Case 1:22-cv-01331-MSN-IDD Document 31 Filed 01/17/23 Page 1 of 25 PageID# 363
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`GEOSCOPE TECHNOLOGIES PTE. LTD.,
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`GOOGLE LLC,
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`v.
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`Plaintiff,
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`Defendant.
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` Civil Action No. 1:22-cv-01331-MSN-IDD
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` JURY TRIAL DEMANDED
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`PLAINTIFF GEOSCOPE TECHNOLOGIES PTE. LTD.’s OPPOSITION TO
`DEFENDANT GOOGLE LLC’s PARTIAL MOTION TO DISMISS
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`Case 1:22-cv-01331-MSN-IDD Document 31 Filed 01/17/23 Page 2 of 25 PageID# 364
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`
`
`I.
`II.
`III.
`IV.
`A.
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`B.
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`C.
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`V.
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`TABLE OF CONTENTS
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`
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`INTRODUCTION ...............................................................................................................1
`FACTUAL BACKGROUND ..............................................................................................2
`LEGAL STANDARDS .......................................................................................................4
`ARGUMENT .......................................................................................................................4
`Geoscope Has Sufficiently Pleaded Willful Infringement ...............................................4
`Geoscope Has Adequately Alleged Google’s Knowledge of the
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`Asserted Patents .....................................................................................................5
`Geoscope Has Adequately Alleged Google’s “Deliberate or Intentional
`Infringement” ......................................................................................................10
`Geoscope Has Sufficiently Pleaded Indirect Infringement ............................................12
`Geoscope Has Adequately Alleged Google’s Specific Intent for
`
`Induced Infringement ..........................................................................................12
`Geoscope Has Adequately Alleged that the Accused Instrumentality
`Lacks Substantial Non-Infringing Uses ...............................................................14
`At a Minimum, Geoscope Has Sufficiently Pleaded Post-Complaint Willful and
`Indirect Infringement ......................................................................................................16
`CONCLUSION ..................................................................................................................18
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`i
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`

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`Case 1:22-cv-01331-MSN-IDD Document 31 Filed 01/17/23 Page 3 of 25 PageID# 365
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Artrip v. Ball Corp.,
`735 F. App’x 708 (Fed. Cir. 2018) ..........................................................................................16
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...................................................................................................................4
`
`Audio MPEG, Inc. v. HP Inc.,
`No. 15-cv-00073, 2016 WL 7010947 (E.D. Va. July 1, 2016) ................................................13
`
`Bell Atlantic Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................4
`
`Biedermann Technologies GmbH & Co. KG v. K2M, Inc.,
`528 F. Supp. 3d 407 (E.D. Va. 2021) ......................................................................................10
`
`In re Bill of Lading Transmission and Processing System Patent Litigation,
`681 F.3d 1323 (Fed. Cir. 2012)................................................................................................16
`
`Bio-Rad Laboratories, Inc. v. 10X Genomics, Inc.,
`No. 19-CV-12533-WGY, 2020 WL 2079422 (D. Mass. Apr. 30, 2020) ............................4, 11
`
`Blitzsafe Texas, LLC v. Volkswagen Group of America, Inc.,
`No. 2:15-cv-1274-JRG-RSP, 2016 WL 4778699 (E.D. Tex. Aug. 19, 2016) ...........................6
`
`Bushnell Hawthorne, LLC v. Cisco Systems, Inc.,
`No. 1:18-CV-760, 2019 WL 8107921 (E.D. Va. Feb. 26, 2019) ..........................11, 12, 16, 17
`
`CBX Technologies, Inc. v. GCC Technologies, LLC,
`457 Fed. App’x 299 (4th Cir. 2011) ..........................................................................................6
`
`Eko Brands, LLC v. Adrian Rivera Maynez Enterprises, Inc.,
`946 F.3d 1367 (Fed. Cir. 2020)..........................................................................................11, 12
`
`Elm 3DS Innovations, LLC v. Samsung Electronics Co.,
`No. CV 14-1430-LPS-CJB, 2015 WL 5725768 (D. Del. Sept. 29, 2015) .................................8
`
`Hypermedia Navigation LLC v. Google LLC,
`No. 18-CV-06137-HSG, 2019 WL 1455336 (N.D. Cal. Apr. 2, 2019) .............................11, 12
`
`IOENGINE, LLC v. PayPal Holdings, Inc.,
`No. 18-452-WCB, 2019 WL 330515 (D. Del. Jan. 25, 2019) .....................................11, 13, 17
`
`ii
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`

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`Case 1:22-cv-01331-MSN-IDD Document 31 Filed 01/17/23 Page 4 of 25 PageID# 366
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`Kewazinga Corp. v. Microsoft Corp.,
`558 F. Supp. 3d 90 (S.D.N.Y. 2021)..........................................................................................9
`
`Lifetime Industries, Inc. v. Trim-Lok, Inc.,
`869 F.3d 1372 (Fed. Cir. 2017)................................................................................................12
`
`Mao v. Global Trust Management, LLC,
`No. 4:21CV65 (RCY), 2022 WL 989012 (E.D. Va. Mar. 31, 2022) .......................................18
`
`Motiva Patents, LLC v. Sony Corp.,
`408 F. Supp. 3d 819 (E.D. Tex. 2019) .....................................................................................13
`
`Nielsen Co. (US), LLC v. comScore, Inc.,
`819 F. Supp. 2d 589 (E.D. Va. 2011) ................................................................................14, 15
`
`Rembrandt Social Media, LP v. Facebook, Inc.,
`950 F. Supp. 2d 876 (E.D. Va. 2013) ................................................................................17, 18
`
`Ricoh Co. v. Quanta Computer Inc.,
`550 F.3d 1325 (Fed. Cir. 2008)................................................................................................13
`
`In re Seagate Technology, LLC,
`497 F.3d 1360 (Fed. Cir. 2007), abrogated by Halo Electronics, Inc. v. Pulse
`Electronics, Inc., 579 U.S. 93 (2016) ......................................................................................17
`
`Skinner v. Switzer,
`562 U.S. 521 (2011) ...................................................................................................................4
`
`SoftView LLC v. Apple Inc.,
`Civ. No. 10-389-LPS, 2012 WL 3061027 (D. Del. July 26, 2012) .....................................8, 10
`
`Soverain IP, LLC v. Microsoft Corp.,
`No. 2:17-CV-00204-RWS-RSP, 2018 WL 1465792 (E.D. Tex. Mar. 26, 2018) ......................8
`
`SRI International, Inc. v. Cisco Systems, Inc.,
`14 F.4th 1323 (Fed. Cir. 2021) ......................................................................................4, 11, 12
`
`Virginia Innovation Sciences, Inc. v. Samsung Electronics Co.,
`983 F. Supp. 2d 700 (E.D. Va. 2013) ..................................................................................7, 10
`
`Vita-Mix Corp. v. Basic Holding, Inc.,
`581 F.3d 1317 (Fed. Cir. 2009)................................................................................................14
`
`WCM Industries, Inc. v. IPS Corp.,
`721 F. App’x 959 (Fed. Cir. 2018) ........................................................................................5, 6
`
`Other Authorities
`
`Fed. R. Civ. P. 12(b)(6)......................................................................................................1, 4, 6, 18
`
`iii
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`Case 1:22-cv-01331-MSN-IDD Document 31 Filed 01/17/23 Page 5 of 25 PageID# 367
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`
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`Plaintiff Geoscope Technologies Pte. Ltd. (“Geoscope”) submits this response to Google
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`LLC’s (“Google”) Partial Motion to Dismiss Complaint for Failure to State a Claim Pursuant to
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`Fed. R. Civ. P. 12(b)(6) (D.I. 28; collectively, with D.I. 29, “Motion”).
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`I.
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`INTRODUCTION
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`Geoscope is the successor to Andrew Corporation, a pioneer in the field of geolocation that
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`was founded in the 1930s and grew to a multi-billion dollar enterprise. Its seminal innovations are
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`well-known in the industry and frequently cited as prior art by more recent entrants like Google.
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`At issue in this litigation are six specific patents (“the Asserted Patents”) from Andrew Corporation
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`that teach and claim inventions for accurately geolocating mobile phones and other devices in
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`difficult settings, such as urban environments where precision is crucial but where signal
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`propagation is complicated by tall buildings and indoor settings.
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`In addition to direct infringement—a strict liability tort with no intent requirement—
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`Geoscope’s Complaint (D.I. 1) includes robust factual allegations that create a plausible inference
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`that Google has willfully infringed and knowingly induced infringement of the Asserted Patents.
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`The Complaint details how, during Google’s prosecution of its own patents before the United
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`States Patent & Trademark Office (“USPTO”), Google repeatedly cited and substantively
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`discussed patent applications that issued as an Asserted Patent (i.e., the ’753 Patent) or as another
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`patent in the same family, as well as more generally how Google actively monitors and participates
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`in patent developments in the same field of subject matter as the Asserted Patents. The allegations
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`and facts in the Complaint—which must be taken as true on a motion dismiss—are more than
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`sufficient to state a claim for Google’s willful and indirect infringement at this early pleading stage.
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`Google does not deny that it cited and discussed and discussed at length patent applications
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`that issued as an Asserted Patent or related family members during the prosecution of Google’s
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`own patents. Instead, Google contends that the allegations and pleaded facts in Geoscope’s
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`Case 1:22-cv-01331-MSN-IDD Document 31 Filed 01/17/23 Page 6 of 25 PageID# 368
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`Complaint are somehow insufficient to state a claim that Google was aware of the scope of
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`Geoscope’s patents. In doing so, Google misconstrues both Geoscope’s allegations and the law on
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`the sufficiency of pleading willful and indirect infringement, as discussed in detail below. When
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`the totality of the facts and allegations in the Complaint are considered under the proper legal
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`framework, it is clear that Geoscope has stated claims for willful and indirect infringement.
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`Further, there is no dispute that the detailed infringement allegations in the Complaint
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`provided Google with knowledge of the Asserted Patents and the likelihood of infringement going
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`forward. Because infringement is a continuing tort, and because Google has continued in the
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`accused conduct, this is enough to state—at a minimum—a claim for post-complaint willful and
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`indirect infringement. Although Google ignores this concept entirely in its Motion, this Court has
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`recognized—as have the majority of other courts—the distinction between claims of willful and
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`indirect infringement based on pre-suit knowledge and conduct and those based on post-filing
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`knowledge and conduct. And courts have routinely denied or partially denied motions like
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`Google’s due to the sufficiency of a plaintiff’s claims for post-filing willful and indirect
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`infringement. Google’s Motion should fail in its entirety, as discussed below. But if it does not, it
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`should at least fail with respect to Google’s post-complaint infringement.
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`II.
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`FACTUAL BACKGROUND
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`On November 22, 2022, Geoscope filed the Complaint alleging that Google infringes the
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`six Asserted Patents: U.S. Patent Nos. 7,561,104 (“the ’104 Patent”), 8,400,358 (“the ’358
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`Patent”), 8,786,494 (“the ’494 Patent”), 8,406,753 (“the ’753 Patent), 9,097,784 (“the ’784
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`Patent”), and 8,320,264 (“the ’264 Patent”). The Asserted Patents claim inventions developed by
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`engineers at Andrew Corporation, a company founded in 1937 that, over the years, became a
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`leading global supplier and developer of wireless network equipment, hardware, and
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`infrastructure. D.I. 1 ¶ 31. The ’104, ’358, ’494, ’753, and ’784 Patents claim priority to U.S.
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`2
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`

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`Case 1:22-cv-01331-MSN-IDD Document 31 Filed 01/17/23 Page 7 of 25 PageID# 369
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`Provisional Patent Application No. 60/899,379, which was filed on February 5, 2007. Id. ¶¶ 12,
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`15, 18, 21, 24. The ’264 Patent claims priority to U.S. Provisional Patent Application No.
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`60/681,475, which was filed on May 17, 2005. Id. ¶ 27. In June 2007, Andrew Corporation was
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`acquired by CommScope, Inc., a network infrastructure provider, for approximately $2.6 billion.
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`Id. ¶ 32.
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`The inventions claimed in the Asserted Patents relate to the geolocation of mobile devices
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`and provide solutions to specific problems in that field. Id. ¶ 33. As explained in the Complaint,
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`using GPS alone for geolocation of mobile devices has drawbacks because GPS signals can be
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`obstructed by buildings, signs, trees, and other manmade or environmental structures. Id. ¶ 40.
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`Using network signals such as Wi-Fi, cellular, and Bluetooth signals for geolocation of mobile
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`devices can help mitigate the drawbacks of using GPS alone. Id. ¶ 41. However, using network
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`signals for geolocation of mobile devices presents its own challenges; the Complaint explains some
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`of these challenges including, for example, the difficulties in collecting accurate calibration data
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`generally needed for geolocation using network signals. Id. ¶¶ 43-46. The Complaint extensively
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`describes how the inventions of the Asserted Patents addressed these challenges to improve the
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`accuracy, speed, and efficiency of geolocation of mobile devices using network signals as well as
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`how the inventions of the Asserted Patents overcame the disadvantages of prior art geolocation
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`systems. Id. ¶¶ 47-77.
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`Additionally, the Complaint includes detailed, limitation-by-limitation explanations of
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`how Google and its geolocation service (sometimes referred to as “Google Location Services”)
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`infringe the Asserted Patents. E.g., id. ¶¶ 100-107 (explaining infringement of claim 1 of the ’104
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`Patent), ¶¶ 120-126 (same for ’358 Patent), ¶¶ 149-155 (same for ’494 Patent), ¶¶ 178-186 (same
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`for ’753 Patent), ¶¶ 199-210 (same for ’784 Patent), ¶¶ 223-231 (same for ’264 Patent).
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`3
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`

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`Importantly, as discussed in further detail below, the Complaint also includes extensive
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`allegations demonstrating that Google’s infringement has been willful and that, in addition to
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`directly infringing, Google has also induced and contributed to the direct infringement of the
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`Asserted Patents by users of Google Location Services. These allegations include specific facts
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`evidencing Google’s knowledge of the Asserted Patents and its continued, intentional infringement
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`of the Asserted Patents despite that knowledge.
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`III. LEGAL STANDARDS
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`A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) should be granted
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`only if, accepting the factual allegations in the complaint as true and viewing them in the light
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`most favorable to the plaintiff, the allegations in the complaint do not “state a claim to relief that
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`is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The requirement
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`to establish facial plausibility does not impose a probability requirement at the pleading stage.
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The question is not whether the plaintiff will
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`ultimately prevail on their claims but whether the complaint is sufficient to cross the federal court’s
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`threshold. Skinner v. Switzer, 562 U.S. 521, 530 (2011). Consequently, a complaint only needs to
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`allege “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” to
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`support the alleged claim. Twombly, 550 U.S. at 556.
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`IV. ARGUMENT
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`A.
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`Geoscope Has Sufficiently Pleaded Willful Infringement
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`Geoscope has adequately pleaded willful infringement of the Asserted Patents. To plead
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`willful infringement, a plaintiff must allege facts plausibly showing that the defendant knew of the
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`patent and knowingly or intentionally infringed the patent after acquiring that knowledge. See SRI
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`Int’l, Inc. v. Cisco Sys., Inc., 14 F.4th 1323, 1329-30 (Fed. Cir. 2021). Circumstantial evidence
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`may be used to establish a defendant’s knowledge of a patent. Bio-Rad Lab’ys, Inc. v. 10X
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`4
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`

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`Case 1:22-cv-01331-MSN-IDD Document 31 Filed 01/17/23 Page 9 of 25 PageID# 371
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`Genomics, Inc., No. 19-CV-12533-WGY, 2020 WL 2079422, at *4-5 (D. Mass. Apr. 30, 2020);
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`see also WCM Indus., Inc. v. IPS Corp., 721 F. App’x 959, 971-92 (Fed. Cir. 2018).
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`
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`Geoscope Has Adequately Alleged Google’s Knowledge of the Asserted
`Patents
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`Geoscope’s Complaint includes detailed allegations plausibly showing that Google had
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`knowledge of the Asserted Patents prior to the filing of the Complaint. For example, the Complaint
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`describes how, during prosecution of Google’s U.S. Patent No. 8,782,045 (“Google ’045 Patent”),
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`the USPTO Examiner and Google itself cited and discussed the publication of the patent
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`application that issued as the ’753 Patent—U.S. Patent Application Publication No. 2008/0188237
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`(“the ’237 Application”):
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`On information and belief, Google has had actual knowledge of the
`’753 Patent since prior to the filing of this Complaint. For example,
`U.S. Patent Application Publication No. 2008/0188237 (“the ’237
`Application”), the publication of the application that issued as the
`’753 Patent, was cited as prior art by a USPTO Examiner during
`prosecution of Google’s U.S. Patent No. 8,782,045. The Examiner
`cited the ’237 Application in multiple rejections during prosecution
`of Google’s U.S. Patent No. 8,782,045, including rejections dated
`September 14, 2012, April 11, 2013, and August 16, 2013. Google
`referred to the ’237 Application in its December 7, 2012, June 25,
`2013, and November 14, 2013 responses to the Examiner’s
`rejections. Additionally, during prosecution of its U.S. Patent No.
`8,782,045, Google discussed the ’237 Application with the
`Examiner during Applicant-initiated interviews on May 21, 2013
`and November 6, 2013. The rejections on April 11, 2013 and
`August 16, 2013, and Google’s responses to these rejections as well
`as the interviews initiated by Google, occurred after the ’753
`Patent’s issuance on March 26, 2013.
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`D.I. 1 ¶ 88 (emphasis added). Indeed, Google discussed the ’237 Application at length during
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`prosecution of the Google ’045 Patent, including multiple analyses of the ’237 Application
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`(sometimes referred to as “Alles” or “Alles et al.”) and telephonic interviews with the Examiner
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`that focused on the ’237 Application. Ex. 1 at 2-5, 9, 12-14 (excerpts of the prosecution history of
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`5
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`

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`Case 1:22-cv-01331-MSN-IDD Document 31 Filed 01/17/23 Page 10 of 25 PageID# 372
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`the Google ’045 Patent showing Google’s substantive discussion of the ’237 Application).1
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`Importantly, much of this discussion occurred after the ’753 Patent had already issued with the
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`same claims found in the ’237 Application (D.I. 1 ¶ 88), suggesting that Google—in the process
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`of discussing the ‘237 Application with the Examiner—would have been aware of developments
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`that affected the ‘237 Application.
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`
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`These alleged facts are sufficient to support Geoscope’s claims of willful infringement
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`because knowledge of a patent application—which may be based on a defendant’s prosecution
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`activities—plausibly shows knowledge of a patent under similar circumstances. See WCM Indus.,
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`721 F. App’x at 970 n.4 (Fed. Cir. 2018) (distinguishing earlier cases finding knowledge of a
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`pending patent application insufficient because “patent applications and realtime prosecution
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`activity are published” and “[i]t is no longer the case that all [p]atent applications are secret”)
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`(internal quotations omitted); Blitzsafe Texas, LLC v. Volkswagen Grp. of Am., Inc., No. 2:15-cv-
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`1274-JRG-RSP, 2016 WL 4778699, at *6 (E.D. Tex. Aug. 19, 2016), report and recommendation
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`adopted, 2016 WL 4771291 (Sept. 13, 2016) (“[I]f an accused infringer receives notice of a patent
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`application for which a notice of allowance has been issued, the accused infringer may well be
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`found to have knowledge of the claims when they issue.”).
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`Google’s criticism that the allegations in the Complaint are directed to Google’s knowledge
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`of patent applications rather than issued patents (D.I. 29 at 8-9; see also id. at 1) misdirects the
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`Court and misconstrues both the law and Geoscope’s allegations. The Complaint alleges that
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`Google had pre-suit knowledge of the Asserted Patents not just because of Google’s undisputed
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`1 Although a court may not ordinarily consider extraneous documents when ruling on a motion
`made under Fed. R. Civ. P. 12(b)(6), there is an exception for documents that are “integral to and
`explicitly relied on in the complaint.” CBX Techs., Inc. v. GCC Techs., LLC, 457 Fed. App’x 299,
`301 (4th Cir. 2011) (citation and internal quotation marks omitted). Such is the case for the
`applications at issue.
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`6
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`

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`Case 1:22-cv-01331-MSN-IDD Document 31 Filed 01/17/23 Page 11 of 25 PageID# 373
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`knowledge of patent applications that issued as an Asserted Patent, but also because of the timing
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`of that knowledge. Geoscope alleged facts demonstrating that Google cited these patent
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`applications during prosecution of its own patents after these applications had already issued as
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`patents. D.I. 1 ¶ 88 (“The rejections on April 11, 2013 and August 16, 2013, and Google’s
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`responses to these rejections as well as the interviews initiated by Google, occurred after the ’753
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`Patent’s issuance on March 26, 2013.”); see also id. ¶¶ 89-91. And although Google obfuscates
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`this point with passive language (see, e.g., D.I. 29 at 8 (“… the ’237 application (which later issued
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`as the ’753 patent) was cited during Google’s unrelated prosecution activities”), the Complaint
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`alleges that Google itself was actively citing and substantively discussing these applications—
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`which had already issued as patents—during prosecution of its own patents. D.I. 1 ¶¶ 88-91; see
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`also Ex. 1 at 2-5, 9, 12-14 (excerpts of the prosecution history of the Google ’045 Patent showing
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`Google’s substantive discussion of the ’237 Application, including after the ’753 Patent issued).
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`Even Virginia Innovation, which Google relies on (D.I. 29 at 7-8), undermines Google’s
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`argument. In Virginia Innovation, the court stated “it is insufficient to allege knowledge of a patent
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`application without further alleging knowledge of the patent” but then found that allegations of the
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`defendant’s knowledge of a patent application (“Wang”) sufficed to create a plausible inference
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`that the defendant knew of the patent issuing. Virginia Innovation Scis., Inc. v. Samsung Elecs.
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`Co., 983 F. Supp. 2d 700, 708-09 (E.D. Va. 2013). This was because the defendant had cited and
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`discussed Wang during prosecution of its own patent application and Wang issued as a patent
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`while prosecution of the defendant’s application was still pending. Id. The court further noted that
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`the defendant abandoned its patent application shortly after Wang issued as a patent. Id. at 709.
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`The same circumstances are present here—the published patent applications described in the
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`Complaint were cited and discussed by Google itself during its prosecution activities, including
`
`7
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`

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`Case 1:22-cv-01331-MSN-IDD Document 31 Filed 01/17/23 Page 12 of 25 PageID# 374
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`after those applications issued as an Asserted Patent or another patent in the same family. D.I. 1
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`¶¶ 88-92.
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`The Complaint also describes Google’s citation to multiple patent applications in the same
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`family as the Asserted Patents during the prosecution of Google’s own patents. D.I. ¶¶ 90-92.
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`Additionally, the Complaint alleges that Google was developing technology and filing for patents
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`in the same fields as the Asserted Patents and, thus, “routinely monitored patents, patent
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`applications, and non-patent literature related to those fields,” making it plausible that Google had
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`knowledge of or should have had knowledge of the Asserted Patents. Id. ¶¶ 93-96. Even if these
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`allegations, or the above-discussed allegation that Google was aware of and discussing with the
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`USPTO applications that had already issued as patents, are insufficient standing alone, when
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`considered in combination—as they must be—they are sufficient to plausibly allege that Google
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`had or should have had pre-suit knowledge of the Asserted Patents. See SoftView LLC v. Apple
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`Inc., Civ. No. 10-389-LPS, 2012 WL 3061027, at *5-6 (D. Del. July 26, 2012) (noting that “none
`
`of the allegations standing alone adequately alleges that [the defendant] was aware of the patents-
`
`in-suit prior to the initiation of this litigation,” but “[t]aken in combination, the Court concludes
`
`that [the plaintiff] has alleged a plausible basis from which one might reasonably infer that [the
`
`defendant] had knowledge of the patent-in-suit”); Soverain IP, LLC v. Microsoft Corp., No. 2:17-
`
`CV-00204-RWS-RSP, 2018 WL 1465792, at *2 (E.D. Tex. Mar. 26, 2018) (denying motion to
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`dismiss willful infringement claims based on plaintiff’s allegations “[c]onsidered together”).
`
`Google’s contention that knowledge of a related patent or patent application cannot create
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`a plausible inference of knowledge of an asserted patent also lacks support in law. D.I. 29 at 7-8.
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`Courts have recognized that knowledge of related patents and applications can support an inference
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`that a defendant knew of an asserted patent under certain circumstances. See Elm 3DS Innovations,
`
`8
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`

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`Case 1:22-cv-01331-MSN-IDD Document 31 Filed 01/17/23 Page 13 of 25 PageID# 375
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`LLC v. Samsung Elecs. Co., No. 14-1430-LPS-CJB, 2015 WL 5725768, at *3 (D. Del. Sept. 29,
`
`2015), report and recommendation adopted, 2016 WL 1274812 (Mar. 31, 2016) (“Defendants’
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`knowledge of patents related to the [asserted] patent [and] the [asserted] patent’s ubiquity in
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`Defendants’ industry … may not make pre-suit knowledge probable [b]ut considered as a whole,
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`they render it at least plausible that Defendants were aware of the [asserted] patent and its claims
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`prior to suit.”); see also Kewazinga Corp. v. Microsoft Corp., 558 F. Supp. 3d 90, 119 (S.D.N.Y.
`
`2021) (“[A] reasonable factfinder could infer that [the defendant] was aware of the [asserted]
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`patent based on its actual knowledge of patents in the same family.”).
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`Here, as alleged in the Complaint, Google is a large, sophisticated technology company
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`with extensive patent prosecution and patent monitoring activities (D.I. 1 ¶¶ 92-96) and it
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`repeatedly cited, analyzed, and discussed patent applications in the same family as the Asserted
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`Patents.2 Google oversimplifies Geoscope’s allegations, contending that finding Geoscope’s
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`claims plausible “would deem every large company to have knowledge of every patent that may
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`relate in any way whatsoever to its business.” D.I. 29 at 9. But it is undisputed that Google was
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`specifically aware of the patent family to which five of the Asserted Patents belong and that Google
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`had direct knowledge of the ’237 Application, a publication of the application that had already
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`issued as the asserted ’753 Patent. D.I. 1 ¶¶ 88-91. And three more of the Asserted Patents (the
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`’104, ’358, and ’264 Patents) had already issued at the time Google was actively citing the ’237
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`Application and related patent applications during prosecution of its own patents. Compare D.I. 1
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`¶¶ 12, 15, 18, 21, 24, 27 (identifying the issuance dates of the Asserted Patents) with id. ¶¶ 88-91.
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`2 The ’264 Patent is not in the same family as the other Asserted Patents but it relates to the same
`field of subject matter, has a common named inventor with the Asserted Patents, and was filed by
`and originally assigned to the same entity as the Asserted Patents. See D.I. 1-6.
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`9
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`Case 1:22-cv-01331-MSN-IDD Document 31 Filed 01/17/23 Page 14 of 25 PageID# 376
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`Additionally, the ’494 Patent had been filed and its prosecution was ongoing at the time of
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`Google’s citations. D.I. 1-3 at 2 (showing the ’494 Patent was filed on February 20, 2013).
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`Thus, Google’s reliance on Virginia Innovation and Biedermann Techs. GmbH & Co. KG
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`v. K2M, Inc., 528 F. Supp. 3d 407, 427 (E.D. Va. 2021) is misplaced. See D.I. 29 at 7-9. Geoscope’s
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`allegations do not require or impose on Google “an affirmative duty to continue to monitor the
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`applications related to the [one of the asserted patents]” because nearly all of the Asserted Patents
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`were issued or pending prosecution at the time Google was actively engaging with Geoscope’s
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`patent applications during Google’s own prosecution activities. Virginia Innovation, 983 F. Supp.
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`2d 700, 709-710. Moreover, Geoscope has not merely made a “competitor in the field” argument,
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`as was rejected in Biedermann, but rather Geoscope has pleaded facts showing Google’s actual,
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`substantive knowledge of Geoscope’s patents and applications through Google’s own extensive
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`patent prosecution activities. Biedermann, 528 F. Supp. 3d 407, 427.
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`In short, Google assesses each of Geoscope’s allegations regarding Google’s knowledge
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`of the Asserted Patents individually and incorrectly concludes that they are insufficient to state a
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`claim for willful infringement. That is not the correct inquiry. Geoscope’s allegations must be
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`considered as a combination. SoftView, 2012 WL 3061027, at *5-6. When considered together, the
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`allegations do more than “make it conceivable that [an accused infringer] might have learned
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`about” the Asserted Patents. D.I. 29 at 6, 9 (quoting Rembrandt Soc. Media, LP v. Facebook, Inc.,
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`950 F. Supp. 2d 876, 884 (E.D. Va. 2013)). They create a plausible inference that Google had
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`knowledge of the Asserted Patents, supporting Geoscope’s claims of willful infringement.
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`
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`Geoscope Has Adequately Alleged Google’s “Deliberate or Intentional
`Infringement”
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`Geoscope has also alleged facts plausibly showing that Google has deliberately or
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`intentionally infringed the Asserted Patents. As an initial matter, Google appears to recognize that
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`Case 1:22-cv-01331-MSN-IDD Document 31 Filed 01/17/23 Page 15 of 25 PageID# 377
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`Geoscope only needed to allege facts creating a plausible inference of “deliberate or intentional
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`infringement” but suggests that Geoscope was required to plead facts demonstrating “egregious
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`misconduct.” See D.I. 29 at 9-10. To the extent Google contends that Geoscope was required to
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`plead “egregious misconduct” to state a claim for willful infringement, Google misstates the law—
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`“‘willfulness’ requires a jury to find no more than deliberate or intentional infringement,’” whereas
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`“considerations of egregious behavior” are relevant to the separate question of enhanced damages
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`that is reserved for the Court after an affirmative finding of willfulness has been made. Eko Brands,
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`LLC v. Adrian Rivera Maynez Enters., Inc., 946 F.3d 1367, 1378 (Fed. Cir. 2020); see also SRI,
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`14 F.4th at 1329-30 (affirming same). Indeed, contrary to Google’s contention, “there is no
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`requirement that the plaintiff plead additional facts, beyond knowledge of the patent or patents, in
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`order for a claim of willful infringement to survive a motion to dismiss.” IOENGINE, LLC v.
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`PayPal Holdings, Inc., No. CV 18-452-WCB, 2019 WL 330515, at *7 (D. Del. Jan. 25, 2019)
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`(Federal Circuit Judge Bryson, sitting by designation).
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`Here, in conjunction with the allegations regarding Google’s knowledge of the Asserted
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`Patents—which date back to 2013—Geoscope’s allegations that Google has infringed and
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`continues to infringe all of the Asserted Patents (see, e.g., D.I. 1 ¶ 30) suffice to support a plausible
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`inference of Google’s intentional infringement. See Bio-Rad, 2020 WL 2079422, at *6 (finding
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`allegations of defendant’s knowledge of the patents and continued sales of the accused product
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`sufficient). It is certainly plausible that Google, as a sophisticated technology company with
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`knowledge of the Asserted Patents, was aware of its infringement when developing a product and
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`filing patents in the same field as the Asserted Patents.
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`Bushnell and Hypermedia Navigation, cited by Google, are inapposite. D.I. 29 at 10-11. In
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`both cases, the courts required the plaintiff to allege facts raising a plausible inference of egregious
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`11
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