Case 2:22-cv-00280-RWS-RSP Document 110 Filed 09/06/23 Page 1 of 12 PageID #: 29572
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`AX WIRELESS LLC,
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`Plaintiff,
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`CIVIL ACTION NO. 2:22-CV-00280-RWS-RSP
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`§
`§
`§
`§
`§
`§
`§
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`§
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`REPORT AND RECOMMENDATION
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`v.
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`LENOVO GROUP LIMITED,
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`Defendant.
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`Before the Court is Defendant Lenovo Group Limited’s (“LGL”) Motion to Dismiss for
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`Lack of Personal Jurisdiction and Motion to Dismiss Direct Infringement Claims (“Motion”).
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`Dkt. No. 35. Plaintiff AX Wireless filed a complaint and LGL filed a Motion to Dismiss (Dkt.
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`No. 25) the original complaint. AX Wireless filed a First Amended Complaint (“FAC”) (Dkt.
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`No. 29) and LGL renewed its Motion to Dismiss (Dkt. No. 35). Consequently, the original
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`Motion to Dismiss (Dkt. No. 25) is DENIED AS MOOT. For the following reasons, the
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`renewed Motion to Dismiss (Dkt. No. 35) should be DENIED as well.
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`I. BACKGROUND
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`Plaintiff AX Wireless LLC filed suit on July 22, 2022, alleging that LGL infringes U.S.
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`Patent Nos. 9,584,262, 9,614,566, 9,973,361, 10,079,707, 10,291,449, 10,554,459, 10,917,272,
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`11,212,146 (collectively, the “Asserted Patents”) by making, using, selling, offering for sale,
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`and/or importing into the United States products that comply with the Wi-Fi 6 standard. Dkt.
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`No. 29 (First Amended Complaint (FAC)) at ¶¶ 12, 27. The accused products include, for
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`example, certain smartphones, personal computers, tablets, networking devices, Internet of
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`things (“IoT”) devices, appliances, and other consumer and home electronics (collectively,
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`1
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`Case 2:22-cv-00280-RWS-RSP Document 110 Filed 09/06/23 Page 2 of 12 PageID #: 29573
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`“Accused Products”). Id. at ¶ 28. After LGL filed the Motion, the parties engaged in
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`jurisdictional discovery. See Dkt. No. 43 (Order).
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`According to the First Amended Complaint, LGL is a Chinese corporation with a
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`registered address in Hong Kong. Id. at ¶ 2. The FAC alleges that LGL has subsidiaries,
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`affiliates, or intermediaries, including Lenovo (Beijing) Limited, Lenovo PC HK Limited,
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`Lenovo PC International Limited, Lenovo (United States), Inc., and Motorola Mobility LLC.
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`LGL moves to dismiss this case under Rule 12(b)(2) for lack of personal jurisdiction, and
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`to dismiss the claims of direct infringement under Rule 12(b)(6) for failure to state a claim upon
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`which relief can be granted. Motion at 6, 17.
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`II.
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`LAW
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`A. Personal Jurisdiction
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`Federal Rule of Civil Procedure 12(b)(2) requires a court to dismiss an action if the court
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`does not have personal jurisdiction over the defendant. FED. R. CIV. P. 12(b)(2). Where a claim
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`involves substantive questions of patent law, Federal Circuit law applies to evaluate personal
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`jurisdiction. NexLearn, LLC v. Allen Interactions, Inc., 859 F.3d 1371, 1375 (Fed. Cir. 2017).
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`The Fifth Circuit relies on the same analysis as the Federal Circuit in deciding whether personal
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`jurisdiction exists. Packless Metal Hose, Inc. v. Extek Energy Equip. (Zhejiang) Co., No. 2:09-
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`CV-265-TJW, 2011 WL 504048, at *1 n.1 (E.D. Tex. Feb. 10, 2011).
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`Personal jurisdiction exists over a defendant where a forum state’s long-arm statute
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`permits service of process and where assertion of personal jurisdiction does not violate due
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`process. NexLearn, 859 F.3d at 1375. “Because Texas’s long-arm statute is coextensive with the
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`Due Process Clause of the Fourteenth Amendment, the two inquiries merge.” Carmona v. Leo
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`Ship Mgmt., Inc., 924 F.3d 190, 193 (5th Cir. 2019) (citations omitted). For due process to be
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`2
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`satisfied pursuant to specific jurisdiction, the defendant must have “certain minimum contacts
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`with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair
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`play and substantial justice.’” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citation
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`omitted).
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`Grounded in Supreme Court jurisprudence, the Federal Circuit follows a three-part test to
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`determine whether a court can properly exercise jurisdiction over an out-of-state defendant: (1)
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`whether the defendant purposefully directed its activities at residents of the forum state, (2)
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`whether the claim arises out of or relates to the defendant’s activities with the forum state, and
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`(3) whether assertion of personal jurisdiction is reasonable and fair. Elecs. For Imaging, Inc. v.
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`Coyle, 340 F.3d 1344, 1350 (Fed. Cir. 2003) (citing Inamed Corp. v. Kuzmak, 249 F.3d 1356,
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`1359 (Fed.Cir.2001)). “The first two factors correspond to the ‘minimum contacts’ prong of
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`the International Shoe analysis, and the third factor with the ‘fair play and substantial justice’
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`prong.” Id. The minimum contacts test is satisfied if a defendant “delivers its products into the
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`stream of commerce with the expectation that they will be purchased by consumers in the forum
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`state.” Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1566 (Fed. Cir.
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`1994) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297–98 (1980)).
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`Upon a showing of sufficient minimum contacts, the defendant bears the burden to prove
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`unreasonableness. Coyle, 340 F.3d at 1351–52 (Fed. Cir. 2003). In rare circumstances, a
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`defendant may defeat the exercise of personal jurisdiction by “present[ing] a compelling case
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`that the presence of some other considerations would render jurisdiction unreasonable.” Burger
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`King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985).
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`Personal jurisdiction may also exist under Federal Rule of Civil Procedure 4(k)(2), which
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`provides, “For a claim that arises under federal law, serving a summons ... establishes personal
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`3
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`jurisdiction over a defendant if: (A) the defendant is not subject to jurisdiction in any state's
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`courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the United States
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`Constitution and laws.” FED. R. CIV. P. 4(k)(2); M-I Drilling Fluids UK Ltd. v. Dynamic Air
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`Ltda., 890 F.3d 995, 999 (Fed. Cir. 2018) (quoting Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind.
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`Come de Equip. Medico, 563 F.3d 1285, 1293–94 (Fed. Cir. 2009)). In analyzing Rule 4(k)(2), a
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`court must consider whether “(1) defendant purposefully directed its activities at residents of the
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`forum, (2) the claim arises out of or relates to the defendant's activities with the forum, and (3)
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`assertion of personal jurisdiction is reasonable and fair.” M-I Drilling Fluids, 890 F.3d at
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`999 (citing Synthes, 563 F.3d at 1293–94). The three-step due process analysis under specific
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`jurisdiction and Rule 4(k)(2) are similar; however, Rule 4(k)(2) “contemplates a defendant’s
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`contacts with the entire United States, as opposed to the state in which the district court
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`sits.” Id. (quoting Synthes, 563 F.3d at 1295).
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`“Where, as here, a district court's disposition as to the personal jurisdictional question is
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`based on affidavits and other written materials in the absence of an evidentiary hearing, a
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`plaintiff need only to make a prima facie showing that defendants are subject to personal
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`jurisdiction.” Coyle, 340 F.3d at 1349. “[A] district court must accept the uncontroverted
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`allegations in the plaintiff's complaint as true and resolve any factual conflicts in the affidavits in
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`the plaintiff's favor.” Id.
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`B. Failure to State a Claim
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`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
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`Patents, LLC v. Sony Corp., 408 F. Supp. 3d 819, 826 (E.D. Tex. 2019). In evaluating a motion
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`to dismiss, the Court must “accept all well-pleaded facts in the complaint as true and view the
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`4
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`facts in the light most favorable to the plaintiff.” Motiva Patents, 408 F. Supp. at 827
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`(quoting O’Daniel v. Indus. Serv. Sols., 922 F.3d 299, 304 (5th Cir. 2019)).
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`The “plaintiff is generally required to provide ‘only a plausible “short and plain”
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`statement of the plaintiff's claim …’” Script Sec. Sols. L.L.C. v. Amazon.com, Inc., 170 F. Supp.
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`3d 928, 936 (E.D. Tex. 2016) (Bryson, J.) (quoting Sinner v. Switzer, 562 U.S. 521, 530
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`(2011); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly,
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`550 U.S. 544, 545 (2007)). The plaintiff need not “prove its case at the pleading stage.” In re Bill
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`of Lading Transmission & Processing Sys. Patent Litig., 681 F.3d 1323, 1339 (Fed. Cir. 2012).
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`And “the Federal Rules of Civil Procedure do not require a plaintiff to plead facts establishing
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`that each element of an asserted claim is met.” Id. at 1335. Instead, the Complaint must “place
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`the alleged infringer ‘on notice of what activity ... is being accused of infringement.’” Lifetime
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`Indus., Inc. v. Trim-Lok, Inc., 869 F.3d 1372, 1379 (Fed. Cir. 2017) (quoting K-Tech
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`Telecomms., Inc. v. Time Warner Cable, Inc., 714 F.3d 1277, 1284 (Fed. Cir. 2013)).
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`III.
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`ANALYSIS
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`A. AX Wireless has Established a Prima Facie Case of Personal Jurisdiction
`Over LGL
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`In its First Amended Complaint, AX Wireless contends personal jurisdiction is proper
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`under a stream of commerce theory because LGL acts in concert with its subsidiaries to deliver
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`products into the United States market. See FAC at ¶ 6.1 There has not been a hearing regarding
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`personal jurisdiction so a prima facie showing is all that is required. Coyle, 340 F.3d at 1349.
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`Since the Court finds that AX Wireless has set forth a prima facie case of specific jurisdiction
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`1see also FAC at ¶ 7 (identifying authorized sellers in this District), ¶ 9 (identifying related entities, including
`Lenovo (Beijing) Limited, Lenovo PC HK Limited, Lenovo PC International Limited, Lenovo (United States), Inc.,
`and Motorola Mobility LLC)
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`5
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`under its stream of commerce theory, the Court need not individually address the remaining three
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`theories.2
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`First, LGL argues that this Court lacks personal jurisdiction because it does not
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`“purposefully direct” any activity into the forum. Motion at 9–11. According to LGL, AX
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`Wireless fails to provide facts to support its allegations that LGL plays a role in its stream of
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`commerce theory, and AX Wireless cannot do so because those facts would be directly
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`contradicted by a declaration from an LGL representative. Id. at 7 (citing Chim Decl. at ¶¶ 3–
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`12). Drawing support from the declaration, LGL asserts that (1) it is nothing more than a holding
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`company, (2) it does not design, manufacture, sell, or import products anywhere, and (3) non-
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`parties Lenovo US and Motorola are solely responsible for importing, marketing, advertising,
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`offering for sale, and selling Lenovo and Motorola branded products in the United States. Id. at
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`9–11 (citing Chim Decl. at ¶¶ 4–11). LGL also argues that AX Wireless has not shown its claims
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`arise out of or relate to LGL’s activities with the form for substantially the same reasons. Id. at
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`10–11.
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`If allegations or evidence support personal jurisdiction, a foreign company need not itself
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`sell the accused goods in the forum. Nuance, 626 F.3d at 1232–33 (holding an out-of-state
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`corporate defendant purposefully availed itself of the forum state through an entity acting as its
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`alter ego); Celgard, LLC v. SK Innovation Co., 792 F.3d 1373, 1379 (Fed. Cir. 2015)
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`(recognizing agency and alter ego theories for personal jurisdiction, but holding plaintiff failed to
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`provide any evidence supporting agency or alter ago theories). A foreign company also need not
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`itself manufacture the accused goods. ACQIS LLC v. Lenovo Grp. Ltd., 572 F. Supp. 3d 291,
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`2 For its second theory, AX Wireless avers that LGL conducts business over the Internet with customers in the
`United States and this District in a manner that demonstrates purposeful availment. Id. Third, AX Wireless asserts
`that the contacts from LGL’s subsidiaries can be properly imputed to LGL because they serve as LGL’s distribution
`agents. Id. at ¶ 9. Finally, AX Wireless alleges that LGL is an alter ego of its subsidiaries. Id.
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`305-07 (W.D. Tex. 2021) (“LGL’s alleged minimum contacts with the United States include: (1)
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`acting in consort with other Defendants to deliver products into the United States market under a
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`stream of commerce theory, and (2) imputable contacts by other Lenovo defendants, including
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`PC HK, because they serve as LGL’s distribution agents”). Further, a domestic distributor or
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`manufacturer need not be a named defendant in the case for personal jurisdiction over the foreign
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`defendant. Orange Elec. Co. v. Autel Intelligent Tech. Corp., No. 2:21-CV-00240-JRG, 2022
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`WL 4368160, at *1 (E.D. Tex. Sept. 21, 2022) (holding personal jurisdiction over a foreign
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`defendant with a non-party domestic subsidiary was proper under a stream of commerce theory).
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`AX Wireless presents evidence indicating LGL is at the head of the Lenovo Group—
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`including LGL, Lenovo (Beijing) Limited, Lenovo PC HK Limited, Lenovo PC International
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`Limited, Lenovo (United States), Inc., and Motorola Mobility LLC—and the Lenovo Group
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`manufactures, sells, and distributes the Accused Products in the United States and worldwide.
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`Dkt. No. 98 (“Response”) at 3. Response Ex. 1, Chim Dep. Tr. at 57:24–58:25, 60:24–61:13;
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`Response Ex. 2, Cranor Dep. Tr. at 28:12–29:9, 36:5–15, 47:23–48:19, 49:15–24, 50:8–51:2;
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`Response Ex. 3, Lenovo Press Release, Oct. 30, 2014; Response Ex. 4, 2022.06.01 Maxell Chim
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`Dep. Tr. at 72:10–14, 73:6–74:6, 74:22–75:17; Response Exs. 11–20; Response Ex. 25,
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`2021.8.17 ACQIS Chim Dep. Tr. at 31:19–24; 34:10–35:3. Additionally, AX Wireless presents
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`evidence that LGL specifically targets the U.S. market through corporate expansion and
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`statements from LGL’s CEO regarding U.S. strategy. Beyond a general U.S. presence, the FAC
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`specifically identifies locations for Best Buy, Costco, Office Depot, Target, and Wal-Mart within
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`this District as authorized sellers of the Accused Products that LGL, through the Lenovo Group,
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`places into the stream of commerce. FAC at ¶ 7.
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`7
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`At a minimum, the evidence creates factual conflicts that LGL (1) portrays itself and its
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`subsidiaries as the Lenovo Group—a single global company, (2) shares executives and
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`management teams with other entities to manufacture and distribute Accused Products in the
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`United States, and (3) enjoys revenues from sales of Accused Products by related entities, and
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`(4) conducts business with customers through Lenovo.com, which allows customers to purchase
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`the Accused Products and obtain technical support. Orange, 2022 WL 4368160, at *4; Cardsoft,
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`Inc. v. Verifone Holdings, Inc., 2009 WL 361069, at *1–2 (E.D. Tex. Feb. 10, 2009) (holding
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`plaintiff presented a prima facie case of jurisdiction over a foreign third-party company because
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`of (1) overlapping executive and management teams with the domestic defendant, (2) revenues
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`from sales of the accused products flowed to the foreign entity, and (3) the foreign company’s
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`website advertised and offered services for point of sale transactions).
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`Viewing the allegations as true and the factual conflicts in AX Wireless’s favor, AX
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`Wireless has established a prima facie case that (1) LGL purposefully ships Accused Products
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`into the forum state through an established distribution channel and (2) the cause of action for
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`patent infringement is alleged to arise out of those activities. Beverly Hills, 21 F.3d at 1565. See
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`also World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d
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`490 (1980) (foreseeability is relevant when a defendant “delivers its products into the stream of
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`commerce with the expectation that they will be purchased by consumers in the forum State.”).
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`The Lenovo Group—including LGL and its subsidiaries, affiliates, or intermediaries—is
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`the established distribution channel for the Accused Products throughout the United States,
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`including Texas, which is one of the most populated states. Accordingly, LGL could foresee that
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`the Accused Products would be sold in Texas. See ICON Health & Fitness, Inc. v. Horizon
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`Fitness, Inc., 2009 wl 1025467, *14 (E.D. Tex. Mar. 26, 2009) (“[T]his Court presumes that JHT
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`8
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`Taiwan knew Texas was a termination point of the distribution channel because the North
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`American companies established a connection with Texas retailers.”); Largan Precision Co. v.
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`Ability Opto-Elecs. Tech. Co., 2020 WL 569815, at *7 (E.D. Tex. Feb. 5, 2020) (“It is
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`undisputed that finished products incorporating AOET's lenses frequently are made available for
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`sale in multiple retail locations in Texas. Moreover, AOET appears to have, at the very least, the
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`intent that its products be sold in the United States and Texas, even if it does not know or control
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`all of the precise details of those downstream transactions.”) (emphasis original).
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`Alternatively, Federal Rule of Civil Procedure 4(k)(2) is applicable. Synthes, 563 F.3d at
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`1293–94 (“Similar to other circuits and the district court in this case, we read Rule 4(k)(2) to
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`allow a court to exercise personal jurisdiction over a defendant if (1) the plaintiff's claim arises
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`under federal law, (2) the defendant is not subject to jurisdiction in any state's courts of general
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`jurisdiction, and (3) the exercise of jurisdiction comports with due process.”) (collecting cases).
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`Second LGL argues that the exercise of personal jurisdiction would be unreasonable.
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`Motion at 16–17. To evaluate whether the exercise of personal jurisdiction is reasonable and fair,
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`the Court weighs five factors: (1) the burden on the defendant; (2) the interests of the forum
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`State; (3) the plaintiff's interest in obtaining relief; (4) the interstate judicial system's interest in
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`obtaining the most efficient resolution of controversies; and (5) the shared interest of the several
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`States in furthering substantive social policies. Patent Rts. Prot. Grp., LLC v. Video Gaming
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`Techs., Inc., 603 F.3d 1364, 1369 (Fed. Cir. 2010) (citing Burger King, 471 U.S. at 476-77).
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`“When a defendant seeks to rely on the ‘fair play and substantial justice’ factor to avoid the
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`exercise of jurisdiction by a court that otherwise would have personal jurisdiction over the
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`defendant, ‘he must present a compelling case that the presence of some other considerations
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`would render jurisdiction unreasonable.’” Nuance, 626 F.3d at 1231 (citing Burger King, 471
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`U.S. at 477).
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`Based on the FAC and the evidence presented, exercising personal jurisdiction would not
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`offend traditional notions of fair place and substantial justice. While LGL may be slightly
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`burdened by defending in a foreign forum, progress in communications and transportation have
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`largely mitigated that burden to travel to the United States or Texas. Synthes, 563 F.3d at 1299
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`(citing World-Wide Volkswagen, 444 U.S. at 294). The second, third, and fourth factors favor
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`jurisdiction because both Texas and the United States have an interest in enforcing federal patent
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`laws and providing a forum for AX Wireless to efficiently pursue and resolve its patent
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`infringement claims. Id. The fifth factor also supports jurisdiction because Texas and the United
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`States have an interest in discouraging patent infringement.
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`B. LGL’s Complaint Adequately Pleads Direct Infringement
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`Next, LGL argues AX Wireless has failed to allege a plausible claim of direct
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`infringement against LGL because there are no plausible allegations that LGL performed any
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`allegedly infringing acts within the United States. Motion at 17–18. LGL argues that the
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`allegations only identify third-party actions. Id.
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`AX Wireless states a plausible claim for direct infringement against LGL. To state a
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`claim for patent infringement, the plaintiff must allege that an entity “without authority makes,
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`uses, offers to sell, or sells any patented invention, with the United States or imports into the
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`United States any patented invention during the term of the patent therefor, infringes the
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`patent.” 35 U.S.C. § 271. The FAC states:
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`Defendant sells and offers to sell products and services throughout the United
`States, the State of Texas, and this District, and introduces infringing products and
`services into the stream of commerce knowing that they will be sold in the United
`States, the State of Texas, and this District. For example, Defendant sells and
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`offers to sell infringing products and services through its website, Lenovo.com,
`which may be accessed throughout the United States, the State of Texas, and this
`District.
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`FAC at ¶ 6. The FAC further states:
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`Defendant makes, uses, sells, and/or offers to sell in, and/or imports into, the
`United States products that implement or embody Wi-Fi 6 technology and/or
`implement or comply with the Wi-Fi 6 standard (“Wi-Fi 6 Instrumentalities”).
`Defendant makes, uses, sells, and/or offers to sell in, and/or imports into, the
`United States products that implement or embody Wi-Fi 6 technology and/or
`implement or comply with the Wi-Fi 6 standard (“Wi-Fi 6 Instrumentalities”).
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`Id. at ¶ 27.
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`The FAC also alleges that “Defendant has committed and continues to commit acts of
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`direct infringement of the Asserted Patents by making, using selling, offering to sell, and/or
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`importing Accused Instrumentalities.” Id. at ¶ 39. The FAC also alleges that LGL, “through, or
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`in consort with its subsidiaries, affiliates, or intermediaries, including but not limited to Lenovo
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`(Beijing) Limited, Lenovo PC HK Limited, Lenovo PC International Limited, Lenovo (United
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`States), Inc., and Motorola Mobility LLC,” as agents or alter egos of LGL, performs infringing
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`activity in the United States, Texas, and this District. Id. at ¶ 9. LGL further alleges that LGL
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`indirectly infringes by actively inducing or contributing to the direct infringement by others of
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`the Asserted Patents. Id. at ¶¶ 40–46. AX Wireless identifies and includes Appendices attached
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`to the FAC that compare Accused Products to the Asserted Patents. Id. at ¶¶ 30–37; Appendices
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`A–I.
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`Based on the foregoing, AX Wireless articulates the standard for patent infringement in
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`its FAC and provides LGL with proper notice of its claim. LGL’s arguments are directed at
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`factual disputes regarding the FAC, which cannot be resolved at this stage of the proceedings.
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`IV.
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`CONCLUSION
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`It is RECOMMENDED that LGL’s Motion to Dismiss for Lack of Personal Jurisdiction
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`and Motion to Dismiss Direct Infringement Claims (Dkt. No. 35) be DENIED.
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`A party’s failure
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`to file written objections
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`to
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`the findings, conclusions, and
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`recommendations contained in this report within 14 days bars that party from de novo review by
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`the District Judge of those findings, conclusions, and recommendations and, except on grounds
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`of plain error, from appellate review of unobjected-to factual findings and legal conclusions
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`accepted and adopted by the district court. Fed. R. Civ. P. 72(b)(2); see Douglass v. United
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`Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
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`12
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