Case 5:19-cv-00036-RWS Document 39 Filed 06/18/19 Page 1 of 9 PageID #: 464
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
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`MAXELL, LTD.,
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`v.
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`APPLE INC.,
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`Plaintiff,
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`Defendant.
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`Civil Action No. 5:19-cv-00036-RWS
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`JURY TRIAL DEMANDED
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`PLAINTIFF MAXELL, LTD.’S SUR-REPLY IN OPPOSITION TO DEFENDANT
`APPLE INC.’S MOTION FOR PARTIAL DISMISSAL OF PLAINTIFF’S COMPLAINT
`FOR FAILURE TO STATE A CLAIM
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`Case 5:19-cv-00036-RWS Document 39 Filed 06/18/19 Page 2 of 9 PageID #: 465
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`Apple’s Reply confirms that its motion is based on gamesmanship rather than principle.
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`Its strategy is to cherry-pick excerpts from the Complaint, omit the relevant context, and feign
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`ignorance of the surrounding circumstances.
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`Apple’s tactic fails because it is built on grossly incorrect legal standards. The correct
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`legal standard to state a claim is mere plausibility. See Bell Atlantic Corp. v. Twombly, 550 U.S.
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`544, 570 (2007). Notice pleading “do[es] not require heightened fact pleading of specifics.” Id.
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`Rather, all that is required is that the Complaint sets out “enough facts to state a claim to relief
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`that is plausible on its face.” Id.
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`Moreover, Apple has no legal basis to complain that the Opposition includes some
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`additional details adding color to the Complaint. To the extent any of those details are absent
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`from the Complaint, they are readily permissible, not for the purpose of supplementing the
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`Complaint, but for illustrating that the allegations therein are plausible. See Early v. Bankers Life
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`& Cas. Co., 959 F.2d 75, 79 (7th Cir. 1992) (“a plaintiff is free, in defending against a motion to
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`dismiss, to allege without evidentiary support any facts he pleases that are consistent with the
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`complaint, in order to show that there is a state of facts within the scope of the complaint that if
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`proved (a matter for trial) would entitle him to judgment.”). Thus, to the extent Maxell’s
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`Opposition contains any color beyond the Complaint, that is unobjectionable.
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`Under the proper legal standards, the Complaint states a claim for willful and induced
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`infringement that is plainly “plausible on its face.” Twombly, 550 U.S. at 570. The details in
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`Maxell’s opposition confirm this. The Court should reject Apple’s gamesmanship and deny the
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`motion to dismiss.
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`1
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`Case 5:19-cv-00036-RWS Document 39 Filed 06/18/19 Page 3 of 9 PageID #: 466
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`I.
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`ARGUMENT
`A.
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`The Complaint Plausibly Alleges Apple’s Specific Intent.
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`Apple continues to characterize Maxell’s references to Apple’s websites as generic, but
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`that does not make them so. The allegations in the Complaint provide ample detail to inform
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`Apple of what products, functionality, and user communications form the basis of the claims. For
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`example, consider the allegations regarding the ’317 Patent.
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` The Complaint includes allegations that the iPhone XS includes Apple’s “Maps”
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`software that “allows users to access location information, including the present
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`location of the device and orientation of the device and use such information to
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`provide walking navigation information and/or share location.” Compl. at ¶24.
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` The Complaint includes annotated “excerpts from Apple’s websites [to] provide non-
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`limiting
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`examples
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`of
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`the
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`iPhone XS
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`infringing.”
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`Id.
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`(citing
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`https://www.apple.com/ios/maps/). This instructional material is plainly intended to
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`promote customer use of the described features. Indeed, it includes statements
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`directed to potential users, like “You’ll also be able to get where you’re going with
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`improved routes,” and “you can get detailed directions.” Id. (emphasis added).
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` The Complaint further includes allegations that “Apple’s customers who purchase
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`devices and components thereof and operate such devices and components in
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`accordance with Apple’s instructions directly infringe” and “Apple instructs its
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`customers through at least user guides or websites, such as those located at…
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`https://www.apple.com/ios/maps/.” Id. at 24, 27; see also Opp. 4-6 (providing
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`additional examples for other patents). And that link is to the very same web page
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`excerpted just three paragraphs prior.
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`2
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`Case 5:19-cv-00036-RWS Document 39 Filed 06/18/19 Page 4 of 9 PageID #: 467
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`Despite all this, Apple still argues that it is “left to guess what Maxell’s theory of specific intent
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`is.” Reply at 2. Apple provides four arguments for why, but none holds water. Id. at 1-3.
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`First, Apple argues that Maxell’s citations to the manual landing page is insufficient
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`because that page links to many manuals. Reply 1-2. But, for each patent, Maxell specifically
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`identifies accused products at issue. See, e.g., Complaint at ¶ 24-25. No doubt, Apple can use its
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`own landing page to identify the manuals corresponding to those accused products, just as it
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`expects its customers to do. Because the Complaint includes sufficient information to identify the
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`relevant manuals, it is irrelevant that the landing page links to additional manuals.
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`Second, Apple argues that Maxell fails to cite the exact portion of each manual or
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`webpage related to the accused functionality. This argument fails because the Complaint
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`identifies exactly which features are relevant to each patent and which webpages provide
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`instructions regarding those features. As discussed above, the Complaint even includes website
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`excerpts demonstrating the relevant features. The Complaint thus provides ample notice of which
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`manuals and webpages are relevant, and which portions therein are concerned.
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`Third, Apple argues that Maxell failed to distinguish Core Wireless Licensing S.A.R.L. v.
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`Apple Inc., No. 6:14-cv-JRG-JDL, 2015 U.S. Dist. LEXIS 107354 (E.D. Tex. Jul. 15, 2015).
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`Reply 2-3. But that is not so. Maxell argued in its Opposition that Core Wireless is
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`distinguishable because it involved a failure to identify accused functionalities. See Opp. 7. In
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`contrast, Maxell has identified at length the products and functionality accused. See id.
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`Fourth, Apple argues that allegations describing its products’ infringing functionality are
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`relevant only to its own direct infringement, not to its specific intent to induce infringement.
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`Reply 3. But the fact that Apple sells products configured to infringe when used as intended is
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`highly relevant to the case for inducement: such sales, coupled with Apple’s promotion of the
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`3
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`Case 5:19-cv-00036-RWS Document 39 Filed 06/18/19 Page 5 of 9 PageID #: 468
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`infringing features through user manuals and advertising, suffice to state a plausible claim for
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`induced infringement. See Compl. at ¶¶ 24, 25, 27.
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`B.
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`The Allegations Regarding Pre-Suit Notice of the ’586 Patent Are Sufficient.
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`Regarding pre-suit notice of the ’586 Patent, Apple continues to demand that Maxell have
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`alleged this fact with heightened specificity where the law demands only plausibility. At bottom,
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`Apple’s argument is only that notice of the ’586 Patent is implausible because the patent issued
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`after the alleged date of the notice. Yet Apple’s own arguments demonstrate that notice in these
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`circumstances is plausible: Apple appears to acknowledge that it received notice of the
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`underlying application on October 9, 2018,1 and it admits that such notice can constitute notice
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`of the patent. See Reply 4. Those arguments demonstrate that, even where a defendant is alleged
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`to have received notice of a patent four months before that patent issued, knowledge of the patent
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`remains plausible. Whether Maxell can ultimately prove that knowledge is a fact issue for trial,
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`not a reason to dismiss. See Pecorino v. Vutec Corp., 934 F. Supp. 2d 422, 450 (E.D.N.Y. 2012).
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`Apple’s attempt to distinguish the Complaint from that in Copa fails out of the gate. See
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`Reply 4 (citing 1:18-cv-00218, 2018 U.S. Dist. LEXIS 191927 (D. Me. Nov. 9, 2018)). Apple
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`argues that the Copa complaint included “other facts”—that the defendant reviewed the patent
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`application and competed with the plaintiff. Reply 4. But the Complaint here also includes “other
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`facts”—details regarding the years of licensing negotiations and technical discussions concerning
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`the asserted patents. See Opp. at 10-12 (citing Compl. at ¶ 5). Those “other facts” render it
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`plausible that Apple received notice of the ’586 Patent.
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`C.
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`The Allegations Regarding Knowledge of Infringement Are Sufficient.
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`The allegations in the Complaint are also sufficient to support a plausible inference of
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`knowledge for pre-suit indirect and willful infringement. The Complaint details six years of
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`1 The Opposition’s reference to October 19, rather than October 9 was a typographical error.
`4
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`Case 5:19-cv-00036-RWS Document 39 Filed 06/18/19 Page 6 of 9 PageID #: 469
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`licensing negotiations and technical discussions between the parties concerning the asserted
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`patents, and it identifies the specific dates of the relevant meetings and communications through
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`which Apple learned of each asserted patent. Opp. at 10-12. Apple is aware of these facts
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`because it participated in every meeting and communication. These allegations make it plausible
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`that Apple knew it was infringing the asserted claims. Opp. at 10-13.
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`The additional details provided in Maxell’s Opposition were not included to shore up
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`legal deficiencies in the Complaint, but to demonstrate that the allegations are indeed plausible.
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`In any event, Apple exaggerates the extent to which Maxell’s Opposition includes “new
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`allegations.” For example, Apple objects
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`that
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`the Complaint contains no allegation
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`corresponding to Maxell’s argument that, during the negotiations, it presented Apple with
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`“detailed explanations” of infringement, “including claim charts.” Reply at 5. But to the
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`contrary, the Complaint includes allegations that:
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`[M]eetings included Apple’s representatives being provided with detailed
`information regarding Maxell’s patents, the developed technology, and Apple’s
`ongoing use of this patented technology. Through this process, Apple’s
`representatives requested and received detailed explanations regarding Maxell’s
`patents and allegations.
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`Compl. at ¶ 5. Thus, the additional details of these meetings are not “new allegation[s].”
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`Abandoning its reliance on E.D. Texas authority, Apple argues that Deere & Co. v.
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`AGCO Corp., No. 18-827-CFC, 2019 U.S. Dist. LEXIS 25885, at *15-16) (D. Del. Feb. 19,
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`2019) is “the most analogous case.” Reply 5. But Deere is readily distinguishable because the
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`parties there did not negotiate directly. Rather, knowledge was alleged based on a letter sent to a
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`third party, and the letter failed to identify any accused products. See id. at *19. Here, the parties
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`negotiated directly for years and exchanged “detailed information regarding … Apple’s ongoing
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`use of [Maxell’s] patented technology.” Compl. at ¶ 5.
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`5
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`Case 5:19-cv-00036-RWS Document 39 Filed 06/18/19 Page 7 of 9 PageID #: 470
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`Dated: June 18, 2019
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`By:
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`6
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`/s/ Jamie B. Beaber
`Geoff Culbertson
`Kelly Tidwell
`Patton, Tidwell & Culbertson, LLP
`2800 Texas Boulevard (75503)
`Post Office Box 5398
`Texarkana, TX 75505-5398
`Telephone: (903) 792-7080
`Facsimile: (903) 792-8233
`gpc@texarkanalaw.com
`kbt@texarkanalaw.com
`
`Jamie B. Beaber
`Alan M. Grimaldi
`Kfir B. Levy
`James A. Fussell, III
`Baldine B. Paul
`Tiffany A. Miller
`Saqib J. Siddiqui
`Bryan C. Nese
`William J. Barrow
`Alison T. Gelsleichter
`MAYER BROWN LLP
`1999 K Street, NW
`Washington, DC 20006
`Telephone: (202) 263-3000
`Facsimile: (202) 263-3300
`jbeaber@mayerbrown.com
`agrimaldi@mayerbrown.com
`klevy@mayerbrown.com
`jfussell@mayerbrown.com
`bpaul@mayerbrown.com
`tmiller@mayerbrown.com
`ssiddiqui@mayerbrown.com
`bnese@mayerbrown.com
`wbarrow@mayerbrown.com
`agelsleichter@mayerbrown.com
`
`Robert G. Pluta
`Amanda Streff Bonner
`MAYER BROWN LLP
`71 S. Wacker Drive
`Chicago, IL 60606
`(312) 782-0600
`rpluta@mayerbrown.com
`asbonner@mayerbrown.com
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`

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`Case 5:19-cv-00036-RWS Document 39 Filed 06/18/19 Page 8 of 9 PageID #: 471
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`Counsel for Plaintiff Maxell, Ltd.
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`7
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`Case 5:19-cv-00036-RWS Document 39 Filed 06/18/19 Page 9 of 9 PageID #: 472
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that all counsel of record who are deemed to have consented to
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`electronic service are being served this 18th day of June, 2019, with a copy of this document via
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`the Court’s electronic CM/ECF system.
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`Dated: June 18, 2019
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`
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`/s/ Jamie B. Beaber
`Jamie B. Beaber
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`8
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