Case 1:24-cv-00376-MN Document 23 Filed 09/17/24 Page 1 of 14 PageID #: 578
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`
`
`
`C.A. No. 24-cv-376-MN
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`JURY TRIAL DEMANDED
`
`ALMONDNET, INC., INTENT IQ, LLC, and
`DATONICS LLC,
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`
`LOTAME SOLUTIONS, INC.,
`
`
`Defendant.
`
`
`
`
`
`ALMONDNET’S ANSWERING BRIEF IN OPPOSITION TO
`LOTAME’S MOTION TO DISMISS
`
`
`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@farnsnlaw.com
`mfarnan@farnanlaw.com
`
`
`
`
`
`
`
`
`
`
`
`
`Attorneys for Plaintiffs AlmondNet, Inc.,
`Intent IQ, LLC, and Datonics LLC
`
`Dated: September 17, 2024
`
`OF COUNSEL:
`
`Reza Mirzaie
`Benjamin T. Wang
`James A. Milkey
`Amy E. Hayden
`James S. Tsuei
`Daniel B. Kolko
`Jason M. Wietholter
`RUSS, AUGUST & KABAT
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, California 90025
`Telephone: (310) 826-7474
`rmirzaie@raklaw.com
`bwang@raklaw.com
`jmilkey@raklaw.com
`ahayden@raklaw.com
`jtsuei@raklaw.com
`dkolko@raklaw.com
`jwietholter@raklaw.com
`
`
`

`

`Case 1:24-cv-00376-MN Document 23 Filed 09/17/24 Page 2 of 14 PageID #: 579
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`TABLE OF CONTENTS
`
`I. 
`
`II. 
`
`III. 
`
`IV. 
`
`V. 
`
`VI. 
`
`INTRODUCTION .............................................................................................................. 1 
`
`NATURE AND STAGE OF PROCEEDINGS .................................................................. 1 
`
`SUMMARY OF ARGUMENT .......................................................................................... 1 
`
`FACTUAL BACKGROUND ............................................................................................. 2 
`
`LEGAL STANDARD ......................................................................................................... 3 
`
`ARGUMENT ...................................................................................................................... 4 
`
`A.  The Complaint Sufficiently Pleads Direct Infringement by Lotame .......................... 4 
`
`B.  AlmondNet Is Entitled to Past Damages .................................................................... 7 
`
`C.  Lotame’s Motion as to Indirect Infringement Is Moot ............................................... 9 
`
`VII.  CONCLUSION ................................................................................................................... 9 
`
`
`
`
`
`
`
`
`i
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`

`

`Case 1:24-cv-00376-MN Document 23 Filed 09/17/24 Page 3 of 14 PageID #: 580
`
`TABLE OF AUTHORITIES
`
`Cases
`Aatrix Software, Inc. v. Green Shades Software, Inc.,
`882 F.3d 1121 (Fed. Cir. 2018)................................................................................................... 9
`
`
`Am. Med. Systems, Inc. v. Medical Engineering Corp.,
`6 F.3d 1523 (Fed. Cir. 1993)....................................................................................................... 8
`
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ................................................................................................................ 3, 4
`
`
`Bausch & Lomb Incorporated v. SBH Holdings LLC,
`No. 20-1463-LPS, 2022 WL 856750 (D. Del. Mar. 23, 2022) ................................................... 4
`
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ................................................................................................................ 3, 4
`
`
`Bot M8 LLC v. Sony Corp. of Am.,
`4 F.4th 1342 (Fed. Cir. 2021) ..................................................................................................... 4
`
`
`Connelly v. Lane Const. Corp.,
`908 F.3d 780 (3d. Cir. 2016)................................................................................................... 3, 4
`
`
`Corrigent Corp. v. Arista Networks, Inc.,
`No. CV 22-497-RGA, 2023 WL 2351799 (D. Del. Mar. 3, 2023) ............................................. 9
`
`
`Crown Packaging Tech. v. Rexam Beverage Can Co.,
`498 F. Supp.2d 718 (D. Del. 2007) ............................................................................................. 8
`
`
`Crown Packaging Tech., Inc. v. Rexam Beverage Can Co.,
`559 F.3d 1308 (2009) .............................................................................................................. 8, 9
`
`
`IP Commc’n Sols., LLC v. Viber Media (USA) Inc.,
`C.A. No. 16-134-GMS, 2017 WL 1312942 (D. Del. Apr. 5, 2017) ................................... 4, 6, 7
`
`
`Nalco Co. v. Chem-Mod, LLC,
`882 F.3d 1337 (Fed. Cir. 2018)................................................................................................... 4
`
`
`Promos Technologies, Inc. v. Samsung Electronics Co.,
`2018 WL 5630585 (D. Del. Oct 31, 2018) ................................................................................. 4
`
`
`Robocast, Inc. v. Netflix, Inc.,
`640 F. Supp. 3d 365 (D. Del. Nov. 14, 2022) ............................................................................. 5
`
`
`Sapphire Crossing LLC v. Robinhood Markets, Inc.,
`No. 18-1717-MN-CJB, 2021 WL 149023 (D. Del. Jan. 15, 2021) ............................................ 8
`
`
`
`ii
`
`

`

`Case 1:24-cv-00376-MN Document 23 Filed 09/17/24 Page 4 of 14 PageID #: 581
`
`
`Sprint Communications Company LP v. Charter Communications, Inc.,
`No. 17-1734-RGA, 2021 WL 982732 (D. Del. Mar. 16, 2021) ................................................. 7
`Rules
`Fed R. Civ. P. 12(b)(6)............................................................................................................ 3, 5, 7
`
`
`
`iii
`
`

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`Case 1:24-cv-00376-MN Document 23 Filed 09/17/24 Page 5 of 14 PageID #: 582
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`I.
`
`INTRODUCTION
`
`In its motion to dismiss, Defendant Lotame Solutions, Inc. (“Lotame”) asks the Court to
`
`dismiss Plaintiffs AlmondNet, Inc., Intent IQ, LLC, and Datonics LLC’s (collectively,
`
`“AlmondNet”) claims for direct infringement, pre-suit damages, and indirect infringement. (D.I.
`
`21.) But AlmondNet more than adequately pled allegations regarding infringement and pre-suit
`
`damages in its complaint. Lotame’s criticisms rest on ignoring the complaint (as to infringement
`
`and the accused products) or mischaracterizing the law (as to pre-suit damages). Lotame’s motion
`
`lacks merit and should be denied.
`
`II.
`
`NATURE AND STAGE OF PROCEEDINGS
`
`On March 22, 2024, AlmondNet filed its complaint against Lotame, asserting infringement
`
`of five patents: U.S. Patent Nos. 8,677,398 (“’398 Patent”), 8,589,210 (“’210 Patent”), 10,984,445
`
`(“’445 Patent”), 8,775,249 ( “’249 Patent”), and 8,494,904 (“’904 Patent”) (collectively, “Asserted
`
`Patents”). (D.I. 1.)
`
`On June 6, 2024, Lotame filed a motion to dismiss. (D.I. 13.) On July 11, 2024, to address
`
`any alleged ambiguities in its initial complaint, AlmondNet amended the complaint. (D.I. 16.) The
`
`amended complaint contains detailed allegations regarding the accused products and services,
`
`consistent with Lotame’s descriptions in its own website and public facing documents.
`
`On August 20, 2024, Lotame filed this second motion to dismiss. (D.I. 21.)
`
`III.
`
`SUMMARY OF ARGUMENT
`
`1.
`
`As to direct infringement, AlmondNet fully complied with pleading requirements
`
`by alleging that Lotame infringes all limitations of Asserted Patents by making, using, selling, or
`
`offering to sell Lotame’s “Spherical Platform” product and services. According to Lotame’s own
`
`website, “Lotame operates a platform (‘Spherical Platform’) that provides technology, services,
`
`and tools to provide audience management, identity, and data monetization services (our
`
`
`
`1
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`

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`Case 1:24-cv-00376-MN Document 23 Filed 09/17/24 Page 6 of 14 PageID #: 583
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`‘Services’) to our Business Customers (and their customers) and Data Partners.” That is the overall
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`infringing product Lotame offers, and it includes each of the accused functionalities identified in
`
`AlmondNet’s claim charts. Lotame’s motion requires disregarding AlmondNet’s allegations
`
`(which must be taken as true), as well as its own website and documents.
`
`2.
`
`As to pre-suit damages, AlmondNet is only asserting method claims for each of the
`
`Asserted Patents. The Court should thus deny Lotame’s motion as to pre-suit damages because
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`section 287(a) does not apply where a patentee is only asserting method claims. This is true even
`
`if the patent contains both method and apparatus claims. Lotame’s argument to the contrary is
`
`legal error. Lotame’s only support is a case that was reversed by the Federal Circuit on the
`
`proposition it relies on. Lotame’s argument is misleading and frivolous.
`
`3.
`
`As to indirect infringement, Lotame’s motion is moot. To narrow issues for the
`
`Court to resolve, AlmondNet has agreed to dismiss its claims for induced and contributory
`
`infringement without prejudice. AlmondNet reserves the right to seek leave to amend, including
`
`based on discovery.
`
`IV.
`
`FACTUAL BACKGROUND
`
`AlmondNet’s first amended complaint (“FAC,” D.I. 16) contains detailed allegations
`
`regarding Lotame’s Accused Instrumentalities. For example, paragraphs 10-12 allege:
`
`Instrumentalities” or “Accused
`As used herein, “Lotame’s Accused
`Instrumentalities” includes without limitation Lotame’s Spherical Platform product
`and services that provide technology, services, and tools to provide audience
`management, identity, and data monetization services. According to Defendant’s
`website: “Lotame operates a platform (‘Spherical Platform’) that provides
`technology, services, and tools to provide audience management, identity, and data
`monetization services (our ‘Services’) to our Business Customers (and their
`customers) and Data Partners.” https://www.lotame.com/privacy/privacynotices/
`services/.
`
`Defendant’s website further describes Lotame’s Spherical Platform product and
`services as including Lotame’s “Audience Management Services,” “Identity
`Services,” and “Data Monetization Services” as follows:
`
`
`
`2
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`

`

`Case 1:24-cv-00376-MN Document 23 Filed 09/17/24 Page 7 of 14 PageID #: 584
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` .
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` . .
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`
`Accordingly, the Accused Instrumentalities include Lotame’s products and services
`described collectively as the “Spherical Platform” on Defendant’s website.
`
`
`(FAC ¶¶ 10-12.)
`
`
`
`These allegations are consistent with and supported by Lotame’s own website and
`
`documents. (Id. at ¶¶ 10-12 (quoting and reproducing https://www.lotame.com/privacy/privacy
`
`notices/services/), ¶¶ 13-16 (quoting and reproducing https://spherical.lotame.com/)).
`
`
`
`The FAC further identifies the Asserted Patents and alleges that Lotame infringes all
`
`limitations of one or more claims of each Asserted Patent. (Id. ¶¶ 23, 34, 45, 54, 62.) The FAC
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`also attaches claim charts comparing one independent method claim of the asserted patents to
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`methods performed by Lotame, such as through Lotame’s Spherical platform.
`
`
`
`The FAC also makes clear that AlmondNet is (and always has) only asserting method
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`claims of the Asserted Patents. (See, e.g., D.I. 16 at ¶¶ 19, 22, 23, 27 (asserting that Lotame
`
`infringes one or more method claims of the Asserted Patents)).
`
`V.
`
`LEGAL STANDARD
`
`When considering a Rule 12(b)(6) motion to dismiss, the Court must accept as true all
`
`factual allegations in the complaint and view them in the “light most favorable to the plaintiff.”
`
`Connelly v. Lane Const. Corp., 908 F.3d 780, 791 (3d. Cir. 2016). “[A] well-pleaded complaint
`
`may proceed even if it strikes a savvy judge that actual proof of [the alleged] facts is improbable,
`
`and that a recovery is very remote and unlikely.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
`
`(2007) (citation omitted). To survive a motion to dismiss, a complaint need only contain “sufficient
`
`factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
`
`Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). “Twombly and Iqbal expressly declined to
`
`exclude even outlandish allegations from a presumption of truth except to the extent they
`
`
`
`3
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`

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`Case 1:24-cv-00376-MN Document 23 Filed 09/17/24 Page 8 of 14 PageID #: 585
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`resembled a formulaic recitation of the elements of a . . . claim or other legal conclusion.” Connelly,
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`809 F.3d at 789 (citation omitted). The standard “simply calls for enough facts to raise a reasonable
`
`expectation that discovery will reveal evidence of [the claim].” Twombly, 550 U.S. at 545.
`
`VI. ARGUMENT
`A.
`
`The Complaint Sufficiently Pleads Direct Infringement by Lotame
`
`AlmondNet’s allegations are more than sufficient for pleading direct infringement. A
`
`complaint adequately alleges direct infringement by including sufficient facts to “place the alleged
`
`infringer on notice of what activity . . . is being accused of infringement.” Bausch & Lomb
`
`Incorporated v. SBH Holdings LLC, No. 20-1463-LPS, 2022 WL 856750, at *2 (D. Del. Mar. 23,
`
`2022) (citing Bot M8 LLC v. Sony Corp. of Am., 4 F.4th 1342, 1352 (Fed. Cir. 2021) (internal
`
`quotation marks omitted). While a plaintiff cannot merely assert a plausible infringement claim by
`
`“reciting the claim elements and merely concluding that the accused product has those elements,”
`
`Id., a plaintiff is not required to “plead facts establishing that each element of an asserted claim is
`
`met.” Id. (citing Nalco Co. v. Chem-Mod, LLC, 882 F.3d 1337, 1350 (Fed. Cir. 2018).
`
`AlmondNet’s allegations provide Lotame with fair notice of infringement of the Asserted
`
`Patents and are sufficient under the plausibility standard of Iqbal/Twombly. The FAC identifies
`
`the Asserted Patents and alleges that Lotame practices all limitations of one or more claims of each
`
`patent. (See FAC ¶¶ 23, 34, 45, 54, 62.) The FAC attaches claim charts comparing one independent
`
`claim of the asserted patents to methods performed by Lotame, such as through Lotame’s Spherical
`
`platform. Promos Technologies, Inc. v. Samsung Electronics Co., 2018 WL 5630585, at *2 (D.
`
`Del. Oct 31, 2018) (“Under Twombly and Iqbal, the use of exemplary pleading of claims is
`
`sufficient to satisfy Rule 12(b)(6).”). In the context of method claims applied to infringing services,
`
`no more is required. See IP Commc’n Sols., LLC v. Viber Media (USA) Inc., C.A. No. 16-134-
`
`GMS, 2017 WL 1312942, at *3 (D. Del. Apr. 5, 2017) (“To require that [plaintiff] name a specific
`
`
`
`4
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`

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`Case 1:24-cv-00376-MN Document 23 Filed 09/17/24 Page 9 of 14 PageID #: 586
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`infringing product would be nonsensical in this instance. It is unclear how [plaintiff] can be any
`
`more specific about what aspects of [defendant’s] technology infringe its patent when [plaintiff]
`
`likely does not have access to [defendant’s] computer code.”).
`
`Notably, Lotame does not contend that AlmondNet’s charts merely repeat the claim
`
`language. Rather, the crux of Lotame’s complaint is that that AlmondNet fails to chart a single
`
`product against all elements. But a “single product” requirement is inconsistent with the pleading
`
`requirements for method claims applied to infringing services. See id. (acknowledging that an
`
`invention may cover the way “components work together” and not be limited to a single product).
`
`And regardless, the FAC expressly accused a single overall product: “Lotame’s Spherical Platform
`
`product and services.” (See FAC ¶¶ 10-16 (defining Lotame’s Accused Instrumentalities)). Indeed,
`
`based on Lotame’s own website and documents, AlmondNet alleges the following (id. ¶¶ 11-12):
`
` “Lotame operates a platform (‘Spherical Platform’) that provides technology,
`services, and tools to provide audience management, identity, and data
`monetization services (our ‘Services’) to our Business Customers (and their
`customers) and Data Partners.”
`
` “[T]he Accused Instrumentalities include Lotame’s products and services described
`collectively as the ‘Spherical Platform’ on Defendant’s website.”
`
`For purposes of a motion to dismiss under Rule 12(b)(6), these factual allegations must be taken
`
`as true. And these allegations are more than plausible—the descriptions of Lotame’s Spherical
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`Platform products and services that AlmondNet included in the FAC come verbatim from
`
`Lotame’s own website.
`
`Thus, even if the law did require AlmondNet to chart a single product against all elements,
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`AlmondNet has done so by pleading all aspects of infringement as being performed by one product,
`
`i.e., Lotame’s Spherical Platform product and services. (See id. ¶¶ 10-16.) See Robocast, Inc. v.
`
`Netflix, Inc., 640 F. Supp. 3d 365, 368 (D. Del. Nov. 14, 2022) (denying motion to dismiss where
`
`
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`5
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`

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`Case 1:24-cv-00376-MN Document 23 Filed 09/17/24 Page 10 of 14 PageID #: 587
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`plaintiffs adequately provided defendants with “fair notice” of its claims of direct infringement of
`
`the asserted patents by identifying the “Netflix Internet platform” and its “automated video
`
`playlists,” and “alleg[ing] that the platform and its playlists satisfy each limitation of ‘at least claim
`
`1’ of each of the asserted patents”).
`
`Lotame simply ignores AlmondNet’s amendments and fails to cite any authority from this
`
`District or the Federal Circuit requiring this pleading standard, see Motion at 8, which is contrary
`
`to Delaware and Federal Circuit precedent. Again, in the context of services that may infringe, this
`
`District has held that requiring a complaint to name specific infringing product[s] would be
`
`nonsensical. See Viber Media (USA) Inc., 2017 WL 1312942, at *3 (“It is unclear how IPCS can
`
`be any more specific about what aspects of Viber’s technology infringe its patent when IPCS likely
`
`does not have access to Viber’s computer code.”).
`
`Based on Lotame’s website and documents, AlmondNet understands Lotame’s overall
`
`“Spherical Platform” to include each of the accused functionalities identified in AlmondNet’s
`
`claim charts. In cursory fashion, Lotame attempts to characterize the components or parts of its
`
`Spherical Platform as “six different Lotame products.” (D.I. 21 at 9.) But Lotame’s attorney
`
`characterizations have no bearing in the posture of a motion to dismiss, where AlmondNet’s well-
`
`pleaded allegations should be taken as true. Moreover, there is no evidence that what Lotame
`
`alludes to constitute different or separate products. To the contrary, Lotame’s website suggests
`
`that the “Spherical Platform” is the overall platform that Lotame operates, and this platform is
`
`what provides all the technology and services at issue in this case. (FAC ¶ 11 (“Lotame operates a
`
`platform (‘Spherical Platform’) that provides technology, services, and tools to provide audience
`
`management, identity, and data monetization services (our ‘Services’) to our Business Customers
`
`(and their customers) and Data Partners.”) (quoting and reproducing Lotame’s website)). And even
`
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`6
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`

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`Case 1:24-cv-00376-MN Document 23 Filed 09/17/24 Page 11 of 14 PageID #: 588
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`if Lotame contention that the alleged infringing functionality is carried out by different named
`
`products were accepted as true, that would still be irrelevant to the sufficiency of AlmondNet’s
`
`complaint. See Viber Media (USA) Inc., 2017 WL 1312942, at *3 (explaining that infringement
`
`can be adequately pled by alleging “components [that] work together” to perform the infringing
`
`method).
`
`Accordingly, AlmondNet has complied with the requirements of Rule 12(b)(6) by alleging
`
`that Lotame infringes one or more claims of each Asserted Patent, including through Lotame’s
`
`Spherical Platform product and services. Because the FAC fully complies with the relevant
`
`pleading standards for direct infringement, Lotame’s motion should be denied.
`
`B.
`
`AlmondNet Is Entitled to Past Damages
`
`AlmondNet is entitled to past damages for the five Asserted Patents, and any alleged failure
`
`to mark does not limit past damages. This is because the ’445 Patent only has method claims, and
`
`as to the other four Asserted Patents, AlmondNet is only asserting method claims. (See, e.g., D.I.
`
`16 ¶ 26 (“Plaintiffs are entitled to past damages for Defendant’s infringement of the ’398 patent.
`
`35 U.S.C. § 287 does not apply to this case because Plaintiffs have only asserted method claims
`
`of the ’398 patent.”), ¶ 19 (alleging infringement of “one or more method claims of the ’398
`
`patent”), ¶ 30 (alleging infringement of “one or more method claims of the ’210 patent”), ¶ 41
`
`(alleging infringement of “one or more method claims of the ’445 patent”), ¶ 52 (alleging
`
`infringement of “one or more method claims of the ’249 patent”), ¶ 60 (alleging infringement of
`
`“one or more method claims of the ’904 patent”)).
`
`Because AlmondNet’s asserted claims for each Asserted Patent is limited to method claims,
`
`there is no requirement to plead compliance with the marking statute to recover pre-suit damages.
`
`This is well-established under the law. See Sprint Communications Company LP v. Charter
`
`Communications, Inc., No. 17-1734-RGA, 2021 WL 982732, at *7 (D. Del. Mar. 16, 2021) (citing
`
`
`
`7
`
`

`

`Case 1:24-cv-00376-MN Document 23 Filed 09/17/24 Page 12 of 14 PageID #: 589
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`Am. Med. Systems, Inc. v. Medical Engineering Corp., 6 F.3d 1523, 1538 (Fed. Cir. 1993) (“the
`
`notice provisions of section 287 do not apply where the patent is directed to a process or method.”);
`
`Sapphire Crossing LLC v. Robinhood Markets, Inc., No. 18-1717-MN-CJB, 2021 WL 149023, at
`
`*7 (D. Del. Jan. 15, 2021), report and recommendation adopted, No. CV 20-726-MN-CJB, 2021
`
`WL 355154 (D. Del. Feb. 2, 2021) (providing that “the marking statute does ‘not apply’ to this
`
`case” where the only claims asserted were method claims; “in light of this, the Court cannot see
`
`why Plaintiff would (as [Defendant] suggests), [] be required to either plead or prove compliance
`
`with a statute that is manifestly inapplicable to this case”).
`
`Lotame’s motion contends that AlmondNet is required to plead compliance with the
`
`marking statute, even though AlmondNet only asserted method claims, because certain Asserted
`
`Patents also contain apparatus claims. (See D.I. 21 at 15 (“AlmondNet has amended its allegations
`
`. . . to clarify that they are directed to ‘one or more method claims’ . . . . However, at least claim
`
`36 of the ’398 Patent . . . claim 17 of the ’210 Patent . . . claim 21 of the ’249 Patent . . . and claim
`
`21 of the ’904 Patent . . . are apparatus claims and thus AlmondNet has the burden to show that it
`
`complied with the patent-marking statute.”)). Lotame’s entire support for this argument is that the
`
`district court in Crown Packaging Tech. v. Rexam Beverage Can Co., held that patentee “is not
`
`relieved of [its] duty [to mark] simply by asserting only the method claims of its [] patents.” 498
`
`F. Supp.2d 718, 728 (D. Del. 2007).
`
`But Lotame’s reliance is misleading and frivolous because the Federal Circuit reversed
`
`Crown Packaging on this exact point of law. See Crown Packaging Tech., Inc. v. Rexam Beverage
`
`Can Co., 559 F.3d 1308, 1316-17 (2009) (reversing the district court’s grant of Crown’s motion
`
`for summary judgment dismissing Rexam’s counterclaim for infringement due to Rexam’s failure
`
`to mark). In Crown Packaging, the Federal Circuit noted that “the patentee only asserted method
`
`
`
`8
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`

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`Case 1:24-cv-00376-MN Document 23 Filed 09/17/24 Page 13 of 14 PageID #: 590
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`claims despite the fact that the patent contained both method and apparatus claims.” The Federal
`
`Circuit then held that “because Rexam asserted only the method claims of the ’839 patent, the
`
`marking requirement of 35 U.S.C. § 287(a) does not apply.” Crown Packaging, 559 F.3d at 1317
`
`(emphasis added). Thus, just like in Crown Packaging, where no apparatus claims had been
`
`asserted, section 287(a) does not apply here because AlmondNet is only asserting method claims.
`
`Lotame’s attempt to mischaracterize the law based on a case and proposition that the
`
`Federal Circuit reversed is improper and should be rejected. Lotame’s motion to dismiss
`
`AlmondNet’s claims for past damages should be denied.
`
`C.
`
`Lotame’s Motion as to Indirect Infringement Is Moot
`
`Finally, Lotame seeks dismissal of AlmondNet’s claims of induced and contributory
`
`infringement as to the ’398, ’210 and ’445 Patents. (D.I. 21 at 16.) To narrow issues for the Court
`
`to resolve, AlmondNet has agreed to dismiss its claims for induced and contributory infringement
`
`for the ’398, ’210, and ’445 Patents without prejudice. Dismissal without prejudice is appropriate,
`
`and AlmondNet reserves the right to seek leave to amend, including based on discovery. See
`
`Corrigent Corp. v. Arista Networks, Inc., No. CV 22-497-RGA, 2023 WL 2351799, at *1 n. 1 (D.
`
`Del. Mar. 3, 2023) (rejecting Defendant’s request that any of the dismissals be with prejudice)
`
`(“[P]laintiffs sometimes discover information that they do not already possess. If they obtain such
`
`information, they may, depending upon circumstances, seek to amend their complaint.”).
`
`VII. CONCLUSION
`
`For the foregoing reasons, Lotame’s motion to dismiss AlmondNet’s claims for direct
`
`infringement and past damages should be denied in their entirety. If the Court is inclined to grant
`
`either part of Lotame’s motion, AlmondNet should be given leave to amend its pleadings. Aatrix
`
`Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121, 1126 (Fed. Cir. 2018).
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`Case 1:24-cv-00376-MN Document 23 Filed 09/17/24 Page 14 of 14 PageID #: 591
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`Dated: September 17, 2024
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`OF COUNSEL:
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`Reza Mirzaie
`Benjamin T. Wang
`James A. Milkey
`Amy E. Hayden
`James S. Tsuei
`Daniel B. Kolko
`Jason M. Wietholter
`RUSS, AUGUST & KABAT
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, California 90025
`Telephone: (310) 826-7474
`rmirzaie@raklaw.com
`bwang@raklaw.com
`jmilkey@raklaw.com
`ahayden@raklaw.com
`jtsuei@raklaw.com
`dkolko@raklaw.com
`jwietholter@raklaw.com
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`Respectfully submitted,
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`FARNAN LLP
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`
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`/s/Brian E. 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@farnsnlaw.com
`mfarnan@farnanlaw.com
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`Attorneys for Plaintiffs AlmondNet, Inc.,
`Intent IQ, LLC, and Datonics LLC
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