Case 2:21-cv-00040-JRG Document 34-4 Filed 05/18/21 Page 1 of 5 PageID #: 358
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`Exhibit 7
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`Case 2:16-cv-00693-RWS-RSP Document 60 Filed 10/03/16 Page 1 of 18 PageID #: 1378Case 2:21-cv-00040-JRG Document 34-4 Filed 05/18/21 Page 2 of 5 PageID #: 359
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Civil Action No. 2:16-cv-693-JRG
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`JURY TRIAL DEMANDED
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`ALACRITECH, INC.,
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`Plaintiff,
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`v.
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`TIER 3, INC.,
`SAVVIS COMMUNICATIONS CORP.,
`CENTURYLINK COMMUNICATIONS, LLC,
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`Defendants.
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`PLAINTIFF ALACRITECH’S RESPONSE IN OPPOSITION
`TO THE CENTURYLINK DEFENDANTS’ MOTION TO DISMISS
`INDIRECT INFRINGEMENT CLAIMS PURSUANT TO RULE 12(B)(6)
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`
`INTRODUCTION
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`I.
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`Defendants Tier 3,
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`Inc., Savvis Communications Corp., and CenturyLink
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`Communications LLC (collectively “CenturyLink”) assert three bases for dismissal of
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`Alacritech’s indirect infringement claims. None of CenturyLink’s arguments warrants dismissal
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`at this early pleading stage.
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`First, CenturyLink urges
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`the Court
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`to dismiss Alacritech’s “pre-suit”
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`indirect
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`infringement claims because Alacritech does not allege that CenturyLink had knowledge of
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`Alacritech’s asserted network acceleration technology patents, as required to plead indirect
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`infringement, prior to the filing and service of the original complaint. But CenturyLink does not
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`dispute that Alacritech has explicitly and sufficiently alleged that CenturyLink has known of
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`Alacritech’s asserted patents since at least the filing and service of the original complaint in this
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`action. As this Court has repeatedly found, this allegation is enough to allege the knowledge
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`Case 2:16-cv-00693-RWS-RSP Document 60 Filed 10/03/16 Page 9 of 18 PageID #: 1386Case 2:21-cv-00040-JRG Document 34-4 Filed 05/18/21 Page 3 of 5 PageID #: 360
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`and Babbage Holdings, LLC v. Activision Blizzard, Inc., No. 2-13-cv-750, 2014 WL 2115616
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`(E.D. Tex. May 15, 2014)). But neither case supports its novel theory.
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`In Bush Seismic, this Court dismissed indirect infringement claims in an original
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`complaint because there were no credible allegations of pre-suit knowledge and no allegations
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`that the defendants indirectly infringed post-filing with knowledge of the asserted patents from
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`the filing and service of the complaint because the patentee “could not have had a good faith
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`basis to allege…induced infringement based on post-suit conduct that had not yet occurred.”
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`Declaration of Stephen Morton, Dkt. No. 44 (“Morton Decl.”) Exh. 1 at 5. This Court explained:
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`“A patentee should not prospectively allege post-filing conduct in an original complaint. Rather,
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`if claims for…induced infringement arise after the lawsuit is filed, the patentee should amend its
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`complaint to include such claims.” Id. Thus, there were no credible allegations of knowledge—
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`pre-suit or post-suit—at all in Bush Seismic, and this Court accordingly dismissed the patentee’s
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`indirect infringement claim without prejudice to permit later amendment. In contrast,
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`CenturyLink here seeks to dismiss a portion of an indirect infringement claim in Alacritech’s
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`First Amended Complaint, where it was proper for Alacritech to allege knowledge based on the
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`filing and service of the original complaint, which had already occurred.
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`Similarly, in Babbage Holdings, there were no allegations of pre-suit knowledge of the
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`asserted patents and no plausible allegations of post-filing indirect infringement with knowledge
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`based on the filing and service of the complaint; in that case, the plaintiff’s patent expired less
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`than one week after he filed the complaint and before the summons and complaint were served.
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`Babbage Holdings, 2014 WL 2115616, at *1-2. The defendants in Babbage Holdings thus had
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`no opportunity to knowingly infringe. Thus, this Court dismissed that plaintiff’s indirect
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`Case 2:16-cv-00693-RWS-RSP Document 60 Filed 10/03/16 Page 10 of 18 PageID #: 1387Case 2:21-cv-00040-JRG Document 34-4 Filed 05/18/21 Page 4 of 5 PageID #: 361
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`
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`infringement claim in its totality. See id. In contrast, none of the asserted patents in this case
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`have expired and they are all enforceable against post-filing indirect infringement.
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`Unlike in Bush Seismic and Babbage Holdings, “it cannot be disputed that [Alacritech]
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`does sufficiently plead that [CenturyLink] had knowledge of the asserted patent for at least some
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`time during the infringing period” and, thus, an absence of allegations concerning pre-suit
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`knowledge of the asserted patents “is not a basis to dismiss…indirect infringement claims.”
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`Lochner, 2012 WL 2595288, at *3. CenturyLink’s motion to dismiss on this ground should be
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`denied.
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`B.
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`Alacritech Sufficiently Alleges That CenturyLink Had Specific Intent To
`Induce Infringement
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`CenturyLink next argues
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`that
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`this Court should dismiss Alacritech’s
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`induced
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`infringement claim for failure to allege specific intent. See Mot. at 5-7. In fact, the First
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`Amended Complaint’s specific intent allegations are more than sufficient to state a claim for
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`induced infringement at the pleading stage.
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`“[L]iability for inducing infringement attaches only if the defendant knew of the patent
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`and that ‘the induced acts constitute patent infringement.’” Commil USA, LLC v. Cisco Sys.,
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`Inc., --- U.S. ----, 135 S. Ct. 1920, 1926 (2015) (quoting Global Tech Appliances, Inc. v. SEB
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`S.A., 563 U.S. 754, 766 (2011)). “Knowledge of the patent can be shown directly or through
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`evidence of willful blindness on the part of the defendant.” Script Security Solutions L.L.C. v.
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`Amazon.com, Inc., No. 2:15-CV-1030, 2016 WL 1055827, at *6 (E.D. Tex. Mar. 17, 2016).
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`However, “it is not necessary to provide detailed factual support for each and every element of
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`inducement” at the pleading stage. Brain Damage Films, 2012 WL 3283371, at *3 (citing In re
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`Bill of Lading Transmission and Processing Sys. Patent Litig., 681 F.3d 1323 (Fed. Cir. 2012));
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`accord Motorola Mobility, Inc. v. Tivo Inc., No. 5:11-cv-053, 2012 WL 12840340, at *3 (E.D.
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`Case 2:16-cv-00693-RWS-RSP Document 60 Filed 10/03/16 Page 17 of 18 PageID #: 1394Case 2:21-cv-00040-JRG Document 34-4 Filed 05/18/21 Page 5 of 5 PageID #: 362
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`find that the First Amended Complaint’s allegations are insufficient to state a claim, Alacritech
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`respectfully requests that this Court dismiss without prejudice and grant leave to amend.
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`CenturyLink has not requested dismissal with prejudice or without leave to amend.
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`V.
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`CONCLUSION
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`Alacritech’s complaint sets forth sufficient allegations of indirect infringement to give
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`CenturyLink fair notice of the claims against them. Together, these detailed allegations are
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`sufficient to state plausible claims for relief. For these reasons, this Court should deny
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`CenturyLink’s motion. Should the Court determine that the allegations in the complaint are
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`insufficient, Alacritech respectfully requests that this Court dismiss without prejudice and grant
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`it leave to amend pursuant to Fed. R. Civ. P. 15.
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`
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`Dated: October 3, 2016
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`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
`
`/s/ Claude M. Stern (w/permission Andrea
`Fair)
`Claude M. Stern
`California State Bar No. 96737
`claudestern@quinnemanuel.com
`QUINN
`EMANUEL URQUHART &
`SULLIVAN, LLP
`555 Twin Dolphin Drive, 5th Floor
`Redwood Shores, CA 94065
`Telephone: (650) 801-5000
`Facsimile: (650) 801-5100
`
`Joseph M. Paunovich
`California State Bar No. 228222
`joepaunovich@quinnemanuel.com
`Jordan Brock Kaericher
`California State Bar No. 265953
`jordankaericher@quinnemanuel.com
`QUINN
`EMANUEL URQUHART &
`SULLIVAN, LLP
`865 South Figueroa Street, 10th Floor
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