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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`GEOSCOPE TECHNOLOGIES PTE. LTD.,
`
`
`
`Plaintiff,
`
`Case No. 1:22-cv-01331 (MSN-IDD)
`
`
`
`Defendant,
`
`JURY TRIAL DEMANDED
`
`
`
`v.
`
`
`GOOGLE LLC,
`
`
`
`
`REPLY IN SUPPORT OF DEFENDANT GOOGLE LLC’S
`PARTIAL MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PURSUANT
`TO FED. R. CIV. P. 12(b)(6)
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`
`
`Case 1:22-cv-01331-MSN-IDD Document 37 Filed 01/23/23 Page 2 of 22 PageID# 413
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`
`
`I.
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`II.
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`TABLE OF CONTENTS
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`INTRODUCTION ...............................................................................................................1
`
`ARGUMENT .......................................................................................................................2
`
`A.
`
`Geoscope Fails to State a Plausible Claim for Willful Infringement .......................2
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`1.
`
`2.
`
`Geoscope’s Opposition Does Not Identify Factual Allegations to
`Support an Inference of Knowledge Required for Willfulness ...................3
`
`Geoscope’s Opposition Does Not Identify Factual Allegations to
`Plausibly Infer “Deliberate or Intentional Infringement” Required
`for Willfulness .............................................................................................7
`
`B.
`
`Geoscope Fails to State a Claim for Indirect Infringement .....................................9
`
`1.
`
`2.
`
`Geoscope Does Not Plead Facts to Support a Reasonable Inference
`of Specific Intent Required for Induced Infringement ...............................10
`
`Geoscope Does Not Plausibly Allege That the Accused
`Instrumentality Lacks Substantial Non-Infringing Uses ............................12
`
`C.
`
`Geoscope’s Allegations of Post-Complaint Willfulness and Indirect
`Infringement Should be Dismissed ........................................................................14
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`III.
`
`CONCLUSION ..................................................................................................................15
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`Case 1:22-cv-01331-MSN-IDD Document 37 Filed 01/23/23 Page 3 of 22 PageID# 414
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`
`
`TABLE OF AUTHORITIES
`CASES
`
`Addiction & Detoxification Inst. L.L.C. v. Carpenter
`620 F. App’x 934 (Fed. Cir. 2015) ..........................................................................................12
`
`Adidas Am., Inc. v. Skechers USA, Inc.
`No. 3:16-cv-1400-SI, 2017 WL 2543811 (D. Or. June 12, 2017) ...............................1, 3, 5, 15
`
`Artrip v. Ball Corp.
`735 F. App’x 708 (Fed. Cir. 2018) ....................................................................................12, 13
`
`Ashcroft v. Iqbal
`556 U.S. 662 (2009) .......................................................................................................2, 12, 13
`
`Audio MPEG, Inc. v. Societa Italiana Per Lo Sviluppo Dell’ Elettronica Spa
`No. 2:15-cv-00073-HCM-RJK, 2016 WL 7010947 (E.D. Va. July 1, 2016) ..........................11
`
`Bayer Healthcare LLC v. Baxalta Inc.
`989 F.3d 964 (Fed. Cir. 2021)....................................................................................................9
`
`Biedermann Techs. GmbH & Co. KG v. K2M, Inc.
`528 F. Supp. 3d 407 (E.D. Va. 2021) ..................................................................................7, 15
`
`BillJCo, LLC v. Apple Inc.
`583 F. Supp. 3d 769 (W.D. Tex. 2022)..................................................................................6, 9
`
`Cellcontrol, Inc. v. Mill Mountain Cap., LLC
`No. 7:21-cv-246, 2022 WL 598752 (W.D. Va. Feb. 28, 2022) .....................................8, 10, 11
`
`Dali Wireless, Inc. v. Corning Optical Commc’ns LLC
`No. 20-cv-06469-EMC, 2022 WL 16701926 (N.D. Cal. Nov. 3, 2022) ...................................9
`
`Eko Brands, LLC v. Adrian Rivera Maynez Enters., Inc.
`946 F.3d 1367 (Fed. Cir. 2020)..............................................................................................8, 9
`
`Elm 3DS Innovations, LLC v. Samsung Elecs. Co.
`No. 14-1430-LPS-CJB, 2015 WL 5725768 (D. Del. Sept. 29, 2015) ...................................6, 7
`
`Flypsi, Inc. v. Google LLC
`No. 6:22-cv-0031-ADA, 2022 WL 3593053 (W.D. Tex. Aug. 22, 2022) ............................3, 4
`
`Fortinet, Inc. v. Forescout Techs., Inc.
`543 F. Supp. 3d 814 (N.D. Cal. 2021) .......................................................................................8
`
`Halo Electronics, Inc. v. Pulse Electronics, Inc.
`579 U.S. 93 (2016) .....................................................................................................................8
`
`
`
`
`
`
`
`Case 1:22-cv-01331-MSN-IDD Document 37 Filed 01/23/23 Page 4 of 22 PageID# 415
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`
`
`In re Heck
`699 F.2d 1331 (Fed. Cir. 1983)..................................................................................................4
`
`Kaufman v. Microsoft Corp.
`No. 16 CIV. 2880 (AKH), 2020 WL 364136 (S.D.N.Y. Jan. 22, 2020) ...............................3, 4
`
`Kewazinga Corp. v. Microsoft Corp.
`558 F. Supp. 3d 90 (S.D.N.Y. 2021)......................................................................................6, 7
`
`Longhorn Vaccines & Diagnostics, LLC v. Spectrum Sols. LLC
`564 F. Supp. 3d 1126 (D. Utah 2021) ........................................................................................9
`
`Macronix Int’l Co. v. Spansion Inc.
`4 F. Supp. 3d 797 (E.D. Va. 2014) ..........................................................................................12
`
`McZeal v. Sprint Nextel Corp.
`501 F.3d 1354 (Fed. Cir. 2007)..........................................................................................12, 13
`
`Mediatek, Inc. v. NXP Semiconductors N.V.
`No. CV 21-4969-GW-AFMX, 2021 WL 8875772 (C.D. Cal. Nov. 17, 2021) .........................8
`
`Mod. Font Applications LLC v. Peak Rest. Partners, LLC
`No. 2:19-cv-221 TS, 2020 WL 5370948 (D. Utah Sept. 8, 2020) .....................................10, 11
`
`NetFuel, Inc. v. Cisco Sys. Inc.
`No. 5:18-cv-02352-EJD, 2018 WL 4510737 (N.D. Cal. Sept. 18, 2018)..............................3, 4
`
`Nielsen Co. v. Comscore, Inc.
`819 F. Supp. 2d 589 (E.D. Va. 2011) ......................................................................................12
`
`Ravgen, Inc. v. Quest Diagnostics Inc.
`Ca. No. 2:21-cv-09011-RGK-GJS, 2022 WL 2047613 (C.D. Cal. Jan. 18, 2022) ..................14
`
`Rembrandt Soc. Media, LP v. Facebook, Inc.
`950 F. Supp. 2d 876 (E.D. Va. 2013) ......................................................................................14
`
`TecSec, Inc. v. Adobe Inc.
`No. 1:10-cv-115, 2019 WL 1233882 (E.D. Va. Mar. 14, 2019)..............................................15
`
`Verint Sys. Inc. v. Red Box Recorders Ltd.
`No. 14-CV-5403 (KBF), 2016 WL 7177844 (S.D.N.Y. Dec. 7, 2016) .....................................7
`
`Via Vadis, LLC v. Skype, Inc.
`No. 11-cv-507, 2012 WL 261367 (D. Del. Jan. 27, 2012) ......................................................12
`
`Virginia Innovation Scis., Inc. v. Samsung Elecs. Co.
`983 F. Supp. 2d 700 (E.D. Va. 2013) .............................................................................. passim
`
`
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`
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`Case 1:22-cv-01331-MSN-IDD Document 37 Filed 01/23/23 Page 5 of 22 PageID# 416
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`
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`WCM Indus., Inc. v. IPS Corp.
`721 F. App’x 959 (Fed. Cir. 2018) ............................................................................................4
`
`Wrinkl, Inc. v. Facebook, Inc.
`No. 20-cv-1345-RGA, 2021 WL 4477022 (D. Del. Sept. 30, 2021) .......................................14
`
`Xiamen Baby Pretty Prod. Co. v. Talbot’s Pharms. Fam. Prod., LLC
`No. 3:21-cv-00409, 2022 WL 509336 (W.D. La. Feb. 18, 2022) ...........................................15
`
`ZapFraud, Inc. v. Barracuda Networks, Inc.
`528 F. Supp. 3d 247 (D. Del. 2021) .........................................................................................14
`
`STATUTE
`
`35 U.S.C. § 284 ..............................................................................................................................14
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`Case 1:22-cv-01331-MSN-IDD Document 37 Filed 01/23/23 Page 6 of 22 PageID# 417
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`
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`I.
`
`INTRODUCTION
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`Geoscope ’s Opposition does not identify any factual allegations in its Complaint that can
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`support—under well-established law—a plausible inference that Google committed willful or
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`indirect infringement. Instead, Geoscope relies on a set of unsupported inferences that have been
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`repeatedly rejected by courts in similar cases. Dismissing these claims now would narrow the
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`issues in this case and reduce the potential for burdensome and unnecessary discovery.
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`Despite acknowledging that it must plead facts that plausibly support an inference that
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`Google had actual knowledge of the Asserted Patents, Geoscope tries to evade this requirement by
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`leaning on Google’s citations to patent applications that, with one exception, did not even issue as
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`the Asserted Patents. As discussed below, numerous courts, including in this District, have
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`expressly rejected this tactic—particularly where the patent applications were cited only in the
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`defendant’s unrelated prosecution activities.
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`Geoscope argues that the timing of the Asserted Patents’ issuance somehow supports an
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`inference of knowledge. But there is no allegation that Google knew when (or whether) the patents
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`issued, or had any reason to monitor the cited patent applications. Courts have rejected the
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`inference that defendants monitor the status of patent applications cited during prosecution, absent
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`some specific reason for doing so. See Virginia Innovation Scis., Inc. v. Samsung Elecs. Co., 983
`
`F. Supp. 2d 700, 710 (E.D. Va. 2013); Adidas Am., Inc. v. Skechers USA, Inc., No. 3:16-cv-1400-
`
`SI, 2017 WL 2543811, at *4 (D. Or. June 12, 2017) (dismissing willful infringement claim where
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`patentee did not allege that “Defendant actively monitored the progress of Plaintiffs’ patent
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`applications”). Geoscope’s complaint fails to plead knowledge of the Asserted Patents, and its
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`allegations of willfulness and indirect infringement should be dismissed on this basis. And even
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`if Geoscope had sufficiently alleged knowledge, the Court should still deny Geoscope’s allegation
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`of willfulness because Geoscope fails to plead “deliberate or intentional infringement,” which
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`1
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`Case 1:22-cv-01331-MSN-IDD Document 37 Filed 01/23/23 Page 7 of 22 PageID# 418
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`
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`requires, at a minimum, that Geoscope plead factual allegations supporting a plausible inference
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`that Google knew or should have known that it was infringing the Asserted Patents.
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`Geoscope’s Opposition also fails to identify factual allegations to support its claims of
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`indirect infringement. For induced infringement, Geoscope broadly asserts that Google markets
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`its Location Services to users, but this says nothing about whether or how Google induces users to
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`practice the specific claimed methods. And with respect to contributory infringement, Geoscope’s
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`Opposition does not identify a single factual allegation to support its allegation that Google
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`Location Services lacks non-infringing uses. Instead, Geoscope insists that pleading only the legal
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`elements of contributory infringement is sufficient. This position directly contradicts Twombly
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`and Iqbal, as well as the courts applying those decisions to indirect infringement allegations.
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`As a fallback position, Geoscope asks this Court to allow its allegations of post-complaint
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`willfulness and indirect infringement. The Court should reject this argument as well. Even if the
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`complaint itself could satisfy the knowledge requirement, a point on which courts are split,
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`Geoscope has still failed to plead the remaining elements of post-complaint willful and indirect
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`infringement. Consequentially, those claims should be dismissed in their entirety.
`
`II.
`
`ARGUMENT
`A.
`
`Geoscope Fails to State a Plausible Claim for Willful Infringement
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`Geoscope’s claim of willful infringement should be dismissed. Geoscope’s Opposition
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`does not identify factual allegations to support an inference that Google had actual knowledge of
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`the Asserted Patents. But even if Geoscope pled knowledge, its Opposition fails to identify any
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`factual allegations directed to “deliberate or intentional infringement,” as there is nothing to
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`support an inference that Google knew it was infringing the Asserted Patents.
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`2
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`Case 1:22-cv-01331-MSN-IDD Document 37 Filed 01/23/23 Page 8 of 22 PageID# 419
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`
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`1.
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`Geoscope’s Opposition Does Not Identify Factual Allegations to
`Support an Inference of Knowledge Required for Willfulness
`
`Geoscope’s Opposition does not identify any factual allegation that Google had knowledge
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`of the Asserted Patents. Instead, Geoscope’s Opposition argues the Court can infer knowledge
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`from (1) Google’s purported discussions of the ’237 application (which issued as the ’753 patent)
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`coupled with the timing of when the ’753 patent issued, (2) Google’s purported citations to related
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`patent applications, and (3) considering the cited patent applications “in combination” with generic
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`allegations about Google’s research and development in the geolocation field. None of these
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`allegations, viewed alone or in combination, can plausibly support an inference of knowledge.
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`First, with respect to the ’753 patent, Geoscope’s Opposition continues to focus on
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`Google’s purported knowledge of the patent application that issued as the ’753 patent. Dkt. No.
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`31 at 5-8 (“Opp.”). But courts have repeatedly held that it is “insufficient to allege knowledge of
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`a patent application without further alleging knowledge of the patent.” Virginia Innovation, 983
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`F. Supp. 2d at 709; Kaufman v. Microsoft Corp., No. 16 CIV. 2880 (AKH), 2020 WL 364136, at
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`*4 (S.D.N.Y. Jan. 22, 2020) (“Knowledge of patent applications, even applications for the patent
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`at issue, do not establish knowledge of the patent.”); NetFuel, Inc. v. Cisco Sys. Inc., No. 5:18-cv-
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`02352-EJD, 2018 WL 4510737, at *2 (N.D. Cal. Sept. 18, 2018) (“The general rule in this district
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`is that knowledge of a patent application alone is insufficient to meet the knowledge requirement
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`for either a willful or induced infringement claim.”); Flypsi, Inc. v. Google LLC, No. 6:22-cv-
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`0031-ADA, 2022 WL 3593053, at *5 (W.D. Tex. Aug. 22, 2022) (“[K]nowledge of patent
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`applications generally without more is insufficient to satisfy the knowledge requirement.”); Adidas
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`2017 WL 2543811, at *3 (“[I]nfringer's knowledge of the patent application cannot, standing
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`alone, constitute knowledge of the resulting, or issued, patent-in-suit.”).
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`3
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`Case 1:22-cv-01331-MSN-IDD Document 37 Filed 01/23/23 Page 9 of 22 PageID# 420
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`
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`Geoscope’s reliance on WCM Indus., Inc. v. IPS Corp., 721 F. App’x 959, 970 (Fed. Cir.
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`2018), is misplaced. Opp. at 6. There, the patentee provided evidence at trial “that [the defendant]
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`did know of [the patentee’s] patents as they issued, if not earlier.” 721 F. App’x 959, 970 (Fed.
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`Cir. 2018) (emphasis added). Given that record, the Federal Circuit rejected a per se rule that “a
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`pending patent application cannot support a finding of willfulness.” Id. at 970 n.4 (emphasis
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`added). WCM, however, does not alter the general rule that knowledge of a patent application,
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`without more, is insufficient to allege knowledge at the pleading stage.
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`This widely recognized prohibition against equating knowledge of a patent application with
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`knowledge of the subsequent issued patent makes sense, particularly in the context of patent
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`prosecution. Published patent applications ordinarily are cited during prosecution for their general
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`disclosure, not for any issued claim—indeed, a patent application has no issued claims at the time
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`of its publication. See In re Heck, 699 F.2d 1331, 1332-33 (Fed. Cir. 1983) (prior art patent
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`references are “relevant for all they contain,” not only for the claims). Hence, a patent applicant
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`ordinarily has no reason to monitor or investigate whether any given patent application cited as
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`prior art during prosecution ultimately issues as a patent. Moreover, as the Court in Virginia
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`Innovations emphasized, “[f]iling an application is no guarantee any patent will issue and a very
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`substantial percentage of applications never result in patents.” Virginia Innovation, 983 F. Supp.
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`2d at 709.
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`Because Geoscope only pleads factual allegations directed to Google’s knowledge of the
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`’237 application, its allegations fail as a matter of law. Virginia, 983 F. Supp. 2d at 709; Kaufman,
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`2020 WL 364136, at *4; NetFuel, 2018 WL 4510737, at *2; Flypsi, 2022 WL 3593053, at *5.
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`Geoscope tries to overcome this deficiency by asserting that Google repeatedly cited the ’237
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`application after it already issued as the ’753 patent. Opp. at 6-7 (alleging pre-suit knowledge
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`4
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`Case 1:22-cv-01331-MSN-IDD Document 37 Filed 01/23/23 Page 10 of 22 PageID# 421
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`
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`based on “the timing” of Google’s knowledge of the patent applications). But this allegation, if
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`taken as true, does not support the inference that Google knew about the ’753 patent. If anything,
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`the allegation that Google continued to cite the published ’237 application after it issued as the
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`’753 patent supports the inference that Google did not know the patent issued. Had Google known
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`the ’753 patent issued, it could have cited the issued patent in lieu of the published application.
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`Regardless, Geoscope makes no factual allegations to suggest that Google would have looked for
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`the ’753 patent or knew when it issued. Adidas, 2017 WL 2543811, at *4) (dismissing willful
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`infringement claim where patentee did not allege that “Defendant actively monitored the progress
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`of Plaintiffs’ patent applications, so that Defendant would have learned of their issuance when they
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`issued”).
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`Geoscope contends that Virginia Innovation “undermines Google’s argument” because the
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`“allegations of the defendant’s knowledge of a patent application (“Wang”) sufficed to create a
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`plausible inference that the defendant knew of the patent issuing.” Opp. at 7. But the facts in
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`Virginia Innovation only highlight why Geoscope’s complaint is deficient. In Virginia Innovation,
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`the defendant purportedly spent nearly five years trying to overcome multiple rejections based on
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`the Wang application, only to abruptly abandon their application shortly after Wang issued as the
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`asserted patent. 983 F. Supp. 2d at 709. The Court found this evidence of a sudden shift in the
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`defendant’s patent strategy created a plausible inference that the defendant discovered that
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`plaintiff’s patent issued. Id. That is a far cry from the allegations in Geoscope’s complaint, in
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`which Geoscope alleges only that the ’753 patent issued during prosecution of Google’s unrelated
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`patent applications, but pleads no factual allegations to support the inference that Google would
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`have known about the issuance of the ’753 patent. See Dkt. 1, ¶¶ 88-89.
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`5
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`Case 1:22-cv-01331-MSN-IDD Document 37 Filed 01/23/23 Page 11 of 22 PageID# 422
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`
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`Second, with respect to the other five Asserted Patents, Geoscope’s allegations are even
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`more plainly inadequate. Geoscope’s Opposition concedes that its Complaint alleges that Google
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`referenced “patent applications in the same family as the Asserted Patents,” but not the Asserted
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`Patents themselves. Opp. at 8 (emphasis added).1 Nevertheless, Geoscope insists that “[c]ourts
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`have recognized that knowledge of related patents and applications can support an inference that
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`a defendant knew of an asserted patent under certain circumstances.” Id. at 8-9. Geoscope’s
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`argument disregards Virginia Innovation, in which the court addressed this precise issue and
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`dismissed willfulness claims because knowledge of the asserted patent cannot be based solely on
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`the “relationship between the [cited] patent and the [asserted] patents.” 983 F. Supp. 2d at 709-
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`710; see also BillJCo, LLC v. Apple Inc., 583 F. Supp. 3d 769, 776 (W.D. Tex. 2022) (refusing to
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`find that “notice of one patent in a portfolio or large family constitutes constructive notice of every
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`patent in that portfolio or family”).
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`Unable to identify any authority from this District to support its proposition that knowledge
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`of a patent (or, in this case, application) also constitutes knowledge of related patents, Geoscope
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`relies on two cases from other jurisdictions that included specific allegations suggesting
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`knowledge that are not present here: Elm 3DS Innovations, LLC v. Samsung Elecs. Co., No. 14-
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`1430-LPS-CJB, 2015 WL 5725768 (D. Del. Sept. 29, 2015), and Kewazinga Corp. v. Microsoft Corp.,
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`558 F. Supp. 3d 90, 119 (S.D.N.Y. 2021). But those decisions only underscore the deficiency of
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`Geoscope’s allegations. In Elm 3DS Innovations, the complaint alleged the inventor presented his
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`patented technology to the defendant and subsequently sent a copy of a related patent. 2015 WL
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`1 For example, Geoscope contends that Google cited patent applications that claimed priority to
`provisional application no. 60/899,379. Dkt. 1 ¶¶ 90-92. For context, there are at least 20
`patent applications that claim priority to this same provisional application, not all of which
`issued as patents. Continuity Data for App. No. 60/899,379, USPTO,
`https://patentcenter.uspto.gov/applications/60899379/continuity (last accessed Jan. 21, 2023).
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`
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`6
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`
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`Case 1:22-cv-01331-MSN-IDD Document 37 Filed 01/23/23 Page 12 of 22 PageID# 423
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`
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`5725768, at *2-*3. And in Kewazinga, the patentee allegedly met with the defendant to discuss
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`his infringement allegations prior to filing suit. Kewazinga, 558 F. Supp. 3d at 119. The courts in
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`both cases found that such circumstances made it at least plausible for the defendant to have
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`investigated related patents. Elm 3DS, 2015 WL 5725768, at *3; Kewazinga, 558 F. Supp. 3d at
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`119. Neither case is analogous here, as Geoscope’s complaint does not allege any facts to suggest
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`that Google should have investigated the patent families of the patent applications cited during
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`prosecution. Verint Sys. Inc. v. Red Box Recorders Ltd., No. 14-CV-5403 (KBF), 2016 WL
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`7177844, at *2 (S.D.N.Y. Dec. 7, 2016) (“The law does not require an investigation; the law
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`requires actual knowledge or its equivalent.”).
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`Third, Geoscope argues that its reliance on the cited patent applications must be
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`“considered in combination” with its allegation that “Google was developing technology and filing
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`for patents in the same fields as the Asserted Patents.” Opp. at 8. But the allegation that Google
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`was “developing technology and filing for patents in the same fields” is simply another way of
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`saying that Google was a “competitor in the field,” which Geoscope concedes is insufficient. Opp.
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`at 10; Biedermann Techs. GmbH & Co. KG v. K2M, Inc., 528 F. Supp. 3d 407, 427 (E.D. Va.
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`2021). Geoscope’s complaint cannot pass the plausibility threshold simply because it tacks on
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`generic allegations that Google is a large company that conducts geolocation research. Regardless
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`of whether Geoscope’s factual allegations are viewed individually or in combination, they fail to
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`support a reasonable inference of knowledge.
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`2.
`
`Geoscope’s Opposition Does Not Identify Factual Allegations to
`Plausibly Infer “Deliberate or Intentional Infringement” Required for
`Willfulness
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`Even if Geoscope’s allegations could support an inference of knowledge, Geoscope still
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`fails to plead “deliberate or intentional infringement,” as required for willfulness. With respect to
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`this second prong, Geoscope’s Opposition does not identify any factual allegations to support an
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`
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`7
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`Case 1:22-cv-01331-MSN-IDD Document 37 Filed 01/23/23 Page 13 of 22 PageID# 424
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`
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`inference that Google’s purported infringement was deliberate or intentional, or that Google knew
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`of the alleged infringement. Opp. at 11. Instead, Geoscope argues that knowledge of the Asserted
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`Patents is sufficient at the pleadings stage. Id. Geoscope’s attempt to conflate the knowledge
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`requirement with “deliberate or intentional” conduct contravenes Federal Circuit guidance and the
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`weight of district courts’ decisions.
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`As a preliminary matter, Geoscope urges this Court to disregard Bushnell because it
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`required patentees to plead “egregious misconduct” and was decided before Eko Brands, LLC v.
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`Adrian Rivera Maynez Enters., Inc., 946 F.3d 1367, 1378 (Fed. Cir. 2020). Opp. at 11-12. To be
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`clear, Eko did not eliminate the requirement of proving “egregious conduct” for enhanced damages
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`based on willful infringement, but held only that the court, rather than the jury, decides whether
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`the infringing activity constitutes “egregious behavior.” Eko, 946 F.3d at 1378. While this District
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`has yet to determine whether the patentee is still required to plead “egregious conduct” (as opposed
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`to “deliberate or intentional infringement”) after Eko, the Western District of Virginia continues
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`to dismiss allegations of willful infringement that fail to plead egregious conduct. See Cellcontrol,
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`Inc. v. Mill Mountain Cap., LLC, No. 7:21-cv-246, 2022 WL 598752, at *5 (W.D. Va. Feb. 28,
`
`2022) (citing Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. 93, 103 (2016). Other
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`courts follow this approach as well. See, e.g., Mediatek, Inc. v. NXP Semiconductors N.V., No.
`
`CV 21-4969-GW-AFMX, 2021 WL 8875772, at *4 (C.D. Cal. Nov. 17, 2021); Fortinet, Inc. v.
`
`Forescout Techs., Inc., 543 F. Supp. 3d 814, 840 (N.D. Cal. 2021).
`
`Regardless, although the requirement of alleging egregious conduct to state a claim for
`
`willful infringement is well supported, see Cellcontrol, 2022 WL 598752, at *5; see also Halo,
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`579 U.S. at 103; this Court need not reach this legal question here: Geoscope’s complaint pleads
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`neither “egregious conduct” nor “deliberate or intentional infringement.” Simply relying on its
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`Case 1:22-cv-01331-MSN-IDD Document 37 Filed 01/23/23 Page 14 of 22 PageID# 425
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`unsupported assertion that Google had knowledge of the Asserted Patents, as Geoscope does here,
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`is insufficient under either standard. Even after Eko, the Federal Circuit maintains that
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`“[k]nowledge of the asserted patent and evidence of infringement is necessary, but not sufficient,
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`for a finding of willfulness.” Bayer Healthcare LLC v. Baxalta Inc., 989 F.3d 964, 988 (Fed. Cir.
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`2021). Thus, at the pleading stage, there must be factual allegations to show, at a minimum, both
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`the “accused infringer’s knowledge of the patents and knowledge of infringement.” Dali Wireless,
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`Inc. v. Corning Optical Commc’ns LLC, No. 20-cv-06469-EMC, 2022 WL 16701926, at *3 (N.D.
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`Cal. Nov. 3, 2022) (emphasis added); see also BillJCo, 583 F. Supp. 3d at 774 (“[P]laintiff must
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`allege facts plausibly showing that accused infringer: (1) ‘knew of the patent-in-suit; (2) after
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`acquiring that knowledge, it infringed the patent; and (3) in doing so, it knew, or should have
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`known, that its conduct amounted to infringement of the patent.’”); Longhorn Vaccines &
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`Diagnostics, LLC v. Spectrum Sols. LLC, 564 F. Supp. 3d 1126, 1147-48 (D. Utah 2021) (rejecting
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`argument that “allegations of knowledge and infringement are sufficient at the pleadings stage to
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`support an inference of willfulness” after Eko).
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`Here, there is no dispute that Geoscope does not plead factual allegations to support a
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`plausible inference that Google “knew, or should have known, that its conduct amounted to
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`infringement of the patent.” In the absence of such factual allegations, pleading mere knowledge
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`of the Asserted Patents is insufficient, and Geoscope’s allegation of willful infringement should
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`be dismissed on this independent basis.
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`B.
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`Geoscope Fails to State a Claim for Indirect Infringement
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`Like willful infringement, indirect infringement also requires Geoscope to plead
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`knowledge of the Asserted Patents, which Geoscope fails to do for the reasons discussed above.
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`But even if Geoscope’s allegations are sufficient for knowledge, Geoscope’s Opposition still fails
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`to identify sufficient factual allegations to support its claims of indirect infringement. Geoscope’s
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`Case 1:22-cv-01331-MSN-IDD Document 37 Filed 01/23/23 Page 15 of 22 PageID# 426
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`generic allegation that Google markets its Location Services does not support a plausible inference
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`that Google specifically intended to induce users to practice the particular methods claimed in the
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`Asserted Patents. Likewise, Geoscope’s argument that pleading the bare elements of contributory
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`infringement is sufficient contradicts the Federal Circuit’s guidance, and should be rejected.
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`1.
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`Geoscope Does Not Plead Facts to Support a Reasonable Inference of
`Specific Intent Required for Induced Infringement
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`In its Opposition, Geoscope argues that it has met its obligation to plead specific intent by
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`alleging that Google is engaged in “selling, marketing, advertising, promotion, support, and
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`distribution of the Accused Instrumentality” and “tout[ing] the benefits of, and encourages the use
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`of, the Accused Instrumentality by its customers and end-users.” Opp. at 10-12. This generic
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`allegation, however, is wholly detached from any claims of the Asserted Patents and cannot
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`support a plausible inference of specific intent to induce infringement.
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`Courts have dismissed claims of induced infringement based on the defendant’s marketing
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`material, where the marketing is not directed to the specifically asserted claims or methods.
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`Cellcontrol, 2022 WL 598752, at *4 (dismissing allegation of induced infringement where the
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`allegations of “specific intent to encourage direct infringement is based on generalized marketing
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`statements on the [accused infringer’s] website bearing no apparent relation to the claims in the
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`patents”); Mod. Font Applications LLC v. Peak Rest. Partners, LLC, No. 2:19-cv-221 TS, 2020
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`WL 5370948, at *3 (D. Utah Sept. 8, 2020), aff’d, No. 2020-2278, 2022 WL 726972 (Fed. Cir.
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`Mar. 10, 2022) (dismissing allegations of induced infringement based on the accused infringer’s
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`website and application, where the patentee “offers nothing to suggest that Peak intended its
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`customers to infringe; only that customers were encouraged to download the application”).
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`Like the allegations in Cellcontrol and Modern Font, Geoscope’s allegation that Google
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`promotes its Location Services generally says nothing about whether or how Google purportedly
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`Case 1:22-cv-01331-MSN-IDD Document 37 Filed 01/23/23 Page 16 of 22 PageID# 427
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`induces users to infringe the methods claimed in the Asserted Patents. For example, Geoscope’s
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`Complaint alleges the inventions in the ’104, ’358 and ’494 patents recite a geolocation method
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`that requires “modifying the observed data, including in specific manners, and the dependent
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`claims of the patents cover further specific refinements to the claimed inventions, including
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`additional limitations on how the calibration data is collected and how the observed data is
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`modified.” Dkt. 1, ¶ 54. The complaint is entirely silent on how Google purportedly induce users
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`to modify data “in specific manners” or make the “specific refinements” of the claim. At most,
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`the complaint simply asserts that Google promoted its Google Location Services, which does not
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`support a plausible inference that Google taught users to practice any claimed method.
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`The court’s decision in Audio MPEG, Inc. v. Societa Italiana Per Lo Sviluppo Dell’
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`Elettronica Spa does not support Geoscope’s position. No. 2:15-cv-00073-HCM-RJK, 2016 WL
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`7010947, at *9 (E.D. Va. July 1, 2016). Audio MPEG involved infringement allegations based on
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`MP3 audio technology. Id. The patentee alleged that “products capable of decoding an audio
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`signal that has been encoded in compliance with MPEG Standards (e.g., MP3 files) necessarily
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`infringe the ’829 Patent.” Id. at *2 (emphasis added). The complaint further alleged that the
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`defendant specifically promoted the infringing MP3 audio technology by touting the “MP3
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`capabilities” of computers sold on their websites. Id. at *9. Unlike in Audio MPEG, Geoscope
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`has not alleged that Google encouraged users to perform any specific functions that infringe the
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`Asserted Claims. Instead, Geoscope simply alleges that Google promotes Location Ser