Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 1 of 25
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`CPC PATENT TECHNOLOGIES PTY LTD.,
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` Plaintiff,
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` v.
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`APPLE INC.,
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` Defendant.
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`Case No. 6:21-cv-00165-ADA
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`JURY TRIAL DEMANDED
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`APPLE INC.’S MOTION TO DISMISS COMPLAINT PURSUANT TO RULE 12(B)(6)
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 2 of 25
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`TABLE OF CONTENTS
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`INTRODUCTION .......................................................................................................................... 1
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`I.
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`STATEMENT OF FACTS ................................................................................................. 2
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`A.
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`B.
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`C.
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`D.
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`E.
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`The ʼ039 Patent ....................................................................................................... 2
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`The ʼ208 and ʼ705 Patents ...................................................................................... 4
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`CPC’s Direct Infringement Allegations .................................................................. 6
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`CPC’s Indirect Infringement Allegations ............................................................... 9
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`CPC’s Pre-Suit Damages Allegations ..................................................................... 9
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`II.
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`III.
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`LEGAL STANDARDS .................................................................................................... 10
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`ARGUMENTS .................................................................................................................. 11
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`A.
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`CPC’s Direct Infringement Claims Should be Dismissed With Prejudice ........... 11
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`1.
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`2.
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`CPC Does Not Allege that the Accused Products Practice Every
`Limitation of the ʼ039 Patent .................................................................... 11
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`CPC Does Not Allege that the Accused Products Practice Every
`Limitation of the ʼ208 and ʼ705 Patents ................................................... 13
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`B.
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`CPC’s Indirect Infringement Claims Should be Dismissed .................................. 15
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`1.
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`2.
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`CPC’s Indirect Infringement Claims Fail Because Its Direct Infringement
`Claims Fail ................................................................................................ 15
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`CPC’s Indirect Infringement Claims Lack Factual Support ..................... 16
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`C.
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`CPC’s Claims for Past Damages Lack Support and Should be Dismissed .......... 17
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`CONCLUSION ............................................................................................................................. 18
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 3 of 25
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Cases
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`Antonious v. Spaulding & Evenflo Companies, Inc.,
`275 F.3d 1066 (Fed. Cir. 2002)..........................................................................................13, 17
`
`Arctic Cat Inc. v. Bombardier Recreational Prod. Inc.,
`876 F.3d 1350 (Fed. Cir. 2017)................................................................................................18
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...........................................................................................................10, 16
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) .................................................................................................................10
`
`Carlton v. Freer Inv. Grp., Ltd.,
`No. 5:15-cv-00946-DAE, 2017 WL 11046201 (W.D. Tex. Aug. 8, 2017) .............................10
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`Chapterhouse, LLC v. Shopify, Inc.,
`No. 2:18-cv-00300-JRG, 2018 WL 6981828 (E.D. Tex. Dec. 11, 2018) ................................11
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`Dodots Licensing Solutions LLC v. Lenovo Holding Co., Inc.,
`No. 18-098 (MN), 2018 WL 6629709 (D. Del. Dec. 19, 2018) ..............................................17
`
`Express Mobile, Inc., v. DreamHost LLC,
`No. 1:18-cv-01173-RGA, 2019 WL 2514418 (D. Del. Jun. 18, 2019) ...................................18
`
`Gabriel De La Vega v. Microsoft Corp.,
`No. 6:19-cv-00612-ADA, 2020 WL 3528411 (W.D. Tex. Feb. 11, 2020) .............................11
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`Inhale, Inc. v. Gravitron,
`LLC, No. 1:18-cv-00762-LY, 2018 WL 7324886 (W.D. Tex. Dec. 10, 2018) .................15, 16
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`Joao Control & Monitoring Sys., LLC v. Protect Am., Inc.,
`No. 1:14-cv-00134-LY, 2015 WL 3513151 (W.D. Tex. Mar. 24, 2015) ..........................15, 16
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`Kirsch Research and Dev., LLC v. Atlas Roofing Corp.,
`No. 5:20-cv-00055-RWS, 2020 WL 8363154 (E.D. Tex. Sept. 29, 2020)..............................11
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`Logic Devices, Inc. v. Apple, Inc.,
`No. C-13-02943 WHA. 2014 WL 60056 (N.D. Cal. Jan. 7, 2014) .........................................16
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`Meetrix IP, LLC v. Cisco Sys., Inc.,
`No. 1-18-CV-309-LY, 2018 WL 8261315 (W.D. Tex. Nov. 30, 2018) ..................................10
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 4 of 25
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`PACT XPP Tech., AG v. Xilinx, Inc.,
`No. 2:07-cv-00563-RSP, 2012 WL 1029064 (E.D. Tex. Mar. 26, 2012) ................................18
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`Parity Networks, LLC v. Cisco Sys., Inc.,
`No. 6:19-cv-00207-ADA, 2019 WL 3940952 (W.D. Tex. July 26, 2019) ..............................15
`
`SuperGuide Corp. v. DirecTV Enterprises, Inc.,
`358 F.3d 870 (Fed. Cir. 2004)..................................................................................................14
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`Vizza Wash, LP v. Nationwide Mutual Insurance Co.,
`No. 5:20-cv-00680-OLG, 2020 WL 6578417 (W.D. Tex. Oct. 26, 2020) ..............................10
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`Statutes
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`35 U.S.C. § 284 ................................................................................................................................9
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`35 U.S.C. § 287 ..............................................................................................................................17
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`Other Authorities
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`Federal Rule of Civil Procedure 8(A)(2) .......................................................................................10
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`Federal Rule of Civil Procedure 12(b) ...........................................................................................18
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`Federal Rule of Civil Procedure 12(b)(6) ..................................................................................1, 10
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`Federal Rule of Civil Procedure 11 ..............................................................................................14
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 5 of 25
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`Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Apple Inc. respectfully
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`moves the Court to dismiss Plaintiff CPC Patent Technologies Pty Ltd.’s complaint for failing to
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`specify the factual basis for its infringement allegations.
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`INTRODUCTION
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`CPC’s barebones complaint should be dismissed because it fails to serve its fundamental
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`purpose: to provide fair notice of the factual basis for its infringement allegations to Apple.
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`While CPC accuses Apple of directly and indirectly infringing a single claim in each of the
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`Asserted Patents, the complaint contains no facts supporting key limitations in each Asserted
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`Patent. More specifically, CPC’s complaint lacks any support for the ʼ039 Patent’s “dependent
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`upon the received card information” limitation, as well as the ʼ208 Patent’s and ʼ705 Patent’s
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`“number of said entries and a duration of each said entry” limitations. Thus, CPC does not
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`plausibly allege that Apple directly infringes any claim of the Asserted Patents.
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`CPC’s indirect infringement claims are similarly defective. In addition to the
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`deficiencies in CPC’s direct infringement pleading, these claims suffer from a lack of any factual
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`support with respect to the necessary intent. CPC offers only boilerplate indirect infringement
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`language. CPC’s failure to plead with any specificity provides an additional basis for dismissing
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`those claims. Thus, CPC does not plausibly allege that any third party indirectly infringes any
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`claim of the Asserted Patents.
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`Finally, CPC’s claim for past damages must be dismissed because it fails to allege any
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`facts showing that it has complied with the patent statute’s marking requirement, which is a
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`necessary element of an infringement claim for past damages.
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`1
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 6 of 25
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`I.
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`STATEMENT OF FACTS
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`On February 23, 2021, CPC filed this suit for alleged patent infringement in the United
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`States District Court for Western District of Texas. CPC accuses Apple of directly and indirectly
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`infringing U.S. Patent Nos. 8,620,039 (the “ʼ039 Patent”), 9,269,208 (the “ʼ208 Patent”), and
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`9,665,705 (the “ʼ705 Patent”) (collectively, the “Asserted Patents”). D.I. 1 at ¶¶ 27-28, 33-34,
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`39-40. Specifically, CPC accuses Apple iPhones and iPads with Apple Card loaded into the
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`iPhone Wallet of infringing the ʼ039 Patent; CPC accuses Apple iPhones and iPads with Touch
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`ID or Face ID features of infringing the ʼ208 Patent and ʼ705 Patent. Id. at ¶ 2.
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`A.
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`The ʼ039 Patent
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`The ’039 Patent issued on December 31, 2013 and is titled “Card Device Security Using
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`Biometrics.” D.I. 1, Ex. A. The ʼ039 Patent relates to “security issues associated with use of
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`card devices such as credit cards, smart cards, and wireless card-equivalents such as wireless
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`transmitting fobs.” Id. at 1:13-16. According to the ’039 Patent, existing biometric card devices
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`“require[] a central repository (806) of card information 702 and biometric information 801” that
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`is “cumbersome and potentially compromises the privacy of the holder of the card 701.” Id. at
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`2:31-34. The system disclosed in the ’039 Patent purports to solve this problem “by
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`automatically storing a card user’s biometric signature in a local memory in a verification
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`station….” Id. at 2:54-55. More precisely, the ʼ039 Patent discloses a system where the
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`“biometric signature is stored at a memory address defined by the (‘unique’) card information
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`on the user’s card as read by the card reader of the verification station.” Id. at 2:64-67 (emphasis
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`added). This is accomplished by using “card data 604 [that] defines the location 607 in the
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`memory 124 where their unique biometric signature is stored” (id. at 7:47-49):
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 7 of 25
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`Id. at Fig. 4.
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`This dependency between the card and the location of the storage of the biometric data is
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`reflected in the express language of asserted claim 13, which recites:
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`13. A biometric card pointer enrolment system comprising:
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`a card device reader for receiving card information;
`a biometric reader for receiving the biometric signature;
`means for defining, dependent upon the received card information, a memory location
`in a local memory external to the card;
`means for determining if the defined memory location is unoccupied; and
`means for storing, if the memory location is unoccupied, the biometric signature at the
`defined memory location.
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`D.I. 1, Ex. A at Claim 13 (emphasis added).
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`3
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 8 of 25
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`B.
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`The ʼ208 and ʼ705 Patents
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`The ’705 Patent is a continuation of the ʼ208 Patent, and thus the ʼ208 and ʼ705 Patents
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`share the same specification. The ʼ208 Patent issued on February 23, 2016 and is titled “Remote
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`Entry System.” D.I. 1, Ex. B. The ʼ705 Patent issued on May 30, 2017 and is also titled
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`“Remote Entry System.” D.I. 1, Ex. C. The ʼ208 and ʼ705 Patents relate to “secure access
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`systems and, in particular, to systems using wireless transmission of security code information.”
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`Id. at 1:13-15. According to the ʼ208 and ʼ705 Patents, existing secure access systems “utilise
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`[sic] a communication protocol called ‘Wiegand’ for communication between the code entry
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`module 403 and the controller 405.” Id. at 2:1-3. However, “[t]he Wiegand protocol does not
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`secure the information being sent between the code entry module 403 and the controller 405.”
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`Id. at 2:7-9. The system disclosed in the ʼ208 and ʼ705 Patents purports to solve this problem of
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`providing secure access by “determining at least one of the number of said entries [of a biometric
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`signal] and a duration of each said entry….” Id. at 3:39-40. Specifically, the ʼ208 and ʼ705
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`Patents disclose a system where access is granted “by providing a succession of finger presses to
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`the biometric sensor 121, providing that these successive presses are of the appropriate duration,
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`the appropriate quantity, and are input within a predetermined time.” Id. at 10:57-60. “If the
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`successive finger presses are provided within this predetermined time, then the controller 107
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`accepts the presses as potential control information and checks the input information against a
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`stored set of legal control signals” to allow access. Id. at 10:63-67. As with the ’705 Patent, this
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`requirement that the number and duration of the biometric signals be stored and used as part of
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`the process of populating the database of biometric signatures is reflected in the express language
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`of asserted claim 10 of the ʼ208 Patent, which recites:
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 9 of 25
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`10. A method for providing secure access to a controlled item in a system comprising a
`database of biometric signatures, a transmitter sub-system comprising a biometric sensor
`for receiving a biometric signal, and means for emitting a secure access signal capable of
`granting more than two types of access to the controlled item, and a receiver sub-system
`comprising means for receiving the transmitted secure access signal, and means for
`providing conditional access to the controlled item dependent upon information in said
`secure access signal, the method comprising the steps of:
`populating the database of biometric signatures by:
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`receiving a series of entries of the biometric signal;
`determining at least one of the number of said entries and a duration of each said
`entry;
`mapping said series into an instruction; and
`populating the database according to the instruction;
`receiving a biometric signal;
`matching the biometric signal against members of the database of biometric signatures to
`thereby output an accessibility attribute;
`emitting a secure access signal conveying information dependent upon said accessibility
`attribute; and
`providing conditional access to the controlled item dependent upon said information,
`wherein the controlled item is one of: a locking mechanism of a physical access structure
`or an electronic lock on an electronic computing device.
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`D.I. 1, Ex. B at Claim 10 (emphasis added).
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`The same duration requirement is also reflected in the express language of the asserted
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`claim 1 of the ʼ705 Patent, which recites:
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`1. A system for providing secure access to a controlled item, the system comprising:
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`a memory comprising a database of biometric signatures;
`a transmitter sub-system comprising:
`a biometric sensor configured to receive a biometric signal;
`a transmitter sub-system controller configured to match the biometric signal against
`members of the database of biometric signatures to thereby output an
`accessibility attribute; and
`a transmitter configured to emit a secure access signal conveying information
`dependent upon said accessibility attribute; and
`a receiver sub-system comprising:
`a receiver sub-system controller configured to:
`receive the transmitted secure access signal; and
`provide conditional access to the controlled item dependent upon said information;
`wherein the transmitter sub-system controller is further configured to:
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`5
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 10 of 25
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`receive a series of entries of the biometric signal, said series being characterised
`according to at least one of the number of said entries and a duration of
`each said entry;
`map said series into an instruction; and
`populate the data base according to the instruction, wherein the controlled item is
`one of: a locking mechanism of a physical access structure or an electronic
`lock on an electronic computing device.
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`D.I. 1, Ex. C at Claim 1 (emphasis added).
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`C.
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`CPC’s Direct Infringement Allegations
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`CPC offers no facts in the body of its complaint supporting its direct infringement
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`allegations other than referring to attached claim charts. See D.I. 1 at ¶¶ 27, 33, 39. For the ʼ039
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`Patent’s “means for defining, dependent upon the received card information, a memory location
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`in a local memory external to the card” limitation, CPC pleads the following:
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`D.I. 1, Ex. J at 2-3.
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 11 of 25
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`Although CPC’s chart includes reference to memory locations for the “security enclave”
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`[sic], it does not allege that these memory “address locations” are used to store biometric data
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`dependent upon the card data.
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`For the ʼ208 Patent’s “at least one of the number of said entries and a duration of each
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`said entry” limitation, CPC pleads the following for Face ID:
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`D.I. 1, Ex. F at 7-8. For the same limitation, CPC pleads the following for Touch ID for the ʼ208
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`Patent:
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`7
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 12 of 25
`Case 6:21-cv-00165—ADA Document 23 Filed 05/06/21 Page 12 of 25
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`The Apple iPhone SE populates the database of biometric signatures by determining at least one
`of the number of said entries and a duration of each said entry.
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`lOal. determining at least
`one of the number of said
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`each said entry:
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`More specifically. the Apple iPhone SE receives a series of fingelpn'nt signal through a sensor by
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 13 of 25
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`D.I. 1, Ex. G at 11-13. CPC puts forward nearly identical support for the same limitation in the
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`related ʼ705 Patent. See D.I. 1, Ex. H at 11-12; Ex. I at 16-18.
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`
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`For all of its charts, whether for those addressing Face ID (Exs. F, H) or Touch ID (Exs.
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`G, I), CPC never alleges that the number or duration of fingerprint or face images captured is
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`measured, stored, or used in any way. There is no allegation as to number or duration at all,
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`other than to allege that there are multiple face images or fingerprint signals.
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`D.
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`CPC’s Indirect Infringement Allegations
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`CPC alleges induced infringement by Apple for all Asserted Patents. For the ʼ208 Patent,
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`CPC offers only the following allegations:
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`D.I. 1 at ¶ 28. CPC offers nearly identical allegations for the ʼ705 Patent and ʼ039 Patent. See
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`D.I. 1 at ¶¶ 34, 40.
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`E.
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`CPC’s Pre-Suit Damages Allegations
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`CPC asks the Court to “award damages pursuant to 35 U.S.C. § 284 adequate to
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`compensate CPC for Apple’s past infringement of the Patents-in-Suit….” D.I. 1 at 7. To
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`support its compliance with the marking statute necessary to obtain pre-suit damages, CPC states
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`only the following allegations for the ʼ208 Patent:
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`D.I. 1 at ¶ 30. CPC states identical allegations for the ʼ705 Patent and ʼ039 Patent. See D.I. 1 at
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`¶¶ 36, 42.
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`9
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 14 of 25
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`II.
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`LEGAL STANDARDS
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`Federal Rule of Civil Procedure 8(A)(2) requires a complaint to include “a short and
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`plain statement of the claim showing that the pleader is entitled to relief, in order to give the
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`defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 545 (2007). For a complaint to survive a Rule 12(b)(6) motion
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`to dismiss, “every element of each cause of action must be supported by specific factual
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`allegations.” Carlton v. Freer Inv. Grp., Ltd., No. 5:15-cv-00946-DAE, 2017 WL 11046201, at
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`*8 (W.D. Tex. Aug. 8, 2017) (citation omitted). And all allegations must include “enough
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`factual matter” that, when taken as true, “state a claim to relief that is plausible on its face.”
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`Twombly, 550 U.S. at 570. “This plausibility standard is met when ‘the plaintiff pleads factual
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`content that allows the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged.’” Meetrix IP, LLC v. Cisco Sys., Inc., No. 1-18-CV-309-LY, 2018 WL
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`8261315, at *1 (W.D. Tex. Nov. 30, 2018) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
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`A conclusory allegation or a “formulaic recitation of the elements of a cause of action will not
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`do.” Iqbal, 556 U.S. at 678.
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`When a complaint fails to comply with these requirements, it fails to state a claim upon
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`which relief can be granted and it should be dismissed pursuant to Federal Rule of Civil
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`Procedure 12(b)(6). Further, to the extent that the plaintiff cannot allege facts to remedy their
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`complaint, i.e., amendment would be futile, then the claim should be dismissed with prejudice.
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`See, e.g., Vizza Wash, LP v. Nationwide Mutual Insurance Co., No. 5:20-cv-00680-OLG, 2020
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`WL 6578417, at *9 (W.D. Tex. Oct. 26, 2020) (dismissing claims with prejudice and denying
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`Plaintiff’s motion for to leave to amend because “further amendment would be futile”).
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`10
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 15 of 25
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`III. ARGUMENTS
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`A.
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`CPC’s Direct Infringement Claims Should be Dismissed With Prejudice
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`Courts apply the Iqbal / Twombly standard when evaluating the sufficiency of direct
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`infringement claims. See, e.g., Gabriel De La Vega v. Microsoft Corp., No. 6:19-cv-00612-
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`ADA, 2020 WL 3528411, at *2 (W.D. Tex. Feb. 11, 2020).
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`CPC’s direct infringement claim should be dismissed because the complaint lacks any
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`explanation of how Apple’s products meet each of the limitations of any asserted claim. See
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`Kirsch Research and Dev., LLC v. Atlas Roofing Corp., No. 5:20-cv-00055-RWS, 2020 WL
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`8363154, at *2 (E.D. Tex. Sept. 29, 2020) (“To survive a motion to dismiss, therefore, a plaintiff
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`must allege facts sufficient to create a plausible inference that each element of the claim is
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`infringed by the accused products.”) (emphasis added); see also Chapterhouse, LLC v. Shopify,
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`Inc., No. 2:18-cv-00300-JRG, 2018 WL 6981828, at *1 (E.D. Tex. Dec. 11, 2018) (“If it is
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`apparent from the face of the complaint that an insurmountable bar to relief exists, and the
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`plaintiff is not entitled to relief, the court must dismiss the claim.”).
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`1.
`
`CPC Does Not Allege that the Accused Products Practice Every
`Limitation of the ʼ039 Patent
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`The sole asserted claim in the ʼ039 Patent requires, among other limitations, “means for
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`defining, dependent upon the received card information, a memory location in a local memory
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`external to the card.” D.I. 1, Ex. A at Claim 13 (emphasis added). In other words, the memory
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`location used to store the biometric data depends on received card information. CPC fails to
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`make any allegation that this requirement is met. Instead, as shown above in Section I.C., it
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`merely alleges that the Apple Secure Enclave Processor (“SEP”) stores fingerprint data as part of
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`Touch ID but never alleges that the accused products store this information in any way
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`dependent on the card information. CPC cites to three pieces of evidence, but none reference or
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 16 of 25
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`indicate that the memory location for the fingerprint is dependent on or even related to the card.
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`D.I. 1, Ex. J at 2-3 (citing (1) a third-party news article on the Apple Secure Enclave process
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`components; (2) an Apple article introducing the Apple Card; and (3) a figure and its associated
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`brief description from a 2014 Apple patent application).
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`First, the third-party news article mentions memory generally but does not discuss any
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`aspects of how a memory location is defined, which is required to allege that the claim limitation
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`is met. Second, the Apple Card article does not mention memory at all, and therefore does not
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`advance CPC’s allegations for this limitation. Third, the figure from the 2014 Apple patent
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`application depicts “a diagram illustrating one embodiment of a memory address space and
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`views there from the SEP, the CPU, and other peripherals.” D.I. 1, Ex. J at 3 (language from
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`cited “’682 Application, ¶ [0018]”).1 Other than showing the SEP has a memory location in
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`which something is stored, the cited figure and language from the patent application say nothing
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`about storing biometric data depending on received card information. Specifically, there is no
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`disclosure of how the locations are defined, let alone that they are defined dependent upon card
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`received information, or any other information for that matter. And CPC makes no such
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`allegation. Indeed, it cannot because this is not how the accused products operate. The location
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`where biometric information is stored is unrelated to any information received from a user’s
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`Apple Card. The processes are separate, a fact that is apparent from the ability to enroll an
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`Apple Card in Apple Wallet without Touch ID or Face ID enabled, and the ability to use Touch
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`
`1 CPC makes no attempt to tie this 2014 Apple patent application to any component or function
`in any of the accused products. It appears that CPC identified one of Apple’s thousands of patent
`applications and included it as alleged evidence of how the specific Apple products accused in
`this case operate without any due diligence or explanation of how the patent application ties to
`the products. This is far from pleading factual content that allows the Court to draw the
`reasonable inference that Apple’s products operate as disclosed in the patent application.
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 17 of 25
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`ID or Face ID without Apple Card. Importantly, the Court need not address how the products
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`work to decide this issue in Apple’s favor. Rather, Apple’s motion should be granted because
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`even accepting CPC’s factual allegations as true, which the Court must at this stage, CPC does
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`not allege that this limitation is met.
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`Even when lacking conclusive evidence, a party filing a patent infringement complaint
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`must nonetheless have a good faith belief, “based on some actual evidence uncovered during the
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`prefiling investigation, that each claim limitation reads on the accused device either literally or
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`under the doctrine of equivalents.” Antonious v. Spaulding & Evenflo Companies, Inc., 275 F.3d
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`1066, 1074 (Fed. Cir. 2002). That is, prior to filing suit, plaintiff must have concluded, based on
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`direct evidence or at least on good faith belief, that the accused product has specific features that
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`would satisfy each claim limitation of at least one claim. CPC’s lack of an allegation on this
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`limitation suggests it could not make this allegation in good faith.
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`Thus, because CPC does not allege that every limitation of an asserted claim is met, and
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`amendment would be futile given how the accused products operate, CPC’s direct infringement
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`claim for the ʼ039 Patent should be dismissed with prejudice.
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`2.
`
`CPC Does Not Allege that the Accused Products Practice Every
`Limitation of the ʼ208 and ʼ705 Patents
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`The sole asserted claim in the ʼ208 Patent requires that the accused device “determin[e]
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`at least one of the number of said entries and a duration of each said entry.” D.I. 1, Ex. B at
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`Claim 10 (emphasis added). Similarly, the sole asserted claim in the ʼ705 Patent requires that the
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`accused device “receive a series of entries of the biometric signal, said series being characterised
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`[sic] according to at least one of the number of said entries and a duration of each said entry.”
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`D.I. 1, Ex. C at Claim 1 (emphasis added). In other words, the express claim language requires
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`that, when populating the database of biometric signatures, the biometric signal must include
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`both the number of finger presses and the duration of those presses. See SuperGuide Corp. v.
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`DirecTV Enterprises, Inc., 358 F.3d 870, 886 (Fed. Cir. 2004) (“The phrase ‘at least one of’
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`precedes a series of categories of criteria, and the patentee used the term ‘and’ to separate the
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`categories of criteria, which connotes a conjunctive list. ... Therefore, the district court correctly
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`interpreted this phrase as requiring that the user select at least one value for each category.”).
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`CPC fails to allege that this requirement is met. Instead, as shown above in Section I.C.,
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`it points to either the face scanner for the Face ID accused products or fingerprint scanner for the
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`Touch ID accused products. D.I. 1, Ex. F at 7-8; Ex. G at 11-13; Ex. H at 11-12; Ex. I at 16-18.
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`CPC’s claim charts do not mention anything about the number or duration of biometric signals
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`(beyond stating that there are multiple images), nor does CPC allege any use of duration in any
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`accused product. The evidence CPC points to for the face scanner for Face ID is silent as to any
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`number, duration, or any time-based attribute. Similarly, the evidence CPC points to for the
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`fingerprint scanner for Touch ID is equally silent as to any number, duration, or any time-based
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`attribute. These critical claim limitations, ones at the heart of the ʼ208 and ʼ705 Patents, have
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`zero factual support or even allegations that they are met in CPC’s complaint. And the reason is
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`the same as for the ʼ039 Patent: this allegation is missing because this is not how the accused
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`products operate and CPC has no basis under Rule 11 on which to make such an allegation.
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`Information about the number and duration of Face ID and Touch ID entries is not used for
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`enrollment. Apple has published copiously on its Face ID and Touch ID functionality, and CPC
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`cites nothing from this body of publications that says anything about storing or using a duration
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`of a fingerprint or face image. As with the ’039 Patent, for purposes of this motion, the Court
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`must take as true CPC’s factual allegations. But because CPC’s complaint did not allege that
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`Case 6:21-cv-00165-ADA Document 23 Filed 05/06/21 Page 19 of 25
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`either the number or duration elements were met for either the ’208 or ’705 Patent, it did not
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`meet the required pleading standard.
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`Thus, because CPC does not allege that every limitation of an asserted claim is met, and
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`because amendment would be futile given how the accused products operate, CPC’s direct
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`infringement claims for the ʼ208 and ʼ705 Patents should be dismissed with prejudice.
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`B.
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`CPC’s Indirect Infringement Claims Should be Dismissed
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`“To adequately plead a claim of induced infringement, a plaintiff must demonstrate that
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`‘the defendant knew of the patent and that the induced acts constitute patent infringement.’”
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`Parity Networks, LLC v. Cisco Sys., Inc., No. 6:19-cv-00207-ADA, 2019 WL 3940952, at *2
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`(W.D. Tex. July 26, 2019) (quoting Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920, 1926
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`(2015)). More precisely, “[t]o state a claim for induced infringement, ‘a complaint must plead
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`facts plausibly showing that the accused infringer specifically intended [another party] to
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`infringe [the patent] and knew that the [other party]’s acts constituted infringement.’” Inhale,
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`Inc. v. Gravitron, LLC, No. 1:18-cv-00762-LY, 2018 WL 7324886, at *3 (W.D. Tex. Dec. 10,
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`2018) (quoting Lifetime Indus., Inc. v. Trim-Lok, Inc., 869 F.3d 1372, 1376–77 (Fed. Cir. 2017)
`
`(internal quotations omitted)).
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`1.
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`CPC’s Indirect Infringement Claims Fail Because Its Direct
`Infringement Claims Fail
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`CPC’s indirect infringement allegations fail because it has not alleged facts showing
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`direct infringemen