Case 6:14-cv-00251-KNM Document 172 Filed 08/09/16 Page 1 of 12 PageID #: 6598
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC,
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`Plaintiff,
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`CIVIL ACTION NO. 6:13-cv-507
`
`v.
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`CONSOLIDATED LEAD CASE
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`HTC CORPORATION, et al.,
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`Defendants.
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`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC,
`
`Plaintiff,
`
`v.
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`SAMSUNG ELECTRONICS CO., LTD., et
`al.,
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`Defendants.
`
`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC,
`
`CIVIL ACTION NO. 6:14-cv-759
`
`Plaintiff,
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`CIVIL ACTION NO. 6:14-cv-982
`
`v.
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`CONSOLIDATED LEAD CASE
`
`LG ELECTRONICS, INC., et al.,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`Before the Court are Defendants‟ Joint Motions to Dismiss Plaintiffs‟ Contributory
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`Infringement Claims in each of the above-styled cases (6:13-cv-507, Doc. No. 396; 6:14-cv-
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`1
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`Case 6:14-cv-00251-KNM Document 172 Filed 08/09/16 Page 2 of 12 PageID #: 6599
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`759, Doc. No. 85; 6:14-cv-982, Doc. No. 45). The Court scheduled a hearing on September
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`22, 2015 to take up the Joint Motions to Dismiss. At the hearing the motions for all three
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`cases were argued together. The motions in all three cases deal with substantially similar
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`issues of law and fact and therefore will all be discussed together. For the reasons set out
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`below, the Joint Motions to Dismiss are DENIED.
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`BACKGROUND
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`6:13-cv-507
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`Plaintiff Cellular Communications Equipment LLC (“CCE”) originally filed
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`complaints against six of the mobile device manufacturers and the mobile carriers that
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`operate networks on which the manufacturers‟ accused devices allegedly function
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`(collectively, “Original Defendants”) on June 25, 2013 and August 2, 2013. The cases were
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`consolidated into this lead case for pretrial purposes, with the exception of venue, on
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`February 27, 2014. Doc. No. 72. In April 2014, CCE filed a similar complaint against Apple
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`and the same mobile carriers already accused in this consolidated case (“Apple Defendants”).
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`Cause No. 6:14-cv-251, Doc. No. 1. In June 2014, the Court consolidated the Apple case into
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`this existing lead case. Doc. No. 194.
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`After the first consolidation, the Original Defendants filed motions to dismiss their
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`respective amended complaints (Doc. Nos. 109, 110, 111, 112, 113, 114). On the same date
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`that those motions were filed, CCE filed its initial complaint in the Apple case. Cause No.
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`6:14-cv-251, Doc. No. 1. Prior to consolidation of the Apple case with this lead case, CCE
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`filed two amended complaints and then Apple Defendants filed a Motion to Dismiss
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`Plaintiff‟s Second Amended Complaint. Cause No. 6:14-cv-251, Doc. No. 42. In each of
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`those motions to dismiss, the Original Defendants argued that the Plaintiff‟s claims of
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`Case 6:14-cv-00251-KNM Document 172 Filed 08/09/16 Page 3 of 12 PageID #: 6600
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`contributory infringement1 should be dismissed for failure to state a claim. Judge Davis
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`found that the contributory infringement claims failed to state a claim, and he ordered CCE
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`to file amended complaints. Doc. No. 373 at 10-11. CCE subsequently filed its Second
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`Amended Complaints2 which are the Complaints at issue in the present motions. Defendants
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`AT&T Mobility LLC, HTC Corporation, HTC America, Inc., Exedea, Inc., Sprint Solutions,
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`Inc., Sprint Spectrum L.P., Boost Mobile, LLC, Dell Inc., T-Mobile USA, Inc., T-Mobile
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`US, Inc., Pantech Co., Ltd., Pantech Wireless, Inc., LG Electronics, Inc., LG Electronics
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`USA, Inc., Amazon.com, Inc., Cellco Partnership d/b/a Verizon Wireless, ZTE Corporation,
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`ZTE USA, Inc., ZTE Solutions, Inc., and Apple Inc. (collectively, “-507 Defendants”) filed
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`this Joint Motion to Dismiss Plaintiffs‟ Contributory Infringement Claims (Doc. No. 396).
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`The -507 case involves the ʼ1743 and the ʼ820 patents.
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`6:14-cv-759
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`CCE filed its First Amended Complaint in the -759 case on September 22, 2014. Doc.
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`No. 10. After Judge Davis ordered CCE to amend its complaints in the -507 cases, CCE also
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`amended its complaint in the -759 case (Doc. No. 76). Defendants Samsung Electronics Co.,
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`Ltd., Samsung Electronics America, Inc., AT&T Mobility LLC, Sprint Solutions, Inc., Sprint
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`Spectrum L.P., Boost Mobile, LLC, T-Mobile USA, Inc., T-Mobile US, Inc., and Cellco
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`Partnership d/b/a Verizon Wireless (collectively “-759 Defendants”) filed this Joint Motion
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`to Dismiss Plaintiffs‟ Contributory Infringement Claims (Doc. No. 85). The -759 case
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`1 Original Defendants also moved to dismiss the claims of induced infringement and willful infringement but those
`arguments have no bearing on the instant motions.
`2 The relevant complaints are: Case No. 6:13-cv-507, Doc. No. 390; Case No. 6:13-cv-508, Doc. No. 79; Case No.
`6:13-cv-509, Doc. No. 57; Case No. 6:13-cv-511, Doc. No. 82; Case No. 6:13-cv-568, Doc. No. 49; Case No. 6:13-
`cv-569, Doc. No. 33; and Case No. 6:14-cv-251, Doc. No. 73.
`3 On September 23, 2015, the Court entered an Order staying all claims and issues pertaining to U.S. Patent No.
`7,941,174 (the ‟174 patent) pending Inter Partes Review in the -507 case. Doc. No. 470. There is no stay in effect for
`claims and issues relating to the ʼ174 patent in the -759 case and thus the sufficiency of the pleading will be
`discussed in relation to the -759 case.
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`3
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`involves the ʼ820, ʼ8923, ʼ174, ʼ786, and ʼ872 patents. The -759 Defendants argue that the
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`allegations regarding the ʼ820 and ʼ174 patents suffer from the same deficiencies as the -507
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`case.
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`6:14-cv-982
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`CCE originally filed Complaints in two separate cases on December 19, 2014. Cause
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`No. 6:14-cv-982, Doc. No. 1; Cause No. 6:14-cv-983, Doc. No. 1. The -983 case was then
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`consolidated into this lead case for pretrial purposes, with the exception of venue, on
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`February 18, 2015. Doc. No. 17. On January 15, 2015, CCE filed a Complaint in another
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`case. Cause No. 6:15-cv-049; Doc. No. 1. The -049 case was then consolidated into this lead
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`case for pretrial purposes, with the exception of venue, on April 30, 2015. Doc. No. 42. After
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`Judge Davis ordered CCE to amend its complaints in the -507 cases, CCE also amended its
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`complaints in the -982 case4. Defendants LG Electronics, Inc., LG Electronics U.S.A., Inc.,
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`Sony Mobile Communications Inc., Sony Mobile Communications (USA) Inc., Kyocera
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`Communications, Inc., AT&T Mobility LLC, Cellco Partnership d/b/a Verizon Wireless,
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`Sprint Nextel Corporation, Sprint Solutions, Inc., Sprint Spectrum L.P., Boost Mobile LLC,
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`T-Mobile USA, Inc., T-Mobile US, Inc. (collectively “-982 Defendants”) filed this Joint
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`Motion to Dismiss Plaintiffs‟ Contributory Infringement Claims (Doc. No. 45). The -982
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`case involves the ʼ966 and ʼ060 patents.
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`Hearing
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`Following the written Motions to Dismiss in all three of the above-styled cases, Judge
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`K. Nicole Mitchell held a hearing on September 22, 2015. The parties argued the substance
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`of all three motions together at the hearing, and Judge Mitchell took the motions under
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`4 The relevant complaints are: Case No. 6:14-cv-982, Doc. No.28 and Doc. No. 29 and Case No. 6:15-cv-049, Doc.
`No. 44.
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`4
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`advisement. Doc. No. 478 at 5-13.
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`APPLICABLE LAW
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`Regional circuit law applies to motions to dismiss for failure to state a claim. McZeal v.
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`Sprint Nextel Corp., 501 F.3d 1354, 1355-56 (Fed. Cir. 2007). “The central issue is whether, in
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`the light most favorable to the plaintiff, the complaint states a valid claim for relief.” Id. at 1356
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`(internal quotations omitted); Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008).
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`To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain a “short
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`and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P.
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`8(a). In deciding a motion under Rule 12(b)(6), a court “accepts all well-pleaded facts as true,
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`viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig.,
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`495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid
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`Transit, 369 F.3d 464, 467 (5th Cir. 2004)). Detailed factual allegations are not required, but
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`facts must be pled that, when accepted as true, state a claim for relief that is “plausible on its
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`face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009). “Determining whether a complaint states a plausible claim for relief is a
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`very context-specific task.” In re Bill of Lading Transmission & Processing Sys. Patent Litig.,
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`681 F.3d 1323, 1337 (Fed. Cir. 2012) (internal quotations omitted). The court may consider “the
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`complaint, any documents attached to the complaint, and any documents attached to the motion
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`to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V
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`(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). In the patent context, a
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`patentee need only plead facts sufficient to place the alleged infringer on notice as to what he
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`must defend.” McZeal, 501 F.3d at 1357 (citing Twombly, 550 U.S. at 565 n. 10).
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`To establish contributory infringement, a plaintiff must plead sufficient facts to show: (1)
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`direct infringement; (2) the accused infringer had knowledge of the patent; (3) the component
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`has no substantial non-infringing uses; and (4) the component is a material part of the invention.
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`Fujitsu Ltd. v. Netgear Inc., 620 F.3d 1321, 1326 (Fed. Cir. 2010); 35 U.S.C. § 271(c).
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`ANALYSIS
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`
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`The motions to dismiss by the -507 Defendants, -759 Defendants, and -982
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`Defendants (collectively “Defendants”) all argue that CCE‟s allegations of contributory
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`infringement are not sufficient to state a claim for relief. All three of the above-styled cases
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`do not concern the same patents, although there is some overlap, but the specific wording at
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`issue in each of the complaints is substantially identical. Therefore the analysis of whether or
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`not that language was sufficient to meet CCE‟s pleading burden will be the same in each
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`case.
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`All three of the motions to dismiss are based on the same two grounds: (1) CCE
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`failed to plead sufficient facts to support a plausible inference that the accused products lack
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`a substantial non-infringing use; and (2) that CCE failed to plead sufficient facts to support a
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`plausible inference that any identified components constitute a material part of the invention.
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`None of the motions claim that CCE failed to plead the first two elements of contributory
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`infringement (direct infringement and knowledge) but rather the motions focus only on the
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`third and fourth elements (no substantial non-infringing uses and materiality). Because the
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`substance of the motions is substantially similar, the same analysis will apply to all three
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`motions to dismiss5.
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`No Substantial Non-Infringing Use
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`
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`To state a claim for contributory infringement, Plaintiffs “must, among other things,
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`5 Unless otherwise stated, all references to the docket are to Case No. 6:13-cv-507. When a motion from another
`case differs substantially from the -507 motion, the Court will specifically reference that other motion.
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`6
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`plead facts that allow an inference that the components sold or offered for sale have no
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`substantial non-infringing uses.” Bill of Lading, 681 F.3d at 1337. In the context of a claim of
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`contributory infringement under § 271(c), “a substantial non-infringing use is any use that is
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`„not unusual, far-fetched, illusory, impractical, occasional, aberrant, or experimental.‟” Id.
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`(citing Vita-Mix Corp. v. Basic Holdings, Inc., 581 F.3d 1317, 1327-29 (Fed. Cir. 2009)).
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`Defendants argue that the language that CCE used in each of the amended complaints
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`at issue is not sufficient to show that the components have no substantial non-infringing use.
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`First, Defendants argue that CCE‟s assertions in its newest amended complaints are virtually
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`identical to those that were deemed insufficient to state a claim for contributory infringement
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`by Judge Davis in his earlier Order (Doc. No. 373). Doc. No. 396 at 6. The language at issue
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`in CCE‟s First Amended Complaint (“FAC”), which was the subject of Judge Davis‟s Order,
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`was:
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`On information and belief, Defendants named in this Count have known and
`know that their products accused of infringing (and/or components thereof) are
`a material part of the inventions of the…patent, are especially made and/or
`adapted for use in infringing the…patent, and are not staple articles or
`commodities of commerce suitable for substantial non-infringing use.
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`Doc. No. 92 ¶¶ 60, 73.
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`Judge Davis deemed that language insufficient to state a claim for contributory infringement.
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`Similarly, the Apple Complaint stated:
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`Defendants named in this Count know, and have known, that the…Apple
`Devices include proprietary hardware components and software instructions
`that work in concert to perform specific, intended functions. Such specific,
`intended functions, carried out by these hardware and software combinations,
`are a material part of the inventions of the…patent and are not staple articles of
`commerce suitable for substantial non-infringing use.
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`Cause No. 6:14-cv-251, Doc. No. 39 ¶¶ 63, 77.
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`As a result of Judge Davis‟s Order, finding the above language insufficient, CCE filed a
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`Second Amended Complaint (“SAC”) which stated:
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`On information and belief, Defendants named in this Count have known and
`know that their products accused of infringing include proprietary hardware
`components and software instructions that work in concert to perform specific,
`intended functions. Such specific, intended functions, carried out by these
`hardware and software combinations, are a material part of the inventions of
`the…patent and are not staple articles of commerce suitable for substantial
`non-infringing use.
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`Doc. No. 390 ¶¶ 35, 49
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`36. Specifically, each of the…Devices contain at least a baseband processor
`which contains functionality that is specifically programmed and/or configured
`to maintain a transmit power difference as claimed in claims…of the… patent.
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`50. Specifically, each of the…Devices contain at least a baseband processor
`and associated transceiver which contain functionality that is specifically
`programmed and/or configured to monitor the usage of a plurality of buffers,
`detect certain pre-selected conditions, designate buffer status reporting
`formats, and communicate buffer status reports as claimed in claims…of
`the…patent.
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`Doc. No. 390 ¶¶ 36, 506.
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`Defendants claim that that the language CCE added in its SAC is the same language pled in
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`the prior Apple case which the Court already ruled insufficient. Doc. No. 396 at 6. This is
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`incorrect. It is true that ¶¶ 35 and 49 do include the same language that was in the Apple
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`Complaints, but CCE also added an additional paragraph to each count specifically
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`identifying the hardware components and their specific, intended functions. Doc. No. 390
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`¶¶ 36, 50. This goes far beyond the nonspecific language in the FAC. Judge Davis‟s Order
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`took issue with the fact that CCE‟s complaints “[did] not identify any components of the
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`accused devices that are a material part of the invention” and thus CCE‟s allegations did not
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`“support a plausible inference that the accused devices or components thereof cannot be used
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`6 In the amended complaints at issue in all three of the above-styled cases, similar language was added identifying
`the specific hardware components and the specific, intended functions of the hardware and software combination.
`The only difference between the complaints was the specific hardware component identified and what function was
`performed.
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`for any other purpose than infringement.” Doc. No. 373 at 10 (emphasis added). It is clear
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`that CCE did not originally identify specific components of the accused devices in the FAC,
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`but that this deficiency was remedied in the SAC.
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`Next, Defendants assert that this additional language is akin to that in Bill of Lading,
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`which amounts to nothing more than “if you use this device to perform the patented method,
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`the device will infringe and has no noninfringing uses" and is insufficient to maintain a claim
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`of contributory infringement. 681 F.3d at 1338. Bill of Lading involved an accused system
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`as a whole. If you use the whole system one way, it infringed, but that entire system could be
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`used in other ways and thus the court found substantial non-infringing uses. Id. That is not
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`the case here. A component part may satisfy the “no substantial noninfringing use”
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`requirement for pleading contributory infringement. See Ricoh Co., Ltd. v. Quanta Computer
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`Inc., 550 F.3d 1325, 1336-40 (Fed. Cir. 2008). The component at issue here is the specific
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`hardware and software combination that performs the specific, intended functions.
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`At the hearing, Plaintiff argued that, using Defendants‟ logic, a Plaintiff can never
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`plead contributory infringement when a component is a processor because there are many
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`hypothetical noninfringing uses for a processor. Hearing Tr., Doc. No. 478 at 9-10. This gets
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`to the heart of the distinction between Bill of Lading and the present case. Defendants here
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`argue that because CCE uses the same hardware components (the baseband processor) in
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`more than one claim, that there is necessarily another noninfringing use for the whole
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`system. Doc. No. 396 at 7 (“[A]n allegedly infringing use for one of these patents is a non-
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`infringing use for the other.”). However, that mischaracterizes Plaintiffs‟ argument by
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`assuming that the relevant inquiry is about the device as a whole and not the components.
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`CCE is arguing that there is discrete code, which is a component itself. That code is
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`configured to control the baseband processor, transceiver, and other components, and there is
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`no substantial noninfringing use for that combination of components. Doc. No. 478 at 10.
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`The code is different under each patent and thus the combination of components that infringe
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`under one patent are not the same combination of components that infringe under another
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`patent. Contributory infringement should be analyzed based on this separate feature, not the
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`entire product. Fujitsu, 620 F.3d at 1330. The fact that the entire phone itself, or the
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`baseband processor plus other hardware and software combinations, may have substantial
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`non-infringing uses is not the correct inquiry.
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`Plaintiffs point to the Tierra case as being instructive. Judge Gilstrap issued an Order
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`denying a motion to dismiss when the Complaint included less specific information than the
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`instant case. In Tierra, the Complaint read:
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`Defendants employ authentication methods in their mobile devices, including
`but not limited to the Infringing Products, which are components of a patented
`machine covered by one or more claims of the ʼ078 patent, constitute a
`material part of the invention, and are not a staple article or commodity of
`commerce suitable for substantial noninfringing use.
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`Case No. 2:13-cv-044, Doc. No. 12 ¶ 67.
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`The Tierra Defendant moved to dismiss the claim of contributory infringement for failure to
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`state a claim, just as in this case. In the Court‟s Order on the Motion to Dismiss, Judge
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`Gilstrap noted that the Plaintiffs accused a specific component, not the entire device, of being
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`a material part of the invention with no substantial noninfringing uses. Case. No. 2:13-cv-
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`044, Doc. No. 36 at 3-4. It was obvious that the phone as a whole would have substantial
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`noninfringing uses, but the Plaintiffs were arguing contributory infringement only as to a
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`specific component, not the entire device. Id. Because of this, Judge Gilstrap found that the
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`Plaintiffs‟ allegations as pled were sufficient to maintain a contributory infringement claim.
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`Id.
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`It is sufficient at the pleading stage, for the Plaintiff to specify the component and
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`allege that it is a material part of the invention and not a staple article or commodity of
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`commerce suitable for substantial noninfringing use. See Tierra Intelectual Borinquen, Inc.
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`v. Toshiba Am. Info. Sys., Inc., No. 2:13-CV-047-JRG, 2014 WL 605431, at *2 (E.D. Tex.
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`Feb. 14, 2014). Here, CCE has done just that. Taking the facts alleged as true, CCE has
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`adequately pled that the accused components have no substantial noninfringing uses.
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`Materiality
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`Defendants‟ final argument is that CCE “ambiguously alleges that specific, intended
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`functions, carried out by…hardware and software combinations, are a material part of the
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`inventions,” and that this “bare recital of this element of contributory infringement is wholly
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`conclusory and not entitled to the assumption of truth.” Doc. No. 396 at 7 (internal
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`quotations omitted). However, as discussed above, a Plaintiff is only required to specify the
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`component and allege that it is a material part of the invention. See Case No. 2:13-CV-044,
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`Doc. No. 36 (Denying a motion to dismiss when the Complaint merely stated that the
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`component constituted a material part of the invention); See also Case No. 2:13-CV-047,
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`Doc. No. 31 (same). Judge Davis‟s prior Order in this case found the materiality element
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`lacking because CCE did not “identify any components of the accused devices that are a
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`material part of the invention.” Doc. No. 373 at 10. When CCE amended its complaints, it
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`identified the specific hardware components and stated that they are a material part of the
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`invention. That is sufficient at this stage. See Content Guard Holdings, Inc. v. Amazon, Inc.,
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`No. 2:13-cv-1112-JRG, 2015 WL 1431946, at *5 (E.D. Tex. Mar. 30, 2015) (holding that
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`Plaintiff adequately pled facts to support a claim of contributory infringement, at the motion
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`to dismiss stage, even without directly stating that the components were material parts of the
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`invention); LML Patent Corp. v. National Bank of Daingerfield, No. 2:09-cv-180-TJW, 2011
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`WL 1478517, at *2 (E.D. Tex. Mar. 24, 2011) (same).
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`CONCLUSION
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`For the reasons set forth above, Defendants‟ Joint Motions to Dismiss (6:13-cv-507,
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`Doc. No. 396; 6:14-cv-759, Doc. No. 85; 6:14-cv-982, Doc. No. 45) are DENIED.
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`12
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`So ORDERED and SIGNED this 30th day of October, 2015.