Case 1:16-cv-04110-TWT Document 17 Filed 03/10/17 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
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`
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`Civil Action No. 1:16-cv-04110-TWT
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`IRONBURG INVENTIONS LTD. a
`United Kingdom Limited Company,
`
`Plaintiff,
`
`vs.
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`COLLECTIVE MINDS GAMING
`CO. LTD., a Canadian Limited
`Company,
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`Defendant.
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`
`
`
`
`PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
`PLAINTIFF’S DIRECT INFRINGEMENT CLAIMS AND
`MEMORANDUM OF LAW IN SUPPORT
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`
`
`
`
`Civil Action No. 1:16-cv-04110-TWT
`
`IRONBURG INVENTIONS LTD. a
`United Kingdom Limited Company,
`
`Plaintiff,
`
`vs.
`
`COLLECTIVE MINDS GAMING
`CO. LTD., a Canadian Limited
`Company,
`
`Defendant.
`
`
`
`
`
`PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
`PLAINTIFF’S DIRECT INFRINGEMENT CLAIMS AND
`MEMORANDUM OF LAW IN SUPPORT
`
`
`
`
`
`Case 1:16-cv-04110-TWT Document 17 Filed 03/10/17 Page 2 of 10
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`TABLE OF CONTENTS
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`Page
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`I.
`II.
`III.
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`INTRODUCTION .......................................................................................... 1
`LEGAL STANDARD .................................................................................... 1
`IRONBURG HAS ADEQUATELY PLEAD DIRECT
`INFRINGEMENT .......................................................................................... 3
`IV. CONCLUSION ............................................................................................... 6
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`Case 1:16-cv-04110-TWT Document 17 Filed 03/10/17 Page 3 of 10
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`TABLE OF AUTHORITIES
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`Page
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`CASES
`Atwater Partners of Tex. LLC v. AT & T, Inc.,
`No. 2:10–cv–175, 2011 WL 1004880 (E.D.Tex. Mar. 18, 2011) ........................ 4
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) .................................. 1, 2
`Erickson v. Pardus,
`551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per
`curiam) .................................................................................................................. 2
`Fabian v. Fulmer Helmets, Inc.,
`628 F.3d 278 (6th Cir.2010) ................................................................................. 2
`In re Bill of Lading Transmission and Processing System Patent
`Litigation,
`681 F.3d 1323 (Fed.Cir. 2012) ............................................................................. 4
`Iqbal,
`556 U.S. 678, 129 S.Ct. 1937 ............................................................................... 2
`Lucent Techs., Inc. v. Gateway, Inc.,
`580 F.3d 1301 (Fed.Cir.2009) .............................................................................. 4
`McZeal v. Sprint Nextel Corp.,
`501 F.3d 1354 (Fed.Cir.2007) .............................................................................. 5
`Oy Ajat, Ltd. v. Vatech Am., Inc.,
`No. 10–4875, 2011 WL 1458052 (D.N.J. Apr. 14, 2011) .................................... 4
`STATUTES
`35 U.S.C § 271(a) ...................................................................................................... 1
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`-ii-
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`Case 1:16-cv-04110-TWT Document 17 Filed 03/10/17 Page 4 of 10
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`Plaintiff Ironburg Inventions Ltd. (“Plaintiff”) hereby opposes Defendant
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`Collective Minds Gaming Co. Ltd (“Defendant”) Motion to Dismiss Plaintiff’s
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`Direct Infringement Claims. Ironburg respectfully requests that Defendant’s
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`Motion to Dismiss be denied for the reasons set forth below.
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`I.
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`INTRODUCTION
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`Defendants Motion to Dismiss is entirely without merit. While it is true that
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`Defendant induces others to infringe by modifying third party controllers to make
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`the patented invention, it is also true that defendant itself modifies the same third
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`party controllers to make the patented invention and then uses that patented
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`invention in advertising to promote sales of their Strike Pack modification kits.
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`Under 35 U.S.C § 271(a), “whoever without authority makes, uses, offers to sell,
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`or sells any patented invention, within the United States or imports into the United
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`States any patented invention during the term of the patent therefor, infringes the
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`patent.” (2017). Ironburg has made this allegation in its Complaint, and its
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`complaint is sufficiently plead.
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`II. LEGAL STANDARD
`To survive a motion to dismiss, a plaintiff must plead “enough factual
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`matter” that, when taken as true, “state[s] a claim to relief that is plausible on its
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`face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
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`Case 1:16-cv-04110-TWT Document 17 Filed 03/10/17 Page 5 of 10
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`929 (2007); see also Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th
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`Cir.2010). This plausibility standard is met when “the plaintiff pleads factual
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`content that allows the court to draw the reasonable inference that the defendant is
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`liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing
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`Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
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`Although the standard “asks for more than a sheer possibility that a
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`defendant has acted unlawfully,” it is not “akin to a probability requirement.” Id.
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`(internal quotation *1332 marks omitted); see also Twombly, 550 U.S. at 556, 127
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`S.Ct. 1955 (“[O]f course, a well-pleaded complaint may proceed even if it strikes a
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`savvy judge that actual proof of those facts is improbable, and that a recovery is
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`very remote and unlikely.”) (internal quotations and citation omitted); Erickson v.
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`Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam)
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`(“Specific facts are not necessary; the statement need only ‘give the defendant fair
`
`notice of what the ... claim is and the grounds upon which it rests.’ ”) (quoting
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`Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (emphasis added) (citation omitted)
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`(internal quotation marks omitted)). A complaint that merely pleads facts that are
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`consistent with a defendant's liability “stops short of the line between possibility
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`and plausibility....” Twombly, 550 U.S. at 546, 127 S.Ct. 1955 (citation omitted).
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`“Determining whether a complaint states a plausible claim for relief will ... be a
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`Case 1:16-cv-04110-TWT Document 17 Filed 03/10/17 Page 6 of 10
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`context-specific task that requires the reviewing court to draw on its judicial
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`experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (citation
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`omitted)..
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`III.
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`IRONBURG HAS ADEQUATELY PLEAD DIRECT
`INFRINGEMENT
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`The issue is whether the Ironburg’s Complaint properly alleges direct
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`infringement. It does. According to the Complaint, the Collective Minds Strike
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`Pack product is marketed as follows:
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`
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`See Complaint, Ex. F. As marketed, the Collective Minds product is shown
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`as a fully assembled game controller. As marketed, the Collective Minds’ product
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`directly infringes the patents in suit—it is a game controller with elongated back
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`controls. Therefore, in each of its counts, where applicable to this particular
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`Collective Minds product, Ironburg alleges that Collective Minds directly infringes
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`the patents in suit. See Complaint, Counts I-IV.
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`Case 1:16-cv-04110-TWT Document 17 Filed 03/10/17 Page 7 of 10
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`As long as the complaint in question contains sufficient factual allegations to
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`meet the requirements of Form 18, a sample complaint for direct patent
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`infringement, the complaint has sufficiently pled direct infringement. See In re
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`Bill of Lading Transmission and Processing System Patent Litigation, 681 F.3d
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`1323, 1336 (Fed.Cir. 2012). As explained by the Federal Circuit, Form 18
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`requires:
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`(1) an allegation of jurisdiction; (2) a statement that the plaintiff owns
`the patent; (3) a statement that defendant has been infringing the
`patent ‘by making, selling, and using [the device] embodying the
`patent’; (4) a statement that the plaintiff has given the defendant
`notice of its infringement; and (5) a demand for an injunction and
`damages.
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`McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1357 (Fed.Cir.2007).
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`The allegations in Ironburg’s Complaint satisfy those requirements, and
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`Defendant has admitted as much in its motion. See Defendant’s Motion, 4 (“When
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`those modules are combined with a third party gaming controller, the result is what
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`the Complaint refers to as a “Modified Controller.”). Ironburg has alleged, among
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`the other many allegations in the Complaint, at least that:
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`Defendant is presently making, using, importing, marketing, selling,
`and/or offering to sell gaming controller products, including but not
`limited to Defendant’s Strike Pack product and Defendant’s Trigger
`Grips product, in this District and elsewhere in the United States,
`which products are intended to be used, per instructions that
`Defendant provides to its customers, to modify Microsoft Xbox One
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`Case 1:16-cv-04110-TWT Document 17 Filed 03/10/17 Page 8 of 10
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`gaming controllers, with the result being that the modified Xbox One
`gaming controllers incorporate one or more of Plaintiff’s patented
`technologies.”
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`Complaint, ¶13. Ironburg also alleges for each of the patents in suit
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`how the Defendant directly infringes each of the patents in suit. See
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`Complaint, ¶ 19 (“Defendant directly infringes the '525 patent by making the
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`Strike Pack Modified Controller and advertising it to customers in the
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`United States. See, e.g., Exhibit F; see also
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`www.collectivemindss.ca/index.html.”); ¶27 (“Defendant directly infringes
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`the '770 patent by making the Strike Pack Modified Controller and
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`advertising it to customers in the United States. See, e.g., Exhibit F; see also
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`www.collectivemindss.ca/index.html.); and see ¶¶ 35, 43, 51. Ironburg’s
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`allegations satisfy the pleading requirements, and as such, Defendant’s
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`Motion to Dismiss should be denied.
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`IV. CONCLUSION
`Based on the foregoing, Ironburg respectfully requests that Collective
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`Minds’ Motion to Dismiss Plaintiff’s Direct Infringement Claims be denied.
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`Case 1:16-cv-04110-TWT Document 17 Filed 03/10/17 Page 9 of 10
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`Respectfully submitted,
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`By: /s/ Robert D. Becker
`Robert D. Becker, pro hac vice application
`pending
`CA Bar No. 160648
`MANATT, PHELPS & PHILLIPS, LLP
`1841 Page Mill Road, Suite 200
`Palo Alto, CA 94304
`Telephone: (650) 812-1300
`Facsimile: (650) 213-0260
`
`Cynthia R. Parks, local counsel
`GA Bar No. 563929
`PARKS IP LAW LLC
`730 Peachtree St. NE, Suite 600
`Atlanta, GA 30308
`Telephone: (678) 365-4444
`Facsimile: (678) 365-4450
`
`Attorneys for Plaintiff
`IRONBURG INVENTIONS LTD.
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`
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`March 10, 2017
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`Dated:
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`-6-
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`Case 1:16-cv-04110-TWT Document 17 Filed 03/10/17 Page 10 of 10
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`CERTIFICATE OF SERVICE
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`I hereby certify that on March 10, 2017, I electronically filed the foregoing
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`with the Clerk of Court using the CM/ECF system which will automatically send
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`email notification of such filing to the attorneys of record.
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`/s/ Robert D. Becker
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`Robert D. Becker
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`318426491.1
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`-7-
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