Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 1 of 25
`
`UNITED STATES DISTRICT COURT
`FOR THE
`DISTRICT OF MASSACHUSETTS
`
`
`
`Civil Action No. 1:19-cv-11278-RGS
`
`ORAL ARGUMENT REQUESTED
`
`UNILOC 2017 LLC,
`
` Plaintiff,
`
`
`v.
`
`
`ATHENAHEALTH, INC.,
`
` Defendant.
`
`
`
`
`
`MEMORANDUM IN SUPPORT OF DEFENDANT ATHENAHEALTH’S MOTION TO
`DISMISS THE COMPLAINT WITHOUT PREJUDICE TO REPLEAD
`
`
`
`
`
`
`
`

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`Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 2 of 25
`
`TABLE OF CONTENTS
`
`STATEMENT OF FACTS ................................................................................................1 
`A. 
`Prior Litigation .......................................................................................................1 
`B. 
`The Federal Circuit Appeal ....................................................................................2 
`C. 
`The Current Action ................................................................................................3 
`D. 
`The Allegations in the Complaint ..........................................................................4 
`LEGAL STANDARD ........................................................................................................6 
`ARGUMENT ...................................................................................................................10 
`There Is No Plausible Allegation of Infringement of the ’578
`A. 
`Patent....................................................................................................................10 
`1) 
`Paragraph 12 ............................................................................................12 
`2) 
`Paragraph 13 ............................................................................................15 
`3) 
`Paragraph 14 ............................................................................................17 
`4) 
`Paragraph 16 ............................................................................................18 
`5) 
`Paragraph 17 ............................................................................................18 
`There Is No Plausible Allegation of Infringement of the ’293
`Patent....................................................................................................................18 
`1) 
`Paragraph 21 ............................................................................................19 
`2) 
`Paragraph 22 ............................................................................................20 
`3) 
`Paragraph 23 ............................................................................................20 
`CONCLUSION ................................................................................................................20 
`
`B. 
`
`
`
`ii
`
` 
`I. 
`
`II. 
`III. 
`
`IV. 
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` 
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`
`
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`

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`Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 3 of 25
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Addiction and Detoxification Inst. L.L.C. v. Carpenter,
`620 Fed. Appx. 934 (Fed. Cir. 2015) ...................................................................................9, 10
`
`Artrip v. Ball Corp.,
`735 F. App’x 708 (Fed. Cir. 2018) ..........................................................................9, 10, 17, 18
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ......................................................................................................... passim
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ......................................................................................................... passim
`
`In re Bill of Lading Transmission & Processing Sys. Patent Litig.,
`681 F.3d 1323 (Fed. Cir. 2012)........................................................................................6, 9, 17
`
`Deetz Family, LLC v. Rust-Oleum Corp.,
`217 F. Supp. 3d 430 (D. Mass. 2016) ......................................................................................18
`
`Ericsson, Inc. v. D-Link Sys., Inc.,
`773 F.3d 1201 (Fed. Cir. 2014)................................................................................................12
`
`Faculty, Alumni, & Students Opposed to Racial Preferences v. Harv. L.R. Ass’n,
`2019 WL 3754023 (D. Mass. Aug. 8, 2019) .............................................................................6
`
`Glob.-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754 (2011) .................................................................................................................15
`
`inMusic Brands, Inc. v. Roland Corp.,
`2017 WL 2416228 (D.R.I. May 22, 2017) ..............................................................................13
`
`Lexington Luminance LLC v. TCL Multimedia Tech. Holdings, Ltd.,
`2017 WL 3795769 (D. Mass. Aug. 30, 2017) ...........................................................................7
`
`MacNeill Eng’g Co. v. Trisport, Ltd.,
`59 F. Supp. 2d 199 (D. Mass. 1999) ......................................................................................7, 8
`
`Nalco Co. v. Chem-Mod, LLC,
`883 F.3d 1337 (Fed. Cir. 2018)..............................................................................................8, 9
`
`OIP Techs., Inc. v. Amazon.com, Inc.,
`788 F.3d 1359 (Fed. Cir. 2015)..................................................................................................6
`
`
`
`iii
`
`

`

`Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 4 of 25
`
`Rampage LLC v. Glob. Graphics SE,
`2017 WL 239328 (D. Mass. Jan. 19, 2017) .........................................................................7, 15
`
`Ricoh Co. v. Quanta Computer Inc.,
`550 F.3d 1325 (Fed. Cir. 2008)................................................................................................12
`
`Rodriguez-Reyes v. Molina-Rodriguez,
`711 F.3d 49 (1st Cir. 2013) ......................................................................................8, 10, 17, 18
`
`Southwall Techs., Inc. v. Cardinal IG Co.,
`54 F.3d 1570 (Fed. Cir. 1995)....................................................................................................7
`
`Sunrise Techs., Inc. v. Cimcon Lighting, Inc.,
`219 F. Supp. 3d 260 (D. Mass. 2016) .............................................................................. passim
`
`Uniloc USA, Inc. v. ADP, LLC,
`279 F. Supp. 3d 736 (E.D. Tex. 2017) .......................................................................................2
`
`Uniloc USA, Inc. v. ADP, LLC,
`772 F. App’x 890 (Fed. Cir. 2019) .................................................................................. passim
`
`Zond, Inc. v. Fujitsu Semiconductor Ltd.,
`990 F. Supp. 2d 50 (D. Mass. 2014) ..........................................................................................6
`
`Statutes
`
`35 U.S.C. § 101 ..........................................................................................................................2, 11
`
`Other Authorities
`
`Fed. R. Civ. P., Rule 12(b)(6) ..........................................................................................................1
`
`
`
`
`
`iv
`
`

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`Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 5 of 25
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`The Complaint filed by Plaintiff Uniloc 2017 LLC (“Uniloc”) against Defendant
`
`athenahealth, Inc. (“athenahealth”), asserts infringement of two patents: US Patent Nos
`
`6,324,578 (“’578 Patent”) and 7,069,293 (“’293 Patent”). athenahealth moves to dismiss the
`
`Complaint under Fed. R. Civ. P., Rule 12(b)(6) because the Complaint fails to plausibly plead
`
`claims of direct or indirect patent infringement. This motion seeks dismissal without prejudice
`
`for Uniloc to replead.
`
`Given the Complaint’s barebones allegations, it does not put athenahealth on notice as to
`
`the basis for Uniloc’s infringement claim. The Complaint recites only seven alleged facts
`
`relating to the accused products. None of these alleged facts is tied to the elements of the
`
`asserted patent claims. The Complaint also does not identify whether it is athenahealth or
`
`someone else whom allegedly preforms the steps of the claimed method. The Complaint fails to
`
`identify who practices each step of the asserted methods claims, what the accused
`
`instrumentalities are, and how the accused instrumentalities meet each limitation of each asserted
`
`claim. Such allegations fall far short of the pleading requirements of Iqbal and Twombly. The
`
`pleading standard for patent infringement cases has changed, and in the First Circuit, Uniloc’s
`
`bare bones complaint is not sufficient.
`
`athenahealth has no objection to Uniloc being allowed to file an amended pleading that
`
`cures these deficiencies. However, a properly pled complaint must identify who the alleged
`
`infringer is and which components in the accused product allegedly meet each claim limitation.
`
`This Complaint fails to meet that standard and should be dismissed.
`
`I.
`
`STATEMENT OF FACTS
`A.
`
`Prior Litigation
`
`This is the third lawsuit filed by Uniloc entities against athenahealth for patent
`
`infringement. See D.I. 1, ¶¶ 15, 22. The first lawsuit was filed in the Eastern District of Texas
`
`1
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`

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`Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 6 of 25
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`on May 17, 2017, and dismissed without prejudice on August 16, 2017, before athenahealth
`
`answered the complaint. That lawsuit alleged infringement of four patents, including the two at
`
`issue here. Uniloc USA, Inc. v athenahealth, Inc., 2:17-cv-00407-RWS, D.I. 1, Complaint, &
`
`D.I. 26, Dismissal (E.D. Tex. Aug. 16, 2017). Uniloc filed a similar complaint in the Western
`
`District of Texas, on August 11, 2017. Uniloc USA, Inc. v athenahealth, Inc., 1:17-cv-752-LY,
`
`D.I. 1 (W.D. Tex. Aug. 11, 2017). That case was dismissed without prejudice by stipulation on
`
`October 6, 2017, again, before athenahealth had answered. Uniloc USA, Inc v athenahealth, Inc.,
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`1:17-cv-752-LY, D.I. 26, Amended Final Judgment (W.D. Tex. Oct. 6, 2017).
`
`B.
`
`The Federal Circuit Appeal
`
`Prior to the dismissal of the second lawsuit, in a related litigation the District Court for
`
`the Eastern District of Texas determined the four patents Uniloc had asserted against
`
`athenahealth were invalid under 35 U.S.C. § 101. Uniloc USA, Inc. v. ADP, LLC, 279 F. Supp.
`
`3d 736, 751 (E.D. Tex. 2017). Uniloc appealed. On May 23, 2019, the Federal Circuit partially
`
`affirmed, but held that the ’293 Patent and the ’578 Patent were not shown to be invalid under
`
`Section 101. Uniloc USA, Inc. v. ADP, LLC, 772 F. App’x 890 (Fed. Cir. 2019).
`
`The Federal Circuit held that the asserted claims of the ’293 Patent were not abstract
`
`because they recited “the use of file packets with segments configured to initiate centralized
`
`registration of an application from an application server.” Id. at 897. The Federal Circuit further
`
`explained that the claimed “file packet” was an alleged technological advance over the prior art.
`
`Id. at 897-98.
`
`Similarly, the Federal Circuit found that the asserted patent claims of the ’578 Patent
`
`recited a “network architecture” that was not shown to be “conventional.” Id. at 899.
`
`Specifically, the ’578 Patent recited the positioning of certain components “on the application
`
`server” and positioning an “application launcher on the client computer” in such a way as to
`2
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`

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`Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 7 of 25
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`allow “customization by both the administrator and the user in such a way as the installation can
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`proceed on-demand with both sets of preferences.” Id. at 898-99.
`
`C.
`
`The Current Action
`
`On June 7, 2019, Uniloc filed the present Complaint for patent infringement against
`
`athenahealth, asserting infringement of the ’578 and ’293 Patents. D.I. 1, ¶¶ 4-24 (the patents are
`
`attached at Exhibits A and B to the Complaint).
`
`The Complaint alleges infringement of claim 1 of the ’578 Patent, which is entitled
`
`“Methods, Systems and Computer Program Products for Management of Configurable
`
`Application Programs on a Network.” (D.I. 1, ¶ 12). Claim 1 is a method “for management of
`
`configurable applications” that has the following five steps:
`
`1. A method for management of configurable application programs on a
`network comprising the steps of:
`[a] installing an application program having a plurality of configurable
`preferences and a plurality of authorized users on a server coupled to
`the network,
`[b] distributing an application launcher program associated with the
`application program to a client coupled to the network;
`[c] obtaining a user set of the plurality of configurable preferences
`associated with one of the plurality of authorized users executing the
`application launcher program,
`[d] obtaining an administrator set of the plurality of configurable
`preferences from an administrator, and
`[e] executing the application program using the obtained user set and
`the obtained administrator set of the plurality of configurable
`preferences responsive to a request from the one of the plurality of
`authorized users.
`
`Among other things, it requires “an application program” installed on “a server,” and
`
`“distributing an application launcher program associated with the application program to a
`
`client.”
`
`The Complaint also alleges infringement of claim 1 of the ’293 Patent, which is entitled
`
`“Methods, Systems and Computer Program Products for Distribution of Application Programs to
`
`
`
`3
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`

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`Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 8 of 25
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`a Target Station on a Network.” (D.I. 1, ¶ 21). Claim 1 is a method “for distribution of
`
`application programs to a target on-demand server” that has the following four steps:
`
`1. A method for distribution of application programs to a target on-
`demand server on a network comprising the following executed on a
`centralized network management server coupled to the network:
`[a] providing an application program to be distributed to the network
`management server;
`[b] specifying a source directory and a target directory for distribution
`of the application program;
`[c] preparing a file packet associated with the application program and
`including a segment configured to initiate registration operations for
`the application program at the target on-demand server, and
`[d] distributing the file packet to the target on-demand server to make
`the application program available for use by a user at a client.
`
`It requires, among other steps, the preparation of a “file packet” that includes “a segment
`
`configured to initiate registration operations.”
`
`D.
`
`The Allegations in the Complaint
`
`The Complaint has a handful of factual allegations but none is tied to the asserted patent
`
`claims. In the section for the ’578 Patent, the Complaint alleges six facts: (1) athenahealth
`
`operated a centrally hosted Content Distribution Network known as athenaNet, (2) users
`
`downloaded applications from athenahealth via athenaNet for installation on the user’s computer,
`
`(3) athenahealth offered tools via athenaNet that provided the user with user-configurable
`
`features, such as Profile and My Notifications in athenacommunicator, (4) athenahealth used log
`
`in and passwords to ensure that athenaNet users were authorized users, (5) athenaNet allowed a
`
`user to provide and exchange information, such as health records, (6) athenaNet provided
`
`customers with administrator preferences, such as the ability to set user password parameters and
`
`control the amount and kind of information the user can access. D.I. 1, ¶¶ 6-11.
`
`The Complaint then merely states the unsupported conclusion that “[a]thenahealth
`
`infringed and continues to infringe, at least claim 1 of the ’578 Patent by making, using, offering
`
`
`
`4
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`

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`Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 9 of 25
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`for sale, and/or selling the athenaNet system, which software and associated backend server
`
`architecture allow for [a summarized list of claim limitations].” D.I. 1, ¶ 12. The Complaint
`
`does not state whether the alleged “athenaNet system” is the same “Content Distribution
`
`Network known as athenaNet” from the recital of facts, or something different. Nor does the
`
`Complaint explain what it means by “associated backend servers,” a term not referenced in the
`
`recital of facts preceding the conclusory infringement allegation. Nor does the infringement
`
`allegation identify how and to whom the “application launcher program” is allegedly distributed.
`
`The Complaint also contains a conclusory allegation of induced infringement, stating that
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`athenahealth “intentionally instructed its users to infringe, with knowledge they were infringing,
`
`by providing instructions with its athenaNet system.” D.I. 1, ¶ 13. However, there is no
`
`allegation that athenahealth customers directly infringe. Nor is there any allegation identifying
`
`which method steps are allegedly covered by the unspecified “instructions.”
`
`The Complaint also alleges infringement by reciting the elements for contributory
`
`infringement, but, again, without alleging any facts in support of its conclusory allegation.
`
`Rather, the allegation merely states that “[a]thenahealth knew portions of the software in the
`
`athenaNet system that provide the infringing functionality were especially written solely for use
`
`to implement what it knew was infringement of the ’578 Patent” and that “[a]thenahealth also
`
`knew those portions had no use, other than for infringement.” D.I. 1, ¶ 14. The Complaint does
`
`not state what “portions” of the software it is referring to, or even state what “software” is being
`
`referenced for this allegation. Nor does the Complaint allege who had such knowledge. Finally,
`
`for the ’578 Patent the Complaint alleges unspecified “other software and architecture” may have
`
`infringed. D.I. 1, ¶ 16. This allegation, too, is devoid of factual support.
`
`
`
`5
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`

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`Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 10 of 25
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`In the section of the Complaint addressing the ’293 Patent, only a single additional
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`factual allegation is presented: “[a]thenahealth uses an Apache network management server and
`
`one or more Apache on-demand servers to distribute to users and operate its solutions, such as
`
`the ePocrates software.” D.I. 1, ¶ 20. As with the ’579 Patent, the Complaint then recites an
`
`unsupported allegation that athenahealth infringes the claim, but fails to tie that allegation in any
`
`way to the recited facts. D.I. 1, ¶ 21. The infringement allegation does not mention “Apache”
`
`servers or “ePocrates software” and it is unclear if there is any connection between the
`
`allegations in Paragraphs 20 and 21. Like the ’579 Patent, the Complaint further alleges that
`
`unspecified “other software and architecture” may have infringed ’293 Patent. D.I. 1, ¶ 23.
`
`II. LEGAL STANDARD
`
`The pleading standards have changed in the last several years due in part to the removal
`
`of the pleading Forms appended to the Federal Rules of Civil Procedure. See Faculty, Alumni, &
`
`Students Opposed to Racial Preferences v. Harv. L.R. Ass’n, 2019 WL 3754023, at *4 n.5 (D.
`
`Mass. Aug. 8, 2019).1 In patent infringement cases, the Federal Circuit applies the law of the
`
`regional circuit when assessing the sufficiency of a complaint on a motion to dismiss. OIP
`
`
`1 This abrogation included the removal of Form 18, a pleading form directed to pleading a
`direct infringement patent suit. See In re Bill of Lading Transmission & Processing Sys.
`Patent Litig., 681 F.3d 1323, 1334 (Fed. Cir. 2012). The Federal Circuit criticized Form 18
`as being inconsistent with the pleading standards set forth in Iqbal and Twombly; however,
`the Federal Circuit noted it was bound to follow the requirements set forth in Form 18 while
`it was in effect. Bill of Lading, 681 F.3d at 1334 (“[A]cknowledging that, while the bare
`allegations contemplated by Form 18 appear deficient under Twombly, we are ‘required to
`find that a bare allegation of literal infringement in accordance with Form [18] would be
`sufficient under Rule 8 to state a claim.’” (citation omitted); id. at 1347 (Newman, J.
`dissenting-in-part) (“The court’s new standard absolves patent infringement pleadings from
`the uniform requirements of the Federal Rules and Supreme Court precedent, and now holds
`that the Court’s rulings in [Twombly], and [Iqbal], do not apply to patent infringement”).
`Even courts in the District of Massachusetts recognized the tension between Form 18 and the
`standards set forth in Iqbal and Twombly. See e.g., Zond, Inc. v. Fujitsu Semiconductor Ltd.,
`990 F. Supp. 2d 50, 54 (D. Mass. 2014) (“The standard required by Form 18 cannot be easily
`reconciled with the judgments of the Supreme Court in both Twombly and Iqbal.”).
`6
`
`
`
`

`

`Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 11 of 25
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`Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362 (Fed. Cir. 2015). In the First Circuit, a
`
`plaintiff “is [] required to set forth factual allegations, either direct or inferential, respecting each
`
`material element necessary to sustain recovery under some actionable legal theory.” MacNeill
`
`Eng’g Co. v. Trisport, Ltd., 59 F. Supp. 2d 199, 201 (D. Mass. 1999) (quoting Gooley v. Mobil
`
`Oil Corp., 851 F.2d 513, 515 (1st Cir.1988)). To assess the plausibility of a claim, the Court
`
`applies a two-step process: ‘“First, the court must sift through the averments in the complaint,
`
`separating conclusory legal allegations (which may be disregarded) from allegations of fact
`
`(which must be credited). Second, the court must consider whether the winnowed residue of
`
`factual allegations gives rise to a plausible claim to relief.”’ Rampage LLC v. Glob. Graphics
`
`SE, 2017 WL 239328, at *3 (D. Mass. Jan. 19, 2017) (quoting Rodriguez-Reyes v. Molina-
`
`Rodriguez, 711 F.3d 49, 53 (1st Cir. 2013)).
`
`In the patent infringement context, the complaint must provide notice to the defendant
`
`specifying the product accused and how that product allegedly meets each element of at least one
`
`claim of the patent. Sunrise Techs., Inc. v. Cimcon Lighting, Inc., 219 F. Supp. 3d 260, 263 (D.
`
`Mass. 2016) (“Therefore, in applying Twombly and Iqbal after the elimination of Form 18,
`
`plaintiff must allege that defendant’s product practices all the elements of at least one of the
`
`claims of the subject patent.”); Lexington Luminance LLC v. TCL Multimedia Tech. Holdings,
`
`Ltd., 2017 WL 3795769, at *4 (D. Mass. Aug. 30, 2017) (same); Rampage, at *3 (same). These
`
`cases correctly hold that each element must be met because it is axiomatic that “[t]o establish
`
`literal infringement, every limitation set forth in a claim must be found in an accused product,
`
`exactly.” Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed. Cir. 1995).
`
`Because in the First Circuit a plaintiff “is [] required to set forth factual allegations, either direct
`
`or inferential, respecting each material element necessary to sustain recovery under some
`
`
`
`7
`
`

`

`Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 12 of 25
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`actionable legal theory,” a complaint for patent infringement must necessarily set forth factual
`
`allegations concerning each material element, including the fundamental requirement that “every
`
`limitation set forth in a claim must be found in an accused product.” MacNeill Eng’g Co. v.
`
`Trisport, Ltd., 59 F. Supp. 2d 199, 201 (D. Mass. 1999); see Sunrise Techs., Inc., 219 F. Supp.
`
`3d at 263.
`
`Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
`
`complaint that fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6);
`
`see Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 52-53 (1st Cir. 2013). To survive a
`
`motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Bell Atl.
`
`Corp. v. Twombly, 550 U.S. 544, 570 (2007). This requires “more than an unadorned, the-
`
`defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
`
`plaintiff may state a plausible claim by pleading “factual content that allows the court to draw the
`
`reasonable inference that the defendant is liable for the misconduct alleged.” Id. “[A] formulaic
`
`recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 544, 555 (2007)
`
`Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by
`
`mere conclusory statements, do not suffice”). “Factual allegations must be enough to raise a
`
`right to relief above the speculative level on the assumption that all the allegations in the
`
`complaint are true. . . .” Twombly, 550 U.S. at 555.
`
`Since First Circuit law applies in this case, and not Federal Circuit law, the Court is not
`
`bound by the Federal Circuit’s statement in Nalco that “‘the Federal Rules of Civil Procedure do
`
`not require a plaintiff to plead facts establishing that each element of an asserted claim is met.’”
`
`Nalco Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1350 (Fed. Cir. 2018) (quoting Bill of Ladings).
`
`
`
`8
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`

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`Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 13 of 25
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`Nalco was applying Seventh Circuit law, not First Circuit law. Id. at 1346-47.2 Also, the Court
`
`in Nalco only recites part of the quotation from Bill of Lading. The full quotation is “As we held
`
`in McZeal, Form 18 and the Federal Rules of Civil Procedure do not require a plaintiff to plead
`
`facts establishing that each element of an asserted claim is met.” Bill of Lading, 681 F.3d at
`
`1335 (emphasis added). The Nalco Court does not discuss the effect of the abrogation of Form
`
`18 or the tension between Form 18 pleading standard and Iqbal and Twombly.3
`
`Fundamentally, Nalco does not provide a correct recitation of the legal standard
`
`applicable in the First Circuit. The First Circuit’s requirement that a pleading plausibly set forth
`
`the material elements of a claim requires at least identification of facts that, if proven true, meet
`
`each element or step of a patent claim.
`
`The Federal Circuit has also held, in non-precedential decisions, that a direct
`
`infringement complaint that does not identify the accused machines other than by broad
`
`functional language and which merely recites the language of the patent’s claims does not meet
`
`the pleading standards under Iqbal and Twombly. Artrip v. Ball Corp., 735 F. App’x 708, 714-15
`
`(Fed. Cir. 2018); see also Addiction and Detoxification Inst. L.L.C. v. Carpenter, 620 Fed. Appx.
`
`934, 937 (Fed. Cir. 2015) (affirming dismissal even under the Form 18 standards where
`
`complaint “provides no detail whatsoever that would put Defendants on notice as to what
`
`activity, method, or procedure is alleged to infringe.”).
`
`
`2 Also, the defendant in Nalco did not challenge the sufficiency of the pleading, but rather
`alleged the plaintiff pled “an impenetrable defense.” Nalco, at 1347-48.
`3 Nalco is also distinguishable because the District Court in Nalco erred by not treating the
`plaintiff’s factual averments as true, and by attempting to determine whether the claims of
`the patent should be construed to be limited to the single disclosed embodiment. Nalco, at
`1350. The plaintiff in Nalco also submitted four amended complaints, reciting enormous
`factual detail outlining how the defendants allegedly infringed, and all four were filed before
`the abrogation of Form 18. See id. at 1344-47 & n.2.
`9
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`Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 14 of 25
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`III. ARGUMENT
`
`A complaint may not rest on conclusory allegations, which must be disregarded.
`
`Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 53 (1st Cir. 2013). Here, Uniloc’s
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`Complaint contains numerous threadbare assertions that essentially parrot the claims and the
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`elements of each cause of action. Because the legal conclusions are devoid of factual support,
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`each must be disregarded, and Uniloc’s Complaint should be dismissed without prejudice to
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`replead should Uniloc actually have a viable theory of infringement (which athenahealth doubts).
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`A. There Is No Plausible Allegation of Infringement of the ’578 Patent
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`Paragraphs 1 through 11 allege jurisdictional facts and some additional facts that are not
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`tied to any alleged act of patent infringement. None of these paragraphs allege that any claim
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`limitation is practiced by athenahealth. In fact, there is a substantial gap between these vague
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`factual allegations and the asserted claims. athenahealth believes this gap is deliberate because
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`there is no connection between these factual allegations and the asserted claims. To the extent
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`that Uniloc contends that any of the recited facts establish that a particular claim limitation is
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`practiced, and has a Rule 11 basis for saying so, Uniloc should replead to allege with
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`particularity which limitation is allegedly practiced by which fact or set of facts, or else allege
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`facts that Uniloc contends do correspond to the limitations in the claim. As currently pled, those
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`paragraphs—standing alone—fail to state a plausible claim for patent infringement.
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`To state a claim for patent infringement, a plaintiff must plead “some allegation of
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`specific services or products of the defendants which are being accused” to “put Defendants on
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`notice as to what activity, method, or procedure is alleged to infringe.” Addiction and
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`Detoxification Inst. L.L.C. v. Carpenter, 620 Fed. Appx. 934, 937 (Fed. Cir. 2015); Artrip v. Ball
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`Corp., 735 F. App’x 708, 714-15 (Fed. Cir. 2018) (affirming dismissal of complaint that only
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`10
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`Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 15 of 25
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`vaguely identified machines and alleged they included each element of the patent’s independent
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`claim, which the complaint recited).
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`This notice requirement is no mere formality. The Federal Circuit held that the two
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`asserted claims are not invalid under Section 101 based on two specific limitations. Uniloc has
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`not identified where these two specific limitations are found in the accused instrumentality, and
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`athenahealth strongly believes that Uniloc cannot find the two specific limitations in anything
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`athenahealth has made, used, sold, or offered for sale. Specifically, the Federal Circuit held that
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`the ’578 Patent was not shown to be invalid because:
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`The claim requires distribution of an application launcher program
`to the user, and the specification explains that the administrator
`preferences are stored on the server. ’578 patent, col. 3, ll.55–61.
`This positioning of the components allows the application to launch
`in “respons[e] to a request from one of the plurality of authorized
`users” pursuant to both sets of preferences. In other words, it allows
`for on-demand installation of two-tier customized applications.
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`Uniloc USA, Inc. v. ADP, LLC, 772 F. App’x 890, 898 (Fed. Cir. 2019) (alteration in original).
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`Uniloc has not identified what it believes meets these limitations, which are the allegedly
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`novel feature of the claims of the ’578 Patent. athenahealth does not believe it infringes this
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`patent, but given the vague allegations in Uniloc’s Complaint, athenahealth is unable to properly
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`investigate the allegations or respond to the Complaint as pled. athenahealth cannot defend this
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`Action (and would be unduly prejudiced in trying to do so) because it does not know what it has
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`allegedly done to infringe the patents or cause unspecified others to infringe the patents.
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`In the Complaint, there is no identification of an accused process or how athenahealth
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`performs the claimed steps. See Sunrise Techs., Inc. v. Cimcon Lighting, Inc., 219 F. Supp. 3d
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`260, 263 (D. Mass. 2016) (“[I]n applying Twombly and Iqbal after the elimination of Form 18,
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`11
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`Case 1:19-cv-11278-RGS Document 21 Filed 08/28/19 Page 16 of 25
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`plaintiff must allege that defendant’s product practices all the elements of at least one of the
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`claims of the subject patent.” (emphasis added)).
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`1) Paragraph 12
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`The first paragraph alleging infringement is Paragraph 12. Paragraph 12, for example,
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`begins by alleging that “[a]thenahealth infringes, and continues to infringe, at least claim 1 of the
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`’578 Patent by making, using, offering for sale, and/or selling the athenaNet system….” D.I. 1, ¶
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`12. There are numerous fundamental problems with this allegation, any one of which renders the
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`allegation deficient and one that should be disregarded.
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`Firs