Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 1 of 16
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`Case No. 6:21-CV-00984-ADA
`
`PATENT CASE
`
`JURY TRIAL DEMANDED
`
`JAWBONE INNOVATIONS, LLC,
`Plaintiff(s),
`
`v.
`APPLE INC.,
`
`Defendant(s).
`
`
`
`
`
`
`
`DEFENDANT’S RENEWED MOTION TO DISMISS FIRST AMENDED COMPLAINT
`PURSUANT TO FED. R. CIV. P. 12(b)(6) FOR FAILURE TO STATE A CLAIM
`
`
`
`
`

`

`Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 2 of 16
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`BACKGROUND ................................................................................................................ 3
`
`LEGAL STANDARDS ...................................................................................................... 5
`
`A.
`
`B.
`
`Failure to State a Claim Under Rule 12(b)(6) ............................................................ 5
`
`Induced Infringement ................................................................................................. 6
`
`C. Willful Infringement .................................................................................................. 7
`
`III.
`
`ARGUMENT ...................................................................................................................... 7
`
`A.
`
`Jawbone Innovations’s Complaint Fails to State a Claim for Induced Infringement 7
`Jawbone Innovations’s Complaint Fails to State a Claim for Willful Infringement 9
`CONCLUSION ................................................................................................................. 11
`
`B.
`
`IV.
`
`i
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`

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`Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 3 of 16
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Affinity Labs of Tex., LLC v. Toyota Motor N. Am. Inc.,
`No. W:13-cv-365, 2014 WL 2892285 (W.D. Tex. May 12, 2014) (Smith, J.) .....................6, 9
`
`Angus v. Mayorkas,
`No. 1:20-CV-00242-LY-SH, 2021 WL 4434932 (W.D. Tex. Sep. 24, 2021)
`(Hightower, J.) ...........................................................................................................................6
`
`Angus v. Mayorkas,
`No. 1:20-CV-00242-LY-SH-64 (W.D. Tex. Nov. 4, 2021) (Yeakel, J) ....................................6
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .........................................................................................................5, 6, 11
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...............................................................................................................5, 6
`
`Bowlby v. City of Aberdeen, Miss.,
`681 F.3d 215 (5th Cir. 2012) .....................................................................................................6
`
`Callwave Commc’ns LLC v. AT&T Mobility LLC,
`No. 12-1701, 2014 WL 5363741 (D. Del. Jan. 28, 2014) .......................................................10
`
`Cevallos v. Silva,
`541 F. App’x. 390 (5th Cir. 2013) .............................................................................................6
`
`Cordance Corp. v. Amazon.com, Inc.,
`639 F. Supp. 2d 406 (D. Del. 2009) .........................................................................................10
`
`Core Optical Techs., LLC v. Nokia Corp.,
`No. SA-CV-1902-190-JAK-RAOX, 2020 WL 6126285 (C.D. Cal. Oct. 8,
`2020) ..........................................................................................................................................8
`
`DSU Med. Corp. v. JMS Co., Ltd.,
`471 F.3d 1293 (Fed. Cir. 2006)..................................................................................................6
`
`Intell. Ventures I LLC v. Symantec Corp.,
`234 F. Supp. 3d 601 (D. Del. 2017), aff’d, 725 F. App’x 976 (Fed. Cir. 2018) ......................10
`
`Kirsch Rsch. & Dev., LLC v. IKO Indus., Inc.,
`No. 6:20-CV-00317, 2021 WL 4555608 (W.D. Tex. Oct. 4, 2021) (Albright,
`J.) ........................................................................................................................................6, 7, 9
`
`ii
`
`

`

`Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 4 of 16
`
`Monolithic Power Sys., Inc. v. Meraki Integrated Cir. (Shenzhen) Tech., Ltd.,
`No. 6:20-CV-008876, 2021 WL 3931910 (W.D. Tex. Sept. 1, 2021) (Albright,
`J.) ..........................................................................................................................................7, 11
`
`Nobelbiz, Inc. v. Insidesales.com, Inc.,
`No. 6:13-cv-360, 2014 WL 12378804 (E.D. Tex. Oct. 14, 2014) .............................................6
`
`Princeton Digital Image Corp. v. Ubisoft Ent. SA,
`No. CV 13-335-LPS-CJB, 2017 WL 6337188 (D. Del. Dec. 12, 2017) ...................................8
`
`SRI Int’l, Inc. v. Cisco Sys., Inc.,
`14 F.4th 1323 (Fed. Cir. 2021) ..................................................................................................7
`
`Touchscreen Gestures, LLC v. Res.in Motion Ltd.,
`No. 6:12CV263, 2013 WL 8505349 (E.D. Tex. Mar. 27, 2013) ...............................................9
`
`Vasudevan Software, Inc. v. TIBCO Software Inc.,
`No. C 11-06638 RS, 2012 WL 1831543 (N.D. Cal. May 18, 2012) .........................................8
`
`WBIP, LLC v. Kohler Co.,
`829 F.3d 1317 (Fed. Cir. 2016)..................................................................................................9
`
`Other Authorities
`
`Fed. R. Civ P. 12 ..............................................................................................................................5
`
`
`
`iii
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`

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`Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 5 of 16
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`Plaintiff Jawbone Innovations, LLC’s (“Jawbone Innovations”) allegations of indirect
`
`and willful infringement in the original complaint for patent infringement were missing
`
`necessary elements. Apple Inc. (“Apple”) therefore filed a motion dismiss with prejudice
`
`Jawbone Innovations’s indirect and willful infringement claims of the asserted patents.1 In the
`
`motion to dismiss, Apple argued that Jawbone Innovations failed to allege facts showing Apple
`
`had pre-suit knowledge of the asserted patents. The bare suggestion, based on an online report,
`
`that third-party Envision IP may have contacted Apple about acquiring Jawbone, Inc.’s patents
`
`after the operating company’s liquidation amounts to nothing more than wild speculation that is
`
`insufficient to allege Apple had the knowledge necessary for pre-suit indirect or willful
`
`infringement.
`
`In an attempt to bolster its allegations that Apple had knowledge of the asserted patents,
`
`Jawbone Innovations filed a First Amended Complaint for Patent Infringement (“FAC”) with
`
`more allegations regarding Apple’s purported knowledge of the asserted patents.2 The attempt
`
`fails. The FAC still does not adequately plead indirect or willful infringement.
`
`In the FAC, Jawbone Innovations alleges that Apple listed the ’091 patent in an
`
`information disclosure to the United States Patent Office. (FAC, ¶23.) That single allegation
`
`yields a string of speculations. According to Jawbone Innovations, because Apple is a
`
`“sophisticated technology company,” Apple then investigated and discovered the ’072 patent,
`
`which is a continuation of the ’091 patent, and that alleged investigation then led to the alleged
`
`discovery of all other asserted patents, which have overlapping inventors. (FAC, ¶¶24-27.)
`
`
`1 The patents asserted in the original complaint are U.S. Patent Nos. 8,019,091; 7,246,058;
`8,280,072; 8,321,213; 8,326,611; 10,779,080; 11,122,357; 8,467,543.
`
` In the FAC, Jawbone Innovations added to the suit U.S. Patent No. 8,503,691.
`2
`
` 2
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`
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`

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`Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 6 of 16
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`Jawbone Innovations also speculates that “as a sophisticated technology company,” Apple
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`monitored related patent filings and analyzed each of the asserted patents to determine how its
`
`products infringed at that time. (FAC, ¶29.) Other courts have rejected similar allegations as
`
`insufficient and entirely speculative. Because Jawbone Innovations’s new allegations fail to lead
`
`to a plausible inference that Apple knew of the asserted patents, much less that Apple had the
`
`specific intent to induce infringement of those patents’ claims, the FAC still does not sufficiently
`
`plead indirect and willful infringement, and those claims should be dismissed.
`
`Jawbone Innovations’s willful infringement allegations suffer from another shortcoming:
`
`they fail to allege facts that support an inference that Apple knew or should have known that its
`
`acts infringed the patents. Jawbone Innovations’s mere recitation of the element that Apple knew
`
`or took deliberate steps to avoid learning that its acts infringe cannot suffice because this
`
`recitation amounts to a legal conclusion insufficient to establish willful infringement as
`
`plausible. Consequently, Jawbone Innovations’s claims of indirect and willful infringement
`
`should be dismissed.
`
`I.
`
`BACKGROUND
`
`Jawbone Innovations filed its original complaint against Apple on September 23, 2021,
`
`and the FAC on December 23, 2021. Jawbone Innovations alleges that each of Apple’s iPhone,
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`iPad, AirPods Pro, and HomePod products infringes one or more claims of eight asserted patents
`
`that Jawbone Innovations acquired from Jawbone Inc.—an entity that appears to have no
`
`relationship to Jawbone Innovations—after Jawbone Inc. was liquidated in 2017. (FAC, ¶22.)
`
`The asserted patents are generally directed to noise suppression and voice detection technology.
`
`(Id., ¶¶ 32-46.) Jawbone Innovations alleges Apple willfully infringed the patents, and it also
`
`alleges Apple indirectly infringed the patents by “inducing others, including Apple’s customers
`
`and end-users of the Accused Products, to directly infringe.” (See, e.g., id., ¶ 58.) Jawbone
`
`3
`
`

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`Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 7 of 16
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`Innovations’s indirect infringement allegations are limited to induced infringement, as it does not
`
`allege indirect infringement in any other form.
`
`Jawbone Innovations alleges that “(f)ollowing Jawbone, Inc.’s liquidation a host of
`
`technology companies including Apple, Samsung, Google, LG, and Fitbit [were] identified as
`
`potential buyers of Jawbone’s US Patents” by a patent research firm, Envision IP. (Id., ¶22.) The
`
`online article to which Jawbone Innovations cites says nothing about whether the potential
`
`buyers were ever actually contacted. (Id.) Based on the specious report from an online article,
`
`Jawbone Innovations alleges, on information and belief, that “Envision IP (and other parties)
`
`contacted Apple regarding the value of the Patents-in-Suit.” (Id.) Jawbone Innovations does not
`
`allege when or how Envision IP made this alleged contact, or if and what other parties contacted
`
`Apple, or when or how they did so.
`
`After Apple filed a motion to dismiss exposing the inadequacy of the pleadings regarding
`
`Apple’s alleged knowledge of the patents, Jawbone Innovations filed the FAC. The FAC
`
`contains one allegation related to Apple’s purported knowledge of any of the patents-in-suit.
`
`Specifically, Jawbone Innovations alleges that Apple listed the ’091 patent in an information
`
`disclosure to the United States Patent & Trademark Office. (FAC, ¶23.) That single allegation
`
`then yields a string of speculations by Jawbone Innovations. Because Apple is a “sophisticated
`
`technology company,” Jawbones Innovations assumes that Apple must have investigated and
`
`discovered the ’072 patent, which is a continuation of the ’091 patent, and that through that
`
`investigation, Apple must have also discovered all other asserted patents, which have
`
`overlapping inventors. (FAC, ¶¶24-27.) Jawbone Innovations also speculates that “as a
`
`sophisticated technology company,” Apple must have monitored related patent filings and
`
`analyzed each of the asserted patents to determine how its products will infringed at that time.
`
`4
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`

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`Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 8 of 16
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`(FAC, ¶29.) In the alternative, Jawbone Innovations contends that to the extent Apple did not
`
`investigate infringement, it has been willfully blind, though it offers no allegations sufficient to
`
`establish that Apple had anything about which to be willfully blind. (FAC, ¶58.) Jawbone
`
`Innovations’s new allegations do not set forth any facts sufficient to plausibly demonstrate that
`
`Apple knew of the asserted patents, much less that Apple had the specific intent to induce
`
`infringement. Jawbone Innovations’s mere recitation of the element that Apple knew or took
`
`deliberate steps to avoid learning that those acts infringe cannot suffice to plausibly plead
`
`infringement because this recitation amounts to a legal conclusion insufficient to establish willful
`
`infringement as plausible.
`
`Jawbone Innovations’s indirect and willful infringement claims3 fail to meet the pleading
`
`requirements and should be dismissed.
`
`II.
`
`LEGAL STANDARDS
`A.
`
`Failure to State a Claim Under Rule 12(b)(6)
`
`A complaint must “give … fair notice of what the … claim is and the grounds upon
`
`which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 1964 (2007). Dismissal for failure
`
`to state a claim under Rule 12(b)(6) is proper if the complaint fails to allege “enough facts to
`
`state a claim to relief that is plausible on its face” and “nudge[] [the] claims across the line from
`
`conceivable to plausible.” Twombly, 550 U.S. at 570; Ashcroft v. Iqbal, 556 U.S. 662, 678,
`
`(2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
`
`court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
`
`Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556, 127 S. Ct. at 1955).
`
`
`3 See, e.g., ¶¶ 47-63 (pleading allegations of induced and willful infringement as to the ’091
`patent).
`
`5
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`

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`Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 9 of 16
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`While all well-pleaded factual allegations should be accepted as true and construed in the
`
`light most favorable to the nonmovant, Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219
`
`(5th Cir. 2012), they must still be sufficient to “raise a right to relief above the speculative
`
`level.” Cevallos v. Silva, 541 F. App’x. 390, 392 (5th Cir. 2013) (citing Twombly, 550 U.S. at
`
`555) (emphasis added). A court is “not bound to accept as true a legal conclusion couched as a
`
`factual allegation” and “[t]hreadbare recitals of the elements of a cause of action, supported by
`
`mere conclusory statements, will not suffice.” Iqbal, 556 U.S. at 678-79; Twombly, 550 U.S. at
`
`555. A claim is properly dismissed if its allegations only allow the court to infer “the mere
`
`possibility of misconduct.” Cevallos, 541 F. App’x. at 392 (citing Iqbal, 556 U.S. at 679).
`
`Further, leave to amend to cure pleading defects should be denied if the claim is futile, legally
`
`insufficient on its face, or frivolous. Angus v. Mayorkas, No. 1:20-CV-00242-LY-SH, 2021 WL
`
`4434932 (W.D. Tex. Sep. 24, 2021) (Hightower, J.), R. & R. adopted, Angus v. Mayorkas, No.
`
`1:20-CV-00242-LY-SH-64 (W.D. Tex. Nov. 4, 2021) (Yeakel, J).
`
`B.
`
`Induced Infringement
`
`To plead induced infringement, a plaintiff must allege facts showing that the accused
`
`infringer: (1) had actual knowledge of the patent or was willfully blind to the existence of the
`
`patent; (2) knowingly induced a third-party to infringe the patent; and (3) had specific intent to
`
`induce the patent infringement. DSU Med. Corp. v. JMS Co., Ltd., 471 F.3d 1293, 1305-06 (Fed.
`
`Cir. 2006); Kirsch Rsch. & Dev., LLC v. IKO Indus., Inc., No. 6:20-CV-00317, 2021 WL
`
`4555608, at *1 (W.D. Tex. Oct. 4, 2021) (Albright, J.). Allegations that merely repeat the
`
`language of § 271(b) without adding factual allegations, or that are merely conclusory and
`
`speculative, are properly dismissed. See e.g., Nobelbiz, Inc. v. Insidesales.com, Inc., No. 6:13-cv-
`
`360, 2014 WL 12378804, at *4 (E.D. Tex. Oct. 14, 2014); Affinity Labs of Tex., LLC v. Toyota
`
`6
`
`

`

`Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 10 of 16
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`Motor N. Am. Inc., No. W:13-cv-365, 2014 WL 2892285, at *4-8 (W.D. Tex. May 12, 2014)
`
`(Smith, J.).
`
`C. Willful Infringement
`
`Willful infringement is “deliberate or intentional infringement.” SRI Int'l, Inc. v. Cisco
`
`Sys., Inc., 14 F.4th 1323, 1330 (Fed. Cir. 2021). To state a claim for willful infringement, a
`
`plaintiff must plead facts plausibly showing that the accused infringer “(1) knew of the patent-in-
`
`suit; (2) after acquiring that knowledge, it infringed the patent; and (3) in doing so, it knew, or
`
`should have known, that its conduct amounted to infringement of the patent.” Monolithic Power
`
`Sys., Inc. v. Meraki Integrated Cir. (Shenzhen) Tech., Ltd., No. 6:20-CV-008876, 2021 WL
`
`3931910, at *5 (W.D. Tex. Sept. 1, 2021) (Albright, J.) (quoting Valinge Innovation AB v.
`
`Halstead New England Corp., No. CV 16-1082, 2018 WL 2411218, at *13 (D. Del. May 29,
`
`2018)).
`
`
`III. ARGUMENT
`A.
`
`Jawbone Innovations’s Complaint Fails to State a Claim for Induced
`Infringement
`
`Jawbone Innovations’s indirect infringement allegations, which are limited to induced
`
`infringement, fail to rise to the level necessary to state a claim. This Court has reasoned that a
`
`plaintiff relying on a purported contact with the accused infringer as a basis for alleging the
`
`accused infringer knew about the asserted patent must allege concrete facts about the “nature,
`
`content and depth” of the contact to elevate the allegations to the required level of plausibility.
`
`Kirsch, 2021 WL 4555608 at *2. Here, Jawbone Innovations does not rely on any purported
`
`contact because Jawbone Innovations does not allege that Envision IP actually contacted Apple.
`
`Instead, it merely speculates that Envision IP may have contacted Apple regarding the value of
`
`the patents-in-suit because Apple was among “a host of technology companies” that were
`
`7
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`

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`Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 11 of 16
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`allegedly “identified as potential buyers of Jawbone’s US Patents.” (FAC, ¶22.) Jawbone
`
`Innovations offers no facts about the “nature, content and depth” of the purported contact
`
`because Jawbone Innovations has no basis to allege the contact actually occurred. Jawbone
`
`Innovations’s allegation regarding Envision IP is insufficient to establish that Apple plausibly
`
`knew of the asserted patents and intended to induce others to infringe them.
`
`Jawbone Innovations’s new allegations regarding Apple’s purported knowledge of the
`
`asserted patents fare no better. Jawbone Innovations alleges that the ’091 patent was cited during
`
`the prosecution of a patent assigned to Apple. Such an allegation is insufficient to plead pre-suit
`
`knowledge of the patent. See Core Optical Techs., LLC v. Nokia Corp., No. SA-CV-1902-190-
`
`JAK-RAOX, 2020 WL 6126285, at *7 (C.D. Cal. Oct. 8, 2020) (dismissing claims for indirect
`
`infringement where plaintiff alleged defendant had knowledge of the asserted patent because
`
`defendant owned six patents against which the asserted patent was cited as prior art during
`
`prosecution); Princeton Digital Image Corp. v. Ubisoft Ent. SA, No. CV 13-335-LPS-CJB, 2017
`
`WL 6337188, at *1 (D. Del. Dec. 12, 2017) (“At the motion to dismiss stage, allegations that a
`
`defendant cited or referenced a patent during prosecution are generally not sufficient, alone, to
`
`support an inference of pre-suit knowledge of that patent.”). Likewise, citation to the ’091 patent
`
`in a patent prosecution proceeding does not support a plausible inference that Apple had
`
`knowledge of other related patents. See Vasudevan Software, Inc. v. TIBCO Software Inc., No. C
`
`11-06638 RS, 2012 WL 1831543, at *3 (N.D. Cal. May 18, 2012) (“The requisite knowledge of
`
`the patent allegedly infringed simply cannot be inferred from mere knowledge of other patents,
`
`even if somewhat similar.”). In short, Jawbone Innovations cannot plausibly plead that Apple
`
`had knowledge of the asserted patents just because Apple is a “sophisticated technology
`
`company” that cited one of the nine asserted patents in a single patent prosecution proceeding.
`
`8
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`

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`Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 12 of 16
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`And yet, that is the only allegation of fact added by Jawbone Innovations to its FAC intended to
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`overcome the deficiencies identified in Apple’s original motion to dismiss.
`
`The mere recitation of the legal element of willful blindness, unsupported by factual
`
`allegations, cannot cure Jawbone Innovations’s deficient allegations on knowledge. Further,
`
`Jawbone Innovations alleges no facts supporting even an inference that Apple had the specific
`
`intent to induce others to infringe the asserted claims. For example, Jawbone Innovations alleges
`
`that Apple’s “instruction manuals, websites, promotional materials, advertisements, and other
`
`information demonstrate to others, including customers, prospective customers, and distributors,
`
`how to use the Accused Products in an infringing manner.” (FAC, ¶59.) But this allegation falls
`
`far short of the pleading requirements because it does not even suggest whether Apple had the
`
`specific intent to induce infringement. See Affinity Labs, 2014 WL 2892285, at *7 (finding
`
`plaintiff’s “generalized allegations that Toyota induced others to infringe the Asserted Patents
`
`through its marketing and sales tactics [were] likewise insufficient”). Because Jawbone
`
`Innovations has failed to meet the pleading requirements for knowledge and specific intent,
`
`Jawbone Innovations’s induced infringement claims should be dismissed.
`
`B.
`
`Jawbone Innovations’s Complaint Fails to State a Claim for Willful
`Infringement
`
`Jawbone Innovations’s failure to adequately plead facts to support an inference that
`
`Apple knew about the asserted patents is also fatal to its willful infringement claims. Kirsch,
`
`2021 WL 4555608, at *2 (granting motion to dismiss inducement and willful infringement
`
`claims where plaintiff did not plead facts to support knowledge allegation); see also WBIP, LLC
`
`v. Kohler Co., 829 F.3d 1317, 1341 (Fed. Cir. 2016) (prerequisite for enhanced damages is
`
`knowledge of the patent); M & C Innovations, 2018 WL 4620713, at *2-4 (pre-suit willfulness
`
`claim requires knowledge of the patent); Touchscreen Gestures, LLC v. Res.in Motion Ltd., No.
`
`9
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`

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`Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 13 of 16
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`6:12CV263, 2013 WL 8505349, at *2-3 (E.D. Tex. Mar. 27, 2013) (willfulness claim in original
`
`complaint must be grounded exclusively in defendant’s pre-suit conduct and requires knowledge
`
`of the patent).
`
`The allegation that Apple cited the ’091 patent to the USPTO is insufficient to show
`
`Apple had knowledge of the ’091 patent to make out a claim for willful infringement. See Intell.
`
`Ventures I LLC v. Symantec Corp., 234 F. Supp. 3d 601, 611 (D. Del. 2017), aff'd, 725 F. App'x
`
`976 (Fed. Cir. 2018) (finding that evidence that defendant had cited asserted patent on face of
`
`two patents was insufficient to conclude defendant had knowledge of the patent for supporting a
`
`finding of willfulness); Callwave Commc’ns LLC v. AT&T Mobility LLC, No. 12-1701, 2014
`
`WL 5363741, at *2 (D. Del. Jan. 28, 2014) (granting motion to strike willfulness claim where
`
`“Google had knowledge of one of the patents as evidenced by citation to the patent in multiple
`
`Information Disclosure Statements relating to Google patents” because “[t]his solitary piece of
`
`information is insufficient to support an allegation of willfulness”); Cordance Corp. v.
`
`Amazon.com, Inc., 639 F. Supp. 2d 406, 412-17 (D. Del. 2009) (granting summary judgment of
`
`no willfulness where patentee alleged notice of patent based on a citation during prosecution of
`
`one of defendant’s patents). Jawbone Innovations’s speculations that Apple obtained knowledge
`
`of the other asserted patents based on its purported knowledge of the’091 patent fails for the
`
`same reason.
`
`Jawbone Innovations’s willful infringement allegations fail for another reason. The FAC
`
`does not sufficiently allege that Apple deliberately and intentionally infringed the patents. To be
`
`sure, Jawbone Innovations parrots the language of the elements for willfulness: “Defendant has
`
`willfully infringed, and continues to willfully infringe, the ’072 Patent by intentionally and
`
`deliberately carrying out acts of direct and indirect infringement, while knowing, or taking
`
`10
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`

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`Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 14 of 16
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`deliberate steps to avoid learning, that those acts infringe.” (FAC, ¶92.) Merely reciting claim
`
`elements, however, does not satisfy the pleading requirements. See Iqbal, 556 U.S. at 678
`
`(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
`
`statements, do not suffice.”).
`
`Also, Jawbone Innovations’s allegations of knowledge of the patent cannot do double
`
`time for knowledge of infringement. But that is exactly what Jawbone Innovations attempts in
`
`alleging willful infringement: “For example, upon information and belief, Defendant has known
`
`of Jawbone’s patents, including the ’072 patent, at least since May 2015 but has not ceased
`
`infringement.” (FAC, ¶92.) A plaintiff cannot stretch allegations regarding knowledge of a patent
`
`as a basis to suggest an accused infringer also knew that its alleged acts infringed that patent. See
`
`Monolithic Power Sys., Inc. v. Meraki Integrated Cir. (Shenzhen) Tech., Ltd., No. 6:20-CV-
`
`008876, 2021 WL 3931910, at *5 (W.D. Tex. Sept. 1, 2021) (Albright, J.) (“MPS contends that
`
`Meraki's founder's knowledge of the asserted patents leads to a plausible inference that they
`
`knew their conduct amounted to infringement. However, these are distinct elements, and without
`
`more factual allegations supporting knowledge of infringement, the pleading standard is not
`
`met.”). As this Court previously found in Monolithic Power, knowledge of an asserted patent and
`
`knowledge of infringement of that asserted patent are distinct elements, and Jawbone
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`Innovations’s allegations fail to establish either element. Its claims of willful infringement
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`should therefore be dismissed.
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`IV. CONCLUSION
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`Apple respectfully requests that the claims for induced infringement and willful
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`infringement be dismissed with prejudice.
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`Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 15 of 16
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`Dated: January 20, 2022
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`FISH & RICHARDSON P.C.
`
`By: /s/ Ricardo J. Bonilla
`
`J. Stephen Ravel
`Texas State Bar No. 16584975
`KELLY HART & HALLMAN LLP
`303 Colorado, Suite 2000
`Austin, Texas 78701
`Tel: (512) 495-6429
`Email: steve.ravel@kellyhart.com
`
`Ricardo J. Bonilla
`Texas Bar No. 24082704
`rbonilla@fr.com
`FISH & RICHARDSON P.C.
`1717 Main Street, Suite 5000
`Dallas, TX 75201
`(214) 747-5070 – Telephone
`(214) 747-2091 – Facsimile
`
`Benjamin C. Elacqua
`Texas Bar No. 24055443
`elacqua@fr.com
`FISH & RICHARDSON P.C.
`1221 McKinney Street, Suite 2800
`Houston, Texas 77010
`(713) 654-5300 – Telephone
`(713) 652-0109 – Facsimile
`
`Betty H. Chen
`Texas Bar No. 24056720
`bchen@fr.com
`FISH & RICHARDSON P.C.
`500 Arguello St., Suite 500
`Redwood City, CA 94063
`(650) 839-5067 – Telephone
`(650) 839-5071 - Facsimile
`
`
`COUNSEL FOR DEFENDANT
`APPLE INC.
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`Case 6:21-cv-00984-ADA Document 24 Filed 01/20/22 Page 16 of 16
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
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`document has been served on January 20, 2022, to all counsel of record who are deemed to have
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`consented to electronic service via the Court’s CM/ECF system.
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`
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`
`
`/s/ Ricardo J. Bonilla
`Ricardo J. Bonilla
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`13
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