Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 1 of 25. PageID #: 548
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF OHIO
`EASTERN DIVISION
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`FOURKITES, INC.,
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`Plaintiff,
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`v.
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`MACROPOINT, LLC,
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`Defendant.
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`CASE NO. 1:16:-cv-02703-CAB
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`JUDGE: CHRISTOPHER A. BOYKO
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`REPLY IN SUPPORT OF DEFENDANT MACROPOINT LLC’S
`MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO STAY
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`
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1026
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`

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`Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 2 of 25. PageID #: 549
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`TABLE OF CONTENTS
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`I. INTRODUCTION ...................................................................................................................... ii
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`II. ARGUMENT ............................................................................................................................ 3
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`A. FourKites Fails To Plead Declaratory Judgment Jurisdiction .............................................. 3
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`1. Jurisdiction Should Not Be Presumed Based On Prior Litigation Involving Different
`Patents. .............................................................................................................................. 5
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`2. Jurisdiction Should Not Be Presumed Based On Allegations Against Ruiz Foods. ......... 6
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`3. FourKites’ Allegations Based “On Information And Belief” Do Not Support
`Jurisdiction. ..................................................................................................................... 10
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`B. FourKites Fails To Plead Claims Under The Lanham Act ................................................. 11
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`C. FourKites Fails To Plead A Claim For Deceptive Trade Practices..................................... 16
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`D. FourKites Fails To Plead A Claim For Tortious Interference ............................................ 16
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`E. If Not Dismissed, This Case Should Be Stayed Under The First-To-File Rule .................. 17
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`F. The Customer-Suit Exception Does Not Apply .................................................................. 19
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`III. CONCLUSION ...................................................................................................................... 20
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`
`i
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1026
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`

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`Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 3 of 25. PageID #: 550
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`TABLE OF AUTHORITIES
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`
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`Page(s)
`
`Cases
`
`16630 Southfield Limited Partnership v. Flagstar Bank,
`727 F.3d 502 (6th Cir. 2013) .............................................................................................11, 14
`
`Arris Group, Inc. v. British Telecommunications PLC,
`639 F.3d 1368 (Fed. Cir. 2011)..........................................................................................3, 7, 8
`
`Bell Atlantic Corp. v. Twombly,
`550 U.S. 550 U.S. 544 (2007) ..................................................................................................11
`
`In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation,
`756 F.3d 917 (6th Cir. 2014) ...................................................................................................11
`
`Electronics for Imaging, Inc. v. Coyle,
`394 F.3d 1341 (Fed. Cir. 2005)................................................................................................17
`
`Enzo Biochem, Inc. v. Calgene, Inc.,
`188 F.3d 1362 (Fed. Cir. 1999)..................................................................................................4
`
`Globetrotter Software, Inc. v. Elan Computer Group, Inc.,
`362 F.3d 1367 (Fed. Cir. 2004)................................................................................................12
`
`Hunter Douglas, Inc. v. Harmonic Design, Inc.,
`153 F.3d 1318 (Fed. Cir. 1998)................................................................................................12
`
`Intel Corp. v. Future Link Sys., LLC,
`2015 U.S. Dist. LEXIS 17176 (D. Del. Feb. 12, 2015) .....................................................3, 6, 9
`
`Microsoft Corp. v. DataTern, Inc.,
`755 F.3d 899 (Fed. Cir. 2014)................................................................................................6, 8
`
`Prasco, LLC v. Medicis Pharm. Corp.,
`537 F.3d 1329 (Fed. Cir. 2008)..................................................................................................3
`
`Streck, Inc. v. Research & Diagnostic Sys.,
`665 F.3d 1269 (Fed. Cir. 2012)..............................................................................................4, 5
`
`Zenith Elecs. Corp. v. Exzec, Inc.,
`182 F.3d 1340 (Fed. Cir. 1999)..........................................................................................12, 17
`
`
`
`ii
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1026
`
`

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`Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 4 of 25. PageID #: 551
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`
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`Statutes
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`35 U.S.C. §101 .......................................................................................................................1, 2, 17
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`35 U.S.C. §271(c) ............................................................................................................................8
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`Lanham Act, 15 U.S.C. § 43(a) .........................................................................................11, 12, 15
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`Ohio’s Deceptive Trade Practices Act ................................................................................... passim
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`
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`
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`iii
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1026
`
`

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`Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 5 of 25. PageID #: 552
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`I. INTRODUCTION
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`FourKites, Inc.’s (“FourKites”) response to MacroPoint LLC’s (“MacroPoint”) Motion to
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`Dismiss or, in the Alternative, to Stay (“Motion to Dismiss”) [Doc# 13] is telling for what it
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`lacks. Rather than address the substance of MacroPoint’s legally appropriate actions, FourKites
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`repeatedly speculates about what it believes may have been the real purpose behind those
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`actions, while ignoring what really happened. In the Complaint, and now in its response to the
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`Motion to Dismiss, FourKites spends most of its effort attempting to impugn MacroPoint’s
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`motives rather than justifying its own case. Therein lies the problem and the reason why
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`FourKites has failed to sufficiently plead its claims.
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`What FourKites characterizes as “gamesmanship” and a “campaign against FourKites” is,
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`in realty, a good faith effort by MacroPoint to first obtain valid patents and then enforce those
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`patents against direct infringers wherever they may be found. Tellingly, FourKites’ lengthy
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`recitation of MacroPoint’s enforcement efforts does not include even one sentence that attempts
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`to explain how it is that FourKites did not infringe the patents of the ‘943 patent family (U.S.
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`Patent No. 8,604,943) previously asserted against it, or how FourKites’ customer, Ruiz Food
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`Products, Inc. (“Ruiz”), does not infringe U.S. Patent No. 9,429,659 (the “‘659 Patent”) or U.S.
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`Patent No. 8,275,358 (the “‘358 Patent”) now. The entire premise of FourKites’ Complaint
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`appears to be its unsupported belief that all of MacroPoint’s patents are invalid and that
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`MacroPoint should know it. Protestations devoid of real basis, however, are no grounds to take
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`up this Court’s time.
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`It is true that a court in this District invalidated one portion of MacroPoint’s patent
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`portfolio under 35 U.S.C. §101. It is likewise true, however, that those patents were issued by
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`the United States Patent and Trademark Office (“USPTO”) under the then existing §101 standard
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`and that the law regarding what constitutes patentable subject matter under §101 is evolving day
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1026
`
`

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`Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 6 of 25. PageID #: 553
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`by day. It is neither fair nor legally sound to suggest that MacroPoint’s prior attempt to enforce
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`its patents against FourKites was improper, even though those prior patents were eventually held
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`invalid under developing law.
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`In this case, FourKites’ allegations of bad faith are even more unfounded because the
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`USPTO issued another patent to MacroPoint, even in light of and after considering the
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`invalidation of other MacroPoint patents under §101. Specifically, FourKites admits that it
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`supplied the USPTO with a copy of Judge Gaughan’s opinion invalidating the ‘943 patent family
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`and that MacroPoint’s ‘659 Patent nevertheless issued after consideration of that opinion.
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`Consequently, it is difficult to understand, as FourKites apparently does and even more difficult
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`to fathom how any of MacroPoint’s measures to protect its patented technology from
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`infringement could be considered actionable.
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`Given that the USPTO specifically considered the patentability of the ‘659 Patent under
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`§101, given that FourKites does not provide any explanation as to why Ruiz does not infringe the
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`‘659 or ‘358 Patents, and given that FourKites does not provide any explanation as to why
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`FourKites, rather than Ruiz, is the more appropriate party to sue for infringement of the ‘659 and
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`‘358 Patents, FourKites’ accusations of improper enforcement efforts by MacroPoint should be
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`seen for what they are – a distraction from the merits of the Motion to Dismiss.
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`Moreover, FourKites does nothing to demonstrate that this action should be allowed to
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`proceed in light of the pending action in the United States District Court for the Eastern District
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`of Texas involving the very same patents made of issue in this case. First, FourKites’ business
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`tort claims are baseless and closely tied to the patent claims. Second, because the patent issues
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`in both cases are so similar, it would be a waste of this Court’s resources for the cases to proceed
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`in parallel with a risk of inconsistent results.
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`2
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1026
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`

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`Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 7 of 25. PageID #: 554
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`II. ARGUMENT
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`A.
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`FourKites Fails To Plead Declaratory Judgment Jurisdiction
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`FourKites asserts claims for declaratory judgment against two patents owned by
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`MacroPoint – the ‘659 and ‘358 Patents. FourKites’ Complaint, however, provides almost no
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`discussion of these patents other than their general relationship to other MacroPoint patents.
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`MacroPoint’s Motion to Dismiss, invited FourKites to address the particular patents at issue by
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`stating, for example: “FourKites lacks standing to assert its declaratory judgment claims because
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`there is no present justiciable controversy between MacroPoint and FourKites as to the patents
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`on which those claims are based,” and “FourKites omits from its Complaint sufficient facts to
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`show that there is a case of actual controversy between it and MacroPoint with respect to the two
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`patents in suit.” [Doc# 13-1, PageID# 444, 451 (emphasis added)]. FourKites, as the plaintiff
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`invoking declaratory judgment jurisdiction, was obligated to respond by pointing out factual
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`allegations in the Complaint that are sufficient to prove a “definite and concrete” dispute
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`between the parties with respect to the ‘659 and ‘358 Patents. FourKites has failed to do so.
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`The burden is on FourKites to establish that an Article III case or controversy existed at
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`the time it filed its claims for declaratory judgment. Arris Group, Inc. v. British
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`Telecommunications PLC, 639 F.3d 1368, 1373 (Fed. Cir. 2011). “For there to be a case or
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`controversy under Article III, the dispute must be definite and concrete.” Prasco, LLC v.
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`Medicis Pharm. Corp., 537 F.3d 1329, 1335 (Fed. Cir. 2008) (emphasis added). A case or
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`controversy does not automatically exist with respect to one patent simply because a case or
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`controversy exists with respect to a related patent. See, e.g., Intel Corp. v. Future Link Sys.,
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`LLC, 2015 U.S. Dist. LEXIS 17176 (D. Del. Feb. 12, 2015) (finding declaratory judgment
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`jurisdiction for only one of nine patents). Nor does a case or controversy necessarily exist for
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`one claim of a patent just because a case or controversy exists for another claim of the very same
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`3
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1026
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`

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`Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 8 of 25. PageID #: 555
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`patent. Id. at *21-25 (finding declaratory judgment jurisdiction for the apparatus claims, but not
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`the method claims of the patent). “It is well-established that, in patent cases, the existence of a
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`case or controversy must be evaluated on a claim-by-claim basis.” Streck, Inc. v. Research &
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`Diagnostic Sys., 665 F.3d 1269, 1281 (Fed. Cir. 2012) (internal quotations omitted).
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`Furthermore, “a party may not avoid its burden of proof by making a blanket statement that its
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`proofs with respect to one patent apply to another and not provide a formal analysis as to why
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`that is true.” Enzo Biochem, Inc. v. Calgene, Inc., 188 F.3d 1362, 1379 (Fed. Cir. 1999).
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`FourKites, even though pressed by MacroPoint’s Motion to Dismiss, has not provided such
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`“formal analysis” – choosing instead to continue to conflate all of MacroPoint’s patents as it did
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`in its Complaint.
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`FourKites’ response in opposition to the Motion to Dismiss is devoid of any of the details
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`that are essential for this Court to evaluate whether there is a real and immediate controversy
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`concerning infringement of any claim of the ‘659 or ‘358 Patents by FourKites. FourKites has
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`utterly failed to address: (1) the details of FourKites’ current products or services; (2) the
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`elements of any claim of the ‘659 or ‘358 Patents; and (3) how the claims of the ‘659 and ‘358
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`Patents differ from patent claims previously asserted against FourKites. Without any of these
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`details, this Court is left to speculate as to whether FourKites’ alleged apprehension of being
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`sued for infringement is real and reasonable. Reliance on such judicial speculation demonstrates
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`the fatal flaw in FourKites claim. FourKites has failed to carry its burden of proof and its claims
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`for declaratory judgment with respect to MacroPoint’s patents should be dismissed for lack of
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`subject matter jurisdiction.
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`FourKites relies on three purported bases to support the existence of a case or
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`controversy: (1) prior litigation between FourKites and MacroPoint involving other patents,
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`4
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1026
`
`

`

`Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 9 of 25. PageID #: 556
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`(2) current litigation against FourKites’ customer, Ruiz Foods, and (3) an unsupported allegation
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`that MacroPoint has publicly accused FourKites of infringement. None of these factors, alone or
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`in combination, are sufficiently pled to establish a definite and concrete dispute concerning the
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`‘659 or ‘358 Patents.
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`1.
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`Jurisdiction Should Not Be Presumed Based On Prior Litigation
`Involving Different Patents.
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`MacroPoint argues that: “Allegations Regarding Other Patents Fail to Show Standing
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`For the Current Patents.” [Doc# 13-1, PageID# 447]. This argument invited FourKites to
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`provide an explanation as to how MacroPoint’s assertion of other patents against FourKites
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`proves a present and cognizable dispute over the ‘659 or ‘358 Patents. FourKites responded with
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`a blanket statement that this case allegedly is part of an ongoing dispute between FourKites and
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`MacroPoint and “the fact that MacroPoint has previously sued FourKites on the same technology
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`further supports finding an actual controversy between the parties.” [Doc# 16, PageID# 509,
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`516]. However, FourKites fails to provide any analysis to justify this blanket statement. Instead,
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`FourKites only superficially attempts to equate the ‘659 and ‘358 Patents with previously
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`asserted patents. For example, FourKites contends in a conclusory manner that “[t]he ‘659
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`patent is not substantively different from those invalid patents,” and “[w]hile the ‘358 patent and
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`MacroPoint’s other seven patents are not formally related … they overlap and are directed to the
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`same subject matter.” [Doc# 16, PageID# 508].
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`Noticeably absent from the Complaint, and FourKites’ response, is any discussion of the
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`actual language of any of the patent claims at issue. Without this detail, the Court can only
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`speculate whether there is any merit to FourKites’ blanket statements. In recognition of the fact
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`that the claims of a patent, not its description, define the protected invention, declaratory
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`judgment jurisdiction must be evaluated claim-by-claim. Streck, 665 F.3d at 1281.
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`5
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1026
`
`

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`Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 10 of 25. PageID #: 557
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`Consequently, because FourKites has chosen not to provide any detail at the patent claim level,
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`FourKites has failed to carry its burden of proof in response to the Motion to Dismiss. Mere
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`characterization divorced from real analysis fails.
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`2.
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`Jurisdiction Should Not Be Presumed Based On Allegations
`Against Ruiz Foods.
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`FourKites does not deny that MacroPoint has never asserted the ‘659 or ‘358 Patents
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`against FourKites. Nevertheless, FourKites’ Complaint alleges that a “present controversy”
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`exists between MacroPoint and FourKites because “MacroPoint filed a lawsuit claiming that
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`FourKites’ customer, Ruiz Foods, infringes one or more of the claims of the ‘659 Patent and the
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`‘358 Patent.” [Complaint, Doc# 3, at ¶44]. The suit filed against Ruiz, however, does not justify
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`the exercise of declaratory judgment jurisdiction in this case because it is well-established that a
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`supplier of goods and services, such as FourKites, does not automatically have the right to bring
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`a declaratory judgment action solely because its customer has been sued for direct infringement.
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`Microsoft Corp. v. DataTern, Inc. 755 F.3d 899, 904 (Fed. Cir. 2014). To find declaratory
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`judgment jurisdiction for FourKites, MacroPoint’s allegations against Ruiz must also imply that
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`FourKites itself is infringing the patents here in suit. Intel Corp. v. Future Link Sys., LLC, 2015
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`U.S. Dist. LEXIS 17176 (D. Del. Feb. 12, 2015). FourKites could simply admit such
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`infringement, but tellingly does not do so here.
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`MacroPoint’s Motion to Dismiss states: “Nothing in the Complaint in this Court alleges
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`that MacroPoint’s claims in the Texas Litigation include any reference to FourKites.” [Doc# 13-
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`1, PageID# 452]. FourKites does not deny this fact. 1 FourKites was obligated in its response to
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`1 FourKites’ response falsely states that “MacroPoint filed a complaint in the Eastern District of
`Texas alleging that Ruiz Foods infringes the ‘659 and ‘358 Patents by using machines and
`methods – namely the FourKites systems – to monitor the location of freight.” [Doc# 16,
`PageID# 511 (emphasis added)]. The MacroPoint complaint against Ruiz does not name
`6
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`
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1026
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`

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`Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 11 of 25. PageID #: 558
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`explain how the allegations against Ruiz in Texas also imply infringement by FourKites. Instead,
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`FourKites only has provided conclusory statements like “MacroPoint Has In Effect Accused
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`FourKites of Infringing the ‘358 Patent and ‘659 Patent” and “MacroPoint’s suit against Ruiz
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`Foods also gives rise to a reasonable inference that MacroPoint intends to enforce the ‘358 and
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`‘659 patents against FourKites.” [Doc# 16, PageID# 511, 517]. Noticeably absent from
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`FourKites’ response are any facts concerning what FourKites products are at issue in the case
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`against Ruiz or how those products contribute to the infringing activity by Ruiz. Without this
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`detail, the Court can only speculate whether the allegations against Ruiz also constitute
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`infringement allegations against FourKites.
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`The cases cited by FourKites relating to this issue are clearly distinguishable on their
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`facts and do not support jurisdiction in this case. Although in each of those cases, the court
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`found the existence of declaratory judgment jurisdiction for the supplier of an accused direct
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`infringer, that finding was based on the existence of detailed infringement claim charts prepared
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`by the patent owner that specifically identified the use of the supplier’s product as being the basis
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`for direct infringement. By contrast, FourKites’ Complaint does not contain similar claim charts
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`or, indeed, any detailed infringement allegations. These cases can be dealt with one by one:
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`a.
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`Arris Group, Inc. v. British Telecommunications PLC,
`639 F.3d 1368 (Fed. Cir. 2011).
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`In the Arris case cited by FourKites, the Federal Circuit recognized that “where a patent
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`holder accuses customers of direct infringement based on the sale or use of a supplier’s
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`equipment, the supplier has standing to commence a declaratory judgment action if … there is a
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`controversy between the patentee and the supplier as to the supplier’s liability for induced or
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`FourKites and FourKites does not provide any citation proving otherwise. The lone citation
`provided by FourKites is to paragraph 40 of its own Complaint against MacroPoint.
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`7
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1026
`
`

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`Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 12 of 25. PageID #: 559
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`contributory infringement based on the alleged acts of direct infringement by its customers.”
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`Arris Group, 639 F.3d at 1375 (emphasis added). The Court carefully analyzed each element
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`required to allege contributory infringement under 35 U.S.C. §271(c) including that: (a) the
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`supplier’s product was used to commit acts of direct infringement; (b) the product’s use
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`constituted “a material part of the invention”; (c) the supplier knew its product was “especially
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`made or especially adapted for use in an infringement” of the patent; and (d) the product is “not a
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`staple article of commodity of commerce suitable for substantial noninfringing use.” Id. at 1376-
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`78. Based on a 118-page presentation of the patent owner’s infringement contentions sent to the
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`customer and directly and repetitively communicated to the customer’s supplier, the Court found
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`a sufficient case or controversy as to contributory infringement by the supplier. In particular, the
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`Court found that the presentation: (1) specifically and repeatedly identified the supplier’s
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`products as embodying numerous elements of the asserted claims; and (2) alleged that the
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`supplier’s products were specially designed or adapted to infringe the patents-in-suit and were
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`not staple articles of commerce suitable for substantial non-infringing use. Id. No similar facts
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`are present in this case.
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`b.
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`Microsoft Corp. v. DataTern, Inc., 755 F.3d 899 (Fed. Cir. 2014).
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`In the DataTern case, like the Arris case, the Federal Circuit relied heavily on
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`infringement claim charts provided to direct infringers to evaluate the existence of declaratory
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`judgment jurisdiction for the suppliers of the direct infringers. DataTern, 755 F.3d 899. With
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`respect to one supplier, SAP, the Court found declaratory judgment jurisdiction for the issue of
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`induced infringement. Specifically, the Court found that the “claim charts show that SAP
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`provides its customers with the necessary components to infringe the [patents-in-suit] as well as
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`the instruction manuals for using the components in an infringing manner.” Id. at 905.
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`8
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1026
`
`

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`Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 13 of 25. PageID #: 560
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`According to the Court, “[p]roviding instructions to use a product in an infringing manner is
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`evidence of the required mental state for inducing infringement.” Id.
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`With respect to the other supplier, Microsoft, the Court did not find the existence of
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`declaratory judgment jurisdiction with respect to one of the two patents-in-suit. Instead, the
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`Court found that, although claim charts identified the use of Microsoft’s product by its customer
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`as the basis for direct infringement, the charts did not also cite any instructions provided by
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`Microsoft to support an inference of inducement and did not suggest that Microsoft’s products
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`were not a staple article of commerce suitable for substantial noninfringing use, as required for
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`contributory infringement.
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`No similar facts are present in this case to support declaratory judgment jurisdiction. Nor
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`has FourKites provided anything resembling a claim chart from which this Court can evaluate
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`whether the infringement allegations against Ruiz also imply infringement by FourKites.
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`c.
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`Intel Corp. v. Future Link Sys., LLC,
`2015 U.S. Dist. LEXIS 17176 (D. Del. Feb. 12, 2015).
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`Lastly, in the Intel case, the district court granted-in-part the defendant’s motion to
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`dismiss, finding the existence of declaratory judgment jurisdiction for some claims of one patent,
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`but not others. With respect to apparatus claims of the patent for which the court found
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`declaratory judgment jurisdiction, the court relied on letters sent by the defendant to the
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`plaintiff’s customers that identified the plaintiff’s product by name as the sole basis for the
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`customers’ direct infringement of those claims. Intel, 2015 U.S. Dist. LEXIS 17176, at *21-23.
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`From these specific allegations, the court reasonably inferred that the plaintiff’s manufacture and
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`sale of those same products also would constitute direct infringement. With respect to method
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`claims of the same patent, however, the court did not find the existence of an actual case or
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`controversy because the letters to the plaintiff’s customers did not provide any allegations as to
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`9
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1026
`
`

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`Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 14 of 25. PageID #: 561
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`how the steps of the method claims were performed or what entity performed the steps. Id. at
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`*25-26. In this case, FourKites similarly has not provided any element by element analysis of
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`any claim from which this Court could reasonably infer infringement by FourKites.
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`3.
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`FourKites’ Allegations Based “On Information And Belief”
`Do Not Support Jurisdiction.
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`In a last ditch effort to drum up a case or controversy, FourKites’ response states “Indeed,
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`it is FourKites’ understanding that MacroPoint has represented to various industry stakeholders
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`and other entities, including to FourKites’ current or potential customers or partners, that
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`FourKites’ freight tracking systems infringe the ‘659 and ‘358 patents.” [Doc# 16, PageID# 516
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`(emphasis added)]. This representation, however, is not supported by either declaration or
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`documentary evidence. More tellingly, FourKites fails to allege even a single instance of this
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`alleged conduct nor a shred of evidence suggesting that the conduct actually occurred. It is
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`merely unsupported attorney argument. In fact, the only citation in support of this representation
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`is to the FourKites’ Complaint at paragraphs 45 through 48. However, each and every one of the
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`allegations in paragraphs 45 through 48 of FourKites’ Complaint are pled solely “on information
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`and belief.” For example, paragraph 45 states:
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`45. Although MacroPoint has not sued FourKites for infringement of the ‘659
`patent or the ‘358 patent, on information and belief, MacroPoint has made
`statements to various industry stakeholders and other entities, including to
`FourKites’ current or potential customers or partners such as Ruiz Food Products,
`that FourKites’ freight tracking services and product offerings infringe the ‘659
`patent and/or the ‘358 patent.
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`[Doc# 3, PageID# 16-17 (emphasis added)]. FourKites’ reasoning is hopelessly circular: they
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`allege that something is true because they believe it to be so, then rest on the belief as proof of
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`the allegation’s veracity and reasonableness. Legal analysis simply does not work that way.
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`Allegations based merely on information and belief need not be accepted as true or even
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`considered when determining the sufficiency of a complaint. For example, in 16630 Southfield
`10
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`
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1026
`
`

`

`Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 15 of 25. PageID #: 562
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`Limited Partnership v. Flagstar Bank, 727 F.3d 502 (6th Cir. 2013), where the plaintiffs claimed
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`that “upon information and belief” the defendant had given more favorable treatment to
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`customers who were not of Iraqi origin, the Sixth Circuit affirmed the dismissal of the complaint,
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`noting that “these are precisely the kinds of conclusory allegations that Iqbal and Twombly
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`condemned and thus told us to ignore when evaluating a complaint’s sufficiency.” Id. at 506.
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`Similarly, in In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d
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`917 (6th Cir. 2014), the Sixth Circuit affirmed dismissal of a failure to warn claim where the
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`plaintiff merely alleged that “upon information and belief” the defendant did not update its
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`warning. “The mere fact that someone believes something to be true does not create a plausible
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`inference that it is true.” Id. at 931 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 550 U.S.
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`544, 551 (2007) (finding a complaint insufficient even though it said, “Plaintiffs allege upon
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`information and belief that [defendants] have entered into a contract, combination or conspiracy
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`to prevent competitive entry . . . .”)).
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`FourKites’ allegation that MacroPoint has publicly accused it of infringing the ‘659
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`Patent or the ‘358 Patent can and should be ignored because it is only pled as a “belief” without
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`any plausible supporting facts. Consequently, FourKites fails to plead any facts to support a
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`definite and concrete dispute between the parties regarding the ‘659 or ‘358 Patents.
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`B.
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`FourKites Fails To Plead Claims Under The Lanham Act
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`In Count VII of its Complaint, FourKites asserts a claim for false advertising under
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`§43(a) of the Lanham Act based on: (1) MacroPoint’s publication of an “Intellectual Property
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`Notice”; (2) public statements regarding MacroPoint’s patent rights; and (3) MacroPoint’s
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`alleged misappropriation of FourKites’ Product ELD Screenshot. [Doc# 3, at ¶¶ 87-88].
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`MacroPoint will address each basis in turn, but each is fatally defective because FourKites
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`
`
`11
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1026
`
`

`

`Case: 1:16-cv-02703-CAB Doc #: 17 Filed: 02/21/17 16 of 25. PageID #: 563
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`utterly fails to allege how the statements are either untrue or deceptive and there simply is no
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`rational basis to claim that anything within those statements can logically be seen as actionable.
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`As MacroPoint explained in its Motion to Dismiss, MacroPoint’s “Intellectual Property
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`Notice” is neither false nor misleading and it addresses MacroPoint’s patent rights, not the
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`“nature, characteristics, qualities, or geographic origin” of goods. Therefore, the notice cannot
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`be the basis of a false advertising claim. Nevertheless, even if this Court disagrees, the
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`Complaint still fails to state a claim because it fails to adequately plead the essential element of
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`“bad faith” that is required to avoid preemption by the patent laws.
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`“[F]ederal patent law bars the imposition of liability for publicizing a patent in the
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`marketplace unless the plaintiff can show that the patent holder acted in bad faith.” Hunter
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`Douglas, Inc. v. Harmonic Design, Inc., 153 F.3d 1318, 1336 (Fed. Cir. 1998). “[B]efore a
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`patentee may be held liable under §43(a) for marketplace activity in support of its patent, and
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`thus be deprived of the right to make statements about potential infringement of its patent, the
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`marketplace activity must have been undertaken in bad faith.” Zenith Elecs. Corp. v. Exzec, Inc.,
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`182 F.3d 1340, 1353 (Fed. Cir. 1999). “Exactly what constitutes bad faith remains to be
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`determined on a case by case basis.” Id. at 1354. However, subjective bad faith is not enough.
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`To satisfy the bad faith standard of Zenith, an assertion of patent rights must be shown to be
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`objectively baseless. Globetrotter Software, Inc. v. Elan Computer Group, Inc., 362 F.3d 1367,
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`1375 (Fed. Cir. 2004). Similarly, with respect to pre-litigation communications alleging patent
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`infringement, bad faith is not supported when the information alleged is objectively accurate. Id.
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`at 1377 (citing Golan v. Pingel Enter., Inc., 310 F.3d 1360, 1371 (Fed. Cir. 2002)).
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`In its response to the Motion to Dismiss, FourKites contends that “FourKites’ Complaint
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`does allege ba