Case 5:11-cv-00155-cr Document 12
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`Filed 01/31/12 Page 1 of6
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`IN THE UNITED STATES DISTRICT COURT
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`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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`Civil Action No.: 5:1 1-cv-155-cr
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`Motorola Mobility, Inc.
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`Defendant.
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`DEFENDANT MOTOROLA MOBILITY INC.’S
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`REPLY IN SUPPORT OF ITS MOTION TO DISMISS
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`I.
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`INTRODUCTION
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`Arnouse does not dispute the two central points of Motorola Mobility’s Motion to
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`Dismiss — that: (1) Amouse’s US. Patent No. 7,516,484 (“the ’484 patent”) requires a “portable
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`computer” that
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`lacks input or output means, and (2) the Motorola Mobility smartphones
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`Arnouse’s Amended Complaint alleges to be this “portable computer” have input and output
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`means.
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`In its opposition, Arnouse advances only speculative theories not found anywhere in its
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`Amended Complaint. These unpleaded theories do not — and cannot, even if they were allowed
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`to be pleaded — overcome the fatal deficiencies in Arnouse’s claim of infringement in view of its
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`admission of the two points above. Accordingly, Arnouse has failed to establish that its
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`Amended Complaint states “‘a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
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`129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 US. 544, 570
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`(2007)). Amouse’s Amended Complaint thus should be dismissed with prejudice.
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`{30823243.1 13925-0001}
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`Petitioner Motorola Mobility LLC - Exhibit 1010 - Page 1
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`Dinse,
`Knapp & McAndrew, RC.
`209 Battery Street
`R0. Box 988
`Burlington, VT
`05402-0988
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`(802) 864-5751
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`Petitioner Motorola Mobility LLC - Exhibit 1010 - Page 1
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`

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`Case 5:11-cv-00155-cr Document 12
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`Filed 01/31/12 Page 2 of 6
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`II.
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`ARGUMENT
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`Arnouse admits, as it must, that the independent claims of the ’484 patent require that the
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`“reader” at issue operate with a “portable computer” that lacks input and output means.
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`(DE.
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`11, at 2.) Further, Arnouse concedes the accused Motorola Mobility smartphones (the alleged
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`“portable computers”) have numerous input and output means “such as .
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`.
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`. speakers, buttons,
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`microphones, and screens.” (DE. 11, at 3, 6 (“Arnouse Digital does not dispute that Motorola’s
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`smartphones include input and output means when not connected to a Lapdock.”)). For this
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`reason alone, none of the accused smartphones and lapdocks (the alleged “readers”) can infringe
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`any independent claim of the ’484 patent.
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`In an effort to prevent dismissal, or at least delay it by contending that there is a need for
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`claim construction and factual development, Arnouse’s Opposition advances two unsupported
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`theories of infringement found nowhere in Arnouse’s Amended Complaint. First, Arnouse
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`contends that the smartphones “no longer ha[ve] input or output means” when connected to the
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`lapdock.
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`(Id. at 6). However, this argument is nonsensical — Arnouse does not allege that, when
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`docked to the lapdock, the smartphones no longer have their “speakers, buttons, microphones,
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`and screens.” And the claims of the ’484 patent could hardly be clearer that the “portable
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`computer” must lack input or output means altogether, not merely that the input or output means
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`are not used when the portable computer is connected to the reader.
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`(’484 patent, claim 1
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`(“portable computer without input or output means”), claims 8, 15 (“portable computer .
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`.
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`.
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`excludes means for a user to interact”))
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`(emphasis added). Thus, Arnouse’s first newly
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`enunciated theory is no more plausible than the allegations that do appear in the Amended
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`Complaint. 1
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`1 While not relevant to this motion, Arnouse’s theory that the “speakers, buttons, microphones, and screens” are not
`used when the smartphones are docked is simply not correct in any event.
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`{B0823243.1 13925-0001}
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`2
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`Petitioner Motorola Mobility LLC - Exhibit 1010 - Page 2
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`Dinse,
`Knapp & McAndrew, RC.
`209 Battery Street
`PO. Box 988
`Burlington, VT
`05402-0988
`(802) 864-5751
`
`Petitioner Motorola Mobility LLC - Exhibit 1010 - Page 2
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`

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`Case 5:11-cv-00155-cr Document 12
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`Filed 01/31/12 Page 3 of 6
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`Second, Arnouse argues that the Motorola Mobility smartphones infringe the ’484 patent
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`if one were to physically modify them to disable the touch-screen, because then they would not
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`have input or output means (even though, as Amouse admits, the smartphones would still have
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`“speakers, buttons, and microphones” under these circumstances).
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`(DE. 11, at 3.) This
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`argument, also not articulated in Arnouse’s Amended Complaint,
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`likewise fails to “nudge
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`[Arnouse’s] claims .
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`.
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`. across the line from conceivable to plausible.” Iqbal, 129 S. Ct. at 1949
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`(quoting Twombly, 550 US. at 570). Even if merely disabling the screen would bring the
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`smartphones within the scope of the patent’s claims, the Federal Circuit has held that “a device
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`does not infringe simply because it is possible to alter it in a way that would satisfy all the
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`limitations of a patent claim.” High Tech Medical Instrumentation,
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`Inc. v. New Image
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`Industries, Inc., 49 F.3d 1551, 1556 (Fed. Cir. 1995) (reversing district court’s finding of
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`likelihood of proving infringement where plaintiff argued that a device that did not infringe, as
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`sold, could be modified to infringe by removing certain screws). Thus — even putting aside the
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`common-sense notion that nobody would ever disable their smartphone screen because it could
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`no longer place or receive calls or perform other functions — Amouse’s newly articulated
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`disablement theory does not state a plausible claim for relief, either.
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`None of Amouse’s other arguments, which also are not pleaded in its Amended
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`Complaint, fares any better. Amouse argues that the smartphones run some dormant operating
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`system software or, in the alternative, that the lapdocks could work with unknown, hypothetical
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`devices that lack input or output means.
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`(DE. 11, at 4.) But there are no factual allegations in
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`the Amended Complaint to support these theories, nor do they overcome Arnouse’s fatal
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`admission that the smartphones have input and output means. Conjecture and unsupported
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`attorney argument cannot support an allegation of infringement. Zelinski et al. v. Brunswick
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`{B0823243.1 13925-0001}
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`3
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`Petitioner Motorola Mobility LLC - Exhibit 1010 - Page 3
`
`Dinse,
`Knapp & McAndrew, RC.
`209 Battery Street
`PO. Box 988
`Burlington, VT
`05402-0988
`(802) 864-5751
`
`Petitioner Motorola Mobility LLC - Exhibit 1010 - Page 3
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`

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`Case 5:11-cv-00155-cr Document 12
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`Filed 01/31/12 Page 4 of 6
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`Corp, 1998 WL 25175 (ND.
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`111. 1998) (finding in the summary judgment context that a
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`hypothetical device is “irrelevant” to a determination of infringement). Moreover, Arnouse’s
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`attempt to rely on matters outside the pleadings to create factual issues is improper and ignores
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`the fact that Amouse has not pleaded a plausible claim for relief.
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`Lastly, this Court should not allow Amouse to amend its complaint further to articulate
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`its newly advocated theories because such an amendment would be futile. As discussed, no
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`amount of hypothetical modifications or adjustments to the accused devices can change
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`Arnouse’s admission that the accused smartphones have input and output means, which the ’484
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`patent simply does not cover. Accordingly, any attempt by Amouse to amend its pleading to
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`include facts to support these new infringement theories would be futile.
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`III. CONCLUSION
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`Amouse fails to allege sufficient facts to state a claim for relief which is “plausible on its
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`face.” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 US. at 570). Accordingly, the Court
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`should grant Defendant’s Motion to Dismiss and dismiss this matter with prejudice.
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`[Remainder of Page Intentionally Left Blank]
`
`Dinse,
`Knapp & McAndrew, RC.
`209 Battery Street
`PO. Box 988
`Burlington, VT
`05402-0988
`(802) 864-5751
`
`{B0823243.1 13925-0001}
`
`4
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`Petitioner Motorola Mobility LLC - Exhibit 1010 - Page 4
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`Petitioner Motorola Mobility LLC - Exhibit 1010 - Page 4
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`Case 5:11-cv-00155-cr Document 12
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`Filed 01/31/12 Page 5 of 6
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`Dated at Burlington, Vermont, this 31St day of January 2012.
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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)
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`1001 West Fourth Street
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`Winston-Salem, NC 27101-2400
`Telephone: (336) 607-7431
`Facsimile: (336) 607-7500
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`smoore@kilpatricktownsend.corn
`mferrario@kilpatricktownsend.com
`mmorlock@kilpatricktownsend.com
`bfoster@ki1patricktownsend. com
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`Attorneysfor Defendant Motorola Mobility, Inc.
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`Dinse,
`Knapp & McAndrew, RC.
`209 Battery Street
`PO Box 988
`Burlington, VT
`05402-0988
`(802) 864-5751
`
`{B0823243.1 13925-0001}
`
`5
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`Petitioner Motorola Mobility LLC - Exhibit 1010 - Page 5
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`Petitioner Motorola Mobility LLC - Exhibit 1010 - Page 5
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`Case 5:11-cv-00155-cr Document 12
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`Filed 01/31/12 Page 6 of 6
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`CERTIFICATE OF SERVICE
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`1, Samuel Hoar, Jr., Esq., certify that on January 31, 2012, 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 US. 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,
`Knapp & McAndrew, RC.
`209 Battery Street
`PO Box 988
`Burlington, VT
`05402-0988
`(802) 864-5751
`
`{B0823243.1 13925-0001}
`
`6
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`Petitioner Motorola Mobility LLC - Exhibit 1010 - Page 6
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`Petitioner Motorola Mobility LLC - Exhibit 1010 - Page 6
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