Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 1 of 19 PageID #: 498
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ALMONDNET, INC. and INTENT IQ, LLC,
`and DATONICS LLC,
`
`Plaintiffs,
`
`C.A. No. 24-00831-MN
`
`v.
`
`JURY TRIAL DEMANDED
`
`LIVEINTENT, INC.,
`
`Defendant.
`
`OPENING BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS
`
`Dated: December 17, 2024
`
`Susan E. Morrison (No. 4690)
`Grayson P. Sundermeir (No. 6517)
`FISH & RICHARDSON P.C.
`222 Delaware Avenue, 17th Floor
`Wilmington, DE 19899-1114
`(302) 652-5070
`morrison@fr.com
`sundermeir@fr.com
`
`Aamir A. Kazi
`(GA Bar No. 104235)
`1180 Peachtree Street, NE, 21st Floor
`Atlanta, GA 30309
`(404) 892-5005
`kazi@fr.com
`
`Attorneys for Defendant
`LIVEINTENT, INC.
`
`

`

`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 2 of 19 PageID #: 499
`
`TABLE OF CONTENTS
`
`I.
`
`INTRODUCTION ...............................................................................................................1
`
`II.
`
`NATURE AND STAGE OF THE PROCEEDINGS ..........................................................2
`
`III.
`
`SUMMARY OF ARGUMENT ...........................................................................................3
`
`IV.
`
`STATEMENT OF FACTS ..................................................................................................4
`
`A.
`
`B.
`
`C.
`
`AlmondNet Does Not Identify a Product it Alleges Satisfies the ’146 Patent
`Claims ......................................................................................................................5
`
`AlmondNet Relies on Third Parties to Satisfy the ’146 Patent Claims ...................5
`
`AlmondNet’s Infringement Allegations for the ’445 Patent Rely on Actions of
`Third Parties .............................................................................................................6
`
`1.
`
`2.
`
`AlmondNet Alleges LiveIntent’s Advertisers Satisfy Part of Step 1[a] ......6
`
`AlmondNet Alleges Oracle Performs Part of 1[b] .......................................8
`
`D.
`
`AlmondNet’s Pre-Suit Indirect Infringement Allegations For the ’398 Patent and
`Are Boilerplate .........................................................................................................8
`
`V.
`
`ARGUMENT .......................................................................................................................9
`
`A.
`
`B.
`
`C.
`
`Legal Standards ........................................................................................................9
`
`AlmondNet Failed to State a Claim of Infringement of the ’146 Patent Because It
`Does Not Identify a Specific Accused Product......................................................10
`
`AlmondNet Failed to State a Claim of Infringement of the ’146 or ’445 Patent
`Because It Refers to Actions of Third Parties ........................................................11
`
`D.
`
`AlmondNet’s Indirect Infringement Allegations Should be Dismissed ................12
`
`VI.
`
`CONCLUSION ..................................................................................................................14
`
`
`
`
`
`
`
`i
`
`

`

`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 3 of 19 PageID #: 500
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`10x Genomics, Inc. v. Celsee, Inc.,
`No. 19-0862-CFC-SRF, 2019 WL 5595666 (D. Del. Oct. 30, 2019) ................................10, 11
`
`Alarm.com, Inc. v. SecureNet Techs. LLC,
`345 F. Supp. 3d 544 (D. Del. 2018) .........................................................................................13
`
`Align Tech., Inc. v. 3Shape A/S,
`339 F. Supp. 3d 435 (D. Del. 2018) .........................................................................................10
`
`Arunachalam v. Apple, Inc.,
`806 F. App’x 977 (Fed. Cir. 2020) ..........................................................................................11
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .............................................................................................................9, 14
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................9
`
`Bonutti Skeletal Innovations LLC v. Conformis, Inc.,
`No. CV 12-1109-GMS, 2013 WL 6040377 (D. Del. Nov. 14, 2013) .....................................10
`
`Boston Sci. Corp. v. Nevro Corp.,
`415 F. Supp. 3d 482 (D. Del. 2019) ...........................................................................................9
`
`CAP Co. v. McAfee, Inc.,
`No. 14-5068-JD, 2015 WL 4734951 (N.D. Cal. Aug. 10, 2015) ............................................10
`
`Commil USA, LLC v. Cisco Sys., Inc.,
`575 U.S. 632 (2015) ...........................................................................................................10, 13
`
`Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc.,
`424 F.3d 1293 (Fed. Cir. 2005)................................................................................................10
`
`Global-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754 (2011) .................................................................................................................10
`
`MONEC Holding AG v. Motorola Mobility, Inc.,
`897 F. Supp. 2d 225 (D. Del. 2012) .........................................................................................13
`
`Shire ViroPharma Inc. v. CSL Behring LLC,
`No. 17-414-MSG, 2019 WL 3546692 (D. Del. Aug. 5, 2019) ................................................10
`
`ii
`
`

`

`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 4 of 19 PageID #: 501
`
`SIPCO, LLC v. Streetline, Inc.,
`230 F. Supp. 3d 351 (D. Del. 2017) ...........................................................................................9
`
`ZapFraud, Inc. v. Barracuda Networks, Inc.,
`528 F. Supp. 3d 247 (D. Del. 2021) .........................................................................................13
`
`Statutes
`
`35 U.S.C. § 271(b) .........................................................................................................................10
`
`
`
`iii
`
`

`

`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 5 of 19 PageID #: 502
`
`I.
`
`INTRODUCTION
`
`AlmondNet’s Amended Complaint fails to fix the defects in its Original Complaint.
`
`AlmondNet originally asserted method claims from four patents against LiveIntent. To satisfy
`
`its pleading requirement, AlmondNet was required to plead facts demonstrating LiveIntent
`
`performed all steps of the asserted claims. Although AlmondNet’s allegations for each of the
`
`four patents lack merit, its allegations for two of the four (’146 and ’445 patents) were
`
`particularly deficient because they did not identify a specific LiveIntent accused product or actor.
`
`AlmondNet’s allegations in its Original Complaint for the ’146 patent identified third parties
`
`DV360, Media Math, The Trade Desk, Verizon Media, and Xandr as performing certain
`
`functionality. And AlmondNet’s allegations for the ’445 patent referred to acts performed by
`
`“advertisers” and separate acts performed by Oracle. In addition, AlmondNet’s broadly worded
`
`indirect infringement allegations did not disclose any viable theory.
`
`LiveIntent moved to dismiss AlmondNet’s claims of indirect infringement and direct
`
`infringement as to the ’146 and ’445 patents in the Original Complaint. AlmondNet did not
`
`respond LiveIntent’s motion, but instead filed an Amended Complaint. With respect to the ’146
`
`patent, AlmondNet did not change its allegations, and the Amended Complaint accused the same
`
`third-party functionality. AlmondNet merely removed the express reference to DV360, Media
`
`Math, The Trade Desk, Verizon Media, and Xandr. AlmondNet similarly modified its claim
`
`chart for the ’445 Patent so that it no longer expressly refers to actions by “advertisers,” but its
`
`infringement theory for that patent also did not change. And AlmondNet continues to rely upon
`
`actions by “Oracle.”
`
`Finally, in an attempt to sustain a claim of indirect infringement, AlmondNet claims the
`
`filing of the Original Complaint establishes LiveIntent’s pre-suit knowledge of the Asserted
`
`Patents. But the filing of the Original Complaint does not create knowledge where none existed
`
`1
`
`

`

`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 6 of 19 PageID #: 503
`
`before. As such, the Amended Complaint fails to state a claim of infringement as to the ’146 and
`
`’445 patent, and also presuit indirect infringement, and LiveIntent asks the court to dismiss these
`
`claims.
`
`II.
`
`NATURE AND STAGE OF THE PROCEEDINGS
`
` AlmondNet filed its Original Complaint against LiveIntent on July 18, 2024. (D.I. 1.)
`
`The Original Complaint accuses LiveIntent of directly infringing U.S. Pat. Nos. 8,677,398 (the
`
`“’398 patent”), 8,959,146 (the “’146 patent”), 10,984,445 (the “’445 patent”), and 8,494,904 (the
`
`“’904 patent”) (collectively, the “Asserted Patents”). (Id.) The Original Complaint alleged
`
`LiveIntent was liable for inducement and contributory infringement of the ’398 patent, but
`
`generically alleged “infringement” of the ’146 patent, the ’445 patent, and the ’904 patent.
`
`(Compare Id. at ¶ 14 to id. at ¶¶ 24, 32, 41.) AlmondNet’s allegations as to the ’146 and ’445
`
`patents relied on actions of third parties—and therefore, LiveIntent moved to dismiss those
`
`allegations of direct infringement (which would require showing LiveIntent performed the
`
`claimed methods). (D.I. 10) (“MTD”). LiveIntent also moved to dismiss AlmondNet’s indirect
`
`infringement allegations. Id.
`
`Rather than respond to the MTD, AlmondNet filed an Amended Complaint. (D.I. 13). In
`
`its Amended Complaint, AlmondNet limited its indirect infringement allegations only as to the
`
`’398 patent and removed express references to third party actors in its allegations on the ’146 and
`
`’445 patents. However, AlmondNet did not change the nature of its infringement allegations,
`
`relying largely on the same evidence and pointing to the same actions—including that which it
`
`had previously attributed to third parties. LiveIntent therefore brings this Motion to Dismiss
`
`AlmondNet’s Amended Complaint (“Motion”).
`
`2
`
`

`

`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 7 of 19 PageID #: 504
`
`III.
`
`SUMMARY OF ARGUMENT
`
`1.
`
` AlmondNet’s claims of infringement concerning the ’146 patent are deficient and
`
`should be dismissed. AlmondNet does not allege a single product satisfies all claim limitations,
`
`instead referring to different products throughout its allegations. And while AlmondNet
`
`modified the allegations from its Original Complaint, AlmondNet continues to rely on the
`
`actions of third parties to establish elements of the claims, such as the requirement for correlating
`
`advertisements. As LiveIntent cannot be held directly liable for the actions of third parties, and
`
`AlmondNet does not assert indirect infringement, the claims regarding the ’146 patent must be
`
`dismissed.
`
`2.
`
`AlmondNet’s direct infringement claims regarding the ’445 patent similarly rely
`
`on the actions of third parties. LiveIntent’s MTD identified as one example that AlmondNet’s
`
`infringement theory relied on third party advertisers and publishers allegedly requesting profile
`
`information to satisfy a limitation concerning the “request[ing]” of data. AlmondNet removed
`
`the explicit reference to advertisers and publishers in its infringement allegations, but still pleads
`
`the same facts in support of its theory. AlmondNet also continues to rely on actions performed
`
`by Oracle for another limitation. Thus, AlmondNet cannot establish LiveIntent performs all
`
`steps of the asserted method claims, and those claims should be dismissed.
`
`3.
`
`AlmondNet’s pre-suit indirect infringement allegations should also be dismissed.
`
`The Amended Complaint clarifies that AlmondNet’s only indirect infringement allegations are
`
`for the ’398 patent, but AlmondNet does not allege LiveIntent was aware of that patent before
`
`the lawsuit was filed.
`
`3
`
`

`

`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 8 of 19 PageID #: 505
`
`IV.
`
`STATEMENT OF FACTS
`
`This case is one of a series AlmondNet has filed in this Court against a variety of
`
`defendants.1 In the instant case, AlmondNet sued LiveIntent, a digital marketing company,
`
`incorporated in Delaware with a principal place of business in New York, New York. AlmondNet
`
`alleges LiveIntent’s “Accused Instrumentalities” infringe the Asserted Patents. (D.I. 13 at ¶¶ 12,
`
`23, 31, 40.) Rather than identify a specific accused product for each patent, the Amended
`
`Complaint uses open-ended language to identify multiple LiveIntent offerings that collectively are
`
`referred to as the “Accused Instrumentalities”:
`
`Defendant also knowingly and intentionally induces infringement of at least
`method claim 13 of the ’398 patent in violation of 35 U.S.C. § 271(b) by
`providing LiveIntent’s People-Based Marketing Platform including but not
`limited to components such as the LiveIntent Identity Graph, Identity Module,
`HIRO, UID2.0, nonID, and Authenticated Bridge services (collectively, “the
`Accused Instrumentalities”)[.]
`
`Id. ¶ 14; see also id. at ¶ 12; id. at ¶ 25 (similar); id. at ¶ 33 (similar); id. at 42 (similar).
`
`AlmondNet provides a claim chart for each patent that purports to substantiate the
`
`allegations in the Amended Complaint. But the claim charts include screenshots of various
`
`LiveIntent products with little explanation, providing no further notice to LiveIntent.
`
`AlmondNet’s infringement allegations for the ’146 patent and ’445 patent are particularly deficient
`
`because the charts additionally refer to actions by third parties.
`
`
`1 See, e.g., AlmondNet, Inv. v. Lotame Solutions, Inc., No. 24-0375-MN, D.I. 1 (D. Del. Mar. 22,
`2024); AlmondNet, Inc. v. LinkedIn Corp., No. 23-1373-MN, D.I. 1 (D. Del. Dec. 1, 2023);
`AlmondNet, Inc. v. Freewheel Media, Inc., No. 23-0220-MN, D.I. 1 (D. Del. Mar. 1, 2023);
`AlmondNet, Inc. v. Viant Tech. Inc., No 23-0174-MN, D.I. 1 (D. Del. Feb. 16, 2023);
`AlmondNet, Inc. v. Oath Holdings, Inc., No. 18-943-RGA, D.I. 1 (D. Del. June 26, 2018);
`AlmondNet, Inc. v. Oath Holdings, Inc., No. 19-247-LPS, D.I. 1 (D. Del. Mar. 30, 2016);
`AlmondNet, Inc. v. Viant Tech. Inc., No 23-0174-MN, D.I. 1 (D. Del. Feb. 16, 2023);
`AlmondNet, Inc. v. Oath Holdings, Inc., No. 18-943-RGA, D.I. 1 (D. Del. June 26, 2018);
`AlmondNet, Inc. v. Oath Holdings, Inc., No. 19-247-LPS, D.I. 1 (D. Del. Mar. 30, 2016).
`
`4
`
`

`

`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 9 of 19 PageID #: 506
`
`A.
`
`AlmondNet Does Not Identify a Product it Alleges Satisfies the ’146 Patent
`Claims
`
`AlmondNet’s allegations for the ’146 patent refer to several different products by name
`
`and quote different aspects of LiveIntent’s product literature, but never identify which product
`
`allegedly performs the asserted method claims of the ’146 patent.
`
`The product identification is contradictory, as AlmondNet identifies some products for
`
`some limitations and other products for other limitations, making it impossible to determine what
`
`is the actual accused product that satisfies the claim. For the preamble, which recites “[a] method
`
`of directing electronic advertisements, performed by a computer system comprised of one or more
`
`computers,” AlmondNet refers to LiveIntent’s DSP, IdentityGraph and DynamicAudience
`
`products. (D.I. 13, Ex. 4 at 1–3.) There is no explanation as to why AlmondNet identifies these
`
`products, or whether AlmondNet contends these products satisfy the preamble individually,
`
`collectively, or otherwise. Then, for the next limitation (“for each of a multitude of different
`
`electronic visitors . . .”), AlmondNet does not identify IdentityGraph or Dynamic Audiences and
`
`instead cites “the LiveIntent DSP.” (Id. at 3–16.) The third limitation (“(b) wherein directing the
`
`indicia . . .”) again includes IdentityGraph and Dynamic Audiences, but then confusingly (1) refers
`
`to AlmondNet’s claim chart for the ’398 patent; and (2) cites to “evidence for claim limitations
`
`37(a)-37(b) above”, which do not exist in the chart for the ’146 Patent (or any other chart, as best
`
`as can be determined). (Id. at 16–20.)
`
`B.
`
`AlmondNet Relies on Third Parties to Satisfy the ’146 Patent Claims
`
`AlmondNet’s infringement theory for the ’146 patent also requires actions to be performed
`
`by third parties. AlmondNet contends the “(c) wherein the advertisement . . .” limitation is satisfied
`
`because “the advertisement is correlated with the indicated profile attribute or attributes.” (Id. at
`
`20.) AlmondNet alleges this correlation is satisfied by targeted advertisements—which
`
`5
`
`

`

`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 10 of 19 PageID #: 507
`
`AlmondNet attributes to actions collectively performed by LiveIntent “and its advertising
`
`partners.” (Id. (“For example, LiveIntent and its advertising partners target the advertisement
`
`directed to the visitor to the second website based on profile data collected as a result of the visitor
`
`visiting the first media property, such that the resulting advertisement is correlated with the profile
`
`attributes.”) (emphasis added).)
`
`C.
`
`AlmondNet’s Infringement Allegations for the ’445 Patent Rely on Actions of
`Third Parties
`
`AlmondNet alleges LiveIntent infringes the method of claim 1, which has multiple steps,
`
`including step (a) and step (b). For each of these steps, to allege infringement, AlmondNet relies
`
`upon a combination of functionality provided by LiveIntent and functionality provided by
`
`LiveIntent partners, such as communications initiated by advertisers and configurations of
`
`computers by third party data providers such as Oracle.
`
`1.
`
`AlmondNet Alleges LiveIntent’s Advertisers Satisfy Part of Step 1[a]
`
`Step 1[a] requires “a computer system” that, among other things, is used to store profile
`
`information communicated to it:
`
`(a) with a computer system automatically storing, in a central database
`associated with the computer system, profile information associated with a
`visitor, as a result of electronic receipt from a profile owner computer of indicia
`of the profile information, which profile information associated with the visitor
`matches a profile or kind of profiles requested by an entity controlling the
`computer system, wherein a tag associated with a visitor device serves as a link
`to the profile information associated with the visitor;
`
`(See D.I. 13, Ex. 5, cl. 1 (emphasis added).)
`
`Although 1[a] is confusing, one requirement is the entity controlling the “computer
`
`system” requests profile information. See id. at cl.1(a) (“which profile information associated
`
`with the visitor matches a profile or kind of profiles requested by an entity controlling the
`
`computer system . . . .”) (emphasis added). AlmondNet originally asserted this “request” was
`
`6
`
`

`

`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 11 of 19 PageID #: 508
`
`satisfied by third party advertisers and publishers that coordinated with LiveIntent. (See D.I. 1,
`
`Ex. 6 at 1 (“As a result of receiving this profile information, which matches a kind of profile
`
`requested by LiveIntent (e.g., in coordination with an advertiser / publisher), LiveIntent’s
`
`Accused Instrumentalities automatically store the profile information associated with a visitor in
`
`a central database[.]”). In support of this allegation, AlmondNet cited documents demonstrating
`
`LiveIntent’s third party partners (not LiveIntent) performed the claimed “request[ing]” by
`
`communicating data. (See id. at 1 (providing information on how advertisers may, if desired,
`
`“send[] your first party data to LiveIntent.”))
`
`After LiveIntent’s Motion to Dismiss, AlmondNet modified its claim chart to remove
`
`reference to the “advertiser” and “publisher.” (Compare D.I. 13, Ex. 6 at 1 (“As a result of
`
`receiving this profile information, which matches a kind of profile requested by LiveIntent,
`
`LiveIntent (using its Accused Instrumentalities) automatically stores the profile information
`
`associated with a visitor in a central database[.]”) (emphasis added); with D.I. 1, Ex. 6 at 1 (“As
`
`a result of receiving this profile information, which matches a kind of profile requested by
`
`LiveIntent (e.g., in coordination with an advertiser / publisher), LiveIntent’s Accused
`
`Instrumentalities automatically store the profile information associated with a visitor in a central
`
`database[.]”). Regardless of AlmondNet’s removal of the reference to an advertiser or publisher,
`
`AlmondNet still pleads the same facts. (Compare D.I. 13, Ex. 6 at 1-9; with D.I. 1, Ex. 6 at 1-9.)
`
`Thus, although AlmondNet’s self-serving characterizations have changed, the factual allegations
`
`remain that LiveIntent’s advertisers and publishers perform certain communications that result in
`
`the claimed “request[ing].” (See, e.g., D.I. 13 Ex. 6 at 1 (citing excerpt from LiveIntent’s
`
`website at https://support.liveintent.com/hc/en-us/articles/115001595726-Sending-Your-First-
`
`7
`
`

`

`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 12 of 19 PageID #: 509
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`Party-Data-to-LiveIntent, which allegedly shows how advertisers can “upload your first party
`
`CRM data and serve ads.”))
`
`2.
`
`AlmondNet Alleges Oracle Performs Part of 1[b]
`
`Step (b) of claim 1 recites how the “profile owner computer” is programmed. (See D.I.
`
`13, Ex. 5, cl. 1 (“wherein the profile owner computer is programmed . . .”).) In the claim chart
`
`attached to the Complaint, AlmondNet originally identified computers operated by Oracle as the
`
`“profile owner computer.” (See D.I. 13, Ex. 6 at 9-10 (“For example, the profile owner computer
`
`(such as, e.g., a computer operated by Oracle) from which indicia of the profile information is
`
`received is programmed to automatically select which entities to provide profile information
`
`to”).) The programming of that profile owner computer by Oracle or another data partner is well
`
`outside the purview of LiveIntent, who neither owns nor controls such a computer, so LiveIntent
`
`moved to dismiss these allegations.
`
`AlmondNet relies on this same theory in its Amended Complaint and the attached chart,
`
`except AlmondNet adds: “Plaintiffs note that this limitation is not itself a method step, but is
`
`instead a required configuration of ‘the profile owner computer’ from which the ‘computer
`
`system’ must ‘recei[ve]’ profile information in step (a) (and thus acts as an additional limitation
`
`to the method step recited in step (a)).” Thus, AlmondNet does not dispute Oracle programs the
`
`alleged “profile owner computer” or that AlmondNet relies on that programming to satisfy this
`
`limitation.
`
`D.
`
`AlmondNet’s Pre-Suit Indirect Infringement Allegations For the ’398 Patent
`and Are Boilerplate
`
`The allegations in the Amended Complaint are limited to direct infringement, except for
`
`the ’398 patent, where AlmondNet also alleges LiveIntent indirectly infringes. For those
`
`allegations, AlmondNet relies entirely on the filing and service of the Complaint to establish
`
`8
`
`

`

`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 13 of 19 PageID #: 510
`
`notice of the alleged infringement. (See D.I. 13 at ¶ 14 (“through at least the filing and service of
`
`this Complaint, Defendant has had knowledge of the ’398 patent”).)
`
`V.
`
`ARGUMENT
`
`A.
`
`Legal Standards
`
`A plaintiff must allege factual support for each element of the claim to adequately plead a
`
`claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a
`
`complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
`
`plausible on its face.’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). In this
`
`regard, merely reciting the elements of a claim and providing “conclusory statements” without
`
`further factual support is insufficient. Id. at 678 (“Threadbare recitals of the elements of a cause
`
`of action, supported by mere conclusory statements, do not suffice.”). The purpose of these
`
`pleading requirements is (i) to show that plaintiff has some basis for its allegations, and (ii) to put
`
`the defendant on fair notice of the claims at issue. See id. at 698; Twombly, 550 U.S. at 555
`
`(explaining a complaint must “give the defendant fair notice of what the ... claim is and the
`
`grounds upon which it rests” (citation omitted)).
`
`Further, “a patentee cannot meet its obligation to assert a plausible claim of infringement
`
`under the Twombly/Iqbal standard by merely copying the language of a claim element and then
`
`baldly stating (without more) that an accused product has such an element.” N. Star Innovations,
`
`2017 WL 5501489, at *2; SIPCO, LLC v. Streetline, Inc., 230 F. Supp. 3d 351, 353 (D. Del.
`
`2017) (dismissing complaint which “contain[ed] no attempt to connect anything in the patent
`
`claims to anything about any of the accused products”); Boston Sci. Corp. v. Nevro Corp., 415 F.
`
`Supp. 3d 482, 489 (D. Del. 2019) (“[A] plaintiff must generally do more than assert that the
`
`product infringes the claim; it must show how the defendant plausibly infringes by alleging some
`
`facts connecting the alleging infringing product to the claim elements”). In particular, because
`
`9
`
`

`

`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 14 of 19 PageID #: 511
`
`AlmondNet asserts only method claims, “to plead a cause of action for direct infringement of a
`
`method claim, the complaint must allege that the accused infringer performed all the steps of the
`
`claimed method, either personally or through another acting under his direction or control.” 10x
`
`Genomics, Inc. v. Celsee, Inc., No. 19-0862-CFC-SRF, 2019 WL 5595666, at *11 (D. Del. Oct.
`
`30, 2019), report and recommendation adopted, 2019 WL 6037558 (D. Del. Nov. 14, 2019)
`
`(cleaned up); see also Shire ViroPharma Inc. v. CSL Behring LLC, No. 17-414-MSG, 2019 WL
`
`3546692, at *6 (D. Del. Aug. 5, 2019) (same); Align Tech., Inc. v. 3Shape A/S, 339 F. Supp. 3d
`
`435, 447 (D. Del. 2018) (same); Bonutti Skeletal Innovations LLC v. Conformis, Inc., No. CV
`
`12-1109-GMS, 2013 WL 6040377, at *2 (D. Del. Nov. 14, 2013) (same).
`
`To state a claim for induced infringement, a plaintiff must allege facts showing that
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`Defendant “knew of the patent and knew as well that the ‘induced acts constitute patent
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`infringement.’” Commil USA, LLC v. Cisco Sys., Inc., 575 U.S. 632, 639 (2015) (quoting Global-
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`Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011)); see also Global-Tech Appliances,
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`Inc. v. SEB S.A., 563 U.S. 754, 766 (2011) (“induced infringement under § 271(b) requires
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`knowledge that the induced acts constitute patent infringement”). To state a claim for
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`contributory infringement, a plaintiff must allege facts showing that defendant “knew that the
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`combination for which its components were especially made was both patented and infringing
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`and that defendant’s components have no substantial non-infringing uses.” Cross Med. Prods.,
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`Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1312 (Fed. Cir. 2005) (citations omitted).
`
`B.
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`AlmondNet Failed to State a Claim of Infringement of the ’146 Patent
`Because It Does Not Identify a Specific Accused Product
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`“Infringement cannot be shown by a muddled hash of elements from different products,
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`since in order to infringe, ‘the accused device must contain each limitation of the claim, either
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`literally or by an equivalent.’” CAP Co. v. McAfee, Inc., No. 14-5068-JD, 2015 WL 4734951, at
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`10
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`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 15 of 19 PageID #: 512
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`*2 (N.D. Cal. Aug. 10, 2015) (quoting TecSec, Inc. v. Int’l Bus. Machs. Corp., 731 F.3d 1336,
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`1351 (Fed. Cir. 2013)); see also CTD Networks, 2023 WL 5417139, at *5.
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`AlmondNet’s infringement allegations for the ’146 patent do not identify a product.
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`Instead, AlmondNet identifies products for some limitations (IdentityGraph and Dynamic
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`Audiences) but not all. And AlmondNet includes vague and incorrect cross references that
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`further confuse the issue. These allegations are just like those that courts have found insufficient
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`at the pleading stage. Arunachalam v. Apple, Inc., 806 F. App’x 977, 981 (Fed. Cir. 2020)
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`(affirming dismissal of complaint that did not “specifically allege how [the accused app] actually
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`infringes the [asserted patent],” and holding “[s]uch overly broad allegations are insufficient to
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`survive a motion to dismiss”).
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`C.
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`AlmondNet Failed to State a Claim of Infringement of the ’146 or ’445
`Patent Because It Refers to Actions of Third Parties
`
`“[T]o plead a cause of action for direct infringement of a method claim, the complaint
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`must allege that the accused infringer performed all the steps of the claimed method, either
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`personally or through another acting under his direction or control.” 10x Genomics, Inc. v.
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`Celsee, Inc., No. 19-0862-CFC-SRF, 2019 WL 5595666, at *11 (D. Del. Oct. 30, 2019), report
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`and recommendation adopted, 2019 WL 6037558 (D. Del. Nov. 14, 2019) (cleaned up).
`
`AlmondNet does not do that. To the contrary, AlmondNet cites actions of third parties as
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`performing parts of the claims.
`
`For the ’146 patent, AlmondNet pleads “LiveIntent and its advertising partners” together
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`perform the step of targeting advertisements, and this step is what satisfies the requirement in the
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`claim for correlating advertisements. (D.I. 13, Ex. 4 at 20.) AlmondNet cannot contend
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`LiveIntent directly infringes a method claim (and thus, performs all of the claimed steps) based
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`11
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`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 16 of 19 PageID #: 513
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`on actions performed by LiveIntent’s “advertising partners.” AlmondNet’s allegations as to the
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`’146 patent are therefore deficient on their face.
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`Similarly, for the ’445 patent, AlmondNet alleges third parties perform several of the
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`claimed steps. For Step 1(a), AlmondNet alleges the claimed “request[ing]” is performed by
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`LiveIntent’s advertisers performing communications. (D.I. 13, Ex. 6 at 1 (pleading facts
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`demonstrating advertisers and publishers are responsible for communicating certain profile
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`information as satisfying the requirement of “which profile information associated with the
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`visitor matches a profile or kind of profiles requested by an entity controlling the computer
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`system”).) Indeed, AlmondNet relied previously on those same facts to demonstrate LiveIntent’s
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`“advertiser[s]” and “publisher[s]” work “in coordination” with LiveIntent to communicate
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`profile information. See D.I. 1, Ex. 6 at 1. AlmondNet no longer draws that same conclusion
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`from the plead facts, but there is no dispute in what the facts demonstrate.
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`For step 1(b) of the ’445 patent, AlmondNet expressly identifies Oracle as programming
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`the “profile owner computer” in an allegedly infringing manner. AlmondNet is incorrect, as the
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`claim labels step 1(b) as a separate step in claim 1 of the ’445 patent. And even if AlmondNet
`
`were correct that step 1(b) “is not itself a method step,” whether the limitation is itself a step or
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`not is irrelevant—the relevant inquiry is only whether the infringing acts are performed by
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`LiveIntent or a third party. Here, the act AlmondNet alleges infringes the “wherein the profile
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`owner computer is programmed . . .” limitation is performed by Oracle. Thus, AlmondNet
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`cannot contend LiveIntent directly infringes.
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`D.
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`AlmondNet’s Indirect Infringement Allegations Should be Dismissed
`
`AlmondNet’s Amended Complaint withdraws its indirect infringement allegations for all
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`patents but the ’398 patent. Compare D.I. 1 at ¶¶ 26-28, 34-37, 43-45 with D.I. 13 at ¶¶ 26-28,
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`34-37, 43-45. With respect to the ’398 patent, AlmondNet fails to plead pre-suit knowledge of
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`12
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`Case 1:24-cv-00831-MN Document 17 Filed 12/17/24 Page 17 of 19 PageID #: 514
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`the patent and, consequently, it fails to state a claim for indirect infringement. “[L]iability for
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`inducing infringement attaches only if the defendant knew of the patent and that the induced acts
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`constitute patent infringement.” Commil USA, 575 U.S. at 639. AlmondNet offers no facts
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`suggesting that LiveIntent had pre-suit knowledge of the ’398 Patent, yet AlmondNet alleges
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`LiveIntent had knowledge of the ’398 Paten