Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 1 of 17 PageID #: 493
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`ALMONDNET, INC. and INTENT IQ,
`LLC,
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`Plaintiffs,
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`v.
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`
`C.A. No. 23-1373 (MN)
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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’S RESPONSE BRIEF IN OPPOSITION TO
`LINKEDIN’S MOTION TO DISMISS
`
`
`Dated: March 4, 2024
`
`OF COUNSEL:
`
`Reza Mirzaie
`Benjamin T. Wang
`Amy E. Hayden
`James A. Milkey
`James S. Tsuei
`Jonathan Ma
`Jason M. Wietholter
`RUSS, AUGUST & KABAT
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, California 90025
`Telephone: (310) 826-7474
`
`
`
`
`
`
`
`
`
`
`
`Brian E. Farnan (Bar No. 4089)
`Michael J. Farnan (Bar No. 5165)
`FARNAN LLP
`919 North Market Street, 12th Floor
`Wilmington, DE 19801
`(302) 777-0300
`bfarnan@farnanlaw.com
`mfarnan@farnanlaw.com
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`
`
`
`
`Attorneys for Plaintiffs
`AlmondNet, Inc. and Intent IQ, LLC
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`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 2 of 17 PageID #: 494
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`TABLE OF CONTENTS
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`INTRODUCTION ................................................................................................................. 1 
`
`STATEMENT OF FACTS .................................................................................................... 1 
`
`I. 
`
`II. 
`
`III.  LEGAL STANDARD ........................................................................................................... 3 
`
`IV.  ARGUMENT ......................................................................................................................... 4 
`
`A.  AlmondNet States A Claim For Post-Suit Willfulness..................................................4 
`
`B.  Almondnet States A Claim For Pre-Suit Willfulness Because The Complaint
`Adequately Alleges That LinkedIn Had Knowledge Of Infringement Of The
`’139 And ’398 Patents ...................................................................................................4 
`
`C.  AlmondNet States A Claim For Pre-Suit Willfulness As To The ’146 And ’878
`Patents ............................................................................................................................8 
`
`V.  CONCLUSION .................................................................................................................... 11 
`
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`
`i
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`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 3 of 17 PageID #: 495
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`TABLE OF AUTHORITIES
`
`Cases 
`ACQIS LLC v. Lenovo Grp. Ltd.,
`No. 6:20-CV-00967-ADA, 2022 WL 2705269 (W.D. Tex. July 12, 2022) ............................... 6
`
`Afros S.P.A. v. Krauss-Maffei Corp.,
`671 F. Supp. 1458 (D. Del. 1987) ........................................................................................... 4, 5
`
`Alarm.com, Inc. v. SecureNet Techs. LLC,
`345 F. Supp. 3d 544 (D. Del. 2018) ............................................................................................ 8
`
`Alston v. Parker,
`363 F.3d 229 (3d Cir. 2004) ..................................................................................................... 11
`
`Arctic Cat Inc. v. Bombardier Recreational Prods. Inc.,
`876 F.3d 1350 (Fed. Cir. 2017) .................................................................................................. 4
`
`Arthur v. Maersk, Inc.,
`484 F.3d 196, 204 (3d Cir. 2006) ............................................................................................. 11
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .................................................................................................................... 3
`
`Bell Atlantic Corp. v. Twombly,
`550 U.S. 544 (2007) .................................................................................................................... 3
`
`Diceon Elecs., Inc. v. Calvary Partners, L.P.,
`772 F. Supp. 859 (D. Del. 1991) ................................................................................................. 2
`
`Elm 3DS Innovations, LLC v. Samsung Elecs. Co.,
`No. CV 14-1430-LPS-CJB, 2015 WL 5725768 (D. Del. Sept. 29, 2015) ............................ 9, 11
`
`Elm 3DS Innovations, LLC v. Samsung Elecs. Co.,
`No. CV 14-1430-LPS-CJB, 2016 WL 1274812 (D. Del. Mar. 31, 2016) .................................. 9
`
`Free Speech Coalition, Inc. v. AG of the United States,
`677 F.3d 519 (3d. Cir. 2012) .................................................................................................... 11
`
`Kewazinga Corp. v. Microsoft Corp.,
`558 F. Supp. 3d 90 (S.D.N.Y. 2021) .......................................................................................... 9
`
`Lytone Enter., Inc. v. Agrofresh Sols., Inc.,
`No. CV 20-678-LPS, 2021 WL 534868 (D. Del. Feb. 12, 2021) ............................................... 6
`
`Lytone Enter., Inc. v. Agrofresh Sols., Inc.,
`No. CV 20-678-LPS-SRF, 2021 WL 1153002 (D. Del. Mar. 26, 2021) .................................... 6
`
`
`
` i
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`

`

`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 4 of 17 PageID #: 496
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`Northwestern Univ. v. Universal Robots A/S,
`No. CV 21-149 (MN), 2022 WL 903892 (D. Del. Mar. 28, 2022) .............................. 3, 7, 8, 11
`
`Novozymes N. Am., Inc. v. Danisco US Inc.,
`No. 1:19-CV-01902-JDW, 2020 WL 12895027 (D. Del. Feb. 12, 2020) ............................ 9, 11
`
`OnDemand LLC v. Spotify Tech., S.A.,
`484 F. Supp. 3d 188 (D. Del. 2020 ........................................................................................... 11
`
`Oran v. Stafford,
`226 F.3d 275 (3d Cir. 2000) ....................................................................................................... 2
`
`Ravgen, Inc. v. Ariosa Diagnostics, Inc.,
`No. CV 20-1646-RGA-JLH, 2021 WL 3526178 (D. Del. Aug. 11, 2021) ................................ 4
`
`Robocast, Inc. v. Netflix, Inc.,
`640 F. Supp. 3d 365 (D. Del. 2022) ............................................................................................ 9
`
`SIMO Holdings Inc. v. Hong Kong uCloudlink Network Tech. Ltd.,
`396 F. Supp. 3d 323 (S.D.N.Y. 2019) ........................................................................................ 9
`
`SoftView LLC v. Apple Inc.,
`No. CIV. 10-389-LPS, 2012 WL 3061027 (D. Del. July 26, 2012) ....................................... 7, 8
`
`Software Rsch., Inc. v. Dynatrace LLC,
`316 F. Supp. 3d 1112 (N.D. Cal. 2018) .............................................................................. 10, 11
`
`Sonos, Inc. v. Google LLC,
`591 F. Supp. 3d 638 (N.D. Cal. 2022) ................................................................................ 10, 11
`
`Sonos, Inc. v. Google LLC,
`No. 2022-134, 2022 WL 1486359 (Fed. Cir. May 11, 2022) ................................................... 10
`
`SRI Int’l, Inc. v. Cisco Sys., Inc.,
`14 F.4th 1323 (Fed. Cir. 2021) ................................................................................................... 4
`
`Thompson v. Real Est. Mortg. Network,
`748 F.3d 142 (3d Cir. 2014) ....................................................................................................... 3
`
`Varian Med. Sys., Inc. v. Elekta AB,
`No. CV 15-871-LPS, 2016 WL 3748772 (D. Del. July 12, 2016) ............................................. 7
`
`Varian Med. Sys., Inc. v. Elekta AB,
`No. CV 15-871-LPS, 2016 WL 9307500 (D. Del. Dec. 22, 2016) ............................................ 7
`
`WCM Indus., Inc. v. IPS Corp.,
`721 F. App’x 959 (Fed. Cir. 2018) ......................................................................................... 4, 5
`
`
`
`ii
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`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 5 of 17 PageID #: 497
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`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
`
`Rules 
`Fed. R. Civ. P. 15(a)(2) ................................................................................................................. 11
`
`
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`
`iii
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`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 6 of 17 PageID #: 498
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`I.
`
`INTRODUCTION
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`Plaintiffs AlmondNet, Inc. and Intent IQ, LLC (collectively, “AlmondNet” or “Plaintiffs”)
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`have plausibly stated claims of Defendant LinkedIn Corporation’s (“LinkedIn” or “Defendant”)
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`willful infringement of the ’139, ’146, ’398, and ’878 patents (the “Relevant Patents”). Since
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`Microsoft Corp. (“Microsoft”) acquired LinkedIn in 2016, Microsoft and LinkedIn’s businesses
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`have been closely intertwined, with Microsoft’s growth dependent on LinkedIn’s success. Indeed,
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`LinkedIn’s co-founder and chairman of the board, Mr. Reid Hoffman, went on to serve as director
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`at Microsoft. Thus, when AlmondNet accused LinkedIn Ads of infringing the ’139 and ’398
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`patents in the Microsoft litigation context, it is reasonable to infer that Microsoft prudently
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`informed LinkedIn of such allegations, given that infringement of LinkedIn Ads would have
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`obvious relevance to LinkedIn’s business (and Microsoft’s corporate balance sheet). Additionally,
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`given the high degree of overlap between the specification and claims of the Relevant Patents,
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`LinkedIn knew of its infringement of the ’146 and ’878 patents as well.1
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`II.
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`STATEMENT OF FACTS
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`AlmondNet’s Complaint alleges LinkedIn’s willful infringement of the ’139, ’146, ’398,
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`and ’878 patents. Complaint ¶¶ 46, 56, 66, 76. On August 27, 2021, AlmondNet filed suit against
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`Microsoft alleging infringement of the ’139 and ’398 patents. Id. The ’139 patent is the parent of
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`the ’146 patent, and both patents share a common specification. Id. ¶ 56. Furthermore, claim 1 of
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`the ’146 Patent includes a subset of the limitations of claim 1 of the ’139 Patent. See Ex. A. The
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`’398 patent and the ’878 patent share the same patent family, and both patents share a common
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`specification. Complaint ¶ 76. The claims of the ’398 and ’878 patents also have overlapping
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`
`1 With respect to indirect infringement, LinkedIn’s arguments lack merit. However, to streamline
`the issues for this Court, AlmondNet elects to no longer assert its claims of indirect infringement
`with respect to the Relevant Patents at this time.
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`
`
`1
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`

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`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 7 of 17 PageID #: 499
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`concepts, such as (1) an association between the first device identifier and an electronic identifier
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`of a second device, (2) based on automatically recognizing that each of the first and second devices
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`was connected, independently of the other, to a common local area network, wherein the computer
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`system is connected to the local area network through the Internet but is not in the local area
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`network, and (3) to take an action, based on first electronic profile data associated with the first
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`device identifier, with respect to the second device, which is indicated at the time of the action by
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`the second device identifier. See Ex. A.
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`On February 18, 2022, AlmondNet served preliminary infringement contentions against
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`Microsoft, which repeatedly accused “LinkedIn Ads” as a product infringing the ’139 and ’398
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`patents. Id. ¶¶ 46, 66. On May 3, 2022, counsel for Microsoft indicated that that it was aware of
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`AlmondNet’s accusations of infringement against LinkedIn Ads but that it nonetheless objected to
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`discovery related to LinkedIn Ads or LinkedIn generally. Id. ¶¶ 46, 56, 66, 76. AlmondNet’s
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`Complaint continues to accuse LinkedIn Ads of infringement of the Relevant Patents. See
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`Complaint ¶¶ 44, 54, 64, 74.
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`In 2016, Microsoft Corp. (“Microsoft”) announced its acquisition of LinkedIn. See Ex. B
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`at 19.2 LinkedIn is now a wholly owned subsidiary of Microsoft Corporation. D.I. 13. Microsoft
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`and LinkedIn’s businesses are closely intertwined, with Microsoft’s growth dependent on
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`LinkedIn’s success. See Ex. C at 5 (noting that Microsoft’s “growth depends on securely delivering
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`continuous innovation and advancing our leading productivity and collaboration tools and
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`2 “On a motion to dismiss the Court is free to take judicial notice of certain facts that are of public
`record if they are provided to the Court by the party seeking to have them considered.” Diceon
`Elecs., Inc. v. Calvary Partners, L.P., 772 F. Supp. 859, 861 (D. Del. 1991). “Securities and
`Exchange Commission (“SEC”) filings fall within this category of public records that can be
`judicially noticed.” Id.; see also Oran v. Stafford, 226 F.3d 275, 289 (3d Cir. 2000) (“[W]e will
`take judicial notice of the SEC filings.”).
`
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`
`
`2
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`

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`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 8 of 17 PageID #: 500
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`services, including … LinkedIn.”). There is a high degree of coordination between the companies.
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`For example, Mr. Reid Hoffman, LinkedIn’s co-founder and chairman of the board of directors,
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`“continue[s] to have significant influence” over “the management and affairs of [LinkedIn]” while
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`he serves as Director at Microsoft. See Ex. D at 42, 147; Ex. C at 109.
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`Microsoft is a sophisticated company that claims that it “is committed to responsible
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`intellectual property management.” See Ex. E. Thus, when Microsoft was presented with
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`infringement allegations against LinkedIn, it is reasonable to believe that Microsoft acted
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`prudently and apprised its close-knit subsidiary of such allegations.
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`III. LEGAL STANDARD
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`“Under the ‘notice pleading’ standard embodied in Rule 8 of the Federal Rules of Civil
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`Procedure, a plaintiff must come forward with ‘a short and plain statement of the claim showing
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`that the pleader is entitled to relief.’” Thompson v. Real Est. Mortg. Network, 748 F.3d 142, 147
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`(3d Cir. 2014). “[T]he Court must accept all well-pleaded factual allegations in the complaint as
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`true and view them in the light most favorable to the plaintiff.” Northwestern Univ. v. Universal
`
`Robots A/S, No. CV 21-149 (MN), 2022 WL 903892, at *1 (D. Del. Mar. 28, 2022). “[A] claimant
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`must state a ‘plausible’ claim for relief, and ‘[a] claim has facial plausibility when the pleaded
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`factual content allows the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged.’” Thompson, 748 F.3d at 147 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678
`
`(2009)). “Although ‘[f]actual allegations must be enough to raise a right to relief above the
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`speculative level,’ a plaintiff ‘need only put forth allegations that raise a reasonable expectation
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`that discovery will reveal evidence of the necessary element.’” Id. (citing Bell Atlantic Corp. v.
`
`Twombly, 550 U.S. 544, 555 (2007)).
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`3
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`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 9 of 17 PageID #: 501
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`“Under Halo, the concept of ‘willfulness’ requires a jury to find no more than deliberate or
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`intentional infringement.” SRI Int’l, Inc. v. Cisco Sys., Inc., 14 F.4th 1323, 1330 (Fed. Cir. 2021).
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`Willfulness can be established with evidence “that the [accused infringer] acted despite a risk of
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`infringement that was ‘either known or so obvious that it should have been known to [it].’” Arctic
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`Cat Inc. v. Bombardier Recreational Prods. Inc., 876 F.3d 1350, 1371 (Fed. Cir. 2017). The
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`answer to the question of intent “must be inferred from all the circumstances.” See WCM Indus.,
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`Inc. v. IPS Corp., 721 F. App’x 959, 970 (Fed. Cir. 2018) (emphasis in original).
`
`IV. ARGUMENT
`A.
`AlmondNet States A Claim For Post-Suit Willfulness
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`As a threshold matter, AlmondNet states a claim for post-suit willfulness of the Relevant
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`Patents, as the filing of the Complaint itself is sufficient to maintain such claims. See, e.g., Ravgen,
`
`Inc. v. Ariosa Diagnostics, Inc., No. CV 20-1646-RGA-JLH, 2021 WL 3526178, at *4 (D. Del.
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`Aug. 11, 2021) (noting that post-suit willful infringement can be maintained where a defendant
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`obtains knowledge of its infringement from the complaint). Thus, to the extent LinkedIn’s Motion
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`seeks dismissal of AlmondNet’s post-suit willfulness claims (which it does not appear to do), it
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`should be denied.
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`B.
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`Almondnet States A Claim For Pre-Suit Willfulness Because The Complaint
`Adequately Alleges That LinkedIn Had Knowledge Of Infringement Of The
`’139 And ’398 Patents
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`LinkedIn’s pre-suit willfulness arguments fare no better. A parent’s knowledge of
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`infringement can be attributable to a subsidiary depending on the specific factual circumstances.
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`This is a fact intensive-inquiry with no bright-line rules. See Afros S.P.A. v. Krauss-Maffei Corp.,
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`671 F. Supp. 1458, 1460 (D. Del. 1987) (“Adoption of a per se rule that willful patent infringement
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`can never be imputed from a parent to its wholly owned subsidiary as urged by [defendant] runs
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`4
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`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 10 of 17 PageID #: 502
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`counter to the Federal Circuit's teaching that ‘there cannot be hard and fast per se rules’ in
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`determining willfulness.”). Indeed, the answer to the question of LinkedIn’s intent “must be
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`inferred from all the circumstances.” See WCM Indus., Inc. v. IPS Corp., 721 F. App’x 959, 970
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`(Fed. Cir. 2018) (emphasis in original). To the extent LinkedIn suggests that a parent’s knowledge
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`can never be attributed to a subsidiary, that is not law.
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`For instance, in Afros, the court concluded that the willfulness of the parent corporation
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`could be imputed onto its wholly owned subsidiary where the evidence demonstrated that directors
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`played a significant role in both companies. See 671 F. Supp. 1458, 1460. Unlike in Afros,
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`AlmondNet need not show that Microsoft’s willfulness be imputed to LinkedIn, but rather need
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`only show that it is plausible to infer that LinkedIn shared Microsoft’s knowledge that LinkedIn
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`Ads infringed. The facts on this point are even more compelling than in Afros; Mr. Hoffman was
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`chairman of the board at LinkedIn, and continues to maintain a presence on Microsoft’s board.
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`Thus, it is reasonable to infer Microsoft’s knowledge could be imputed to LinkedIn. See id.
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`Moreoever, AlmondNet made a specific allegation of infringement against LinkedIn’s product to
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`Microsoft. Complaint ¶¶ 46, 66. Microsoft and Defendant’s business are closely intertwined and
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`Microsoft is a sophisticated company “committed to responsible intellectual property
`
`management.” See Ex. C at 5 (noting that Microsoft’s “growth depends on securely delivering
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`continuous innovation and advancing our leading productivity and collaboration tools and
`
`services, including … LinkedIn.”); Ex. E. Indeed, a Director at Microsoft, Reid Hoffman,
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`“continue[s] to have significant influence over” “the management and affairs of [LinkedIn].” Ex.
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`D at 42,
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`Other cases have inferred a subsidiary’s knowledge in other contexts. In Lytone Enter., Inc.
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`v. Agrofresh Sols., Inc., the plaintiff, Lytone, disclosed its 1-MCP invention and the application
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`5
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`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 11 of 17 PageID #: 503
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`leading to the issuance of the patent to a Rohm and Haas (parent to AgroFresh) pursuant to a non-
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`disclosure agreement. No. CV 20-678-LPS, 2021 WL 534868, at *4 (D. Del. Feb. 12, 2021), report
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`and recommendation adopted, No. CV 20-678-LPS-SRF, 2021 WL 1153002 (D. Del. Mar. 26,
`
`2021). AgroFresh was the successor-in-interest to Rohm and Haas’ 1-MCP technology and
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`patents. Id. The court found that these allegations gave rise to the reasonable inference that
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`AgroFresh had pre-suit knowledge. Here, AlmondNet’s accusations of infringement directed to
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`Microsoft with respect to specifically “LinkedIn Ads,” should similarly give rise to the reasonable
`
`inference that LinkedIn had adequate pre-suit knowledge, given the relationship between
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`Microsoft and LinkedIn, the accused product overlap, and the obvious relevance of an allegation
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`of infringement against a LinkedIn product to LinkedIn’s business. See id.
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`In ACQIS LLC v. Lenovo Grp. Ltd., the court found that the plaintiff’s pleadings
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`sufficiently imparted knowledge on each of the Lenovo entities where a letter was directed to the
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`Chairman and Chief Executive Officer of Lenovo Group Ltd. No. 6:20-CV-00967-ADA, 2022
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`WL 2705269, at *7 (W.D. Tex. July 12, 2022). Additionally, the pleadings detailed the plaintiff’s
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`allegations of “a multinational conglomerate that operates under the name ‘Lenovo.’” Id. Here,
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`AlmondNet directed infringement allegations to Microsoft, specifically enumerating LinkedIn Ads
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`as an accused product. AlmondNet’s naming of “LinkedIn Ads” specifically is even more
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`particularized than the general allegations against the Lenovo group as a whole. See id.
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`LinkedIn argues that the complaint “needs to set out more than just the bare fact of the
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`parent/subsidiary relationship.” See D.I. 12 at 8. But AlmondNet does exactly that. AlmondNet is
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`not contending that the mere fact that Microsoft is LinkedIn’s parent is sufficient to impart
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`knowledge. AlmondNet’s allegations are much more nuanced and particularized as set-forth
`
`above; AlmondNet has alleged that Microsoft was put on notice of infringement of “LinkedIn
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`6
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`

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`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 12 of 17 PageID #: 504
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`Ads,” a highly specific statement with clear relevance to LinkedIn itself. If Microsoft acted
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`prudently, it would have apprised LinkedIn of this potential for infringement liability. And it is
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`reasonable to infer that a sophisticated company like Microsoft did act prudently. Given that this
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`Court must draw all reasonable inferences in AlmondNet’s favor, LinkedIn’s motion must be
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`denied. See Nw. Univ., 2022 WL 903892, at *1.
`
`The Varian case cited by LinkedIn actually suggests that this Court should rule in
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`AlmondNet’s favor. See D.I. 12 at 7-8. In Varian, the court noted that the plaintiff provided
`
`evidence of a “close-knit relationship” between the parent and subsidiaries, including overlap
`
`among key individuals. The court indicated that this evidence would be sufficient to state a claim
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`by allowing leave to amend to allege such facts (and thus recognizing that the plaintiff’s amended
`
`allegations would not be futile). See Varian Med. Sys., Inc. v. Elekta AB, No. CV 15-871-LPS,
`
`2016 WL 3748772, at *6-7 (D. Del. July 12, 2016), report and recommendation adopted, No. CV
`
`15-871-LPS, 2016 WL 9307500 (D. Del. Dec. 22, 2016). Here, AlmondNet has provided proof of
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`Microsoft and LinkedIn’s close-knit relationship as well, including with respect to Mr. Hoffman.
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` The SoftView case cited by LinkedIn also supports a plausible inference of willfulness
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`because again, AlmondNet is not merely alleging that knowledge of infringement by Microsoft
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`“standing alone” imputes to LinkedIn. See D.I. 12 at 8. Instead, like in SoftView, where the court
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`found that a nuanced set of allegations can justify imputing knowledge from one corporate entity
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`to another, here AlmondNet has specifically alleged that it directly brought the issue of the
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`infringement of “LinkedIn Ads” to the attention of Microsoft. Given Microsoft’s intimate
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`relationship with LinkedIn, it is reasonable to infer that Microsoft informed LinkedIn of that
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`allegation, particularly in light of the relevance of that allegation to both Microsoft and LinkedIn’s
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`financial interests. The SoftView case suggests that LinkedIn’s motion should be denied given the
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`7
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`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 13 of 17 PageID #: 505
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`particularized facts here. SoftView LLC v. Apple Inc., No. CIV. 10-389-LPS, 2012 WL 3061027,
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`at *6 (D. Del. July 26, 2012) (“Taken in combination, the Court concludes that SoftView has
`
`alleged a plausible basis from which one might reasonably infer that AT & T had knowledge of
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`the patent-in-suit prior to this litigation.”).
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`LinkedIn’s citations to Alarm.com, Xiros and ZitoVault are inapposite (D.I. 12 at 8). Those
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`cases are distinguishable given AlmondNet’s particularized allegations of infringement against
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`“LinkedIn Ads” and Microsoft and LinkedIn’s close-knit relationship See Alarm.com, Inc. v.
`
`SecureNet Techs. LLC, 345 F. Supp. 3d 544, 554 (D. Del. 2018), 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). AlmondNet sufficiently
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`alleged that LinkedIn had knowledge of its pre-suit infringement of the ’398 and ’139 patents
`
`because it is reasonable to infer that Microsoft would have informed LinkedIn of such
`
`infringement.
`
`C.
`
`AlmondNet States A Claim For Pre-Suit Willfulness As To The ’146 And
`’878 Patents
`
`LinkedIn argues that the family relationships of the ’146 and ’878 patents to the ’139 and
`
`’398 patents are insufficient to plead knowledge of the ’146 and ’878 patents. D.I. 12 at 8-9.
`
`However, this goes against the principle that this Court must draw all reasonable inferences in
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`AlmondNet’s favor. See Nw. Univ., 2022 WL 903892, at *1. That is because any allegations of
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`infringement of the ’139 and ’398 patents would naturally extend to the ’146 and ’878 patents
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`given their family relationship and given that the specifications and claims for each of these patent
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`families exhibit a high-degree of overlap. See Ex. A; Complaint at Exs. 11, 13, 15, 17, 46, 56, 66,
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`76. Given the close relationship among the Relevant Patents, it is plausible that allegations of
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`infringement against the ’139 and ’398 would also result in knowledge of infringement of the ’146
`
`
`
`8
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`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 14 of 17 PageID #: 506
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`and ’878 patents. See, e.g., Elm 3DS Innovations, LLC v. Samsung Elecs. Co., No. CV 14-1430-
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`LPS-CJB, 2015 WL 5725768, at *3 (D. Del. Sept. 29, 2015), report and recommendation adopted,
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`No. CV 14-1430-LPS-CJB, 2016 WL 1274812 (D. Del. Mar. 31, 2016) (noting that defendants’
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`knowledge of a parent patent help make it seem “more plausible” that defendants did in fact have
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`actual knowledge of the patent at issue); Novozymes N. Am., Inc. v. Danisco US Inc., No. 1:19-
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`CV-01902-JDW, 2020 WL 12895027, at *3 (D. Del. Feb. 12, 2020) (“At the pleading stage,
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`alleged knowledge of patent family members and related patents, along with other allegations, can
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`be sufficient to overcome a motion to dismiss.”); Kewazinga Corp. v. Microsoft Corp., 558 F.
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`Supp. 3d 90, 119 (S.D.N.Y. 2021) (“A reasonable jury could find that Microsoft had pre-suit
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`knowledge of the ’234 patent because it knew of the ’226 and ’325 patents, which are in the same
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`patent family as the ’234 patent, as well as other patent applications in the same family.”); SIMO
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`Holdings Inc. v. Hong Kong uCloudlink Network Tech. Ltd., 396 F. Supp. 3d 323, 334 (S.D.N.Y.
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`2019) (determining that a jury could reasonably infer that the defendant had knowledge of a patent
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`based in part on testimony that an employee of the alleged infringer was at least familiar with the
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`parent patent of the patent at issue).
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`LinkedIn’s citation to Robocast is distinguishable. See D.I. 12 at 9. In that case, the plaintiff
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`alleged that the defendant obtained knowledge of the ‘451 Patent when defendant “became a
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`licensee of two patent portfolios that include patents or patent applications with citations to the
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`’451 patent.” Robocast, Inc. v. Netflix, Inc., 640 F. Supp. 3d 365, 372 (D. Del. 2022). The court
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`found that while this type of information may in some cases provide a plausible allegation of pre-
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`suit knowledge, such a conclusion could not be reached without “information about the number of
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`patents or patent applications included in the patent portfolios at issue.” See id. Here, LinkedIn is
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`accused of infringing the ’139 and ’398 and related family patents. As noted above, it is reasonable
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`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 15 of 17 PageID #: 507
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`to infer that LinkedIn was aware that it infringed both the ’139 and ’398 patents; thus, it is also
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`reasonable to infer that LinkedIn was aware of family members that have similar claim elements
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`and a common specification. Being informed of infringement of a patent with a common
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`specification to an asserted patent is much less attenuated than becoming a licensee of an
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`unspecified number of patents that include citations to an unspecified number of patents and
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`applications, which happen to include an asserted patent in the mix. See id.
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`Likewise, LinkedIn’s reliance on Sonos does not support LinkedIn’s position because in
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`Sonos, the court reached the unremarkable conclusion that a plausible allegation of knowledge of
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`an asserted patent (not merely a “patent family”) must be asserted. See Sonos, Inc. v. Google LLC,
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`591 F. Supp. 3d 638, 646 (N.D. Cal. 2022), leave to appeal denied, No. 2022-134, 2022 WL
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`1486359 (Fed. Cir. May 11, 2022). But here, AlmondNet plausibly alleges knowledge of the ’146
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`and ’878 patents as a result of LinkedIn’s knowledge that LinkedIn Ads infringes the closely
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`related ’139 and ’398 patents. Sonos did not involve similar facts at all, and even the statement
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`about knowledge of the asserted patent (rather than a related patent) was only dicta. LinkedIn’s
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`reliance on Software Research is similarly distinguishable, as in that case notice “letters were sent
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`before the [asserted] patents [even] existed.” Software Rsch., Inc. v. Dynatrace LLC, 316 F. Supp.
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`3d 1112, 1133 (N.D. Cal. 2018).
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`To the extent LinkedIn contends that Sonos and Software Research should be read as
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`implying that a defendant can never become aware of one patent as a result of knowledge from a
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`closely-related patent, that conclusion is contrary to not only those cases themselves, but is also
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`contrary to common sense, the Rule 8 standard that a complaint need only plausibly allege pre-
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`suit knowledge, and the approach adopted in this District that it is plausible for allegations of
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`infringement to provide knowledge of family members bearing similar specifications and claims.
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`10
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`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 16 of 17 PageID #: 508
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`See, e.g., Elm 3DS Innovations, 2015 WL 5725768, at *3 (making clear that even if knowledge of
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`a family member “may not make pre-suit knowledge probable,” it renders “it at least plausible”)
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`(emphases in original); Novozymes, 2020 WL 12895027, at *3 (“At the pleading stage, alleged
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`knowledge of patent family members and related patents, along with other allegations, can be
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`sufficient to overcome a motion to dismiss.”). Sonos and Software Research advocate for an
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`approach that is contrary to the principle that “the Court must accept all well-pleaded factual
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`allegations in the complaint as true and view them in the light most favorable to the plaintiff.” Nw.
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`Univ., 2022 WL 903892, at *1. Accordingly, in light of this District’s case law, those out of
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`District cases carry no weight.
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`* * *
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`In the event the Court grants LinkedIn’s motion, AlmondNet respectfully requests leave to
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`amend. Leave to amend should be freely given “when justice so requires.” Fed. R. Civ. P.
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`15(a)(2); OnDemand LLC v. Spotify Tech., S.A., 484 F. Supp. 3d 188, 207 (D. Del. 2020)
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`(citing Arthur v. Maersk, Inc., 484 F.3d 196, 204 (3d Cir. 2006)); Free Speech Coalition, Inc.
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`v. AG of the United States, 677 F.3d 519, 545 (3d. Cir. 2012). “A [d]ismissal without leave to
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`amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility.” Alston
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`v. Parker, 363 F.3d 229, 236 (3d Cir. 2004). Those circumstances do not exist here. Accordingly,
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`AlmondNet submits that justice requires granting leave to amend if the Court grants the motion.
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`V.
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`CONCLUSION
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`For the foregoing reasons, LinkedIn’s motion to dismiss should be denied.
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`11
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`Case 1:23-cv-01373-MN Document 15 Filed 03/04/24 Page 17 of 17 PageID #: 509
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`Dated: March 4, 2024
`
`OF COUNSEL:
`
`Reza Mirzaie
`Benjamin T. Wang
`Amy E. Hayden
`James A. Milkey
`James S. Tsuei
`Jonathan Ma
`Jason M. Wietholter
`RUSS, AUGUST & KABAT
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, California 90025
`Telephone: (310) 826-7474
`
`
`
`
`
`
`Respectfully submitted,
`
`FARNAN LLP
`
`
`/s/ Michael J. Farnan
`Brian E. Farnan (Bar No. 4089)
`Michael J. Farnan (Bar No. 5165)
`919 North Market Street, 12th Floor
`Wilmington, DE 19801
`(302) 777-0300
`bfarnan@farnanlaw.com
`mfarnan@farnanlaw.com
`
`
`
`Attorneys for