Case 6:20-cv-01215-ADA Document 20 Filed 04/02/21 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`NO. 6:20-cv-01215-ADA
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`OCEAN SEMICONDUCTOR LLC,
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`Plaintiff,
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`vs.
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`STMICROELECTRONICS, INC.,
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`Defendant.
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`§
`§
`§
`§
`§
`§
`§
`§
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`§
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`DEFENDANT STMICROELECTRONICS, INC.’S REPLY IN SUPPORT OF
`PARTIAL MOTION TO DISMISS UNDER RULE 12(b)(6)
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`Case 6:20-cv-01215-ADA Document 20 Filed 04/02/21 Page 2 of 15
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ............................................................................................................. 1
`ARGUMENT ..................................................................................................................... 1
`A.
`Section 271(g) Does Not Apply to Methods Claimed in Several Asserted
`Patents .................................................................................................................... 2
`1.
`The Method Claims of the ’538 and ’402 Patents Do Not Create or
`Transform a Physical Product ................................................................... 3
`The Processes Claimed in the ’305 and ’248 Patents Similarly Do
`Not Create or Transform a Physical Product ............................................ 7
`Ocean’s § 271(g)-based Infringement Claims Do Not Implicate
`Unresolved Issues of Fact .......................................................................... 7
`Ocean Has Not Sufficiently Pled Induced or Willful Infringement ...................... 9
`B.
`CONCLUSION ................................................................................................................ 10
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`3.
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`2.
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`-i-
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`I.
`II.
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`III.
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`Case 6:20-cv-01215-ADA Document 20 Filed 04/02/21 Page 3 of 15
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
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`Affinity Labs of Tex., LLC v. Blackberry Ltd.,
`No. W:13-CV-362, 2014 WL 12551207 (W.D. Tex. Apr. 30, 2014)........................................9
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`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...................................................................................................................1
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`Bayer AG v. Housey Pharms., Inc.,
`340 F.3d 1367 (Fed. Cir. 2003)........................................................................................ passim
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`Bio-Tech. Gen. Corp. v. Genentech, Inc.,
`80 F.3d 1553 (Fed. Cir. 1996)....................................................................................................6
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`Eli Lilly & Co. v. Am. Cyanamid Co.,
`82 F.3d 1568 (Fed. Cir. 1996)................................................................................................2, 3
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`Millennium Cryogenic Techs., Ltd. v. Weatherford Artificial Lift Sys.,
`No. H-12-0890-KPE, 2012 U.S. Dist. LEXIS 196638 (S.D. Tex. 2012) ..................................9
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`Momenta Pharms., Inc. v. Teva Pharms. USA Inc.,
`809 F.3d 610 (Fed. Cir. 2015)............................................................................................2, 3, 6
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`Ormco Corp. v. Align Tech., Inc.,
`653 F. Supp. 2d 1016 (C.D. Cal. 2009) .....................................................................................8
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`STATUTES
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`35 U.S.C. § 271(g) ...........................................................................................................................6
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`I.
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`INTRODUCTION
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`Ocean’s Opposition is mistaken about the breadth of 35 U.S.C. § 271(g). It is not enough
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`for a claimed process to “relate” to product manufacturing in some way. The Federal Circuit has
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`made clear that § 271(g) applies only when a patented process creates or modifies a physical
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`product. The governing legal standard thus precludes Ocean from alleging infringement of the
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`claimed methods of the ’538, ’402, ’305, and ’248 patents under § 271(g). Those infringement
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`claims should be dismissed with prejudice.
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`Ocean has also failed to allege plausible claims for inducement and willfulness. Ocean’s
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`complaint does not provide enough factual details to establish conduct by ST Inc. that satisfies
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`every element required for either induced or willful infringement. For some required elements,
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`Ocean provides no allegations at all. For others, it relies on speculation and conclusory
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`restatements of the law, rather than pleaded facts. As a result, Ocean’s induced and willful
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`infringement claims should be dismissed.
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`II.
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`ARGUMENT
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`Supreme Court precedent requires a complaint to provide sufficient facts to support that a
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`legal claim is plausible, not just possible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Ocean’s
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`complaint falls short. First, the complaint alleges infringement under 35 U.S.C. § 271(g) of patent
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`claims that do not create or modify a physical product. As a matter of law, such claims cannot
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`support infringement based on § 271(g). Second, the complaint does not plead facts sufficient to
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`establish the basic elements for induced and willful infringement. Ocean characterizes the
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`pleading standard as “relatively low” (Dkt. 19 at 3), but that self-serving description does not alter
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`the controlling standard, which Ocean’s complaint fails to meet.
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`A.
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`Section 271(g) Does Not Apply to Methods Claimed in Several Asserted
`Patents
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`As Ocean concedes (Dkt. 19 at 3), to allege infringement under § 271(g) a patent holder
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`must identify a product that is “made by” a process patented in the U.S. The Federal Circuit has
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`held that § 271(g) requires the claimed process itself to manufacture a physical product. Bayer
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`AG v. Housey Pharms., Inc., 340 F.3d 1367, 1377 (Fed. Cir. 2003) (“[F]or a product to have been
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`‘made by a process patented in the United States’ it must have been a physical article that was
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`‘manufactured.’”); Momenta Pharms., Inc. v. Teva Pharms. USA Inc., 809 F.3d 610, 615 (Fed.
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`Cir. 2015) (§ 271(g) limited to “actual ‘ma[king]’ of a product”) (alteration in original); Eli Lilly
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`& Co. v. Am. Cyanamid Co., 82 F.3d 1568, 1572 (Fed. Cir. 1996) (§ 271(g) concerns “direct and
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`unaltered products of patented processes”). The process must create or transform a physical
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`product. Momenta, 809 F.3d at 616. On the other hand, § 271(g) does not apply to processes that
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`may be related to manufacturing but are “too far removed from the actual making of the product.”
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`Id. at 617.
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`Ocean eschews this legal standard and instead fashions one to suit its argument. It asserts
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`that a patented process will suffice for purposes of § 271(g) if it “relates” to the manufacture of a
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`product, no matter how remotely. To support that interpretation, Ocean quotes a treatise that
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`describes the potential connection between a product and a patented process as ranging from
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`“immediate” to “remote” and cites dictum from a 1995 district court decision. Dkt. 19 at 4 (citing
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`5 Chisum on Patents § 16.02[6][d][iv] (2019). The treatise recognizes there are different degrees
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`of connection; it establishes nothing more. The commentary certainly does not alter the Federal
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`Circuit precedent described above. Nor does the passage from Eli Lilly cited by Ocean. There,
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`the court noted that Congress chose not to add the term “directly” to § 271(g) because the statute
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`also includes additional provisions that capture, for example, products made by a claimed process
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`but altered in immaterial ways after manufacture. Eli Lilly, 82 F.3d at 1576. Nowhere does the
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`decision broaden § 271(g) to cover every process somehow connected to manufacturing.
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`The Federal Circuit clearly applies a much narrower standard than Ocean proposes. In
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`Bayer, the patent holder alleged that the accused infringer used a claimed research process for
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`identifying useful drugs. 340 F.3d at 1377. The court held that because the research process was
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`not “used in the actual synthesis of the drug product,” the patent holder could not state a claim
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`under § 271(g). Id. at 1377–78. The court reached this conclusion even though the claimed
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`research process identified the product “to be manufactured” and was therefore remotely linked to
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`manufacturing. Id. Momenta is similar. The patent holder argued that methods for testing an
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`intermediate substance in a process for making a drug were “a crucial interim step used directly
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`[to] manufacture” the accused product. 809 F.3d at 615. Nonetheless, the court held that “made”
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`as used in § 271(g) “extends to the creation or transformation of a product, such as by synthesizing,
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`combining components, or giving raw materials new properties.” Id. at 616. The claimed method
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`did not meet that standard despite its use as part of manufacturing. Id. at 618.
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`As explained below and in ST’s Motion, the asserted method claims of the ’538, ’402,
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`’305, and ’248 patents do not describe processes that create or transform tangible products.
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`Accordingly, Ocean’s infringement claims based on § 271(g) should be dismissed with prejudice.
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`And while Ocean requests leave to amend (Dkt. 19 at 19), any amendment would be futile because
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`Ocean cannot change the patent claims to fit the requirements of § 271(g).
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`1.
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`The Method Claims of the ’538 and ’402 Patents Do Not Create or
`Transform a Physical Product
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`Section 271(g) does not apply to the processes recited in the asserted claims of the ’538
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`and ’402 patents. Asserted claim 1 of the ’538 patent requires a process for detecting fault
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`conditions during semiconductor manufacturing and adjusting the weighting of fault-related
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`parameters in the detection algorithm. Dkt. 18 at 5–6. The claims do not create or transform a
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`physical product, as required by § 271(g).
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`Ocean nonetheless argues § 271(g) applies because the claimed method “relates” to
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`semiconductor wafer manufacturing and refers to a product, namely, a semiconductor “workpiece”
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`or “wafer.” Dkt. 19 at 4–7. Not so. The legal test begins with what the claims recite. The claimed
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`process performs and improves fault detection by producing information about faults and refining
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`the process for finding them. No tangible product is made. It does not matter that the claimed
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`process may have some other connection to manufacturing. Nor is it sufficient that the claims
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`refer to a workpiece or wafer. The claims in Bayer and Momenta provide examples where making
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`references to products was not enough to satisfy § 271(g). In each case, the claimed method recited
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`a product—a “substance” affecting protein activity in Bayer, 340 F.3d at 1369, and a drug called
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`enoxaparin in Momenta, 890 F.3d at 613–14. The Federal Circuit nevertheless held that § 271(g)
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`did not apply. Ocean also relies on the specification’s disclosures of wafer processing that occurs
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`after the claimed process. Dkt. 19 at 5–7. But the claims are limited to fault detection and do not
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`cover any such processing. Whether a product is “made by a process” is determined by the
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`language of the claims, and not the specification.
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`Ocean accuses ST Inc. of “misconstru[ing] Bayer” by arguing that § 271(g) only applies if
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`“the patented method directly claims the physical manufacture of” a tangible product. Dkt. 19 at
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`5. But that is exactly what Bayer says: “the process must be used directly in the manufacture of
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`the product.” 340 F.3d at 1378 (emphasis added); see also Dkt. 18 at 6 (quoting Bayer, 340 F.3d
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`at 1368, 1377). Momenta follows suit. Dkt. 18 at 6 (quoting Momenta, 809 F.3d at 615, 616).
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`This binding precedent undercuts Ocean’s assertion that § 271(g) does not “exclude products that
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`are the result of the ’538 processes.” Dkt. 19 at 6. While Ocean can dislike the law, it cannot
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`change it.
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`Ocean contends that this case is distinguishable from Bayer because it alleges a physical
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`product is imported here, rather than just information. Dkt. 19 at 5–6. But that ignores the question
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`at the heart of § 271(g): is a physical product “made by” the claimed process? For the claimed
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`method of the ’538 patent, the answer is no. Importing a product made by an unclaimed process
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`into the U.S. does not infringe § 271(g). Indeed, Bayer also involved an imported product (a drug),
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`but importation was irrelevant because the product was not made using the claimed process. 340
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`F.3d at 1377–78. So it is here.
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`Asserted claim 1 of the ’402 patent also relates to fault detection. As Ocean recognizes,
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`the claimed process gathers processing tool data, looks for fault conditions, and—if such
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`conditions are detected—adjusts processing by shutting down a tool or by informing a technician.
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`Dkt. 18 at 8–9; Dkt. 19 at 9–10. Because the claimed steps do not create or transform a physical
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`product, § 271(g) does not apply to the claimed process.
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`Ocean’s rejoinders lack merit. Rather than addressing the substance of ST Inc.’s argument,
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`Ocean first contends that a different defendant’s choice not to move to dismiss a § 271(g)-based
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`infringement claim for the ’402 patent determines the outcome here. Dkt. 19 at 7. It does not.
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`The question is whether the recited method can support an infringement claim under § 271(g). As
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`described above, it cannot.
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`Next, Ocean asserts that the process claimed in the ’402 patent can be infringed based on
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`§ 271(g) because the process “relates” to manufacturing and is performed by manufacturing
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`equipment. Dkt. 19 at 7–10. These positions resemble Ocean’s faulty arguments relating to the
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`’538 patent and suggest that § 271(g) applies anytime a claimed method can be linked in any way
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`to manufacturing.1 That is wrong. The statute requires a “product which is made by a process
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`patented in the United States,” and the Federal Circuit has concluded the claimed process must
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`create or transform a tangible product. 35 U.S.C. § 271(g) (emphasis added); Bayer, 340 F.3d at
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`1368, 1377–78; Momenta, 809 F.3d at 615–16. By contrast, the claimed process in the ’402 patent
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`merely detects faults and then, in response, performs an action. Here too, Ocean notes that its
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`complaint accuses tangible products of infringement. Dkt. 19 at 7–9. But those allegations are
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`immaterial because the accused products are not “made by” the claimed process. It follows that
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`§ 271(g) does not apply to those products. And while Ocean alleges that the process claimed in
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`the ’402 patent is “crucial” to the manufacture of the accused products (Dkt. 19 at 9), it cannot
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`establish that those products are “made by” the process. Under the applicable law, that is fatal to
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`Ocean’s infringement claim based on § 271(g).
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`As support for its argument that § 271(g) applies because a physical product is made by
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`manufacturing equipment involved in the claimed process, Ocean cites Bio-Technology General
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`Corp. v. Genentech, Inc., 80 F.3d 1553, 1561 (Fed. Cir. 1996). Dkt. 19 at 8–9. That case supports
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`ST Inc.’s argument, not Ocean’s. In Bio-Tech., the Federal Circuit found that an accused protein
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`generated by a plasmid was “made by” a claimed method for creating the plasmid. 80 F.3d at
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`1560–61. Unlike the circumstances here, Congress had addressed the claimed process in the
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`legislative history, and the claimed process generated a plasmid that directly created the protein.
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`Id. The process resulted in the “actual synthesis” of the protein. Bayer, 340 F.3d at 1377. That is
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`not true of the fault detection process claimed in the ’402 patent. It does not create a semiconductor
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`wafer.
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`Ocean states there is “no dispute” that the steps of claim 1 of the ’402 patent are “practiced in the
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`actual manufacture” of the accused products. Dkt. 19 at 9. As evident from ST Inc.’s answer, that issue is very much
`contested. E.g., Dkt. 17 ¶¶ 104, 106, 111.
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`2.
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`The Processes Claimed in the ’305 and ’248 Patents Similarly Do Not
`Create or Transform a Physical Product
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`The asserted claims of the ’305 and ’248 patents recite a scheduling method for a
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`manufacturing process where an action is scheduled in response to a detected event. Dkt. 18 at
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`10–11. The method focuses on logistics and has, at best, a remote connection to actual product
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`manufacture. The process certainly does not create or transform a tangible product. As a result,
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`§ 271(g) does not apply.
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`Ocean disagrees, but its reasoning does not hold up. It argues that scheduling is
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`“indispensable” to semiconductor manufacturing. Dkt. 19 at 10–11. Even assuming that were
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`true, the importance of scheduling does not affect whether a product is “made by” the claimed
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`process, as required by § 271(g). Under Bayer and Momenta, a process must create or transform
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`a product to serve as the basis for infringement under § 271(g). The methods claimed in the ’305
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`and ’248 patents do not meet that standard; they merely schedule actions.
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`As with the asserted fault detection patents, Ocean argues that the specification and claims
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`mention, and generally relate to, manufacturing. Dkt. 19 at 11. But none of that changes the scope
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`of the asserted claims. Those claims recite processes that detect an event and respond by
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`scheduling an action. The steps do not make or alter a physical product—which is required for
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`§ 271(g) to apply. Ocean further asserts that the claimed events and scheduled actions might relate
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`directly to manufacturing. Dkt. 19 at 11–12. Even so, the claimed processes are limited to
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`scheduling. The claims do not require performing any actions that manufacture a semiconductor
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`device. Ocean cannot revamp the claims to cover such steps.
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`3.
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`Ocean’s § 271(g)-based Infringement Claims Do Not Implicate
`Unresolved Issues of Fact
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`For the reasons described above, the asserted claims of the ’538, ’402, ’305, and ’248
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`patents do not satisfy the legal requirements of § 271(g) and related precedent. As a matter of law,
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`Ocean cannot allege ST Inc. has infringed those claims under the statute, and its § 271(g)-based
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`infringement claims tied to the patents should be dismissed.
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`In a last-ditch effort to avoid that outcome, Ocean argues that fact issues preclude
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`dismissal. No such issues exist. Ocean initially argues that a product is “made by” a patented
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`process if that process is necessary to make the product “commercially viable”—an issue that
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`purportedly remains unsettled for the methods claimed in the ’538, ’402, ’305, and ’248 patents.
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`Dkt. 19 at 18–19. That position is unsupported. Section 271(g) does not mention commercial
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`viability. Nor does Bayer or Momenta, even though the latter dealt with a method for testing
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`product quality. Instead, the threshold question for § 271(g) is whether a process creates or
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`transforms a tangible product. If not, the process cannot support an infringement claim under the
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`statute.
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`The cases cited by Ocean do not help its cause. Dkt. 19 at 18. None says that commercial
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`viability alone can determine whether a product is “made by” a process, much less addresses
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`whether commercial viability can defeat a motion to dismiss. Ocean invents that idea. In fact, in
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`addressing § 271(g) in the context of judgment as a matter of law, one decision cited by Ocean
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`expressly states that “the issue of commercial viability is not . . . dispositive.” Ormco Corp. v.
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`Align Tech., Inc., 653 F. Supp. 2d 1016, 1026–27 (C.D. Cal. 2009).
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`Ocean also argues that whether a claimed process is “sufficiently tied” to a product for
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`purposes of § 271(g) is a “fact question.” Dkt. 19 at 19. If that were true, courts would never grant
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`motions to dismiss based on § 271(g). But they do. For example, in Bayer the Federal Circuit
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`affirmed a district court’s dismissal of infringement claims based on § 271(g). 340 F.3d at 1378.
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`Also, Ocean misstates the holding of the single district court case it relies on. That case relates to
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`whether a product “made by” a patented process was materially changed for purposes of
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`§ 271(g)(1), not to the “made by” question generally. See Millennium Cryogenic Techs., Ltd. v.
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`Weatherford Artificial Lift Sys., No. H-12-0890, 2012 U.S. Dist. LEXIS 196638, at *8 (S.D. Tex.
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`Sept. 5, 2012). In its Opposition (Dkt. 19 at 19), Ocean omitted the key portion of the opinion:
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`[I]ssues regarding whether the refurbished stators are “made by” the
`patented process or constitute “materially changed” section
`271(g)(1) products are material fact issues that are, and should
`remain, within the province of the fact finder in this case.
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`Millennium, 2012 U.S. Dist. LEXIS 196638, at *8 (emphasis added). The case does not suggest
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`that whether a product is “made by” a patented process is a fact issue, as Ocean urges. The fact
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`issue identified by the Court was something different and narrower: whether a product known to
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`be made by a patented process was then materially changed such that § 271(g) would no longer
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`apply, as described in § 271(g)(1). The case simply does not say what Ocean wants it to say.
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`B.
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`Ocean Has Not Sufficiently Pled Induced or Willful Infringement
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`To properly plead inducement, Ocean must allege facts to support that ST Inc. knew that
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`an induced party’s acts constituted infringement. Dkt. 18 at 3, 14. It argues that allegations about
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`ST Inc.’s purported “contractual relationships” with third-party manufacturers that “use third-party
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`manufacturing tools to manufacture the accused products” are sufficient. Dkt. 19 at 12–13. But
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`those allegations are silent as to whether ST Inc. had the requisite knowledge. In its Opposition,
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`Ocean suggests that ST Inc. “surely has knowledge of the processes and equipment used to
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`manufacture them.” Dkt. 19 at 13. That statement is sheer speculation and, more fundamentally,
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`does not appear in the complaint. Affinity Labs of Tex., LLC v. Blackberry Ltd., No. W:13-CV-
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`362, 2014 WL 12551207, at *3 (W.D. Tex. Apr. 30, 2014). As to third-party importers, the
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`complaint does not allege that ST Inc. knew their alleged actions infringed. Dkt. 18 at 14. Ocean
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`also fails to sufficiently allege the required intent. Dkt. 18 at 3, 14–15. It argues allegations
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`relating to “information that it expects discovery will reveal” are enough. Dkt. 19 at 14. That
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`argument only underscores that the allegations are speculative and insufficient to support a claim.
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`Dkt. 18 at 14–15. Lastly, Ocean doubles down on generic allegations relating to promotional
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`activities. Dkt. 19 at 14–15. Those allegations are also defective. Dkt. 18 at 13–14. Ocean’s
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`claims for induced infringement should be dismissed.
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`Ocean’s willful infringement claims fare no better. Willfulness requires pleading facts
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`sufficient to show that ST Inc. knew about the asserted patents and knew or should have known it
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`infringed them. Dkt. 18 at 3, 15. Once again, Ocean argues that allegations relating to dealings
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`with manufacturers are adequate. Dkt. 19 at 16-17. Those allegations say nothing about ST Inc.’s
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`knowledge of the patents or infringement. Ocean also points to allegations that ST Inc. had actual
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`notice of the patents and infringement. Dkt. 19 at 17. But those allegations just repeat the legal
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`elements of willful infringement. Dkt. 18 at 16–17. Ocean further argues that “notice letters are
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`sufficient to show knowledge.” Dkt. 19 at 17. Its complaint does not mention a letter, however,
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`let alone describe how any such letter provided ST Inc. with knowledge of the patents and
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`infringement. Furthermore, Ocean failed to plead the egregious conduct necessary to support a
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`finding of willfulness. Dkt. 18 at 17–18. Ocean does not even attempt to argue the contrary.
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`Ocean’s willfulness claims should be dismissed.
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`III. CONCLUSION
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`ST Inc. respectfully requests that the Court grant its partial motion to dismiss.
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`Case 6:20-cv-01215-ADA Document 20 Filed 04/02/21 Page 14 of 15
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`Dated: April 2, 2021
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`Respectfully submitted,
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`/s/ Tyler R. Bowen
`Janice L. Ta, Texas 24075138
`JTa@perkinscoie.com
`Perkins Coie LLP
`500 West Second St., Suite 1900
`Austin, TX 78701
`
`Chad S. Campbell (admitted pro hac vice)
`CSCampbell@perkinscoie.com
`Tyler R. Bowen (admitted pro hac vice)
`TBowen@perkinscoie.com
`Perkins Coie LLP
`2901 North Central Avenue, Suite 2000
`Phoenix, AZ 85012
`
`Philip A. Morin (admitted pro hac vice)
`PMorin@perkinscoie.com
`Yudong Kim (admitted pro hac vice)
`YKim@perkinscoie.com
`Perkins Coie LLP
`11452 El Camino Real, Suite 300
`San Diego, CA 92130-2020
`
`ATTORNEYS FOR DEFENDANT
`STMICROELECTRONICS, INC.
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`Case 6:20-cv-01215-ADA Document 20 Filed 04/02/21 Page 15 of 15
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`CERTIFICATE OF SERVICE
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`Pursuant to the Federal Rules of Civil Procedure and Local Rule CV-5, I hereby certify
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`that, on April 2, 2021, all counsel of record who have appeared in this case are being served with
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`a copy of the foregoing via the Court’s CM/ECF system.
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`/s/ Tyler R. Bowen
`Tyler R. Bowen
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`-12-
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