Case 6:22-cv-00466-ADA-DTG Document 37 Filed 08/01/22 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Plaintiff,
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`ADVANCED SILICON
`TECHNOLOGIES LLC,
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`v.
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`NXP SEMICONDUCTORS N.V.,
`NXP B.V., and
`NXP USA, INC.,
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`
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`Defendants.
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`Case No. 1:22-CV-0466-ADA-DTG
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`DEFENDANT’S MOTION TO DISMISS UNDER RULE 12(b)(6)
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`Case 6:22-cv-00466-ADA-DTG Document 37 Filed 08/01/22 Page 2 of 13
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`TABLE OF CONTENTS
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`I. 
`Introduction ............................................................................................................................. 1 
`II.  AST’s Claims Seeking Pre-Suit Damages and Injunctive Relief Should be Dismissed ........ 1 
`A. 
`Rule 12(b)(6) Standard ..................................................................................................... 1 
`B. 
`AST’s Pre-Suit Damages Claim Should be Dismissed .................................................... 2 
`1. 
`Properly pleading marking statute compliance ............................................................ 4 
`2. 
`AST fails to plead pre-suit constructive notice under § 287 ........................................ 5 
`3. 
`AST’s allegations of pre-suit actual notice are insufficient. ........................................ 6 
`C. 
`AST’s Claim for Injunctive Relief Should be Dismissed ............................................... 8 
`III.  Conclusion ........................................................................................................................... 9 
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`Case 6:22-cv-00466-ADA-DTG Document 37 Filed 08/01/22 Page 3 of 13
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Cases
`Amsted Indus. Inc. v. Buckeye Steel Castings Co.,
`24 F.3d 178 (Fed. Cir. 1994)......................................................................................................4
`Anderson v. Wells Fargo Bank, N.A.,
`953 F.3d 311 (5th Cir. 2020) .....................................................................................................3
`Arctic Cat Inc. v. Bombardier Recreational Prods. Inc.,
`876 F.3d 1350 (Fed. Cir. 2017)..............................................................................................4, 5
`Arctic Cat Inc. v. Bombardier Recreational Prods. Inc.,
`950 F.3d 860 (Fed. Cir. 2020)............................................................................................4, 5, 6
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...................................................................................................................1
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................1
`Dunlap v. Schofield,
`152 U.S. 244 (1894) ...................................................................................................................5
`eBay Inc. v. MercExchange, L.L.C.,
`547 U.S. 388 (2006) ...................................................................................................................8
`Intellectual Ventures I LLC v. Toshiba Corp.,
`66 F. Supp. 3d 495 (D. Del. 2014). Notice ................................................................................6
`Iron Oak Techs., LLC v. Acer Am. Corp.,
`No. 6:17-cv-00143, 2017 WL 9477677 (W.D. Tex. Nov. 28, 2017) ........................................2
`K&K Jump Start/Chargers, Inc. v. Schumacher Elec. Corp.,
`52 Fed. App’x 135 (Fed. Cir. 2002) ...........................................................................................5
`Lans v. Digital Equip. Corp.,
`252 F.3d 1320 (Fed. Cir. 2001)..................................................................................................2
`Lubby Holdings LLC v. Chung,
`11 F.4th 1355 (Fed. Cir. 2021) ..................................................................................................6
`M & C Innovations, LLC v. Igloo Prods. Corp.,
`No. 4:17-CV-2372, 2018 WL 4620713 (S.D. Tex. July 31, 2018) ...........................................8
`Maxwell v. J. Baker, Inc.,
`86 F.3d 1098 (Fed. Cir. 1996)....................................................................................................5
`Norris v. Hearst Trust,
`500 F.3d 454 (5th Cir. 2007) .....................................................................................................3
`
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`Case 6:22-cv-00466-ADA-DTG Document 37 Filed 08/01/22 Page 4 of 13
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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) ................................2
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`Case 6:22-cv-00466-ADA-DTG Document 37 Filed 08/01/22 Page 5 of 13
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`I.
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`INTRODUCTION
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`Defendant NXP USA, Inc.1 (“Defendant” or “NXP”) moves to dismiss Plaintiff Advanced
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`Silicon Technologies LLC’s (“AST”) claims for pre-suit damages and injunctive relief pursuant
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`to Rule 12(b)(6). AST fails to plead or otherwise establish facts that plausibly support constructive
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`or actual pre-suit notice of alleged infringement necessary to support a claim for pre-suit damages
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`under 35 U.S.C. § 287. AST further fails to plead all elements—let alone facts that plausibly
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`support—irreparable harm and the additional elements required to sustain a claim for injunctive
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`relief.
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`II.
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`AST’S CLAIMS SEEKING PRE-SUIT DAMAGES AND INJUNCTIVE RELIEF
`SHOULD BE DISMISSED
`A.
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`Rule 12(b)(6) Standard
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`To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
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`accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
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`plausibility standard is not met unless the “plaintiff pleads factual content that allows the court to
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`draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Courts
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`“are not bound to accept as true a legal conclusion couched as a factual allegation.” Id. Thus,
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`“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
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`statements, do not suffice.” Id.
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`“When presented with a Rule 12(b)(6) motion, a court conducts a two-part analysis. First,
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`the court separates the factual and legal elements, accepting all of the complaint’s well-pleaded
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`facts as true, [while] ... disregard[ing] any legal conclusions. Second, the court determines whether
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`1 The parties have filed a Stipulation of Dismissal Without Prejudice of Defendants NXP
`Semiconductors N.V. and NXP B.V. Dkt. 34. Thus, the remaining defendant is NXP USA, Inc.
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`Case 6:22-cv-00466-ADA-DTG Document 37 Filed 08/01/22 Page 6 of 13
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`the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for
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`relief.” Parity Networks, LLC v. Cisco Sys., Inc., No. 6:19-cv-00207-ADA, 2019 WL 3940952, at
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`*1 (W.D. Tex. July 26, 2019) (internal citations and quotations omitted, alterations in original).
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`“Conclusory allegations, or legal conclusions masquerading as factual conclusions, will not suffice
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`to prevent a motion to dismiss.” Iron Oak Techs., LLC v. Acer Am. Corp., No. 6:17-cv-00143,
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`2017 WL 9477677, at *6 (W.D. Tex. Nov. 28, 2017) (report and recommendation).
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`Whether AST has sufficiently pleaded compliance with § 287 is appropriate to address on
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`a Rule 12(b)(6) motion. See, e.g., Lans v. Digital Equip. Corp., 252 F.3d 1320, 1328 (Fed. Cir.
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`2001) (affirming Rule 12(b)(6) dismissal where patentee did not sufficiently allege compliance
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`with § 287(a) and therefore “has not stated a claim on which relief may be granted”).
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`B.
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`AST’s Pre-Suit Damages Claim Should be Dismissed
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`AST’s Complaint includes admissions and prior assertions that others practice the Asserted
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`Patents2—including AST’s apparent licensees. AST’s Complaint, however, includes no factual
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`allegations that plausibly suggest constructive notice, i.e., that its licensees complied with the
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`marking requirements of 35 U.S.C. § 287. Furthermore, the Complaint lacks factual allegations
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`that plausibly support actual notice under 35 U.S.C. § 287. Thus, AST’s claim for pre-suit
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`damages is insufficiently pled.
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`Specifically, AST’s Complaint affirmatively states that the Asserted Patents “stem from
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`the research and design of innovative and proprietary technology developed by AST’s licensee,
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`Advanced Micro Devices, Inc. (‘AMD’).” Complaint, ¶ 2. Though AST acknowledges AMD’s
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`license to the Asserted Patents, the Complaint makes no statements regarding AMD’s (or AST’s)
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`2 AST asserts that the Defendant infringes claims of U.S. Patent Nos. 7,804,435 (“the ’435 patent”)
`and 8,933,945 (“the ’945 patent”) (collectively, “Asserted Patents”). See generally Dkt. 1
`(Complaint).
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`Case 6:22-cv-00466-ADA-DTG Document 37 Filed 08/01/22 Page 7 of 13
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`marking of any embodying product with the numbers of the Asserted Patents. Thus, AST’s
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`Complaint does not plausibly demonstrate an entitlement to pre-suit damages.
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`And AST’s failure to plead marking compliance does not stop with AMD. As a matter of
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`public record,3 AST previously asserted the ’945 patent in the following actions:
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` Advanced Silicon Techs., LLC v. Bayerische Motoren Werke AG, No. 1-15-cv-01178
`(D. Del.);
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` Advanced Silicon Techs., LLC v. Harman Int’l Indus., Inc., No. 1-15-cv-01173 (D.
`Del.);
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` Advanced Silicon Techs., LLC v. Honda Motor Co., Ltd., No. 1-15-cv-01179 (D. Del.);
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` Advanced Silicon Techs., LLC v. NVIDIA Corp., No. 1-15-cv-01177 (D. Del.);
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` Advanced Silicon Techs., LLC v. Renesas Elecs. Corp., No. 1-15-cv-01176 (D. Del.);
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` Advanced Silicon Techs., LLC v. Sigma Designs, Inc., No. 3-19-cv-01168 (N.D. Cal.);
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` Advanced Silicon Techs., LLC v. Texas Instruments Inc., No. 1-15-cv-01175 (D. Del.);
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` Advanced Silicon Techs., LLC v. Volkswagen AG, No. 1-15-cv-01181 (D. Del.); and
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` Computing or Graphics Systems, Components Thereof, and Vehicles Containing Same,
`Inv. No. 337-TA-984 (USITC) (“AST’s ITC Action”).
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`Additionally, in AST’s ITC Action, AST also asserted that AMD, Intel, and Samsung
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`practiced the ’945 patent, and ultimately AST moved to terminate its claims against the
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`respondents in this action based on settlement and/or license agreements with, at least, the
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`following respondents:
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` NVIDIA Corp. (Ex. 1);
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`3 The Court may take judicial notice of these filings and still consider this a motion to dismiss.
`Anderson v. Wells Fargo Bank, N.A., 953 F.3d 311, 314 (5th Cir. 2020) (courts may take judicial
`notice of public records in prior judicial proceedings); Norris v. Hearst Trust, 500 F.3d 454, 461
`n.9 (5th Cir. 2007) (“[I]t is clearly proper in deciding a 12(b)(6) motion to take judicial notice of
`matters of public record.”); Fed. R. Evid. 201(b)(2) (A “court may judicially notice a fact that is
`not subject to reasonable dispute because it: (2) can be accurately and readily determined from
`sources whose accuracy cannot reasonably be questioned.”).
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`Case 6:22-cv-00466-ADA-DTG Document 37 Filed 08/01/22 Page 8 of 13
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` Texas Instruments Inc. (Ex. 2);
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`
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`
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`the Volkswagen Respondents (Volkswagen AG, Volkswagen Group of America, Inc.,
`Volkswagen Group of America Chattanooga Operations, LLC, Audi AG, and Audi of
`America, LLC) (Ex. 3);
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`the Renesas Respondents (Renesas Electronics Corp. and Renesas Electronics
`America, Inc.) (Ex. 4); and
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` Renesas and unnamed third parties to the benefit of the Fujitsu Ten Respondents
`(Fujitsu Ten Ltd. and Fujitsu Ten Corp. of America) and the Honda Respondents
`(Honda Motor Co., Ltd., Honda North America, Inc., American Honda Motor Co., Inc.,
`Honda Engineering North America, Inc., Honda of America Mfg., Inc., Honda
`Manufacturing of Alabama, LLC, Honda Manufacturing of Indiana, LLC, and Honda
`R&D Americas, Inc.) (Exs. 5 and 6).
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`While AST has alleged in the past that these companies sell or import infringing products
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`in the United States, and AST has licensed these companies to practice at least the ’945 patent,
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`AST’s Complaint makes no factual statements regarding any licensee’s compliance with the
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`marking statute, which respectfully requires dismissal of AST’s insufficiently pled claim for pre-
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`suit damages.
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`1.
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`Properly pleading marking statute compliance
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`“Pursuant to 35 U.S.C. § 287(a), a patentee [or its licensee] who makes or sells a patented
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`article must mark his articles or notify infringers of his patent in order to recover damages.” Arctic
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`Cat Inc. v. Bombardier Recreational Prods. Inc., 876 F.3d 1350, 1365 (Fed. Cir. 2017) (“Arctic
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`Cat I”). “If a patentee who makes, sells, offers for sale, or imports his patented articles has not
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`‘given notice of his right’ by marking his articles pursuant to the marking statute, he is not entitled
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`to damages before the date of actual notice.” Id. at 1366 (citation omitted).
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`“Actual notice requires the affirmative communication of a specific charge of infringement
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`by a specific accused product or device.” Arctic Cat Inc. v. Bombardier Recreational Prods. Inc.,
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`950 F.3d 860, 864 (Fed. Cir. 2020) (“Arctic Cat II”) (quoting Amsted Indus. Inc. v. Buckeye Steel
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`Castings Co., 24 F.3d 178, 187 (Fed. Cir. 1994)). Section 287 “is not directed to the infringer and
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`does not contemplate mere knowledge of the infringer as sufficient to discharge the notice
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`requirements placed on the patentee.” Id. at 866. Indeed, even where pre-suit knowledge of a
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`patent and infringement is sufficient to support a finding of willfulness, such knowledge “does not
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`serve as actual notice as contemplated by § 287.” Id. “While willfulness turns on the knowledge
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`of an infringer, § 287 is directed to the conduct of the patentee. The marking statute imposes notice
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`obligations on the patentee, and only the patentee is capable of discharging those obligations.” Id.
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`The patentee bears the burden of pleading compliance with the marking statute. See
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`Dunlap v. Schofield, 152 U.S. 244, 248 (1894) (“[T]he duty of alleging and the burden of proving
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`either [marking or notice] is upon the plaintiff.”); Arctic Cat I, 876 F.3d at 1366 (“The patentee
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`bears the burden of pleading and proving he complied with § 287(a)’s marking requirement.”).
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`2.
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`AST fails to plead pre-suit constructive notice under § 287
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`A patentee’s licensees must also comply with the marking provisions of Section 287(a).
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`Arctic Cat II, 950 F.3d at 864.4 Accordingly, at the pleading stage the burden is on the patentee to
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`plead its and its licensees’ compliance with Section 287(a). Arctic Cat I, 876 F.3d at 1366–67.
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`AST fails to plead any, let alone substantially all, of its licensees under the Asserted Patents
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`complied with § 287, or that AST has undertaken reasonable steps to ensure such compliance.
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`AST does not even plead pro forma compliance by AMD or other licensees of public record
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`for either Asserted Patent, nor does AST plead its licensees have not made or sold unmarked
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`articles. Indeed, based on its prior filings, AST could not dispute that its licensees were authorized
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`and did manufacture licensed products. As such, AST has not plausibly pled that its licensees
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`4 The § 287 provisions “apply to ‘persons making or selling any patented article for or under [the
`patentees].’” Maxwell v. J. Baker, Inc., 86 F.3d 1098, 1111 (Fed. Cir. 1996) (quoting 35 U.S.C. §
`287(a)). “Thus, licensees ... and other authorized parties, such as [a licensee’s] manufacturers,
`must also comply.” Id.; see also K&K Jump Start/Chargers, Inc. v. Schumacher Elec. Corp., 52
`Fed. App’x 135, 141 (Fed. Cir. 2002).
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`complied with the marking statute—and therefore AST has failed to plead compliance with §
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`287(a). AST’s claims for pre-suit damages must be dismissed.
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`3.
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`AST’s allegations of pre-suit actual notice are insufficient.
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`Having remained silent on marking, AST must rely on actual notice to be entitled to pre-
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`suit damages. But AST’s allegations that it provided actual notice of alleged infringement to NXP
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`fall short. “[T]he actual notice requirement of § 287(a) is satisfied when the recipient is informed
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`of the identity of the patent and the activity that is believed to be an infringement, accompanied by
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`a proposal to abate the infringement, whether by license or otherwise.” Lubby Holdings LLC v.
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`Chung, 11 F.4th 1355, 1360 (Fed. Cir. 2021) (citation omitted). “It is irrelevant [under § 287] ...
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`whether the defendant knew of the patent or knew of his own infringement. The correct approach
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`to determining notice under [§] 287 must focus on the action of the patentee, not the knowledge
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`or understanding of the infringer.” Id. at 1360 (alterations in original and citation omitted). AST’s
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`Complaint identifies no pre-suit notice of a specific charge of infringement of the Asserted Patents
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`to NXP, let alone the required notice as to specific products. See Arctic Cat II, 950 F.3d at 864.
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`First, AST asserts that “NXP has known about the [Asserted Patents] at least as early as its
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`receipt of AST’s letter of May 3, 2022.” Complaint, ¶ 27 (’435 patent); id. at ¶ 36 (’945 patent).
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`Two days after purportedly mailing its letter—with no indication of actual receipt by Defendant—
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`AST filed the Complaint on May 5, 2022. Here, there can be no pre-suit actual notice of a specific
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`charge of infringement based on mailing a letter two days before filing the Complaint. AST does
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`not even allege the letter was received prior to filing the Complaint. When courts have addressed
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`similar timing in the context of pre-suit willful infringement, which also requires pre-suit notice,
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`district courts have dismissed willful infringement claims where pre-suit notice was purportedly
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`provided by letter sent one day before the complaint was filed. See, e.g., Intellectual Ventures I
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`LLC v. Toshiba Corp., 66 F. Supp. 3d 495, 500 (D. Del. 2014). Notice via a letter mailed two days
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`before filing is insufficient to plausibly support the requisite actual notice for a claim for pre-suit
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`damages for either Asserted Patent, and, of course, such letter could not plausibly support actual
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`notice prior to its receipt.
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`Second, regarding the ’945 patent only, AST conclusorily states:
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`NXP has known about the ’945 patent at least as early as April 25, 2016, when AST
`issued a subpoena to non-party NXP seeking discovery of matters including
`NXP’s potential infringement of the ’945 patent in Certain Computing or
`Graphics Systems, Components Thereof, and Vehicles Containing Same, Inv. No.
`337-TA-984 (U.S.I.T.C. 2016).
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`Complaint, ¶ 36 (emphasis added). Conspicuously absent from the subpoena, however, is any
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`allegation that NXP infringes. Indeed, in characterizing the subpoena as seeking discovery related
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`to “potential infringement,” AST implicitly concedes that the subpoena lacks facts that plausibly
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`support a specific charge of infringement against a specific product, let alone a charge of
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`infringement against the Accused Products identified in its Complaint.
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`Additionally, the subpoena itself establishes that AST’s conclusory statement regarding the
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`’945 patent is not plausible. Specifically, contrary to AST’s assertion that the April 25, 2016
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`subpoena contains an allegation regarding “NXP’s potential infringement of the ’945 patent,” the
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`April 25, 2016 subpoena is directed to discovery relevant to alleged infringement by parties to the
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`ITC investigation only, which did not include NXP:
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`The discovery Advanced Silicon seeks from NXP is relevant to Advanced Silicon's
`infringement allegations relating to U.S. Patent Nos. 6,339,428, 6,546,439,
`6,630,935, and 8,933,945 asserted in this Investigation. In particular, NXP is a
`supplier of certain integrated circuits incorporated into devices manufactured and
`assembled by the Respondents, which have been accused of infringement.
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`Ex. 7 at 3 (emphasis added). Identifying that another entity’s alleged downstream assembled and
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`configured product may infringe fails to plausibly suggest that AST provided NXP actual notice
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`that an NXP product operating alone may infringe, let alone actual notice as to the specific Accused
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`Products in the Complaint.
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`Thus, AST’s May 3, 2022 letter (related to both Asserted Patents) and the April 25, 2016
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`subpoena (related to the ’945 patent only) fail to plausibly support the conclusion that AST
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`provided pre-suit actual notice of alleged infringement of the Asserted Patents, and AST’s claims
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`for pre-suit damages should be dismissed.
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`C.
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`AST’s Claim for Injunctive Relief Should be Dismissed
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`AST’s request for permanent injunctive relief cannot stand because AST fails to plead facts
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`plausibly supporting irreparable harm, a necessary element of such a claim. With respect to
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`irreparable harm, AST merely states:
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`NXP is liable for infringement of the [Asserted Patents] due to its actions in this
`District and throughout the United States. NXP’s infringing conduct has caused
`AST to suffer damages and irreparable harm.
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`Complaint, ¶ 30 (emphasis added) (’435 patent); id. at ¶ 39 (’945 patent).
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`To establish entitlement to injunctive relief, a plaintiff must demonstrate “(1) that it has
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`suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are
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`inadequate to compensate for that injury; (3) that, considering the balance of hardships between
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`the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would
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`not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388,
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`391 (2006).
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`Here, AST fails to plead facts to plausibly support a finding that it has suffered an
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`irreparable injury not compensable by monetary damages. AST’s allegations do not explain what
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`irreparable harm it has allegedly suffered, why monetary damages would be inadequate to remedy
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`any such harm, or how AST would be further harmed without injunctive relief. Absent such
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`allegations, AST’s claim for injunctive relief must be dismissed. See M & C Innovations, LLC v.
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`Igloo Prods. Corp., No. 4:17-CV-2372, 2018 WL 4620713, at *6 (S.D. Tex. July 31, 2018)
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`(dismissing request for lost profits and a permanent injunction with prejudice). Accordingly,
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`AST’s claim for injunctive relief should be dismissed.
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`III. CONCLUSION
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`AST’s claims for pre-suit damages and injunctive relief should be dismissed in their
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`entirety for AST’s failure to properly and plausibly plead those claims.
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`Dated: August 1, 2022
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`Respectfully submitted,
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`By: /s/ Richard S. Zembek
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`Richard S. Zembek (SBN 00797726)
`richard.zembek@nortonrosefulbright.com
`NORTON ROSE FULBRIGHT US LLP
`Fulbright Tower
`1301 McKinney, Suite 5100
`Houston, Texas 77010-3095
`Tel: (713) 651-5151
`Fax: (713) 651-5246
`
`Eric C. Green (SBN 24069824)
`Eric.green@nortonrosefulbright.com
`Catherine Garza (SBN 24073318)
`Cat.garza@nortonrosefulbright.com
`NORTON ROSE FULBRIGHT US LLP
`98 San Jacinto Boulevard, Suite 1100
`Austin, Texas 78701
`Tel: (512) 474-5201
`Fax: (512) 536-4598
`
`Counsel for Defendants NXP Semiconductors
`N.V.; NXP B.V.; and NXP USA, Inc.
`
`
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`CERTIFICATE OF SERVICE
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`I certify that on August 1, 2022, all counsel of record who have consented to electronic
`service are being served with a copy of this document via the Court’s CM/ECF system.
`
`/s/ Catherine Garza
` Catherine Garza
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