Case 2:16-cv-00992-JRG Document 39 Filed 12/28/16 Page 1 of 10 PageID #: 330
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`UNILOC USA, INC. and UNILOC
`LUXEMBOURG, S.A.,
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`Plaintiffs,
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`v.
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`MOTOROLA MOBILITY LLC,
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`Defendant.
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`Civil Action No. 2:16-cv-992-JRG
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`DEFENDANT MOTOROLA MOBILITY LLC’S
`REPLY IN SUPPORT OF ITS MOTION TO DISMISS
`PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)
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`

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`Case 2:16-cv-00992-JRG Document 39 Filed 12/28/16 Page 2 of 10 PageID #: 331
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`III.
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`UNILOC’S COMPLAINT FAILS TO IDENTIFY THE ACCUSED
`INSTRUMENTALITIES.................................................................................................1
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`UNILOC’S COMPLAINT DOES NOT PLAUSIBLY PLEAD FACTS
`SUPPORTING ITS ALLEGATIONS OF SPECIFIC INTENT FOR INDUCED
`INFRINGEMENT ...........................................................................................................3
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`UNILOC’S COMPLAINT DOES NOT PLAUSIBLY PLEAD FACTS
`SUPPORTING ITS ALLEGATION OF SUBSTANTIAL NON-INFRINGING
`USES FOR CONTRIBUTORY INFRINGEMENT .........................................................5
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`i
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ..........................................................................................................1, 3
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`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ..............................................................................................................1
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`Core Wireless Licensing S.A.R.L. v. Apple Inc.,
`No. 6:14-cv-752-JRG-JDL, 2015 WL 4910427 (E.D. Tex. Aug. 14, 2015)............................4
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`Norman IP Holdings, LLC v. TP-Link Techs., Co,
`No. 6:13-cv-384-LED-JDL, 2014 WL 12378807 (E.D. Tex. Mar. 5, 2014) ...........................4
`
`Ruby Sands LLC v. Am. Nat’l Bank of Texas,
`No. 2:15-cv-1955-JRG, 2016 WL 3542430 (E.D. Tex. June 28, 2016) ..................................1
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`Tierra Intelectual Borinquen, Inc. v. ASUS Computer Int’l, Inc.,
`No. 2:13-CV-38-JRG, 2014 WL 894805 (E.D. Tex. Mar. 4, 2014)........................................3
`
`U.S. Ethernet Innovations, LLC v. Cirrus Logic, Inc.,
`No. 6:12-cv-366-MHS-JDL, 2013 WL 8482270 (E.D. Tex. Mar. 6, 2013) ............................4
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`Uniloc USA, Inc. v. Avaya Inc.,
`No. 6:15-cv-1169-JRG, Doc. 48, Slip Op. (E.D. Tex. May 13, 2016) ........................ 1, 2, 3, 5
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`Rules
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`Rule 8 .....................................................................................................................................1, 4
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`Rule 12(b)(6) ..............................................................................................................................1
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`ii
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`Uniloc’s brief in opposition to Motorola’s motion to dismiss relies extensively on this
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`Court’s decision in Uniloc USA, Inc. v. Avaya Inc., No. 6:15-cv-1169-JRG, Doc. 48, Slip Op.
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`(E.D. Tex. May 13, 2016) (“Avaya Slip Op.”).
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`In fact, Uniloc refers to Avaya on nearly every
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`page of its brief. But this case is not Avaya. Motorola is entitled to fair notice of Uniloc’s claims
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`against Motorola so that it can understand what it is accused of, adequately defend itself, and
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`properly shape the contours of discovery. See also Ashcroft v. Iqbal, 556 U.S. 662, 678-79
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`(2009) (“Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing
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`more than conclusions.”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (complaint must
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`“give the defendant fair notice of what the . . . claim is and the grounds upon which it rests”).
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`Uniloc therefore cannot demand this Court to rubber stamp its Complaint simply because it is
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`“substantively the same” as a complaint this Court previously approved. Opp. at 1.
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`Indeed,
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`pleading is not a one-size-fits-all exercise. See also Ruby Sands LLC v. Am. Nat’l Bank of Texas,
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`No. 2:15-cv-1955-JRG, 2016 WL 3542430, at *5 (E.D. Tex. June 28, 2016) (noting that Rule
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`12(b)(6) was meant to address “cut-and-paste pleading practices”). This is a distinct case
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`involving different parties, different patents, and different technologies. The law requires that
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`Uniloc plead plausible facts to state a claim with respect to Motorola, but Uniloc’s Complaint
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`fails to provide any reasonable basis for this suit.
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`I.
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`UNILOC’S COMPLAINT FAILS TO IDENTIFY THE ACCUSED
`INSTRUMENTALITIES
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`Uniloc’s Complaint alleges that certain Motorola smartphones “and associated servers
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`perform instant voices messaging over Wi-Fi and the Internet.” Complaint ¶¶ 30, 41, 52, 63.
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`Nevertheless, as set forth in Motorola’s opening brief, Uniloc’s Complaint never identifies what
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`these accused “associated servers” might be. Mot. at 5. Tellingly, Uniloc does not dispute that
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`these servers are critical to its infringement allegations against Motorola. See id.
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`Though Uniloc refers in its brief to “servers using WiFi and the Internet” (Opp. at 5), it
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`has stopped short of articulating what the accused “associated servers” might be. Instead, Uniloc
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`points to screenshots from the Complaint and images in Exhibit E. Opp. at 2, 7-10. However,
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`these only purport to show various aspects of Motorola smartphones themselves, not identify any
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`“associated servers.” See Opp. at 7-10; Complaint ¶¶ 11-29; Complaint, Ex. E. While Uniloc is
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`correct that Motorola smartphones can communicate via servers (Opp. at 6 n.4), nothing in these
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`screenshots, Exhibit E, or any other portion of the Complaint allows Motorola to discern what
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`the servers that are integral to Uniloc’s direct infringement allegations might be or even what
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`entity provides the servers. Is Uniloc accusing the wireless “Wi-Fi” routers ubiquitous in homes
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`across the country, the servers of “Internet” service providers, severs belonging to cell phone
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`carriers, or something else? Because the Complaint does not state any claim for joint
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`infringement, which Uniloc does not deny, it is unclear which “servers” could plausibly give rise
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`to a claim of direct infringement against Motorola.1 See Mot. at 6-7.
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`Uniloc’s reliance on Avaya is misplaced for the same reason. See Opp. at 4. In Avaya,
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`Uniloc had clearly accused “Unified Communication software including, without limitation, the
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`Avaya Aura Suites, Core, Power, Foundation, Mobility and Collaboration, including Avaya
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`Communicator with Presence and Multimedia messaging capabilities.” Avaya Slip Op. at 5.
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`The Court there observed that Uniloc had “identified by name the accused products.” Id. at 7.
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`Here, unlike in Avaya, Uniloc has simply failed to identify some of the accused instrumentalities
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`– the “associated servers” – central to its direct infringement allegations. Thus, this is not a
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`request for an “element-by-element disclosure,” as Uniloc contends. Opp. at 10. Rather,
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`1 Motorola originally raised the lack of joint infringement allegations with respect to the servers
`of cell phone carriers, which Uniloc’s opposition does not reference. However, this argument
`would similarly apply to wireless router suppliers, Internet service providers, or other servers
`provided by any third party.
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`2
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`Motorola has highlighted a failure by Uniloc to identify the accused instrumentalities, without
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`which the allegations of Uniloc’s Complaint are deficient and must be dismissed.
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`II.
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`UNILOC’S COMPLAINT DOES NOT PLAUSIBLY PLEAD FACTS
`SUPPORTING ITS ALLEGATIONS OF SPECIFIC INTENT FOR INDUCED
`INFRINGEMENT
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`Uniloc’s allegations of induced infringement rely solely on instructions to customers
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`based on three websites: www.motorola.com, https://motorola-global-portal.custhelp.com, and
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`www.youtube.com. Mot. at 8.2 Uniloc does not dispute that these URLs are merely generic
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`pointers to “myriad possible pages of content,” but instead relies on Avaya to argue that further
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`detail is not required. See Opp. at 12 n.6.
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`In Avaya, Uniloc identified “links to publicly
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`available documents” – eight pinpoint URLs identifying specific PDF documents and a discrete
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`YouTube video – supporting its allegations that Avaya had intent to induce infringement. Avaya
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`Slip Op. at 8; ECF No. 25, Ex. A. (Avaya Complaint) ¶ 22; Mot. at 8-9. Here, these three high-
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`level URLs are too open-ended and vague to even evaluate whether they plausibly support
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`Uniloc’s claims,
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`let alone provide Motorola with notice of how it supposedly induces
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`infringement.3
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`They provide no meaningful detail
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`to offer plausible factual support of
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`Motorola’s intent, such that
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`the Complaint amounts to no more than mere “labels and
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`conclusions,” which are insufficient. See Iqbal, 556 U.S. at 678; see also Tierra Intelectual
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`Borinquen, Inc. v. ASUS Computer Int’l, Inc., No. 2:13-CV-38-JRG, 2014 WL 894805, at *2
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`2 Uniloc’s brief refers to Exhibit E, which purports to identify “fifteen devices and specific web
`pages containing information regarding those devices.” Opp. at 12 n.6. However, Uniloc never
`suggests in its Complaint or brief that these web pages form the factual basis of its induced
`infringement allegations.
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`3 Indeed, given that Uniloc’s indirect infringement allegations are limited to post-filing conduct
`(see Mot. at 10 n.2), it is fundamentally unfair to keep Motorola in the dark about this conduct it
`only now stands accused of but cannot reasonably evaluate.
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`3
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`(“[T]he facts pled must allow the Court to draw the reasonable inference that the defendant is
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`liable for the misconduct alleged.”).
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`Uniloc attempts to distinguish the cases Motorola relies upon to show that the allegations
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`of the Complaint in the form of three high-level URLs do not support a reasonable inference that
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`Motorola possessed specific intent to induce infringement of the patents-in-suit. See Mot. at 9-
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`10. But these attempts are unavailing, as Uniloc erroneously assumes that the three high-level
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`URLs leading to an enormous universe of information lend some factual support beyond the
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`Complaint’s naked reference to “instructions.” In Core Wireless the Court rejected the argument
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`that bare allegations of “provid[ing] instructive materials,” without accompanying facts, could
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`support an allegation of specific intent to induce infringement. Core Wireless Licensing S.A.R.L.
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`v. Apple Inc., No. 6:14-cv-752-JRG-JDL, 2015 WL 4910427, at *4 (E.D. Tex. Aug. 14, 2015).
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`Uniloc’s Complaint here similarly lacks any allegation of “how the instructions direct customers
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`to use those products in an infringing manner,” given the high-level URLs do not provide any
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`insight, and thus “falls short of satisfying Rule 8’s notice requirement.” Id. That the Complaint
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`supposedly identifies “which functionalities of the accused products are at issue” (see Opp. at
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`13), does not cure Uniloc’s failure to provide some meaningful factual allegation of what these
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`instructions are. See Norman IP Holdings, LLC v. TP-Link Techs., Co, No. 6:13-cv-384-LED-
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`JDL, 2014 WL 12378807, at *3 (E.D. Tex. Mar. 5, 2014) (allegation of “provid[ing] related
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`services, specifications, and instructions” are “too conclusory” and require “[f]urther facts”); see
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`also U.S. Ethernet Innovations, LLC v. Cirrus Logic, Inc., No. 6:12-cv-366-MHS-JDL, 2013 WL
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`8482270, at *4 (E.D. Tex. Mar. 6, 2013) (providing “instructions” to customers who allegedly
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`infringe does “not create a reasonable inference of inducement” ).
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`4
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`Finally, Uniloc resorts to a strawman, incorrectly citing to “Mot. at 5” for the idea that
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`Motorola is somehow seeking from Uniloc “element-by-element infringement contentions within
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`the original complaint to properly state a claim for [in]direct infringement.” See Opp. at 12
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`(alteration in original). However, the quoted language is from the Court’s Avaya decision, not
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`Motorola’s motion, and comes from the Court’s analysis of direct infringement allegations. See
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`Avaya Slip Op. at 5. Motorola is not seeking any element-by-element allegations. Rather,
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`Motorola is seeking some identification of which website content plausibly supports Uniloc’s
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`allegations.
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`III.
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`UNILOC’S COMPLAINT DOES NOT PLAUSIBLY PLEAD FACTS
`SUPPORTING ITS ALLEGATIONS OF SUBSTANTIAL NON-INFRINGING
`USES FOR CONTRIBUTORY INFRINGEMENT
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`Uniloc’s complaint fails to provide any factual support for its bald assertion that
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`“Motorola Android IVM smartphones” have no “substantial non-infringing use.” See Mot. at 11.
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`In its opposition brief, Uniloc’s only rejoinder is to shield itself behind Avaya, arguing that the
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`Court already found the same allegations to be sufficient. See Opp. at 15. However, Avaya is
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`not a cell phone maker and the accused products in Avaya did not include smartphones. See
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`Avaya Slip Op. at 5. Tellingly, Uniloc does not dispute that the accused Motorola smartphones
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`are capable of thousands of substantial non-infringing uses, a fact the Court can discern from its
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`“own judicial experience and common sense.” See Mot. at 12. Therefore, Uniloc’s Complaint
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`fails to state a claim for contributory infringement.
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`5
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`Case 2:16-cv-00992-JRG Document 39 Filed 12/28/16 Page 9 of 10 PageID #: 338
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`Dated: December 28, 2016
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`Respectfully submitted,
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`By: /s/Robert W. Unikel
`Robert W. Unikel (pro hac vice)
`KAYE SCHOLER LLP
`70 W. Madison St., Suite 4200
`Chicago, IL 60602-4231
`Telephone: 312-583-2300
`Facsimile: 312-583-2360
`Email: robert.unikel@kayescholer.com
`
`Michael E. Jones
`Texas State Bar No. 10929400
`Mikejones@potterminton.com
`Potter Minton, A Professional Corporation
`110 North College, Suite 500
`Tyler, TX 75702
`Telephone: (903) 597-8311
`Facsimile: (903) 593-0846
`
`Attorneys for Motorola Mobility LLC
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`6
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`Case 2:16-cv-00992-JRG Document 39 Filed 12/28/16 Page 10 of 10 PageID #: 339
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record who have consented to electronic service are
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`being served with a copy of this document via electronic mail on December 28, 2016.
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`/s/ Robert W. Unikel
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`