callwave comms. llc v. at&t mobility llc, et al., c.a. no. 12-1701-rga to 12-1704-rga, 12-1788-rga...

8/13/2019 Callwave Comms. LLC v. AT&T Mobility LLC, et al., C.A. No. 12-1701-RGA to 12-1704-RGA, 12-1788-RGA (D. Del.

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF DELAWARE

CALL WAVE COMMUNICATIONS LLC,Plaintiff,

v

AT T MOBILITY LLC, et al.,Defendants.

Civil Action No. 12-1701-RGA



v

SPRINT NEXTEL CORP., et al.,Defendants.


IN THE UNITED STATES DISTRICT OURTFOR THE DISTRICT OF DELAWARE


v

T-MOBILE USA INC., et al.,Defendants.


Case 1:12-cv-01701-RGA Document 70 Filed 01/28/14 Page 1 of 6 PageID #: 1440


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CALLWAVE COMMUNICATIONS LLC,Plaintiff,

V

VERIZON COMMUNICATIONS INC.,et al.,Defendants.




v Civil Action No. 12-1788-RGAAT T MOBILITY LLC, et al.,

Defendants.

OR ERIn the above-captioned five cases, nine motions to dismiss are pending. No. 12-1701,

D.I. 30 32; No. 12-1702, D.I. 26 28; No. 12-1703, D.I. 24 27; No. 12-1704, D.I. 23 25;No.l2-1788, D.l. 27). 1 The arguments are to a great extent overlapping, and the Plaintiffmanaged to respond to the motions in one nineteen page brief. E.g., No. 12-1701, D.l. 36).Thus, the Court will address the arguments by category.

1The portions of these motions that sought to dismiss for lack of standing have beenwithdrawn. E.g., No. 12-1701, D.l. 53).



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Willfulness. For the most part, Plaintiff alleges willfulness on no basis other than the factthat an earlier version of the suit was served on a defendant before the present amendedcomplaint was filed. While I previously had allowed such a pleading, see Ip Venture Inc. v.Lenovo Group Ltd 2013 WL 126726 (D.Del. Jan. 8, 2013), I have now thought better of thatdecision. Other judges of this Court have split on this issue. See e.g. Execware LLC v. StaplesInc. 2012 W 6138340, at *7 (D.Del. Dec. 10, 2012) (Magistrate Judge Fallon)(dismissingwillfulness allegation); Aeritas LLC v. Alaska Air Group Inc. 893 F.Supp.2d 680, 685 (D.Del.2012) (Judge Robinson) (same); contra Clouding IP LLC v. Amazon. com Inc. 2013 WL2293452, at *4-5 (D.Del. May 24, 2013) (Judge Stark) (allowing willfulness allegation). JudgeStark stated that there was not much difference conceptually between sending a letter pre-suit andthe filing of a complaint to put an alleged infringer on notice, and I agree with the logic of thatstatement. The pre-suit letter does, however, offer a benefit - the patent holder and the assertedinfringer may exchange information, and the asserted infringer might then take a license, or thepatent holder might learn of reasons why suit should not be filed. There is a benefit to society ifthe matter is resolved without a suit. Once a suit is filed, however, the only thing a willfulnessallegation in an amended complaint does is allow the Plaintiff to raise the stakes. Given what theFederal Circuit has said about an injunction generally being the preferred remedy for post-filingreckless conduct, and recognizing that some plaintiffs generally, non competitors may not

be able to seek an injunction, it seems to me the better course is generally not to allow allegationsof willfulness based solely on conduct post-dating the filing of the original complaint. See LML

2 The Federal Circuit has indicated that willfulness is generally something that eitherdoes, or does not, happen before litigation begins.[I]n ordinary circumstances, willfulness will depend on an infringer's prelitigationconduct. [W]hen an accused infringer's post-filing conduct is reckless, a patentee canmove for a preliminary injunction, which generally provides an adequate remedy for



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Holdings, Inc v Pacific Coast Distributing Inc., 2012 WL 1965878, *5 (N.D. Cal. May 30,2012) ( In essence, [Plaintiff] alleges that Defendants' decision to defend this case on the meritsdemonstrates willfulness. ).

The only other willfulness issue is that as early as 2008, Google had knowledge of one ofthe patents (the '970 patent) as evidenced by citation to the patent in multiple InformationDisclosure Statements relating to Google patents. This solitary piece of information isinsufficient to support an allegation ofwillfulness. Thus, I will grant all motions to strikewillfulness claims.

Direct Infringement. The amended complaints are confusing.3 They are organizeddifferently than I am used to seeing. The allegations of the amended complaints (e.g., No. 12-1701, D.I. 29, 15-19, in which all ofth patents are titled as involving either Apparatus[four out of five], or System [the fifth out of five], and are described as involving systems andmethods [four out of five]), make it appear as though there could be a range of types of claims,although the actual claims in the patents are 100% method claims in four ofth five patents. ( d.at Exhs. A B, C, D & E). Nevertheless, while there seems to be a lot of surplus and

combating post-filing willful infringement A patentee who does not attempt to stopan accused infringer's activities in this manner should not be allowed to accrue enhanceddamages based solely on the infringer's post-filing conduct. Similarly, if a patenteeattempts to secure injunctive relief but fails, it is likely the infringement did not rise to thelevel of recklessness We also recognize that in some cases a patentee may be denieda preliminary injunction despite establishing a likelihood of success on the merits, such aswhen the remaining factors are considered and balanced. In that event, whether awillfulness claim based on conduct occurring solely after litigation began is sustainablewill depend on the facts of each case.

In re Seagate Technology, LLC, 497 F.3d 1360, 1374 (Fed. Cir. 2007) (en bane).3 They almost appear to be intentionally confusing. Some of the confusion might be

attributable to factors that are not apparent to me. For example, the allegations against Googleand AT&T in No. 12-1701 are intertwined as though the two defendants were connected in someway, but it is not apparent from the amended complaint what that way might be.



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inappropriate verbiage, the amended complaints allege, among other things, that each defendantuses one or more of the exemplary accused products (which are specifically identified) to

infringe the named patents. I believe that minimally complies with Form 18 Thus, I will denyall motions to dismiss direct infringement claims.

Indirect Infringement. Defendants note that indirect infringement - and in particular,induced infringement, which appears to be what Plaintiff is trying to allege, sometimes, in theseamended complaints requires that the defendant specifically intend that someone else directlyinfringe. Indirect infringement claims have to meet a more exacting standard than Form 18 Theclaims of indirect infringement do not allege any basis for knowledge prior to the filing of theoriginal complaints. The indirect infringement claims are quite conclusory as to whom the directinfringers are supposed to e vendors and business partners. E.g., No. 12-1701, D.I. 29,37, in which it appears to state that AT&T induces a vendor to sell it Family Map ). Finally,while defendants state that Plaintiff does not allege it specifically intended to cause its customersto directly infringe the patents, it is possible, although not certain, that Plaintiff indeed does soallege. (E.g., id at ~ 3 9 . Thus, on the whole, I do not think the allegations of indirectinfringement contain sufficient factual information to be plausible. See generally In re Bill ofLading Transmission nd Processing System Patent Litigation 681 F.3d 1323 (Fed. Cir. 2012).Thus, I will grant all motions to dismiss indirect infringement claims.

:6Thus, this li day of January 2014, IT IS HEREBY ORDERED that:I In No. 12-1701, Google's Motion to Dismiss the Willful Infringement Claims (D.I. 30)

is GRANTED The willful infringement claims against Google are DISMISSED AT&T'sMotion to Dismiss (D.I. 32) is GRANTED IN PART AND DENIED IN PART The willfulinfringement and indirect infringement claims are DISMISSED The direct infringement claims



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are sufficient.2 In No. 12-1702, Google's Motion to Dismiss the Willful Infringement Claims (D.I.

26) is GRANTED The willful infringement claims against Google are DISMISSED SprintNextel's Motion to Dismiss (D.I. 28) is GRANTED IN PART AND DENIED IN PART Thewillful infringement and indirect infringement claims are DISMISSED The directinfringement claims are sufficient.

3 In No. 12-1703, Google's Motion to Dismiss the Willful Infringement Claims (D.I. 27)is GRANTED The willful infringement claims against Google are DISMISSED T-Mobile'sMotion to Dismiss (D.I. 24) is GRANTED IN PART AND DENIED IN PART The willfulinfringement and indirect infringement claims are DISMISSED The direct infringement claimsare sufficient.

4 In No. 12-1704, Google's Motion to Dismiss the Willful Infringement Claims (D.I. 23)is GRANTED The willful infringement claims against Google are DISMISSED Verizon's

Motion to Dismiss the Willful Infringement Claims (D.I. 25) is GRANTED The willfulinfringement claims against Verizon et al are DISMISSED

5 In No. 12-1788, AT T's Motion to Dismiss (D.I. 27) is GRANTED IN PART ANDDENIED IN PART The willful infringement and indirect infringement claims against alldefendants are DISMISSED Plaintiffs direct infringement claims are sufficient.

6 Plaintiff is given leave to file a second amended complaint including indirectinfringement claims within two weeks.


callwave comms. llc v. at&t mobility llc, et al., c.a. no. 12-1701-rga to 12-1704-rga, 12-1788-rga...

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