Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 1 of 16 PageID #: 910
`
`ALMONDNET, INC. and INTENT IQ, LLC,
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`v.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`REPLY BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS
`
`
`
`
`
`C.A. No. 23-1373 (MN)
`
`
`
`
`LINKEDIN CORPORATION,
`
`
`
`
`
`Defendant.
`
`
`
`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
`
`Attorneys for Defendant
`
`
`
`
`
`
`
`
`OF COUNSEL:
`
`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
`
`March 18, 2024
`
`
`
`
`
`
`
`
`

`

`Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 2 of 16 PageID #: 911
`
`
`
`
`I.
`
`II.
`
`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION ...............................................................................................................1
`
`ARGUMENT .......................................................................................................................2
`
`A.
`
`AlmondNet’s claims for indirect infringement and willful blindness should
`be dismissed. ............................................................................................................2
`
`1.
`
`2.
`
`AlmondNet has agreed to dismissal of its indirect infringement
`claims. ..........................................................................................................2
`
`AlmondNet does not dispute, and therefore concedes, that it has
`not pleaded willful blindness. ......................................................................2
`
`B.
`
`AlmondNet’s willful infringement claims should be dismissed entirely. ................3
`
`1.
`
`2.
`
`3.
`
`AlmondNet’s reliance on new factual allegations confirms that the
`Complaint does not adequately allege willfulness. ......................................3
`
`Even if the Court were to consider AlmondNet’s new factual
`allegations about Mr. Hoffman, they do not help AlmondNet. ...................4
`
`AlmondNet has failed to plead facts sufficient to support its willful
`infringement claims for the ’146 and ’878 patents. .....................................7
`
`C.
`
`AlmondNet cannot establish post-suit knowledge by filing a complaint. ...............9
`
`III.
`
`CONCLUSION ..................................................................................................................10
`
`
`
`i
`
`

`

`Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 3 of 16 PageID #: 912
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`ACQIS LLC v. Lenovo Grp. Ltd.,
`No. 6:20-CV-00967-ADA, 2022 WL 2705269 (W.D. Tex. July 12, 2022) ..........................6, 7
`
`Afros S.P.A. v. Krauss-Maffei Corp.,
`671 F. Supp. 1458 (D. Del. 1987) ..........................................................................................5, 6
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................4
`
`Callwave Commc’ns LLC v. AT & T Mobility LLC,
`C.A. No. 12-1701-RGA, 2014 WL 5363741 (D. Del. Jan. 28, 2014) .....................................10
`
`Diceon Elecs., Inc. v. Calvary Partners, L.P.,
`772 F. Supp. 859 (D. Del. 1991) ................................................................................................4
`
`Elm 3DS Innovations, LLC v. Samsung Elecs. Co.,
`C.A. No. 14-1430-LPS-CJB, 2015 WL 5725768 (D. Del. Sept. 29, 2015) ...............................8
`
`In re Asbestos Prod. Liab. Litig. (No. VI),
`822 F.3d 125 (3d Cir. 2016)...................................................................................................1, 4
`
`Kewazinga Corp. v. Microsoft Corp.,
`558 F. Supp. 3d 90 (S.D.N.Y. 2021)......................................................................................8, 9
`
`Koninklijke Philips N.V. v. Lenovo Inc.,
`C.A. No. 20-1242-CFC, 2024 WL 1050637 (D. Del. Mar. 11, 2024) .....................................10
`
`Lytone Enter., Inc. v. Agrofresh Sols., Inc.,
`C.A. No. 20-678-LPS, 2021 WL 534868 (D. Del. Feb. 12, 2021) ............................................6
`
`Novozymes N. Am., Inc. v. Danisco US Inc.,
`C.A. No. 19-01902-JDW, 2020 WL 12895027 (D. Del. Feb. 12, 2020) ...................................8
`
`Oran v. Stafford,
`226 F.3d 275 (3d Cir. 2000).......................................................................................................4
`
`Peters v. Ryan,
`C.A. No. 16-01332-RGA, 2017 WL 1393692 (D. Del. Apr. 13, 2017) ....................................3
`
`Prime Victor Int’l Ltd. v. Simulacra Corp.,
`C.A. No. 23-176-MAK, 2023 WL 4546333 (D. Del. July 14, 2023) ........................................2
`
`
`
`ii
`
`

`

`Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 4 of 16 PageID #: 913
`
`
`
`Ravgen, Inc. v. Ariosa Diagnostics, Inc.,
`C.A. No. 20-1646-RGA-JLH, 2021 WL 3526178 (D. Del. Aug. 11, 2021) .............................9
`
`SIMO Holdings Inc. v. Hong Kong uCloudlink Network Tech. Ltd.,
`396 F. Supp. 3d 323 (S.D.N.Y. 2019)....................................................................................8, 9
`
`Sonos, Inc. v. Google LLC,
`591 F. Supp. 3d 638 (N.D. Cal. 2022) .................................................................................8, 10
`
`Varian Med. Sys., Inc. v. Elekta AB,
`C.A. No. 15-871-LPS, 2016 WL 3748772 (D. Del. July 12, 2016) ..........................................7
`
`VLSI Tech. LLC v. Intel Corp.,
`No. 17-CV-05671-BLF, 2023 WL 8654391 (N.D. Cal. Dec. 14, 2023) .................................10
`
`Wrinkl, Inc. v. Facebook, Inc.,
`C.A. No. 20-1345-RGA, 2021 WL 4477022 (D. Del. Sept. 30, 2021) ...................................10
`
`ZapFraud, Inc. v. Barracuda Networks, Inc.,
`528 F. Supp. 3d 247 (D. Del. 2021) .........................................................................................10
`
`Rules and Statutes
`
`Fed. R. Civ. P. 11(b) ........................................................................................................................5
`
`Fed. R. Civ. P. 12 .............................................................................................................................4
`
`
`
`
`
`iii
`
`

`

`Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 5 of 16 PageID #: 914
`
`
`
`I.
`
`INTRODUCTION1
`
`AlmondNet’s Answering Brief concedes two out of the three principal arguments
`
`raised in LinkedIn’s Opening Brief. First, AlmondNet does not dispute that it failed to allege facts
`
`sufficient to state a claim for indirect infringement and instead states that it will withdraw its
`
`indirect infringement claims. Second, AlmondNet does not dispute, and therefore concedes, that
`
`it failed to adequately allege willful infringement on a theory of willful blindness.
`
`AlmondNet’s Answering Brief instead focuses on LinkedIn’s arguments that
`
`AlmondNet has not pleaded sufficient facts to support claims for willful infringement of the ʼ139,
`
`ʼ146, ʼ398, and ʼ878 patents (the “Relevant Patents”). Remarkably, AlmondNet has chosen to rely
`
`not on allegations actually pleaded in the Complaint, but instead relies on entirely new factual
`
`allegations that were wholly absent from the Complaint. In particular, AlmondNet argues that the
`
`Court may infer that LinkedIn had knowledge of the Relevant Patents because LinkedIn’s co-
`
`founder, Mr. Reid Hoffman, served as a director at Microsoft following Microsoft’s acquisition of
`
`LinkedIn. But Mr. Hoffman is never mentioned in the Complaint, and none of the information in
`
`the five exhibits that AlmondNet has attached to its Answering Brief is tied to any well-pleaded
`
`allegation. See In re Asbestos Prod. Liab. Litig. (No. VI), 822 F.3d 125, 133 (3d Cir. 2016) (“[A]
`
`court considering a motion to dismiss under [Fed. R. Civ. P.] 12(b)(6) may consider only the
`
`allegations contained in the pleading to determine its sufficiency.”).
`
`But even if it were appropriate for AlmondNet to point to alleged facts outside the
`
`Complaint, AlmondNet’s claims about Mr. Hoffman are not nearly enough—even at the pleading
`
`stage—to impute Microsoft’s knowledge of two patents (the ’139 and ’398 patents) to LinkedIn.
`
`AlmondNet’s exhibits (one of which involves events in 2015) do not show that Mr. Hoffman held
`
`1 Where undefined here, capitalized terms are defined in LinkedIn’s Opening Brief. D.I. 12.
`
`
`
`
`
`

`

`Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 6 of 16 PageID #: 915
`
`
`
`simultaneous leadership positions at LinkedIn and Microsoft, much less that he did so during the
`
`relevant time period—i.e. after August 2021, when AlmondNet sued Microsoft for infringement.
`
`And given that AlmondNet has not pleaded facts supporting an inference that LinkedIn had
`
`knowledge of the ’139 and ’398 patents based on Microsoft’s knowledge, AlmondNet certainly
`
`has not pleaded facts sufficient to establish that LinkedIn had knowledge of the ’146 and ’878
`
`patents on the basis of their patent family relationships.
`
`For the reasons stated herein and set forth in LinkedIn’s Opening Brief, LinkedIn
`
`respectfully requests that the Court grant LinkedIn’s Motion and dismiss all of AlmondNet’s
`
`claims for willful and indirect infringement.
`
`II.
`
`ARGUMENT
`
`A.
`
`AlmondNet’s claims for indirect infringement and willful blindness should be
`dismissed.
`
`1.
`
`AlmondNet has agreed to dismissal of its indirect infringement claims.
`
`AlmondNet “no longer assert[s]” its “indirect infringement” claims. See D.I. 15 at
`
`1 n.1. Accordingly, these claims (D.I. 1 at ¶¶ 47–48, 57–58, 67–68, 77–78) should be dismissed.
`
`2.
`
`AlmondNet does not dispute, and therefore concedes, that it has not
`pleaded willful blindness.
`
`AlmondNet raises no challenge to LinkedIn’s argument that AlmondNet failed to
`
`adequately allege willful infringement on a willful blindness theory (D.I. 12 at 9–10); it does not
`
`even mention “blindness” in its Answering Brief. See D.I. 15 at 4–11. Accordingly, AlmondNet’s
`
`claims for willful infringement should be dismissed insofar as they are based on a theory that
`
`LinkedIn was “willfully blind” to the Relevant Patents (D.I. 1 at ¶¶ 46, 56, 66, 76). See, e.g., Prime
`
`Victor Int’l Ltd. v. Simulacra Corp., C.A. No. 23-176-MAK, 2023 WL 4546333, at *13 (D. Del.
`
`July 14, 2023) (“When a party . . . fails to contest an issue raised in the opening brief, the issue is
`
`2
`
`

`

`Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 7 of 16 PageID #: 916
`
`
`
`considered waived or abandoned by the non-movant.”); Peters v. Ryan, C.A. No. 16-01332-RGA,
`
`2017 WL 1393692, at *2 (D. Del. Apr. 13, 2017) (same).
`
`B.
`
`AlmondNet’s willful infringement claims should be dismissed entirely.
`
`1.
`
`AlmondNet’s reliance on new factual allegations confirms that the
`Complaint does not adequately allege willfulness.
`
`In its Opening Brief, LinkedIn asserts that the Complaint fails to state a claim for
`
`willful infringement because, among other reasons, AlmondNet fails to allege facts sufficient to
`
`reasonably infer that LinkedIn had knowledge of the Relevant Patents. D.I. 12 at 6–9. AlmondNet
`
`responds by asking the Court to take judicial notice of new factual allegations that appear nowhere
`
`in the Complaint and arguing that these new factual allegations explain why it is reasonable to
`
`infer that LinkedIn had knowledge of the Relevant Patents. D.I. 15 at 2 n.2; D.I. 16-2 to 16-5 (Exs.
`
`B–E). In particular, AlmondNet’s briefing principally relies on new factual allegations (1) that
`
`“Microsoft and LinkedIn’s businesses are closely intertwined, with Microsoft’s growth dependent
`
`on LinkedIn’s success” (D.I. 15 at 1–3, 5, 7), and (2) that Mr. Hoffman, LinkedIn’s former
`
`chairman, now sits on the board of Microsoft and has some influence over the management of
`
`LinkedIn (D.I. 15 at 1, 3, 5, 7).
`
`To begin, AlmondNet’s response—asking the Court to take judicial notice of new
`
`factual allegations wholly absent from its Complaint—only confirms that the Complaint does not
`
`contain sufficient factual allegations to plausibly infer that LinkedIn had knowledge of the
`
`Relevant Patents. The Complaint makes no reference to Mr. Hoffman (or any director or officer
`
`of either LinkedIn or Microsoft). The Complaint also lacks any allegation of “intertwined[ness]”
`
`or “dependen[cy]” between Microsoft and LinkedIn. On the contrary, the Complaint reports that
`
`“LinkedIn is a separate and distinct entity” from Microsoft. D.I. 1 at ¶¶ 46, 56, 66, 76. Moreover,
`
`the Answering Brief repeatedly asserts that it is reasonable to infer that Microsoft told its
`
`3
`
`

`

`Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 8 of 16 PageID #: 917
`
`
`
`subsidiary about the ’139 and ’398 patents (D.I. at 5–8), but in actuality the Complaint never
`
`alleges that Microsoft told LinkedIn about these patents. See D.I. 1 at ¶¶ 46, 56, 66, 76.
`
`AlmondNet’s reliance on new factual allegations is also improper. A complaint
`
`must “give the defendant fair notice of what the claim is and the grounds upon which it rests.”
`
`E.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up). Accordingly, subject to
`
`exceptions not relevant here, “a court considering a motion to dismiss under [Rule] 12(b)(6) may
`
`consider only the allegations contained in the pleading to determine its sufficiency.” E.g., In re
`
`Asbestos, 822 F.3d at 133. AlmondNet’s belated reliance on new factual allegations deprived
`
`LinkedIn of the ability to investigate and address those allegations in its Opening Brief.
`
`AlmondNet should not be permitted now to augment its pleading in an Answering Brief.2
`
`2.
`
`Even if the Court were to consider AlmondNet’s new factual allegations
`about Mr. Hoffman, they do not help AlmondNet.
`
`To the extent the Court considers the new allegations set forth for the first time in
`
`AlmondNet’s Answering Brief, these allegations are insufficient to plausibly support an inference
`
`that LinkedIn had knowledge of the Relevant Patents. AlmondNet argues that Microsoft’s alleged
`
`knowledge of the ’139 and ’398 patents should be imputed to LinkedIn due to Mr. Hoffman’s role
`
`at Microsoft following Microsoft’s acquisition of LinkedIn. But the exhibits that AlmondNet filed
`
`
`
`2 LinkedIn opposes AlmondNet’s request for judicial notice (D.I. 15 at 2 n.2) because the Court
`should not generally consider factual allegations a plaintiff failed to plead in its complaint in ruling
`on a motion to dismiss. See, e.g., In re Asbestos, 822 F.3d at 133. The cases AlmondNet cites are
`inapposite. In Diceon Elecs., Inc. v. Calvary Partners, L.P., 772 F. Supp. 859 (D. Del. 1991), the
`Court did not take judicial notice of anything: rather, the Court confirmed that “[w]hat the Court
`may consider on a Rule 12 motion is limited,” and admonished defendants for making assertions
`in their motion to dismiss without requesting judicial notice of available underlying evidence. Id.
`at 861 & n.1. The case does not condone a plaintiff using judicial notice to expand its allegations
`and fill gaps in its own complaint. In Oran v. Stafford, 226 F.3d 275 (3d Cir. 2000), the court
`granted judicial notice of SEC filings because the “defendants d[id] not object” and “the [noticed]
`documents [we]re the very documents alleged to contain” the omissions that were the “gravamen
`of plaintiffs’ case.” Id. at 289 (quotation omitted). Here, LinkedIn objects, and the facts-at-issue
`are entirely absent from, much less central to, the Complaint.
`
`4
`
`

`

`Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 9 of 16 PageID #: 918
`
`
`
`with its Answering Brief do not support the allegation that Mr. Hoffman had any ongoing role at
`
`LinkedIn during the relevant time period. Indeed, the only document AlmondNet points to that
`
`pertains to Mr. Hoffman’s role at LinkedIn is LinkedIn’s Form 10-K for fiscal year ending on
`
`December 31, 2015 (“Exhibit D”), which was filed about eight years ago, when Mr. Hoffman was
`
`still on LinkedIn’s Board and before Microsoft acquired LinkedIn. D.I. 15 at 5 (citing D.I. 16-4,
`
`Ex. D at 42). Thus, Exhibit D shows only that Mr. Hoffman had significant influence over
`
`LinkedIn when he was chairman of the board of LinkedIn in 2016. Similarly, Microsoft’s Form
`
`10-K for fiscal year ending on June 30, 2023 (“Exhibit C”), reflects only that Mr. Hoffman sat (as
`
`he does now) on Microsoft’s Board in July 2023. D.I. 16-3, Ex. C at 109. There is absolutely
`
`nothing in these two SEC filings (submitted nearly seven years apart) that supports AlmondNet’s
`
`theory that Mr. Hoffman continued to manage LinkedIn’s affairs after Microsoft acquired
`
`LinkedIn. Cf. Fed. R. Civ. P. 11(b).
`
`Moreover, the cases that AlmondNet cites do not support its argument that
`
`LinkedIn’s knowledge can be inferred from Microsoft’s knowledge. AlmondNet relies on Afros
`
`S.P.A. v. Krauss-Maffei Corp., 671 F. Supp. 1458 (D. Del. 1987), to suggest that knowledge may
`
`be imputed “where the evidence demonstrated that directors played a significant role in both
`
`companies.” D.I. 15 at 4–5. But in Afros, the entirety of the board of directors of the subsidiary
`
`also held high ranking positions with the parent company “during the relevant time period.” 671
`
`F. Supp. at 1459–60. Further, in Afros, the Court reasoned—noting that the subsidiary was the
`
`“exclusive seller of [the foreign parent corporation’s] products in the United States,” was described
`
`as the parent’s “acting arm in the United States,” and held board meetings in the parent
`
`corporation’s office—that refusing to impute a finding of willfulness from a foreign-owned parent
`
`5
`
`

`

`Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 10 of 16 PageID #: 919
`
`
`
`corporation to a U.S. based subsidiary would give foreign-owned corporations an advantage over
`
`domestic companies. Id.
`
`Here, AlmondNet’s Complaint does not allege that anyone (Mr. Hoffman included)
`
`held overlapping leadership roles in both Microsoft and LinkedIn “during the relevant time period”
`
`(i.e. after AlmondNet sued Microsoft in August 2021 (D.I. 1 at ¶¶ 46, 56, 66, 76))—let alone that
`
`the entirety of LinkedIn’s leadership team also had high ranking positions within Microsoft. Afros
`
`is further unavailing because Microsoft and LinkedIn are domestic companies, so Afros’s special
`
`concerns about advantaging foreign-owned corporations do not apply here.
`
`AlmondNet’s reliance on Lytone Enter., Inc. v. Agrofresh Sols., Inc., C.A. No. 20-
`
`678-LPS, 2021 WL 534868 (D. Del. Feb. 12, 2021), and ACQIS LLC v. Lenovo Grp. Ltd., No.
`
`6:20-CV-00967-ADA, 2022 WL 2705269 (W.D. Tex. July 12, 2022), is also unavailing. In
`
`Lytone, the plaintiff disclosed a patent to a company called Rohm and Haas to discuss a possible
`
`business relationship. 2021 WL 534868 at *1. Rohm and Haas declined to do business with the
`
`plaintiff but went on to obtain a similar patent and to form Agrofresh as a wholly owned subsidiary.
`
`Id. The Court held that the plaintiff adequately alleged that Agrofresh had pre-suit knowledge of
`
`the patent primarily because the plaintiff alleged that “AgroFresh . . . identified the . . . patent
`
`during the prosecution of many of their patent applications.” Id. at *3 (emphasis added). The
`
`Court also reasoned that, unlike alleging a mere “parent-subsidiary relationship,” Lytone alleged
`
`“that AgroFresh was also the successor-in-interest to Rohm and Haas’ [relevant] patents” and that
`
`Rohm and Haas “formed” “AgroFresh . . . to assume responsibility for its [accused] products.”
`
`Id. at *4 (emphasis added). These allegations “[i]n combination” “g[a]ve rise to a reasonable
`
`inference that AgroFresh had pre-suit knowledge” of the patent. Id. But here, the Complaint does
`
`not allege any reason independent of Microsoft’s alleged knowledge to infer that LinkedIn knew
`
`6
`
`

`

`Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 11 of 16 PageID #: 920
`
`
`
`of the Relevant Patents, such as LinkedIn identifying the Relevant Patents in patent applications.
`
`Further, the Complaint does not allege that Microsoft is LinkedIn’s successor-in-interest or that
`
`Microsoft formed LinkedIn to assume responsibility for the accused products.
`
`Finally, ACQIS concerned whether internal knowledge of a “multi-national
`
`conglomerate,” where allegedly “all of the Lenovo Defendants are part of a family subject to
`
`common ownership and control,” could be imputed to members of that corporate family. 2022
`
`WL 2705269, at *6. ACQIS successfully argued that, since the defendants allegedly “operate[d]
`
`as a single multinational conglomerate,” knowledge could be imputed amongst them. Id. But
`
`here, AlmondNet does not plead that LinkedIn is subject to the common ownership and control of
`
`Microsoft. In fact, the Complaint specifically points to Microsoft’s assertion that “LinkedIn is a
`
`separate and distinct entity,” which “Microsoft does not control.” See D.I. ¶¶ 46, 56, 66, 76.
`
`AlmondNet has not pointed, and cannot point, to allegations in the Complaint
`
`supporting the assertion that Microsoft’s knowledge should be imputed to LinkedIn, aside from
`
`the fact that Microsoft is LinkedIn’s parent company. And the parent company’s knowledge of
`
`the patents-in-suit, without more, is insufficient to survive a motion to dismiss. See, e.g., Varian
`
`Med. Sys., Inc. v. Elekta AB, C.A. No. 15-871-LPS, 2016 WL 3748772, at *5 (D. Del. July 12,
`
`2016).
`
`3.
`
`AlmondNet has failed to plead facts sufficient to support its willful
`infringement claims for the ’146 and ’878 patents.
`
`AlmondNet argues that “any allegations of infringement of the ’139 and ’398
`
`patents would naturally extend to the ’146 and ’878 patents.” D.I. 15 at 8. But AlmondNet’s
`
`argument ignores the attenuated series of inferences the Complaint would require the Court to
`
`make. At best, the Complaint alleges that LinkedIn knew of the ’146 and ’878 patents because
`
`Microsoft knew of the ’139 and ’398 patents and because the ’139 and ’398 patents are related to
`
`7
`
`

`

`Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 12 of 16 PageID #: 921
`
`
`
`the ’146 and ’878 patents. But the Complaint does not allege that Microsoft knew the patents were
`
`related, or that Microsoft informed LinkedIn about any of the patents (D.I. 1 at ¶¶ 56, 76). There
`
`are too many required inferences in AlmondNet’s position to survive a motion to dismiss.
`
`Further, a plaintiff must allege more than a mere family relationship between
`
`patents to show that a defendant had knowledge of a patent from knowledge of its family
`
`member—which AlmondNet failed to do here. See, e.g., Sonos, Inc. v. Google LLC, 591 F. Supp.
`
`3d 638, 643 (N.D. Cal. 2022) (“Mere knowledge of a ‘patent family’ . . . is not enough.”). This is
`
`evident even from the cases AlmondNet cites. D.I. 15 at 9. For example, in Elm 3DS Innovations,
`
`LLC v. Samsung Elecs. Co., C.A. No. 14-1430-LPS-CJB, 2015 WL 5725768 (D. Del. Sept. 29,
`
`2015), the Court held that the plaintiff adequately alleged knowledge of a patent because: (1) the
`
`patent’s inventor made a presentation about the patent’s parent to the defendants; (2) the
`
`defendants cited to three of the parent patent’s other children, which shared the same specification
`
`as the patent at issue, in prosecuting their own patents; and (3) the patent was well known within
`
`the parties’ industry and frequently cited by competitors. See id. at *2–3. Similarly, in Novozymes
`
`N. Am., Inc. v. Danisco US Inc., C.A. No. 19-01902-JDW, 2020 WL 12895027 (D. Del. Feb. 12,
`
`2020), the Court held that the complaint adequately alleged that the defendants knew of a patent
`
`from International Search Reports the defendants encountered while prosecuting three of their own
`
`patent applications. Id. at *2. The Court also noted that the patent was described by the plaintiff
`
`at a conference that defendant’s representatives attended. See id. at *2–3. But here, the Complaint
`
`fails to allege any further facts supporting AlmondNet’s bald assertion that LinkedIn should have
`
`known about the ’146 and ’878 patents because AlmondNet previously told Microsoft that
`
`LinkedIn products infringed the ’139 and ’398 patents.3
`
`3 AlmondNet also relies on Kewazinga Corp. v. Microsoft Corp., 558 F. Supp. 3d 90, 99–100
`(S.D.N.Y. 2021), and SIMO Holdings Inc. v. Hong Kong uCloudlink Network Tech. Ltd., 396 F.
`
`
`
`8
`
`

`

`Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 13 of 16 PageID #: 922
`
`
`
`C.
`
`AlmondNet cannot establish post-suit knowledge by filing a complaint.
`
`LinkedIn has always sought the complete dismissal of AlmondNet’s willful
`
`infringement claims for failure to plead knowledge, including claims for so-called “post-suit
`
`willfulness” (D.I. 15 at 4). See, e.g., D.I. 12 at 15 (seeking dismissal of willful infringement claims
`
`at D.I. 1 at ¶¶ 46, 56, 66, 76). AlmondNet now contends, however, that “the filing of the Complaint
`
`itself is sufficient to maintain such claims.” D.I. 15 at 4 (citing Ravgen, Inc. v. Ariosa Diagnostics,
`
`Inc., C.A. No. 20-1646-RGA-JLH, 2021 WL 3526178, at *4 (D. Del. Aug. 11, 2021)).
`
`But nowhere in the Complaint does AlmondNet allege that LinkedIn had
`
`knowledge of the Relevant Patents because of AlmondNet’s Complaint against LinkedIn. By
`
`contrast, in the Ravgen case AlmondNet cites, the plaintiff actually “allege[d] post-suit willful
`
`infringement” in the first amended complaint on the grounds that the defendant’s knowledge of
`
`infringement was “gained from [the plaintiff’s] original complaint and a letter sent to [the
`
`defendant] the day the complaint was filed.” Ravgen, 2021 WL 3526178, at *4. It is unfair and
`
`improper for AlmondNet now to distinguish between pre- and post-suit knowledge and to attempt
`
`to articulate a basis for “post-suit knowledge” for the first time in its Answering Brief.
`
`While there is a well-documented split on this issue among judges in this District,
`
`recent decisions provide strong reasons to reject the idea that a plaintiff can establish a scienter
`
`
`Supp. 3d 323, 334 (S.D.N.Y. 2019). D.I. 15 at 9. But in Kewazinga, the plaintiff alleged in its
`complaint that it met with several representatives of the defendant company and provided notice
`of its patents and their possible infringement multiple times over the span of several years. 558 F.
`Supp. 3d at 99–100. And in SIMO, the court denied the defendants’ motion for judgment as a
`matter of law on whether the defendants knew of the patent because: (1) testimony suggested that
`the defendants’ employee knew of the patent’s parent; (2) the defendants’ internal architecture
`documents bore “notable similarities” to the patent and the plaintiffs’ architecture documents; and
`(3) the defendants hired someone who took confidential documents from the plaintiff’s wholly-
`owned subsidiary that sold the patent-practicing products and invoked his Fifth Amendment
`privilege when asked if he took the files to create patents for the defendant’s benefit. 396 F. Supp.
`3d at 334–36. No analogous facts are pleaded in the Complaint here.
`
`9
`
`

`

`Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 14 of 16 PageID #: 923
`
`
`
`element essential for its claim merely by filing a complaint against the defendant. See, e.g.,
`
`ZapFraud, Inc. v. Barracuda Networks, Inc., 528 F. Supp. 3d 247, 250–52 (D. Del. 2021); Wrinkl,
`
`Inc. v. Facebook, Inc., C.A. No. 20-1345-RGA, 2021 WL 4477022, at *6–8 (D. Del. Sept. 30,
`
`2021); Koninklijke Philips N.V. v. Lenovo Inc., C.A. No. 20-1242-CFC, 2024 WL 1050637, at *3
`
`(D. Del. Mar. 11, 2024). Courts holding that filing a complaint is insufficient to establish
`
`knowledge reason that there is “no area of tort law other than patent infringement where courts
`
`have allowed a plaintiff to prove an element of a legal claim with evidence that the plaintiff filed
`
`the claim.” ZapFraud, 528 F. Supp. 3d at 251. Moreover, holding that a complaint suffices to
`
`establish a defendant’s knowledge would discourage a plaintiff from first sending a cease-and-
`
`desist letter, which allows the defendant to cease infringement and the parties to resolve their
`
`disagreement without taxing court resources. See, e.g., id. at 251; Sonos, 591 F. Supp. 3d at 646;
`
`Callwave Commc’ns LLC v. AT & T Mobility LLC, C.A. No. 12-1701-RGA, 2014 WL 5363741,
`
`at *1 (D. Del. Jan. 28, 2014). Finally, a finding that “a complaint and infringement contentions
`
`. . . alone satisfy post-suit notice would invite claims of willful infringement and indirect
`
`infringement into literally every patent suit.” E.g., VLSI Tech. LLC v. Intel Corp., No. 17-CV-
`
`05671-BLF, 2023 WL 8654391, at *31 (N.D. Cal. Dec. 14, 2023). The Court should reject
`
`AlmondNet’s invitation to recognize a contested and imprudent expansion of the law, especially
`
`because AlmondNet failed even to plead a theory of “post-suit willfulness” in its Complaint.
`
`III. CONCLUSION
`
`For the reasons stated here and in its Opening Brief, LinkedIn respectfully requests
`
`that the Court dismiss AlmondNet’s claims for willful and indirect infringement of the Relevant
`
`Patents (D.I. 1 at ¶¶ 46–48, 56–58, 66–68, 76–78) with prejudice and without leave to amend.
`
`10
`
`

`

`Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 15 of 16 PageID #: 924
`
`
`
`
`
`
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Rodger D. Smith II
`
`
`
`
`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
`
`Attorneys for Defendant
`
`
`
`
`
`
`
`
`
`
`OF COUNSEL:
`
`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
`
`
`
`March 18, 2024
`
`11
`
`

`

`Case 1:23-cv-01373-MN Document 17 Filed 03/18/24 Page 16 of 16 PageID #: 925
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on March 18, 2024, I caused the foregoing to be electronically
`
`filed with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
`
`registered participants.
`
`I further certify that I caused copies of the foregoing document to be served on
`
`March 18, 2024, upon the following in the manner indicated:
`
`Brian E. Farnan, Esquire
`Michael J. Farnan, Esquire
`FARNAN LLP
`919 North Market Street, 12th Floor
`Wilmington DE 19801
`Attorneys for Plaintiffs
`
`Reza Mirzaie, Esquire
`Ben Wang, Esquire
`James Milkey, Esquire
`Amy Hayden, Esquire
`James Tsuei, Esquire
`Daniel Kolko, Esquire
`Jason Wietholter, Esquire
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, California 90025
`Attorneys for Plaintiffs
`
`
`VIA ELECTRONIC MAIL
`
`
`
`
`
`VIA ELECTRONIC MAIL
`
`
`/s/ Rodger D. Smith II
`__________________________
`Rodger D. Smith II (#3778)
`
`
`
`
`
`
`
`
`
`
`
`