Case 2:17-cv-00932-JLR Document 39 Filed 11/13/17 Page 1 of 13
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`
`
`THE HONORABLE JAMES L. ROBART
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
`SEATTLE DIVISION
`
`
`CYWEE GROUP LTD.,
`Plaintiff,
`
`v.
`HTC CORPORATION and HTC AMERICA,
`INC.,
`
` Civil Action No. 2:17-cv-00932-JLR
`
`PLAINTIFF’S OPPOSTION TO
`DEFENDANTS’ MOTION TO DISMISS
`
`
`Defendants.
`I.
`INTRODUCTION
`Defendants’ (“HTC”) Motion to Dismiss CyWee Group Ltd.’s (“CyWee”) Amended
`Complaint should be denied because the Court may reasonably infer from the complaint and
`attached materials that HTC actively induces infringement by its customers and end users.
`HTC’s motion focuses myopically on limited portions of the complaint, while ignoring other
`portions and materials attached to the complaint which conclusively illustrate infringement by
`others. More specifically, CyWee’s complaint includes two detailed claim charts illustrating how
`
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`PLAINTIFF’S OPPOSITION TO
`MOTION TO DISMISS
`CIVIL ACTION NO. 17-CV-932
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`BREMER LAW GROUP PLLC
`1700 SEVENTH AVENUE, SUITE 2100
`SEATTLE, WA 98101
`(T) 206.357.8442
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`Case 2:17-cv-00932-JLR Document 39 Filed 11/13/17 Page 2 of 13
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`its claims are infringed and a declaration of its expert, Dr. Nicholas Gans, showing how the
`accused devices infringe as a matter of course through their ordinary and expected use.
`II.
`LEGAL STANDARD
`Under Federal Rule of Civil Procedure 12(b)(6), dismissal of a complaint is “appropriate
`only where the complaint lacks a cognizable legal theory or sufficient facts to support a
`cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th
`Cir. 2008). In reviewing a motion to dismiss, a court must accept as true all facts alleged in the
`complaint and draw all reasonable inferences in favor of the plaintiff. Skyworks Sols. Inc. v.
`Kinetic Techs. Inc., No. C 14-00010 SI, 2014 WL 1339829, at *2 (N.D. Cal. Apr. 2, 2014)
`(citing al–Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009)). In so reviewing, “[c]ourts must
`consider the complaint in its entirety, as well as other sources courts ordinarily examine when
`ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the
`complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v.
`Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (emphases added).
`To state a claim for induced infringement, a plaintiff must allege facts plausibly showing
`(1) the defendant knew of the patent, (2) the defendant knew that the induced acts constitute
`patent infringement, and (3) that the defendant specifically intended its customers to infringe.
`Brooks Mfg. Co. v. Dis-Tran Wood Prod., LLC, No. C11-0309JLR, 2011 WL 13127155, at *2
`(W.D. Wash. Nov. 3, 2011); see also Commil USA, LLC v. Cisco Sys., ___ U.S. ___, 135 S. Ct.
`1920, 1926 (2015) (describing knowledge requirements); In re Bill of Lading Transmission and
`Processing System Patent Litig., 681 F.3d 1323, 1339 (Fed. Cir. 2012) (describing specific intent
`requirement). This standard is also met where a plaintiff has “willfully blinded itself to the
`infringing nature” of the acts it encouraged others to make. Global–Tech Appliances, Inc. v. SEB
`S.A., 563 U.S. 754, 771 (2011); see also Windy City Innovations, LLC v. Microsoft Corp., 193 F.
`Supp. 3d 1109, 1115 (N.D. Cal. 2016) (holding same).
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`PLAINTIFF’S OPPOSITION TO
`MOTION TO DISMISS
`CIVIL ACTION NO. 17-CV-932
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`BREMER LAW GROUP PLLC
`1700 SEVENTH AVENUE, SUITE 2100
`SEATTLE, WA 98101
`(T) 206.357.8442
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`Case 2:17-cv-00932-JLR Document 39 Filed 11/13/17 Page 3 of 13
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`III. ARGUMENT
`A. The Amended Complaint Properly Pleads HTC’s Knowledge of the
`Patents-in-Suit
`HTC does not deny that CyWee adequately pled HTC’s knowledge of the patents-in-suit.
`
`The amended complaint states that HTC is aware of both patents-in-suit “as a result of the filing
`of this action.” Courts in this circuit routinely hold that post-suit knowledge is sufficient to
`sustain a finding of indirect infringement. E.g., CAP Co., Ltd. v. McAfee, Inc., Nos. 14-cv-05068
`& 14-cv-05071, 2015 WL 3945875, at *4–5 (N.D. Cal. June 26, 2015); TeleSign Corp. v. Twilio,
`Inc., No. CV 15-3240 PSG (SSX), 2015 WL 12765482, at *8 (C.D. Cal. Oct. 16, 2015);
`MyMedicalRecords, Inc. v. Jardogs, LLC, 1 F. Supp. 3d 1020, 1023-26 (C.D. Cal. 2014).
`
`B. The Amended Complaint and Attached Claim Charts Demonstrate that
`HTC Knew or Should Have Known of Infringement by its Customers and
`End Users
`Induced infringement requires that the defendant knew or should have known that its
`customers and/or end users infringed the patent-in-suit. See DSU Med. Corp. v. JMS Co., 471
`F.3d 1293, 1304 (Fed. Cir. 2006). When determining whether a patentee has informed a
`defendant of infringement by others, all reasonable inferences must be made in the patentee’s
`favor. Intellicheck Mobilisa, Inc. v. Wizz Sys., L.L.C., No. C15-0366JLR, 2016 WL 258524, at *4
`(W.D. Wash. Jan. 21, 2016) (“Rather, drawing all reasonable inferences in Intellicheck's favor,
`the court can infer from Intellicheck's allegations regarding the December 20, 2014, letter that
`IDScan knew its customers were infringing the Patents-in-Suit.”); In re Bill of Lading
`Transmission & Processing Sys. Patent Litig., 681 F.3d 1323, 1340 (Fed. Cir. 2012) (a court may
`not “choose among competing inferences as long as there are sufficient facts alleged to render
`the non-movant’s asserted inferences plausible.”).
`HTC’s claim that CyWee alleges no facts showing how any third party’s use constitutes
`infringement is without merit. Along with both its original complaint (Dkt. No. 1) and amended
`complaint (Dkt. No. 20), CyWee attached two claim charts showing infringement of two
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`PLAINTIFF’S OPPOSITION TO
`MOTION TO DISMISS
`CIVIL ACTION NO. 17-CV-932
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`1700 SEVENTH AVENUE, SUITE 2100
`SEATTLE, WA 98101
`(T) 206.357.8442
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`Case 2:17-cv-00932-JLR Document 39 Filed 11/13/17 Page 4 of 13
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`illustrative claims: claim 14 of U.S. Patent No. 8,441,438 and claim 10 of U.S. Patent No.
`8,771,978. Dkt. Nos. 1-1, 20-1, 20-2. Both charted claims are method claims and CyWee’s charts
`show how a person using an exemplar accused device, the HTC One M9, infringes the patents-
`in-suit when using the device. As this Court has stated, a method claim is infringed when the
`process is performed. Brooks Mfg. Co. v. Dis-Tran Wood Prod., LLC, No. C11-0309JLR, 2011
`WL 13127155, at *4 (W.D. Wash. Nov. 3, 2011) (“A reasonable inference from this allegation
`[that Dis-Tran’s customers use the accused devices to practice the patented method] is that each
`of Dis-Tran's customers performed every step in the method, thereby directly infringing the
`patent.”) (citing Joy Techs., Inc. v. Flakt, Inc., 6 F.3d 770, 773 (Fed. Cir. 1993)).
`Several courts have held that claim charts—such as those filed by CyWee—sufficiently
`inform a defendant that its product infringes for purposes of induced infringement. For example,
`in Intellicheck Mobilisa, Inc. v. Wizz Sys., L.L.C., No. C15-0366JLR, 2016 WL 258524, at *3
`(W.D. Wash. Jan. 21, 2016), this Court drew a “reasonable inference” that the defendant “knew
`its customers were infringing the Patents-in-Suit” based on a pre-suit letter sent to that defendant
`along with a claim chart providing examples of such infringement. Similarly, in Largan
`Precision Co, Ltd. v. Genius Electronics Optical Co., Ltd., No. 13- 2502, 2013 WL 5934698, at
`*3 (N.D. Cal. Nov. 4, 2013), the patent owner provided the accused inducer with a detailed claim
`chart prior to filing the lawsuit. The claim chart “appear[ed] to explain in detail how [the accused
`infringer’s] lenses, incorporated into the two identified [accused] products, read on the claims of
`the patents-in-suit.” Id. at *4.
`Further, CyWee’s amended complaint includes numerous and specific contentions
`regarding use, which relate directly to CyWee’s claims. The following excerpts are exemplar:
`
`39. The HTC 10 includes a 3-axis accelerometer that is capable of measuring
`accelerations using a “Sensor Coordinate System” as described in the AndroidTM
`developer library. See https://developer.android.com/guide/topics
`sensors/sensors_overview.html (describing “Sensor Coordinate System”).
`. . .
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`PLAINTIFF’S OPPOSITION TO
`MOTION TO DISMISS
`CIVIL ACTION NO. 17-CV-932
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`BREMER LAW GROUP PLLC
`1700 SEVENTH AVENUE, SUITE 2100
`SEATTLE, WA 98101
`(T) 206.357.8442
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`Case 2:17-cv-00932-JLR Document 39 Filed 11/13/17 Page 5 of 13
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`44. The AndroidTM operating system that runs on the HTC 10 uses the
`measurement from a 3-axis gyroscope included in the device.
`
`45. The AndroidTM operating system that runs on the HTC 10 uses the
`measurement from a 3-axis accelerometer and the measurement from a 3-axis
`gyroscope to calculate an attitude of the device.
`Dkt. No. 1 at 8. When these contentions are considered along with CyWee’s allegations regarding
`induced infringement and its claim charts, the most reasonable inference is that HTC is well aware
`of how its customers and end users infringe the charted methods.
`
`C. CyWee’s Complaint Sufficiently Alleges That HTC Specifically Intends for
`its Customers and End Users to Infringe the Patents-in-Suit
`Regarding this element, to survive a motion to dismiss a claim of induced infringement, a
`complaint need only contain facts that plausibly suggest the defendant had specific intent to
`encourage others to infringe the patent. In re Bill of Lading Transmission & Processing System
`Patent Litig., 681 F.3d 1323, 1339 (Fed. Cir. June 7, 2012). The plaintiff need not prove intent,
`but instead must merely provide enough facts from which intent can be reasonably inferred. Id.
`The facts alleged must simply raise a reasonable expectation that discovery will ultimately reveal
`the proof required. Id. at 1341. Further, “direct evidence is not required; rather, circumstantial
`evidence may suffice.” MEMC Elec. Materials, Inc. v. Mitsubishi Materials Silicon Corp., 420
`F.3d 1369, 1378 (Fed. Cir. 2005) (internal quotation marks omitted)). Indeed, “[t]he requisite
`intent to induce infringement may be inferred from all of the circumstances.” Water Techs. Corp.
`v. Calco, Ltd., 850 F.2d 660, 669 (Fed. Cir. 1988).
`It is well established that, in a case such as this, once a defendant has knowledge that its
`products infringe, continued related activities including sales of infringing products and/or
`providing instructions on infringing use can lead to a reasonable inference that the defendant had
`the specific intent to infringe. CreAgri, Inc. v. Pinnaclife Inc., No. 5:11-CV-06635-LHK, 2013
`WL 3958379, at *4 (N.D. Cal. July 29, 2013) (“To the extent Pinnaclife continued these activities
`after the patent was issued, the continued activities reflect an intent to infringe upon the ’599
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`PLAINTIFF’S OPPOSITION TO
`MOTION TO DISMISS
`CIVIL ACTION NO. 17-CV-932
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`1700 SEVENTH AVENUE, SUITE 2100
`SEATTLE, WA 98101
`(T) 206.357.8442
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`Case 2:17-cv-00932-JLR Document 39 Filed 11/13/17 Page 6 of 13
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`Patent. Indeed, faced with similar allegations, other district courts have allowed claims of induced
`infringement to proceed.”); Tranxition, Inc. v. Novell, Inc., 03:12–CV–01404–HZ, 2013 WL
`2318846, at *5 (D. Or. May 27, 2013) (holding that the plaintiff sufficiently pled specific intent to
`induce infringement where plaintiff alleged that defendant “had knowledge of the ... patent and, ...
`continu[ed]” allegedly infringing activity including ongoing sales); Sharper Image Corp. v. Target
`Corp., 425 F.Supp.2d 1056, 1066 (N.D. Cal. 2006) (declining to grant summary judgment on an
`inducement claim to certain defendants because they “continued to sell” a particular product along
`with a manual teaching an infringing use after “learn[ing] of the [patent] when Plaintiff filed suit”).
`Here, the amended complaint alleges that HTC continues to infringe and induces
`infringement through its sale of the accused products, along with distribution of product manuals,
`promotional and marketing materials, and other technical materials to distributors and resellers.
`CyWee expects that discovery will provide additional details regarding HTC’s inducement. See In
`re Bill of Lading Transmission & Processing System Patent Litig., 681 F.3d 1323, 1339 (Fed. Cir.
`June 7, 2012) (holding dismissal of induced infringement allegation inappropriate where a
`complaint raises enough facts to raise a reasonable expectation that discovery will reveal that the
`defendant is liable).
`HTC argues that, at best, it had knowledge of “possible infringement” by its end users, and
`thus could not have the specific intent to infringe CyWee’s patents. HTC’s argument is belied by
`the facts. First, the claim charts CyWee attached to the amended complaint show how a person
`using an accused product would infringe the patents-in-suit through ordinary use of the device and
`motion sensors contained therein. Second, those claim charts specifically identify a product
`specification published by HTC in which it touts inclusion of an accelerometer, gyroscope, and
`magnetometer, which are key components of the patents-in-suit. See Dkt. No. 20-1 at 2. Third, as
`CyWee’s expert testified in a declaration attached to CyWee’s amended complaint, the patented
`inventions teach how to determine a device’s current orientation based on motion data detected by
`its motion sensors, such as an accelerometer, gyroscope, and magnetometer.” Dkt. No. 20-3 ¶ 8.
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`PLAINTIFF’S OPPOSITION TO
`MOTION TO DISMISS
`CIVIL ACTION NO. 17-CV-932
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`BREMER LAW GROUP PLLC
`1700 SEVENTH AVENUE, SUITE 2100
`SEATTLE, WA 98101
`(T) 206.357.8442
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`Case 2:17-cv-00932-JLR Document 39 Filed 11/13/17 Page 7 of 13
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`Dr. Gans further testified that both patents use an “enhanced sensor fusion technology for
`calculating orientation” and that CyWee’s patented sensor fusion algorithm is particularly useful
`for mobile devices and that alternatives to CyWee’s patented techniques are not practicable for
`such devices. Id. ¶¶ 10, 23. CyWee has only accused HTC mobile devices of infringement. Thus
`Dr. Gans’s testimony demonstrates that, when data from two or three of the motion sensors in
`HTC’s devices are used and combined, as occurs through ordinary use of its products, that
`information is combined using CyWee’s patented technology.
`In arguing that the accused devices have other uses, HTC relies on Warner-Lambert Co. v.
`Apotex Corp., 316 F.3d 1348, 1364 (Fed. Cir. 2003). That case is readily distinguishable because
`it involved using the patented product for an “off label” use not approved by the FDA.
`Here, the Court may reasonably infer that HTC possessed the requisite specific intent from
`its continued sales of the accused devices along with related instructional and marketing materials
`in light of knowledge that its products infringe when used to assess changes in motion or attitude.
`Ordinary use is sufficient. The requirement that a product have no substantial non-infringing uses
`is an element of contributory infringement (which CyWee did not allege), not induced
`infringement. Compare 35 U.S.C. § 271(c), 35 U.S.C. § 271(b); see also MyMedicalRecords, Inc.
`v. Jardogs, LLC, 1 F. Supp. 3d 1020, 1027 (C.D. Cal. 2014) (finding induced infringement
`properly pled based on defendant’s instructions despite allegations by defendant that complaint
`“demonstrate[d] the multitude of noninfringing uses . . . .”).
`
`D. CyWee’s Complaint Sufficiently Alleges That HTC has Taken Affirmative
`Steps to Cause Infringement by Others
`HTC argues that the complaint must allege that HTC took affirmative steps to cause its
`customers or end users to infringe. Although HTC identifies this requirement separately, it appears
`to be subsumed within the specific intent element. This Court has held that a defendant’s continued
`manufacture and sale of products, along with distribution of related instructions for infringement,
`after learning that its customers infringed, supports a reasonable inference that the defendant
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`PLAINTIFF’S OPPOSITION TO
`MOTION TO DISMISS
`CIVIL ACTION NO. 17-CV-932
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`BREMER LAW GROUP PLLC
`1700 SEVENTH AVENUE, SUITE 2100
`SEATTLE, WA 98101
`(T) 206.357.8442
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`Case 2:17-cv-00932-JLR Document 39 Filed 11/13/17 Page 8 of 13
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`intended for its customers to infringe and took affirmative steps to induce such infringement.
`Intellicheck Mobilisa, Inc. v. Wizz Sys., L.L.C., No. C15-0366JLR, 2016 WL 258524, at *5 (W.D.
`Wash. Jan. 21, 2016). In Intellicheck, the plaintiff alleged that, despite having knowledge of its
`customers’ infringement, the defendant (1) continued to make, sell, and offer for sale those
`products to its customers, and (2) continued to provide manuals and instructions with its products
`and/or on its website instructing its customers to operate those products to practice the claimed
`invention. Here too CyWee alleges that HTC actively induces infringement through its continued
`distribution of the accused products and related materials. Although CyWee does not identify
`specific instructions in its complaint, it is not required to do so at the pleading stage. See In re Bill
`of Lading Transmission & Processing System Patent Litig., 681 F.3d 1323, 1339 (Fed. Cir. June
`7, 2012) (holding that complaint for induced infringement should not be dismissed where it raises
`enough facts to raise a reasonable expectation that discovery will reveal that the defendant is
`liable).
`
`E. HTC’s Cases are Readily Distinguishable.
`Although HTC cites several cases for the premise that CyWee did not adequately plead
`specific intent or active steps resulting in infringement, most of those cases actually turn on
`knowledge of the patent and knowledge that the third-party infringed, which are necessary
`precursors for specific intent. For example, in Chan v. AT&T Mobility, No. C11-1766-JLR, Dkt.
`No. 39, slip op. at *10 (W.D. Wash. Jul. 18, 2012), the plaintiff failed to make any allegation that
`would support a reasonable inference that the defendant knew of the patent-in-suit. Id. at *10.
`Similarly, in Fortinet Inc. v. FireEye Inc., No. 5:13-CV-02496-EJD, 2014 WL 4955087, at *4
`(N.D. Cal. Sept. 30, 2014), the Defendant pled, for knowledge and intent, only that its products
`were designed to be used in an infringing manner. Likewise, in Kremerman v. Open Source Steel,
`LLC, No. C17-953-BAT, 2017 WL 3970894, at *3 (W.D. Wash. Sept. 8, 2017), the plaintiff failed
`to allege who was induced to infringe, how they infringed, or how they had knowledge that the
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`PLAINTIFF’S OPPOSITION TO
`MOTION TO DISMISS
`CIVIL ACTION NO. 17-CV-932
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`SEATTLE, WA 98101
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`induced acts constituted infringement. In Eagle Harbor Holdings LLC v. Ford Motor Co., No.
`C11-5503BHS, 2012 WL 398688, at *2 (W.D. Wash. Feb. 7, 2012), the court held that the plaintiff
`failed to sufficiently plead that the defendant had knowledge of the patents. In Avocet Sports Tech.,
`Inc. v. Garmin Int'l, Inc., No. C 11-04049 JW, 2012 WL 1030031, at *4 (N.D. Cal. Mar. 22, 2012),
`the plaintiff failed to plead sufficient facts to show that a third-party infringed, and instead only
`made “conclusory allegations that Defendants knowingly disregarded Plaintiff’s patent rights and
`that Defendants actively induced others to infringe the ’427 Patent.” In Fujitsu Ltd. v. Belkin Int’l,
`Inc., 782 F. Supp. 2d 868, 892-93 (N.D. Cal. 2011), the plaintiff conclusorily alleged that the
`defendant had received notice of the patents. In contrast, CyWee specifically alleges that its end
`users and distributors infringe, and it has provided detailed claim charts showing how they
`infringe.
`HTC’s other cases are similarly distinguishable. In Logic Devices, Inc. v. Apple, Inc., No.
`C 13-02943 WHA, 2014 WL 60056, at *2 (N.D. Cal. Jan. 7, 2014), the plaintiff pled that Apple
`induced others (programmers and developers) to infringe, but it failed to provide facts sufficient
`to show that its activities would induce others to infringe. In contrast, CyWee’s claim charts clearly
`show how ordinary use of the accused devices infringes the patents-in-suit. In Memory Integrity,
`LLC v. Intel Corp., 144 F. Supp. 3d 1185, 1193 (D. Or. 2015), the court held that ordinary acts
`incident to product distribution “will not support inducement liability in themselves.” That case
`held only that such acts, without more, were insufficient. Id. Unlike the present case, the plaintiff
`did not provide detailed claim charts or a declaration showing how ordinary usage of the accused
`device would result in infringement.
`
`
`F. If the Court Dismisses the Amended Complaint, CyWee Requests Leave
`to Amend
`The Court should deny HTC’s motion to dismiss. In the alternative, CyWee requests
`leave to amend its complaint to plead additional facts regarding indirect infringement. Instead of
`dismissing the complaint, the Court “should grant leave to amend even if no request to amend
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`PLAINTIFF’S OPPOSITION TO
`MOTION TO DISMISS
`CIVIL ACTION NO. 17-CV-932
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`1700 SEVENTH AVENUE, SUITE 2100
`SEATTLE, WA 98101
`(T) 206.357.8442
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`Case 2:17-cv-00932-JLR Document 39 Filed 11/13/17 Page 10 of 13
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`the pleading was made, unless it determines that the pleading could not possibly be cured by the
`allegation of other facts.” See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000); see also
`Medtrica Sols., Ltd. v. Cygnus Med., LLC, No. C12-538RSL, 2012 WL 5726799, at *2 (W.D.
`Wash. Nov. 15, 2012) (dismissing contributory infringement claim with leave to amend within
`30 days of order). Leave to amend should be liberally granted. See Eminence Capital, LLC v.
`Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003); id. This Court granted leave to amend when
`plaintiff failed to make any allegation that would support a reasonable inference that defendant
`knew of the patent-in-suit and plaintiff alleged conclusorily that defendant “‘is liable by actively
`inducing direct infringement’ and ‘continues to infringe, either literally or by equivalents.’”
`Chan v. AT&T Mobility LLC, No. C11-1766JLR, Dkt. No. 39 (W.D. Wash. July 18, 2012). That
`is not the case with CyWee’s amended complaint.
`In the unlikely event the Court believes amendment is necessary, good cause exists to allow
`CyWee to amend its complaint. This case is in its infancy, no schedule has been set, and discovery
`is just beginning. Allowing CyWee to amend its complaint will not prejudice HTC. In contrast,
`granting HTC’s motion without allowing CyWee to amend its complaint will severely prejudice
`CyWee. As discussed above, the patents-in-suit describe and claim the use of sensor fusion to
`combine motion data from various sensors. Because the charted claims are method claims, much
`of the infringement will occur through an end user’s actual use of the accused devices.
`HTC encourages the use of advanced motion sensor features, and CyWee expects that
`discovery will confirm that these features depend on its claimed technology. For example, HTC
`advertises its “Motion Launch” and “Motion gestures” features on its website, and provides
`instructions
`and
`a
`video
`for
`using
`said
`features
`on
`its website.
`See
`http://www.htc.com/us/support/htc-one-m8/howto/464882.html;
`http://www.htc.com/us/support/htc-one-m8/howto/695959.html. Those instructions state that a
`user can answer an HTC phone by picking it up and raising it to his or her head, and that the phone
`can be muted by placing it facedown. Id.
`
`PLAINTIFF’S OPPOSITION TO
`MOTION TO DISMISS
`CIVIL ACTION NO. 17-CV-932
`
`
`BREMER LAW GROUP PLLC
`1700 SEVENTH AVENUE, SUITE 2100
`SEATTLE, WA 98101
`(T) 206.357.8442
`
`
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`Case 2:17-cv-00932-JLR Document 39 Filed 11/13/17 Page 11 of 13
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`
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`If CyWee is required to amend its complaint, it expects to cite these and related materials.
`A complaint will generally satisfy pleading requirements if it alleges that the defendant is
`advertising an infringing use, or instructing customers how to use the products in an infringing
`manner. See In re Bill of Lading, 681 F.3d at 1341-42 (“[c]ommon sense indicates that advertising
`that your product can be used” in an infringing manner gives rise to a “reasonable inference that
`you intend to induce your customers to accomplish these benefits through utilization of the
`patented method.”); MyMedicalRecords, Inc., 2014 WL 585450, at *6 (“[A] plaintiff may establish
`a defendant’s specific intent to induce infringement based on the defendant’s instructions that teach
`users to practice the accused product in a manner the defendant knows is infringing.”); E.Digital
`Corp. v. Intel Corp., No. 13-CV-2905-H-BGS, 2014 WL 2581061, at *3 (S.D. Cal. Apr. 24, 2014)
`(holding that complaint properly alleged that defendant induced infringement by providing
`customers and end users with product literature, instructional videos, operating manuals,
`installation guides, instructional and ‘how-to’ videos, webcasts, and other instructions on how to
`use the accused products in an infringing manner).
`IV. CONCLUSION
`HTC’s motion should be denied because one can readily infer from CyWee’s amended
`complaint that HTC induced infringement by its customers and end users. In the alternative only,
`CyWee requests that this Court grant CyWee leave to amend its complaint.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`PLAINTIFF’S OPPOSITION TO
`MOTION TO DISMISS
`CIVIL ACTION NO. 17-CV-932
`
`
`
`
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`BREMER LAW GROUP PLLC
`1700 SEVENTH AVENUE, SUITE 2100
`SEATTLE, WA 98101
`(T) 206.357.8442
`
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`Case 2:17-cv-00932-JLR Document 39 Filed 11/13/17 Page 12 of 13
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`
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`Dated: November 13, 2017
`
`Respectfully submitted,
`
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`/s/Carmen E. Bremer
`Carmen E. Bremer, WSBA 47,565
`carmen.bremer@bremerlawgroup.com
`BREMER LAW GROUP PLLC
`1700 Seventh Avenue, Suite 2100
`Seattle, WA 98101
`T: (206) 357-8442
`F: (206) 858-9730
`
`David A. Lowe, WSBA 24,453
`Lowe@LoweGrahamJones.com
`Tim J. Billick, WSBA No. 46,690
`Billick@LoweGrahamJones.com
`LOWE GRAHAM JONESPLLC
`701 Fifth Avenue, Suite 4800
`Seattle, WA 98104
`T: 206.381.3300
`F: 206.381.3301
`
`Michael W. Shore*
`Alfonso G. Chan*
`Christopher Evans*
`Ari B. Rafilson*
`Paul T. Beeler*
`SHORE CHAN DEPUMPO LLP
`901 Main Street, Suite 3300
`Dallas, Texas 75202
`Telephone (214) 593-9110
`Facsimile (214) 593-9111
`
` *
`
` Admitted pro hac vice
`
`
`Counsel for Plaintiff
`CYWEE GROUP LTD.
`
`
`
`
`
`
`PLAINTIFF’S OPPOSITION TO
`MOTION TO DISMISS
`CIVIL ACTION NO. 17-CV-932
`
`
`
`
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`BREMER LAW GROUP PLLC
`1700 SEVENTH AVENUE, SUITE 2100
`SEATTLE, WA 98101
`(T) 206.357.8442
`
`

`

`Case 2:17-cv-00932-JLR Document 39 Filed 11/13/17 Page 13 of 13
`
`
`
`CERTIFICATE OF SERVICE
`I hereby certify that on November 13, 2017, I filed the foregoing with the Clerk of the
`Court using the CM/ECF system, and served all parties via ECF.
`/s/Carmen Bremer
`Carmen Bremer
`
`
`
`
`
`
`PLAINTIFF’S OPPOSITION TO
`MOTION TO DISMISS
`CIVIL ACTION NO. 17-CV-932
`
`
`
`
`
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`
`BREMER LAW GROUP PLLC
`1700 SEVENTH AVENUE, SUITE 2100
`SEATTLE, WA 98101
`(T) 206.357.8442
`
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`