Case 2:15-cv-01278-JRG-RSP Document 27 Filed 08/19/16 Page 1 of 14 PageID #: 502
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`§
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`REPORT AND RECOMMENDATION
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`Before the Court is Defendants Volkswagen Group of America, Inc. (“VWGoA”) and
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`
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`Case No. 2:15-cv-1274-JRG-RSP
`[Lead Case]
`Case No. 2:15-cv-1278-JRG-RSP
`[Member Case]
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`BLITZSAFE TEXAS, LLC,
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` Plaintiff,
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`v.
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`VOLKSWAGEN GROUP OF AMERICA,
`INC. & VOLKSWAGEN GROUP OF
`AMERICA CHATTANOOGA
`OPERATIONS, LLC.,
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` Defendants.
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`
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`Volkswagen Group of America Chattanooga Operations, LLC’s (“VWGoA Operations”)
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`(collectively, “the VW Defendants”) Motion to Dismiss Plaintiff Blitzsafe Texas, LLC’s
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`(“Blitzsafe”) First Amended Complaint for Failure to State a Claim. (Dkt. No. 24.) The Court
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`has considered the arguments and RECOMMENDS the Motion to Dismiss (Dkt. No. 24) be
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`DENIED.1
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`A. Motion to dismiss standard
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`APPLICABLE LAW
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`In assessing a motion to dismiss under Rule 12(b)(6), the Court must decide if a
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`complaint contains “enough factual matter” which, if taken as true, would “state a claim for
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`relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
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`claim has facial plausibility when the pleaded factual content allows the court to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.” Bowlby v. City of
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`1 Docket Numbers 22 and 24 are filed in Case No. 2:15-cv-1278-JRG-RSP. Docket Numbers 33,
`37, and 38 are filed in Case No. 2:15-cv-1274-JRG-RSP.
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`Case 2:15-cv-01278-JRG-RSP Document 27 Filed 08/19/16 Page 2 of 14 PageID #: 503
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`Aberdeen, 681 F.3d 215, 217 (5th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
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`(2009)). Plausibility should not be treated as a “probability requirement at the pleading state; it
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`simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal” the
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`defendant is liable for the misconduct alleged. In re Bill of Lading Transmission & Processing
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`Sys. Patent Lit., 681 F.3d 1323, 1341 (Fed. Cir. 2012) (quoting Twombly, 550 U.S. at 556).
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`In considering a motion to dismiss, the Court must assume that all well-plead facts as true
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`and view those facts in the light most favorable to the plaintiff. Bowlby, 681 F.3d at 218. The
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`Court may consider “the complaint, any documents attached to the complaint, and any
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`documents attached to the motion to dismiss that are central to the claim and referenced by the
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`complaint.” Lone Star Fund V (U.S.) L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
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`2010).
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`B.
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`Infringement standards
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`A claim of literal infringement requires a showing that “each and every limitation set
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`forth in a claim appears in the accused product.” Becton Dickinson & Co. v. C.R. Bard, Inc., 922
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`F.2d 792, 796 (Fed. Cir. 1990). A claim of induced infringement requires (1) an act of direct
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`infringement by another and (2) a defendant who knowingly induced that direct infringement
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`with specific intent to encourage the other’s infringement. 35 U.S.C. § 271(b); see DSU Med.
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`Corp. v. JMS Co., 471 F.3d 1293, 1306 (Fed. Cir. 2006) (“[I]nducement requires that the alleged
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`infringer knowingly induced infringement and possessed specific intent to encourage another’s
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`infringement.’’). A claim of contributory infringement requires (1) an act of direct infringement,
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`(2) a defendant who “knew that the combination for which its components were especially made
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`was both patented and infringing,” and (3) the defendant having provided components which
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`2
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`Case 2:15-cv-01278-JRG-RSP Document 27 Filed 08/19/16 Page 3 of 14 PageID #: 504
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`have “no substantial non-infringing uses.” 35 U.S.C. § 271(c); Cross Med. Prods., Inc. v.
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`Medtronic Sofamore Danek, Inc., 424 F.3d 1293, 1312 (Fed. Cir. 2005).
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`C. Willful infringement standard
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`Section 284 of the Patent Act provides that a “court may increase the damages up to three
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`times the amount found or assessed.” 35 U.S.C. § 284. An award of enhanced damages is “not to
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`be meted out in a typical infringement case.” Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct.
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`1923, 1932 (2016). Instead, it is to be reserved as a “sanction for egregious infringement
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`behavior” which can be described as “willful, wanton, malicious bad-faith, deliberate,
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`consciously wrongful, flagrant, or—indeed—characteristic of a pirate.” Halo, 136 S. Ct. at 1932.
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`Enhanced damages do not always follow a “finding of egregious misconduct.” Halo, 136 S. Ct.
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`at 1933. A court’s discretion on whether to award enhanced damages, and in what amount, must
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`“take into account the particular circumstances of each case.” Halo, 136 S. Ct. at 1933. An award
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`of enhanced damages in any case must be supported by a preponderance of the evidence. Halo,
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`136 S. Ct. at 1934.
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`A.
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`Infringement
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`ANALYSIS
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`
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`The VW Defendants assert that the First Amended Complaint (“the Complaint”) does not
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`allege enough facts to state a claim for direct infringement. The VW Defendants say that in order
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`to state a claim for direct infringement, the Complaint must list the specific claims alleged to be
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`infringed and contend “how the offending products [infringe] the claims recited in the
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`[Complaint].” (Dkt. No. 24 at 6 (quoting Macronix, Int’l Co., Ltd. v. Spansion Inc., 4 F. Supp. 3d
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`797, 804 (E.D. Va. 2014).)
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`3
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`The VW Defendants also say the Complaint does not include enough detail to state a
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`claim for induced infringement. The VW Defendants note a claim for induced infringement
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`requires direct infringement by another. The VW Defendants contend, for the reason above, that
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`the Complaint does not allege sufficient facts to state a claim for direct infringement. The VW
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`Defendants specifically assert the Complaint must “plead [] facts from which it can be inferred
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`that
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`the[]
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`[accused] products
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`include
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`the particular combinations of
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`subsystems,
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`microcontrollers, program code, interfaces, data, and control commands as required by any one
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`of the 220 claims of the Blitzsafe patents.” (Dkt. No. 24 at 11.)
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`The VW Defendants finally assert the Complaint does not contain sufficient detail to
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`allege a claim for contributory infringement. The VW Defendants say the Complaint includes
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`nothing more than conclusory statements that the “components sold or offered for sale” “are not
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`a staple article or commodity of commerce suitable for substantial non-infringing use.” (Dkt. No.
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`24 at 12.)
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`The Court finds the Complaint states a plausible claim of direct infringement. The
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`Complaint alleges the VW Defendants “manufacture, import and/or sell . . . an ‘infotainment’
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`system, in Volkswagen branded vehicles . . . .” and “an audio and multimedia integration system,
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`called Multi Media Interface™ or MMI . . . in Audi-branded vehicles . . . .” (Dkt. No. 22 at ¶¶
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`10–11.) The Complaint describes the infotainment and MMI systems (“Accused Systems”) in
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`this way:
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`The Volkswagen infotainment system and MMI support the integration of third-
`party external audio devices, such as MP3 players, with the car radio. The
`Volkswagen infotainment system and MMI permit an end user to connect a third-
`party external audio or multimedia device to the car radio by wire, such as
`through a USB port or auxiliary port, or wirelessly, such as through Bluetooth.
`Once connected, the end user may control the third-party external audio device
`using the car radio’s controls, and the audio from the external audio device may
`be played through the car radio and speakers.
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`Case 2:15-cv-01278-JRG-RSP Document 27 Filed 08/19/16 Page 5 of 14 PageID #: 506
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`(Dkt. No. 22 at ¶ 12.)
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`In plainer English, the Complaint says the Accused Systems allow devices such as MP3
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`
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`players to be integrated with a car radio using USB or Bluetooth. The integration makes the MP3
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`player controllable from the car radio and makes the audio from the MP3 player playable from
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`the car’s speakers.
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`This description of the Accused Systems states facts from which a plausible claim of
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`direct infringement of the claims in U.S. Patent No. 7,489,786 (the “’786 patent”) and U.S.
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`Patent No. 8,155,342 can be inferred. For example, claim 1 of the ’786 patent recites “a second
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`connector electrically connectable to an after-market audio device external to the car stereo.”
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`(’786 patent col. 21, ll. 33–34.) This limitation contains two principal elements: (1) a “car stereo”
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`and (2) “a second connector” “electrically connectable” to an “external” “after-market audio
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`device.”
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`The Complaint describes parts of the Accused Systems that can potentially satisfy both
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`principal elements. First, the Complaint states a user’s MP3 player can serve as the “external”
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`“after-market audio device.” Second, the Complaint says the infotainment or MMI system is
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`“connectable” to the MP3 player. Either the infotainment or MMI system can serve as a “car
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`stereo.” Finally, the Complaint says the MP3 player is “connectable” to the infotainment or MMI
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`system by USB. A USB link can serve as a “second connector.”
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`The VW Defendants appear to recognize the Complaint includes these facts. Thus, the
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`brass tacks of their Motion focus on showing that the Complaint does not allege elements such as
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`a “particular combinations of subsystems, microcontrollers, program code, interfaces, data, and
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`control commands.” (Dkt. No. 24 at 11; see also Dkt. No. 24 at 8 (“[T]he First Amended
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`Complaint fails to plead any facts from which it can be plausibly inferred that the accused
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`5
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`Case 2:15-cv-01278-JRG-RSP Document 27 Filed 08/19/16 Page 6 of 14 PageID #: 507
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`Volkswagen infotainment and Audi MMI systems include a microcontroller which converts
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`incompatible signals before transmitting them between an ‘after-market audio device’ and the
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`‘car stereo.’”).)
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`The Court finds that these elements can be inferred from what is already alleged in the
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`Complaint. Fundamentally, the Complaint accuses of infringement car radios that can interface
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`with MP3 players through USB or Bluetooth. This means the accused car radios are electronic
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`devices and USB, Bluetooth, and MP3 are protocols or formats that work in conjunction with
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`electronic devices. Things that can be construed as codes, data, microcontrollers, and interfaces
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`generically exist in many modern electronic devices that play MP3s and work with USB and
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`Bluetooth. The Court thus finds it reasonable, in this context, to infer that parts of the Accused
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`Systems can plausibly be construed as codes, data, microcontrollers, or interfaces. See Iqbal, 556
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`U.S. at 678 (“A claim has facial plausibility when the plaintiff pleads factual content that allows
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`the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.”).
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`Indeed, the Supreme Court has held that the plausibility of a claim depends heavily on the
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`factual context out of which the claim arises. For example, in Twombly, the Supreme Court held
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`that an antitrust claim was implausible, but only when it was viewed in light of the “common
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`economic experience” and history of the telecommunications industry. See Twombly, 550 U.S. at
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`567–68.
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`First, the Supreme Court held that common economic experience suggested that it was
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`implausible to infer the incumbent phone companies (“ILEC”) were colluding against the new
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`phone companies (“CLEC”). The Supreme Court noted the only plausible inference one could
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`draw from the facts in light of common experience was that the ILECs individually, and without
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`Case 2:15-cv-01278-JRG-RSP Document 27 Filed 08/19/16 Page 7 of 14 PageID #: 508
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`collusion, were trying to inhibit the ability of the CLECs to compete with them in the same
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`market. See Twombly, 550 U.S. at 566 (“[E]ven if the ILECs flouted the 1996 Act in all the ways
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`the plaintiffs allege, there is no reason to infer that the companies had agreed among themselves
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`to do what was only natural anyway.” (citation omitted)). Second, the Supreme Court held that
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`the nature of the telecommunications industry provided the most, if not only, plausible
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`explanation for why the ILECs did not compete with each other. The Supreme Court said “a
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`natural explanation for the noncompetition alleged [was] that the former Government-sanctioned
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`monopolists were sitting tight, expecting their neighbors to do the same thing.” Twombly, 550
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`U.S. at 568.
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`Twombly teaches that when a Court considers the sufficiency of the factual allegations in
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`a complaint, it must consider the context out of which the allegations arise. As stated above, the
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`Complaint alleges infringement by an electronic car radio system. This context provides a basis
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`for inferring that generic electronic components such as codes, microcontrollers, and interfaces
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`exist in the Accused Systems. Likewise, when a Court considers a complaint alleging a violation
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`of the antitrust laws, the Court must consider the context the relevant market provides. As the
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`Supreme Court said in Twombly “[i]n a traditionally unregulated industry with low barriers to
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`entry, sparse competition among large firms dominating separate geographic segments of the
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`market could very well signify illegal agreement,” however, in an industry such as the
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`telecommunications industry, “spare competition” and market segmentation are likely the result
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`of a historical arrangement where “monopoly was the norm . . . not the exception.” Twombly,
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`550 U.S. at 568–69; see also Limestone Dev. Corp. v. Vill. of Lermont, Ill., 520 F.3d 797, 803
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`(7th Cir. 2008) (“A complaint must always, however, allege ‘enough facts to state a claim to
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`Case 2:15-cv-01278-JRG-RSP Document 27 Filed 08/19/16 Page 8 of 14 PageID #: 509
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`relief that is plausible on its face,’ and how many facts are enough will depend on the type of
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`case.” (citation omitted)).
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`The Court further notes in most patent cases, asking the plaintiff to provide an element-
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`by-element analysis of the accused device in the complaint does not advance the goals of the
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`Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 8 (“Rule 8”) was drafted to
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`combat the “debilitating technicalities and rigidity that characterized the prior English and
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`American procedural systems.” Arthur R. Miller, Simplified Pleading, Meaningful Days in
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`Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88
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`N.Y.U. L. Rev. 286, 288–89 (2013); see also Iqbal, 556 U.S. at 678–79 (“Rule 8 marks a notable
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`and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does
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`not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”).
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`Asking a patentee to allege a precise fact for every element of every asserted claim in the
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`complaint drives Rule 8 back towards the technical pleading system that it was crafted to replace.
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`Rule 8(a)(2) sets no bright-line rules for pleading, it simply requires a “short plain statement of
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`the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see Johnson v.
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`City of Shelby, Miss., 135 S. Ct. 346, 346 (2014) (“Federal pleading rules . . . do not countenance
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`dismissal of a complaint for imperfect statement of the legal theory supporting the claim
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`asserted.” (citation omitted)).
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`To be sure, Rule 8 does not allow a patentee to submit a bare-bones complaint that only
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`states a patent’s name and number and asserts that the patent is infringed. Rule 8, as Twombly
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`teaches, requires that the complaint to show the claim of infringement is plausible. Twombly, 550
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`U.S. at 557 (“The need at the pleadings stage for allegation plausibly suggesting (not merely
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`consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the ‘plain
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`8
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`Case 2:15-cv-01278-JRG-RSP Document 27 Filed 08/19/16 Page 9 of 14 PageID #: 510
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`statement’ possess enough heft to ‘sho[w] that the pleader is entitled to relief.’”). But see
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`Erickson v. Pardus, 551 U.S. 89, 93 (2007) (“Specific facts are not necessary; the statement need
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`only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
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`rests.’” (quoting Twombly, 550 U.S. at 555)).
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`In some cases, a fulsome description of the asserted patents and accused technology will
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`be enough. A description of the patents can give the accused infringer notice of the legal claim.
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`A description of the accused technology can provide facts which show the claims are plausible.
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`This addresses the driving concern in Twombly—to expose at the “point of minimum
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`expenditure of time and money by the parties and the court” cases where “the allegations . . .
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`however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558 (citing 5
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`Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 at 233–34). As
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`prior decisions have shown, when a patentee adequately describes the accused technology, it can
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`be enough to balance the need to filter out frivolous cases with the understanding that a patentee
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`does not have to prove its case on the pleadings. E.g., Ruby Sands LLC v. American Nat’l Bank
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`of Tx., Case No. 2:15-cv-1955-JRG, 2016 WL 3542430, at *4 (E.D. Tex. July 29, 2016) (holding
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`plaintiff failed to state a claim by alleging bank makes or sells mobile phones).
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`In addition to finding the Complaint states a plausible claim for direct infringement, the
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`Court finds the Complaint states a plausible claim for indirect infringement. The Court found the
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`Complaint stated a claim for direct infringement. Thus, the Court rejects the VW Defendants’
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`argument that “Blitzsafe’s allegations of indirect infringement do not state a claim for the same
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`reasons its allegations of direct infringement do not state a claim.” (Dkt. No. 37 at 4.)
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`Furthermore, the Court rejects the VW Defendants’ assertion that the Complaint fails to
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`state a claim for contributory infringement. The Complaint alleges the Accused Systems contain
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`9
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`Case 2:15-cv-01278-JRG-RSP Document 27 Filed 08/19/16 Page 10 of 14 PageID #: 511
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`components which are a material part of the invention of the ’786 patent. The Complaint says the
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`Accused Systems include “interfaces that permit an end user to use a car radio’s controls to
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`control an external third party audio device.” (Dkt. No. 22 at ¶ 17.) It then alleges “these
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`components are not a staple article or commodity of commerce suitable for substantial non-
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`infringing use.” (Dkt. No. 22 at ¶ 17.) The VW Defendants contend in response that the
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`Complaint does “not provide any factual basis for this assertion.” (Dkt. No. 37 at 5.)
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`The Court finds the Complaint states a claim for contributory infringement for two
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`reasons. First, the Complaint asserts the interface of the Accused Systems is material to the
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`invention and has no substantial non-infringing use. The Complaint describes the interface as a
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`device with the specific capability of allowing a user to control an MP3 player from a car stereo.
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`The Court finds it is plausible to infer that a device with this narrow capability has no other use
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`than to execute its described capability. According to the Complaint, when the interface executes
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`its described capability, the interface must work as part of the claimed combination. See Ricoh
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`Co., Ltd. v. Quanta Comp. Inc., 550 F.3d 1325, 1337 (Fed. Cir. 2008) (“[A]ssuming direct
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`infringement is found, Quanta would be liable under § 271(c) if it imported into or sold within
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`the United States a bare component (say, a microcontroller containing routines to execute the
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`patented methods) that had no use other than practicing the methods of the #552 and #755
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`patents.”).
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`Second, the Court notes a patentee does not always need to provide additional facts to
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`support the facts already alleged in a complaint. The VW Defendants say Blitzsafe must support
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`its assertion that the interfaces in the Accused Systems have no substantial non-infringing use.
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`This burden does not fall on Blitzsafe at the pleadings stage. Twombly requires the pleadings to
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`allege a plausible claim for relief. See Twombly, 550 U.S. at 556. Twombly does not require the
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`Case 2:15-cv-01278-JRG-RSP Document 27 Filed 08/19/16 Page 11 of 14 PageID #: 512
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`pleadings to preemptively address all conceivable defenses. See Starr v. Sony BMC Music
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`Entm’t, 592 F.3d 314, 323 (2d Cir. 2010) (“Defendants [] argue that a plaintiff seeking damages
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`under Section 1 of the Sherman [A]ct must allege fact that ‘tend[] to exclude independent self-
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`interested conduct as an explanation for defendants’ parallel behavior.’ This is incorrect.”
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`(citation omitted)). The Court, however, recognizes the plausibility of the allegations in a
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`complaint can, depending on context, demand more supporting facts to show that they are
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`plausible. For example, in Bill of Lading, the Federal Circuit held a contributory infringement
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`claim was implausible because the complaint alleged that components which were known to
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`have other uses could only be used to scan and transmitting bills-of-lading. See Bill of Lading,
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`681 F.3d at 1337–38 (“R+L’s own allegations make clear that [defendant’s products] can be used
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`for multiple other purposes.”). For the reasons above, the Court finds that the Complaint states a
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`plausible claim for relief for direct infringement, induced infringement, and contributory
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`infringement.
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`B. Willful infringement
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`The VW Defendants assert the Complaint does not allege a plausible claim of pre-suit
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`willful infringement. They contend the Complaint does not allege facts which show VWGoA or
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`VWGoA Operations had knowledge of either asserted patent. The VW Defendants agree the
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`Complaint alleges they had knowledge of a patent application. (Dkt. No. 24 at 14.) However,
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`they contend the Federal Circuit has held that knowledge of a patent application does not provide
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`notice of a patent as a matter of law.
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`The VW Defendants further assert the Complaint does not allege a plausible claim for
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`post-suit willful infringement. The VW Defendants say Blitzsafe has not sought an injunction
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`and the Complaint “merely recites the legal elements of the claim, which does not state a claim
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`for relief.” (Dkt. No. 24 at 15.)
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`Blitzsafe responds by contending it has stated a claim for willful infringement because
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`VWGoA had pre-suit knowledge of the ’786 patent. Blitzsafe asserts VWGoA had pre-suit
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`knowledge of the patent because VWGoA cited the patent application that issued as the ’786
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`patent (the “Marlowe Application”) in an inter partes reexamination that it filed a year after the
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`’786 patent had issued. (Dkt. No. 33 at 11.) Blitzsafe further contends it disclosed the Marlow
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`Application to VWGoA in 2003, when Blitzsafe provided audio integration systems to VWGoA.
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`(Dkt. No. 22 at ¶ 20.)
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`The Court finds the Complaint alleges a plausible case of pre-suit willful infringement.
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`The Court finds VWGoA could have learned of the ’786 patent when it cited the Marlowe
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`Application in a Patent Office proceeding. The proceeding occurred a year after the ’786 patent
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`issued. Thus, the Court finds it is plausible to infer that when VWGoA investigated the Marlowe
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`Application in 2010, it discovered that the Marlowe Application had issued as the ’786 patent in
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`2009.
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`Furthermore, the Court notes that the Federal Circuit’s holding in State Industries, Inc. v.
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`A.O. Smith Corp., 751 F.2d 1226 (Fed. Cir. 1985) stands for the proposition that a party cannot
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`have notice of claims in a patent unless the claims already exist. The Federal Circuit’s holding
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`also implies that a party is not obligated to continually monitor every patent application to which
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`it has been exposed. However, State Industries does not hold that no matter the context, a party’s
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`exposure to a patent application cannot give rise to knowledge of the claims in a later-issued
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`patent. For example, if an accused infringer receives notice of a patent application for which a
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`notice of allowance has been issued, the accused infringer may well be found to have knowledge
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`Case 2:15-cv-01278-JRG-RSP Document 27 Filed 08/19/16 Page 13 of 14 PageID #: 514
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`of the claims when they issue. See 37 C.F.R. 1.311 (“If, on examination, it appears that the
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`applicant is entitled to a patent under the law, a notice of allowance will be sent to the applicant
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`at the correspondence address indicated in § 1.33.”). This makes sense because the law does not
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`reward willful blindness. See Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769
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`(2011) (“[A] willfully blind defendant is one who takes deliberate actions to avoid confirming a
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`high probability of wrongdoing and who can almost be said to have actually known the critical
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`facts.”); see also Script Sec. Sols. L.L.C. v. Amazon.com, LLC, Case No. 2:15-cv-1030-WCB,
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`2016 WL 1055827, at **6, 8 (E.D. Tex. Mar. 17, 2016) (Bryson, J.) (“Script has pleaded the
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`specific products alleged to infringe . . . that the defendants arranged to remain willfully blind to
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`Script’s patents by adopting a policy of not reviewing the patents of others.”).
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`The Court also finds the Complaint states a claim to post-suit willful infringement. The
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`Complaint notifies the VW Defendants of the patents that they are accused of infringing. It also
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`recites facts which state a plausible claim of direct and indirect infringement. The Complaint
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`alleged that despite these facts, the VW Defendants have not ceased their infringing activities.
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`(See Dkt. No. 22 at ¶ 20.) The Complaint implies that acting in this manner is “willful, wanton,
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`malicious bad-faith, deliberate, consciously wrongful, flagrant, or [] characteristic of a pirate.”
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`Halo, 136 S. Ct. at 1932. The Court finds it is plausible to infer from these facts that the VW
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`Defendants could be deliberately continuing to infringe despite notice they are infringing the
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`asserted patents.
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`Finally, the Court rejects the VW Defendants’ argument that Blitzsafe’s claim of post-
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`filing willful infringement should be dismissed because it did not seek a preliminary injunction.
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`The Federal Circuit has held that there is a link between a preliminary injunction and post-filing
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`willful infringement but a patentee does not always need to seek an injunction to ask for
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`Case 2:15-cv-01278-JRG-RSP Document 27 Filed 08/19/16 Page 14 of 14 PageID #: 515
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`enhanced damages. “[P]reliminary injunctions can be denied even when a defendant has not
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`raised ‘substantial question[s]’ about invalidity or infringement.” Aqua Shield v. Inter Pool
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`Cover Team, 774 F.3d 766 (Fed. Cir. 2014). For the reasons above, the Court finds that the
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`Complaint states a claim for willful infringement.
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`CONCLUSION
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`In sum, the Court RECOMMENDS that The VW Defendants’ Motion to Dismiss (Dkt.
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`No. 24) be DENIED. A party’s failure to file written objections to the findings, conclusions, and
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`recommendations in this report by SEPTEMBER 5, 2016 shall bar that party from de novo
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`review by the district judge of those findings, conclusions, and recommendations and, except on
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`grounds of plain error, from appellate review of unobjected-to factual findings, and legal
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`conclusions accepted and adopted by the district court. Fed. R. Civ. P. 72(b)(2); see Douglass v.
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`United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
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