Case 2:19-cv-00395-JRG Document 85 Filed 07/15/20 Page 1 of 13 PageID #: 2708
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`ORDER
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`CIVIL ACTION NO. 2:19-CV-00395-JRG
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`LUMINATI NETWORKS LTD.,
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`
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`v.
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`TESO LT, UAB, METACLUSTER LT,
`UAB, OXYSALES, UAB,
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`Plaintiff,
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`Defendants.
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`Before the Court is Defendants Teso LT, UAB, Metacluster LT, UAB, and Oxysales,
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`UAB’s (collectively, “Defendants”) Rule 12(B)(6) Motion to Dismiss (the “Motion”). (Dkt. No.
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`20.) For the reasons stated herein, the Court is of the opinion that the Motion should be and hereby
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`is DENIED WITHOUT PREJUDICE as to its 35 U.S.C. § 101 grounds and DENIED as to its
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`other grounds.
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`I. BACKGROUND
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`Plaintiff Luminati Networks Ltd. (“Luminati”) filed its complaint against Defendants on
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`December 6, 2019 asserting that Defendants’ “residential proxy service” infringes Luminati’s U.S.
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`Patent Nos. 10,469,614; 10,257,319; and 10,484,510 (collectively, the “Asserted Patents”). (Dkt.
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`No. 1 at ¶¶ 14–35, 47–86.) In addition to its patent infringement claims, Luminati also asserts that
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`the Defendants misappropriated Luminati’s trade secrets (Id. at ¶¶ 87–93), that Defendants
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`violated 18 U.S.C. § 1030(g) through its unauthorized access of Luminati’s computer system (Id.
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`at ¶¶ 94–97), that Defendants have engaged in false advertising against Luminati (Id. at ¶¶ 98–
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`104), and that Defendants have tortiously interfered with Luminati’s business relationships (Id. at
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`¶¶ 105–108). Luminati’s non-patent claims are based on the allegations that Defendants have (1)
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`Luminati Exhibit 2011
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 001
`
`

`

`Case 2:19-cv-00395-JRG Document 85 Filed 07/15/20 Page 2 of 13 PageID #: 2709
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`placed advertisements portraying Luminati as a bully and seeking prior art to invalidate Luminati’s
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`patents; (2) placed advertisements portraying Luminati as a “shady” company and including
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`falsehoods about Luminati’s products; and (3) acquired Luminati’s confidential customer list
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`through the unauthorized access of Luminati’s computer system. (Id. at ¶¶ 36–46.)
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`Defendants now file the instant Motion arguing that Luminati’s patent claims are invalid
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`under 35 U.S.C. § 101 and that Luminati fails to state a claim regarding its non-patent claims.
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`II. LEGAL STANDARD
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`A. Patent Eligibility
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`Anyone who “invents or discovers any new and useful process, machine, manufacture, or
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`composition of matter, or any new and useful improvement thereof” may obtain a patent.
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`35 U.S.C. § 101. Since patent protection does not extend to claims that monopolize the “building
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`blocks of human ingenuity,” claims directed to laws of nature, natural phenomena, and abstract
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`ideas are not patent eligible. Alice Corp. Pty. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354 (2014).
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`The Supreme Court instructs courts to distinguish between claims that set forth patent ineligible
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`subject matter and those that “integrate the building blocks into something more.” Id.
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`First, the court “determine[s] whether the claims at issue are directed to a patent-ineligible
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`concept.” Id. at 2355. In doing so, the court must be wary not to over generalize the invention, as
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`“all inventions . . . embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or
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`abstract ideas.” Alice, 134 S. Ct. at 2354 (omission in original). In other words, the court must
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`distinguish between “ineligible ‘abstract-idea-based solution[s] implemented with generic
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`technical components in a conventional way’ from the eligible ‘technology-based solution’ and
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`‘software-based invention[] that improve[s] the performance of the computer system itself.’”
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`Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1299 (Fed. Cir. 2016) (quoting
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`2
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`Luminati Exhibit 2011
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 002
`
`

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`Case 2:19-cv-00395-JRG Document 85 Filed 07/15/20 Page 3 of 13 PageID #: 2710
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`Bascom Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1351 (Fed. Cir. 2016))
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`(alteration in original).
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`If the challenged claims recite a patent-ineligible concept, the court then “consider[s] the
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`elements of each claim both individually and ‘as an ordered combination’ to determine whether
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`the additional elements ‘transform the nature of the claim’ into a patent eligible application.”
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`Alice, 134 S. Ct. at 2355 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S.
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`66, 78–79 (2012)). This step is satisfied when the claim limitations “involve more than
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`performance of ‘well-understood, routine, [and] conventional activities previously known to the
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`industry.’” Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d
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`1343, 1347–48 (Fed. Cir. 2014) (quoting Alice, 134 S. Ct. at 2359). The Federal Circuit has
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`explained that “[w]hile the ultimate determination of eligibility under § 101 is a question of law,
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`like many legal questions, there can be subsidiary fact questions which must be resolved en route
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`to the ultimate legal determination.” Aatrix Software, Inc. v. Green Shades Software, Inc., 882
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`F.3d 1121, 1128 (Fed. Cir. 2018). As such, “[t]he question of whether a claim element or
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`combination of elements is well-understood, routine and conventional to a skilled artisan in the
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`relevant field is a question of fact” that must be “proven by clear and convincing evidence.”
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`Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018).
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`Something is not necessarily well-understood, routine, and conventional simply because it
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`is disclosed in a prior art reference. Exergen Corp. v. KAZ USA, Inc., 725 Fed. App’x. 959, 965
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`(Fed. Cir. 2018). There are many obscure references that may qualify as prior art but are
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`insufficient to establish something is “well-understood, routine, and conventional activit[ies]
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`previously engaged in by scientists who work in the field.” Mayo, 566 U.S. at 79. Additionally,
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`specific improvements described in a patent specification, “to the extent they are captured in the
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`3
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`Luminati Exhibit 2011
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 003
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`

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`Case 2:19-cv-00395-JRG Document 85 Filed 07/15/20 Page 4 of 13 PageID #: 2711
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`claims, create a factual dispute regarding whether the invention describes well-understood, routine,
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`and conventional activities.” Berkheimer, 881 F.3d at 1369. However, “[w]hen there is no genuine
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`issue of material fact regarding whether the claim element or claimed combination is well-
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`understood, routine, conventional to a skilled artisan in the relevant field, [patent eligibility] can
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`be decided on summary judgment as a matter of law.” Berkheimer, 881 F.3d at 1368.
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`B. Federal Rule of Civil Procedure 12(b)(6)
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`By written motion, a party may move to dismiss a complaint for failure to state a claim
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`upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss,
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`courts look only to the allegations in the complaint to determine whether they are sufficient to
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`survive dismissal. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996) (citing McCartney v. First
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`City Bank, 970 F.2d 45, 47 (5th Cir. 1992)).
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`The Supreme Court has held that a complaint does not need detailed factual allegations to
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`survive a Rule 12(b)(6) motion to dismiss, but the pleader’s obligation to state the grounds of
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`entitlement to relief requires “more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550
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`U.S. 544, 555 (2007). The well-pleaded facts must permit the court to infer more than just the mere
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`possibility of misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In the Fifth Circuit, motions
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`to dismiss under Rule 12(b)(6) are viewed with disfavor and rarely granted. Lormand v. US
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`Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009); Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242,
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`247 (5th Cir. 1997).
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`There are two guiding principles in determining whether a complaint can survive a motion
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`to dismiss. Iqbal, 556 U.S. at 678–79. “First, the tenet that a court must accept as true all of the
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`allegations contained in a complaint is inapplicable to legal conclusions.” Id. at 678. “Threadbare
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`recitals of the elements of a cause of action, supported by mere conclusory statements, do not
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`4
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`Luminati Exhibit 2011
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 004
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`

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`Case 2:19-cv-00395-JRG Document 85 Filed 07/15/20 Page 5 of 13 PageID #: 2712
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`suffice.” Id. Second, a complaint must state a plausible claim in order to survive a motion to
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`dismiss. Id. at 678–79. This second determination is a “context-specific task that requires the
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`reviewing court to draw on its judicial experience and common sense.” Id. at 679. “But where the
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`well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
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`the complaint has alleged — but is has not ‘show[n]’ — ‘that the pleader is entitled to relief.’” Id.
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`(quoting Fed. R. Civ. P. 8(a)(2)).
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`III. ANALYSIS
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`A. Eligibility of the Asserted Patents
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`Defendants claim that Luminati’s patent infringement claims should be dismissed under
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`Rule 12(b)(6) because the Asserted Patents are directed to patent-ineligible subject matter, and as
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`such, Luminati has failed to state a claim. (Dkt. No. 20 at 4–21.) Luminati responds that the
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`Asserted Patents are patent-eligible. (Dkt. No. 28 at 14–25.) Luminati also contends that claim
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`construction is necessary before the eligibility issues can be ruled on because Defendants’ Motion
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`overgeneralizes and misconstrues terms to make the Asserted Patents appear abstract when they
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`are not. (Id. at 12–13; Dkt. No. 24 at 3–4.)
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`The Court is persuaded that claim construction could be of benefit in addressing this issue
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`as it is presented in this case. Accordingly, the Court DENIES the Motion as to its § 101 grounds
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`without prejudice to its refiling. Defendants may refile their § 101 challenge after the Court issues
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`its claim construction order if Defendants elect to do so.1
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`The Court notes that should Defendants elect to refile their § 101 motion after claim
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`construction, they must either address the eligibility of each asserted claim or make an adequate
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`1 See MyMail, Ltd. v. ooVoo, LLC, 934 F.3d 1373 (Fed. Cir. 2019) (finding that the “district court erred by failing to
`address the parties’ claim construction dispute before” determining patent eligibility).
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`5
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`Luminati Exhibit 2011
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 005
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`

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`Case 2:19-cv-00395-JRG Document 85 Filed 07/15/20 Page 6 of 13 PageID #: 2713
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`showing of the representativeness of any claims addressed as representative. See PPS Data, LLC
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`v. Jack Henry & Assocs., Inc., 404 F. Supp. 3d 1021 (E.D. Tex. 2019).
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`B. Luminati’s Non-Patent Claims
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`The Court must now turns to consider whether Luminati’s complaint satisfies the pleading
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`standards for each of the non-patent claims.
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`i. Misappropriation of Trade Secrets
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`Defendants argue that Luminati’s claim under the Federal Defend Trade Secrets Act
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`(“DTSA”) fails because Luminati has not plausibly shown how Defendants misappropriated any
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`of Luminati’s purported trade secrets. (Dkt. No. 20 at 22–23.) First, Defendants contends that
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`Luminati’s allegation that Defendants sought confidential information from former Luminati
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`employees is insufficient because Luminati fails to plead that Defendants obtained any such
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`information, and seeking trade secrets is not a DTSA violation. (Id. at 23 (citing 18 U.S.C.
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`§ 1839(5)).) Second, Defendants argue that Luminati’s allegation that Defendants “sent
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`communications to email addresses that were not public and were maintained as private on
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`Luminati’s private computers and not accessible to the public” does not plausibly show that
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`Defendants misappropriated those email addresses as Luminati contends. (Id. (citing Iqbal, 556
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`U.S. at 679 (“mere possibility of misconduct” is not enough to state a plausible claim)).)
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`Luminati responds that it has satisfied the pleading requirements by pleading the existence
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`of a trade secret, its customer list for its residential proxy service, which is kept on a secure system
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`inaccessible to the public, and by pleading that Defendants sent communications to emails on that
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`list, including a fake email that was generated for the purpose of testing Luminati’s service. (Dkt.
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`No. 28 at 27.) Luminati contends that these allegations are further supported by specific instances
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`6
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`Luminati Exhibit 2011
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 006
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`

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`Case 2:19-cv-00395-JRG Document 85 Filed 07/15/20 Page 7 of 13 PageID #: 2714
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`of Defendants contacting former Luminati employees offering to pay them for confidential
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`information. (Id.)
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`The DTSA establishes a private cause of action for misappropriation of trade secrets. See
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`18 U.S.C. § 1836. “To state a claim under the DTSA, a plaintiff must allege (1) the existence of a
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`trade secret; (2) misappropriation of the trade secret by another; and (3) the trade secret’s relation
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`to a good or service used or intended for use in interstate or foreign commerce.” Source Prod. &
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`Equip. Co., Inc. v. Schehr, CV 16-17528, 2017 WL 3721543, at *2 (E.D. La. Aug. 29, 2017). As
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`an initial matter, Luminati has satisfied the pleading requirements as to the first and third elements
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`by identifying its confidential, customer list that is used for interstate commerce, and Defendants
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`do not appear to refute this. See Guy Carpenter & Co., Inc. v. Provenzale, 334 F.3d 459, 467 (5th
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`Cir. 2003) (a customer list may be a trade secret).
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`The crux of the dispute is directed toward the second element—whether Luminati has
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`adequately pled misappropriation. The Court finds it has. Misappropriation under the DTSA
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`includes the disclosure or use of a trade secret of another without express or implied consent by a
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`person who used improper means to acquire knowledge of the trade secret. 18 U.S.C. § 1839(5).
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`Luminati has alleged that Defendants sent emails to fake email addresses controlled by Luminati
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`which were included in Luminati’s confidential customer list. (Dkt. No. 1 at ¶ 45.) This allegation,
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`when coupled with the allegation that Defendants’ solicited Luminati’s customer list from
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`employees with access to the same allows the Court to “infer more than the mere possibility of
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`misconduct.” See Iqbal, 556 U.S. at 679. Accordingly, Luminati adequately states a claim under
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`the DTSA.
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`7
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`Luminati Exhibit 2011
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 007
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`

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`Case 2:19-cv-00395-JRG Document 85 Filed 07/15/20 Page 8 of 13 PageID #: 2715
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`ii. Intentional Unauthorized Access of a Protected Computer
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`Defendants argue that Luminati’s claim under the Computer Fraud and Abuse Act
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`(“CFAA”) fail because (1) it is premised on the same facts as Luminati’s DTSA claim and those
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`facts do not plausibly show that Defendants hacked or stole anything; (2) Luminati has not
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`plausibly alleged any damages under the CFAA; and (3) Luminati’s does not adequately plead a
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`loss under the CFAA. (Dkt. No. 20 at 24–25.) More specifically, Defendants contend that Luminati
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`does not have any damages because “damage” under the CFAA requires the impairment of data
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`or a computer system. (Id. at 25.) Defendants further contend that Luminati’s losses are premised
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`on the expense of investigating Defendant’s alleged theft, but the alleged loss must relate to a
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`violation that caused impairment of data or a computer system and there was no such impairment
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`here. (Id. at 25–26.)
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`Luminati responds that Defendants are incorrect on the damage/loss requirements of the
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`CFAA. (Dkt. No. 28 at 27.) Luminati contends that a plaintiff it is only required to show damage
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`or loss, but not both. (Id. (citing Frisco Med. Ctr., LLP. V. Beldsoe, 147 F. Supp. 3d 646, 659 (E.D.
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`Tex. 2015)).) Luminati further argues that “loss” is not limited to damages incurred because of
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`interruption of service, but includes “the cost of responding to an offense” and the cost of
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`“conducting a damages assessment.” (Id. at 28 (quoting 18 U.S.C. § 1030(e)(11)).) Luminati
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`argues that it alleged it suffered losses in excess of $5,000 due to the expense of investigating the
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`intrusion into its computer system, and as such, it has properly pled facts to support its claim under
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`the CFAA. (Id. (citing Dkt. No. 1 at ¶ 96).)
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`The CFAA is primarily a criminal statute, but also provides a civil cause of action in certain
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`circumstances.
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`Under section 1030(g) of the CFAA, any person who suffers damage or loss by
`reason of a violation of this section may maintain a civil action for compensatory
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`8
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`Luminati Exhibit 2011
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 008
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`

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`Case 2:19-cv-00395-JRG Document 85 Filed 07/15/20 Page 9 of 13 PageID #: 2716
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`damages and injunctive or other equitable relief. Violations of the CFAA include:
`(1) intentionally accessing a protected computer without authorization or by
`exceeding authorization and obtaining information from that computer; (2)
`knowingly (and with an intent to defraud) accessing a protected computer without
`authorization or by exceeding authorization and obtaining anything in excess of
`$5,000 in value; and (3) intentionally accessing a protected computer without
`authorization and causing damage and loss.
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`Frisco Med. Ctr., LLP, 147 F. Supp. 3d at 658–59. Although Luminati has not specifically pled
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`which subsection of the CFAA Defendants violated, Luminati has, at a minimum, adequately pled
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`facts supporting a violation under 18 U.S.C. § 1030(a)(2)(C). Subsection 1030(a)(2)(C) is violated
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`if the defendant intentionally accesses a computer without authorization or exceeds authorized
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`access, and thereby obtained information from any protected computer. 18 U.S.C. § 1030(a)(2)(C).
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`First, having already determined that Luminati has adequately pled facts to support its
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`DTSA claim, the Court similarly concludes that Luminati has adequately pled that Defendants
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`gained unauthorized access to the data on Luminati’s computer system, and thereby, obtained
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`Luminati’s customer list.
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`Next, it must be determined if Luminati adequately pled the damages or loss requirement
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`imposed by the CFAA. In order to bring a civil action under the CFAA, a plaintiff must show that
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`it suffered “damage” or “loss” by a defendant’s alleged actions and such damage or loss must meet
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`the $5,000 minimum statutory threshold. New South Equip. Mats, LLC, 989 F. Supp. 2d at 530–
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`31 (citing 18 U.S.C. § 1030(c)(4)(A)(i)(I)). While it is true that Luminati has not pled “damage”
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`under the CFAA, it has adequately pled “loss” under the CFAA, and this alone is sufficient. See
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`Frisco Med. Ctr., LLP, 147 F. Supp. 3d at 659. “The term ‘loss’ means any reasonable cost to any
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`victim, including the cost of responding to an offense . . ..” 18 U.S.C. § 1030(e)(11). The cost of
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`responding to an offense includes the cost associated with investigating such an intrusion. Frisco
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`Med. Ctr., LLP, 147 F. Supp.3d at 659. Here, Luminati pled it “suffered loss in excess of $5,000
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`9
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`Luminati Exhibit 2011
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 009
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`

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`Case 2:19-cv-00395-JRG Document 85 Filed 07/15/20 Page 10 of 13 PageID #: 2717
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`in value within the last year through the expense of investigating the intrusion in Luminati’s
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`computer system.” (Dkt. No. 1 at ¶ 96.) Accordingly, Luminati has adequately pled a claim under
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`the CFAA.
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`iii. False Advertising
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`Defendants argue that Luminati fails to state a claim under the Lanham Act for false
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`advertising because none of the “advertisements” Luminati points to are actionable, and Luminati
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`has not plausibly alleged any element of a Lanham Act violation. (Dkt. No. 20 at 27.) Defendants
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`argue that the complained of “Bust the Bully” prior-art campaign is not a Lanham Act violation
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`because “[t]here is nothing improper, false or confusing about soliciting the public’s help with
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`finding prior art; the prior-art campaign does not constitute a statement of fact ‘about a product;’
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`and nothing prohibits Teso from using ‘luminati’ as a Google Adword in connection with its prior
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`art campaign. (Id. (citing Acad. Of Motion Picture Arts & Scis. V. GoDaddy.com, Inc., 10-CV-
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`03738, 2015 WL 5311085, at *50 (C.D. Cal. Sept. 10, 2015)).) Defendants also argue that the
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`statements on the “Bust the Bully” webpage are nonactionable opinions. (Id. at 28.) Defendants
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`similarly argue that any statements made on the website “www.darksideofluminati.com” are also
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`nonactionable opinions. (Id.)
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`Luminati responds that it has satisfied the pleading requirements by identifying
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`advertisements that included false and damaging statements about Luminati’s residential proxy
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`services that were asserted as facts, not opinions. (Dkt. No. 28 at 28–29.) Luminati contends that
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`“couching statements in terms of an opinion does not dispel its implications of a false assertion of
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`fact.” (Id. at 29 (citing Butowsky v. Folkenflik, No. 4:18-cv-442, 2019 U.S. Dist. LEXIS 104297,
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`at *107–08 (E.D. Tex. Apr. 17, 2019)).)
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`10
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`Luminati Exhibit 2011
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 010
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`

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`Case 2:19-cv-00395-JRG Document 85 Filed 07/15/20 Page 11 of 13 PageID #: 2718
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`To establish a claim for false advertising under the Lanham Act, the plaintiff must show
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`(1) a false or misleading statement of fact about a product; (2) such statement either deceived, or
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`had the capacity to deceive a substantial segment of potential consumers; (3) the deception is
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`material, in that it is likely to influence consumers’ purchasing decisions; (4) the product is in
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`interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the
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`statement at issue. Pizza Hut, Inc. v. Papa John’s Int’l, 227 F.3d 489, 495 (5th Cir. 2000).
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`The Court finds that at least as to one of Defendants’ accused “advertisements,” Luminati
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`has adequately pled a claim under the Lanham Act. Luminati identified the statement that its
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`residential proxy service “was selling the ‘idle resources’ of its users” as a false or misleading
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`statement. (Dkt. No. 1 at ¶¶ 39–41.) This is not a nonactionable opinion as Defendants contend. In
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`fact, the advertisement states: “It turned out that Hola didn’t mention Luminati or the fact that they
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`were selling users’ bandwidth on its site at all prior to the scandal.” (Dkt. No. 1-10 at 2 (emphasis
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`added).) Defendants arguments that they only made statements of opinions are unavailing.
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`Luminati further alleged that this advertisement deceived or likely deceived Luminati’s customers
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`causing injury to Luminati. (Dkt. No. 1 at ¶¶ 101–02.) Accordingly, Luminati has adequately stated
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`a claim under the Lanham Act.
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`iv. Tortious Interference with Business Relations
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`Defendants argue that Luminati’s complaint fails to state a claim for tortious interference
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`with business relations because Lumianti has not plausibly alleged that Defendants’ conduct was
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`independently tortious or unlawful. (Dkt. No. 20 at 29.) Defendants’ contend that Luminati’s
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`allegation that Defendants’ “used Luminati’s proprietary information to intentionally and willfully
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`contact Luminati customers and interfere with Luminati’s relationship with these customers” is
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`conclusory and any such misappropriation is not a violation of the DTSA or CFAA. (Id.)
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`11
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`Luminati Exhibit 2011
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 011
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`

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`Case 2:19-cv-00395-JRG Document 85 Filed 07/15/20 Page 12 of 13 PageID #: 2719
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`Luminati responds that its allegations regarding Defendants’ misappropriation of
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`Luminati’s trade secrets and false advertising, coupled with its allegations concerning the existence
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`of customer contracts, Defendants’ willful and intentional interference, and Luminati’s injury and
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`loss sufficiently states a claim for tortious interference with business relations. (Dkt. No. 28 at 30.)
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`“The theory of tortious interference with business relations by a third person includes two
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`causes of action: (1) tortious interference with existing contracts, and (2) tortious interference with
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`prospective contractual relations.” Dunn v. Calahan, No. 03-05-00426-CV, 2008 WL 5264886, at
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`*3 (Tex. App.—Austin Dec. 17, 2008, pet. denied) (mem. op.) (citing Sterner v. Marathon Oil
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`Co., 767 S.W.2d 686, 689 (Tex. 1989)). In this regard, the parties’ briefing talks past each other.
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`Defendants’ arguments are directed at whether Luminati stated a claim for tortious interference
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`with prospective contractual relations while Luminati’s response is directed at whether it stated a
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`claim for tortious interference with an existing contract. (See Dkt. No. 20 at 29; see also Dkt. No.
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`28 at 30.)
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`Despite the parties’ failure to properly engage with one another on the same cause of action,
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`the Court concludes that Luminati has stated a claim for both tortious interference with prospective
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`contract and tortious interference with existing contract. To state a claim for tortious interference
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`with prospective business relations, the plaintiff must plead (1) that there was a reasonable
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`probability that it would have entered a contractual relationship with a third party; (2) that the
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`defendant committed an independently tortious or unlawful act that prevented the contract from
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`being formed; (3) that the tort was committed with a conscious desire to prevent the formation of
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`the contract, or substantial certainty that the act would prevent the formation of the contract; and
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`(4) that the plaintiff suffered actual harm as a result. Johnson v. Baylor Univ., 188 S.W.3d 296,
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`304 (Tex. App.—Waco 2006, pet. denied). To state a claim for tortious interference with an
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`12
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`Luminati Exhibit 2011
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 012
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`

`

`Case 2:19-cv-00395-JRG Document 85 Filed 07/15/20 Page 13 of 13 PageID #: 2720
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`existing contract, the plaintiff must plead (1) an existing contract subject to interference, (2) a
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`willful and intentional act of interference with the contract, (3) that proximately caused the
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`plaintiff's injury, and (4) caused actual damages or loss. Prudential Ins. Co. of Am. v. Financial
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`Review Servs. Inc., 29 S.W.3d 74, 77 (Tex. 2000).
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`Luminati alleges that Defendants engaged in tortious conduct targeting both Luminati’s
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`customers and prospective customers through its disparaging and deceptive advertising (Dkt. No.
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`1 ¶ 104), that this conduct was intentional and willful (Id. at ¶ 107), and that this conduct caused
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`Luminati to lose business (Id. at ¶ 108.) Furthermore, given that the Court has already found that
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`Luminati has sufficiently pled additional torts, the Court concludes that Luminati has adequately
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`alleged both tortious interference with an existing contract and with a prospective contract.
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`IV. CONCLUSION
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`For the reasons described herein, the Court DENIES WITHOUT PREJUDICE the
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`Motion on its 35 U.S.C. § 101 grounds and DENIES the Motion on each of its other grounds.
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`Additionally, and in view of this Order, the Court DENIES AS MOOT Defendants’ Motion to
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`Stay Case Pending Decision on Defendants’ Rule (12)(B)(6) Motion to Dismiss (Dkt. No. 26).
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`13
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`.
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`____________________________________
`RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
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`So ORDERED and SIGNED this 15th day of July, 2020.
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`Luminati Exhibit 2011
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 013
`
`