Case 2:21-cv-00040-JRG Document 39 Filed 05/27/21 Page 1 of 7 PageID #: 412
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Plaintiff,
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`v.
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`Civil Action No. 2:21-cv-00040-JRG
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` (Lead Case)
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`Civil Action No. 2:21-cv-00041-JRG
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` (Member Case)
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`GESTURE TECHNOLOGY PARTNERS,
`LLC,
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`HUAWEI DEVICE CO., LTD., and
`HUAWEI DEVICE USA, INC.,
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`GESTURE TECHNOLOGY PARTNERS,
`LLC,
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`SAMSUNG ELECTRONICS CO., LTD.
`and SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
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`Plaintiff,
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`v.
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`Defendants.
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`DEFENDANTS HUAWEI DEVICE CO., LTD AND HUAWEI
`DEVICE USA, INC.’S REPLY IN SUPPORT OF THEIR PARTIAL MOTION TO
`DISMISS PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 2:21-cv-00040-JRG Document 39 Filed 05/27/21 Page 2 of 7 PageID #: 413
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`In its Response to Defendants’ Partial Motion to Dismiss (Dkt. No. 35), Gesture
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`Technology Partners, LLC (“GTP”) does not, and cannot, explain how its inducement and
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`willfulness claims survive despite the undisputed fact that each Asserted Patent was expired when
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`Huawei allegedly first learned of the Asserted Patents through the filing of the Complaint. This
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`fact undercuts GTP’s argument and distinguishes this case from the cases cited by GTP. A
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`plausible claim of inducement or willfulness requires, at a minimum, that Huawei had knowledge
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`of the Asserted Patents before expiration. The Complaint does not plead any facts that would
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`support such a claim. Thus, GTP’s inducement and willfulness claims should be dismissed.
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`I.
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`GTP HAS NOT PLED A PLAUSIBLE CLAIM OF INDUCED INFRINGEMENT
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`GTP does not dispute that all of the Asserted Patents expired before the Complaint was
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`filed. GTP also acknowledges that a plausible claim for induced infringement “attaches only if
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`defendant knew of the patent and that ‘the induced acts constitute patent infringement.’” Dkt. No.
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`35 at 2-3 (quoting Commil USA, LLC. v. Cisco Sys., Inc., 135 S. Ct. 1920, 1926 (2015)).
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`Nonetheless, GTP alleges that its inducement claim should proceed because “the Court has
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`repeatedly held that ‘pre-suit’ and ‘post-suit’ indirect infringement claims should not be evaluated
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`separately at the pleading stage.” Id. at 3-4.
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`GTP’s argument misses the point. To support a claim of inducement, the complaint must
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`allege that the defendant “had knowledge of the asserted patent for at least some time during the
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`infringing period.” See Lochner Techs., LLC v. AT Labs Inc., No. 2:11-cv-242-JRG, 2012 WL
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`2595288, at *3 (E.D. Tex. July 5, 2012) (emphasis added). In the cases cited by GTP, the Court
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`declined to dismiss an indirect infringement claim due to a lack of pre-suit knowledge of the patent
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`because the defendant’s alleged ongoing (post-suit) infringement was sufficient to support an
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`inducement claim. Hence, there was no reason to separate pre- and post-filing inducement since
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`Case 2:21-cv-00040-JRG Document 39 Filed 05/27/21 Page 3 of 7 PageID #: 414
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`either was sufficient to support the claim. Here, in contrast, there can be no post-suit inducement
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`because the Asserted Patents expired before the Complaint was filed. Thus, unlike the cases cited
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`by GTP, GTP’s inducement claim cannot survive based on post-suit inducement alone.
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`For example, in Lochner, the complaint alleged that “[e]ach defendant has been and now
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`is jointly and indirectly infringing by way of inducing infringement.” 2012 WL 2595288, at *1
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`(emphasis added). The defendants argued that the operative complaint was deficient “with respect
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`to any allegedly infringing activities that pre-date the filing of the Original Complaint.” Id. at *3.
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`The Court declined to dismiss the inducement claim because “it cannot be disputed that [Plaintiff]
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`does sufficiently plead that the Moving Defendants had knowledge of the asserted patent for at
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`least some time during the infringing period.” Id. (emphasis in bold italics added). Here, on the
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`other hand, alleging that Huawei knew of the Asserted Patents “at least as of the filing of this
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`Complaint” does not plead knowledge “for at least some time during the infringing period” since
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`the Complaint was filed well after any “infringing period.”
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`Similarly, in Cellular Communications Equipment LLC v. HTC Corp., the complaint
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`alleged that the defendants “have and continue to actively induce infringement.” No. 6:13-cv-
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`507, 2015 WL 11118110, at *3 (emphasis added). The Court declined to dismiss the inducement
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`claim in view of plausible post-suit inducement and, additionally, because plaintiff alleged specific
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`facts regarding how some defendants gained pre-suit knowledge of the asserted patents. Id. at *4.
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`Like Lochner, this case would support GTP’s position if there was a viable claim for post-suit
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`inducement against Huawei, which there is not.
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`A similar analysis applies in the other cases cited by GTP. See InMotion Imagery Techs.
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`v. Brain Damage Films, No. 2:11-cv-414-JRG, 2012 WL 3283371, at *1 (E.D. Tex. Aug. 10,
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`2012) (complaint alleges that defendant “has infringed and continues to infringe one or more
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`Case 2:21-cv-00040-JRG Document 39 Filed 05/27/21 Page 4 of 7 PageID #: 415
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`claims of the ’291 patent”) (emphasis added); Alacritech Inc. v. CenturyLink, Inc., No. 2:16-cv-
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`00693-RWS-RSP, 2017 WL 4230582, at *2 (E.D. Tex. Sept. 4, 2017) (Payne, J.) (denying motion
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`to dismiss based on an alleged lack of pre-suit knowledge when post-suit knowledge presents
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`viable inducement claim);1 see also Estech Sys., Inc. v. Wells Fargo & Co., No. 2:20-cv-00128-
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`JRG-RSP, 2020 WL 6534094, at *5 (E.D. Tex. Aug. 27, 2020) (Payne, J.) (denying motion to
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`dismiss indirect infringement claim where “the complaint describes pre-suit conduct that
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`continued after the complaint was filed.”) (emphasis added).
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`This Court’s decision in Babbage Holdings, LLC v. Activision Blizzard, Inc., No. 2:13-cv-
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`750, 2014 WL 2115616 (E.D. Tex. May 15, 2014) is far more analogous. Babbage was discussed
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`throughout Huawei’s Motion. See Dkt. No. 28 at 5-6. Yet, it is not even mentioned in GTP’s
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`Response. In Babbage, unlike in the cases cited by GTP, the complaint was not served until after
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`the patent expired. Id. at *2. Because the filing of the complaint was the only fact pled to support
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`defendant’s knowledge of the patent, the indirect infringement claims were dismissed with
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`prejudice. Id. (“Babbage’s indirect infringement claims must fail for the lack of any plausible
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`allegation of Defendants’ actual knowledge of the [asserted] Patent while it was still in force.”).
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`GTP also alleges that “by alleging that Defendants had knowledge ‘at least as of the filing
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`of this Complaint,’ GTP has described pre-suit knowledge by Defendants.” Dkt. No. 35 at 4. GTP
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`is incorrect. This statement does not describe any facts regarding pre-suit knowledge by Huawei.
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`At most, it asserts that knowledge came from the Complaint itself. However, knowledge gained
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`from the filing of the Complaint is insufficient since the patents were expired at that time. See
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`1 The briefing in Alacritech confirms that the patents in that case had not expired at the time of the
`Complaint. See Alacritech’s Opposition (Dkt. No. 60) at 10 (“none of the asserted patents in this
`case have expired and they are all enforceable against post-filing indirect infringement.”) This
`Opposition is attached here as Exhibit A.
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`Case 2:21-cv-00040-JRG Document 39 Filed 05/27/21 Page 5 of 7 PageID #: 416
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`Babbage, 2014 WL 2115616 at *2. Indeed, an identical averment in Babbage was insufficient to
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`support an inducement claim. Id. The Estech case cited by GTP (Dkt. No. 35 at 4-5) also does
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`not support its position. As mentioned above, Estech involved alleged continuing infringement
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`that post-dated the complaint. Estech, 2020 WL 6534094, at *5.
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`II.
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`GTP HAS NOT PLED A PLAUSIBLE CLAIM OF WILLFUL INFRINGEMENT
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`GTP’s willfulness claim fails for the same basic reason: GTP has not raised a plausible
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`claim that Huawei had knowledge of the Asserted Patents, much less its alleged infringement, at
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`any point before the Asserted Patents expired. See Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S.
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`Ct. 1923, 1930-33 (2016) (willful infringement is that which is “intentional or knowing”).
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`GTP’s reliance on a 2013 opinion from the Northern District of California for the
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`proposition that knowledge of expired patents can give rise to a claim for willful infringement is
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`misplaced. See Dkt. No. 35 at 5 (citing FuzzySharp Techs. Inc. v. Nvidia Corp., No. 3:12-cv-
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`06375-JST, 2013 WL 4766877, at *10 (N.D. Cal. Sept. 4, 2013)). In FuzzySharp, defendant
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`(“NVIDIA”) conceded it knew of the asserted patents well before the patents expired. Id. at *3
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`(“NVIDIA does not dispute that it had knowledge of the ’679 patent or that FuzzySharp sued
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`NVIDIA for patent infringement of the ’679 patent in this district prior to the filing of this action.”).
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`It was against this backdrop that the court stated that “pre-suit expiration of a patent is not
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`dispositive of a claim for willful infringement.” Id. By not providing context to this quote, GTP
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`obfuscates the legal requirement that liability for willful infringement requires knowledge of the
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`patent during the term of the patent. Commil USA, LLC v. Cisco Sys., Inc., 575 U.S. 632, 642
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`(2015). Unlike NVIDIA, Huawei never conceded that it knew of the Asserted Patents before their
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`expiration, nor has GTP pled that Huawei had pre-expiration knowledge.
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`Case 2:21-cv-00040-JRG Document 39 Filed 05/27/21 Page 6 of 7 PageID #: 417
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`III. GTP SHOULD NOT BE GRANTED LEAVE TO AMEND
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`GTP should not be given leave to amend. GTP already had ample opportunity, first in its
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`Complaint and then in opposing this motion, to provide a basis to allege that Huawei had
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`knowledge of the Asserted Patents prior to their expiration sufficient to support either inducement
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`or willful infringement. GTP failed to do so. Huawei respectfully requests that the Court dismiss
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`GTP’s claims of patent infringement with prejudice. See Babbage, 2014 WL 2115616, at *2
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`(dismissing inducement claim with prejudice under similar circumstances).
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`IV. CONCLUSION
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`For the foregoing reasons, the allegations of induced infringement and willful infringement
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`as to each Asserted Patent should be dismissed with prejudice.
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`Dated: May 27, 2021
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`Respectfully submitted,
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` By: /s/ J. Mark Mann
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`J. Mark Mann (TX ID No. 12926150)
`mark@themannfirm.com
`G. Blake Thompson (TX ID No. 24042033)
`blake@themannfirm.com
`MANN | TINDEL | THOMPSON
`201 E. Howard Street
`Henderson, TX 75654
`903.657.8540
`903.657.6003 (fax)
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`Kent E. Baldauf, Jr. (PA ID No. 70793)
`Bryan P. Clark (PA ID No. 205708)
`THE WEBB LAW FIRM
`One Gateway Center
`420 Ft. Duquesne Blvd., Suite 1200
`Pittsburgh, PA 15222
`412.471.8815
`412.471.4094 (fax)
`kbaldaufjr@webblaw.com
`bclark@webblaw.com
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`Attorneys for Defendants
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`Case 2:21-cv-00040-JRG Document 39 Filed 05/27/21 Page 7 of 7 PageID #: 418
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`CERTIFICATE OF SERVICE
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`I hereby certify that on the 27th day of May, 2021, I electronically filed the foregoing
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`DEFENDANTS HUAWEI DEVICE CO., LTD AND HUAWEI DEVICE USA, INC.’S
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`REPLY IN SUPPORT OF THEIR PARTIAL MOTION TO DISMISS PLAINTIFF’S
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`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT with the Clerk of Court using
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`the CM/ECF system which sent notification to all counsel of record.
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`s/ J. Mark Mann
`J. Mark Mann
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