Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`Plaintiff,
`
`v.
`
`DODOTS LICENSING SOLUTIONS LLC,
`
`
`
`
`
`SAMSUNG ELECTRONICS CO.,
`LTD. AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`
`
`
`
`
`
`
`
`
`
`
`Case No. 6:22-cv-00535-ADA-DTG
`
`Defendants.
`
`DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
`PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)
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`
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`

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`Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 2 of 16
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`TABLE OF CONTENTS
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` 
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` 
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`INTRODUCTION .............................................................................................................. 1 
`
`ARGUMENT ...................................................................................................................... 1 
`
`A. 
`
`DoDots’ Indirect Infringement Claims Do Not Satisfy Twombly/Iqbal ................. 1 
`
`1. 
`
`2. 
`
`DoDots Fails to Adequately Plead Pre-Suit Knowledge of the
`Alleged Infringement .................................................................................. 1 
`
`DoDots’ Complaint Does Not Adequately Plead Specific Intent ............... 7 
`
`B. 
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`DoDots Fails to Adequately Plead Marking of the ’083 and ’407 Patents ............. 9 
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` 
`
`CONCLUSION ................................................................................................................. 10 
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`i
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`Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 3 of 16
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`TABLE OF AUTHORITIES
`
`Cases
`
`Page(s)
`
`Alldredge v. Astrue,
`No. A-08-CA-482-AWA, 2009 WL 1938905 (W.D. Tex. July 6, 2009) ..................................6
`
`Amsted Indus. Inc. v. Buckeye Steel Castings Co.,
`24 F.3d 178 (Fed. Cir. 1994)....................................................................................................10
`
`Arctic Cat Inc. v. Bombardier Recreational Prods. Inc.,
`876 F.3d 1350 (Fed. Cir. 2017) ...........................................................................................9, 10
`
`Arctic Cat Inc. v. Bombardier Recreational Prods. Inc.,
`950 F.3d 860 (Fed. Cir. 2020)..................................................................................................10
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...................................................................................................................6
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................6
`
`In re Bill of Lading Transmission & Processing Sys. Pat. Litig.,
`681 F.3d 1323 (Fed. Cir. 2012)..................................................................................................8
`
`BillJCo, LLC v. Cisco Sys., Inc.,
`No. 2:21-CV-00181-JRG, 2021 WL 6618529 (E.D. Tex. Nov. 30, 2021)................................8
`
`Commil USA, LLC v. Cisco Sys., Inc.,
`575 U.S. 632 (2015) ...................................................................................................................2
`
`DSU Med. Corp. v. JMS Co.,
`471 F.3d 1293 (Fed. Cir. 2006)..............................................................................................7, 8
`
`Global-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754 (2011) ...............................................................................................................1, 6
`
`Hafeman v. LG Elecs. Inc.,
`No. 6:21-CV-00696-ADA-DTG, 2022 WL 3723304 (W.D. Tex. Aug. 28,
`2022) ..........................................................................................................................................9
`
`Innovention Toys, LLC v. MGA Ent., Inc.,
`611 F. App’x 693 (Fed. Cir. 2015) ............................................................................................9
`
`Jawbone Innovations LLC, v. Google LLC,
`6:21-CV-00985-ADA, 2022 WL 7145461 (W.D. Tex. Oct. 12, 2022) .................................3, 4
`
`Kirsch Rsch. & Dev., LLC v. IKO Indus., Inc.,
`No. 6:20-CV-00317-ADA, 2021 WL 4555608 (W.D. Tex. Oct. 4, 2021) ............................3, 4
`
`ii
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`

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`Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 4 of 16
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`Kirsch Rsch. & Dev., LLC v. Tarco Specialty Prod., Inc.,
`No. 6:20-CV-00318-ADA, 2021 WL 4555802 (W.D. Tex. Oct. 4, 2021) ............................3, 4
`
`Lucent Techs., Inc. v. Gateway, Inc.,
`580 F.3d 1301 (Fed. Cir. 2009)..................................................................................................9
`
`Manville Sales Corp. v. Paramount Sys., Inc.,
`917 F.2d 544 (Fed. Cir. 1990)................................................................................................7, 8
`
`Monolithic Power Sys., Inc. v. Meraki Integrated Cir. (Shenzhen) Tech., Ltd.,
`No. 6:20-CV-008876-ADA, 2021 WL 3931910 (W.D. Tex. Sept. 1, 2021) ........................2, 3
`
`Motiva Pats., LLC v. Sony Corp.,
`408 F. Supp. 3d 819 (E.D. Tex. 2019) .......................................................................................8
`
`Red Rock Analytics, LLC v. Apple Inc.,
`No. 6:21-CV-00346-ADA, 2021 WL 5828368 (W.D. Tex. Dec. 8, 2021) ...............................8
`
`Traxcell Techs., LLC v. Verizon Wireless Pers. Commc’ns, LP,
`No. 6:20-CV-01175-ADA, 2022 WL 299732 (W.D. Tex. Jan. 31, 2022) ........................7, 8, 9
`
`Xiros, Ltd. v. Depuy Synthes Sales, Inc.,
`No. W-21-CV-00681-ADA, 2022 WL 3592449 (W.D. Tex. Aug. 22, 2022) .......................4, 5
`
`Other Authorities
`
`Fed. R. Civ. P. 9(b) ..........................................................................................................................7
`
`
`
`iii
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`Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 5 of 16
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`
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`INTRODUCTION
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`DoDots’ opposition offers no meaningful argument as to why the indirect infringement
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`allegations and the claims for relief for the ’083 and ’407 patents in the Second Amended Complaint
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`(“SAC”) clear the legal hurdles to survive past the pleading stage. DoDots’ arguments are specious,
`
`often mischaracterizing Samsung’s positions and misinterpreting the law. Contrary to DoDots’
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`opposition, Samsung does not ask the Court to engage in fact-finding. Rather, the facts pleaded,
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`including accompanying declarations, are facially insufficient as a matter of law for DoDots to
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`survive a motion to dismiss. DoDots’ opposition does nothing to disrupt that conclusion, nor could
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`it given the clear deficiencies with DoDots’ allegations. Samsung’s motion to dismiss the SAC
`
`should therefore be granted.
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`
`
`ARGUMENT
`A.
`
`DoDots’ Indirect Infringement Claims Do Not Satisfy Twombly/Iqbal
`1.
`
`DoDots Fails to Adequately Plead Pre-Suit Knowledge of the Alleged
`Infringement
`
`DoDots does not explain how the SAC adequately pleads Samsung’s knowledge of the
`
`alleged infringement—that is, knowledge that the induced acts constitute infringement—as required
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`under § 271(b). Because the asserted patents are expired, the only relevant facts that DoDots may
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`plead regarding indirect infringement must be pre-suit facts demonstrating pre-suit knowledge that
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`the induced acts constitute infringement of the specific asserted patents. Nothing that DoDots pleads
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`in the FAC meets this high bar of pre-suit knowledge.
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`Active inducement requires more than mere knowledge of the asserted patents. It
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`additionally requires (among other things) knowledge that the induced acts constitute infringement.
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`The law here is well-settled. See, e.g., Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766
`
`(2011) (“[W]e now hold that induced infringement under § 271(b) requires knowledge that the
`
`1
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`

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`Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 6 of 16
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`induced acts constitute patent infringement.”); Commil USA, LLC v. Cisco Sys., Inc., 575 U.S. 632,
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`639 (2015) (“Like induced infringement, contributory infringement requires knowledge of the
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`patent in suit and knowledge of patent infringement.”); Monolithic Power Sys., Inc. v. Meraki
`
`Integrated Cir. (Shenzhen) Tech., Ltd., No. 6:20-CV-008876-ADA, 2021 WL 3931910, at *5 (W.D.
`
`Tex. Sept. 1, 2021) (mere awareness of the asserted patents is insufficient).
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`Yet, DoDots does not explain how the SAC plausibly alleges that Samsung knew it was
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`inducing others’ direct infringement during the pre-suit enforceability period of the asserted patents.
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`DoDots continues to rely on Mr. Lam’s 2011 email to Mr. Kim, Opp. 5-6, but DoDots does not
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`rebut key deficiencies with that email. As Defendants’ opening brief explained, Mr. Lam’s 2011
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`email is fatally deficient as a matter of law for multiple reasons. DoDots does not dispute that the
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`email fails to (i) identify any accused products, (ii) mention the ʼ407 and ’545 patents or their
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`respective applications, (iii) identify any allegedly infringed claims or patents, or (iv) otherwise
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`assert that Samsung or its customers have infringed any of the patents mentioned in the email. See
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`SAC ¶¶ 54-59 & Exs. 8, 9. And in Mr. Lam’s own words, the purpose of his email was merely “to
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`inform [Mr. Kim] that [Mr. Lam’s company] IMS had patent assets that Samsung might be
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`interested in acquiring”—not to allege infringement by Samsung or put Samsung on notice that it
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`was inducing acts that constituted infringement. See SAC, Ex. 9 at ¶ 9.1
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`Thus, the SAC does not plausibly allege that Mr. Lam ever informed Samsung of any
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`purported infringement of the asserted patents—by, for example, identifying asserted claims and
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`accused products. See generally SAC. Given that Mr. Lam only allegedly pointed out certain patent
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`assets to Mr. Kim for potential acquisition, but never alleged any infringement by Samsung, it is not
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`plausible that Samsung would have gained knowledge of the alleged infringement (i.e., knowledge
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`1 Unless noted, all emphasis added.
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`
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`2
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`Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 7 of 16
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`that its induced acts constituted infringement) by virtue of Mr. Lam’s email to Mr. Kim. Monolithic,
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`2021 WL 3931910, at *5.
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`DoDots fails to address these critical defects, let alone offer valid arguments to cure them.
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`DoDots instead leans on threadbare positions such as Samsung allegedly seeking to introduce facts
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`outside the pleadings,2 Opp. 6-7, or the notion that merely providing a patent application number in
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`the context of a potential patent sale was sufficient to put Samsung on actual notice, id. at 5-6.
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`DoDots offers no legal authority for this position. Being informed of an application does not
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`sufficiently establish knowledge of a patent, because there is no guarantee that the application will
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`issue as a patent. Besides, DoDots does not even allege that Mr. Lam provided application numbers
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`for the ʼ407 and ’545 patent applications, let alone the patent numbers themselves.
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`DoDots’ reliance on Jawbone is inapposite. Opp. 5 n.1 (citing Jawbone Innovations LLC,
`
`v. Google LLC, 6:21-CV-00985-ADA, 2022 WL 7145461 (W.D. Tex. Oct. 12, 2022)). DoDots
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`cites Jawbone because “allegations that Google had pre-suit knowledge of the Asserted Patents and
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`was a sophisticated company that would search and monitor patents were factors in denying a
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`motion to dismiss.” Id. However, DoDots completely misses the analysis distinguishing Kirsch I
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`and Kirsch II, cases where this Court dismissed plaintiffs’ induced infringement claims based on
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`lack of pre-suit knowledge. Jawbone, 2022 WL 7145461, at *2 (citing Kirsch Rsch. & Dev., LLC
`
`v. IKO Indus., Inc. (“Kirsch I”), No. 6:20-CV-00317-ADA, 2021 WL 4555608, at *2 (W.D. Tex.
`
`Oct. 4, 2021); Kirsch Rsch. & Dev., LLC v. Tarco Specialty Prod., Inc. (“Kirsch II”), No. 6:20-CV-
`
`00318-ADA, 2021 WL 4555802, at *2 (W.D. Tex. Oct. 4, 2021)); see also Mot. 13-14.
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`
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`2 Samsung does not seek to introduce outside facts. DoDots’ own pleadings put Mr. Kim in play;
`Samsung merely addresses the inadequacy of DoDots’ allegations. As mentioned above and in
`Samsung’s motion, there is no dispute that that the email from Mr. Lam to Mr. Kim fails to identify
`any accused products, identify with specificity allegedly infringed patents or claims, or otherwise
`assert that Samsung or its customers have infringed any of the patents mentioned in the email.
`
`3
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`Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 8 of 16
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`In Kirsch I, the defendant contacted plaintiff about selling plaintiff’s products in Europe.
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`2021 WL 4555608, at *3. This Court noted that this “inquiry is different from that alleged here,
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`where [plaintiff’s agent] is alleged to have contacted Google about some of the specific Asserted
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`Patents.” Jawbone, 2022 WL 7145461, at *2. The facts here are more akin to Kirsch I. The
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`communications sent by DoDots’ agents Messrs. Lam and Ramde involved general sales inquiries
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`and most certainly did not pertain to specific asserted patents. Similarly, in Kirsch II, the plaintiff
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`informed defendant that the plaintiff’s products were patented, but “failed to allege that the actual
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`patents in the case were discussed.” Jawbone, 2022 WL 7145461, at *2 (citing Kirsch II, 2021 WL
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`4555802, at *2). Such is the case here where DoDots’ agents failed to discuss with Samsung any
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`actual patents, alleged infringement, or purportedly accused products. Further, despite DoDots’
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`conclusory statements regarding Samsung’s alleged “practice of monitoring patents,” DoDots does
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`not allege plausible facts to allege Samsung monitored DoDots’ patents. Opp. 9-10.
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`In any event, Mr. Lam’s April 2011 email to Mr. Kim should separately be discounted
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`because even if Mr. Kim had knowledge of the asserted patents, such knowledge cannot be imputed
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`to the named Samsung defendants. DoDots does not dispute that, by April 2011, Mr. Kim was
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`working at Samsung Mobile Display—an unnamed party—rather than SEC. Opp. 5-6. Xiros, Ltd.
`
`v. Depuy Synthes Sales, Inc., No. W-21-CV-00681-ADA, 2022 WL 3592449, at *3 (W.D. Tex. Aug.
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`22, 2022) (“[W]hile Plaintiff identifies a relationship between DSS and its affiliates, it inadequately
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`alleges a plausible claim that knowledge should be imputed to DSS.”); see Mot. 10.
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`To sidestep this issue, DoDots argues that Samsung is offering facts outside the pleadings.
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`Opp. 6. Not so. DoDots’ own pleadings put Mr. Kim in play; Samsung merely addresses the
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`inadequacy of DoDots’ allegations. Despite DoDots’ attempts to characterize Mr. Kim’s move from
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`SEC to Samsung Mobile Display as an “employee’s moves within Samsung,” Opp. 6, Mr. Kim
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`4
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`Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 9 of 16
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`moved to a separate company. By April 2011, Mr. Kim was not associated with Samsung’s legal
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`department. It is dispositive that he was not even an employee of the named defendants at that time
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`of Mr. Kim’s email. DoDots does not allege—much less, plausibly allege—that it would be
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`appropriate to impute Mr. Kim’s alleged learning of the asserted patents in April 2011 (while he
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`was employed Samsung Mobile Display) to SEC. Opp. 6; Xiros, 2022 WL 3592449, at *3. Here,
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`the SAC does not so much as mention Samsung Mobile Display, let alone allege facts supporting
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`that it could be appropriate to impute its knowledge to SEC or SEA. See generally SAC. Mr. Kim’s
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`alleged knowledge in 2011 must be discounted entirely.
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`As to Mr. Ramde’s 2014 correspondence, DoDots’ opposition fails to elucidate how the SAC
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`plausibly alleges that Mr. Ramde’s communication actually referenced DoDots, DoDots’ portfolio,
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`or the asserted patents, when it recited none of these things. Opp. 7-8. Nor does Samsung ask this
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`court to weigh the evidence. DoDots mischaracterizes Samsung’s position by stating that “Samsung
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`questions the ‘credibility’ of [DoDots’] declarants.” Opp. 1, 8. This is plainly false. Samsung’s
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`point is that the declarations themselves are facially deficient and fail to support DoDots’ position
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`that Samsung had pre-suit knowledge of the asserted patents. Mot. 10-13 (showing that both Mr.
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`Lam’s and Mr. Ramde’s communications failed to inform Samsung of specific patents or allege
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`infringement, instead being directed to general portfolio sales).
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`Through a cascade of what it improperly casts as “reasonable” inferences, DoDots would
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`have this Court believe that Mr. Ramde sent Samsung a list of DoDots’ patents. Opp. 7-9. This is
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`simply not the case. The most DoDots can allege, even with Mr. Ramde’s accompanying
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`declaration, is that it was common practice for Mr. Ramde to attach a patent portfolio to his
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`communications, and that Mr. Ramde showed Apple (not Samsung) the DoDots portfolio. Mot. 12-
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`13; SAC, Ex. 10 at ¶¶ 10-15, Ex. F.
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`5
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`Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 10 of 16
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`The email to Apple that DoDots clings to specifically mentions the “DoDots Portfolio,” and
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`attached to it a list of patents and applications that include the ’083 and ’407 patents, along with the
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`application that issued as the ’545 patents. SAC, Ex. 10 at Ex. F. But Mr. Ramde’s messages to
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`Mr. Jang contain no similar indications that these communications were about DoDots’ patents, let
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`alone the asserted patents here. The contrast between Mr. Ramde’s email to Apple and his
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`correspondence with Mr. Jang undercuts any “common practice.” Finally, it is not, as DoDots
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`alleges, “reasonable to infer that, given the contemporaneous documentation referring to the patents
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`being sent, the patents were in fact sent.” Opp. 8. The simple question is: if such a communication
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`exists, where is it and why was it not alleged as part of DoDots’ pleadings? The answer, and the
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`only plausible inference, is that DoDots will not be able to produce this communication because it
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`simply does not exist. DoDots has failed to make the requisite showing.
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`Finally, DoDots makes a conclusory assertions about Samsung’s alleged willful blindness.
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`DoDots makes a passing assertion that Samsung “was willfully blind to [the alleged] infringement”
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`and that it “took deliberate steps to avoid learning of that infringement.” SAC ¶¶ 115, 135; Opp. 10.
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`These allegations are no more than conclusory statements that recite the elements of the standard
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`and fail to meet the hurdles established by Twombly and Iqbal. Given that DoDots does not identify
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`any concrete steps Samsung took to avoid learning of the asserted patents or its supposed
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`infringement of them, DoDots’ conclusory willful blindness assertion should not be afforded any
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`weight, even at the pleading stage. See, e.g., Alldredge v. Astrue, No. A-08-CA-482-AWA, 2009
`
`WL 1938905, at *5 (W.D. Tex. July 6, 2009) (declining to afford weight to conclusory statement);
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`Global-Tech, 563 U.S. at 771 (willful blindness requires “deliberate steps”); Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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`6
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`Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 11 of 16
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`2.
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`DoDots’ Complaint Does Not Adequately Plead Specific Intent
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`Without a plausible allegation of Samsung’s knowledge of the alleged infringement during
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`the patents’ lifetimes, DoDots’ allegations that Samsung specifically intended to cause third-parties’
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`direct infringement necessarily fail.3 DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1306 (Fed. Cir.
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`2006) (“The mere knowledge of possible infringement by others does not amount to inducement;
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`specific intent and action to induce infringement must be proven.” (quotations and citation
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`omitted)); Manville Sales Corp. v. Paramount Sys., Inc., 917 F.2d 544, 553 (Fed. Cir. 1990) (“It
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`must be established that the defendant possessed specific intent to encourage another’s infringement
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`and not merely that the defendant had knowledge of the acts alleged to constitute inducement.”);
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`Traxcell Techs., LLC v. Verizon Wireless Pers. Commc’ns, LP, No. 6:20-CV-01175-ADA, 2022
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`WL 299732, at *4 (W.D. Tex. Jan. 31, 2022) (“Instructing others to perform an action ‘such to cause
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`infringement’ does not plead the intent required by law.”). In DSU, the Federal Circuit squarely
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`rejected the plaintiff-appellant’s argument—which DoDots echoes here—that, “to induce
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`infringement, the inducer need only intend to cause the acts of the third party that constitute direct
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`infringement.” 471 F.3d at 1305.
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`DoDots argues that Samsung encouraged third-parties to perform acts that allegedly
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`constitute direct infringement, and on that basis, DoDots’ possessed the specific intent to cause the
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`direct infringement during the asserted patents’ lifetimes. See Opp. 6-14. DoDots’ argument is
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`contrary to law. DSU, 471 F.3d at 1305-06; Manville, 917 F.2d at 553; Traxcell, 2022 WL 299732,
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`at *4. In particular, DoDots points to Samsung’s alleged instructions, design of the accused
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`
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`3 Critically, DoDots mistakenly applies the pleading standard for fraud claims under Rule 9(b) to
`patent infringement claims, incorrectly arguing that “intent . . . may be generally alleged.” Opp. 11;
`Fed. R. Civ. P. 9(b) (“Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party
`must state with particularity the circumstances constituting fraud or mistake. Malice, intent,
`knowledge, and other conditions of a person’s mind may be alleged generally.”).
`
`7
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`Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 12 of 16
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`functionalities, and advertisements relating to the accused functionalities. See Opp. 13-14 (citing
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`SAC ¶¶ 88, 104, 106, and 115 (instructions); id. at ¶¶ 97-122 (design of the accused functionalities);
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`id. at ¶ 128-29 (advertisements)). Even assuming, arguendo, that these purported actions suggest
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`intent to induce others to take certain acts, that would not be enough. DoDots is required to allege
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`facts showing that Samsung specifically intended to induce others’ direct infringement, not merely
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`that Samsung intended to cause others to perform acts that happen to constitute the direct
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`infringement. DSU, 471 F.3d at 1305-06; Manville, 917 F.2d at 553; Traxcell, 2022 WL 299732,
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`at *4. In the absence of any plausible showing that Samsung was aware of the alleged infringement
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`during the asserted patents’ lifetimes, see supra § II.A.1, DoDots’ factual allegations say nothing
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`about Samsung’s intent for active inducement purposes—nor could they.
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`None of DoDots’ cited cases support the notion that a defendant may have the requisite intent
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`despite its unawareness of the alleged infringement during the asserted patents’ lifetimes. To the
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`contrary, most of DoDots’ cited decisions make express findings about the defendant having the
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`knowledge required for inducement. See In re Bill of Lading Transmission & Processing Sys. Pat.
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`Litig., 681 F.3d 1323, 1341, 1344 (Fed. Cir. 2012) (plaintiff sent defendant a cease and desist letter,
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`and alleged knowledge based on the complaint); Motiva Pats., LLC v. Sony Corp., 408 F. Supp. 3d
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`819, 834 (E.D. Tex. 2019) (complaint sufficiently pled with “specific acts to implement and enforce
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`policy of willful blindness”); Red Rock Analytics, LLC v. Apple Inc., No. 6:21-CV-00346-ADA,
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`2021 WL 5828368, at *2, *7 (W.D. Tex. Dec. 8, 2021) (finding Apple knew of the alleged
`
`infringement from prior case involving same patent and infringement allegations); BillJCo, LLC v.
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`Cisco Sys., Inc., No. 2:21-CV-00181-JRG, 2021 WL 6618529, at *6 (E.D. Tex. Nov. 30, 2021)
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`(“The Complaint . . . provides Defendants the requisite notice of the Asserted Patents to support a
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`claim of indirect infringement at least as of the time the Complaint was filed.”).
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`8
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`Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 13 of 16
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`Other cases DoDots cites—even if they do not expressly discuss knowledge—still fail to
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`support DoDots’ position because they apply the requirement that the defendant must specifically
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`intend to cause another’s direct infringement and not merely intend to cause the acts that constitute
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`the direct infringement. See Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1323 (Fed. Cir.
`
`2009) (referring to the jury’s finding “that Microsoft possessed the requisite intent to induce at least
`
`one user of its products to infringe the claimed methods”); Hafeman v. LG Elecs. Inc., No. 6:21-
`
`CV-00696-ADA-DTG, 2022 WL 3723304, at *4 (W.D. Tex. Aug. 28, 2022) (“For an allegation of
`
`induced infringement to survive a motion to dismiss, a complaint must plead facts plausibly showing
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`that the accused infringer specifically intended [another party] to infringe [the patent] and knew that
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`the [other party]’s acts constituted infringement.” (citations and quotations omitted)). The last case
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`that DoDots relies on does not involve active inducement at all. See Innovention Toys, LLC v. MGA
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`Ent., Inc., 611 F. App’x 693 (Fed. Cir. 2015). DoDots has therefore not cited support for the rule
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`that it apparently relies on, i.e., that a defendant may possess the requisite intent (i) despite being
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`unaware of the third-parties’ direct infringement, and (ii) despite intending only to cause third-
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`parties acts that happen to constitute the alleged direct infringement. That is not the law. The SAC
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`does not plausibly allege that Samsung knew of, let alone specifically intended to cause, third-
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`parties’ direct infringement. See, e.g., Traxcell, 2022 WL 299732, at *1.
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`Thus, the SAC’s indirect infringement claims are fatally deficient and should be dismissed.
`
`B.
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`DoDots Fails to Adequately Plead Marking of the ’083 and ’407 Patents
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`DoDots does not dispute, nor can it, that it is required to plead satisfaction of its marking
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`obligation, either because it did not have one or because it and its licensees, including its customers,
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`marked the relevant products. See generally Opp. 14-19; see also Arctic Cat Inc. v. Bombardier
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`Recreational Prods. Inc., 876 F.3d 1350, 1366 (Fed. Cir. 2017) (“The patentee bears the burden of
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`pleading and proving he complied with § 287(a)’s marking requirement.”). Further, there is no
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`Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 14 of 16
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`dispute that DoDots claims to have sold products practicing the same patented technology asserted
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`in this case. See SAC ¶¶ 28-44. One must infer from its allegations that DoDots granted these
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`customers and/or the product manufacturers an implied license, at a minimum, through DoDots’
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`sales and promotion of these products. See Amsted Indus. Inc. v. Buckeye Steel Castings Co., 24
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`F.3d 178, 185 (Fed. Cir. 1994) (“[T]here is no reason why section 287 should only apply to express
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`licensees and not to implied licensees.”). However, nowhere in the complaint does DoDots allege
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`that customers (or any applicable sub-licensees) marked the relevant devices once the asserted
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`patents issued. See generally SAC. Nor does DoDots’ opposition adequately address this
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`deficiency. See generally Opp. 14-19.
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`DoDots is also wrong that Arctic Cat is “wholly irrelevant” and “says nothing about when
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`the obligation to mark begins.” Opp. 19. Arctic Cat instead holds that one’s marking obligation
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`arises when a “licensee began selling patented articles.” Arctic Cat Inc. v. Bombardier Recreational
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`Prods. Inc., 950 F.3d 860, 865 (Fed. Cir. 2020). And the obligation to mark also arises upon the
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`licensees “making” of a patented article. Id. Absent a full-throated averment that its customers
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`(licensees) did not sell, re-sell, or make products using DoDots’ technology after DoDots
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`purportedly ceased commercial operations in 2004, DoDots’ marking allegations are deficient,
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`making it impossible to know whether DoDots complied with § 287.
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`For these reasons, DoDots has not carried its burden of pleading compliance with its marking
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`obligations under § 287. Further, in the absence of marking, DoDots’ SAC does not plausibly allege
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`that DoDots provided Samsung with actual notice of infringement, as explained in Section II.A.1
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`supra, and as also required by § 287. Dismissal is appropriate.
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` CONCLUSION
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`For all of the above reasons, the Court should dismiss DoDots’ complaint as to any pre-suit
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`indirect infringement claims and as to all infringement claims for the ’083 and ’407 patents.
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`Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 15 of 16
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`Dated: August 30, 2023
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`Respectfully submitted,
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`FISH & RICHARDSON P.C.
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`By: /s/ David M. Hoffman
`
`David M. Hoffman
`TX Bar No. 24046084
`hoffman@fr.com
`111 Congress Avenue, Suite 2000
`Austin, TX 78701
`Tel: (512) 472-5070
`Fax: (512) 320-8935
`
`Michael J. McKeon (pro hac vice)
`mckeon@fr.com
`Adam R. Shartzer (admitted to W.D. Tex)
`shartzer@fr.com
`Michael J. Ballanco (pro hac vice)
`ballanco@fr.com
`Raj Utreja (pro hac vice)
`utreja@fr.com
`Irene Hwang (pro hac vice)
`hwang@fr.com
`1000 Maine Avenue, SW, Suite 1000
`Washington, DC 20024
`Tel: (202) 783-5070
`Fax: (202) 783-2331
`
`COUNSEL FOR DEFENDANTS,
`SAMSUNG ELECTRONICS CO., LTD., AND
`SAMSUNG ELECTRONICS AMERICA, INC.
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`Case 6:22-cv-00535-ADA Document 105 Filed 08/30/23 Page 16 of 16
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that the foregoing document was filed electronically in compliance
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`with Local Rule CV-5(a) on August 30, 2023, and it was served via CM/ECF on all counsel of
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`record.
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`/s/ David M. Hoffman
`David M. Hoffman
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