Case 6:21-cv-00916-ADA-DTG Document 98 Filed 09/12/22 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`RFCYBER CORP.,
`Plaintiff,
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`v.
`APPLE INC.,
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`Defendant.
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`6:21-CV-00916-ADA
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is Defendant Apple Inc.’s Renewed Motion to Dismiss Plaintiff RFCyber
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`Corp.’s Indirect and Willful Infringement Claims related to each of the asserted patents pursuant
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`to
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`Federal
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`Rule
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`of
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`Civil
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`Procedure
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`12(b)(6).
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`ECF
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`No.
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`31
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`(the
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`Motion”). Apple filed the Motion on January 31, 2022. Id. RFCyber responded on February 21,
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`2022, ECF No. 36, to which Apple replied on February 28, 2022. ECF No. 39. After careful
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`consideration of the Motion, the Parties’ briefs, and the applicable law, the Court is of the opinion
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`that Apple’s Motion should be GRANTED-IN-PART and DENIED-IN-PART.
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`I. LEGAL STANDARDS
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`Rule 12(b)(6) requires that a complaint contain sufficient factual matter, if accepted as true,
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`to “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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`(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A motion to dismiss under Rule
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`12(b)(6) for failure to state a claim upon which relief can be granted is “a purely procedural
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`question not pertaining to patent law,” and so the law of the Fifth Circuit controls. McZeal v. Sprint
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`Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007). To meet this factual plausibility standard, the
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`plaintiff must plead “factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged,” based on “more than a sheer possibility that a
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`defendant has acted unlawfully.” Id. “Threadbare recitals of the elements of a cause of action,
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`supported by mere conclusory statements, do not suffice.” Id. However, in resolving a motion to
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`dismiss for failure to state a claim, the question is “not whether [the plaintiff] will ultimately
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`prevail, . . . but whether [the] complaint was sufficient to cross the federal court’s threshold.”
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`Skinner v. Switzer, 562 U.S. 521, 530 (2011). “The court’s task is to determine whether the plaintiff
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`has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of
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`success.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)
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`(citing Iqbal, 556 U.S. at 678).
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`To allege indirect infringement, the plaintiff must plead specific facts sufficient to show
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`that the accused infringer had actual knowledge of the patents-in-suit, or was willfully blind to the
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`existence of the patents-in-suit. Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766, 769
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`(2011) (“[I]nduced infringement under § 271(b) requires knowledge that the induced acts
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`constitute patent infringement” or at least “willful blindness” to the likelihood of infringement.);
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`Commil USA, LLC v. Cisco Sys., Inc., 575 U.S. 632, 639 (2015) (“Like induced infringement,
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`contributory infringement requires knowledge of the patent in suit and knowledge of patent
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`infringement.”). A showing of willful blindness requires that “(1) the 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, 563 U.S. at 769.
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`Similarly, to allege willful infringement, the plaintiff must plausibly allege the “subjective
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`willfulness of a patent infringer, intentional or knowing.” Halo Electronics, Inc. v. Pulse
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`Electronics, Inc., 136 S.Ct. 1923, 1933 (2016). This requires a plaintiff to allege facts plausibly
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`showing that the accused infringer: “(1) knew of the patent-in-suit; (2) after acquiring that
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`Case 6:21-cv-00916-ADA-DTG Document 98 Filed 09/12/22 Page 3 of 5
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`knowledge, it infringed the patent; and (3) in doing so, it knew, or should have known, that its
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`conduct amounted to infringement of the patent.” Parity Networks, LLC v. Cisco Sys., Inc., No.
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`6:19-CV-00207-ADA, 2019 WL 3940952, at *3 (W.D. Tex. July 26, 2019).
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`II. ANALYSIS
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`A. RFCyber Has Not Sufficiently Pleaded Pre-Suit Willful Infringement
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`To state a claim for willful infringement, a plaintiff must allege facts plausibly showing
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`that the accused infringer: “(1) knew of the patent-in-suit; (2) after acquiring that knowledge, it
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`infringed the patent; and (3) in doing so, it knew, or should have known, that its conduct amounted
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`to infringement of the patent.” Id. Apple contends that RFCyber has not sufficiently alleged pre-
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`suit knowledge for the ’046 and ’724 patents. ECF No. 31. Additionally, Apple asserts that for all
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`asserted patents, RFCyber has not sufficiently alleged pre-suit knowledge of any allegedly
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`infringing acts. Id.
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`As for Apple’s knowledge of the ’046 and ’724 patents, the Amended Complaint recites
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`that LogicPatents, a broker, contacted Apple regarding RFCyber’s applications that eventually
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`issued as the ’046 and ’724 patents. ECF No. 18 ¶ 16. Apple asserts that notice of a pending patent
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`application is not sufficient to provide notice of a not-yet-issued patent. ECF No. 31 at 7. RFCyber
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`counters that because Apple was already aware of the ’046 and ’724 applications, it is highly
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`plausible that Apple would monitor the respective applications and become aware of those patents
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`when they issued. ECF No. 36 at 7. RFCyber’s Amended Complaint does not plead sufficient facts
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`that would support an allegation of pre-suit knowledge of the ’046 and ’724 patents.
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`Additionally, RFCyber alleges that Apple had pre-suit knowledge of all other asserted
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`patents because two of the asserted patents were cited during prosecution of certain Apple patents.
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`ECF No. 36 at 9; see also ECF No. 18 ¶¶ 21–22. RFCyber’s Amended Complaint does not plead
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`sufficient facts that would support an allegation of pre-suit knowledge of the patents.
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`B. RFCyber Has Not Sufficiently Pleaded Pre-Suit Indirect Infringement
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`Like a willful infringement claim, indirect infringement claims require a showing that the
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`accused infringer knew of its infringement. See Commil, 575 U.S. at 639 (“Like induced
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`infringement, contributory infringement requires knowledge of the patent in suit and knowledge
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`of patent infringement.”). RFCyber’s pre-suit indirect infringement claims therefore fail for the
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`same reasons its pre-suit willful infringement claims fail.
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`C. RFCyber Has Sufficiently Pleaded Post-Suit Indirect and Willful Infringement
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`Apple also argues that RFCyber insufficiently pleads post-filing/post-suit indirect and
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`willful infringement. ECF No. 31 at 9. This Court disagrees.1 See USC IP P’ship, L.P. v. Facebook,
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`Inc., No. 6:20-CV-00555-ADA, 2021 WL 3134260, at *2 (W.D. Tex. July 23, 2021). Serving a
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`complaint will, in most circumstances, notify the defendant of the asserted patent and the accused
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`1 This Court is not alone in holding that post-filing conduct can support a willfulness claim. See,
`e.g., BillJCo, LLC v. Cisco Sys. Inc., No. 2:21-CV-00181-JRG, 2021 WL 6618529 (E.D. Tex. Nov.
`30, 2021); Longhorn Vaccines & Diagnostics, LLC v. Spectrum Sols. LLC, No.
`220CV00827DBBJCB, 2021 WL 4324508, at *14 (D. Utah Sept. 23, 2021); Ravgen, Inc. v. Ariosa
`Diagnostics, Inc., No. CV 20-1646-RGA-JLH, 2021 WL 3526178, at *4 (D. Del. Aug. 11, 2021);
`Team Worldwide Corp. v. Acad., Ltd., No. 219CV00092JRGRSP, 2021 WL 1897620, at *6 (E.D.
`Tex. May 3, 2021), order clarified, 2021 WL 1854302 (E.D. Tex. May 10, 2021), R&R adopted,
`2021 WL 1985688 (E.D. Tex. May 18, 2021); KIPB LLC v. Samsung Elecs. Co., No.
`219CV00056JRGRSP, 2020 WL 1500062, at *5 (E.D. Tex. Mar. 9, 2020), R&R adopted, No.
`2:19-CV-56-JRG-RSP, 2020 WL 1495725 (E.D. Tex. Mar. 27, 2020); AMG Prods., Inc. v. Dirt
`Cheap, LLC, No. 6:18-CV-00267-JDK, 2019 U.S. Dist. LEXIS 63370, at *12 (E.D. Tex. Mar. 12,
`2019); Preferential Networks IP, LLC v. AT&T Mobility, LLC, No. 2:16-cv-01374-JRG-RSP, 2017
`U.S. Dist. LEXIS 140979, at *10 (E.D. Tex. July 15, 2017), R&R adopted, No. 2:16-cv-01374-
`JRG-RSP, 2017 U.S. Dist. LEXIS 140516 (E.D. Tex. Aug. 31, 2017); T-Rex Prop. AB v. Regal
`Ent. Group, No. 16-927, 2017 WL 4229372 (E.D. Tex. Aug 31. 2017); Blitzsafe Tex., LLC v.
`Volkswagen Grp. of Am., Inc., 2016 U.S. Dist. LEXIS 124144, at *25 (E.D. Tex. Aug. 19, 2016);
`Clouding IP, LLC v. Amazon.com, Inc., No. CA 12-641-LPS, 2013 WL 2293452, at *4 (D. Del.
`May 24, 2013).
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`conduct. So long as the complaint also adequately alleges that the defendant is continuing its
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`purportedly infringing conduct, it will sufficiently plead a post-filing/post-suit willful infringement
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`claim. RFCyber’s Amended Complaint complies with that standard. ECF No. 18 ¶¶ 23–24.
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`Additionally, RFCyber’s Amended Complaint sufficiently alleges that Apple intended for others
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`to infringe by making, using, offering to sell, selling, or importing into the United States the
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`infringing products with the knowledge that such activities infringed. Id., ¶¶ 40–41, 59–60, 76–
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`77, 94–95, 116–17, 136–37. Because RFCyber alleges that Apple has knowledge of the asserted
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`patent and of the alleged infringement at least at the commencement of this action, the Court finds
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`that RFCyber has sufficiently alleged its post-suit indirect and willful infringement claims.
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`III. CONCLUSION
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`Because RFCyber’s Amended Complaint does not plead sufficient facts that would support
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`an allegation of pre-suit knowledge of the patents, the Court GRANTS-IN-PART and DENIES-
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`IN-PART Apple’s Motion to Dismiss. The Court GRANTS Apple’s Motion to Dismiss as to
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`RFCyber’s pre-suit indirect and willful infringement claims without prejudice. In accordance with
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`the Court’s usual practice, the Court permits RFCyber to amend its Complaint within ninety (90)
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`days after the start of fact discovery to include pre-suit indirect and willful infringement claims,
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`if it is able to elicit sufficient facts to support such allegations under Federal Rule of Civil
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`Procedure 11. The Court DENIES Apple’s Motion as to RFCyber’s post-suit indirect and
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`willful infringement claims, having found them sufficiently pleaded.
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`SIGNED this 12th day of September, 2022.
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