Case 2:21-cv-00040-JRG Document 34-5 Filed 05/18/21 Page 1 of 5 PageID #: 363
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`Exhibit 8
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`Case 3:12-cv-06375-JST Document 31 Filed 05/31/13 Page 1 of 12Case 2:21-cv-00040-JRG Document 34-5 Filed 05/18/21 Page 2 of 5 PageID #: 364
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`I. NEEL CHATTERJEE (STATE BAR NO. 173985)
`nchatterjee@orrick.com
`VICKIE L. FEEMAN (STATE BAR NO. 177487)
`vfeeman@orrick.com
`JESSE CHENG (STATE BAR NO. 259909)
`jcheng@orrick.com
`JAMES FREEDMAN (STATE BAR NO. 287177)
`jfreedman@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`1000 Marsh Road
`Menlo Park, California 94025
`Telephone:
`+1-650-614-7400
`Facsimile:
`+1-650-614-7401
`
`Attorneys for Defendant
`NVIDIA CORPORATION
`
`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`FUZZYSHARP TECHNOLOGIES, INC,
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`Case No. 12-cv-6375-JST
`
`Plaintiff,
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`v.
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`NVIDIA CORPORATION,
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`Defendant.
`
`DEFENDANT NVIDIA
`CORPORATION’S MOTION TO
`DISMISS PLAINTIFF FUZZYSHARP’S
`AMENDED COMPLAINT PURSUANT
`TO FED. R. CIV. P. 12(b)(6)
`
`Date:
`Time:
`Dept:
`Judge:
`
`July 11, 2013
`2:00 p.m.
`Courtroom 9, 19th Floor
`Jon S. Tigar
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`ORRICK, HERRINGTON &
`SUTCLIFFE LLP
`ATTORNEYS AT LAW
`SILICON VALLEY
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`DEFENDANT NVIDIA’S MOTION TO DISMISS
`PLAINTIFF FUZZYSHARP’S AMENDED COMPLAINT
`PURSUANT TO FED. R. CIV. P. 12(b)(6)
`12-CV-6375-JST
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`Case 3:12-cv-06375-JST Document 31 Filed 05/31/13 Page 4 of 12Case 2:21-cv-00040-JRG Document 34-5 Filed 05/18/21 Page 3 of 5 PageID #: 365
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`I.
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`MEMORANDUM OF POINTS AND AUTHORITIES
`ISSUE STATEMENT PURSUANT TO L.R. 7-4(a)(3)
`1. Should Fuzzysharp’s Amended Complaint be dismissed with prejudice for failure to
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`state a claim because Fuzzysharp alleges only ongoing infringement of expired
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`patents?
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`2. Should Count Two of Fuzzysharp’s Amended Complaint be dismissed in its entirety
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`with prejudice because Fuzzysharp disregarded this Court’s prior Dismissal Order and
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`failed to correct fatal errors in its pleadings?
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`3. Should Fuzzysharp’s claims of willful infringement be dismissed with prejudice
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`because Fuzzysharp was unable or unwilling to plead facts supporting its allegations
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`as required by this Court’s prior Dismissal Order?
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`II.
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`INTRODUCTION
`Fuzzysharp’s Amended Complaint is its third attempt to allege colorable claims of patent
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`infringement against NVIDIA. Two years after dismissing its first suit, Fuzzysharp initiated the
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`present case with a complaint fraught with errors and unsupported by facts. Although Fuzzysharp
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`has now dropped its inadequately pled claims of indirect infringement, its Amended Complaint is
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`still fatally flawed, suffering from many of the same deficiencies that previously resulted in
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`dismissal of its complaint.
`Once again, Fuzzysharp alleges that NVIDIA (or Intel) “is engaged in wilful (sic) . . .
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`infringement” of the asserted patents. Docket No. 29 (FAC) at ¶¶ 17, 19 (emphasis added).
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`Such allegations should be dismissed for two reasons. First, Fuzzysharp cannot, as a matter of
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`law, accuse NVIDIA of ongoing infringement because the asserted patents expired nearly six
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`months before Fuzzysharp filed suit. Second, Fuzzysharp has not pled facts that show NVIDIA
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`acted despite a high likelihood of infringing a known and valid patent, as required for willful
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`infringement. In responding to this Court’s determination that its willfulness pleadings were
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`insufficient, Fuzzysharp simply added an incorrect allegation that it sued NVIDIA in this District
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`on September 10, 2010. Docket No. 29 (FAC) at ¶ 15. Ignoring the errors in this statement,
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`SUTCLIFFE LLP
`ATTORNEYS AT LAW
`SILICON VALLEY
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`Judge Armstrong’s ruling that the patents were invalid made mere notice of the patents
`DEFENDANT NVIDIA’S MOTION TO DISMISS
`PLAINTIFF FUZZYSHARP’S AMENDED COMPLAINT
`PURSUANT TO FED. R. CIV. P. 12(b)(6)
`12-CV-6375-JST
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`- 2 -
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`Case 3:12-cv-06375-JST Document 31 Filed 05/31/13 Page 5 of 12Case 2:21-cv-00040-JRG Document 34-5 Filed 05/18/21 Page 4 of 5 PageID #: 366
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`insufficient to support an inference that NVIDIA acted despite an objectively high likelihood that
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`its actions constituted infringement of a valid patent.
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`Moreover, Count Two of Fuzzysharp’s Amended Complaint still alleges infringement of
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`an otherwise unidentified “’0479” patent by “Defendant Intel,” a non-party to this action.
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`See Docket No. 29 (FAC) at ¶ 19. Fuzzysharp should not be afforded yet another opportunity to
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`articulate its claims at NVIDIA’s expense when it is either unwilling or unable to cure
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`previously-identified deficiencies.
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`III.
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`FUZZYSHARP’S FAILED ATTEMPTS TO ASSERT CLAIMS AGAINST NVIDIA
`As set forth in NVIDIA’s prior motion, Fuzzysharp first sued NVIDIA on U.S. Patent
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`Nos. 6,172,679 and 6,618,047 (the “’679 patent” and “’047 patent”) on November 16, 2009,
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`just one month before all asserted claims of those patents were found invalid by Judge
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`Armstrong. See Freedman Decl., Ex. A (Docket Sheet for Fuzzysharp Techs. Inc. v. NVIDIA et
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`al., Case No. 5:10-cv-01844 (N.D. Cal. filed Nov. 16, 2009) (“NVIDIA I”)); see Fuzzysharp
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`Techs. Inc. v. 3D Labs, Inc., No. C 09-5948 SBA, 2009 WL 4899215 (N.D. Cal. Dec. 11, 2009),
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`at *5 (“3DLabs”), vacated 447 Fed. App’x. 182 (Fed. Cir. 2011); see also Docket No. 18
`(Motion) at 13-14; Docket No. 24 (Reply) at 3-5.1 Following Judge Armstrong’s invalidity ruling
`in 3DLabs, NVIDIA twice requested that Fuzzysharp dismiss its claims. Each time, Fuzzysharp
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`refused to do so, forcing NVIDIA to engage in a year of unnecessary litigation before Fuzzysharp
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`finally voluntarily dismissed its case when faced with the possibility of sanctions. See Freedman
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`Decl., Ex. A (NVIDIA I Docket Sheet); Ex. B (NVIDIA I, Docket No. 83 (Nov. 1, 2010 Notice of
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`Voluntary Dismissal)); Ex. C (NVIDIA I, Docket No. 86 (Nov. 4, 2010 Order)); Ex. D
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`(Transcript of Nov. 1, 2010 Proceedings Before Judge Ware in NVIDIA I) at 2-3, 10-11.
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`1 To the extent necessary, NVIDIA respectfully requests that this Court take judicial notice of
`Plaintiff’s prior litigation, including the proceedings of NVIDIA I and 3DLabs. See Intrix-Plex
`Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (internal quotations
`omitted) (noting that “[a] court may take judicial notice of matters of public record without
`converting a motion to dismiss into a motion for summary judgment, as long as the facts noticed
`are not subject to reasonable dispute”).
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`- 3 -
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`DEFENDANT NVIDIA’S MOTION TO DISMISS
`PLAINTIFF FUZZYSHARP’S AMENDED COMPLAINT
`PURSUANT TO FED. R. CIV. P. 12(b)(6)
`12-CV-6375-JST
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`ATTORNEYS AT LAW
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`Case 3:12-cv-06375-JST Document 31 Filed 05/31/13 Page 12 of 12Case 2:21-cv-00040-JRG Document 34-5 Filed 05/18/21 Page 5 of 5 PageID #: 367
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`Cir. 2009)) (internal quotations and alterations omitted)).
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`V.
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`CONCLUSION
`NVIDIA respectfully requests that the Court dismiss the entirety of Fuzzysharp’s
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`Amended Complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6).
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`The Amended Complaint, which alleges only ongoing infringement of expired patents, should be
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`dismissed with prejudice because it does not state a claim upon which relief can be granted.
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`In the alternative, all claims of willful infringement should be dismissed with prejudice because
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`Fuzzysharp has not and cannot allege facts to support such claims. Count Two should also be
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`dismissed with prejudice because Fuzzysharp failed to correct the same errors that resulted in
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`dismissal of its first complaint, and Fuzzysharp should no longer be permitted to assert the
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`’047 patent against NVIDIA.
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`Dated: May 31, 2013
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`Orrick, Herrington & Sutcliffe LLP
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`By:
`
`/s/ I. Neel Chatterjee
`I. NEEL CHATTERJEE
`Attorneys for Defendant
`NVIDIA CORPORATION
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`- 10 -
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`DEFENDANT NVIDIA’S MOTION TO DISMISS
`PLAINTIFF FUZZYSHARP’S AMENDED COMPLAINT
`PURSUANT TO FED. R. CIV. P. 12(b)(6)
`12-CV-6375-JST
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`