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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`BROADSIGN INTERNATIONAL, LLC,
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`T-REX PROPERTY AB,
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`-------------------------------------------------------x
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`Plaintiff,
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`Defendant.
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`No. 16-CV-04586-LTS-HBP
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`MEMORANDUM OPINION AND ORDER
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`Plaintiff BroadSign International, LLC (“Plaintiff” or BroadSign”) brings this
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`action against Defendant T-Rex Property AB (“Defendant” or “T-Rex”), seeking declaratory
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`judgments of noninfringement and invalidity of U.S. Patent No. RE39,470 (“the ‘470 patent”),
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`U.S. Patent No. 7,382,334 (“the ‘334 patent”), and U.S. Patent No. 6,430,603 (“the ‘603 patent”)
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`(collectively, the “Patents-in-Suit”), as well as a declaratory judgment that BroadSign has
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`intervening rights with respect to the ‘470 patent.
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`On January 10, 2018, this Court issued a Memorandum Opinion and Order
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`(Docket Entry No. 40, the “January Opinion”) granting T-Rex’s motion to dismiss the Amended
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`Complaint (Docket Entry No. 10, the “AC”) in its entirety. In the January Opinion, the Court
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`granted BroadSign permission to move for leave to file a further Amended Complaint.
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`On February 1, 2018, BroadSign moved for leave to file a Second Amended
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`Complaint (Docket Entry No. 42) and, in accordance with the Court’s instructions, appended to
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`its motion its proposed Second Amended Complaint (Docket Entry No. 44-1, the “SAC”), a
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`blackline comparison showing all proposed changes to the AC, and a memorandum of law.
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`BROADSIGN V TREX MLA.DOCX
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`VERSION JULY 13, 2018
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`1
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`Case 1:16-cv-04586-LTS-HBP Document 54 Filed 07/13/18 Page 2 of 12
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`The Court has jurisdiction of this action pursuant to 35 U.S.C. §§ 271 et seq., and
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`28 U.S.C. §§ 1331 and 1338.
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`The Court has considered carefully all of the parties’ submissions, and for the
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`reasons stated below, BroadSign’s motion for leave to file the SAC is granted.
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`BACKGROUND
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`The Court assumes the parties’ familiarity with the underlying context of the case,
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`which is laid out in detail in the January Opinion. (January Opinion at 2-4.) In the January
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`Opinion, the Court dismissed BroadSign’s complaint for lack of subject matter jurisdiction,
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`concluding that the allegations regarding Defendant’s suits against BroadSign’s customers and
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`Defendant’s actions in connection with discussions initiated by BroadSign, as described in
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`Plaintiff’s Amended Complaint, did not constitute an “aggressive enforcement strategy”
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`warranting a finding of a case or controversy. (Id. at 9.) The Court further concluded that
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`BroadSign had failed to allege facts indicating that T-Rex could state a contributory infringement
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`cause of action against BroadSign. (Id. at 9-10.) Specifically, BroadSign failed to allege its
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`product was especially made or especially adapted for use in an infringement of the Patents-in-
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`Suit at the time it sold its products to customers, and that its software was not a staple article or
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`commodity of commerce suitable for substantial noninfringing use. (Id. at 8-10.) Because
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`Plaintiff had not demonstrated that a “substantial controversy” existed between the parties, it had
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`not met its burden of proving by a preponderance of the evidence that subject matter jurisdiction
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`exists. (Id. at 10.)
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`The following abbreviated recitation of facts is drawn from BroadSign’s SAC, the
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`well-pleaded factual allegations of which are taken as true for purposes of this motion practice.
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`VERSION JULY 13, 2018
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`Case 1:16-cv-04586-LTS-HBP Document 54 Filed 07/13/18 Page 3 of 12
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`BroadSign supplies “hardware and software solutions to operators of networks of
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`digital displays.” (SAC ¶ 11.) T-Rex is the “assignee and owner of the right, title, and interest in
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`and to the Patents-in-Suit,” which concern the control and coordination of digital displays. (Id.
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`¶¶ 9, 10.) Over the last several years and during the course of this lawsuit, T-Rex has sued “at
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`least seven” of BroadSign’s customers, which are various entities that make, use, or sell
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`complete digital signage systems, “for [direct] patent infringement on one or more of the Patents-
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`in-Suit.” (Id. ¶ 29.) The SAC includes new allegations that, in its suits against BroadSign’s
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`customers, T-Rex has specifically identified components supplied by BroadSign that allegedly
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`infringe the Patents-in-Suit, and has compared the limitations of at least one claim of each patent
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`to a product that includes BroadSign components and software. (Id. ¶¶ 30-40.) The SAC also
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`proffers new allegations that T-Rex has filed complaints against at least 15 other “suppliers of
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`digital out-of-home media software and/or hardware” that are direct industry competitors of
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`BroadSign, alleging that those suppliers’ digital signage products infringe upon the Patents-in-
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`Suit. (Id. ¶¶ 12-28.) Plaintiff also proposes expanded allegations regarding contacts in which T-
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`Rex allegedly demanded that BroadSign enter into a licensing agreement. (Id. ¶ 47.)
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`BroadSign proffers new allegations that it “has knowledge of T-Rex’s
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`allegations” that certain components of a product it supplies “function in a way that meets each
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`limitation of at least one claim of each of the” Patents-in-Suit. (Id. ¶¶ 42, 45.) BroadSign also
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`alleges that its products are built to order for its customers. (Id. ¶ 46.) Plaintiff alleges that “T-
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`Rex’s actions have placed a cloud over BroadSign and its business,” and that it seeks to “move
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`forward without the imminent and ever-present threat of litigation.” (Id. ¶ 49.) The SAC also
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`adds causes of action seeking declarations that the Patents-in-Suit are invalid. (Id. ¶¶ 76-87.)
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`VERSION JULY 13, 2018
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`Case 1:16-cv-04586-LTS-HBP Document 54 Filed 07/13/18 Page 4 of 12
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`DISCUSSION
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`Federal Rule of Civil Procedure 15 provides that the court may permit a party to
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`amend its pleading when justice so requires. Fed. R. Civ. P. 15(a)(2). Such leave may be denied
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`on grounds of futility, however, if the proposed amended pleading could not withstand a motion
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`to dismiss, such as a motion under Rule 12(b)(1) asserting lack of subject matter jurisdiction, or
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`one under Rule 12(b)(6) for failure to state a claim. Griffith-Fenton v. Coldwell Banker Mortg.,
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`No. 13 CV 7449, 2014 WL 6642715, at *1 (S.D.N.Y. Oct. 17, 2014); Oneida Indian Nation of
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`N.Y. v. City of Sherrill, 337 F.3d 139, 168 (2d Cir. 2003) (citation omitted). The party opposing
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`the motion to amend bears the burden of establishing that the amendment would be futile.
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`Ballard v. Parkstone Energy, LLC, No. 06 CV 13099, 2008 WL 4298572, at *3 (S.D.N.Y. Sep.
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`19, 2008).
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`Motion to Dismiss Standard
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`Under the Rule 12(b)(1) standard, the Court is authorized to dismiss a complaint
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`for lack of subject matter jurisdiction “when the district court lacks the statutory or constitutional
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`power to adjudicate it.” Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008) (vacated on other
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`grounds) (internal citations and quotation marks omitted). “The Court’s first inquiry must be
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`whether it has the constitutional or statutory authority to adjudicate a case. If there is no subject
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`matter jurisdiction, the court lacks power to consider the action further.” ICOS Vision Sys.
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`Corp., N.V. v. Scanner Techs. Corp., 699 F. Supp. 2d 664, 667 (S.D.N.Y. 2010) (citation
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`omitted).
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`In reviewing a motion to dismiss a complaint pursuant to Federal Rule of Civil
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`Procedure 12(b)(1), “the court must take all facts alleged in the complaint as true and draw all
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`Case 1:16-cv-04586-LTS-HBP Document 54 Filed 07/13/18 Page 5 of 12
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`reasonable inferences in favor of plaintiff.” Morrison v. Nat’l Australia Bank Ltd., 547 F.3d
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`167, 170 (2d Cir. 2008) (quoting Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d
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`Cir. 2006)). However, “[a] plaintiff asserting subject matter jurisdiction has the burden of
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`proving by a preponderance of the evidence that it exists,” id. (quoting Makarova v. U.S., 201
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`F.3d 110, 113 (2d Cir. 2000)), and such a showing may not be “made by drawing from the
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`pleadings inferences favorable to the party asserting” subject matter jurisdiction. Id. (quoting
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`APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2000)). In determining whether subject matter
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`jurisdiction over the claims exists, the Court “may consider evidence outside the pleadings.” Id.
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`Jurisdiction to Render the Requested Declaratory Judgments
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`Defendant asserts that the proffered amendments would be futile because Plaintiff
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`has not proffered facts sufficient to demonstrate that there is a justiciable case or controversy
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`concerning BroadSign’s potential infringement of the Patents-in-Suit. Declaratory relief is
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`“intended to . . . settle legal rights and remove uncertainty and insecurity from legal relationships
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`without awaiting a violation of the right or a disturbance of the relationships.” Nat’l Union Fire
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`Ins. Co. of Pittsburgh v. Int’l Wire Grp., Inc., No. 02 CV 10338, 2003 WL 21277114, at *4
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`(S.D.N.Y. June 2, 2003) (citations and internal quotation marks omitted).
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`When a court is determining whether there is subject matter jurisdiction to render
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`a declaratory judgment, “the question in each case is whether the facts alleged, under all the
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`circumstances, show that there is a substantial controversy, between parties having adverse legal
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`interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”
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`MedImmune Inc. v. Genentech Inc., 549 U.S. 118, 127 (2007) (citations and quotation marks
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`omitted). The controversy between defendant and plaintiff must be “‘real and substantial’ and
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`‘admit of specific relief through a decree of a conclusive character, as distinguished from an
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`VERSION JULY 13, 2018
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`Case 1:16-cv-04586-LTS-HBP Document 54 Filed 07/13/18 Page 6 of 12
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`opinion advising what the law would be upon a hypothetical state of facts.’” Id. A “case of
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`actual controversy,” in the language of the Declaratory Judgment Act, is one falling into the
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`category of “Cases” and “Controversies” that are justiciable under Article III of the Constitution
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`of the United States. Id.
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`There is no bright-line rule for whether a dispute is “a case of actual controversy”
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`between parties within the meaning of the Declaratory Judgment Act. Prasco LLC v. Medicis
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`Pharm. Corp., 537 F.3d 1329, 1336 (Fed. Cir. 2008). However, courts have found a direct,
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`substantial controversy in patent disputes when parties pursue an aggressive litigation strategy,
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`Microsoft Corp. v. DataTern, Inc., 755 F.3d 899, 906-07 (Fed. Cir. 2014), or establish a valid
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`induced contributory infringement claim. See Arris Grp. v. British Telecomm., 639 F.3d 1368,
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`1375-81 (Fed. Cir. 2011).
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`BroadSign’s Aggressive Litigation Strategy Claim Against T-Rex
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`When deciding whether a direct, “substantial controversy” in a patent dispute
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`exists, “consider[ing] all of the circumstances,” courts have weighed: “whether there has been
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`prior litigation between the parties or brought by the defendant on related technology, whether
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`the defendant has refused to sign a covenant not to sue or stay litigation, and whether the
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`defendant has made a direct or implied threat to assert its rights against the declaratory judgment
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`plaintiff.” See ICOS Vision Sys. Corp., N.V., 699 F. Supp. 2d at 668; see also Arrowhead Indus.
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`Water, Inc. v. Ecolochem, Inc., 846 F.2d 731, 737 (Fed. Cir. 1988). Courts have also considered
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`the nature and extent of communication between the parties and a patentee’s aggressive
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`enforcement strategy, even in the absence of direct threats. See Arris Grp., 639 F.3d at 1378.
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`For example, declaratory judgment jurisdiction may exist where a patentee repeatedly
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`Case 1:16-cv-04586-LTS-HBP Document 54 Filed 07/13/18 Page 7 of 12
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`communicates implicit accusations of patent infringement during protracted negotiations. See
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`Microsoft Corp., 755 F.3d at 903-04. Courts, however, may be skeptical that a patentee’s
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`litigation enforcement strategy is in fact “aggressive” if it “appears to involve suing . . . users,
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`not . . . suppliers.” See id. at 906-07.
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`As the Court noted in the January Opinion, a defendant’s suits against a plaintiff’s
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`customers are insufficient by themselves to establish a case or controversy between the supplier-
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`plaintiff and the patent holder-defendant. See id. at 904. Nor do customer requests for
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`indemnification without an obligation to indemnify suffice to support jurisdiction. Id. However,
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`BroadSign argues that the SAC contains factual allegations sufficient to support an inference that
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`“Plaintiff is under threat of litigation because T-Rex’s aggressive litigation strategy involves
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`asserting the Patents-in-Suit against both customers and suppliers.” (Docket Entry No. 43,
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`Memorandum in Support of Plaintiff’s Motion for Leave to Amend the Complaint Pursuant to
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`Fed. R. Civ. P. Rule 15 (“Pl. Opening Br.”), at 3 (emphasis in original).) In its opposition to
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`Plaintiff’s motion, T-Rex argues that the SAC does not contain facts sufficient to establish that
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`the suppliers it has sued “are actually ‘suppliers similarly-situated to BroadSign’,” arguing that
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`T-Rex’s previous suits against “some suppliers of unrelated products [are] insufficient to
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`establish an ‘aggressive’ litigation campaign” indicative of a direct or implied threat that T-Rex
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`will assert its rights against BroadSign. (Docket Entry No. 48, Defendant T-Rex Property, AB’s
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`Memorandum of Law in Opposition to Plaintiff BroadSign International, LLC’s Motion for
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`Leave to Amend (“Def. Br.”), at 2-4.)
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`While BroadSign proposes allegations that T-Rex’s “aggressive litigation
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`strategy” involves “suppliers” and not just customers (Pl. Opening Br. at 3), BroadSign’s
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`allegations regarding litigation against those suppliers fail to demonstrate plausibly that the
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`Case 1:16-cv-04586-LTS-HBP Document 54 Filed 07/13/18 Page 8 of 12
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`products accused in those cases are sufficiently similar to BroadSign’s that T-Rex could
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`reasonably be expected to assert similar infringement claims against BroadSign. The SAC
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`merely alleges that competitive products have been accused, without demonstrating technical
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`comparability or providing any other factual basis for anticipation of an infringement claim.
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`Thus, BroadSign’s contention that T-Rex’s aggressive litigation strategy frames a case or
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`controversy as between T-Rex and BroadSign fails.
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`T-Rex’s Potential Claim of Induced Contributory Infringement Against BroadSign
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`BroadSign argues that a controversy exists between the parties regarding
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`BroadSign’s liability for induced or contributory infringement. (Pl. Opening Br. at 4-8.) A
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`supplier such as BroadSign may state a case or controversy if “there is a controversy between the
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`patentee and the supplier as to the supplier’s liability for induced contributory infringement
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`based on the alleged acts of direct infringement by its customers.” Arris Grp., 639 F.3d at 1375.
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`The elements of induced contributory infringement require that “a patent holder must show . . .
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`that (a) the supplier’s product was used to commit acts of direct infringement; (b) the product’s
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`use constituted a material part of the invention; (c) the supplier knew its product was especially
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`made or especially adapted for use in an infringement of the patent; and (d) the product is not a
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`staple article or commodity of commerce suitable for substantial noninfringing use.” Id. at 1376
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`(quotation marks and citations omitted). In the January Opinion, the Court found that, although
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`BroadSign sufficiently pled in the AC that T-Rex could establish the first two prongs of an
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`induced contributory infringement action against BroadSign, the AC failed to sufficiently plead
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`facts supporting the third and fourth elements. (January Opinion at 9-10.) BroadSign had
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`“failed to allege facts indicating that . . . [it] knew its product was especially made or especially
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`Case 1:16-cv-04586-LTS-HBP Document 54 Filed 07/13/18 Page 9 of 12
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`adapted for use in an infringement of the [Patents-In-Suit]” or that “the [software was] not a
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`staple article or commodity of commerce suitable for substantial noninfringing use.” (January
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`Opinion at 10 (quoting Arris Grp., 639 F.3d at 1376).)
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`T-Rex does not contest that BroadSign has sufficiently pled the first two elements
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`of induced contributory infringement: BroadSign’s product was allegedly used to commit acts of
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`direct infringement, and the product’s use was a material part of the invention used by
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`BroadSign’s customers. Instead, T-Rex argues that BroadSign still fails to overcome the
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`deficiencies as to the last two elements of induced contributory infringement. (Def. Br. at 5-7.)
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`BroadSign asserts that its proposed amended pleading contains factual allegations
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`sufficient to satisfy the third element of an induced contributory infringement claim because it
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`now “has knowledge that its products are especially made or especially adapted for use in
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`providing the functionality that T-Rex accuses of infringement.” (Pl. Opening Br. at 7; see SAC
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`¶ 42.) In support of this assertion, BroadSign cites excerpts from T-Rex’s complaint against a
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`BroadSign customer, which allege that (i) BroadSign’s product infringes specific claims of the
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`Patents-in-Suit, and (ii) all of BroadSign’s products are custom made. (Pl. Opening Br. at 5-7.)
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`For a supplier to “know” its product was especially made or adapted for use in a
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`patent infringement, the supplier must have had knowledge of the patent at the time of the sale
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`constituting contributory infringement, not only after the transaction had already occurred. See
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`Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488-91 (1964). In Aro, the
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`Supreme Court held that the accused induced infringer was only liable for the patent
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`infringements made after he was notified of the patent’s existence and infringing use; any
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`infringement before the notice did not meet the required knowledge standard. Id.
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`Case 1:16-cv-04586-LTS-HBP Document 54 Filed 07/13/18 Page 10 of 12
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`Although BroadSign does not allege that it knew of the patent’s existence before
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`T-Rex sued BroadSign’s customers, BroadSign asserts that it has the requisite knowledge now,
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`and it seeks to protect itself against claims based on ongoing sales of its products. (SAC ¶¶ 42,
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`49.) BroadSign’s lack of knowledge when T-Rex initially brought suit against BroadSign’s
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`customers does not preclude claims based on sales activity after T-Rex specifically alleged that
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`BroadSign’s product infringes upon the Patents-in-Suit. That is because BroadSign seeks
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`prospective, rather than retrospective, relief. BroadSign seeks a declaratory judgment for the
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`purpose of protecting its ongoing business activities, and is not seeking adjudication of the
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`legality of its past conduct. (See SAC ¶¶ 48, 49.) That is, after all, the purpose of the
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`Declaratory Judgment Act: to prevent “putting the [plaintiff] to the choice between abandoning
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`his rights or risking prosecution.” MedImmune, 549 U.S. at 129. A declaratory judgment action
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`allows a party “who is reasonably at legal risk because of an unresolved dispute, to obtain
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`judicial resolution of that dispute without having to await the commencement of legal action by
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`the other side.” Capo Inc. v. Dipotics Med. Prod., Inc., 387 F.3d 1352, 1354 (2d Cir. 2004).
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`Therefore, according to the allegations of the SAC, BroadSign’s future sales will be made with
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`knowledge of T-Rex’s patents. See Aro Mfg. Co., 377 U.S. at 488-91. Thus, BroadSign
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`sufficiently alleges it has knowledge of the Patents-in-Suit and the allegedly infringing use going
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`forward.
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`The SAC also alleges that all of BroadSign’s products are built to order for its
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`customers, which satisfies the fourth element of an induced contributory infringement claim.
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`(See SAC ¶ 46.) A party may be liable for induced contributory infringement if it “sells a
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`component with knowledge that the component is especially designed for use in a patented
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`invention, and is not a staple article of commerce suitable for substantial noninfringing use.”
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`Case 1:16-cv-04586-LTS-HBP Document 54 Filed 07/13/18 Page 11 of 12
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`Worldtech Sys., Inc. v. Integrated Networks Solutions, Inc., 609 F.3d 1308, 1316 (Fed. Cir.
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`2010). Here, as BroadSign alleges its products are built to order for customers who are the
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`subject of T-Rex’s infringement lawsuits, those products are “especially designed for use” in the
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`accused invention. See id.
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`In conclusion, because BroadSign’s allegations now satisfy the last two elements of an
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`induced contributory infringement claim, BroadSign sufficiently frames a case or controversy
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`between itself and T-Rex with respect to infringement of the Patents-in-Suit.
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`T-Rex’s Mootness Argument
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`T-Rex argues that granting Plaintiff leave to file a further amended complaint
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`would be futile, because all of its litigation against BroadSign’s customers has been resolved,
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`and this case is therefore moot. (Def. Br. at 7-8.) T-Rex’s argument is without merit. “A
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`declaratory action for a judgment of invalidity is based on a fear of suit under the patent. Such
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`fear is not dependent on being held liable for infringement” in a particular case, or on the scope
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`of any ongoing litigation. See Morton Intern., Inc. v. Cardinal Chem. Co., 967 F.2d 1571, 1575
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`(Fed. Cir. 1992). “Nothing short of the patentee’s unconditional guarantee not to [bring suit]
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`under any circumstances ordinarily will remove that apprehension and thereby jurisdictionally
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`moot the claim for declaratory relief.” Id. at 1576.
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`Even if T-Rex’s lawsuits against BroadSign’s customers have been resolved, there is no
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`information before the Court suggesting that T-Rex has expressly disavowed any and all future
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`lawsuits against BroadSign regarding the Patents-in-Suit. Because BroadSign is seeking a
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`declaratory judgment to ensure its “business can move forward without the imminent and ever-
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`present threat of litigation,” its action is not moot. (See SAC ¶ 49.)
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`Case 1:16-cv-04586-LTS-HBP Document 54 Filed 07/13/18 Page 12 of 12
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`CONCLUSION
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`For the foregoing reasons, BroadSign’s motion for leave to file a Second
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`Amended Complaint is granted. BroadSign is directed to file the SAC no later than July 23,
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`2018.
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`This case is being referred to Magistrate Judge Pitman for general pretrial
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`management concurrently with the issuance of this Memorandum Opinion and Order. The
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`parties are directed to contact Judge Pitman’s chambers promptly to arrange for an initial pretrial
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`conference.
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`This Memorandum Opinion and Order resolves Docket Entry No. 42.
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`SO ORDERED.
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`Dated: New York, New York
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`July 13, 2018
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` /s/ Laura Taylor Swain .
`LAURA TAYLOR SWAIN
`United States District Judge
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