Case 2:21-cv-00040-JRG Document 35 Filed 05/20/21 Page 1 of 9 PageID #: 368
`
`IN THE UNITED STATES DISTRICT
`COURT FOR THE EASTERN DISTRICT
`OF TEXAS MARSHALL DIVISION
`
`GESTURE TECHNOLOGY PARTNERS,
`LLC,
`
`Plaintiff
`
`v.
`
`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
`
`Defendants.
`
`JURY TRIAL DEMANDED
`
`C.A. NO. 2:21-cv-00040-JRG
`
` LEAD CONSOLIDATED CASE
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS AMERICA,
`INC.,
`
`C.A. NO. 2:21-cv-00041-JRG
`
`Defendants.
`
`RESPONSE TO DEFENDANTS HUAWEI DEVICE CO., LTD AND HUAWEI DEVICE
`USA, INC.’S PARTIAL MOTION TO DISMISS
`
`

`

`Case 2:21-cv-00040-JRG Document 35 Filed 05/20/21 Page 2 of 9 PageID #: 369
`
`Plaintiff Gesture Technology Partners, LLC (“GTP”) files this Response to Defendants
`
`Huawei Device Co., Ltd. and Huawei Device USA, Inc. (collectively, “Defendants”) Motion to
`
`Dismiss GTP’s Complaint (the “Motion” or “Mot.”), Dkt. No. 28. For the following reasons, the
`
`Motion should be denied in its entirety.
`
`I.
`
`INTRODUCTION
`
`The Motion fails for one primary reason: Defendants inappropriately seek to parse GTP’s
`
`claims by dividing the case into a pre-filing phase and a post-filing phase. Defendants have
`
`inadequate legal support for their proposed division at the pleading stage and arrive at their position
`
`only by ignoring the Court’s prior decisions and the entirety of the Complaint’s allegations. The
`
`Motion should therefore be denied.
`
`II.
`
`LEGAL STANDARD
`
`Rule 12(b)(6) – Motions to Dismiss. In the Fifth Circuit, a “motion to dismiss under rule
`
`12(b)(6) ‘is viewed with disfavor and is rarely granted.’” Collins v. Morgan Stanley Dean Witter,
`
`224 F.3d 496, 498 (5th Cir. 2000) (quoting Kaiser Aluminum & Chem. Sales v. Avondale
`
`Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). “Federal Rule of Civil Procedure
`
`12(b)(6) authorizes a court to dismiss a complaint if the complaint ‘fail[s] to state a claim upon
`
`which relief can be granted.’” Script Sec. Sols. L.L.C. v. Amazon.com, Inc., 170 F. Supp. 3d 928,
`
`935 (E.D. Tex. 2016) (Bryson, J.) (quoting FED. R. CIV. P. 12(b)(6)). “The question resolved on a
`
`motion to dismiss for a failure to state a claim is not whether the plaintiff will ultimately prevail,
`
`‘but whether
`
`[the]
`
`complaint was
`
`sufficient
`
`to
`
`cross
`
`the
`
`federal
`
`court's
`
`threshold.’” Id. (quoting Skinner v. Switzer, 562 U.S. 521, 530 (2011)). The “plaintiff is generally
`
`required to provide ‘only a plausible “short and plain” statement of the plaintiff's claim . . .’” Id. at
`
`936 (quoting Skinner, 562 U.S. at 530; Fed. R Civ. P. 8(a)(2)) (alteration in original).
`
`1
`
`

`

`Case 2:21-cv-00040-JRG Document 35 Filed 05/20/21 Page 3 of 9 PageID #: 370
`
`The plausibility standard is satisfied when the complaint pleads “enough facts to raise a
`
`reasonable expectation that discovery will reveal evidence” in support of the alleged claims. Id.
`
`Thus, particularly when the relevant information is beyond the plaintiff’s access, the courts should
`
`generally permit discovery to proceed unless the complaint recites no more than sheer speculation
`
`about the plaintiff’s entitlement to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 679
`
`(2009) (“Determining whether a complaint states a plausible claim for relief will . . . be a context-
`
`specific task that requires the reviewing court to draw on its judicial experience and common
`
`sense.”).
`
`Rule 15(a) – Leave to Amend. When deciding motions to dismiss, Federal Rule 15(a)
`
`instructs the courts to “freely give leave [to amend] when justice so requires,” within the discretion
`
`of the Court. FED. R. CIV. P. 15(a)(2); Wapp Tech Ltd. P’ship v. Micro Focus Int’l, PLC, 406 F.
`
`Supp. 3d 585, 593 (E.D. Tex. 2019) (Mazzant, J.). This Court has interpreted Federal Rule 15(a)
`
`to “evince[] a bias in favor of granting leave to amend.” Wapp Tech Ltd. P’ship, 406 F. Supp. 3d
`
`at 593 (quoting Jones v. Robinson Prop Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005)). Indeed,
`
`“district courts must entertain a presumption in favor of granting parties leave to amend.” Dueling
`
`v. Devon Energy Corp., 623 Fed. Appx. 127, 129 (5th Cir. 2015) (quoting Mayeaux v. La. Health
`
`Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004)) (internal citation omitted) (holding the
`
`district court abused its discretion in denying plaintiffs’ request for leave to amend).
`
`Induced Infringement. “Whoever actively induces infringement of a patent shall be liable
`
`as an infringer.” 35 U.S.C. § 271(b). “[I]nducement can be found where there is [e]vidence of
`
`active steps taken to encourage direct infringement.” Barry v. Medtronic, Inc., 914 F.3d 1310,
`
`1334 (Fed. Cir. 2019) (citations omitted). Inducement also has a knowledge requirement—
`
`“liability for inducing infringement attaches only if the defendant knew of the patent and that ‘the
`
`2
`
`

`

`Case 2:21-cv-00040-JRG Document 35 Filed 05/20/21 Page 4 of 9 PageID #: 371
`
`induced acts constitute patent infringement.’” Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct.
`
`1920, 1926 (2015) (quoting Global–Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011)).
`
`Knowledge of the patent can be shown directly or through evidence of willful blindness on the
`
`part of the alleged infringer. See Motiva Patents, LLC v. Sony Corp., 408 F. Supp. 3d 819, 828
`
`(E.D. Tex. 2019) (Gilstrap, C.J.) (collecting relevant Supreme Court and Federal Circuit cases).
`
`In order to prove knowledge by evidence of willful blindness, the patentee must show that (1) the
`
`defendant “subjectively believes that there is a high probability that a fact exists and (2) the
`
`defendant must have taken deliberate actions to avoid learning of that fact.” Global–Tech, 563
`
`U.S. at 769 (citations omitted).
`
`Enhanced Damages. “In a case of infringement, courts ‘may increase the damages up to
`
`three times the amount found or assessed.’” Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923,
`
`1928 (2016) (quoting 35 U.S.C. § 284). “[A] case presenting ‘subjective bad faith’ alone could
`
`‘sufficiently . . . warrant [an enhanced] fee award,’” Halo, 136 S. Ct. at 1933 (quoting Octane
`
`Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 555 (2014)), as long as the patent
`
`infringer’s conduct was “willful, wanton, malicious, bad-faith, deliberate, consciously wrongful,
`
`flagrant, or—indeed—characteristic of a pirate.” Halo, 136 S. Ct. at 1932. This Court has found
`
`that “a well-pled claim for willful blindness is sufficient to state a claim for willful infringement.”
`
`See Motiva Patents, 408 F. Supp. 3d at 836–38 (explaining that this determination is “squarely
`
`consistent” with the Supreme Court’s holdings in Global-Tech and Halo and to hold otherwise
`
`would present a “legal quagmire”).
`
`III.
`
`ARGUMENT
`
`A. GTP Has Plausibly Pled Induced Infringement.
`
`Defendants’ argument that the Complaint fails to plead pre-suit knowledge sufficiently (see
`
`Dkt. No. 28, Mot. at 5-6) lacks merit because the Court has repeatedly held that “pre-suit” and
`3
`
`

`

`Case 2:21-cv-00040-JRG Document 35 Filed 05/20/21 Page 5 of 9 PageID #: 372
`
`“post-suit” indirect infringement claims should not be evaluated separately at the pleading stage.
`
`For example, in Lochner Techs., LLC v. AT Labs Inc., No. 2:11-CV-242, 2012 U.S. Dist. LEXIS
`
`92924, at *9-10 (E.D. Tex. Jul. 5, 2012) (Gilstrap, J.), the Court declined to dismiss the plaintiff’s
`
`indirect infringement claims, even though plaintiff did not allege pre-suit knowledge of the
`
`asserted patents. The Court rejected the defendants’ argument that there was a “‘pleading
`
`deficiency at least with respect to any allegedly infringing activities that pre-date the filing of the
`
`Original Complaint’” and denied defendants’ motion to dismiss on that basis. Id.; see also Cellular
`
`Comms. Equip. LLC v. HTC Corp., No. 6:13-CV-507, 2015 U.S. Dist. LEXIS 179461, at *26-27
`
`(E.D. Tex. Mar. 27, 2015) (Davis, J.) (denying motion to dismiss indirect infringement claims
`
`based on failure to allege pre-suit knowledge); Inmotion Imagery Techs. v. Brain Damage Films,
`
`No. 2:11-CV-414-JRG, 2012 U.S. Dist. LEXIS 112630, at *3-4 (E.D. Tex. Aug. 10, 2012)
`
`(Gilstrap, J.) (same). The Court’s subsequent jurisprudence confirms that there is no reason “to
`
`depart from the reasoning of these cases.” Alacritech Inc. v. Centurylink, Inc., No. 2:16-CV-
`
`00693-RWS-RSP, 2017 U.S. Dist. LEXIS 155687, at *8-9 (E.D. Tex. Sept. 4, 2017) (Payne, J.)
`
`(denying motion to dismiss pre-suit indirect infringement claims because plaintiff alleged
`
`knowledge of the asserted patents as of service of the complaint). As in those cases, the instant
`
`Complaint alleges for each Asserted Patent that “Huawei had knowledge of [the Asserted Patents]
`
`at least as of the filing of this Complaint. Compl. at ¶¶ 41, 56, 71, 85.
`
`Furthermore, by alleging that Defendants had knowledge “at least as of the filing of this
`
`Complaint,” GTP has described pre-suit knowledge by Defendants; “[t]he implication is that
`
`[Defendant] induced infringement before the complaint was filed. Viewing the facts in the light
`
`most favorable to [Plaintiff], the complaint describes pre-suit conduct.” Estech Sys., Inc. v. Target
`
`Corp., 2020 U.S. Dist. LEXIS 209893, at *17 (Aug. 27, 2020) (Payne, J.) (denying motion to
`
`4
`
`

`

`Case 2:21-cv-00040-JRG Document 35 Filed 05/20/21 Page 6 of 9 PageID #: 373
`
`dismiss indirect infringement claim where plaintiff alleged defendant’s knowledge of the asserted
`
`patents “at least as of the date when it was notified of the filing of this action.”). Viewing the facts
`
`in the light most favorable to GTP, the complaint describes pre-suit knowledge that extends to a
`
`period prior to the expiration of the patents-in-suit. This allegation is sufficient at the pleading
`
`stage under the Court’s precedent.
`
`Defendants argue that GTP’s claims for willful infringement should be dismissed for the
`
`same reason. This argument should also fail. GTP has properly pled that Defendants were willful
`
`in their infringement of the Asserted Patents before the lawsuit was filed. See Compl. ¶¶ 42, 57,
`
`72, 87. That is more than sufficient to satisfy the pleading standard. Courts have expressly held
`
`that pre-suit knowledge of an asserted patent is not required to state a claim for willful infringement
`
`even when the asserted patent expired before the complaint was filed. Fuzzysharp Techs. Inc. v.
`
`Nvidia Corp., 2013 U.S. Dist. LEXIS 126989, *10, 2013 WL 4766877 (N.D. Ca. Dept. 4, 2013)
`
`(“The Court concludes that the pre-suit expiration of a patent is not dispositive of a claim for
`
`willful infringement. Indeed, ‘an expired patent may form the basis of an action for past damages
`
`subject to the six-year limitation under 35 U.S.C. § 286.’ . . . the question of whether the alleged
`
`infringement occurred ‘during the term of the patent’ as required by 35 U.S.C. § 271 is a question
`
`of fact that cannot be resolved on a motion to dismiss.”) (quoting Genetics Inst., LLC v. Novartis
`
`Vaccines & Diagnostics, Inc., 655 F.3d 1291, 1299 (Fed. Cir. 2011) (emphasis added)).
`
` Defendants’ request to dismiss GTP’s inducement and willful infringement claims should
`
`therefore be denied.
`
`B. If a More Definitive Statement Is Required, GTP Should Be Granted Leave to
`Amend.
`
`As shown above, GTP has satisfied the pleading requirements of the Federal Rules at this
`
`stage of the litigation. If, however, the Court finds that GTP’s Complaint falls short in any way
`
`5
`
`

`

`Case 2:21-cv-00040-JRG Document 35 Filed 05/20/21 Page 7 of 9 PageID #: 374
`
`raised by the Motion, the appropriate remedy is not dismissal but rather an order that GTP be
`
`granted leave to amend the Complaint to remedy any ambiguity to the extent that information is
`
`publicly available. See Wapp Tech L.P., 406 F. Supp. 3d at 600 (granting motion to dismiss and
`
`granting plaintiffs leave to amend).
`
`IV.
`
`CONCLUSION
`
`For the foregoing reasons, GTP respectfully requests that the Motion be denied in its
`
`entirety. In the alternative, GTP respectfully requests that the Court grant GTP leave to amend its
`
`Complaint to cure any deficiencies.
`
`Dated: May 20, 2021
`
`Respectfully submitted,
`By: /s/ Fred I. Williams
`Fred I. Williams
`Texas State Bar No. 00794855
`Michael Simons
`Texas State Bar No. 24008042
`Jonathan L. Hardt
`Texas State Bar No. 24039906
`WILLIAMS SIMONS & LANDIS PLLC
`327 Congress Ave., Suite 490
`Austin, TX 78701
`Tel: 512-543-1354
`fwilliams@wsltrial.com
`msimons@wsltrial.com
`jhardt@wsltrial.com
`
`Todd E. Landis
`State Bar No. 24030226
`WILLIAMS SIMONS & LANDIS PLLC
`2633 McKinney Ave., Suite 130 #366
`Dallas, TX 75204
`Tel: 512-543-1357
`tlandis@wsltrial.com
`
`John Wittenzellner
`Pennsylvania State Bar No. 308996
`WILLIAMS SIMONS & LANDIS PLLC
`1735 Market Street, Suite A #453
`Philadelphia, PA 19103
`Tel: 512-543-1373
`6
`
`

`

`Case 2:21-cv-00040-JRG Document 35 Filed 05/20/21 Page 8 of 9 PageID #: 375
`
`johnw@wsltrial.com
`
`ATTORNEYS FOR PLAINTIFF
`
`7
`
`

`

`Case 2:21-cv-00040-JRG Document 35 Filed 05/20/21 Page 9 of 9 PageID #: 376
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on May 20, 2021 the undersigned caused a copy of
`
`the foregoing document to be served on all counsel of record, via the Court’s CM/ECF system,
`
`pursuant to the Federal Rules of Civil Procedure.
`
`/s/ Fred I. Williams
`Fred I. Williams
`
`