Case 2:13-cv-01059-JRG-RSP Document 47 Filed 02/28/14 Page 1 of 4 PageID #: 772
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`SOLOCRON MEDIA, LLC,
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`Plaintiff,
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`v.
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`INC.,
`COMMUNICATIONS
`VERIZON
`CELLCO PARTNERSHIP d.b.a. VERIZON
`WIRELESS, AT&T, INC., AT&T MOBILITY
`LLC, SPRINT CORPORATION, SPRINT
`COMMUNICATIONS
`COMPANY
`L.P.,
`SPRINT SOLUTIONS INC., and T-MOBILE
`USA, INC.,
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`Civil Action No.: 2:13-cv-1059-JRG
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`JURY TRIAL DEMANDED
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Defendants.
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`AT&T’S MOTION TO DISMISS PLAINTIFF’S WILLFUL INFRINGEMENT
`CLAIMS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)
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`Defendants AT&T Inc. and AT&T Mobility LLC (collectively, “AT&T”) seek a targeted
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`dismissal of Solocron Media, LLC’s (“Solocron”) willful infringement claims. Time and again –
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`under nearly identical circumstances – this Court has dismissed threadbare allegations for willful
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`infringement where the Complaint contains no facts showing that a defendant had pre-suit
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`knowledge of the asserted patents. This is precisely the case here, given that AT&T was not
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`provided notice of the asserted patents prior to the initiation of this lawsuit and because the
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`Complaint does not plead even one fact indicating that AT&T had knowledge of the asserted
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`patents at the time the Complaint was filed.
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`I. The Court Should Dismiss Solocron’s Allegations of Willful Infringement Against
`AT&T
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`To state a valid claim for willful infringement, Solocron must demonstrate (1) that there
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`was an objectively high likelihood that the defendant’s activities constituted infringement of a
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`McKool 969385v2
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`Page 2055-001
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`Solocron Ex. 2055 - Verizon Wireless, AT&T Mobility - IPR2015-00390
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`Case 2:13-cv-01059-JRG-RSP Document 47 Filed 02/28/14 Page 2 of 4 PageID #: 773
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`valid patent, and (2) either that the defendant subjectively knew of the risk of infringement or
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`that the risk of infringement was so obvious, the defendant should have known the risk. In re
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`Seagate Tech., LLC, 497 F.3d 1360, 1371 (Fed. Cir. 2007) (en banc); see also Bard Peripheral
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`Vascular, Inc. v. W.L. Gore & Assoc., Inc., 682 F.3d 1003 (Fed. Cir. 2012). A finding of
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`willfulness “must necessarily be grounded exclusively in the accused infringer’s pre-filing
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`conduct.” Seagate, 497 F.3d at 1371 (emphasis added). Therefore, “when a complaint is filed, a
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`patentee must have a good faith basis for alleging willful infringement.” Id. at 1374.1
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`Applying Seagate, this Court has consistently held that without sufficient allegations of
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`pre-suit notice, the filing of an infringement suit alone is insufficient to give rise to a plausible
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`willful infringement claim. InMotion Imagery Tech. v. Brain Damage Films, No. 2:11-cv-414-
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`JRG, 2012 U.S. Dist. LEXIS 112630, *8 (E.D. Tex. Aug. 10, 2012) (granting motion to dismiss
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`willful infringement claim where plaintiff merely alleged that the defendant had actual notice of
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`the patent-in-suit “at least as of the time of the filing of this lawsuit”); Achates Reference Pub.,
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`Inc. v. Symantec Corp., No. 2:11-cv-294-JRG-RSP, 2013 U.S. Dist. LEXIS 27143, *12 (E.D.
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`Tex. Jan. 2013), report and recommendation adopted, 2013 U.S. Dist. LEXIS 26160 (E.D. Tex.
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`Feb. 26, 2013) (dismissing willful infringement claim as patentee’s barebones assertion that the
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`accused infringer willfully committed infringing acts was not sufficient); Blue Spike, LLC v.
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`Texas Instruments, Inc., 6:12-cv-499-MHS, Dkt. No. 1006 (E.D. Tex. Sept. 27, 2013) (holding
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`1 To survive a motion to dismiss under Rule 12(b)(6), a complaint “must contain sufficient factual matter, accepted
`as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
`Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff
`pleads factual content that allows the court to draft the reasonable inference that the defendant is liable for the
`misconduct alleged.” Id. The plaintiff must set forth enough in the complaint to “nudge[] [his] claims across the
`line for conceivable to plausible,” Twombly, 550 U.S. at 570, and if the “complaint pleads facts that are ‘merely
`consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement
`to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). To avoid dismissal for failure to state a
`claim, a plaintiff “must plead specific facts, not mere conclusory allegations.” Guidry v. Bank of LaPlace, 954 F.2d
`278, 281 (5th Cir. 1994) (citation omitted).
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`2
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`McKool 969385v2
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`Page 2055-002
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`Case 2:13-cv-01059-JRG-RSP Document 47 Filed 02/28/14 Page 3 of 4 PageID #: 774
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`that”[a]bsent additional allegations, the filing of an infringement suit alone is insufficient to give
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`rise to a post-filing willful infringement claim”).2
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`Solocron alleges that “AT&T has willfully infringed … the [asserted patents] … despite
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`being on notice that its actions constitute infringement at least as of the date of service of
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`Solocron’s original Complaint.” See Dkt. No. 20 (Amended Compl.) at ¶¶ 119, 127, 135, 143,
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`151, 159, 167. Notably, however, the Complaint does not allege any facts indicating that AT&T
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`had knowledge of the asserted patents prior to the filing of the Complaint. As shown in each of
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`the cases above, this is plainly insufficient. Accordingly, AT&T respectfully requests that the
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`Court dismiss Solocron’s willful infringement claims with regard to each of the asserted patents.
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`2 Courts in other districts have arrived at the same result. See, e.g., Netgear Inc. v. Ruckus Wireless Inc., No. 10-
`999-SLR, 2013 U.S. Dist. LEXIS 35686, *4-5 (D. Del. Mar. 14, 2013) (dismissing willful infringement claim since
`the patentee could not plead any pre-suit knowledge of the patent by the accused infringer); Pacing Tech, LLC v.
`Garmin Intern., Inc., No. 12-cv-1067 BEN (WMC), 2013 U.S. Dist. LEXIS 15728, *11-12 (S.D. Cal. Feb. 5, 2013)
`(dismissing willful infringement claim because patentee failed to plead adequate facts to show pre-suit knowledge of
`the patent and had not moved for a preliminary injunction to stop any post suit conduct); Radware, Ltd. v. A10
`Networks, Inc., No. C-13-02021-RMW, 2013 U.S. Dist. LEXIS 136942, *22 (N.D. Cal. Sept. 24, 2013) (granting
`motion to dismiss willful infringement claim where patentee failed to plead facts showing pre-suit knowledge of the
`patent).
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`3
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`McKool 969385v2
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`Page 2055-003
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`Case 2:13-cv-01059-JRG-RSP Document 47 Filed 02/28/14 Page 4 of 4 PageID #: 775
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`Dated: February 28, 2014
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`Respectfully submitted,
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`/s/ Theodore Stevenson, III
`Theodore Stevenson, III
`Lead Attorney
`Texas State Bar No. 19196650
`tstevenson@mckoolsmith.com
`Scott W. Hejny
`Texas State Bar No. 24038952
`shejny@mckoolsmith.com
`Nicholas Mathews
`Texas State Bar No. 24085457
`nmathews@mckoolsmith.com
`MCKOOL SMITH, P.C.
`300 Crescent Court, Suite 1500
`Dallas, Texas 75201
`Telephone: (214) 978-4000
`Telecopier: (214) 978-4044
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`ATTORNEYS FOR DEFENDANTS AT&T
`INC. AND AT&T MOBILITY LLC
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing document was filed electronically in
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`compliance with Local Rule CV-5(a) on February 28, 2014. As such, this document was served
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`on all counsel who are deemed to have consented to electronic service. Local Rule CV-
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`5(a)(3)(A).
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` /s/ Nicholas Mathews
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`Nicholas M. Mathews
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`McKool 969385v2
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`4
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`Page 2055-004
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`Case 2:13-cv-01059-JRG-RSP Document 47-1 Filed 02/28/14 Page 1 of 1 PageID #: 776
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`SOLOCRON MEDIA, LLC,
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`Plaintiff,
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`
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`Civil Action No.: 2:13-cv-1059-JRG
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`JURY TRIAL DEMANDED
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`§
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`v.
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`VERIZON COMMUNICATIONS INC.,
`CELLCO PARTNERSHIP d.b.a. VERIZON
`WIRELESS, AT&T, INC., AT&T MOBILITY
`LLC, SPRINT CORPORATION, SPRINT
`COMMUNICATIONS COMPANY L.P.,
`SPRINT SOLUTIONS INC., and T-MOBILE
`USA, INC.,
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`Defendants.
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`ORDER
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`Before the Court is Defendants AT&T Inc.’s and AT&T Mobility LLC’s (collectively,
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`“AT&T”) Motion to Dismiss Plaintiff’s Willful Infringement Claims. After consideration of
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`same, the Court is of the opinion that is should be GRANTED.
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`IT IS THEREFORE ORDERED that AT&T’s Motion to Dismiss Plaintiff’s Willful
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`Infringement Claims be GRANTED in its entirety.
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`IT IS SO ORDERED
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`Page 2055-005
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