Case 1:22-cv-01331-MSN-IDD Document 44 Filed 02/15/23 Page 1 of 14 PageID# 441
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`IN THE UNITED STATES DISTRICT COURT FOR THE
`EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
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`
`
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` No: 1:22-cv-01331-MSN-IDD
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`GEOSCOPE TECHNOLOGIES PTE. LTD,
` Plaintiff,
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` v.
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`GOOGLE LLC,
` Defendant.
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`MEMORANDUM OPINION AND ORDER
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`This matter comes before the Court on Defendant Google LLC’s Partial Motion to Dismiss
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`the Complaint (Dkt. No. 28). Upon consideration of the motion, the memorandum in support
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`thereof, the opposition, the reply thereto, the arguments of counsel at the hearing held on January
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`27, 2023, and for the reasons set forth below, the motion is GRANTED IN PART and DENIED
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`IN PART.
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`I.
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` CLAIMS AND PROCEDURAL HISTORY
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`On November 22, 2022, Geoscope Technologies Pte. Ltd. (“Geoscope”) filed a complaint
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`against Google LLC (“Google”) alleging infringement of six patents related to inventions
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`improving the accuracy, efficiency, and speed of the geolocation of mobile devices.1 See generally
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`Compl. (Dkt. No. 1). For each of the Asserted Patents, Geoscope alleges (1) direct infringement,
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`(2) willful infringement, and (3) indirect infringement—both induced and contributory. Id. ¶¶ 98–
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`241.
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`On January 3, 2023, Google filed a partial motion to dismiss the complaint. Partial Mot. to
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`Dismiss Compl. (“Mot.”) (Dkt. No. 28); Mem. of Law in Supp. of Partial Mot. to Dismiss (“Def.
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`Mem.”) (Dkt. No. 29). Google moves to dismiss the claims of willful and indirect infringement
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`1
`The six patents are: U.S. Patent Nos. 7,561,104 (“the ’104 Patent”); 8,400,358 (“the ’358 Patent”); 8,786,494
`(“the ’494 Patent”); 8,406,753 (“the ’753 Patent); 9,097,784 (“the ’784 Patent”); and 8,320,264 (“the ’264 Patent”). n
`collectively refer to these six patents as the “Asserted Patents.”
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`

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`Case 1:22-cv-01331-MSN-IDD Document 44 Filed 02/15/23 Page 2 of 14 PageID# 442
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`for failure to state a claim under Rule 12(b)(6).2 Geoscope filed its opposition on January 17, 2023,
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`Pl. Opp. to Partial Mot. to Dismiss (“Opp.”) (Dkt. No. 31), and Google filed its reply on January
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`23, 2023, Reply in Supp. of Partial Mot. to Dismiss (“Reply”) (Dkt. No. 37). The Court heard oral
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`argument on the motion on January 27, 2023. (Dkt. No. 43).
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`The six Asserted Patents purport to “claim novel inventions that . . . improve the accuracy,
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`speed, and efficiency of geolocation of mobile devices using network signals.” Compl. ¶ 47.
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`Geoscope alleges that Google’s “Google Location Services,” which is a service that can geolocate
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`customers’ and end-users’ mobile devices to enable location-based services, infringes the Asserted
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`Patents. Id. ¶¶ 79–81. Specifically, for each of the Asserted Patents, Geoscope alleges that Google
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`has infringed and continues to directly and/or indirectly infringe one or more claims of the patents.
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`Id. ¶¶ 99, 119, 148, 177, 198, 222. With respect to indirect infringement, Geoscope alleges that
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`Google both induced others to infringe the Asserted Patents and contributed to others’
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`infringement of the Asserted Patents. Id. ¶¶ 86, 113, 115, 142, 144, 171, 173, 192, 194, 216, 218,
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`237, 239.
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`II.
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`LEGAL STANDARD
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`Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) when a complaint
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`fails to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
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`on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
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`550 U.S. 544, 570 (2007)). “ Factual allegations must be enough to raise a right to relief above the
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`speculative level.” Twombly, 550 U.S. at 555. A court must “construe facts in the light most
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`favorable to the plaintiff and draw all reasonable inferences in [its] favor” but “need not accept as
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`true unwarranted inferences, unreasonable conclusions, or arguments.” United States ex rel.
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`Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014) (cleaned up).
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`Google does not move for dismissal of the direct infringement claims.
`2
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`2
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`III. ANALYSIS
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`A. WILLFUL INFRINGEMENT
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`Google moves to dismiss the claims of willful infringement on grounds that Geoscope fails
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`to allege facts to plausibly infer (1) that Google had knowledge of the Asserted Patents or (2) that
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`Google engaged in deliberate or intentional infringement. Def. Mem. at 6–11. Geoscope does not
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`allege that Google ever reviewed, cited, or discussed any of the Asserted Patents directly. Rather,
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`Geoscope asks this Court to infer Google’s knowledge of the Asserted Patents based on citations
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`to, discussions of, or references to a patent application of one of the Asserted Patents (the’ 753
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`Patent), as well as applications of related patents, during Google’s own patent prosecution
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`activities. Compl. ¶¶ 88–96.
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`This Court finds that Geoscope has adequately pled pre-complaint willful infringement
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`claims with respect to four of the six Asserted Patents—the ’104, ’358, ’264, and ’753 Patents.
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`Regarding the remaining two patents—the ’494 and ’784 Patents—the Court finds that Geoscope
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`has failed to allege facts sufficient to plausibly infer Google had pre-complaint knowledge of either
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`patent.
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`1.
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`THE ’753 PATENT
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`With respect to the’ 753 Patent, Geoscope alleges that Google and the United States Patent
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`& Trademark Office (“USPTO”) examiner cited to, referenced, and discussed U.S. Patent
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`Application Publication No. 2008/0188237 (“the ’237 Application”)—the application resulting in
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`the ’753 Patent—during prosecution of Google’s own patents. Compl. ¶¶ 88–89. Importantly,
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`several of these instances occurred after the’753 Patent issued on March 26, 2013. See id. ¶¶ 26, 88–
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`89. For instance, Geoscope alleges that the USPTO examiner “cited the ’237 Application in
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`multiple rejections during prosecution of Google’s U.S. Patent No. 8,782,045, including rejections
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`dated . . . April 11, 2013[] and August 16, 2013” and that “Google discussed the ’237 Application
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`3
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`with the Examiner during Applicant-initiated interviews on May 21, 2013 and November 6, 2013.”
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`Id. ¶ 88.
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`Google argues that it is insufficient for Geoscope to rely on allegations that Google had
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`knowledge of the patent application rather than the patent itself. Google relies primarily upon
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`Virginia Innovation Sciences, Inc. v. Samsung Electronics Co., Ltd., 983 F. Supp. 2d 700, 708–09
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`(E.D. Va. 2013), to support its argument.3 See Def. Mem. at 8. Although the court in Virginia
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`Innovation Sciences suggested that alleging knowledge of a patent application without further
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`alleging knowledge of the patent itself might be insufficient to plead knowledge, the court
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`ultimately concluded that plaintiff’s application-only allegations were sufficient to infer
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`knowledge of the patent. 983 F. Supp. 2d at 708–09. There, the defendant cited to and discussed
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`plaintiff’s application during prosecution of its own patent application. Id. at 708. Critically,
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`plaintiff’s application issued as a patent while defendant’s application was still pending. Id. The
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`court in Virginia Innovation Sciences concluded that it was therefore plausible to infer the
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`defendant “would have researched [plaintiff’s patent application], as well as other references” cited
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`in the USPTO’s rejection letter before deciding whether to proceed with its own application. Id. at
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`709.
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`That scenario is analogous to that which Geoscope alleges here. Geoscope asserts that
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`3
`The additional cases cited by Google in its Reply are distinguishable. See Reply at 3. Kaufman v. Microsoft
`Corp., No. 16 Civ. 2880 (AKH), 2020 WL 364136, at *4 (S.D.N.Y. Jan. 22, 2020), concerns the sufficiency of
`evidence of knowledge of patents for purposes of summary judgment rather than on a motion to dismiss, and is
`therefore of limited value here. In Adidas Am., Inc. v. Skechers USA, Inc., No. 3:16-cv-1400-SI, 2017 WL 2543811,
`at *4 (D. Or. June 12, 2017), plaintiffs’ allegations, unlike Geoscope’s here, were devoid of factual assertions from
`which the court could infer knowledge of the patents. Id. (“Plaintiffs merely allege the relevant dates of application
`and issuance and the conclusion that Defendant had the requisite knowledge. In other words, Plaintiffs plead no facts
`from which the Court may draw the reasonable inference that Defendant knew of the patents-in-suit either when they
`issued or any time before Plaintiffs filed this lawsuit.”). In NetFuel, Inc. v. Cisco Sys. Inc., No. 5:18-cv-02352-EJD,
`2018 WL 4510737, at *2–3 (N.D. Cal. Sept. 18, 2018), plaintiff made no factual allegations of defendant’s knowledge
`of patent applications after those applications issued as patents. Id. (“each of the allegations refers to instances in the
`2000s occurring before either of the [p]atents-in-[s]uit existed”). And in Flypsi, Inc. v. Google LLC, No. 6:22-cv-
`0031-ADA, 2022 WL 3593053, at *5 (W.D. Tex. Aug. 22, 2022), the court’s decision to dismiss willful conduct
`allegations was in large part because the knowledge was alleged as to a company who was not a party in that action.
`Indeed, the court emphasized that plaintiff’s allegations “tell a compelling story” and “could typify a sufficient
`inference of actual knowledge if the actual defendant was aware of the patent filings.” Id.
`4
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`Google cited to and discussed the ’237 Application during prosecution of its own patents, including
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`many times after the application had already issued as the ’753 Patent. Compl. ¶¶ 88–89. Geoscope
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`alleges, for instance, that the USPTO examiner cited the ’237 Application in multiple rejections of
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`Google’s own patent application after the ’753 Patent issued, and that Google and the USPTO
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`specifically discussed the ’237 Application during interviews that occurred after the ’753 Patent
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`issued. Id. ¶ 88. Under these circumstances, it is plausible to infer that Google would have
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`researched the application cited in the USPTO’s rejection letters and discovered that it had already
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`issued as the ’753 Patent. This Court therefore finds that Geoscope has adequately pled facts from
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`which the Court can plausibly infer Google’s knowledge of the ’753 Patent prior to the initiation
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`of this litigation.
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`Google argues that, alternatively, the willful infringement claims should be dismissed on
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`grounds that Geoscope failed adequately to plead that Google engaged in deliberate or intentional
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`infringement of the Asserted Patents.4 A defendant’s continuation of allegedly infringing activity
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`after acquiring knowledge that such activity infringes the patent-in-suit is sufficient to plausibly
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`allege deliberate or intentional infringement. See, e.g., Berall v. Pentax of Am., Inc., No. 10-CV-
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`5777, 2021 WL 3934200, at *9–10 (S.D.N.Y. Sept. 2, 2021) (holding deliberate infringement
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`adequately pled by alleging that defendant continued to manufacture the accused product despite
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`being aware of the patent and defendant’s alleged infringement); APS Tech., Inc. v. Vertex
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`4
`This Court declines to impose a requirement that Geoscope plead facts to support an inference of egregious
`conduct at the motion to dismiss stage. In Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. 93, 103 (2016),
`the U.S. Supreme Court held that enhanced damages for willful infringement “are not to be meted out in a typical
`infringement case, but are instead designed as a ‘punitive’ or ‘vindictive’ sanction for egregious infringement
`behavior.” Although some courts have interpreted this language as requiring plaintiffs to plead egregious conduct, the
`Federal Circuit has recently clarified that “[t]he question of enhanced damages is addressed by the court once an
`affirmative finding of willfulness has been made” and that “[i]t is at this second stage at which the considerations of
`egregious behavior and punishment are relevant.” Eko Brands, LLC v. Adrian Rivera Maynez Enters., Inc., 946 F.3d
`1367, 1378 (Fed. Cir. 2020). With the Federal Circuit expressly rejecting the notion that egregious behavior is a proper
`consideration for an affirmative finding of willfulness, it logically follows that a plaintiff need not plead egregious
`behavior to sustain a claim for willful infringement at the 12(b)(6) stage. While Google cites decisions continuing to
`require plaintiffs to plead egregious conduct, none of these decisions expressly address the relevant language from
`Eko, and this Court therefore does not find the cases cited by Google to be persuasive. See Reply at 8.
`5
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`Downhole, Inc., C.A. No. 19-1166 (MN), 2020 WL 4346700, at *8 (D. Del. July 29, 2020)
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`(“Plaintiff has plausibly alleged that Defendants continued their purported infringement after
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`receiving a letter from Plaintiff outlining how Defendants infringed the [patent-in-suit], and a
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`plausible inference from the continued activity is that it was intentional or deliberate”); Bio-Rad
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`Labs., Inc. v. 10X Genomics, Inc., No. 19-CV-12533-WGY, 2020 WL 2079422, at *6 (D. Mass.
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`Apr. 30, 2020) (finding allegations of knowledge of patents-in-suit combined with allegation of
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`continued sale of infringing materials sufficient to state a claim of willful infringement). Because
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`Geoscope has adequately pled pre-complaint knowledge of the ’753 Patent and additionally alleges
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`that Google has continued to infringe the ’753 Patent (e.g., Compl. ¶ 177), since acquiring knowledge
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`of the patent, this Court finds that Geoscope has adequately pled facts to plausibly infer Google’s
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`intentional infringement of the ’753 Patent.
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`1.
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`THE ’104, ’358, ’264, ’494, ’784 PATENTS
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`With respect to the remaining five Asserted Patents—the ’104, ’358, ’494, ’784, and ’264
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`Patents—Geoscope makes the additional allegations that the patent applications for U.S. Patent
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`Nos. 8,311,018 (“the ’018 Patent”) and 8,090,384 (“the ’384 Patent”), patents within the same
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`family as several of the Asserted Patents, were cited to or referenced during the prosecution of
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`Google’s patents.5 Compl. ¶¶ 90–91. Combined with the allegations regarding the ’237
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`Application discussed above (see id. ¶¶ 88–89), Geoscope alleges that Google therefore “had
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`knowledge of or should have had knowledge of the ’104, ’358, ’494, ’784, and ’264 Patents, at
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`least because they relate to the same field of subject matter as the ’753, ’018, and ’384 patents.”
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`Id. ¶ 92. This Court finds that Google has adequately pled pre-complaint knowledge and intentional
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`infringement of the ’104, ’358, and ’264 Patents but has failed to adequately plead pre-complaint
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`knowledge of the ’494 and ’784 Patents.
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`5
`The ’753, ’018, and ’384 Patents, and the ’104, ’358, ’494, and ’784 Patents all claim priority to U.S.
`Provisional Patent Application No. 60/899,379 (“the ’379 Provisional”).
`6
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`The ’104, ’358, and ’264 Patents issued on July 14, 2009, March 19, 2013, and November
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`27, 2012, respectively. See Compl. ¶¶ 12, 15, 27. Geoscope alleges that Google discussed,
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`referenced, or cited to related patent family applications in its own prosecution activities after each
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`of these three patents issued. For instance, Geoscope alleges that Google cited the application
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`resulting in the ’018 Patent in an Invention Disclosure Statement dated September 9, 2013 in the
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`prosecution of its own patent (Compl. ¶ 90); Google referred to the ’237 Application in its June 25,
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`2013 and November 14, 2013 responses to a USPTO examiner’s rejections during prosecution of
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`Google’s patent (id. ¶ 88); and Google discussed the ’237 Application during interviews with a
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`USPTO examiner on May 21, 2013 and November 6, 2013 (id.). Each of these instances referencing
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`or discussing the patent applications occurred when the applications had already issued as patents.
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`As with the ’753 Patent, it is therefore plausible that Google would have investigated the patent
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`family applications discussed, cited to, or referenced in its own prosecution activities, and thus had
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`knowledge of the three patents. See Elm 3DS Innovations, LLC v. Samsung Elecs. Co., No. 14-1430-
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`LPS-CJB, 2015 WL 5725768, at *2–3 (D. Del. Sept. 29,2015), report and recommendation adopted,
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`2016 WL 1274812 (Mar. 31, 2016) (knowledge of patents related to the patent-in-suit combined
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`with patent’s ubiquity in the industry “render it at least plausible that Defendants were aware of the
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`[patent-in-suit] and its claims prior to suit”); cf. Kewazinga Corp. v. Microsoft Corp., 558 F. Supp.
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`3d 90, 119-20 (denying defendant’s summary judgment motion where “[a] reasonable jury could
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`find that [defendant] had pre-suit knowledge of [patent-in-suit] because it knew of [two other]
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`patents, which are in the same patent family as the [patent-in-suit], as well as other patent
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`applications in the same family”). Therefore, while it is possible that Google lacked knowledge of
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`these three patents, the facts alleged at least make it more plausible that Google had knowledge of
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`the ’104, ’358, and ’264 Patents. And, for the same reasons discussed above with respect to the ’753
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`Patent (supra Section III.A.i.a), this Court finds that the additional allegations that Google continued
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`to infringe the patents make it at least plausible to infer Google’s intentional infringement of the
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`’104, ’358, and ’264 Patents. See, e.g., Compl. ¶¶ 99, 119, 222.
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`With respect to the ’494 and the ’784 Patents, however, the Court finds that Geoscope has
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`failed to adequately allege Google’s pre-complaint knowledge of those patents. Geoscope does not
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`allege that Google cited to or discussed any of the patent applications from the ’379 Provisional
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`family after either the ’494 Patent or ’784 Patent issued. Indeed, the latest Geoscope alleges that any
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`of the patent applications from the patent family was cited or referenced during Google’s own
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`prosecution activities was November 14, 2013—a date before either the’494 or ’784 Patents issued.6
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`Compl. ¶ 88. As the court explained in Virginia Innovation Sciences, there is “no affirmative duty
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`to continue to monitor any patent, that a potential infringer becomes aware of, for continuations or
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`continuations-in-part, which could perhaps, eventually, issue as patents.” 983 F. Supp. 2d at 709.
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`This Court therefore declines to infer that Google had knowledge of any patent that issued after the
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`latest date on which a reference to Geoscope’s patent family applications was made during the
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`prosecution of Google’s own patents.
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`*
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`*
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`*
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`Accordingly, the Court DENIES the motion to dismiss the claims of willful infringement of
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`the ’104, ’358, ’264, and ’753 Patents. Because Geoscope has failed to adequately plead pre-
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`complaint knowledge of the ’494 and the ’784 Patents, this Court GRANTS the motion to dismiss
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`the claims of pre-complaint willful infringement of the ’494 Patent and ’784 Patent.
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`B.
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`INDIRECT INFRINGEMENT CLAIMS
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`A party may indirectly infringe a patent either (i) by inducing direct infringement in
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`violation of 35 U.S.C. § 271(b), or (ii) by contributing to direct infringement in violation of 35
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`U.S.C. § 271(c). The U.S. Supreme Court has made clear that “§ 271(c) requires knowledge of the
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`The’494 Patent issued on July 22, 2014, and the’784 Patent issued on August 4, 2015. Compl. ¶¶ 18, 24.
`8
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`6
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`existence of the patent that is infringed” and “that the same knowledge is needed for induced
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`infringement under § 271(b).” Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 765 (2011).
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`Accordingly, because Geoscope has failed to adequately plead pre-complaint knowledge of the
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`’494 Patent and ’784 Patent, this Court finds that Geoscope has failed to state a claim for pre-
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`complaint indirect infringement (both induced and contributory infringement) with respect to these
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`two patents.
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`For the remaining four patents, the Court will address Google’s arguments that the
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`complaint lacks factual assertions to support claims of induced and contributory infringement.
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`1.
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`INDUCED INFRINGEMENT
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`To state a claim for induced infringement, “a complaint must plead facts plausibly showing
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`that the accused infringer specifically intended another party to infringe the patent and knew that
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`the other party’s acts constituted infringement.” Lifetime Indus., Inc. v. Trim-Lok, Inc., 869 F.3d
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`1372, 1379 (Fed. Cir. 2017) (cleaned up). Allegations that a defendant instructs or encourages its
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`customer’s infringement are sufficient to plead specific intent for the purposes of an induced
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`infringement claim. See, e.g., Audio MPEG, Inc. v. HP Inc., Nos. 2:15-cv-00073, 2:16-cv-00082,
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`2016 WL 7010947, at *9 (E.D. Va. July 1, 2016) (finding allegations that the defendant induced
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`infringement through “promotions on its websites and marketing materials for Defendant’s
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`infringing products and . . . capabilities” plausibly alleged induced infringement); IOENGINE,
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`LLC v. PayPal Holdings, Inc., Nos. 18-452-WCB, 18-826-WCB, 2019 WL 330515, at *4–5 (D.
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`Del. Jan. 25, 2019) (finding allegations that defendant provided directions to customers as to how
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`to implement its software, including providing kits that instruct and encourage the use of the
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`infringing products, sufficient to state a claim of induced infringement).7
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`7
`Google strains to distinguish Audio MPEG, emphasizing allegations in the complaint that the product
`necessarily infringes the patent-in-suit and that the defendant specifically promoted the infringing product on its
`website by touting the very capabilities that were alleged to have been infringed upon. See Reply at 11. But these
`distinctions were not discussed in the Audio MPEG court’s analysis of the induced infringement allegations, and the
`9
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`Here, Geoscope has alleged that Google has induced and continues to induce its users to
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`infringe the ’104, ’358, ’264, and ’753 Patents, “by activities related to selling, marketing,
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`advertising, promotion, support, and distribution of” Google Locations Services. See Compl. ¶¶
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`113, 142, 192, 237. Geoscope also alleges that “Google touts the benefits of, and encourages the
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`use of, [Google Location Services] by its customers and end-users,” providing a link to Google’s
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`policies regarding its location services. Id. Geoscope describes the specific actions Google has
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`undertaken to market and promote the use of the infringing product, and has therefore pled facts
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`plausibly showing Google knew and specifically intended to encourage infringement of the ’104,
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`’358, ’264, and ’753 Patents.
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`2.
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`CONTRIBUTORY INFRINGEMENT
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`To state a claim for contributory infringement, a plaintiff “must plausibly allege that the
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`accused infringer knew of the asserted patents . . . and must plead facts that allow an inference that
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`the components sold or offered for sale have no substantial non-infringing uses.” Artrip v. Ball
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`Corp., 735 F. App’x 708, 713 (Fed. Cir. 2018) (cleaned up).
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`This Court finds that Geoscope has plausibly alleged that Google’s Location Services are
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`“made or especially adapted” for an infringing use and that they lack any “substantial
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`noninfringing use.” See 35 U.S.C. § 271(c). Geoscope details the particular functionalities of the
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`’104, ’358, ’264, and ’753 Patents that are designed to improve the accuracy, speed, and efficiency
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`of the ability of mobile devices to geolocate themselves. See, e.g., Compl. ¶¶ 37–77. Geoscope
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`also alleges that Google has “incorporate[d] the patented technology” into a service that is designed
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`specifically to enable “customers and end-users [to] geolocate the customers’ and end-users’
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`court’s decision did not turn on the distinctions Google identifies. Google argues that Geoscope must identify in its
`complaint how Google has encouraged users to perform the specific functions that it alleges infringed the asserted
`claims. But given the highly technical nature of the improvements to mobile devices’ geolocation services claimed by
`Geoscope in the Asserted Patents, it is difficult to conceive how Geoscope could ever state a claim for induced
`infringement that meets the high pleading standard Google urges this Court to adopt.
`10
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`mobile devices,” (id. ¶ 79), and “‘aims to provide a more accurate device location and generally
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`improve location accuracy,’” (id. ¶ 80) (citing Google’s website on Google’s Location Services).
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`The Court can plausibly infer from these allegations that the accuracy of the geolocation service
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`provided by Google is a critical feature of Google’s Location Services; indeed, the allegations
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`create the plausible narrative that the purported infringing geolocation services are specifically
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`designed to optimize accuracy and is therefore “made or especially adapted” for an infringing use.
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`See 35 U.S.C. § 271(c).
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`Moreover, the features Google identifies as purportedly non-infringing uses raised in the
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`Complaint, see Reply at 13 (e.g., that Google’s Location Services may be useful for “driving
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`directions, to making sure your search results include things near you, to showing you when a
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`restaurant is typically busy,” as well as functions such as “providing a website in the right language
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`or helping to keep Google’s services secure”), are all features for which the accuracy of the
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`geolocation service provided are critically important. For instance, Google’s Location Services is
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`presumably able to provide a website in the right language by accurately identifying, through its
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`precise geolocation services, the country or region in which a customer resides. And, providing
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`customers with driving directions also depends upon accurately identifying where the customer is
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`located. While Geoscope does not specifically allege that each of these particular functionalities
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`of Google Location Services infringes the asserted claims, Geoscope has alleged that each of these
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`features is an example of “Google . . . recogniz[ing] and tout[ing] the importance and benefits of
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`location-based services,” and has also alleged, more generally, that Google’s website states that
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`Google Location Services “‘aims to provide a more accurate device location and generally improve
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`location accuracy.’” Compl. ¶ 80 (citing Google’s website). Google’s examples of non-infringing
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`uses are unconvincing.
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`11
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`

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`Case 1:22-cv-01331-MSN-IDD Document 44 Filed 02/15/23 Page 12 of 14 PageID# 452
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`Some degree of conclusory pleading is inherent where a plaintiff seeks to “prove a
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`negative”— that an accused product is incapable of a substantial non-infringing use. See Nielson
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`Co., LLC v. Comscore, Inc., 819 F. Supp. 2d 589, 601–02 (E.D. Va. 2011) (“Particularly in light
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`of the necessarily negative nature of this allegation—i.e., that the accused components have no
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`substantial noninfringing use—it is difficult to conceive how such an allegation could have been
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`more factually detailed.”). This Court therefore finds that Geoscope has plausibly alleged that
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`Google’s Location Services lack any substantial non-infringing use.
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`*
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`*
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`*
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`Accordingly, because Geoscope has failed to adequately allege pre-complaint knowledge of
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`the ’494 and ’784 Patents, the Court GRANTS the motion to dismiss the claims of pre-complaint
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`induced and contributory infringement of the ’494 Patent and ’784 Patent.
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`This Court finds that Geoscope has adequately pled claims of induced and contributory
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`infringement of the ’104, ’358, ’264, and ’753 Patents, and DENIES the motion to dismiss the
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`induced and contributory infringement claims with respect to these four patents.
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`C.
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`POST-COMPLAINT INFRINGEMENT
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`Geoscope argues that in the event the Court were to find its pre-complaint allegations
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`insufficient, it has, at a minimum, adequately pled claims of post-complaint willful and indirect
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`infringement. Opp. at 16. District courts are divided as to whether a defendant must have pre-
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`complaint knowledge to sustain a claim for willful and indirect infringement. See ZapFraud, Inc. v.
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`Barracuda Networks, Inc., 528 F. Supp. 3d 247, 249–50 & n.1 (D. Del. 2021) (collecting cases).
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`Without Federal Circuit authority on this issue, this Court is persuaded by the reasoning adopted by
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`courts finding that a complaint provides knowledge of the existence of a potentially infringing patent
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`sufficient to support post-complaint claims for indirect and willful infringement. E.g., IOENGINE,
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`2019 WL 330515, at *4–7 (“As to [plaintiff]’s post-suit activities, however, knowledge of the patents
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`
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`12
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`

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`Case 1:22-cv-01331-MSN-IDD Document 44 Filed 02/15/23 Page 13 of 14 PageID# 453
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`was clearly conveyed to [plaintiff] by the service of the complaint.”); Rembrandt Soc. Media, LP v.
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`Facebook, Inc., 950 F. Supp. 2d 876, 884 (E.D. Va. 2013) (“There is simply no substantive difference
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`between (i) a putative infringer learning of a patent from a plaintiff's letter a day, or hours or even
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`minutes before an infringement suit is filed or served, and (ii) a putative infringer learning of the
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`patent from the filing or service of a complaint.”); Smart Wearable Techs. Inc. v. Fitbit, Inc., 274
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`F. Supp. 3d 371, 375 (W.D. Va. 2017) (“the court is persuaded by the reasoning adopted by the
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`majority of district courts that have ruled that a complaint provides sufficient notice of the
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`existence of a patent to support a claim for indirect infringement occurring after the filing date”).
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`This Court therefore finds that because the Complaint satisfies the knowledge requirement,
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`and that Geoscope has additionally alleged that Google continues to infringe the ’494 and ‘’784
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`Patents, Geoscope has sufficiently stated a claim for post-filing willful and indirect infringement.
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`See, e.g., Compl. ¶ 96 (“Google continues to commit acts of infringement despite awareness of the
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`Asserted Patents and a high likelihood that its actions constitute infringement …”), ¶ 171 (“Google
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`. . . has induced and continues to induce the direct infringement of the ’494 Patent by users of the
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`Accused Instrumentality . . . .”), ¶ 173 (“Google . . . has contributed to and continues to contribute
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`to the direct infringement by users of the Accused Instrumentality of claims of the ’494 Patent
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`. . . .”), ¶ 175 (“Google’s infringement of the ’494 Patent has been and continues to be willful.”), ¶
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`216 (“Google . . . has induced and continues to induce the direct infringement of the ’784 Patent
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`by users of the Accused Instrumentality . . . .”), ¶ 218 (“Google . . . has contributed to and continues
`
`to contribute to the direct infringement by users of the Accused Instrumentality of claims of the
`
`
`
`13
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`

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`Case 1:22-cv-01331-MSN-IDD Document 44 Filed 02/15/23 Page 14 of 14 PageID# 454
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`’784 Patent . . . .”), ¶ 220 (“Google’s infringement of the ’784 Patent has been and continues to be
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`willful.”).
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`IV. CONCLUSION
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`For the reasons stated above, Defendant’s Motion to Dismiss (Dkt. No. 28) is GRANTED
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`IN PART and DENIED IN PART.
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`This Court GRANTS the motion to dismiss the claims of pre-complaint willful and indirect
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`infringement of the ’494 Patent and ’784 Patent; DENIES the motion to dismiss claims of post-
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`complaint willful and indirect infringement of the ’494 Patent and ’784 Patent; DENIES the motion
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`to dismiss the claims of willful infringement of the ’104, ’358, ’264, and ’753 Patents; and DENIES
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`the motion to dismiss the claims of induced infringement and contributory infringement of the ’104,
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`’358, ’264, and ’753 Patents.
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`It is SO ORDERED.
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`Alexandria, Virginia
`February 15, 2023
`
`/s/
`Hon. Michael S. Nachmanoff
`United States District Judge
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`14
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`