Case 6:22-cv-01162-ADA Document 56 Filed 06/22/23 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Case No. 6:22-cv-01162-ADA
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`JURY TRIAL DEMANDED
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`PARKERVISION, INC.,
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`Plaintiff
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` v.
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`REALTEK SEMICONDUCTOR CORP.,
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`Defendant
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`PARKERVISION’S REPLY TO REALTEK’S MOTION TO DISMISS
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`Case 6:22-cv-01162-ADA Document 56 Filed 06/22/23 Page 2 of 19
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`III.
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`IV.
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`Introduction. ........................................................................................................................ 1
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`Background. ........................................................................................................................ 2
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`Legal standard. .................................................................................................................... 4
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`Argument. ........................................................................................................................... 5
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`A.
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`B.
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`C.
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`D.
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`E.
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`F.
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`Realtek sticks its head in the sand regarding ParkerVision’s allegations. .............. 5
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`The Amended Complaint more than sufficiently alleges direct infringement. ....... 7
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`Realtek’s indirect infringement argument is a red herring. ....................................11
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`ParkerVision sufficiently pleads infringement. ......................................................11
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`ParkerVision is entitled to recover damages. ........................................................ 14
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`There is no basis to dismiss the Amended Complaint with prejudice. ................. 14
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`i
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`Case 6:22-cv-01162-ADA Document 56 Filed 06/22/23 Page 3 of 19
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .........................................................................................................4, 5, 12
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`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) .............................................................................................................5, 12
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`De La Vega v. Microsoft Corp.,
`No. W-19-CV-00612-ADA, 2020 U.S. Dist. LEXIS 116081, 2020 WL
`3528411 (W.D. Tex. Feb. 11, 2020) ........................................................................................14
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`Fuentes v. Enhanced Recovery Servs. 2, Inc.,
`2023 U.S. Dist. LEXIS 73306, 2023 WL 313979 (W.D. Tex. Apr. 26, 2023) .........................6
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`Innova Hosp. San Antonio, Ltd. P'ship v. Blue Cross & Blue Shield of Ga., Inc.,
`892 F.3d 719 (5th Cir. 2018) ...................................................................................................12
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`Johnson v. BOKF Nat’l Ass’n,
`15 F.4th 356 (5th Cir. 2021) ................................................................................................5, 14
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`McZeal v. Sprint Nextel Corp.,
`501 F.3d 1354 (Fed. Cir. 2007)..................................................................................................4
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`Personalized Media Communs., LLC v. Apple Inc.,
`No. 2:15-cv-1366, 2016 U.S. Dist. LEXIS 135672, 2016 WL 5719701 (E.D.
`Tex. Sept. 13, 2016) ...................................................................................................................5
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`Slyce Acquisition, Inc. v. Syte — Visual Conception, Ltd.,
`422 F. Supp. 3d 1191 (W.D. Tex. 2019)....................................................................................4
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`WiTricity Corp. v. Momentum Dynamics Corp.,
`563 F. Supp. 3d 309 (D. Del. 2021) .........................................................................................12
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`Statutes
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`35 U.S.C. § 287 ..........................................................................................................................2, 14
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`ii
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`Case 6:22-cv-01162-ADA Document 56 Filed 06/22/23 Page 4 of 19
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`Other Authorities
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`Fed. R. Civ. P. 4(f)(2)(C)(ii) ............................................................................................................2
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`Fed. R. Civ. P. 8 ...........................................................................................................................4, 5
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`Fed. R. Civ. P. 12 .........................................................................................................................2, 4
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`iii
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`Case 6:22-cv-01162-ADA Document 56 Filed 06/22/23 Page 5 of 19
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`I.
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`Introduction.
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`Since the time ParkerVision filed this suit on November 10, 2022, Realtek has made
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`ceaseless attempts to avoid it—from dodging service and letter-writing campaigns to filing a
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`mandamus petition (only to waive the issue being appealed)1 and now filing a baseless motion to
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`dismiss. But these actions are Realtek’s standard procedure when dealing with U.S. litigation. It
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`is vexatious and needlessly drives up costs.
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`In the present motion, Realtek claims that ParkerVision (1) does not allege direct
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`infringement, (2) does not allege indirect infringement, (3) does not sufficiently plead
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`infringement, and (4) cannot recover damages because of an alleged failure to mark. Realtek is
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`wrong on each of these issues.
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`First, Realtek simply ignores (and notably does not deny) allegations related to Realtek’s
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`use, sale, offer for sell, and importation of infringing products in/into the U.S. Instead, Realtek
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`focuses on allegations that are of no relevance. The Amended Complaint alleges multiple bases
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`for Realtek’s direct infringement: (1) Realtek distributors (who are listed on Realtek’s website)
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`sell, offer to sell, and/or import infringing products on behalf of Realtek in the U.S. and, thus, act
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`as Realtek’s agents in the United States, (2) Realtek directly sells and offers to sell its infringing
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`products to HP Inc. (a U.S. company), (3) Realtek used, sold, and/or offered to sell its infringing
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`products at the Consumer Electronics Show in Las Vegas, and (4) Realtek has sought and
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`received authorization from the FCC to sell Realtek infringing products in the United States.
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`Second, ParkerVision is not alleging, at this time, indirect infringement. This is simply a
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`red herring.
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`1 Realtek filed a mandamus petition related to this Court’s ruling on default judgment and
`alternative service. See Dkt. 39. After Realtek filed the mandamus petition, Realtek failed to
`move to dismiss the Complaint based on improper service, thus, waiving the issues on appeal.
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`1
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`Third, not only does ParkerVision identify specific Realtek chips as well as components
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`(e.g., transistors, switches, capacitors, resistors) and signals in Realtek chips to demonstrate each
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`and every claim element, but ParkerVision explains their functions. Thus, Realtek has more than
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`sufficient notice of how it infringes ParkerVision’s patents.
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`Finally, the Amended Complaint alleges that ParkerVision marked its products in
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`compliance with 35 U.S.C. § 287. Dkt. 51, ¶ 38. Realtek’s position that damages are precluded
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`because of a failure to mark is, thus, irrelevant to a motion to dismiss where allegations are taken
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`as true. For the foregoing reasons, Realtek’s motion should be denied.
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`II.
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`Background.
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`Throughout the short life of this case, Realtek has made every effort to delay this case
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`and avoid answering for its infringement.
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`On November 10, 2022, ParkerVision filed a complaint for patent infringement against
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`Realtek, alleging infringement of United States patent nos. 6,049,706; 6,266,518; 7,292,835; and
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`8,660,513. Dkt. 1.
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`On December 19, 2022, ParkerVision effected service on Realtek pursuant to Fed. R. Civ.
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`P. 4(f)(2)(C)(ii). Specifically, the district court clerk mailed the summons and complaint to
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`Realtek via FedEx. Dkt. 8. FedEx delivered process to Realtek’s headquarters, and a receipt was
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`signed by “R. Fan” at the desk front. Dkt. 9. ParkerVision filed the signed receipt as proof of
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`service, and Realtek’s answer became due January 18, 2023.
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`But instead of addressing the merits of ParkerVision’s complaint for patent infringement
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`––or even raising a defense of insufficient service under Fed. R. Civ. P. 12––Realtek resorted to
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`delay tactics. Mr. Theodore Angelis, an attorney from K&L Gates, informed ParkerVision’s
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`counsel that Realtek returned the effected service to the sender, and peddled the false argument
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`that service on Realtek must be completed through letters rogatory. Dkt. 10-1. In an effort to
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`2
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`avoid unnecessary motion practice regarding service and/or default, ParkerVision’s counsel
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`asked Mr. Angelis whether Realtek would agree to waive service. Mr. Angelis gave the now-
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`unsurprisingly dilatory response that he and his firm were “not authorized to accept or waive
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`service, so we respectfully [could not] respond to [the] questions.” Dkt. 10-3.
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`When Realtek’s answer came due, Realtek never appeared. ParkerVision then, on January
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`23, 2023, moved for leave to effect alternative service by sending a copy of the summons and
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`complaint to Mr. Angelis. Dkt. 10. Continuing its pattern of obstruction, Realtek retained counsel
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`licensed in the Western District of Texas to file a response in opposition to ParkerVision’s
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`motion. ParkerVision’s counsel asked Realtek’s new counsel, Mark Siegmund, whether he
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`represented Realtek. To ParkerVision’s surprise, and even though he filed an opposition to
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`ParkerVision’s alternative-service motion, Mr. Siegmund stated that he was “not authorized to
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`accept service or otherwise represent Realtek concerning this matter.” Dkt. 13-1.
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`At this point, ParkerVision realized that Realtek had no intention of litigating the merits
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`of this case. Thus, because Realtek had been properly served under Rule4(f)(2)(C)(ii), and to
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`avoid further delay, ParkerVision moved for entry of default on February 17, 2023. Dkt. 12. On
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`March 3, 2023, Mr. Siegmund filed a response in opposition to ParkerVision’s motion for entry
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`of default on behalf of Realtek. Dkt. 18.
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`At the hearing on ParkerVision’s motion for entry of default judgment, Mr. Siegmund
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`appeared and argued on behalf of Realtek. After hearing oral argument, this Court denied
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`ParkerVision’s motion for entry of default because Realtek had retained U.S. counsel who had
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`appeared in this case on its behalf. Additionally, the Court ordered ParkerVision to serve Mr.
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`Siegmund on behalf of Realtek because: (1) Realtek had retained counsel in this case; (2)
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`ParkerVision had attempted to serve Realtek in good faith; and (3) the Court desired to promote
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`3
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`expediency in resolving the case on the merits. But thereafter, Realtek filed a petition for writ of
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`mandamus, arguing that this Court got it wrong and Realtek was not properly before this Court.
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`Having unsuccessfully evaded service of process, Realtek changed tactics in its ongoing
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`effort to delay this case. On May 11, 2023, Realtek filed a motion to dismiss for failure to state a
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`claim. Dkt. 40. Though the original complaint was more than sufficient under Rule 8(a)(2), in
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`good faith and in the interest of moving the case forward without further delay, ParkerVision
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`amended its complaint to provide additional details as to Realtek’s infringing activity.
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`Given Defendant’s prior behavior, it came as no surprise that ParkerVision’s efforts to
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`accommodate Defendant and avoid motion practice were unsuccessful. Shortly after filing the
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`Amended Complaint, Defendant again filed a motion to dismiss. Dkt. 54.
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`III. Legal standard.
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`A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is “a purely
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`procedural question not pertaining to patent law,” and so the law of the Fifth Circuit controls.
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`McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007). “In the Fifth Circuit,
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`motions to dismiss under Rule 12(b)(6) are ‘viewed with disfavor and are rarely granted.’” Slyce
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`Acquisition, Inc. v. Syte — Visual Conception, Ltd., 422 F. Supp. 3d 1191, 1198 (W.D. Tex. 2019)
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`(citing Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009)).
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`Fed. R. Civ. P. 8 does not require “detailed factual allegations . . . .” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a
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`motion to dismiss, a complaint must . . . ‘state a claim to relief that is plausible on its face.’” Id.
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`(citing Twombly, 550 U.S. at 570). To meet this factual-plausibility standard, the plaintiff must
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`plead “factual content that allows the court to draw the reasonable inference that the defendant is
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`liable for the misconduct alleged,” based on “more than a sheer possibility that a defendant has
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`acted unlawfully.” Id. “[A] court must take [factual] allegations as true, no matter how skeptical
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`4
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`the court may be.” Id. at 696 (citing Twombly, 550 U.S. at 555). Ultimately, the purpose of Fed.
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`R. Civ. P. 8(a)(2) is to “give the defendant fair notice of what the . . . claim is and the grounds
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`upon which it rests.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing
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`Conley v. Gibson, 355 U.S. 41 (1957)).
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`IV. Argument.
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`Realtek presents no legal or factual basis on which this case should be dismissed. Instead,
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`Realtek’s motion is nothing more than the latest in a series of baseless attempts to delay and
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`avoid this lawsuit. As set forth below, Realtek misapplies the relevant law and deliberately
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`ignores numerous key allegations in ParkerVision’s Amended Complaint. Realtek’s
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`gamesmanship should be rejected.
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`A.
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`Realtek sticks its head in the sand regarding ParkerVision’s allegations.
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`The Amended Complaint’s factual allegations must be taken as true and interpreted in the
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`light most favorable to ParkerVision. See Johnson v. BOKF Nat’l Ass’n, 15 F.4th 356, 361 (5th
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`Cir. 2021) (“The court accepts all well-pleaded facts as true, views them in the light most
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`favorable to the plaintiff, and draws all reasonable inferences in the plaintiff's favor.”). Yet,
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`Realtek repeatedly attempts to deny and refute the allegations in the Amended Complaint. But
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`denying and refuting well-plead allegations are not proper grounds to support a motion to
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`dismiss.2 Courts regularly deny motions to dismiss that simply offer alternative facts to those
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`alleged in a complaint. See, e.g., Personalized Media Communs., LLC v. Apple Inc., No. 2:15-cv-
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`1366, 2016 U.S. Dist. LEXIS 135672, 2016 WL 5719701, at *9 (E.D. Tex. Sept. 13, 2016);
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`2 Instead of confronting ParkerVision’s allegations, Realtek improperly relies on its own
`assertions of “facts” outside the Amended Complaint. For example, Realtek repeatedly contends
`it cannot perform any infringing acts because Realtek has no office or employees in the United
`States. See Dkt. 54 at 4, 9. But those assertions do nothing to undermine the factual allegations in
`the Amended Complaint.
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`5
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`Fuentes v. Enhanced Recovery Servs. 2, Inc., 2023 U.S. Dist. LEXIS 73306, 2023 WL 313979 at
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`*5-6 (W.D. Tex. Apr. 26, 2023).
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`Indeed, unable to address numerous allegations for which Realtek has no answer, Realtek
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`simply ignores them. For example, when challenging ParkerVision’s claims of direct
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`infringement, Realtek argues that “the Amended Complaint includes no factual content
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`establishing that Realtek has a presence in the United States.” Dkt. 54 at 4. But Realtek ignores
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`the fact that the Amended Complaint is replete with such allegations. See Dkt. 51, ¶ 16 (alleging
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`that Realtek sells and/or offers to sell products to United States customers (e.g., HP Inc.)); ¶¶ 15,
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`27 (alleging Realtek’s presence and active participation at the annual Consumer Electronics
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`Show (“CES”) in Las Vegas, Nevada); ¶ 5 (alleging that Realtek has sales and research and
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`development teams in the United States); ¶ 26 (alleging that Realtek has distributors that sell
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`and/or offer to sell Realtek infringing products in the United States); ¶ 27 (alleging that Realtek
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`has sought authorization from the FCC to sell its products in the United States); ¶ 6 (alleging that
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`Realtek’s wholly-owned affiliates, including Cortina Access, Inc. and Ubilinx Technology Inc.,
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`are registered in the United States).
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`Moreover, Realtek disingenuously says that “Plaintiff’s claims of direct infringement rise
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`and fall on an allegation that Realtek itself infringes by ‘demonstrating and testing’ the accused
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`products in the United States.” Dkt. 54 at 9. This is simply not true. ParkerVision alleges acts of
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`direct infringement other than “demonstrating and testing” the accused products. So again,
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`Realtek ignores ParkerVision’s allegations. In particular, the Amended Complaint repeatedly
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`alleges that Realtek infringes by using, selling, offering for sale, and/or importing infringing
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`products in/into the United States. See Section IV.B below; see also Dkt. 51, ¶¶ 23, 52, 70, 79.
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`Tellingly, Realtek does not contest (nor can it contest) these allegations.
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`Finally, Realtek’s assertion that there is “no factual basis to support [ParkerVision’s]
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`allegations that Realtek did any demonstrations or testing or had others demonstrate or test on its
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`behalf in the United States” (Dkt. 54 at 6) is unfounded. As discussed below, Realtek
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`demonstrated infringing products at CES in Las Vegas and sought FCC approval for selling
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`infringing products throughout the United States.
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`Realtek’s repeated attempts to simply ignore and refute the Amended Complaint’s
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`allegations to fit into its own world view is not a basis to dismiss the Amended Complaint.
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`B.
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`The Amended Complaint more than sufficiently alleges direct infringement.
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`The Amended Complaint alleges numerous ways in which Realtek directly infringes the
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`patents-in-suit, and it provides specific factual allegations supporting ParkerVision’s claims.3
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`Realtek simply ignores these allegations.
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`As a threshold matter, contrary to Realtek’s assertion, the Amended Complaint is not
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`limited to infringement by only RTL8812BU chips. As set forth in the Amended Complaint,
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`“[t]he infringing products include, without limitation, the Realtek RTL8812BU.”4 Dkt. 51, ¶ 23.
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`Moreover, the Amended Complaint alleges “Realtek products that infringe . . . include, but are
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`not limited to, the Realtek Chips and any other Realtek device” that operates as claimed in the
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`patents-in-suit. Id., ¶¶ 53, 61, 71.
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`In particular, the Amended Complaint alleges “Realtek intended that its products be sold
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`in the United States and affirmatively directed its products to the United States market [i.e.,
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`imported] including, without limitation, through its . . . distributors.” Id., ¶ 26. The Amended
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`3 Realtek’s assertion that ParkerVision did not sufficiently allege joint infringement (Dkt. 54 at 9-
`10) is nothing more than a red herring. ParkerVision alleges that Realtek’s own actions (or
`actions taken by others on its behalf) result in infringement.
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`4 Unless otherwise noted, all emphasis has been added.
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`7
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`Complaint then cites Realtek’s own website—https://www.realtek.com/en/contact-us-en/cu-3-en-
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`2/category/42-12-en-3—which identifies its distributor (WPG Americas Inc.) in California from
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`which U.S. companies can purchase infringing Realtek wireless devices (e.g., Wi-Fi, Bluetooth
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`chips). Id.
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`Ex. 1.
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`Thus, the Amended Complaint alleges that (1) Realtek’s U.S. distributor acts as Realtek’s
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`agent to sell and/or offer to sell Realtek’s infringing wireless devices on Realtek’s behalf in the
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`United States, and (2) Realtek and/or its distributor imports infringing wireless devices into the
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`United States.
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`The Amended Complaint also alleges acts of direct infringement related to Realtek’s sales
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`and/or offers for sale to HP (a U.S. company): “Realtek sells and/or offers to sell Wi-Fi chips to
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`United States customers (e.g., HP Inc.) for incorporating into devices e.g. laptop computers.”
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`Dkt. 51, ¶ 16. The Amended Complaint then cites webpages—https://fccid.io/B94RTL;
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`https://support.hp.com/us-en/document/c06624389—that identify HP products incorporating
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`infringing Realtek Chips. Id.
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`Ex. 2. The Amended Complaint also alleges “demonstration” to HP (i.e., use) of infringing
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`wireless devices. Dkt. 51, ¶¶ 53, 61, 71, 80.
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`Moreover, the Amended Complaint alleges that Realtek “has presented products for sale
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`and distribution [i.e., import] in the United States at the Consumer Electronics Show [(CES)] in
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`Nevada.” Id., ¶ 27. Indeed, at the 2018 CES in Las Vegas, Realtek presented, sold, and/or offered
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`for sale a dongle including the RTL8812BU, a Realtek chip which is specifically alleged to
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`infringe in the Amended Complaint. Because all four asserted patents were unexpired at that
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`time, Realtek’s actions at CES were infringing acts.
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`Ex. 3, https://w3.realtek.com/en/press-room/news-releases/item/realtek-to-demonstrate-full-
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`range-of-connectivity-multimedia-and-consumer-electronics-solutions-at-2018-ces-2.
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`Despite being well aware of this fact, Realtek plays dumb and ignores this allegation.
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`Instead, Realtek disingenuously focuses on other exemplary portions of the Amended Complaint
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`referring to CES 2020 and 2022. In doing so, Realtek argues that three of the four patents were
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`expired by then and that the press releases cited in the Amended Complaint “do not relate to the
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`accused Realtek chip.” Dkt. 54 at 5. But as mentioned above, Realtek’s argument is of no
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`moment; ParkerVision sets forth allegations in the Amended Complaint relating to Realtek’s
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`infringing acts at the annual Consumer Electronics Show (see Dkt. 51, ¶ 27) as well as of
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`demonstrating, testing and offering the accused Realtek Chips in the United States (see, e.g., Dkt.
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`51 ¶¶ 16, 18, 23, 52, 53)—all of which include acts other than those at the 2020 and 2022 CES
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`shows (such as the 2018 CES, as well as sales to and through customers/distributors discussed
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`above).
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`Finally, the Amended Complaint provides further evidence of Realtek selling in the U.S.
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`The Amended Complaint alleges that Realtek sought authorization from the FCC to sell its
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`products in the United States: “Realtek conducts business with U.S. companies for the purpose of
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`incorporating its products into products sold in the United States, has sought authorization from
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`the FCC to sell its products in the United States (including, without limitation, the Realtek
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`Chips—see https://fccid.io/TX2).” Dkt. 51, ¶ 27. The link in the Amended Complaint includes a
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`link to Realtek’s FCC application for numerous wireless devices including the RTL8812BU,
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`which is specifically alleged to infringe in the Amended Complaint. See Ex. 4,
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`https://fccid.io/TX2-RTL8812BU/Test-Report/Test-Report-3482570.
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`The above allegations provide more than sufficient evidence of Realtek’s direct
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`infringement. Thus, Realtek’s motion to dismiss regarding direct infringement should be denied.
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`C.
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`Realtek’s indirect infringement argument is a red herring.
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`Realtek argues that ParkerVision has not sufficiently pled indirect infringement. But
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`ParkerVision does not allege indirect infringement.5 This is just a red herring to distract from
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`ParkerVision’s allegations of direct infringement. Accordingly, Realtek’s motion to dismiss
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`regarding indirect infringement should be denied.
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`D.
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`ParkerVision sufficiently pleads infringement.
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`Continuing its frivolous arguments, Realtek next asserts that ParkerVision does not
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`sufficiently plead any factual content to support its claims. Dkt. 54 at 11. Not so. The Amended
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`Complaint more than satisfies the pleading requirements. The Amended Complaint identifies the
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`accused products—Realtek Wi-Fi/Bluetooth chips e.g., the Realtek RTL8812BU. See Dkt. 51, ¶¶
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`7, 23. The Amended Complaint then sets forth detailed allegations regarding how these chips
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`infringe by identifying specific components (e.g., transistors/switches, capacitors, resistors/loads)
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`and signals in Realtek chips and explaining how these components/signals meet each and every
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`element of claim 19 of the ’706 patent (id., ¶¶ 54-57); claim 27 of the ’518 patent (id., ¶¶ 62-67);
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`claims 1 and 17 of the ’835 patent (id., ¶¶ 72-76); and claim 19 of the ’513 patent (id., ¶¶ 81-86).
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`5 The Amended Complaint alleges that Realtek has known of the patents-in-suit since at least as
`early as October 12, 2020 when ParkerVision filed suit against TCL in ParkerVision v. TCL
`Industries Holdings Co., Ltd., et al., 6:20-cv-00945 (ADA). Dkt. 51, ¶ 25. At the appropriate
`time, and based on facts ParkerVision expects to uncover during discovery, ParkerVision may
`either file an amended complaint alleging indirect infringement or seek leave to file such a
`complaint. But again, as mentioned above, ParkerVision’s Amended Complaint does not allege
`indirect infringement and, therefore, Realtek’s arguments focused on indirect infringement are
`completely irrelevant.
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`The Amended Complaint also explains the function of those components/signals. Thus, the
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`Amended Complaint puts Realtek on notice of how it infringes each asserted claim.
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`Yet again, Realtek plays dumb, asserting that the Amended Complaint “only assumes that
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`the accused Realtek chip includes transistors, switches, and capacitors” and “does not even
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`include the most basic internal photo to confirm this.”6 Dkt. 54 at 12. But this argument
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`misapplies the law. The Fifth Circuit has recognized that the standard set out in Twombly and
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`Iqbal “does not prevent a plaintiff from pleading facts alleged upon information and belief where
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`the facts are peculiarly within the possession and control of the defendant” Innova Hosp. San
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`Antonio, Ltd. P'ship v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 730 (5th Cir. 2018).
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`That is the case here. The law does not require photographic evidence to plead claims—that is
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`what is used to prove claims at trial.
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`Realtek’s chip schematics setting forth the configuration/architecture of Realtek chips are
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`highly confidential, proprietary, and are in the possession and control of Realtek. ParkerVision
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`does not yet have access to them. Thus, ParkerVision’s allegations made “on information and
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`belief,” which are based on ParkerVision’s reverse engineering of a Realtek chip, are more than
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`sufficient to support its claims for patent infringement. See, e.g., WiTricity Corp. v. Momentum
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`Dynamics Corp., 563 F. Supp. 3d 309, 328 (D. Del. 2021) (“Although some of the allegations
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`regarding the accused product are plead on information and belief, more detailed allegations are
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`not required at this stage. Indeed, it may not be possible for a plaintiff to describe its case-in-
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`chief with particularity at the outset of litigation, without access to the accused method, the
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`accused apparatus for reverse engineering, or confidential data such as source code.”).
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`6 Notably, ParkerVision has sued Intel, MediaTek, Buffalo, TCL, Hisense, and LG on the same or
`similar patents, provided the same level of specificity regarding infringement in its complaints,
`and no other company moved to dismiss for lack of sufficiently pleading infringement.
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`Case 6:22-cv-01162-ADA Document 56 Filed 06/22/23 Page 17 of 19
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`Nevertheless, Realtek is well aware of the configuration of its own wireless chips, and it
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`knows full well that those accused chips contain transistors/switches, capacitors, and resistors
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`that perform the functions that ParkerVision specifically identifies in the Amended Complaint.
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`For example, as shown in the exemplary schematic diagram of Realtek’s RTL8812BU
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`chip (below), a single receiver path includes the following exemplary circuit components: input
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`signal (red box), LO signal (orange box), switch (transistor(s), shown in the purple box), storage
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`capacitor(s) (green box), and low impedance load (resistor(s), shown in the yellow box).
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`None of this should be surprising to Realtek. That ParkerVision did not include pictures of these
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`components is immaterial. The law does not require pictures. Thus, Realtek’s motion to dismiss
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`regarding the sufficiency of ParkerVision pleading infringement should be denied.
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`13
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`Case 6:22-cv-01162-ADA Document 56 Filed 06/22/23 Page 18 of 19
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`E.
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`ParkerVision is entitled to recover damages.
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`Realtek takes yet another frivolous position. In particular, Realtek asserts that the
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`Amended Complaint should be dismissed because ParkerVision allegedly did not mark its
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`products and, thus, is not entitled to damages. Dkt. 54 at 13. But such an argument is not
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`appropriate on a motion to dismiss especially here, where the Amended Complaint alleges that
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`ParkerVision marked its products in compliance with 35 U.S.C. § 287. Dkt. 51, ¶ 38. All
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`allegations in the Amended Complaint are taken as true and interpreted most favorably to
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`ParkerVision. Johnson, 15 F.4th at 361. Thus, Realtek’s motion to dismiss regarding lack of
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`damages should be denied.
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`F.
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`There is no basis to dismiss the Amended Complaint with prejudice.
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`In the event the Court determines that ParkerVision’s Amended Complaint is deficient in
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`any way, dismissal with prejudice is not the appropriate remedy.7 ParkerVision should be entitled
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`to amend its Amended Complaint to include additional details. There is no prejudice to Realtek
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`in ParkerVision doing so. Indeed, granting ParkerVision the right to amend its complaint is the
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`favored approach. Slyce Acquisition, 422 F. Supp. 3d at 1198 (citing Lormand 565 F.3d at 232)).
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`7 Realtek’s reliance on De La Vega v. Microsoft Corp., No. W-19-CV-00612-ADA, 2020 U.S.
`Dist. LEXIS 116081, 2020 WL 3528411 (W.D. Tex. Feb. 11, 2020) is misplaced. In that case, the
`plaintiff provided screenshots of the accused technology but “did not provide any description as
`to how the accused instrumentality infringes.” Id. at *16, 18. And though this Court allowed
`plaintiff an opportunity to amend the complaint, plaintiff declined stating, “we can’t really
`replead and do any better.” Id. at *14. In contrast, ParkerVision’s Amended Complaint sets forth
`a detailed description of how the accused Realtek Chips infringe, specifically identifying
`components (e.g., switches/transistors, capacitors, resistors/loads) in the Realtek Chips and
`explaining how those components function to meet each and every claim limitation.
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`Case 6:22-cv-01162-ADA Document 56 Filed 06/22/23 Page 19 of 19
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`Respectfully submitted,
`/s/ Raymond W. Mort, III
`Raymond W. Mort, III
`Texas State Bar No. 00791308
`raymort@austinlaw.com
`THE MORT LAW FIRM, PLLC
`501 Congress Avenue, Suite 150
`Austin, Texas 78701
`Tel/Fax: 512-865-7950
`
`
`Attorneys for Plaintiff ParkerVision, Inc.
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`
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`Dated: June 22, 2023
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`
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`Of counsel:
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`Ronald M. Daignault*
`Chandran B. Iyer
`Jason S. Charkow*
`Scott R. Samay*
`Stephanie R. Mandir
`Zachary H. Ellis* (Texas State Bar No.
`24122606)
`DAIGNAULT IYER LLP
`rdaignault@daignaultiyer.com
`cbiyer@daignaultiyer.com
`jcharkow@daignaultiyer.com
`ssamay@daignaultiyer.com
`smandir@daignaultiyer.com
`zellis@daignaultiyer.com
`8618 Westwood Center Drive
`Suite 150
`Vienna, VA 22182
`
`*Not admitted in Virginia
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`15
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