Case 5:11-cv-00155-cr Document 8 Filed 12/02/11 Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF VERMONT
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`Arnouse Digital Devices Corp.
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`Plaintiff,
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`v.
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`Motorola Mobility, Inc.
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`Defendant.
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` Civil Action No.: 5:11-cv-155-cr
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`DEFENDANT MOTOROLA MOBILITY INC.’S
`MOTION TO DISMISS PLAINTIFF’S COMPLAINT
`AND SUPPORTING MEMORANDUM OF LAW
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`MOTION TO DISMISS
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`Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Motorola
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`Mobility, Inc. (“Motorola Mobility”) moves the Court to dismiss all of the claims in Arnouse
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`Digital Devices Corp.‟s (“Arnouse”) First Amended Complaint.
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`MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
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`STATEMENT OF FACTS
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`On June 16, 2011, Arnouse filed a Complaint against Motorola Mobility alleging
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`infringement of U.S. Patent No. 7,516,484 (“the ‟484 patent”), attached as Ex. A to the
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`Complaint. The Complaint alleged that Motorola Mobility infringed the ‟484 patent by making,
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`selling, and offering for sale the Motorola Atrix smartphone and the Motorola Lapdock used
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`with the Atrix smartphone. Compl., D.E. 1, at ¶ 11-12. On October 5, 2011, Arnouse filed its
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`First Amended Complaint, which alleges that Motorola Mobility infringes by making, selling,
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`and offering for sale one or more versions of the Motorola Atrix, Atrix II, and Droid 4G
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`smartphones (hereafter the “smartphones”) that are used in combination with one or more
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`{B0791973.1 13925-0001}
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`Dinse,
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`Knapp & McAndrew, P.C.
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`209 Battery Street
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`P.O. Box 988
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`Burlington, VT
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`05402-0988
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`(802) 864-5751
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`Petitioner Motorola Mobility LLC - Exhibit 1008 - Page 1
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`Case 5:11-cv-00155-cr Document 8 Filed 12/02/11 Page 2 of 9
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`versions of the Motorola Lapdock (hereafter the “lapdock”). First Amended Compl., D.E. 4 at ¶
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`6.
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`The ‟484 patent is entitled “Reader Adapted for a Portable Computer.” Id. at Ex. A. In
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`general, it describes a “reader,” or docking station, that may be used with a certain type of
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`portable computer to allow a user to interact with the portable computer.1 The ‟484 patent
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`recites, at the end of the patent, 20 claims that purport to define Arnouse‟s intellectual property
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`rights. See Markman v. Westview Instruments, Inc., 517 US 370, 373 (1996) (“The claim
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`„define[s] the scope of a patent grant.‟”) (quoting 3 E. Lipscomb, Walker on Patents § 11:1, pp.
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`280 (3d ed. 1985)). Three of the claims of the ‟484 patent, claims 1, 8, and 15, are known as
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`“independent claims” because they recite claimed intellectual property rights without reference
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`to any other claim. Teledyne McCormick Selph v. United States, 558 F.2d 1000, 1004 (Ct. Cl.
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`1977) (citing Dresser Indus., Inc. v. United States, 432 F.2d 787 (Ct. Cl. 1970)). As noted
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`below, if an independent claim is not infringed, then none of its dependent claims can be
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`infringed as a matter of law.
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`Each of the independent claims of the ‟484 patent requires a “portable computer” that
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`lacks input and output means. This is so, the patent explains, because the computer is plugged
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`into the reader, or docking station, and the user accesses the contents of the computer through the
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`input and output means of the docking station. ‟484 patent at Col. 6, ll. 4-21. Specifically,
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`independent claim 1 recites, in part, “a portable computer without input and output means for
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`interacting directly therewith . . . .” ‟484 patent, col. 13, ll. 8-10. Independent claim 8 similarly
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`recites, in part, “a fully functional general purpose computer . . . excluding means for a user to
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`Dinse,
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`Knapp & McAndrew, P.C.
`
`209 Battery Street
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`P.O. Box 988
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`Burlington, VT
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`05402-0988
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`(802) 864-5751
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`1 It is appropriate for the Court to consider the „484 patent because it is attached to the complaint and because the
`complaint incorporates the „484 patent by reference. See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (In
`considering a motion under 12(b)(6), “[d]ocuments that are attached to the complaint or incorporated in it by
`reference are deemed part of the pleading and may be considered”); see also Pani v. Empire Blue Cross Blue Shield,
`152 F.3d 67, 71 (2d Cir. 1998); Amusement Industry, Inc. v. Stern, 693 F. Supp. 2d 327, 337 (S.D. N.Y. 2010).
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`{B0791973.1 13925-0001}2
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`Petitioner Motorola Mobility LLC - Exhibit 1008 - Page 2
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`Case 5:11-cv-00155-cr Document 8 Filed 12/02/11 Page 3 of 9
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`interact with the computer.” Id. at col. 13, ll. 47-49. Independent claim 15 likewise recites a
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`computing system comprised of a reader and a computer, where the computer “excludes means
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`for a user to interact directly with the portable computer.” Id. at col. 14, ll. 31-32.
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`ARGUMENT
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`As noted above, each of the independent claims of the ‟484 patent requires a portable
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`computer that lacks input and output means. It is impossible to dispute – and Arnouse fails to
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`allege otherwise – that each of the accused smartphones (which Arnouse alleges to be the
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`“portable computer” of the claims) include both input and output means. Each smartphone (as
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`well as any mobile phone generally) must have a keyboard, microphone, and speakers so that a
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`user can interact with the phone. Thus, it is not possible for Arnouse to allege a claim of patent
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`infringement that is plausible on its face, and the Court should dismiss Arnouse‟s complaint with
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`prejudice.
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`I.
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`APPLICABLE LAW
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`In considering a Rule 12(b)(6) motion to dismiss, the Court must determine whether the
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`plaintiff has alleged sufficient facts to state a claim for relief which is “plausible on its face.”
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`Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
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`U.S. 544, 570 (2007)). The Supreme Court has held that “a plaintiff‟s obligation [under Rule
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`8(a)] to provide the „grounds‟ of his „entitle[ment] to relief‟ requires more than labels and
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`conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
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`Twombly, 550 U.S. at 555. In Iqbal, the Court reiterated this holding, stating both that the rule
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`set forth in Twombly applies to all civil actions and that Rule 8(a) requires “more than an
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`unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S. Ct. at 1949. Other
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`courts have held that the rule set forth in Twombly is particularly applicable to complex litigation
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`Dinse,
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`Knapp & McAndrew, P.C.
`
`209 Battery Street
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`P.O. Box 988
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`Burlington, VT
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`05402-0988
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`(802) 864-5751
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`{B0791973.1 13925-0001}3
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`Petitioner Motorola Mobility LLC - Exhibit 1008 - Page 3
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`Case 5:11-cv-00155-cr Document 8 Filed 12/02/11 Page 4 of 9
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`such as patent cases, where discovery typically is costly and extensive. See, e.g., Filipek v.
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`Krass, 576 F. Supp. 2d 918, 922-23 (N.D. Ill. 2008); Wistron Corp. v. Phillip M. Adams &
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`Associates, LLC, No. C-10-4458, 2011 WL 4079231, at *4 (N.D. Cal. Sept. 12, 2011); Fifth
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`Market, Inc. v. CME Group, Inc., Civ. No. 08-520-GMS, 2009 WL 5966836 (D. Del. May 14,
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`2009).
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`I.
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`THE ACCUSED SMARTPHONES CANNOT INFRINGE THE CLAIMS OF THE
`’484 PATENT
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`A.
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`Independent Claims 1, 8, and 15 Each Requires a Portable Computer that
`Lacks Input or Output Means.
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`The independent claims of the ‟484 patent make it clear that the “portable computer” that
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`interacts with the docking station (reader) claimed in the ‟484 patent cannot be used
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`independently of the docking station, because the computer has no input or output devices (such
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`as a keyboard or screen) for a user to use. For instance, independent claim 1 recites, in part, “a
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`portable computer without input and output means for interacting directly therewith . . . .” ‟484
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`patent, col. 13, ll. 8-10. Independent claim 8 recites, in part, “a fully functional general purpose
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`computer . . . excluding means for a user to interact with the computer.” Id. at col. 13, ll. 47-49.
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`Independent claim 15 recites a computing system comprised of a reader and a computer, where
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`the computer “excludes means for a user to interact directly with the portable computer.” Id. at
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`col. 14, ll. 31-32. Further, the ‟484 patent states that “the portable computer reader provides
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`[the] only means for a user to interact with or use the portable computer.” Id. at col. 6, ll. 8-9.
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`The ‟484 patent refers to the “means for interacting with the computer” as an “input and output
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`device” such as “a keyboard, display, mouse, speakers, etc.” Id. at col. 6, ll. 4-7.
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`B.
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`Each of the Smartphones Includes an Input and Output Means.
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`Arnouse contends that Motorola Mobility infringes the ‟484 patent because the
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`smartphones are the “portable computer” that is attached to and interacts with the lapdock, which
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`{B0791973.1 13925-0001}4
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`Dinse,
`
`Knapp & McAndrew, P.C.
`
`209 Battery Street
`
`P.O. Box 988
`
`Burlington, VT
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`05402-0988
`
`(802) 864-5751
`
`Petitioner Motorola Mobility LLC - Exhibit 1008 - Page 4
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`

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`Case 5:11-cv-00155-cr Document 8 Filed 12/02/11 Page 5 of 9
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`is the “reader.” See Amended Complaint, ¶ 6 (alleging that the smartphones are the “portable
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`computer” and the lapdock is the “reader”). It is common knowledge that smartphones (and
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`other mobile telephones) must have a keypad (whether a hardware or touch screen keypad), as
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`well as a display screen, a speaker, and a microphone to enable the user to make telephone calls,
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`send emails or text messages, etc. These are facts that cannot be rationally disputed, and indeed,
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`Arnouse does not allege otherwise.
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`This Court should take judicial notice of the fact that the smartphones at issue here have
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`input and output means such as a screen, keyboard, speaker, and microphone. The Court may
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`consider in context of this motion to dismiss “matters of which judicial notice may be taken.”
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`Leonard T. v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (citing Allen v.
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`WestPoint-Pepperill, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). A court may take judicial notice of a
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`fact that is “(1) generally known within the territorial jurisdiction of the trial court or (2) capable
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`of accurate and ready determination by resort to sources whose accuracy cannot reasonably be
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`questioned.” FED. R. EVID. 201(b). For instance, courts can take judicial notice of well known
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`facts that are available in works found in every library. See Eden Toys, Inc. v. Marshall Field &
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`Co., 675 F.2d 498, 500, n.1 (Fed. Cir. 1982) (finding that “[t]he traditional features of a
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`snowman are known generally and thus appropriate for judicial notice.”); see also Werk v.
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`Parker, 249 U.S. 130, 132-33 (1919). Accordingly, Motorola Mobility requests that the Court
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`take judicial notice that the smartphones include input and output means, such as a screen,
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`keyboard (touchscreen or otherwise), a speaker, and a microphone.
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`Dinse,
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`Knapp & McAndrew, P.C.
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`209 Battery Street
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`P.O. Box 988
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`Burlington, VT
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`05402-0988
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`(802) 864-5751
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`C. Motorola Mobility Cannot Infringe Any Claim of the ’484 Patent.
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`Because there can be no rational or plausible allegation that the smartphones lack input
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`and output means, the smartphones cannot infringe any of independent claims 1, 8, or 15. ACCO
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`Brands, Inc. v. Micro Sec. Devices, Inc., 346 F.3d 1075, 1080 (Fed. Cir. 2003) (citation omitted)
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`{B0791973.1 13925-0001}5
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`Petitioner Motorola Mobility LLC - Exhibit 1008 - Page 5
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`Case 5:11-cv-00155-cr Document 8 Filed 12/02/11 Page 6 of 9
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`(Infringing a patent claim “requires that every element of the invention as claimed is present in
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`the accused device.”); see also Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575
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`(Fed. Cir. 1995). Moreover, because the smartphones do not infringe any of the ‟484 patent‟s
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`independent claims, they also do not infringe its dependent claims. See Teledyne McCormick
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`Selph, 558 F.2d at 1004. Accordingly, Motorola Mobility cannot infringe any claim of the ‟484
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`patent.
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`D.
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`All Limitations of Independent Claims 1 and 8 Are Substantive.
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`Arnouse may argue that the input and output means limitations discussed above should
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`not be considered because, at least for claims 1 and 8 (but not claim 15), these limitations are in
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`the preamble, rather than the body of the claim. However, if a limitation is added to the
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`preamble of a claim during prosecution of the patent application before the Patent and
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`Trademark Office (“PTO”) to convince the PTO examiner that the patent application is different
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`from the prior art, then the preamble is a substantive limitation of the claim. See, e.g., In re
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`Cruciferous Sprout Litig., 301 F.3d 1343 (Fed. Cir. 2002); Catalina Mktg. Int’l v.
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`Coolsavings.com, Inc., 289 F.3d 802, 808 (Fed. Cir. 2002); Briston-Myers Squibb Co. v. Ben
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`Venue Labs., Inc., 246 F.3d 1368, 1375 (Fed. Cir. 2001).
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`Here, Arnouse limited the ‟484 patent‟s claims to portable computers that lack input and
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`output means, and it did so because otherwise the PTO would have rejected the patent
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`application as invalid in view of prior art. Specifically, Arnouse amended claim 1 during
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`prosecution before the PTO to recite “a portable computer without input and output means for
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`interacting directly therewith . . . .” Response to Office Action mailed January 13, 2009, p. 9
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`(Ex. A.).2 It made this amendment after the PTO Examiner rejected the then-pending claims
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`2 It is well-settled that records and reports from government agencies are the proper subject of judicial notice. See
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`{B0791973.1 13925-0001}6
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`Dinse,
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`Knapp & McAndrew, P.C.
`
`209 Battery Street
`
`P.O. Box 988
`
`Burlington, VT
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`05402-0988
`
`(802) 864-5751
`
`Petitioner Motorola Mobility LLC - Exhibit 1008 - Page 6
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`Case 5:11-cv-00155-cr Document 8 Filed 12/02/11 Page 7 of 9
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`because of prior art U.S. Patent No. 5,264,992 to Hogdahl et al. Id. Specifically, in an effort to
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`convince the PTO Examiner that its patent application was different from the Hogdahl patent,
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`Arnouse argued that in its invention “the portable computer needs the reader for the user to
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`interact with the computer.” Id.3 Thus, the limitations recited in the preamble of claims 1 and 8
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`are substantive elements of the patent claim, and Arnouse cannot ignore them by arguing
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`otherwise.
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`CONCLUSION
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`The Amended Complaint cannot plausibly allege that the Motorola Mobility smartphones
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`accused of infringement do not include input and output means and, as such, cannot plausibly
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`allege that the Motorola Mobility smartphones are the “portable computers” that independent
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`claims 1, 8, and 15 of the ‟484 patent cover. Thus, Arnouse fails to allege sufficient facts to state
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`a claim for relief which is “plausible on its face,” Iqbal, 129 S. Ct. at 1949 (quoting Twombly,
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`550 U.S. at 570), and accordingly, Motorola Mobility‟s Motion to Dismiss should be granted and
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`this matter dismissed with prejudice.
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`e.g., Barron v. Reich, 13 F. 3d 1370, 1377 (9th Cir. 1994) (judicial notice may be taken of “[r]ecords and reports of
`administrative bodies”); Interstate Natural Gas Co. v. Southern California Gas Co., 209 F. 2d 380, 385 (9th Cir.
`1953) (“We may take judicial notice of records and reports of administrative bodies.”). Courts across the country
`routinely take judicial notice of records from the United States Patent & Trademark Office (“PTO”) including
`prosecution and reexamination histories. See e.g., Kristar Enters., Inc. v. Revel Envtl. Mktg., Inc., No. 98-3094, 1999
`WL 66135, at *3 (N.D. Cal., Feb. 9, 1999) (citing to judicially noticed prosecution history of a patent); Viskase
`Corp. v. Am. Nat. Can Co., 261 F. 3d 1316, 1327, 1328 n. 2 (Fed. Cir. 2001) (taking judicial notice of PTO
`reexamination proceedings and outcomes); Standard Havens Prods., Inc. v. Gencor Indus., Inc., 897 F.2d 511, 514
`n. 3 (Fed. Cir. 1990) (taking judicial notice of a PTO Office Action because it was part of the public record).
`3 With regard to claim 8, “[w]here the body of the claim refers again to a preamble term, any necessarily limiting
`language in the preamble will have the effect of a limitation.” Synventive Molding Solutions, Inc. v. Huscky
`Injection Molding Sys., No. 2:08-CV-136, at 7 n. 1 (D. Vt. June 27, 2008), ECF No. (Opinion and Order: Claim
`Construction) 283 (citing Bell Commc'ns Research, Inc. v. Vitalink Commc'ns Corp., 55 F.3d 615, 621 (Fed. Cir.
`1995)).
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`Dinse,
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`Knapp & McAndrew, P.C.
`
`209 Battery Street
`
`P.O. Box 988
`
`Burlington, VT
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`05402-0988
`
`(802) 864-5751
`
`{B0791973.1 13925-0001}7
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`Petitioner Motorola Mobility LLC - Exhibit 1008 - Page 7
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`

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`Case 5:11-cv-00155-cr Document 8 Filed 12/02/11 Page 8 of 9
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`Dated: at Burlington, Vermont, this 2nd day of December 2011.
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`DINSE, KNAPP & McANDREW, P.C.
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`/s/ Samuel Hoar, Jr.
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`Samuel Hoar, Jr., Esq.
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`KILPATRICK TOWNSEND & STOCKTON LLP
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`Steven D. Moore (pro hac vice pending)
`Matias Ferrario (pro hac vice pending)
`Michael Morlock (pro hac vice pending)
`Brian Foster (pro hac vice pending)
`
`1001 West Fourth Street
`Winston-Salem, NC 27101-2400
`Telephone: (336) 607-7431
`Facsimile: (336) 607-7500
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`smoore@kilpatricktownsend.com
`mferrario@kilpatricktownsend.com
`mmorlock@kilpatricktownsend.com
`bfoster@kilpatricktownsend.com
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`
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`Attorneys for Defendant Motorola Mobility, Inc.
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`Dinse,
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`Knapp & McAndrew, P.C.
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`209 Battery Street
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`P.O. Box 988
`
`Burlington, VT
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`05402-0988
`
`(802) 864-5751
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`{B0791973.1 13925-0001}8
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`Petitioner Motorola Mobility LLC - Exhibit 1008 - Page 8
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`Case 5:11-cv-00155-cr Document 8 Filed 12/02/11 Page 9 of 9
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`CERTIFICATE OF SERVICE
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`I, Samuel Hoar, Jr., Esq., certify that on December 2, 2011, I electronically filed the
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`foregoing document with the Clerk of Court using the CM/ECF system. The CM/ECF system
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`will provide service of such filing via Notice of Electronic Filing (NEF) to the following NEF
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`parties:
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`R. Bradford Fawley, Esq.
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`Lawrence H. Meier, Esq.
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`A copy of the foregoing has also been served upon the following parties by mailing a
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`copy thereof via U.S. first class, postage prepaid mail, to counsel of record at:
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`None
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`DINSE, KNAPP & McANDREW, P.C.
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`/s/ Samuel Hoar, Jr.
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`Samuel Hoar, Jr., Esq.
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`Dinse,
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`Knapp & McAndrew, P.C.
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`209 Battery Street
`
`P.O. Box 988
`
`Burlington, VT
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`05402-0988
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`(802) 864-5751
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`{B0791973.1 13925-0001}9
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`Petitioner Motorola Mobility LLC - Exhibit 1008 - Page 9
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`