-871-LPS,
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`2016 WL 3748772, at *5 (D. Del. July 12, 2016) (To survive a motion to dismiss, the complaint
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`“needs to set out more than just the bare fact of the parent/subsidiary relationship in order to make
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`out a plausible claim that [a wholly‐owned subsidiary] had the requisite knowledge of the patent‐
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`in‐suit.”), report and recommendation adopted, 2016 WL 9307500 (D. Del. Dec. 22, 2016).
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`Moreover, AlmondNet’s claims for induced, contributory, and willful infringement of the ʼ146
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`and ʼ878 patents should be dismissed for the additional reason that the Complaint fails to even
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`allege that Microsoft had knowledge of those patents.
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`2.
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`AlmondNet’s claims for induced and contributory infringement should be
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`dismissed for the separate and independent reason that the Complaint fails to allege that any third
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`party directly infringed the Relevant Patents, as required to plead induced and contributory
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`infringement, e.g., Nalco Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1355 (Fed. Cir. 2018). The
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`Complaint alleges merely that LinkedIn sold the accused products “intending for and inducing its
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`customers to infringe” the patents “through the customers’ normal and customary use of the
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`[accused products].” D.I. 1 at ¶¶ 47, 57, 67, 77. But the Court has repeatedly held that allegations
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`that the defendant merely intended to induce or induced third parties to infringe is insufficient to
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`plead that a third party did in fact infringe the patents-in-suit. See, e.g., AgroFresh Inc. v. Essentiv
`
`LLC, C.A. No. 16-662-MN-SRF, 2018 WL 6974947, at *5 (D. Del. Dec. 27, 2018), report and
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`recommendation adopted, 2019 WL 350620 (D. Del. Jan. 29, 2019); see also, e.g., Pragmatus
`
`Telecom, LLC v. Ford Motor Co., C.A. No. 12-92-RGA, 2012 WL 2700495, at *1 (D. Del. July 5,
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`2012).
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`3
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`

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`Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 8 of 20 PageID #: 477
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`3.
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`AlmondNet’s claims for induced infringement should be dismissed for the
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`further reason that the Complaint fails to adequately allege that LinkedIn took “active steps to
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`encourage, recommend, or promote infringement,” as required to state a claim for induced
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`infringement. See H. Lundbeck A/S v. Lupin Ltd., 87 F.4th 1361, 1370 (Fed. Cir. 2023). The
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`Complaint alleges that LinkedIn “continues to actively encourage and instruct its customers and
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`end users (for example, through user manuals and online instruction materials on its website) to
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`use the [accused products] in ways that directly infringe the . . . patent[s].” D.I. 1 at ¶¶ 47, 57, 67,
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`77. But the Complaint’s mere reference to “user manuals and online instruction materials” without
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`any “discussion of the content of those [materials] . . . that show how [LinkedIn allegedly]
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`instruct[ed] these third parties to infringe” is insufficient to state a claim. Bench Walk Lighting
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`LLC v. LG Innotek Co., 530 F. Supp. 3d 468, 490 (D. Del. 2021).
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`IV.
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`STATEMENT OF FACTS
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`AlmondNet generally alleges direct infringement of the Asserted Patents based on
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`LinkedIn’s alleged making, use, sale, offer for sale, or importation of certain products and services
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`such as LinkedIn Ads and the LinkedIn Audience Network (the “Accused Instrumentalities”).
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`D.I. 1 at ¶¶ 5, 9, 16, 23, 30, 37, 44, 54, 64, 74. AlmondNet also alleges induced, contributory, and
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`willful infringement of the Relevant Patents. Id. at ¶¶ 46–48; 56–58; 66–68; 76–78.
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`The Complaint alleges that LinkedIn had knowledge of, or was willfully blind to,
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`the Relevant Patents because (a) on August 27, 2021, AlmondNet sued Microsoft for infringement
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`of the’139 and ’398 patents; (b) AlmondNet allegedly informed Microsoft that the accused
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`products in that suit included “LinkedIn Ads”; and (c) Microsoft is LinkedIn’s parent company.
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`Id. at ¶¶ 46, 56, 66, 76. The Complaint does not allege that Microsoft informed LinkedIn about
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`the patents or of AlmondNet’s allegations. See id. The Complaint also alleges that the ʼ139 patent
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`is a continuation of the ʼ146 patent and that the ʼ398 patent is in the same patent family as the ʼ878
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`4
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`Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 9 of 20 PageID #: 478
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`patent. D.I. 1 at ¶¶ 56, 76. The Complaint further alleges that infringement of the Relevant Patents
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`is “attributable” to LinkedIn because LinkedIn “directs and controls use of the Accused
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`Instrumentalities.” Id. at ¶¶ 45, 55, 65, 75. Aside from referencing AlmondNet’s August 2021
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`lawsuit against Microsoft, the Complaint does not identify any party other than LinkedIn that has
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`allegedly infringed these patents.
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`V.
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`LEGAL STANDARD
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`To survive a motion to dismiss, a plaintiff “must allege facts that ‘raise a right to
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`relief above the speculative level,’” assuming their truth. Novel Drug Sols., LLC v. Imprimis
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`Pharms., Inc., C.A. No. 18-539 (MN), 2018 WL 4795627, at *2 (D. Del. Sept. 26, 2018) (citation
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`omitted). Claims are facially plausible “‘when the plaintiff pleads factual content that allows the
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`court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’”
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`Id.
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`To state a claim for induced infringement under 35 U.S.C. § 271(b), a plaintiff must
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`allege that (1) a third party directly infringed the patent ; (2) the defendant undertook an affirmative
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`act that induced, aided or abetted the act that directly infringed the patent (the “inducing act”); (3)
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`the defendant knew, or was willfully blind, that the induced acts would constitute patent
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`infringement; (4) the defendant knew of, or was willfully blind to, the patent; and (5) the defendant
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`possessed specific intent to encourage another’s infringement. See AgroFresh Inc. v. Essentiv
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`LLC, C.A. No. 16-662 (MN), 2019 WL 350620, at *2 (D. Del. Jan. 29, 2019) (describing
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`elements 1, 3–5); see also Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 760, 766–71
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`(2011) (describing elements 2–4).
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`To state a claim for contributory infringement under 35 U.S.C. § 271(c), a plaintiff
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`must allege that (1) a third party committed “an underlying act of direct infringement”; (2) the
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`defendant “sells or offers to sell, a material or apparatus for use in practicing a patented process”;
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`5
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`Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 10 of 20 PageID #: 479
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`(3) the component or apparatus “is material to practicing the invention”; (4) the material or
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`apparatus “has no substantial non-infringing uses, and is known by the party to be especially made
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`or especially adapted for use in an infringement of such patent”; and (5) the defendant “kn[e]w of
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`the patent and its direct infringement.” APS Tech., Inc. v. Vertex Downhole, Inc., C.A. No. 19-
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`1166 (MN), 2020 WL 4346700, at *3 (D. Del. 2020) (citations and internal quotation marks
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`omitted). A plaintiff may prove knowledge of the patent, as required for contributory
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`infringement, under the doctrine of willful blindness. See Global-Tech, 563 U.S. at 765–66.
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`To establish willful infringement, the plaintiff must prove that “the accused
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`infringer deliberately or intentionally infringed a patent-in-suit after obtaining knowledge of that
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`patent and its infringement.” APS Tech., 2020 WL 4346700, at *4.
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`VI. ARGUMENT
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`AlmondNet’s tacked-on claims for induced, contributory, and willful infringement
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`of the Relevant Patents should be dismissed because AlmondNet fails to allege that (a) LinkedIn
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`had knowledge of or was willfully blind to these patents; (b) any third party directly infringed any
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`of these patents; and (c) LinkedIn acted with specific intent to induce infringement.
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`A.
`
`AlmondNet’s induced, contributory, and willful infringement claims should
`be dismissed for failure to plead LinkedIn’s knowledge of or willful blindness
`to the Relevant Patents.
`
`To allege that LinkedIn is liable for induced, contributory, and willful infringement,
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`AlmondNet must plead facts sufficient to reasonably infer that LinkedIn had knowledge of, or was
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`willfully blind to, the Relevant Patents. Here, the Complaint fails to plead facts sufficient to infer
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`LinkedIn’s knowledge or willful blindness.
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`1.
`
`The Complaint does not adequately allege that LinkedIn had
`knowledge of the Relevant Patents.
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`AlmondNet’s theory that LinkedIn had the requisite knowledge of the Relevant
`
`Patents is based entirely on allegations of Microsoft’s knowledge of those patents. Microsoft is
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`6
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`

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`Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 11 of 20 PageID #: 480
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`
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`LinkedIn’s parent company, but it is well-established that a parent’s knowledge cannot, without
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`more, be imputed to a subsidiary. See, e.g., Varian, 2016 WL 3748772, at *5.
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`Claims for both “induced infringement” and “contributory infringement require[]
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`knowledge of the patent in suit and knowledge of patent infringement.” Commil USA, LLC v.
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`Cisco Sys., Inc., 575 U.S. 632, 639 (2015). Similarly, a finding of willful infringement requires at
`
`least knowledge of the asserted patent and of its infringement. Bayer Healthcare LLC v. Baxalta
`
`Inc., 989 F.3d 964, 988 (Fed. Cir. 2021); Intuitive Surgical, Inc. v. Auris Health, Inc., 549 F. Supp.
`
`3d 362, 377 (D. Del. 2021). To plead the requisite knowledge, the “plaintiff must allege facts
`
`allowing the reasonable inference that the defendant had knowledge of the patent-in-suit in the key
`
`time period[.]” Align Tech., Inc. v. 3Shape A/S, 339 F. Supp. 3d 435, 447 (D. Del. 2018) (citation
`
`omitted). “[B]ald assertions, unsupported conclusions or unwarranted inferences” are insufficient
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`to state a claim for relief. Dodots Licensing Sols. LLC v. Lenovo Holding Co., Inc., C.A. No. 18-
`
`098 (MN), 2018 WL 6629709, at *1 (D. Del. 2018); see also MONEC Holding AG v. Motorola
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`Mobility, Inc., 897 F. Supp. 2d 225, 229 (D. Del. 2012). And, as set forth above, a parent
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`corporation’s knowledge is not imputed to its subsidiary absent additional allegations that make
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`that imputation plausible. See, e.g., Varian, 2016 WL 3748772, at *5. Here, AlmondNet fails to
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`plead requisite knowledge for at least two reasons.
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`First, AlmondNet’s conclusory allegations about Microsoft’s knowledge of the
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`ʼ139 and ʼ398 patents are insufficient to impute knowledge of the Relevant Patents to LinkedIn.
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`AlmondNet does not deny that Microsoft and LinkedIn are “separate and distinct entit[ies].” See
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`D.I. 1 at ¶¶ 46, 56, 66, 76. And the Complaint does not allege that AlmondNet directly informed
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`LinkedIn of the Relevant Patents prior to filing this lawsuit. See id. Rather, AlmondNet’s only
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`allegations related to LinkedIn’s purported knowledge are that (a) AlmondNet’s August 2021
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`7
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`Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 12 of 20 PageID #: 481
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`
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`lawsuit against Microsoft asserted the ʼ139 and ʼ398 patents (which are in the same patent families,
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`respectively, as the ʼ146 and ʼ878 patents); (b) AlmondNet allegedly informed Microsoft that the
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`accused products in that suit included “LinkedIn Ads”; and (c) Microsoft is LinkedIn’s parent
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`company. Id. at ¶¶ 46, 56, 66, 76. But that alone is insufficient to plead knowledge. To survive
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`a motion to dismiss, the complaint “needs to set out more than just the bare fact of the
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`parent/subsidiary relationship.” Varian, 2016 WL 3748772, at *5–6 (reasoning that plaintiff
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`alleged insufficient facts for parent corporation’s knowledge of patent to be imputed to parent
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`corporation’s subsidiaries); see also SoftView LLC v. Apple Inc., C.A. No. 10-389-LPS, 2012 WL
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`3061027, at *5 (D. Del. July 26, 2012) (knowledge of patent by defendant’s subsidiary is
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`insufficient “standing alone” to infer that parent company had knowledge).1 Nor does
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`AlmondNet’s identification of LinkedIn’s products in infringement contentions served on
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`Microsoft in a separate lawsuit (see D.I. 1 at ¶¶ 46, 56, 66, 67) suffice to put LinkedIn on notice
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`of the Relevant Patents. See, e.g., Alarm.com, Inc. v. SecureNet Techs. LLC, 345 F. Supp. 3d 544,
`
`554 (D. Del. 2018) (holding that defendant’s awareness that another company is being sued for
`
`patent infringement is not enough to show that defendant had knowledge of asserted patent).
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`AlmondNet, thus, fails to sufficiently plead LinkedIn’s knowledge of the Relevant Patents.
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`Second, AlmondNet’s allegations about LinkedIn’s knowledge of the ʼ146 and
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`ʼ878 patents are even more attenuated and insufficient. AlmondNet alleges that LinkedIn had
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`knowledge of the ʼ146 and ʼ878 patents because they are in the same patent families, respectively,
`
`as the ʼ139 and ʼ398 patents asserted against Microsoft. D.I. at ¶¶ 56, 76. As explained above,
`
`
`
`1
`See also Xiros, Ltd. v. Depuy Synthes Sales, Inc., 2022 WL 3592449, at *3 (W.D. Tex.
`Aug. 22, 2022); ZitoVault, LLC v. Int’l Bus. Machines Corp., 2018 WL 2971131, at *3 (N.D. Tex.
`Mar. 29, 2018).
`
`8
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`

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`Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 13 of 20 PageID #: 482
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`
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`AlmondNet cannot plead LinkedIn’s knowledge of the ’146 and ’878 patents based only on its
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`parent’s knowledge; but the Complaint also says nothing about Microsoft’s knowledge of the ’146
`
`and ’878 patents. Indeed, “[m]ere knowledge of a ‘patent family’ or the plaintiff’s ‘patent
`
`portfolio’ is not enough” to plead knowledge of the patent alleged to be infringed. Sonos, Inc. v.
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`Google LLC, 591 F. Supp. 3d 638, 643 (N.D. Cal. 2022); see also Software Rsch., Inc. v. Dynatrace
`
`LLC, 316 F. Supp. 3d 1112, 1133 (N.D. Cal. 2018) (same). Allegations that the accused infringer
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`knew of the patentee’s patent portfolio, without more, are too “attenuated” to sufficiently allege
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`knowledge of the specific asserted patent. Robocast, Inc. v. Netflix, Inc., 640 F. Supp. 3d 365, 372
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`(D. Del. 2022). So, even if AlmondNet had adequately pleaded LinkedIn’s knowledge of the ’139
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`and ’398 patents (which it has not), that knowledge is “not enough” to plead knowledge of the
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`related ’146 and ’878 patents. The Complaint, thus, doubly fails to plead knowledge of the ’146
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`and ’878 patents.
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`Accordingly, because AlmondNet fails to plead sufficient facts showing LinkedIn
`
`had knowledge of the Relevant Patents, Plaintiffs’ claims for induced, contributory, and willful
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`infringement should be dismissed.
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`2.
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`AlmondNet has not plausibly alleged that LinkedIn was willfully blind
`to the Relevant Patents.
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`The Complaint alleges, in the alternative, that LinkedIn was willfully blind to the
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`Relevant Patents because AlmondNet sued Microsoft for infringement of the ’139 and ’398
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`patents. D.I. 1 at ¶¶ 46, 56, 66, 76. This allegation is insufficient to support a claim of willful
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`blindness.
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`To show knowledge through willful blindness, a plaintiff must plead and prove that
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`the defendant (1) subjectively believed that there was a high probability facts indicating patent
`
`infringement existed and (2) took deliberate actions to avoid learning of those facts. See Global-
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`9
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`

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`Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 14 of 20 PageID #: 483
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`
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`Tech, 563 U.S. at 769. “A willfully blind defendant is one who takes deliberate actions to avoid
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`confirming a high probability of wrongdoing and who can almost be said to have actually known
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`the critical facts.” Id. Thus, “a defendant is not willfully blind if it merely ‘should have known’
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`of the risk of indirect infringement.” Alarm.com, 345 F. Supp. 3d at 553 (citation omitted).
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`“A complaint that fails to identify any affirmative actions taken by the defendant to avoid gaining
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`actual knowledge of the patent-in-suit is insufficient to state a claim for relief based on the willful
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`blindness theory.” MONEC, 897 F. Supp. 2d at 230; see also Helios Streaming, LLC v. Vudu, Inc.,
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`C.A. No. 19-1792-CFC-SRF, 2021 WL 254069, at *6–7 (D. Del. Jan. 26, 2021), report and
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`recommendation adopted, 2021 WL 1138024 (D. Del. Mar. 25, 2021).
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`Here, the Complaint alleges that LinkedIn was willfully blind to four of the patents-
`
`in-suit based on facts about Microsoft—not LinkedIn. The Complaint does not allege in any way
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`that LinkedIn “(1) subjectively believed that there was a high probability of patent infringement
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`and (2) took deliberate actions to avoid learning of that fact.” Global-Tech, 563 U.S. at 769.
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`Plaintiffs further fail to plead “any affirmative actions taken by [LinkedIn] to avoid gaining actual
`
`knowledge of the [Relevant Patents].” MONEC, 897 F. Supp. 2d at 230. Accordingly, the
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`Complaint does not “state a claim for relief based on [a] willful blindness theory.” Id.
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`B.
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`AlmondNet’s induced and contributory infringement claims should be
`dismissed because AlmondNet fails to allege direct infringement by a third
`party.
`
`AlmondNet’s claims for induced and contributory infringement fail for the
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`additional reason that AlmondNet does not allege that LinkedIn induced, or contributed to,
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`someone else’s direct infringement. “It is axiomatic that ‘[t]here can be no inducement or
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`contributory infringement without an underlying act of direct infringement.’” Nalco, 883 F.3d at
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`1355 (citation omitted); Limelight Networks, Inc. v. Akamai Techs., Inc., 572 U.S. 915, 921 & n.3
`
`(2014); Dodots, 2018 WL 6629709, at *3. To state a claim for induced or contributory
`
`10
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`

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`Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 15 of 20 PageID #: 484
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`
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`infringement, the Complaint must plead “facts sufficient to allow an inference that at least one
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`direct infringer exists.” Telecomm Innovations, LLC v. Ricoh Co., Ltd., 966 F. Supp. 2d 390, 394
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`(D. Del. 2013). Allegations that the defendant intended to induce and induced third parties to
`
`directly infringe are insufficient to allege underlying direct infringement by a third party. See, e.g.,
`
`AgroFresh Inc., 2018 WL 6974947, at *5; see also Pragmatus, 2012 WL 2700495, at *1; Varian,
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`2016 WL 3748772, at *4.
`
`Agrofresh is instructive. There, the complaint alleged that
`
`Defendants also specifically intend and have induced third party
`customers to infringe’ the asserted claims of the [patents-in-suit]
`by issuing a press release, promoting the patented technology, and
`forming the joint venture to market and sell the technology, without
`expressly stating that the customers bought or used the infringing
`product.
`
`AgroFresh Inc., 2018 WL 6974947, at *5. The Magistrate Judge concluded that these allegations
`
`were insufficient to “plead an act of direct infringement by a third party” because the complaint
`
`“does not expressly allege that the third[-]party customers use the patented technology.” Id. The
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`Court adopted the Magistrate Judge’s report and recommendation, concluding that the complaint’s
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`“boilerplate allegation” that the defendants “have actively and specifically intended to induce third
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`party customers to infringe” is “insufficient to meet the required pleading of underlying direct
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`infringement” because “[t]here are no facts pleaded to render these allegations plausible.”
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`AgroFresh Inc. 2019 WL 350620, at *3.
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`Similarly, the complaint in Pragmatus alleged that the defendant’s customers “are
`
`encouraged to infringe” by defendant’s online services. 2012 WL 2700495, at *1. The complaint
`
`included “boilerplate allegations regarding . . . induced and contributory infringement,” which the
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`Court held were insufficient to adequately allege an underlying instance of direct infringement by
`
`11
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`Case 1:23-cv-01373-MN Document 12 Filed 02/12/24 Page 16 of 20 PageID #: 485
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`
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`a third party.2 Id. To say “that the Defendant intended that its customers . . . ‘go on to Ford’s
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`website’ to infringe the patents’ . . . is not the same thing as saying, ‘Ford customers infringe the
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`patents by using the websites.’” Id. at n.3.
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`Here, as in Agrofresh and Pragmatus, AlmondNet fails to plead that any third party
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`directly infringes the Asserted Patents. As relevant here, the Complaint alleges:
`
`Defendant continued and still continues to actively encourage and