Case 2:21-cv-00040-JRG Document 23 Filed 04/27/21 Page 1 of 19 PageID #: 211
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`CASE NO. 2:21-cv-00040-JRG
`(Lead Case)
`
`JURY TRIAL DEMANDED
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`
`
`CASE NO. 2:21-cv-00041-JRG
`(Member Case)
`
`JURY TRIAL DEMANDED
`
`§
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` §
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`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`v.
`
`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
`
`Defendants.
`
`
`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`Defendants.
`
`DEFENDANTS SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG
`ELECTRONICS AMERICA, INC.’S MOTION TO DISMISS
`PURSUANT TO FED. R. CIV. P. 12(b)(6)
`
`
`
`
`
`

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`Case 2:21-cv-00040-JRG Document 23 Filed 04/27/21 Page 2 of 19 PageID #: 212
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`TABLE OF CONTENTS
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`
`Page
`
`
`I.
`
`II.
`
`III.
`
`IV.
`
`INTRODUCTION ............................................................................................................. 1
`
`LEGAL STANDARD ........................................................................................................ 2
`
`ARGUMENT ..................................................................................................................... 3
`
`A.
`
`GTP Fails to State a Claim for Direct Infringement Under § 271(a) ..................... 3
`1.
`GTP’s Allegations for the ’924 Patent Are Not Sufficient ........................ 5
`2.
`GTP’s Allegations for the ’431 Patent Are Not Sufficient ........................ 6
`3.
`GTP’s Allegations for the ’949 Patent Are Not Sufficient ........................ 7
`4.
`GTP’s Allegations for the ’079 Patent Are Not Sufficient ........................ 8
`GTP Fails to State a Claim for Induced Infringement Under § 271(b) ................. 8
`B.
`GTP Fails to State a Claim for Willful Infringement Under § 284 ..................... 12
`C.
`CONCLUSION ................................................................................................................ 13
`
`-i-
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`

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`Case 2:21-cv-00040-JRG Document 23 Filed 04/27/21 Page 3 of 19 PageID #: 213
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .............................................................................................................2, 10
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) .............................................................................................................2, 11
`
`Chapterhouse, LLC v. Shopify, Inc.,
`No. 2:18-CV-00300-JRG, 2018 WL 6981828 (E.D. Tex. Dec. 10, 2018) ............................2–5
`
`Commil USA, LLC v. Cisco Sys., Inc.,
`575 U.S. 632 (2015) ...........................................................................................................3, 8, 9
`
`Diem LLC v. BigCommerce, Inc.,
`No. 6:17-CV-186-JRG-RDL, 2017 WL 9935521 (E.D. Tex. May 11, 2017) ...........................2
`
`Disc Disease Sols. Inc. v. VGH Sols., Inc.,
`888 F.3d 1256 (Fed. Cir. 2018)..............................................................................................2, 5
`
`Eli Lilly & Co. v. Teva Parenteral Meds., Inc.,
`845 F.3d 1357 (Fed. Cir. 2017)............................................................................................3, 11
`
`Glob.-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754 (2011) .................................................................................................................11
`
`Halo Elecs., Inc. v. Pulse Elecs., Inc.,
`136 S. Ct. 1923 (2016) ...................................................................................................3, 12, 13
`
`Huawei Techs. Co. v. T-Mobile US, Inc.,
`Nos. 2:16-cv-00052-JRG-RSP, et al., 2017 WL 1129951 (E.D. Tex. Feb. 21,
`2017) ........................................................................................................................................12
`
`Innova Hosp. San Antonio Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc.,
`892 F.3d 719 (5th Cir. 2018) .............................................................................................10, 11
`
`Kimble v. Marvel Entm’t, LLC,
`576 U.S. 446 (2015) .................................................................................................................12
`
`Motiva Patents, LLC v. Sony Corp.,
`408 F. Supp. 3d 819 (E.D. Tex. 2019) .......................................................................2, 3, 11, 13
`
`Opticurrent, LLC v. Power Integrations, Inc.,
`No. 2:16-cv-325-JRG, 2016 WL 9275395 (E.D. Tex. Oct. 19, 2016) ................................3, 12
`
`-ii-
`
`

`

`Case 2:21-cv-00040-JRG Document 23 Filed 04/27/21 Page 4 of 19 PageID #: 214
`
`TABLE OF AUTHORITIES
`(continued)
`
`
`
`Page(s)
`
`Plano Encryption Techs., LLC v. Alkami Tech., Inc.,
`Nos. 2:16-cv-1032-JRG, et al., 2017 WL 8727249 (E.D. Tex. Sept. 22, 2017) ......................12
`
`Uniloc USA, Inc. v. Motorola Mobility LLC,
`No. 2:16-cv-992-JRG, et al., 2017 WL 3721064 (E.D. Tex. May 15, 2017) ..........................12
`
`VStream Techs., LLC v. PLR IP Holdings, LLC,
`No. 6:15-cv-974-JRG-RDL, Dkt. 153 (E.D. Tex. Aug. 24, 2016) ............................................2
`
`Wolcott v. Sebelius,
`635 F.3d 757 (5th Cir. 2011) ...................................................................................................10
`
`Wooten v. McDonald Transit Assocs., Inc.,
`788 F.3d 490 (5th Cir. 2015) ...................................................................................................11
`
`Statutes
`
`35 U.S.C. § 271(a) .............................................................................................................1, 2, 3, 13
`
`35 U.S.C. § 271(b) ................................................................................................................. passim
`
`35 U.S.C. § 284 ................................................................................................................1, 3, 12, 13
`
`Other Authorities
`
`Rule 12(b)(6) ............................................................................................................................1, 2, 4
`
`-iii-
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`

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`Case 2:21-cv-00040-JRG Document 23 Filed 04/27/21 Page 5 of 19 PageID #: 215
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`
`
`I.
`
`INTRODUCTION
`
`Plaintiff Gesture Technology Partners, LLC’s (“GTP”) Complaint accuses Defendants
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`Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. (collectively, “Samsung”)
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`of direct infringement, inducement, and willful infringement with respect to the Asserted Patents.1
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`Samsung brings this motion to dismiss these claims pursuant to Rule 12(b)(6) for failure to state a
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`claim on which relief can be granted under the Iqbal/Twombly standard. GTP’s Complaint is rife
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`with legal conclusions, but devoid of factual allegations.
`
`To begin, GTP’s Complaint fails to plead facts sufficient to make a plausible claim of direct
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`infringement of any of the Asserted Patents. GTP merely included screenshots purporting to show
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`certain of Samsung’s camera-related features and alleged that the Accused Products infringe.
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`GTP’s Complaint makes no attempt to explain how the screenshots support its allegation that the
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`Accused Products and Accused Features embody individual claim elements. That is insufficient
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`to sustain a claim under 35 U.S.C. § 271(a) in light of this Court’s precedent.
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`In addition to the deficiencies in GTP’s claims for direct infringement, GTP’s claims for
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`induced infringement and willful infringement are also deficient. Even considering all reasonable
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`inferences in GTP’s favor, there is no plausible allegation that Samsung became aware of the
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`Asserted Patents before GTP filed its Complaint. And by the time GTP filed its Complaint, each
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`of the Asserted Patents had expired and passed into the public domain. As a result, GTP has not
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`(and cannot) plead facts that Samsung had the requisite knowledge and intent to sustain claims
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`under 35 U.S.C. §§ 271(b) and 284.
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`Samsung respectfully requests that the Court dismiss GTP’s claims of direct infringement,
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`induced infringement, and willful infringement.
`
`
`1 U.S. Patent Nos. 8,194,924 (“the ’924 Patent”); 7,933,431 (“the ’431 Patent”); 8,553,079 (“the
`’079 Patent”); and 8,878,949 (“the ’949 Patent”) (collectively, “the Asserted Patents”).
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`-1-
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`

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`
`
`II.
`
`LEGAL STANDARD
`
`Federal Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a complaint if it
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`“fails to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6); Motiva Patents,
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`LLC v. Sony Corp., 408 F. Supp. 3d 819, 826 (E.D. Tex. 2019). In evaluating a motion to dismiss,
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`the Court must “accept all well-pleaded facts in the complaint as true and view the facts in the light
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`most favorable to the plaintiff.” Id. at 827 (citation omitted). The Court must then determine
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`“whether those facts state a claim for relief that is plausible on its face.” Id. (citation omitted).
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`This “plausibility standard” is met when the complaint pleads enough facts to raise a reasonable
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`expectation that discovery will reveal evidence in support of the alleged claims. Id. (citing Bell
`
`Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). It follows that a court should permit discovery
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`to proceed “unless the complaint recites no more than sheer speculation” about the facts entitling
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`plaintiff to relief. Id. “[T]hreadbare recitals of a cause of action’s elements, supported by mere
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`conclusory statements,” do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).
`
`In order to satisfy the Iqbal/Twombly pleading requirements for direct infringement under
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`35 U.S.C. § 271(a), a complaint must “provid[e] facts sufficient to create a plausible inference that
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`each element of the claim is infringed by the accused products.” Diem LLC v. BigCommerce, Inc.,
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`No. 6:17-CV-186-JRG-RDL, 2017 WL 9935521, at *2 (E.D. Tex. May 11, 2017). The “key to
`
`[pleading] patent infringement is not just identifying [accused] products, but identifying how those
`
`products allegedly infringe the Asserted Patent claims.” See VStream Techs., LLC v. PLR IP
`
`Holdings, LLC, No. 6:15-cv-974-JRG-RDL, Dkt. 153 at 7 (E.D. Tex. Aug. 24, 2016). “[M]ere
`
`conclusory statement[s]” are insufficient. Chapterhouse, LLC v. Shopify, Inc., No. 2:18-CV-
`
`00300-JRG, 2018 WL 6981828, at *2 (E.D. Tex. Dec. 10, 2018). A patent defendant is entitled to
`
`“fair notice of what the claim is and the ground upon which it rests.” Disc Disease Sols. Inc. v.
`
`VGH Sols., Inc., 888 F.3d 1256, 1260 (Fed. Cir. 2018) (citation omitted).
`
`-2-
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`

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`
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`To sustain a claim under 35 U.S.C. § 271(b), a complaint must plead facts alleging the
`
`defendant’s “intent to induce infringement.” Eli Lilly & Co. v. Teva Parenteral Meds., Inc., 845
`
`F.3d 1357, 1364 (Fed. Cir. 2017). “Specifically, ‘induced infringement requires that the defendant
`
`knew about the patent and that the induced acts would amount to patent infringement.’” Motiva
`
`Patents, 408 F. Supp. 3d at 828 (citation omitted). See also Commil USA, LLC v. Cisco Sys., Inc.,
`
`575 U.S. 632, at 637, 642 (2015) (“Global-Tech . . . requires proof the defendant knew the acts
`
`were infringing.”).
`
`Like § 271(b), a claim under 35 U.S.C. § 284 requires proof of the defendant’s
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`“knowledge” and “intent.” The pleading requirement to allege facts as to the defendant’s intent is
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`slightly different under § 284, however. To sustain a claim under § 284, the complaint must plead
`
`facts alleging “conduct which could plausibly rise to the level of being characteristic of a pirate.”
`
`Opticurrent, LLC v. Power Integrations, Inc., No. 2:16-cv-325-JRG, 2016 WL 9275395, at *2
`
`(E.D. Tex. Oct. 19, 2016) (“To recover enhanced damages on a claim for willful infringement,
`
`courts should consider the subjective willfulness of a patent infringer”) (citation omitted); Halo
`
`Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1932 (2016) (“The sort of conduct warranting
`
`enhanced damages has been variously described in our cases as willful, wanton, malicious, bad-
`
`faith, deliberate, consciously wrongful, flagrant, or—indeed—characteristic of a pirate.”).
`
`III. ARGUMENT
`A.
`
`GTP Fails to State a Claim for Direct Infringement Under § 271(a)
`
`This Court has dismissed complaints alleging direct infringement where “the Complaint
`
`does not contain materially more than . . . bare bones allegations . . . .” Chapterhouse, 2018 WL
`
`6981828, at *2. In Chapterhouse, plaintiff alleged infringement of four patents which contained
`
`13 independent claims covering both hardware and software involved in a single ecommerce
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`system for electric transaction receipt systems. Id. at *2–3. Plaintiff’s complaint broke out the
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`-3-
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`

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`
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`exemplary claim for each asserted patent into individual elements with “supporting screenshots”
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`for each element, but did not provide any explanation linking the screenshot(s) to the claim
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`element(s) they purportedly illustrated. Id. This Court granted defendant’s motion to dismiss the
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`direct infringement claims as to all four patents, holding that plaintiff failed to meet the Rule
`
`12(b)(6) pleading standard. Id. (“While screenshots may be useful in laying out a plausible
`
`allegation of patent infringement, Plaintiff must further allege how the screenshots meet the text
`
`of the exemplary claim in order to lay out sufficient factual allegations which might permit the
`
`Court to find that the Iqbal/Twombly standard is met.”)
`
`Here, the Complaint is even more deficient than the complaint in Chapterhouse and should
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`similarly be dismissed. GTP asserts four patents, which contain ten independent claims purporting
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`to cover both hardware and software involved in using mobile phone cameras to assist a user to
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`interact with their phone. Compl. ¶ 21. GTP accuses at least five different series of Samsung
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`mobile devices, and five different individual products.2 GTP identifies 25 different camera-related
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`features3 without any further explanation. Compl. ¶¶ 24–25. The screen shots in GTP’s Complaint
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`relate to only four of the Accused Features. Compl. ¶¶ 25, 27–30.
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`Unlike the plaintiff in Chapterhouse, GTP does not break out the exemplary claim for each
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`Asserted Patent with supporting screenshots, does not identify which features it believes infringe
`
`
`2 See Compl. ¶ 24 (“Exemplary accused infringing smartphones and tablets include, but are not
`limited to, the Samsung Galaxy Note Series, S Series, Z Series, A Series, M Series, Galaxy Tab
`S7/7+, S6, S5, and S4 . . . .) (“Accused Products”).
`3 See Compl. ¶ 25 (“The Accused Products have features including, but not limited to, at least the
`following: Gesture Detection, Smile Shutter, Iris Scan Unlock, Face ID Unlock, Intelligent Scan
`Unlock, Tracking Autofocus, Selfie Focus, Smart OIS, Smart Stay, Smart Pause, Smart Scroll,
`Blur Background, Adjust Blur, Face Location, Active Shape Connection, Internet Transfer After
`Sense (E.G., QR Code), Bixby Vision, Control Exposure Based On Location, Live Masks
`Track/Apply, Live Stickers Track, AR Emoji, Beauty Mode, Portrait Mode, and Smile
`Shot . . . .” (“Accused Features”).
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`-4-
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`

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`
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`which Asserted Patents, and does no more than provide a bare bones recitation of the claim while
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`generally averring to the Accused Products and Features. See, e.g., Compl. ¶¶ 35–41, 49–56, 64–
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`72, 79–85. The only factual evidence GTP submits is four screenshots from Samsung’s website
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`covering only a fraction of the Accused Features. GTP does not allege how these screenshots meet
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`the language of the exemplary claims, which claim elements the screenshots purportedly satisfy,
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`or which features allegedly infringe which claims. The Complaint is so vague that Samsung cannot
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`reasonably prepare an Answer – Samsung would have to guess which specific components of the
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`Accused Products, and which specific Accused Features, are alleged to infringe which specific
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`patents and which specific claims. This Court’s holding in Chapterhouse is directly on point, and
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`GTP’s direct infringement allegations should similarly be dismissed here.
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`The examples below further demonstrate that GTP has failed to plead facts sufficient to
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`give Samsung “fair notice of what the claim is and the ground upon which it rests.” Disc Disease,
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`888 F.3d at 1260 (emphasis added).4
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`1.
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`GTP’s Allegations for the ’924 Patent Are Not Sufficient
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`GTP’s factual allegations in support of its direct infringement claim for the ’924 Patent are
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`insufficient for at least two reasons:
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`First, Claim 1 (called out in GTP’s Complaint at paragraph 35) requires “wherein the
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`computer is adapted to perform a control function of the handheld device based on at least one of
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`the first camera output and the second camera output.” ’924 Patent 26:62–64. The Complaint
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`circularly references “the control functions associated with the Features,” and refers to control
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`functions such as “acquiring or taking images, reading things, determining data, transmitting data,
`
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`4 GTP’s infringement contentions are due to be served the day after the filing of this motion.
`Samsung proposed the parties request an agreed extension of the responsive pleadings deadline
`until after service of the infringement contentions to potentially resolve these issues without
`motion practice. GTP declined Samsung’s proposal.
`
`-5-
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`
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`printing data, and actuating a vehicle or function.” Compl. ¶¶ 41, 33. However, the Complaint
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`does not tie these control functions to the Accused Features. It is impossible for Samsung to know
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`what Accused Feature GTP accuses of “actuating a vehicle,” for example, since the screenshots
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`do not mention this control function at all. GTP’s references to “reading things” and “transmitting
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`data” are similarly vague and unknowable.
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`Second, the Complaint only vaguely references the claim limitations without identifying
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`which of the 25 Accused Features supposedly perform each claim limitation. Claim 1 requires
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`“wherein the first and second cameras include non-over lapping fields of view.” ’924 Patent
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`26:61–62. The Complaint merely repeats the claim language and does not identify a non-
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`overlapping field of view. Compl. ¶ 40. The screenshots make no reference to overlapping fields
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`of view and the Complaint does not identify which Accused Features supposedly utilize non-
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`overlapping fields of view. Claim 1 also requires a “first camera output” and a “second camera
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`output.” ’924 Patent 26:57–59. The Complaint never identifies the “camera output” other than to
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`say it exists “when used.” Compl. ¶¶ 38–39. The Complaint also does not identify which Accused
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`Features require the use of two cameras.
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`2.
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`GTP’s Allegations for the ’431 Patent Are Not Sufficient
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`GTP’s factual allegations in support of GTP’s direct infringement claim for the ’431 Patent
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`are also insufficient. Claim 7 of the ’431 Patent (called out in GTP’s Complaint at paragraph 50)
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`requires “means for controlling a function of said apparatus using said information.” ’431 Patent
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`26:4–5. The Complaint states that “[t]he Accused Products use information about the object to
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`control a function of the Accused Products, such as the functions associated with the Features.”
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`Compl. ¶ 56. As with the ’924 Patent, the Complaint fails to tie the 25 Accused Features to the
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`“functions” supposedly infringing the claim. This is particularly problematic given that this is a
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`means plus function limitation, the scope of which is limited by the corresponding algorithm (if
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`-6-
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`

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`
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`any) disclosed in the specification. None of the control functions described by the screenshots
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`(e.g., turning the device off or muting alerts) are identified by the Complaint as the purported
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`claimed “functions” for alleged infringement of this claim.
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`3.
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`GTP’s Allegations for the ’949 Patent Are Not Sufficient
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`GTP’s factual allegations in support of GTP’s direct infringement claim for the ’949 Patent
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`are insufficient for several reasons:
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`First, Claim 1 of the ’949 Patent (called out in GTP’s Complaint at paragraph 66) requires
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`a “device housing including a forward facing portion, the forward facing portion of the device
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`housing encompassing an electro-optical sensor . . . and including a digital camera separate from
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`the electro-optical sensor” ‘949 Patent 15:21–26. The Complaint fails to identify an “electro-
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`optical sensor,” which is not a commonly used term of art. Further, the Complaint fails to identify
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`the “electro-optical sensor” that is “separate from” a digital camera, and instead abbreviates the
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`claim language to eliminate that requirement: “The housing has a forward-facing portion that
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`includes an electro-optical sensor . . . and a digital camera.” Compl. ¶ 68 (emphasis added). The
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`Complaint fails to identify an electro-optical sensor separate from a digital camera as required by
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`the claim.
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`Claim 1 further recites that “the processing unit is adapted to: . . . control the digital camera
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`in response to the gesture . . . wherein the gesture corresponds to an image capture command,
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`and wherein the image capture command causes the digital camera to store an image to
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`memory.” ’949 Patent 15:28–37 (emphasis added). The Complaint fails to plead allegations with
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`respect to these claim limitations, instead abbreviating the claim language to eliminate these
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`requirements and merely averring, “The processing unit of the Accused Products controls the
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`digital camera in response to the gesture performed.” Compl. ¶ 71.
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`-7-
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`4.
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`GTP’s Allegations for the ’079 Patent Are Not Sufficient
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`Lastly, GTP’s factual allegations in support of its direct infringement claim for the ’079
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`Patent are similarly insufficient. As an initial matter, GTP failed to attach the correct ’079 Patent
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`to the Complaint—attaching U.S. Patent No. 8,533,079 rather than the Asserted Patent—U.S.
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`Patent No. 8,553,079.5 Claim 11 of the ’079 Patent (called out in GTP’s Complaint at paragraph
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`81) requires, inter alia, “a light source adapted to illuminate a human body part within a work
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`volume generally above the light source.” ’079 Patent 13:32–33. The Complaint merely repeats
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`the claim language and identifies neither the light source nor the body part that is illuminated: “The
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`Accused Products contain a light source that will illuminate a human body part.” Compl. ¶ 83.
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`The screenshots do not identify a “light source” or “body parts” that are specific to Claim 11. It
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`is entirely unclear whether the alleged light source is found on the Accused Products, is natural
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`light surrounding the human body part, or something else. It is also unclear what human body part
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`is being illuminated, e.g., the iris, the hands, or something else. Further, the Complaint does not
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`identify what, in relation to the Accused Products, is the claimed “work volume.” The Complaint
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`also fails to identify which of the 25 Accused Features are allegedly covered by the claim.
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`B.
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`GTP Fails to State a Claim for Induced Infringement Under § 271(b)
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`Liability for induced infringement requires: (1) an act of direct infringement by a third
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`party; (2) knowledge of the patent by the alleged inducer; and (3) knowledge by the alleged inducer
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`that its conduct induced infringement of the patent. See generally Commil USA, 575 U.S. 632.
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`GTP’s Complaint does not set forth any factual basis to support a finding that Samsung had the
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`requisite intent to induce infringement.
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`5 A true and correct copy of the ’079 Patent is attached as Exhibit 1.
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`-8-
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`
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`In this case, all of the Asserted Patents expired many months before GTP filed its
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`Complaint on February 4, 2021, and over a year before for one of the Patents.6 Because the
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`Asserted Patents had expired by the time GTP filed suit, there could be no act of direct
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`infringement at any time after February 4, 2021, and any knowledge that Samsung had of the
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`Asserted Patents on or after the filing of the Complaint is therefore irrelevant. GTP must therefore
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`plead, at the very minimum, that Samsung possessed “pre-suit knowledge” of the Asserted Patents
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`to sustain a cause of action for inducement. GTP’s Complaint, however, failed to plead pre-suit
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`knowledge and failed to plead any facts to support a plausible allegation that Samsung both (1)
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`knew the Asserted Patents existed before GTP filed the Complaint, and (2) knew its conduct
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`induced infringement of the Asserted Patents.
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`At most, GTP set forth bare legal conclusions that Samsung induced infringement for each
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`Asserted Patent. See Compl. ¶¶ 46, 61, 76, 90. (“Samsung performed these steps, which constitute
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`induced infringement with the knowledge of the [Asserted Patents] and with the knowledge that
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`the induced acts constitute infringement.”). Indeed, GTP’s Complaint offers a singular allegation
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`to support its claim for § 271(b) liability:
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`Samsung has also indirectly infringed one or more claims of the [Asserted Patents]
`by inducing others to directly infringe the [Asserted Patents]. . . . Samsung took
`active steps, directly or through contractual relationships with others, with the
`specific intent to cause [end-users and other third-parties] to use the Accused
`Products in a manner that infringes one or more claims of the [Asserted
`Patents], . . . Samsung performed
`these steps, which constitute
`induced
`infringement with the knowledge of the [Asserted Patents] and with the knowledge
`that the induced acts constitute infringement.
`
`
`Id. This allegation is nothing more than a recital of the cause of action for induced infringement.
`
`See Commil USA, 575 U.S. at 640 (“[L]iability for induced infringement can only attach if the
`
`
`6 The ’924 and ’431 Patents expired on July 7, 2020; the ’949 Patent expired on May 11, 2020;
`and the ’079 Patent expired on November 3, 2019.
`
`-9-
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`

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`Case 2:21-cv-00040-JRG Document 23 Filed 04/27/21 Page 14 of 19 PageID #: 224
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`
`
`defendant knew of the patent and knew as well that ‘the induced acts constitute patent
`
`infringement’”) (citation omitted); Iqbal, 556 U.S. at 678 (holding that courts “are not bound to
`
`accept as true a legal conclusion couched as a factual allegation”). To survive a motion to dismiss,
`
`GTP’s legal conclusion “must be supported by factual allegations.” Id. at 679. But GTP’s legal
`
`conclusion cannot be supported by any plausible factual allegation that Samsung had pre-suit
`
`knowledge of the Asserted Patents. Indeed, GTP only states that Samsung had knowledge of the
`
`Asserted Patents “at least as of the filing of this Complaint.” Compl. ¶¶ 45, 60, 75, 89 (emphasis
`
`added). If GTP had a good-faith basis to allege Samsung’s pre-suit, it would have done so.7 See
`
`generally Exhibit 2 (GTP v. Apple Inc., No. 6:21-cv-00121-ADA (W.D. Tex.), Dkt. No. 1) ¶¶ 19–
`
`24 (“Discussions with Apple”); Id. ¶ 48 (“Apple had knowledge of the ’924 patent at least as early
`
`as June 2016, when GTP contacted Apple in an attempt to license the Asserted Patents.”).8
`
`In Motiva Patents, this Court analyzed inducement allegations similar to those made here.
`
`See Exhibit 3 (No. 9:18-cv-00179-JRG-KFG, Dkt. No. 1) ¶¶ 68–69 (“Defendant performed these
`
`steps, which constitute induced infringement, with the knowledge of the Asserted Patents and with
`
`
`7 On the same day GTP filed this case against Samsung, it filed four nearly identical complaints in
`this Court and in the Western District of Texas against other defendants, alleging infringement of
`the same patents and raising the same exemplary claim for each patent. The complaints differ,
`however, in alleging when each defendant became aware of the Asserted Patents. See, e.g., GTP
`v. Huawei Device Co., et al., No. 2:21-cv-00040 (E.D. Tex.); GTP v. Apple Inc., No. 6:21-cv-
`00121 (W.D. Tex.); GTP v. Lenovo Grp. Ltd., et al., No. 6:21-cv-00122 (W.D. Tex.); and GTP v.
`LG Elecs., Inc., et al., No. 6:21-cv-00123 (W.D. Tex.). On April 19, 2021, the Court consolidated
`the present case against Samsung with the case against Huawei. See No. 2:21-cv-00041, Dkt. No.
`13.
`8 Samsung respectfully requests that the Court take judicial notice of GTP’s complaint in the
`parallel case. Innova Hosp. San Antonio Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc., 892
`F.3d 719, 726 (5th Cir. 2018) (“[A] court ruling on a 12(b)(6) motion may rely on the complaint,
`its proper attachments, ‘documents incorporated into the complaint by reference, and matters of
`which a court may take judicial notice.’” (quoting Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir.
`2011)).
`
`-10-
`
`

`

`Case 2:21-cv-00040-JRG Document 23 Filed 04/27/21 Page 15 of 19 PageID #: 225
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`
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`the knowledge that the induced acts would constitute infringement.”). 9 There, this Court
`
`determined that Motiva did not allege “actual knowledge for the pre-suit period.” Motiva Patents,
`
`408 F. Supp. 3d at 833. This Court held, however, that Motiva adequately pled defendant’s
`
`knowledge for the pre-suit period because it alleged “willful blindness.” Id. at 833–34; Exhibit 3
`
`¶¶ 71–73; see also Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 768 (2011) (holding a
`
`defendant’s “willful blindness” to infringing conduct supports a finding of § 271(b) liability).
`
`Here, as in Motiva Patents, the Complaint does not allege “actual knowledge for the pre-suit
`
`period” to sustain a claim for § 271(b) liability. 408 F. Supp. 3d at 834. And unlike the complaint
`
`in Motiva Patents, GTP does not (and has no basis to) allege that Samsung “has been willfully
`
`blind” to GTP’s patents. Id. at 825. At bottom, GTP’s Complaint does not set forth any “factual
`
`basis” to support a finding that Samsung had the “requisite intent to induce infringement.” Eli
`
`Lilly & Co., 845 F.3d at 1364. Cf. Motiva Patents, 408 F. Supp.3d at 833 (concluding that Motiva
`
`sufficiently alleged “a factual basis” for § 271(b) liability). Thus, GTP’s allegation that Samsung
`
`induced infringement rests on “sheer speculation” that discovery will uncover the requisite
`
`knowledge to support § 271(b) liability. Id. at 827 (citing Wooten v. McDonald Transit Assocs.,
`
`Inc., 788 F.3d 490, 498 (5th Cir. 2015)). That is not enough.
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`GTP’s failure to plead facts to establish a “reasonable expectation” that Samsung had
`
`knowledge of the Asserted Patents before February 4, 2021 is fatal to GTP’s claim because the
`
`patents had all expired before the Complaint was filed.10 See Twombly, 550 U.S. at 556. And
`
`
`9 Samsung respectfully requests that the Court take judicial notice of the complaint filed in Case
`No. 9:18-cv-00179-JRG-KFG (E.D. Tex. filed Oct. 3, 2018). See Innova Hosp., 892 F.3d at 726.
`10 For the ’079 Patent, GTP alleges that “Samsung’s inducement is ongoing.” Compl. ¶ 90. This
`legal conclusion is likely a drafting error that appears to be repeated across each of GTP’s five
`complaints. See, e.g., Exhibit 2 ¶ 93 (“Apple has also indirectly infringed one or more claims of
`the ’079 patent by inducing others to directly infringe the ’079 patent. . . . Apple’s inducement is
`ongoing.”).
`
`-11-
`
`

`

`Case 2:21-cv-00040-JRG Document 23 Filed 04/27/21 Page 16 of 19 PageID #: 226
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`
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`when a patent expires, the right to make or use the claimed invention “passes to the public.”
`
`Kimble v. Marvel Entm’t, LLC, 576 U.S. 446, 451 (2015). Simply put, Samsung could not possibly
`
`have infringed the Asserted Patents, or have had the “requisite intent to induce infringement” of