throbber
Case 2:22-md-03034-TGB ECF No. 50, PageID.2080 Filed 08/10/22 Page 1 of 35
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`Case No. 2:22-md-03034-TGB
`
`Hon. Terrence G. Berg
`
`Case No. 2:22-cv-11403-TGB
`
`Hon. Terrence G. Berg
`
`JURY TRIAL DEMANDED
`
`Case No. 2:22-cv-11405-TGB
`
`Hon. Terrence G. Berg
`
`JURY TRIAL DEMANDED
`
`IN RE NEO WIRELESS, LLC
`PATENT LITIG.
`
`NEO WIRELESS, LLC,
`Plaintiff,
`
`v.
`AMERICAN HONDA MOTOR CO.,
`INC. AND HONDA DEVELOPMENT
`& MANUFACTURING OF
`AMERICA, LLC,
`
`Defendants.
`
`NEO WIRELESS, LLC,
`Plaintiff,
`
`v.
`NISSAN NORTH AMERICA INC.
`AND NISSAN MOTOR
`ACCEPTANCE CORPORATION
`a/k/a NISSAN MOTOR
`ACCEPTANCE COMPANY LLC,
`Defendants.
`
`DEFENDANTS HONDA AND NISSAN’S MOTION TO
`DISMISS PLAINTIFF’S CLAIMS OF WILLFUL AND
`INDUCED PATENT INFRINGEMENT
`
`Defendants American Honda Motor Co., Inc. (“AHM”) and Honda
`
`Development & Manufacturing of America, LLC (“HDMA”) (collectively,
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2081 Filed 08/10/22 Page 2 of 35
`
`“Honda”); and Defendants Nissan North America Inc. (“Nissan NA”) and Nissan
`
`Motor Acceptance Corporation a/k/a Nissan Motor Acceptance Company LLC
`
`(“NMAC”) (collectively, “Nissan”); (together, “Honda and Nissan Defendants”),
`
`by their attorneys, move to dismiss Neo Wireless, LLC’s (“Plaintiff” or “Neo”)
`
`Amended Complaint Against Honda, Case No. 2:22-CV-11403-TGB, Dkt. No. 4
`
`(E.D. Mich.) (“Honda Amended Complaint”) and Amended Complaint Against
`
`Nissan, Case No. 2:22-CV-11405-TGB, Dkt. No. 5 (E.D. Mich.) (“Nissan
`
`Amended Complaint”); collectively “Amended Complaints”; on the ground that
`
`Neo has failed to state claims for willful infringement and induced infringement
`
`pursuant to Federal Rule of Civil Procedure 12(b)(6).
`
`Pursuant to Local Rule 7.1(a), the parties’ counsel met and conferred on this
`
`motion. No agreement was reached.
`
`
`
`
`
`2
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2082 Filed 08/10/22 Page 3 of 35
`
`Dated: August 10, 2022
`
`
`
`
`Respectfully submitted,
`
`BOWMAN AND BROOKE LLP
`
`Of Counsel:
`
`John T. Johnson
`Fish & Richardson P.C.
`7 Times Square, 20th Floor
`New York, NY 10036
`Telephone: (212) 765-5070
`Facsimile: (212) 258-2291
`E-mail: jjohnson@fr.com
`
`Ruffin B. Cordell
`Benjamin J Christoff
`Fish & Richardson P.C.
`1000 Maine Ave., S.W., Suite 1000
`Washington, DC 20024
`Telephone: (202) 783-5070
`Facsimile: (202) 783-2331
`E-mail: Cordell@fr.com
`
`
`
`
`
`
`
`
`/s/ Thomas P. Branigan
`Thomas P. Branigan (P41774)
`Bowman and Brooke LLP
`41000 Woodward Avenue, Suite 200 East
`Bloomfield Hills, MI 48304
`Telephone: (248) 205-3300
`Facsimile: (248) 205-3399
`thomas.branigan@bowmanandbrooke.com
`
`Counsel for Defendants
`AMERICAN HONDA MOTOR CO., INC.
`AND HONDA DEVELOPMENT &
`MANUFACTURING OF AMERICA,
`LLC
`
`3
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2083 Filed 08/10/22 Page 4 of 35
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`/s/ Peter J. Brennan
`Reginald J. Hill (IL Bar #6225173)
`Peter J. Brennan (IL Bar #6190873)
`JENNER & BLOCK LLP
`353 N. Clark St.
`Chicago, IL 60654
`Telephone: (312) 222-9350
`rhill@jenner.com
`pbrennan@jenner.com
`
`Counsel for Defendants
`NISSAN NORTH AMERICA INC. AND
`NISSAN MOTOR ACCEPTANCE
`CORPORATION a/k/a NISSAN MOTOR
`ACCEPTANCE COMPANY LLC
`
`4
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2084 Filed 08/10/22 Page 5 of 35
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`Case No. 2:22-md-03034-TGB
`
`Hon. Terrence G. Berg
`
`Case No. 2:22-cv-11403-TGB
`
`Hon. Terrence G. Berg
`
`JURY TRIAL DEMANDED
`
`Case No. 2:22-cv-11405-TGB
`
`Hon. Terrence G. Berg
`
`JURY TRIAL DEMANDED
`
`IN RE NEO WIRELESS, LLC
`PATENT LITIG.
`
`NEO WIRELESS, LLC,
`Plaintiff,
`
`v.
`AMERICAN HONDA MOTOR CO.,
`INC. AND HONDA DEVELOPMENT
`& MANUFACTURING OF
`AMERICA, LLC,
`
`Defendants.
`
`NEO WIRELESS, LLC,
`Plaintiff,
`
`v.
`NISSAN NORTH AMERICA INC.
`AND NISSAN MOTOR
`ACCEPTANCE CORPORATION
`a/k/a NISSAN MOTOR
`ACCEPTANCE COMPANY LLC,
`Defendants
`
`BRIEF IN SUPPORT OF DEFENDANTS HONDA AND
`NISSAN’S MOTION TO DISMISS PLAINTIFF’S CLAIMS OF
`WILLFUL AND INDUCED PATENT INFRINGEMENT
`
`
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2085 Filed 08/10/22 Page 6 of 35
`
`STATEMENT OF THE ISSUES PRESENTED
`
`1. Whether Plaintiff Neo has stated a claim for willful infringement against the
`
`Honda and Nissan Defendants in its Amended Complaints.
`
`The Honda and Nissan Defendants answer: No.
`
`2. Whether Plaintiff Neo has stated a claim for induced infringement against
`
`the Honda and Nissan Defendants in its Amended Complaints by
`
`asserting—without any support or facts—that Honda and Nissan Defendants
`
`had specific intent to induce infringement.
`
`The Honda and Nissan Defendants answer: No.
`
`
`
`2
`
`
`
`
`
`
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2086 Filed 08/10/22 Page 7 of 35
`
`
`
`MOST CONTROLLING OR APPROPRIATE LEGAL AUTHORITIES
`
`Pursuant to Local Rule 7.1(d)(2), the controlling or most appropriate
`
`authority for this brief includes the following:
`
`1. For the Honda and Nissan Defendants’ motion to dismiss under Rule
`
`12(b)(6) for failure to state a claim for willful infringement:
`
`• Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923 (2016)
`
`• SRI Int'l, Inc. v. Cisco Sys., Inc., 14 F.4th 1323 (Fed. Cir. 2021)
`
`• WBIP, LLC v. Kohler Co., 829 F.3d 1317 (Fed. Cir. 2016)
`
`• Schwendimann v. Stahls’, Inc., 510 F. Supp. 3d 503, 513-14 (E.D. Mich.
`
`2021) (Friedman, J.)
`
`• Mich. Motor Techs. LLC v. Volkswagen Aktiengesellschaft, 472 F. Supp.
`
`3d 377, 384 (E.D. Mich. 2020) (Larson, J.)
`
`• Hypermedia Navigation LLC v. Google LLC, No. 18-CV-06137-HSG,
`
`2019 WL 1455336 (N.D. Cal. Apr. 2, 2019)
`
`• Finjan, Inc. v. Juniper Networks, Inc., No. 17-05659-WHA, 2018 WL
`
`905909 (N.D. Cal. Feb. 14, 2018)
`
`• Finjan, Inc. v. Cisco Sys. Inc., No. 17-cv-00072-BLF, 2017 WL 2462423
`
`(N.D. Cal. June 7, 2017)
`
`
`
`3
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2087 Filed 08/10/22 Page 8 of 35
`
`2. For the Honda and Nissan Defendants’ motion to dismiss under Rule
`
`12(b)(6) for failure to state a claim for induced infringement:
`
`• Schwendimann v. Stahls’, Inc., 510 F. Supp. 3d 503, 513-14 (E.D. Mich.
`
`2021) (Friedman, J.)
`
`• Mich. Motor Techs. LLC v. Volkswagen Aktiengesellschaft, 472 F. Supp.
`
`3d 377 (E.D. Mich. 2020) (Larson, J.)
`
`• Cap Co., Ltd. v. McAfee, Inc., in which the court dismissed plaintiff’s
`
`inducement claim. No. 14–cv–05068–JD, 2015 WL 3945875 (N.D. Cal.
`
`June 26, 2015)
`
`• Service Solutions U.S., LLC v. Autel U.S. Inc., No. 13-10534, 2013 WL
`
`5701063 (E.D. Mich. Oct. 18, 2013)
`
`4
`
`
`
`
`
`
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2088 Filed 08/10/22 Page 9 of 35
`TABLE OF CONTENTS
`
`Page
`
`
`I.
`INTRODUCTION ........................................................................................... 1
`FACTUAL BACKGROUND.......................................................................... 3
`II.
`III. LEGAL STANDARDS ................................................................................... 7
`A. Motion to Dismiss ................................................................................. 7
`B. Willful Infringement.............................................................................. 7
`C.
`Induced Infringement ............................................................................ 9
`IV. ARGUMENT .................................................................................................11
`A. Neo Fails To Adequately Plead Willful Infringement ........................11
`1.
`Neo Fails To Plead Facts That Could Plausibly
`Support Pre-Suit Knowledge Of Infringement .........................11
`Neo Fails To Plead Facts That Could Plausibly
`Support That Honda or Nissan Engaged in the
`Required Willful Conduct .........................................................14
`Neo Fails To Adequately Plead Induced Infringement .......................16
`1.
`Neo Fails To Plead Facts That Could Plausibly
`Support Pre-Suit Knowledge of Infringement ..........................17
`Neo Fails To Plead Facts That Could Plausibly
`Support That Honda or Nissan Had Specific Intent
`To Encourage Others’ Infringement .........................................18
`CONCLUSION ..............................................................................................22
`
`B.
`
`V.
`
`
`2.
`
`2.
`
`i
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2089 Filed 08/10/22 Page 10 of 35
`TABLE OF AUTHORITIES
`
`Page(s)
`
`
`Cases
`Affinity Labs of Tex., LLC v. Toyota Motor N. Am., Inc.,
`No. W:13-cv-365, 2014 WL 2892285 (W.D. Tex. May 12, 2014) .................... 10
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .............................................................................................. 7
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) .............................................................................................. 7
`CAP Co. v. McAfee, Inc.,
`No. 14-CV-05068-JD, 2015 WL 3945875 (N.D. Cal. June 26, 2015) ........... 9, 21
`Core Wireless Licensing S.A.R.L. v. Apple Inc.,
`2015 WL 4910427 (E.D. Tex. Aug. 14, 2015) ................................................... 21
`Finjan, Inc. v. Cisco Sys. Inc.,
`No. 17-cv-00072-BLF, 2017 WL 2462423 (N.D. Cal. June 7, 2017)
` ................................................................................................................. 12, 15, 16
`Finjan, Inc. v. Juniper Networks, Inc.,
`No. 17-05659-WHA, 2018 WL 905909 (N.D. Cal. Feb. 14, 2018) ............... 9, 15
`Glob.-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754, 131 S. Ct. 2060 (2011)................................................................. 10
`Halo Elecs., Inc. v. Pulse Elecs., Inc.,
`136 S. Ct. 1923 (2016) .................................................................................. 11, 15
`Hypermedia Navigation LLC v. Google LLC,
`No. 18-CV-06137-HSG, 2019 WL 1455336 (N.D. Cal. Apr. 2, 2019) ....... 14, 15
`Matthew N. Fulton, DDS, P.C. v. Enclarity, Inc.,
`962 F.3d 882 (6th Cir. 2020) ................................................................................ 7
`Mich. Motor Techs. LLC v. Volkswagen Aktiengesellschaft,
`472 F. Supp. 3d 377 (E.D. Mich. 2020) (Larson, J.) ...................................passim
`NetFuel, Inc. v. Cisco Sys. Inc.,
`No. 5:18-CV-02352-EJD, 2018 WL 4510737 (N.D. Cal. Sept. 18, 2018) .......... 9
`ii
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2090 Filed 08/10/22 Page 11 of 35
`TABLE OF AUTHORITIES (cont’d)
`
`Page(s)
`
`
`Nobelbiz, Inc. v. Insidesales.com, Inc.,
`No. 6:13-cv-360, 2014 WL 12378804 (E.D. Tex. Oct. 14, 2014) ..................... 10
`Schwendimann v. Stahls’, Inc.,
`510 F. Supp. 3d 503 (E.D. Mich. 2021) (Friedman, J.) ........................................ 8
`Script Security Solutions LLC v. Amazon.com, Inc.,
`170 F. Supp. 3d. 928 (E.D. Tex. 2016) ............................................................... 10
`Service Solutions U.S., LLC v. Autel U.S. Inc.,
`No. 13-10534, 2013 WL 5701063 (E.D. Mich. Oct. 18, 2013) ......................... 17
`SRI Int'l, Inc. v. Cisco Sys., Inc.,
`14 F.4th 1323 (Fed. Cir. 2021) ........................................................................... 15
`Warner-Lambert Co. v. Apotex Corp.,
`316 F.3d 1348 (Fed. Cir. 2003) .................................................................... 18, 20
`WBIP, LLC v. Kohler Co.,
`829 F.3d 1317 (Fed. Cir. 2016) ............................................................................ 8
`ZapFraud, Inc. v. Barracuda Networks, Inc.,
`528 F. Supp. 3d 247 (D. Del. Mar. 24, 2021) ..................................................... 11
`Statutes
`35 U.S.C. § 271(b) ................................................................................................... 10
`Other Authorities
`Fed. R. Civ. Proc. 12(b)(6) ...............................................................................passim
`3GPP Specification series, 3GPP, https://www.3gpp.org/DynaReport/36-
`series.htm (last visited Aug. 9, 2022)
` ............................................................................................................................. 13
`
`iii
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2091 Filed 08/10/22 Page 12 of 35
`
`
`
`I.
`
`INTRODUCTION
`Plaintiff Neo’s intentional conduct-based claims—willful and induced
`
`infringement—should be dismissed because they fail to plead facts that plausibly
`
`support that Defendants American Honda Motor Co., Inc. (“AHM”) and Honda
`
`Development & Manufacturing of America, LLC (“HDMA”), and Defendants
`
`Nissan North America Inc. (“Nissan NA”) and Nissan Motor Acceptance
`
`Corporation a/k/a Nissan Motor Acceptance Company LLC (“NMAC”)
`
`(collectively, “Nissan”); (together, “Honda and Nissan Defendants”) had pre-suit
`
`knowledge of their alleged infringement or “specific intent” to support willful or
`
`induced infringement claims. Neo instead relies on vague, insufficient allegations
`
`of “actual notice” coupled with conclusory allegations that mimic legal elements,
`
`without alleging specific facts that plausibly support willful or induced
`
`infringement, and these claims should be dismissed.
`
`Neo alleges that the Honda Defendants each willfully infringe six patents,
`
`relying on a pre-suit “actual notice” that Neo alleges “Honda” received on
`
`November 30, 2021, just four months before Neo commenced this action. Neo did
`
`not attach the notice or describe its contents, but instead alleged only the ultimate
`
`conclusion that the notice made Honda “aware” of the patents. Neo, rather than
`
`pleading specific facts, recites the legal elements associated with willful
`
`infringement. The law is clear, however, that the plausibility standard requires
`
`
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2092 Filed 08/10/22 Page 13 of 35
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`
`
`more than conclusory or formulaic allegations of knowledge of the patents and
`
`misconduct.
`
`Neo’s claim that the Honda Defendants induced others to infringe also fails.
`
`The law requires that Honda have pre-suit knowledge of the patents and specific
`
`intent to induce others to infringe for Neo to lodge a viable claim for inducement.
`
`Neo again relies on its November 30, 2021 notice allegation to support Honda’s
`
`pre-suit knowledge for inducement, but again Neo fails to plausibly plead facts
`
`supporting that Honda had knowledge of the asserted patents, and that Honda
`
`possessed the “specific intent” to induce others to infringe. Neo’s conclusory
`
`allegations that Honda encourages others to infringe through “instructions,
`
`directions, [and] suggestions” is insufficient to plausibly support that Honda
`
`specifically intended to induce such infringement. As explained below, conclusory
`
`allegations are simply insufficient at the pleading stage to support a claim of
`
`inducement.
`
`Neo makes the same averments against Nissan, with nearly identical
`
`language, except that Neo alleges the letter was received by Nissan no later than
`
`December 1, 2021.
`
`Neo’s willful and induced infringement claims should be dismissed.
`
`2
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2093 Filed 08/10/22 Page 14 of 35
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`
`
`II.
`
`FACTUAL BACKGROUND
`Neo filed its original Complaint on March 29, 2022 in the Southern District
`
`of Ohio, alleging that Honda infringes six patents by manufacturing and selling
`
`certain vehicles that include “cellular-capable products” that use 4G/LTE and/or
`
`5G/NR communication features: U.S. Patent Nos. 8,467,366 (“the ’366 patent”);
`
`No. 10,833,908 (“the ’908 patent”); 10,075,941 (“the ’941 patent”); 10,447,450
`
`(“the ’450 patent”); 10,965,512 (“the ’512 patent”); 10,771,302 (“the ’302 patent”)
`
`(collectively, the “Asserted Patents.”) (Complaint, Case No. 2:22-cv-01824, Dkt.
`
`No. 1 (“Original Complaint”).)
`
`Neo alleged direct, induced, and willful infringement for all Asserted
`
`Patents. Neo alleged, “[a]t least as far back as 2015, Honda began implementing
`
`the newest 4G LTE cellular technology into Honda’s accused products.” (Id. at ¶
`
`41). Neo then identified allegedly infringing products—“Honda models that
`
`implement 4G LTE communications—including but not limited to the Odyssey,
`
`Pilot, and Passport models—as well as those that may in the future implement
`
`4G/LTE or 5G/NR capabilities, are collectively referred to as the ‘Accused
`
`Products.’” (Id. at ¶ 44). Neo asserted that the Asserted Patents “read on portions
`
`of the LTE or 4G/5G standards, which Honda implements in the Accused
`
`Products.” (Id. at ¶ 45).
`
`3
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2094 Filed 08/10/22 Page 15 of 35
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`
`
`Neo vaguely claimed in its Original Complaint that it “provided Honda with
`
`actual knowledge of its infringement prior to the filing of lawsuit, or at a minimum
`
`by the filing of this Complaint.” (Id. at ¶ 47). This vague allegation did not make
`
`it clear if the “actual knowledge” of alleged infringement stemmed from what Neo
`
`allegedly provided pre-suit (in the notice) or through this action (in the Original
`
`Complaint). Several paragraphs later, Neo provided more information about the
`
`alleged “actual notice:”
`
`55. Honda received actual notice of its infringement of the
`Asserted Patents as early as November 30, 2021, and at least as
`early as the date of service of this Complaint. Therefore, Honda
`was or is now aware of the Asserted Patents or has willfully
`blinded itself as to the existence of the Asserted Patents and the
`Accused Products’ infringement thereof.
`(Id. at ¶ 55). Neo relied on this alleged notice for its willful and induced
`
`infringement claims, but did not provide any other details as to Honda’s alleged
`
`pre-suit knowledge of Asserted Patents. For example, Neo did not attach the
`
`notice to its Original Complaint, did not disclose its content or what it allegedly
`
`said about alleged infringement (if anything at all), did not disclose who provided
`
`the notice, nor did it reveal to whom the notice was addressed or delivered.
`
`Neo’s Original Complaint also sought enhanced damages for willful
`
`infringement, but Neo did not plead facts to support its assertion. Instead, Neo put
`
`forth conclusory statements without any factual support:
`
`4
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2095 Filed 08/10/22 Page 16 of 35
`
`
`
`56. Honda has made, used, sold, offered to sell, imported
`and/or encouraged the making, using, selling, offering to sell, or
`importing of Honda’s Accused Products despite knowing of an
`objectively high likelihood that its actions constituted
`infringement of the Asserted Patents at all times relevant to this
`suit. Alternatively, Honda subjectively believed there was a
`high probability that others would infringe the Asserted Patents
`but took deliberate steps to avoid confirming that it was
`actively inducing infringement by others.
`(Id. at ¶ 56).
`
`On June 21, 2022, Honda moved to dismiss the Original Complaint, arguing
`
`that Neo had failed to adequately plead facts supporting its knowledge and intent-
`
`based willfulness and induced infringement claims. (See Motion to Dismiss, Case
`
`No. 2:22-cv-01824, Dkt. No. 21, at 7-14.) Honda cited case law stating that naked
`
`assertions of, for example, a notice letter being sent to a defendant are inadequate
`
`to avoid dismissal under Rule 12(b)(6). (See id. at 8 (citing Mich. Motor Techs.
`
`LLC v. Volkswagen Aktiengesellschaft, 472 F. Supp. 3d 377, 384 (E.D. Mich.
`
`2020).)
`
`In response, on July 20, 2022, Neo amended its complaint. (See Amended
`
`Complaint, Case No. 2:22-CV-11403-TGB, Dkt. No. 4 (E.D. Mich.) (“Amended
`
`Complaint”).) Neo deleted paragraph 55 from the Original Complaint (shown
`
`above) pertaining to actual notice, and added a new paragraph alleging in summary
`
`that (i) Neo sent a letter notifying “HMC” of the patents-in-suit, (ii) that Honda
`
`“did not respond” and “refused to engage in any good faith licensing negotiations,”
`
`5
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2096 Filed 08/10/22 Page 17 of 35
`
`
`
`and (iii) in any event, Honda was made aware of the patents-in-suit when the
`
`complaint in this case was served:
`
`69. Neo sent a letter to HMC on November 29, 2021 that Honda
`received no later than November 30, 2021 informing Honda of Neo
`Wireless’s relevant patent portfolio, including listing the patents-in-
`suit and how the patents-in-suit cover certain 3GPP wireless standards
`used in Honda’s Accused Products in an attempt to initiate
`commercial licensing discussions. Honda did not respond, refused to
`engage in any good faith licensing negotiations, and continued
`infringing on the Asserted Patents. On information and belief, each
`Honda entity obtained actual knowledge of the Asserted Patents and
`its infringement thereof through HMC no later than November 30,
`2021. In any event, HMC and HDMA were on notice and had actual
`knowledge of the Asserted Patents and their infringement on the date
`of service of this Complaint. Therefore, each Honda entity was or is
`now aware of the Asserted Patents or has willfully blinded itself as to
`the existence of the Asserted Patents and the Accused Products’
`infringement thereof and has deliberately and wantonly continued to
`infringe on Neo’s patent rights.
`(Id. at ¶ 69.) Neo again did not attach the alleged letter to the Amended
`
`Complaint. Neo also added the one-word label that Honda’s alleged infringement
`
`was “egregious,” without identifying any allegedly egregious conduct. (See id. at ¶
`
`70.) Neo further added allegations that Honda provides sales, marketing, and
`
`technical materials to third-parties without specific factual assertions or context.
`
`(See id. at ¶¶ 63-66.)
`
`Neo makes the same averments against Nissan, with nearly identical
`
`language, except that Neo’s Amended Complaint to Nissan makes the general
`
`allegation that Nissan NA advertises NissanConnect – which allegedly uses the
`
`6
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2097 Filed 08/10/22 Page 18 of 35
`
`
`
`Accused Features – on its website to customers and end users. (Amended
`
`Complaint, Case No. 2:22-CV-11405-TGB, Dkt. No. 5 (E.D. Mich.), at ¶ 66
`
`(“Nissan Amended Complaint”).)
`
`III. LEGAL STANDARDS
`A. Motion to Dismiss
`To survive a motion to dismiss under Federal Rule of Civil Procedure
`
`12(b)(6), a complaint must contain “enough facts to state a claim to relief that is
`
`plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
`
`“claim is facially plausible when a plaintiff ‘pleads factual content that allows the
`
`court to draw the reasonable inference that the defendant is liable for the alleged
`
`misconduct.’” Matthew N. Fulton, DDS, P.C. v. Enclarity, Inc., 962 F.3d 882, 887
`
`(6th Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also
`
`Twombly, 550 U.S. at 555 (“[F]actual allegations must be enough to raise a right to
`
`relief above the speculative level . . . .”). “Threadbare recitals of the elements of a
`
`cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
`
`556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
`
`B. Willful Infringement
`Establishing willful infringement is a fact-specific inquiry that requires at
`
`least a finding of deliberate or intentional infringement. See SRI Int’l, Inc. v. Cisco
`
`Sys., Inc., 14 F.4th 1323, 1330 (Fed. Cir. 2021) (citing Eko Brands, LLC v. Adrian
`
`Rivera Maynez Enters., Inc., 946 F.3d 1367, 1378 (Fed. Cir. 2020) (citing Halo
`7
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2098 Filed 08/10/22 Page 19 of 35
`
`
`
`Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1933 (2016))). This in turn
`
`requires defendants to (1) have knowledge of the asserted patents at the time of
`
`alleged infringement, and (2) knowingly partake in conduct that allegedly infringes
`
`the asserted patents. Mich. Motor, 472 F. Supp. 3d at 383 (citing WBIP, LLC v.
`
`Kohler Co., 829 F.3d 1317, 1341 (Fed. Cir. 2016)) (“Prior knowledge of the patent
`
`and that the conduct is infringing is a necessary component of a showing of
`
`willfulness.”).
`
`To state a claim for willful infringement, plaintiff must allege facts showing
`
`that the defendant had knowledge of the asserted patents at the time of alleged
`
`wrongdoing. See, e.g., WBIP, 829 F.3d at 1341; Mich. Motor, 472 F. Supp. 3d at
`
`384 (dismissing complaint even though defendants were provided notice of the
`
`patents via letter, because plaintiff failed to show sufficient pre-suit knowledge for
`
`willfulness much less the egregious conduct1 required for enhanced damages);
`
`Schwendimann v. Stahls’, Inc., 510 F. Supp. 3d 503, 513-14 (E.D. Mich. 2021)
`
`
`1 This court has acknowledged a division in authority regarding what is required to
`plead willful infringement. See, e.g., Mich. Motor, 472 F. Supp. 3d at 385
`(Lawson, J.); Schwendimann, 510 F. Supp. 3d at 513 (Friedman, J.). While Honda
`and Nissan contend that Neo must plead facts supporting egregiousness to sustain a
`willful infringement claim, this court need not consider that issue because Neo fails
`to plausibly plead the specific intent requirement for willfulness. See
`Schwendimann, 510 F. Supp. 3d at 513 (“The Court finds that it need not decide
`the egregiousness issues because . . . inferences of intentional or knowing
`infringement or that defendant refused to confirm infringement in an effort to
`remain willfully blind, are not reasonable in this case.”).
`8
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2099 Filed 08/10/22 Page 20 of 35
`
`
`
`(Friedman, J.) (dismissing claims of willful infringement because complaint failed
`
`to plead facts leading to a reasonable inference that defendants acted with
`
`knowledge of infringement of the particular patents-in-suit and failed to plausibly
`
`plead “intentional or knowing infringement”); Finjan, Inc. v. Juniper Networks,
`
`Inc., No. 17-05659-WHA, 2018 WL 905909, at *4-5 (N.D. Cal. Feb. 14, 2018)
`
`(dismissing complaint for failing to show pre-suit knowledge at all).
`
`In addition, to state a claim for willful infringement, plaintiff must also
`
`allege facts showing that the defendant knew that it was allegedly infringing at the
`
`time of the alleged infringement. See, e.g., Mich. Motor, 472 F. Supp. 3d at 383;
`
`NetFuel, Inc. v. Cisco Sys. Inc., No. 5:18-CV-02352-EJD, 2018 WL 4510737, at
`
`*3 (N.D. Cal. Sept. 18, 2018) (“[T]here can be no infringement of a patent, willful
`
`or otherwise, until the patent issues and the defendant learns of its existence and
`
`alleged infringement.” (citation omitted)).
`
`Induced Infringement
`C.
`To support a claim for induced infringement, a plaintiff must plead facts
`
`plausibly supporting that (1) a defendant knew its actions would induce actual
`
`infringement, and (2) the defendant had the specific intent to encourage another’s
`
`infringement. See e.g., Mich. Motor, 472 F. Supp. 3d at 385 (dismissing induced
`
`infringement claims) (citing cases including Commil USA, LLC v. Cisco Sys., Inc.,
`
`135 S. Ct. 1920, 1926-28 (2015), and CAP Co. v. McAfee, Inc., No. 14-CV-05068-
`
`9
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2100 Filed 08/10/22 Page 21 of 35
`
`
`
`JD, 2015 WL 3945875, at *3 (N.D. Cal. June 26, 2015) (dismissing inducement
`
`claims) (citing cases and quoting Glob.-Tech Appliances, Inc. v. SEB S.A., 563
`
`U.S. 754, 131 S. Ct. 2060, 2068 (2011))).
`
`Moreover, a plaintiff who relies on willful blindness to plead knowledge
`
`must identify in its complaint affirmative actions taken by the defendant to avoid
`
`gaining actual knowledge of the patent to escape dismissal. Global-Tech, 563 U.S.
`
`at 765-66 (2011); Mich. Motor, 472 F. Supp. 3d at 386 (“The Complaint lacks any
`
`allegation that the defendants took any ‘deliberate actions to avoid confirming a
`
`high probability of wrongdoing.’” (citation omitted)); Script Security Solutions
`
`LLC v. Amazon.com, Inc., 170 F. Supp. 3d. 928, 937-38 (E.D. Tex. 2016).
`
`Allegations that are merely conclusory and speculative or those that generally
`
`repeat the language of § 271(b), without adding factual allegations, are properly
`
`dismissed. See e.g., Mich. Motor, 472 F. Supp. 3d at 385 (citing cases); Nobelbiz,
`
`Inc. v. Insidesales.com, Inc., No. 6:13-cv-360, 2014 WL 12378804, at *4 (E.D.
`
`Tex. Oct. 14, 2014); Affinity Labs of Tex., LLC v. Toyota Motor N. Am., Inc., No.
`
`W:13-cv-365, 2014 WL 2892285, at *4-8 (W.D. Tex. May 12, 2014).
`
`10
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2101 Filed 08/10/22 Page 22 of 35
`
`
`
`IV. ARGUMENT
`A. Neo Fails To Adequately Plead Willful Infringement
`Neo’s willful infringement claims should be dismissed because Neo fails to
`
`plead facts plausibly supporting Honda or Nissan’s pre-suit knowledge of
`
`infringement.
`
`1.
`
`Neo Fails To Plead Facts That Could Plausibly Support
`Pre-Suit Knowledge Of Infringement
`In Halo, the Supreme Court explained that “culpability is generally
`
`measured against the knowledge of the actor at the time of the challenged
`
`conduct.” Halo, 136 S. Ct. at 1933. Neo’s Complaint, however, does not allege
`
`facts that would support that Honda or Nissan had pre-suit knowledge of the
`
`Asserted Patents to satisfy the knowledge requirement for willful and induced
`
`infringement. See ZapFraud, Inc. v. Barracuda Networks, Inc., 528 F. Supp. 3d
`
`247, 251 (D. Del. Mar. 24, 2021).
`
`To support its willful and induced infringement claims, Neo relies on its
`
`Amended Complaint allegation that it sent “HMC” a patent notice letter in
`
`November 2021 and that “Honda” did not respond, but the description of the
`
`substance of the letter is amazingly curt:
`
`69. Neo sent a letter to HMC on November 29, 2021 that Honda
`received no later than November 30, 2021 informing Honda of Neo
`Wireless’s relevant patent portfolio, including listing the patents-in-
`suit and how the patents-in-suit cover certain 3GPP wireless standards
`used in Honda’s Accused Products in an attempt to initiate
`commercial licensing discussions. Honda did not respond, refused to
`11
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2102 Filed 08/10/22 Page 23 of 35
`
`
`
`engage in any good faith licensing negotiations, and continued
`infringing on the Asserted Patents. On information and belief, each
`Honda entity obtained actual knowledge of the Asserted Patents and
`its infringement thereof through HMC no later than November
`30,2021. In any event, HMC and HDMA were on notice and had
`actual knowledge of the Asserted Patents and their infringement on
`the date of service of this Complaint. Therefore, each Honda entity
`was or is now aware of the Asserted Patents or has willfully blinded
`itself as to the existence of the Asserted Patents and the Accused
`Products’ infringement thereof and has deliberately and wantonly
`continued to infringe on Neo’s patent rights.
`(Amended Complaint at ¶ 69). Neo makes essentially the same averment in its
`
`Amended Complaint against “Nissan.” (Nissan Amended Complaint at ¶ 71).
`
`Given that Neo did not attach the alleged letter to “HMC” or “Nissan NA” to
`
`the Amended Complaint, Neo’s conclusory allegation of a letter notifying “Honda”
`
`and “Nissan NA” of the asserted patents and their relevant technology is
`
`insufficient to avoid dismissal. See, e.g., Mich. Motor, 472 F. Supp. 3d at 384;
`
`Finjan, Inc. v. Cisco Sys. Inc., No. 17-CV-00072-BLF, 2017 WL 2462423, at *5
`
`(N.D. Cal. June 7, 2017) (“[E]ven if the Court were to try to circumstantially infer
`
`that Cisco had knowledge of the Asserted Patents from its alleged awareness of
`
`Finjan’s ‘patent portfolio and patented technology,’ there are not enough factual
`
`allegations to make this plausible.”). Neo’s allegation is simply that it sent “HMC”
`
`and “Nissan NA” a letter identifying a “portfolio” that includes the patents in suit,
`
`alleging that the patents cover “3GPP wireless standards” used by Honda and
`
`Nissan. There are many 3GPP wireless standards, see, e.g., 3GPP Specification
`
`12
`
`

`

`Case 2:22-md-03034-TGB ECF No. 50, PageID.2103 Filed 08/10/22 Page 24 of 35
`
`
`
`series, 3GPP, https://www.3gpp.org/DynaReport/36-series.htm (last visited Aug. 9,
`
`2022), and Neo’s allegation is akin to making the completely implausible claim
`
`that any wireless system infringes its patents. More is required than “you are using
`
`electronics and therefore you infringe.”
`
`In Michigan Motor, for example, the plaintiff alleged that the defendants
`
`were made aware of the patents-in-suit “when [they were] provided notice of the
`
`patents via letter.” 472 F. Supp. 3d at 384. The court found those allegations to be
`
`conclusory and “not entitled to be assumed true.” I

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