Case 6:21-cv-00916-ADA Document 140 Filed 02/28/23 Page 1 of 21
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`RFCYBER CORP.,
`
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`Defendant.
`
`Civil Action No. 6:21-cv-00916-ADA
`
`JURY TRIAL DEMANDED
`
`
`
`APPLE’S OPPOSITION TO PLAINTIFF RFCYBER’S
`MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
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`PUBLIC VERSION
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`

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`Case 6:21-cv-00916-ADA Document 140 Filed 02/28/23 Page 2 of 21
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`TABLE OF CONTENTS
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`Page
`
`I.
`
`II.
`
`INTRODUCTION ...............................................................................................................1
`
`BACKGROUND .................................................................................................................2
`
`III.
`
`LEGAL STANDARDS .......................................................................................................4
`
`A.
`
`B.
`
`C.
`
`Good Cause Is Required For Untimely Amendment of Pleadings. .........................4
`
`Courts Have Discretion To Deny A Futile Motion To Amend. ..............................4
`
`Pre-Suit Indirect And Willful Infringement Require Actual Knowledge Of
`The Patents And Of Alleged Infringement. .............................................................5
`
`IV.
`
`RFCYBER CANNOT ESTABLISH GOOD CAUSE TO AMEND ITS
`COMPLAINT. .....................................................................................................................6
`
`A.
`
`B.
`
`C.
`
`D.
`
`RFCyber Has No Plausible Explanation For Its Failure To Timely Move
`For Leave To Amend. ..............................................................................................6
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`RFCyber’s Proposed Amendment Is Not Important Because It Is Futile. ...............7
`
`1.
`
`2.
`
`3.
`
`The Emails Between Dr. Zheng And Apple Do Not Support
`Claims Of Pre-Suit Indirect Or Willful Infringement. .................................8
`
`Mr. Lasker’s Deposition Testimony Cannot Support Claims Of
`Pre-Suit Indirect Or Willful Infringement. ................................................10
`
`RFCyber’s Willful Blindness Allegations Also Are Futile. ......................11
`
`Apple Will Be Unfairly Prejudiced By RFCyber’s Futile Attempt To
`Reinject Its Dismissed Claims Of Pre-Suit Indirect And Willful
`Infringement. ..........................................................................................................14
`
`The Availability-Of-A-Continuance Factor Also Favors Denying
`RFCyber’s Motion To Amend At This Late Stage Of The Case. ..........................14
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`V.
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`CONCLUSION ..................................................................................................................15
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`Case 6:21-cv-00916-ADA Document 140 Filed 02/28/23 Page 3 of 21
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Affinity Labs of Tex., LLC v. Toyota Motor N. Am.,
`No. W:13-cv-365, 2014 WL 2892285 (W.D. Tex. May 12, 2014) ...........................................5
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...................................................................................................................4
`
`Atlas Glob. Techs., LLC v. Sercomm Corp.,
`No. 6-21-CV-00818-ADA, 2022 WL 16557650 (W.D. Tex. Oct. 31, 2022)......................6, 12
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................4
`
`BillJCo, LLC v. Apple Inc.,
`583 F. Supp. 3d 769 (W.D. Tex. 2022)......................................................................................9
`
`DSU Med. Corp. v. JMS Co.,
`471 F.3d 1293 (Fed. Cir. 2006)..................................................................................................5
`
`Fahim v. Marriott Hotel Servs., Inc.,
`551 F.3d 344 (5th Cir. 2008) ...............................................................................................4, 14
`
`Filgueira v. U.S. Bank Nat. Ass’n,
`734 F.3d 420 (5th Cir. 2013) .................................................................................................7, 8
`
`Flypsi, Inc. v. Google LLC,
`No. 6:22-CV-0031-ADA, 2022 WL 3593053 (W.D. Tex. Aug. 22, 2022) .............................12
`
`Fujitsu Ltd. v. Netgear Inc.,
`620 F.3d 1321 (Fed. Cir. 2010)..................................................................................................5
`
`Glob.-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754 (2011) .....................................................................................................5, 6, 8, 11
`
`Halo Elecs., Inc. v. Pulse Elecs., Inc.,
`579 U.S. 93 (2016) .....................................................................................................................5
`
`Kirsch Rsch. & Dev., LLC v. Tarco Specialty Prods., Inc.,
`No. 6:20-cv-00318-ADA, 2021 WL 4555802 (W.D. Tex. Oct. 4, 2021) ..................................5
`
`Meetrix IP, LLC v. Cisco Sys., Inc.,
`No. 1-18-CV-309-LY, 2018 WL 8261315 (W.D. Tex. Nov. 30, 2018) ....................................6
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`Case 6:21-cv-00916-ADA Document 140 Filed 02/28/23 Page 4 of 21
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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) ....................5, 8, 10
`
`SiOnyx, LLC v. Hamamatsu Photonics K.K.,
`330 F. Supp. 3d 574 (D. Mass. 2018) ........................................................................................5
`
`Stripling v. Jordan Prod. Co., LLC,
`234 F.3d 863 (5th Cir. 2000) .................................................................................................4, 7
`
`Sw. Bell Tel. Co. v. City of El Paso,
`346 F.3d 541 (5th Cir. 2003) .....................................................................................................4
`
`Teradyne, Inc. v. Astronics Test Sys., Inc.,
`No. 20-cv-2713, 2020 WL 8173024 (C.D. Cal. Nov. 6, 2020) .................................................9
`
`USC IP P’ship, L.P. v. Facebook, Inc.,
`No. 6:20-CV-00555-ADA, 2021 WL 3134260 (W.D. Tex. July 23, 2021) ........................6, 13
`
`VLSI Tech., LLC v. Intel Corp.,
`No. 6:19-CV-000254-ADA, 2019 WL 11025759 (W.D. Tex. Aug. 6, 2019) .....................6, 13
`
`Court Rules
`
`Fed. R. Civ. Proc. 12(b)(6) ........................................................................................................4, 14
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`Fed. R. Civ. Proc. 15(a) ...................................................................................................................4
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`Fed. R. Civ. Proc. 16(b) ...............................................................................................................1, 4
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`Apple respectfully opposes the motion by Plaintiff RFCyber for leave to file a second
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`amended complaint (ECF No. 133), which should be denied with prejudice and without further
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`leave to amend.
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`I.
`
`INTRODUCTION
`
`On September 12, 2022, the Court granted Apple’s renewed motion to dismiss
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`RFCyber’s claims of pre-suit indirect and willful infringement, correctly finding that “RFCyber’s
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`Amended Complaint does not plead sufficient facts that would support an allegation of pre-suit
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`knowledge of the patents.” ECF No. 98 at 5. In that Order, the Court set a specific deadline of
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`“ninety (90) days after the start of fact discovery” for RFCyber to try to reallege its dismissed
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`claims. Id. That deadline came and went nearly five months ago. Now, with less than one month
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`left in an already-extended fact discovery period, RFCyber is trying to reinject its dismissed
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`claims back into this case based on the same facts and circumstances the Court already found did
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`not withstand pleading scrutiny. See ECF No. 98. This is the opposite of good cause for
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`amending a complaint under Federal Rule 16(b).
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`Despite its effort to repackage the evidence by citing recent discovery responses and
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`deposition testimony, RFCyber presents no new facts or circumstances that differ from those
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`analyzed by the Court in its September 2022 Order dismissing RFCyber’s claims of pre-suit
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`indirect and willful infringement. See id. The Court therefore should deny with prejudice
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`RFCyber’s futile motion for the same reasons the Court granted Apple’s renewed motion to
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`dismiss last September. And RFCyber provides no reason for missing the amendment deadline
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`by nearly five months, especially where Apple produced all of the documents RFCyber relies on
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`more than five months ago. RFCyber’s allegations were insufficient in September 2022 when the
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`Court granted Apple’s renewed motion to dismiss, and they are insufficient now. RFCyber
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`therefore has no good cause for this late amendment to its pleading.
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`II.
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`BACKGROUND
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`On January 31, 2022, Apple filed its renewed motion to dismiss RFCyber’s indirect and
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`willful infringement claims alleged in RFCyber’s Amended Complaint. See ECF No. 31.
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`RFCyber’s primary basis for pleading that Apple had knowledge of the asserted patents was a
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`four-page “Acquisition Opportunity” brochure emailed to Apple by a third-party broker called
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`LogicPatents. See ECF No. 31 at 2. The “Acquisition Opportunity” brochure provided a brief
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`summary of RFCyber’s patent portfolio and listed the asserted ’218, ’855, ’787, and ’009 patents
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`and the applications that later issued as the ’046 and ’724 patents as part of that portfolio. Id.
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`Neither that brochure nor the related emails alleged infringement by Apple, nor did they identify
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`any allegedly infringing Apple product or act. Id.
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`On September 12, 2022, the Court granted-in-part Apple’s renewed motion to dismiss,
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`dismissing RFCyber’s claims of pre-suit indirect and willful infringement claims and giving
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`RFCyber until September 20, 2022 (90 days after the start of fact discovery) to reallege those
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`claims. See ECF No. 98 at 5. RFCyber filed this motion to amend on February 6, 2023, nearly
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`five months after the Court’s deadline.
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`Much of RFCyber’s purportedly “new” evidentiary support is based on emails between
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`Apple and Dr. Joe Zheng, the LogicPatents representative who contacted Apple and who
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`RFCyber has identified in its initial disclosures as “the patent prosecuting attorney of record for
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`the Asserted Patents” and one “who is knowledgeable concerning the prosecution of those
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`patents . . .
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`
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`” Apple Ex. 1, RFCyber’s Corrected Second Supplemental Initial Disclosures.
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`These emails are the very same emails set forth in Apple’s renewed motion to dismiss; namely,
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`Dr. Zheng’s email attaching the “Acquisition Opportunity” brochure—which does not allege
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`infringement or identify any allegedly infringing product—and Apple’s response passing on the
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`opportunity to purchase RFCyber’s portfolio. See ECF No. 31 at 2 (“Importantly, the
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`‘Acquisition Opportunity’ brochure and related emails do not allege infringement by Apple and
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`do not identify any allegedly infringing Apple product or act.”).
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`Apple witness Jeff Lasker’s deposition testimony confirms what was set forth in Apple’s
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`renewed motion to dismiss—namely, that Apple was aware of four of the five remaining asserted
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`patents and that some Apple patents cite two of RFCyber’s asserted patents and one published
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`application. See ECF No. 31 at 2-3. During Mr. Lasker deposition, Apple made proper privilege
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`objections that have no bearing on Apple’s knowledge of the asserted patents or any alleged
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`willful blindness. The questions RFCyber asked that drew proper privilege objections did not
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`relate to the asserted patents, to RFCyber, or to Apple’s knowledge of any purported
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`infringement of RFCyber’s patents, including the following:
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`
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`
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`“And does Apple look at patents in a specific area before launching its products?”
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`“Did Apple look at patents in this specific area before launching its Apple Pay
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`product?”
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`
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`“Was Apple aware that there are patents in this area before launching its Apple Pay
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`products?”
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`
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`“Generally does Apple conduct an investigation of patents in a specific area before
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`launching its products?”
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`RFCyber Ex. F, Lasker Depo. at 129:7-9; 129:20-22; 130:1-3; 130:10-12. None of these
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`questions relate to the question at issue in this motion—Apple’s purported pre-suit knowledge of
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`the asserted patents. At most, they relate to Apple’s general practice of patent clearance before
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`launching products.
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`III.
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`LEGAL STANDARDS
`A.
`Good Cause Is Required For Untimely Amendment of Pleadings.
`
`Under Fifth Circuit law, “a party ‘must show good cause for not meeting the deadline
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`before the more liberal standard of Rule 15(a) will apply to the district court’s denial of leave to
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`amend.’” Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008) (quoting Sw.
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`Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003)) (“Federal Rule of Civil
`
`Procedure 16(b) governs amendment of pleadings after a scheduling order’s deadline to amend
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`has expired . . .”). Four factors are relevant to establishing good cause for such an amendment:
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`“(1) the explanation for the failure to timely move for leave to amend; (2) the importance of the
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`amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a
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`continuance to cure such prejudice’” Id. Here, RFCyber’s proposed amendment meets none of
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`those four factors.
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`B.
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`Courts Have Discretion To Deny A Futile Motion To Amend.
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`“It is within the district court’s discretion to deny a motion to amend if it is futile . . . .
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`[The Fifth Circuit has] interpreted it to mean that the amended complaint would fail to state a
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`claim upon which relief could be granted . . . [and] will apply ‘the same standard of legal
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`sufficiency as applies under Rule 12(b)(6).’” Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863,
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`872-73 (5th Cir. 2000). “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must
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`contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
`
`face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court
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`to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted).
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`Where the plaintiff has “not nudged [its] claims across the line from conceivable to plausible,
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`[its] complaint must be dismissed.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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`Pre-Suit Indirect And Willful Infringement Require Actual Knowledge Of
`C.
`The Patents And Of Alleged Infringement.
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`To state a claim for induced infringement, RFCyber must plausibly allege Apple (1) had
`
`knowledge of the patent; (2) had “knowledge that the induced acts constitute patent
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`infringement” (Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011)), and (3)
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`“possessed specific intent to encourage another’s infringement” (DSU Med. Corp. v. JMS Co.,
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`471 F.3d 1293, 1306 (Fed. Cir. 2006)). To state a claim for contributory infringement, RFCyber
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`must plausibly allege facts demonstrating: “(1) that there is direct infringement, (2) that the
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`accused infringer had knowledge of the patent, (3) that the component has no substantial
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`noninfringing uses, and (4) that the component is a material part of the invention.’” Affinity Labs
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`of Tex., LLC v. Toyota Motor N. Am., No. W:13-cv-365, 2014 WL 2892285, at *8 (W.D. Tex.
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`May 12, 2014) (quoting Fujitsu Ltd. v. Netgear Inc., 620 F.3d 1321, 1326 (Fed. Cir. 2010)).
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`To state a claim for willful infringement, RFCyber must plausibly allege that Apple: “(1)
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`knew of the patent-in-suit; (2) after acquiring that knowledge, it infringed the patent; and (3) in
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`doing so, it knew, or should have known, that its conduct amounted to infringement of the
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`patent.” Parity Networks, LLC v. Cisco Sys., Inc., No. 6:19-CV-00207-ADA, 2019 WL 3940952,
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`at *3 (W.D. Tex. July 26, 2019). RFCyber must also allege facts demonstrating “subjective
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`willfulness of a patent infringer, intentional or knowing.” Halo Elecs., Inc. v. Pulse Elecs., Inc.,
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`579 U.S. 93, 105 (2016).
`
`“Multiple district courts, post-Halo, have held that . . . general knowledge of a patent
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`portfolio without more . . . is [insufficient] even to plausibly allege knowledge of a particular
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`asserted patent.” Kirsch Rsch. & Dev., LLC v. Tarco Specialty Prods., Inc., No. 6:20-cv-00318-
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`ADA, 2021 WL 4555802, at *2 (W.D. Tex. Oct. 4, 2021) (quoting SiOnyx, LLC v. Hamamatsu
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`Photonics K.K., 330 F. Supp. 3d 574, 608 (D. Mass. 2018)). Moreover, prosecution activity such
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`as the disclosure of an asserted patent’s application or the disclosure of the asserted patent by the
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`Examiner is “too attenuated to plausibly infer that [Defendant] had pre-suit knowledge of the
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`Asserted Patents.” Meetrix IP, LLC v. Cisco Sys., Inc., No. 1-18-CV-309-LY, 2018 WL
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`8261315, at *2 (W.D. Tex. Nov. 30, 2018).
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`A showing of willful blindness requires that “(1) [t]he defendant must subjectively
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`believe that there is a high probability that a fact exists and (2) the defendant must take deliberate
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`actions to avoid learning of that fact.” Glob.-Tech Appliances, 563 U.S. at 769. “Merely pleading
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`that the defendant was aware of a patent portfolio without more . . . is not enough [to support a
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`willful blindness claim].” Atlas Glob. Techs., LLC v. Sercomm Corp., No. 6-21-CV-00818-ADA,
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`2022 WL 16557650, at *5 (W.D. Tex. Oct. 31, 2022); see also USC IP P’ship, L.P. v. Facebook,
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`Inc., No. 6:20-CV-00555-ADA, 2021 WL 3134260, at *1-2 (W.D. Tex. July 23, 2021) (granting
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`motion to dismiss where the plaintiff alleged the defendant had “a policy or practice of not
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`reviewing the patents of others . . . and thus ha[d] been willfully blind of [its] patent rights”);
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`VLSI Tech., LLC v. Intel Corp., No. 6:19-CV-000254-ADA, 2019 WL 11025759, at *1 (W.D.
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`Tex. Aug. 6, 2019) (“The Court finds that Intel’s policy that forbids its employees from reading
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`patents held by outside companies or individuals is insufficient to meet the test of willful
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`blindness.”).
`
`RFCYBER CANNOT ESTABLISH GOOD CAUSE TO AMEND ITS
`IV.
`COMPLAINT.
`A.
`RFCyber Has No Plausible Explanation For Its Failure To Timely Move For
`Leave To Amend.
`
`The first good cause factor, the explanation for the failure to timely move for leave to
`
`amend, strongly favors denying this motion. RFCyber has no explanation for its nearly five-
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`month delay after the deadline set by the Court in its September 12, 2022 Order. Apple timely
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`produced the emails between Dr. Zheng (RFCyber’s patent agent) and Apple on September 28,
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`2022—nearly five months ago and just two weeks after the Court granted Apple’s renewed
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`motion to dismiss. Apple Ex. 2, Sept. 28, 2022 Letter. Dr. Zheng is RFCyber’s patent agent
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`responsible for its patent prosecution efforts and is represented by RFCyber’s counsel in this
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`lawsuit, so RFCyber has no excuse for not collecting and producing all of Dr. Zheng’s relevant
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`emails on the day fact discovery opened. See Apple Ex. 3, Zheng Depo. at 10:6-12; 8:5-15.
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`Indeed, Apple is the only party that produced Dr. Zheng’s emails with Apple—RFCyber
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`apparently did not even bother to collect them. Furthermore, Mr. Lasker’s deposition testimony
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`merely confirmed facts that RFCyber already knew—namely, that there was an exchange of
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`emails between Mr. Zheng and Apple about acquiring RFCyber’s portfolio that led nowhere. See
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`RFCyber Ex. F, Lasker Depo. at 126:20-127:5, 143:4-144:10; see also ECF No. 31 at 2, 7.
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`In ruling on Apple’s renewed motion to dismiss, the Court analyzed these email
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`exchanges and rightly concluded they did not support a claim of pre-suit indirect or willful
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`infringement. See ECF No. 98 at 3-4. And as demonstrated below, Mr. Lasker’s testimony about
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`Apple’s
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` has nothing to do with the
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`asserted patents and therefore has nothing to do with this motion to amend. RFCyber’s failure to
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`explain why it delayed nearly five months after the Court’s deadline to move to amend negates
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`any showing of good cause.
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`B.
`
`RFCyber’s Proposed Amendment Is Not Important Because It Is Futile.
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`Under the second good cause factor, the importance of the amendment, “it is within the
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`district court’s discretion to deny a motion to amend if it is futile.” Stripling, 234 F.3d at 872-73.
`
`See also Filgueira v. U.S. Bank Nat. Ass’n, 734 F.3d 420, 423 (5th Cir. 2013) (affirming district
`
`court’s “good cause” analysis where the court found that the second factor, the importance of
`
`plaintiff’s amendment, weighed heavily in favor of the defendants because “any amendment by
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`[plaintiff] would be futile”). Just like RFCyber’s prior attempt to plead pre-suit indirect and
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`willful infringement, the amendment RFCyber proposes now does not clear the legal sufficiency
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`standard required by the Fifth Circuit. See id. As the Court recognized in its September 2022
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`Order, indirect and willful infringement require factual allegations demonstrating pre-suit
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`knowledge of the asserted patents and pre-suit knowledge of the acts that allegedly constitute
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`patent infringement. See ECF No. 98 at 3-4; see also Glob.-Tech Appliances, 563 U.S. at 765-66
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`(indirect infringement requires “knowledge of the existence of the patent that is [allegedly]
`
`infringed” and “knowledge that the induced acts constitute patent infringement”); Parity
`
`Networks, 2019 WL 3940952, at *3 (willful infringement requires knowledge of the asserted
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`patent by alleged infringer and knowledge “that its conduct amounted to infringement of the
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`patent”).
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`In the time between the Court’s September 2022 Order and today, RFCyber has
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`uncovered no new information relevant to its pre-suit indirect and willful infringement claims.
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`The only difference between September 2022 and today is that RFCyber can now cite to two
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`emails and deposition testimony it obtained during the intervening months. But those two emails
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`and the deposition testimony merely corroborate the same facts briefed in Apple’s renewed
`
`motion to dismiss and considered by the Court in ruling on that motion. See ECF No. 98 at 3-4.
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`RFCyber has not pled any additional facts, so the Court should deny with prejudice this motion
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`for the same reasons it granted Apple’s renewed motion to dismiss. See id.
`
`The Emails Between Dr. Zheng And Apple Do Not Support Claims Of
`1.
`Pre-Suit Indirect Or Willful Infringement.
`
`As the Court correctly ruled in September 2022, the emails between Dr. Zheng and Apple
`
`are legally insufficient to support claims of pre-suit indirect or willful infringement. See id.
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`RFCyber has not sufficiently alleged that Apple had pre-suit knowledge of the ’724 patent
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`(RFCyber has since dropped the ’046 patent) because, as Apple successfully argued, “notice of a
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`Case 6:21-cv-00916-ADA Document 140 Filed 02/28/23 Page 13 of 21
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`pending patent application is not sufficient to provide notice of a not-yet-issued patent.” Id. at 3.
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`And as to the other asserted patents, RFCyber has not sufficiently alleged Apple had pre-suit
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`knowledge of any allegedly infringing acts because “RFCyber has not sufficiently alleged pre-
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`suit knowledge of any allegedly infringing acts.” Id. Neither the “Acquisition Opportunity”
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`brochure nor the emails between Dr. Zheng and Apple mention infringement or identify any
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`allegedly infringing Apple products. The closest RFCyber comes to alleging an actual
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`identification of an infringing act are vague allusions in Dr. Zheng’s August 10, 2016 email that
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`
`
`. See RFCyber Ex. A. But those statements fall well short of identifying
`
`any products that allegedly infringe any specific patent in RFCyber’s portfolio. See BillJCo, LLC
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`v. Apple Inc., 583 F. Supp. 3d 769, 777 (W.D. Tex. 2022) (“The Complaint does not allege that
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`BillJCo’s June 2019 Letter notified Apple that it infringed the Asserted Patents or identified
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`Apple products accused of infringement here . . . .”); see also Teradyne, Inc. v. Astronics Test
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`Sys., Inc., No. 20-cv-2713, 2020 WL 8173024, at *3-5 (C.D. Cal. Nov. 6, 2020) (finding
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`insufficient a letter that did not identify any specific product that allegedly infringed the asserted
`
`patent). Indeed, Dr. Zheng’s reference to
`
` is so broad in the
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`context of Apple’s product offerings that it cannot confer knowledge on Apple of a specific
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`RFCyber patent and a specific allegedly infringing Apple product. As before, the Zheng emails
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`are legally insufficient to sustain claims of pre-suit indirect and willful infringement. See ECF
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`No. 98 at 3-4; BillJCo, 583 F. Supp. 3d at 777.
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`The Zheng emails cannot support claims of pre-suit indirect or willful infringement for
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`another basic reason—RFCyber has improperly tried to disavow Dr. Zheng’s communications
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`with third parties, including Apple, because he purportedly was not authorized to conduct
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`Case 6:21-cv-00916-ADA Document 140 Filed 02/28/23 Page 14 of 21
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`negotiations on RFCyber’s behalf. See Apple Ex. 4, Jan. 20, 2023 Hr’g Tr. at 10:19-11:11
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`).
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`,
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`
`
`
`
`
`
`
`
`
`
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`131:18;
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` See Apple Ex. 5, Pan Depo. at 133:4-10, 130:19-
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`. Regardless which
`
`is true, RFCyber cannot on the one hand rely on Dr. Zheng’s outreach to Apple to try to allege
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`claims of pre-suit indirect and willful infringement, while at the same time falsely denying that
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`Dr. Zheng had any authority to speak on RFCyber’s behalf.
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`Mr. Lasker’s Deposition Testimony Cannot Support Claims Of Pre-
`2.
`Suit Indirect Or Willful Infringement.
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`Similarly, Mr. Lasker’s deposition testimony about the Zheng emails does not and cannot
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`support RFCyber’s effort to reinject pre-suit indirect and willful infringement into this case. At
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`the outset, RFCyber misrepresents Mr. Lasker’s testimony about Apple’s knowledge of the
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`asserted patents. Mr. Lasker was clear that Apple had knowledge of the RFCyber portfolio,
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`including four of the five asserted patents (RFCyber Ex. F, Lasker Depo. at 126:3-24, 128:2-
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`129:1), but he never testified that “Apple reviewed the Asserted Patents” as RFCyber claims in
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`its motion. ECF No. 133 at 9-10. RFCyber is essentially trying to equate Apple’s generic
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`knowledge of the asserted patents with Apple’s patent intake review procedure to manufacture a
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`willfulness claim. But RFCyber’s speculative position about Apple’s patent intake review
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`procedures does not trump the settled law that RFCyber must allege facts showing that Apple
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`“knew, or should have known, that its conduct amounted to infringement of the patent.” Parity
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`Case 6:21-cv-00916-ADA Document 140 Filed 02/28/23 Page 15 of 21
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`Networks, 2019 WL 3940952, at *3. Mr. Lasker’s deposition testimony gets RFCyber nowhere
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`close to that showing.
`
`RFCyber also baselessly claims that Apple’s proper privilege objections during Mr.
`
`Lasker’s deposition “demonstrate that Apple analyzed patents related to Apple Pay” which
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`“weighs toward a finding that Apple knew of, or was willfully blind to, its infringement.” ECF
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`No. 133 at 5. However, none of RFCyber’s questions to which Apple properly objected had
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`anything to do with (1) the asserted patents, (2) RFCyber, or (3) any actual or implied knowledge
`
`of Apple’s alleged infringement of RFCyber’s patents. See RFCyber Ex. F, Lasker Depo. at
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`129:7-9 (“And does Apple look at patents in a specific area before launching its products?”);
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`129:20-22 (“Did Apple look at patents in this specific area before launching its Apple Pay
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`product?”); 130:1-3 (“Was Apple aware that there are patents in this area before launching its
`
`Apple Pay products?”); 130:10-12 (“Generally does Apple conduct an investigation of patents in
`
`a specific area before launching its products?”). Simply put, none of RFCyber’s improper efforts
`
`to invade the attorney-client privilege relate to any knowledge, review, or analysis of the asserted
`
`patents—at best, they relate to the Apple’s general practice of patent clearances or analysis prior
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`to the launching of its products.
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`3.
`
`RFCyber’s Willful Blindness Allegations Also Are Futile.
`
`For similar reasons, RFCyber’s willful blindness allegations also are futile because
`
`RFCyber relies entirely on attorney argument, not facts, to assert that Apple deliberately avoided
`
`learning of its alleged infringement. However, the Supreme Court has held that a showing of
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`willful blindness requires that “(1) [t]he defendant must subjectively believe that there is a high
`
`probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning
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`of that fact.” Glob.-Tech Appliances, 563 U.S. at 769.
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`Case 6:21-cv-00916-ADA Document 140 Filed 02/28/23 Page 16 of 21
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`According to RFCyber’s interpretation of the willful blindness doctrine, a defendant
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`would have to affirmatively establish that it does not infringe a patent anytime it learns about a
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`patent. Tellingly, RFCyber fails to cite to a single case for this proposition, because all authority
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`is to the contrary: “Merely pleading that the defendant was aware of a patent portfolio without
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`more . . . is not enough [to support a willful blindness claim].” Atlas Glob. Techs., 2022 WL
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`16557650, at *5; see also Flypsi, Inc. v. Google LLC, No. 6:22-CV-0031-ADA, 2022 WL
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`3593053, at *4 (W.D. Tex. Aug. 22, 2022) (dismissing willful blindness claim in part because
`
`“[n]o facts [were] alleged that the discussions specifically centered on the Patents-In-Suit”).
`
`Here, Dr. Zheng generally informed Apple about the RFCyber patent portfolio, but there
`
`was no discussion about any specific patents or any Apple products, and no suggestion that
`
`Apple products infringed those patents, so there was nothing to be “willfully blind” about. And
`
`RFCyber’s claim that Apple affirmatively elected not to receive a “claim chart” from Dr. Zheng
`
`to avoid learning about its alleged infringement is nothing more than attorney argument. For
`
`starters, RFCyber’s proposed amended pleading does not identify the alleged “claim chart.” And
`
`Dr. Zheng’s email made Apple’s receipt of that claim chart optional, stating
`
`
`
` See RFCyber Ex. A (emphasis added). Dr. Zheng
`
`could have easily attached a claim chart to his email, but did not. Even after Apple passed on the
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`opportunity to purchase the portfolio (see RFCyber Ex. C), Dr. Zheng could have sent the
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`purported claim chart to Apple at that time, but again did not. Dr. Zheng’s email also does not
`
`say what patent, product, or even general technology the purported “claim chart” relates to. See
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`RFCyber Ex. A. The brochure attached to Mr. Zheng’s email contains a laundry list of
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`companies, including
`
`—followed immediately by the words:
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`Case 6:21-cv-00916-ADA Document 140 Filed 02/28/23 Page 17 of 21
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`RFCyber Ex. B. Thus, the “claim chart” referenced in Dr. Zheng’s email could just as easily
`
`have referred to products from any one of these other companies, or another company, or nothing
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`at all. Thus, this purported “claim chart,” and the fact that Apple never received it, cannot
`
`support a claim of willful blindness.
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`Finally, RFCyber’s argument that “Mr. Lasker’s testimony suggests that Apple
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`deliberately structure its ‘patent acquisition team’ to avoid finding that it infringed the Asserted
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`Patents” (ECF No. 133 at 10) is both baseless and speculative. First, as demonstrated above,
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`neither RFCyber nor Dr. Zheng accused Apple of infringement nor suggested that any Apple
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`products allegedly infringed the asserted patents. Second, RFCyber cites no legal authority to
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`suggest that the structure of Apple’s patent acquisition team could possibly form the basis of a
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`claim for willful blindness. All of the relevant authority, including from this Court, is to the
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`contrary. See USC IP P’ship, 2021 WL 3134260, at *1-2 (gr