Anza Technology, Inc. v. Arris Group, Inc.

MOTION to Dismiss for Failure to State a Claim Upon Which Relief May Be Granted

S.D. Cal.August 12, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 ARRIS’s Notice of Motion and Motion to Dismiss Case No. 3:16-cv-1261-BEN-RBB Daniel C. Minteer (SBN 62158) DUANE MORRIS LLP 750 B Street, Suite 2900 San Diego, CA 92101-4681 Telephone: +1 619 744 2200 E-mail: dminteer@duanemorris.com Matthew C. Gaudet (admitted pro hac vice) Alice E. Snedeker (admitted pro hac vice) DUANE MORRIS LLP 1075 Peachtree NE, Suite 2000 Atlanta, GA 30309-3929 Telephone: +1 404 253 6900 E-mail: mcgaudet@duanemorris.com aesnedeker@duanemorris.com John M. Baird (admitted pro hac vice) DUANE MORRIS LLP 505 9th Street N.W., Suite 1000 Washington, D.C. 20004-2166 Telephone: +1 202 776 7800 E-mail: jmbaird@duanemorris.com Attorneys for Defendant ARRIS Group, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA Anza Technology, Inc., Plaintiff, v. ARRIS Group, Inc., Defendant. Case No. 3:16-cv-1261-BEN-RBB DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B)(6) FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Date: September 19, 2016 Time: 10:30 a.m. Courtroom: 5A Case 3:16-cv-01261-BEN-RBB Document 22 Filed 08/12/16 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 ARRIS’s Notice of Motion and Motion to Dismiss Case No. 3:16-cv-1261-BEN-RBB TO PLAINTIFF ANZA TECHNOLOGY, INC. AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 19, 2016, at 10:30 A.M. or as soon thereafter as may be heard before the Honorable Roger T. Benitez, in Courtroom 5A of the United States District Court for the Southern District of California, located at 221 West Broadway, San Diego, CA, 92101, Defendant ARRIS Group, Inc. (“ARRIS”) will and hereby does move to dismiss Plaintiff’s First Amended Complaint (“FAC”) for Patent Infringement in the above-titled case. The Motion will be brought under Federal Rule of Civil Procedure 12(b)(6) and is based upon the fact that Plaintiff’s FAC fails to identify with the requisite particularity the accused products and fails to plead sufficient factual content to show a plausible claim of infringement. Thus, Plaintiff has failed to state a claim for direct patent infringement under 35 U.S.C. § 271(g), and the FAC should be dismissed. This motion is based on this written Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the Court’s files and records in this proceeding, and on such other briefing and arguments as may properly come before the Court. Respectfully submitted, Dated: August 12, 2016 DUANE MORRIS LLP By:/s/ Matthew C. Gaudet Matthew C. Gaudet E-mail: mcgaudet@duanemorris.com Daniel C. Minteer E-mail: dminteer@duanemorris.com John M. Baird E-mail: jmbaird@duanemorris.com Alice E. Snedeker E-mail: aesnedeker@duanemorris.com Attorneys for Defendant, ARRIS Group, Inc. Case 3:16-cv-01261-BEN-RBB Document 22 Filed 08/12/16 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB Daniel C. Minteer (SBN 62158) DUANE MORRIS LLP 750 B Street, Suite 2900 San Diego, CA 92101-4681 Telephone: +1 619 744 2200 E-mail: dminteer@duanemorris.com Matthew C. Gaudet (287789) Alice E. Snedeker (151066) DUANE MORRIS LLP 1075 Peachtree NE, Suite 2000 Atlanta, GA 30309-3929 Telephone: +1 404 253 6900 E-mail: mcgaudet@duanemorris.com aesnedeker@duanemorris.com John M. Baird (57585) DUANE MORRIS LLP 505 9th Street N.W., Suite 1000 Washington, D.C. 20004-2166 Telephone: +1 202 776 7800 E-mail: jmbaird@duanemorris.com Attorneys for Defendant ARRIS Group, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA Anza Technology, Inc., Plaintiff, v. ARRIS Group, Inc., Defendant. Case No. 3:16-cv-1261-BEN-RBB DEFENDANT ARRIS GROUP, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS NOTICE OF MOTION AND MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(6) FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Date: September 19, 2016 Time: 10:30 a.m. Courtroom: 5A Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 1 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB TABLE OF CONTENTS Page I. INTRODUCTION ........................................................................................... 1 II. STATEMENT OF FACTS .............................................................................. 2 A. The Parties ............................................................................................. 2 B. The Lack of Meaningful Detail in the Complaint ................................. 3 1. The Accused Products ................................................................ 4 2. The Asserted Claims ................................................................... 8 C. Plaintiff’s Infringement Allegations Pursuant to 35 U.S.C. § 271(g) ............................................................................................... 11 III. LEGAL STANDARD ................................................................................... 11 A. Form 18 No Longer Applies to Claims for Direct Patent Infringement ........................................................................................ 11 B. The Iqbal/Twombly Requirements for a Proper Federal Complaint Alleging Patent Infringement ............................................ 12 C. Plaintiff Must Allege Facts Identifying the Accused Products or Processes and Showing How the Relevant Patent Claims Are Infringed by the Accused Products or Performed in the Accused Process ................................................................................................. 14 IV. ARGUMENT................................................................................................. 15 A. The Failure to Identify Products or Chips. .......................................... 16 B. The Failure to Allege Sufficient Facts Regarding Infringement ........ 18 1. The ’927 Patent ......................................................................... 19 2. The ’905 Patent ......................................................................... 21 V. CONCLUSION ............................................................................................. 24 Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 2 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB TABLE OF AUTHORITIES Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................ 2, 11-16, 19-21 Avocet Sports Tech., Inc. v. Garmin Int’l, Inc., No. C 11-4049 JW, 2012 WL 1030031 (N.D. Cal. Mar. 22, 2012) .............................................. 12, 18 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ......................... 2, 11-13, 16, 19 In re Bill of Lading, 681 F.3d at 1334 ................................................................. 11-13 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677 (9th Cir. 2009) ..................... 14, 21, 23 FootBalance Sys. v. Zero Gravity Inside, Inc., 2016 WL 903681 (S.D. Cal. Feb. 8, 2016) ...................................................................... 12, 16-17, 20 Hologram USA, Inc. v. Pulse Evolution Corp., 2016 WL 199417 (D. Nev. Jan. 15, 2016) ........................................................................................ 12 Ill. Tool Works Inc. v. Elektromanufaktur Zangenstein Hanauer GmbH & Co. KGaA, No. 11-CV-262-JPS, 2011 WL 6002967 (E.D. Wis. Nov. 30, 2011) ............ 18-19 Johnston v. IVAC Corp., 885 F.2d 1574 (Fed. Cir. 1989) ........................................ 14 Macronix Int’l Co. v. Spansion Inc., 4 F. Supp. 3d 797, 804 (E.D. Va. 2014) ........................................................................................ 15, 19, 24 Medsquire LLC v. Spring Med. Sys. Inc., No. 2:11-cv-04504-JHN-PLA, 2011 WL 4101093 (C.D. Cal. Aug. 31, 2011) ................................... 13-14, 17, 19 Mollett v. Netflix, Inc., 795 F.3d 1062 (9th Cir. 2015) ............................................. 13 Oakley, Inc., v. 5.11, Inc., No. 11-cv-2173-WQH (CAB), 2012 WL 1327796 (S.D. Cal 2012) ............................................................................................... 16-17 Proxyconn Inc. v. Microsoft Corp., No. SACV 11-1681 ......................................... 16 Rembrandt Patent Innovations, LLC v. Apple Inc., No. C 14-05094 WHA, 2015 WL 8607390 (N.D. Cal. Dec. 13, 2015) .................................................... 12 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530 (9th Cir. 1984) ................. 13 Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 3 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB Solis v. City of Fresno, No. 1:11-cv-53-AWI-GSA, 2012 WL 868681 (E.D. Cal. Mar. 13, 2012) .............................................................................. 14, 21 Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) ............... 14, 21, 23 Tannerite Sports, LLC v. Jerent Enters., LLC, No. 6:15-CV-00180-AA, 2016 WL 1737740 (D. Or. May 2, 2016) ............................................................ 12 TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360 (Fed. Cir. 2002) ......................... 14 Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689 (9th Cir. 2009) .................. 14, 21-22 Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17 (1997) .................. 15 Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124 (C.D. Cal. 2007) ........................... 7 Ziemba v. Incipio Techs, Inc. No. 13-5590 (JLL), 2014 WL 4637006 (D.N.J. Sept. 16, 2014) .................................................................................. 19, 24 Statutes 35 U.S.C. § 271(g) ..................................................................................... 1, 11, 14-15 Rules Fed. R. Civ. P. 8 ........................................................................................ 2, 13, 14, 23 Fed. R. Civ. P. 84 ...................................................................................................... 12 Fed. R. Civ. P. 12(b)(6) .................................................................................. 2, 13, 15 Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 4 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB I. INTRODUCTION Plaintiff Anza Technology, Inc.’s ( “Plaintiff”) First Amended Complaint (“FAC”) (Dkt. No. 19) fails to meet the standard for pleading direct patent infringement. Although Plaintiff identifies a few lines of products by name, it does not limit its allegations to those product lines. Instead, the FAC alleges that broad categories of products-including almost every product sold by Defendant ARRIS Group, Inc. (“ARRIS”)-has subcomponents in the form of integrated circuit (“IC”) flip chips that infringe the claims of two patents. The FAC acknowledges that ARRIS is not an IC chip manufacturer (or even a supplier); ARRIS buys IC chips from third parties. But the FAC does not add any specificity about what the infringing IC flip chips (or which third parties who manufacture them) are at issue. It is clear that Plaintiff is not (and could not be) alleging that all IC flip chips necessarily infringe its patents; IC flip chips are ubiquitous, and the claims are directed to a very specific assembly process for IC flip chips that would be used, if at all, by an IC chip manufacturer. But the FAC does not provide any information to identify which IC flip chips are at issue and which IC chips are not at issue-no model numbers, no manufacturer or supplier names, and no categories or types of flip chip. Nor is there even an assertion that chips which comply with a specific standard are the ones at issue. In effect, the FAC leaves ARRIS with no basis to know which IC flip chips Plaintiff is accusing of infringement, and thus no way to know what ARRIS products have the accused IC flip chips in them. The FAC simply lacks the factual allegations necessary to support Plaintiff’s direct infringement claims. 1 As a result of these deficiencies, the FAC’s allegations fall far short of the pleading standard now applied to direct infringement claims in patent cases based on 1 As detailed below, Plaintiff only alleges an infringement cause of action against ARRIS for direct infringement under 35 U.S.C. § 271(g), alleging that products sold by ARRIS have integrated circuit (“IC”) chips purportedly produced overseas by a process Plaintiff patented in the United States. (FAC ¶¶ 20 & 28). Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 5 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB Federal Rule of Civil Procedure 8, Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). 2 This standard requires the FAC to specifically inform ARRIS of the accused products-both ARRIS’s products and the relevant IC chips-and enough factual content, that if accepted as true, states a plausible claim of infringement under a cognizable legal theory. The FAC has not met this standard and, therefore, Plaintiff has not provided ARRIS the type of reasonable notice that ARRIS can use to investigate Plaintiff’s claims and to defend itself. Accordingly, the FAC should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). II. STATEMENT OF FACTS A. The Parties Plaintiff identifies itself as a “designer, manufacturer and seller of bonding tools, ESD tools and other products directed to the manufacture and assembly of electronics, in particular the bonding of electrostatic-sensitive devices (ESDs).” (FAC ¶ 6). Unlike Plaintiff, ARRIS is not a “designer, manufacturer and seller of bonding tools, ESD tools and other products directed to the manufacture and assembly of electronics, in particular the bonding of electrostatic-sensitive devices (ESDs),” and the FAC does not allege otherwise. Nor is ARRIS a supplier, designer, or manufacturer of any type of IC flip-chips. See, e.g., id. at ¶¶ 8-10. Plaintiff alleges only that ARRIS “designs, manufactures and/or assembles or imports products that depend on high density integrated circuit (‘IC’) chips that are manufactured and mounted . . . using a ‘flip chip’ bonding process that require special electrostatic discharge (‘ESD’) handling in the . . . assembly process.” Id. at ¶ 9 (emphasis added); see also id. at ¶¶ 15 & 23 (alleging “[f]lip chip bonding is used for 2 Indeed, Plaintiff’s allegations would have even failed to satisfy the now abrogated Form 18, which previously provided plaintiffs with a procedural fiction to avoid showing the “plausibility” standard that has governed since Iqbal/ Twombly. While the procedural fiction of Form 18 is abrogated, it is telling that the FAC would not even satisfy that standard. Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 6 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB packaging and mounting integrated circuit devices [i.e. IC chips] utilized in the Accused Products . . .”) (emphasis added). Thus, Plaintiff essentially concedes that ARRIS does not supply, design or manufacture the chips, and that this information must come from third parties. 3 B. The Lack of Meaningful Detail in the Complaint Plaintiff filed its FAC on July 26, 2016. The FAC asserts infringement of three claims of two patents: U.S. 7,124,927 (“the ’927 Patent”), and U.S. 7,389,905, (“the ’905 Patent”) (collectively, the “Asserted Patents”). FAC ¶¶ 11-12, 15-16, 23-24. Additional background regarding the field of technology of the Asserted Patents is helpful to understand how the FAC fails to provide ARRIS with meaningful notice about the case. Below is a picture that corresponds to some of the concepts at issue in the Complain-it is a cutaway image showing an IC chip that (but for the cutaway) would be hidden within a black “package”: Ex. A, available at http://resource.renesas.com/resource/lib/eng/fab/index.html (last visited August 8, 2016); see, e.g., ’927 Patent, 1:43-46, 1:60-61. As can be seen in the cutaway image, this IC chip is bonded using conventional wire-bonds, which are the small yellow lines running from the top surface of the “IC chip” to the “lead frame” connections running out of the package. In contrast, “flip chip” bonding involves turning (or “flipping”) the “IC chip” over and bonding the surface of the chip directly to connections in the “package” itself (i.e., connections in the package substrate). See, e.g., id. at 1:60-2:16. To be clear, 3 Plaintiff alleges ARRIS has “knowledge of infringement” of the Asserted Patents as a result of Plaintiff’s FAC. Id. at ¶¶ 14 & 22. Plaintiff’s FAC, however, fails to provide a factual basis to provide notice of infringement. Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 7 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB however, neither the Complaint nor the Asserted Patents suggest that Plaintiff invented “flip chips.” Quite to the contrary, the Asserted Patents are directed to a very specific type of tool (a specific “flip-chip bonding tool” and tip) that builds “flip chip” ICs in a particular way. 4 The specification describes the purported invention as follows: In accordance with the principles of the present invention, to avoid damaging delicate electronic devices by any electrostatic discharge, a flip chip bonding tool tip conducts electricity at a rate sufficient to prevent charge buildup but not at so high a rate as to overload the device being bonded. In other words, it is desirable for the bonding tip to discharge slowly to avoid a sudden surge of current that can damage the part being bonded. Id. at Summary of Invention, 2:64-3:5. The question that the FAC must answer, therefore, is what IC flip chips-and, by extension, what ARRIS products that include those yet-to-be-identified IC flip chips- Plaintiff is alleging infringe its patents. As set forth below, the FAC does not provide a sufficient answer to this question because it (1) fails to identify the products at issue with the requisite specificity and (2) fails to allege sufficient facts that, if true, would satisfy the elements of the claims identified in the FAC. The relevant allegations relating to each point are discussed below. 1. The Accused Products Packaged IC chips (including flip chips) are a basic building block of electronics hardware, and are therefore ubiquitous in the telecommunications industry. Thus, simply identifying “IC flip chips” would not narrow the field in a meaningful way. The ARRIS Products. Instead of providing any specificity about types of IC flip chips are at issue, however, Plaintiff broadly accuses ARRIS’s “router, modem, 4 Plaintiff alleges the flip-chips are manufactured utilizing a special electrostatic- discharge-reducing fabrication process covered by three method claims in its two asserted patents. FAC ¶¶ 15-20, 23-28. Specifically, it contends that the claimed flip- chip bonding fabrication method of these claims purportedly requires use of “dissipative materials” to reduce ESD damage during IC chip manufacturing. Id. at ¶¶ 15-16; 23-24. The dissipative materials are supposedly used in the tips of the flip- chip bonding tools for placing solder balls during the bonding of electrical connections in the fabrication of the chips. See ’927 Patent at 1:36-41 & Fig. 3 (Dkt. No. 1-2); see also ’905 Patent at 2:39-41 (Dkt. No. 1-3) Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 8 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB transmitter, receiver, and transponder products and systems that utilize integrated circuit chips that were manufactured and mounted on printed circuit boards using a ‘flip chip’ bonding process and sold under the ‘ARRIS’ brand or as manufactured and sold under other brands.” FAC ¶ 8 (emphasis added). But, “router, modem, transmitter, receiver, and transponder products and systems” include nearly all of ARRIS’s products. ARRIS sells many different types of telecommunications equipment, information about which is publicly available, and almost all of which could be described as “router, modem, transmitter, receiver, and transponder products and systems.” Id. at ¶ 8; see also Products |ARRIS, http://www.arris.com/Products. As this website shows, ARRIS provides products for the following areas, all of which involve some kind of router, modem, transmitter, receiver, or transponder:  Application & Control products (which control, protect, and optimize critical infrastructure and applications to improve insight, management, and service delivery);  Content Delivery & Acquisition products (which optimize content acquisition and preparation to reduce network expenses, cut storage costs, and improve user experience);  Delivery Networks products (which build efficient, scalable, and reliable network infrastructures);  Video Infrastructure products (which deliver extraordinary user experiences, offer new video services, and create additional revenue opportunities with next- generation video delivery); and  Home & Business Connectivity & Devices (which enable the connected home and business). Thus, ARRIS sells hundreds of different products that qualify as “router, modem, transmitter, receiver, and transponder products and systems.” Perhaps aware of this, Plaintiff goes on to list a wide range of examples of included “products and/or product families”, none of which are IC chips: These products include, but are not limited to the following products and/or product families: Ruckus ZoneFlex, Ruckus Smartcell Gateway, and Touchstone Telephony Gateway wi-fi routers; Touchstone and SURFboard cable modems; C4 Cable Modem Termination Systems and associated modules, including, without limitation, C4-RCM-01000W, C4-SCM-02440/-02441/-03441, and FCM-30640W modules; E6000 Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 9 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB Converged Edge Routers; the AT and PWRLink II family of transmitters; DR3021, DR3421 and RDR 4002 digital receivers; DX3515 digital transponders; and the Pace HLP4800 products with built in transmitters and receivers. Id. Again, this open-ended listing identifies nearly every ARRIS product, which is the same as identifying no product. Worse, the list identifies non-ARRIS branded products, e.g., Ruckus, which further expands the possible universe of accused products to situations where ARRIS is a mere reseller, putting ARRIS even further removed from the manufacturing processes of the IC chips at issue. Thus, even with the additional detail, the FAC still encompasses such a large and vague body of products that does not actually narrow the accused products in a meaningful way. The Unidentified Flip Chips. Again, the identification of specific ARRIS products would only be useful if it were a meaningful surrogate to identify what’s really at issue in the case - i.e., to identify the specific IC flip chips that Plaintiff believes infringe its patents. After failing with that surrogate (because the FAC does not narrow down the ARRIS products in any way), Plaintiff still does not provide the requisite detail in the FAC about the IC chips supposedly made using the flip chip bonding process. As discussed above, ARRIS is not a supplier or manufacturer of IC chips, and the FAC leaves ARRIS without even a starting point to investigate which IC chips (and, by extension which products) are at issue. To have satisfied its Rule 11 obligations, Plaintiff must have investigated which IC flip chips it believes were manufactured by the claimed process. The FAC does not specify a category or type of IC flip chip by function, characteristic, manufacturer, supplier, brand name, model number, or even compliance with a particular industry standard. Regarding industry standards, Plaintiff alleges that ARRIS “contracts with [unidentified third parties] to manufacture and assemble the Accused Products in compliance with one or more of these ESD standards.” Id. at ¶¶ 17 & 25; see also id. at ¶ 10. But the FAC does not limit its assertions to any particular standard. The FAC instead asserts vaguely that the asserted claims are “reflected in a number of Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 10 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB manufacturing standards, including, e.g., the ANSI ESD S20.20 standard.” Id. at ¶¶ 16, 24 (emphasis added). A copy of the ANSI ESD Standard is attached as Exhibit A. The standard pertains to devices that are “susceptible to damage by electrostatic discharges greater than or equal to 100 volts . . . and 200 volts . . . .” (Ex. A to Baird Decl., Foreword (emphasis added).) 5 In contrast, the Asserted Patents were concerned with devices sensitive to a “one or more volt static discharge.” See, e.g., ’927 Patent at 2:47-58. Not surprisingly, the FAC does not assert that any Accused Product was manufactured in accordance with the ANSI ESD Standard, which appears to be (by orders of magnitude) irrelevant to the manufacturing process at issue. But even if the Court were to credit everything the FAC says about the standard, the FAC does not even assert that compliance with the standard would necessarily result in infringement of the claim. See, e.g., FAC ¶¶ 16, 24. Further, the FAC fails to affirmatively state that the accused IC chips are the ones that were manufactured in accordance with the named standard or provide a rational basis to conclude they were. Id. Rather, the FAC brings in “other” unspecified, additional standards: “Plaintiff believes and alleges that other applicable ESD standards require substantially similar resistance values.” Id. Thus, Plaintiff - the party who purportedly has specialized knowledge in the area of bonding tools-is virtually silent as to which industry standards are at issue and whether it asserts that compliance with any one of those unnamed standards necessarily results in infringement of one of the three asserted claims. The FAC’s failing to identify the flip chips at issue leaves ARRIS with no notice of what is at issue in this case. Again, IC chips, including flip-chips, are a basic building block of electronics hardware, and are therefore ubiquitous in the telecommunications industry and its products. It is likewise clear that not all IC flip 5 The Court “may consider documents which are not physically attached to the complaint but whose contents are alleged in [the] complaint and whose authenticity no party questions.” Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124, 1128 (C.D. Cal. 2007) (internal quotation marks omitted) (alteration in original). Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 11 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB chips would be at issue-only those IC flip chips that Plaintiff alleges to have been manufactured in the infringing manner. But the FAC does not identify what chips those might be-as distinct from all of the other IC flip chips used in ARRIS’s entire product line. Based on the scant information about the infringing chips in the FAC, ARRIS cannot even determine who the responsible party (or parties) would be, much less investigate third-party chip manufacturers. As a result, Plaintiff’s statement that it is accusing products with flip chips manufactured in a particular way does not provide ARRIS with notice of the alleged infringement, nor provide ARRIS with any ability to focus its defense and investigation. 2. The Asserted Claims The claims identified in the FAC do not provide any further guidance to ARRIS as to what IC flip chips (or, by extension what ARRIS products) are really at issue here, because Plaintiff has not provided any meaningful information about how an IC flip chip would infringe the claims. In other words, ARRIS cannot read the FAC and then narrow down the universe of IC chips that might actually be at issue here. The FAC only asserts infringement of three claims, each of which are independent: claim 16 of the ’927 Patent, and claims 53 and 55 of the ’905 Patent. Id. at ¶¶ 16, 20, 24, 26 & 28. Of these three, claim 16 of the ’927 Patent is highly similar to claim 53 ’905 Patent. a. The ’927 Patent Claim 16 of the ’927 Patent is therefore reproduced below (for purposes of efficiency, notable differences to claim 53 of the ’905 Patent are explained in footnotes): 16. A method of utilizing a flip chip bonding tool and ball placement capillary in a microelectronic assembly, comprising: providing a bonding machine capable of being equipped with a flip chip bonding tool and ball placement capillary having a tip comprised of a dissipative material, the dissipative material having a resistance low enough to prevent a discharge of a charge to a device being Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 12 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB bonded and high enough to stop all current flow 6 to the device being bonded; equipping the bonding machine with the flip chip bonding tool and ball placement capillary; providing a bonding material that is thermally and electrically conductive; melting the bonding material so that the bonding material becomes substantially spherical in shape; and electrically connecting at least one component to a substrate by means of pressing 7 the substantially spherical-shaped bonding material, the substantially spherical bonding material being pressed to form a conductive bump. ’927 Patent, Claim 16, 8:1-23 (Dkt. No. 1-2). The FAC is devoid of factual content pertaining to the requirements of this claim. This is not a mere technicality, because claim 16 (and, by extension, claim 53 of the ’905 Patent) appears to have mutually exclusive requirements: the tool tip would have to be both a “dissipative material” and “stop all current flow.” But if the resistance of the tip were so high as to “stop all” current flow, it would no longer be able to dissipate a current, i.e., it would be an insulator, not a dissipative material, leading to charge buildup and a potentially damaging discharge - defeating the claim’s requirement that the material have “a resistance low enough to prevent a discharge of a charge to a device being bonded.” See, e.g., ’927 Patent, claim 16 and 2:64-3:5 (quoted above). Of course, at this juncture ARRIS is not asking that the Court agree with this conclusion; ARRIS’s point is that reading this claim and reviewing the facts alleged in the FAC, even if true, do not provide a factual basis that would allow a reasonable inference that the claim elements are satisfied, i.e., infringement is plausible, or to know what IC chips are 6 Asserted claim 53 of the ’905 Patent instead requires that the “dissipative material has a resistance . . . high enough to avoid current flow large enough to damage the device being bonded.” ’905 Patent, Claim 53 at 9:16-18 (Dkt. No. 1-3). 7 Asserted claim 53 of the ’905 Patent instead specifies that it is a means of the flip chip bonding tool tip that does the pressing: “means of the flip chip bonding tool tip pressing.” ’905 Patent, Claim 53 at 9:24-25 (Dkt. No. 1-3). Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 13 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB actually being accused of infringement. Accordingly, at this juncture ARRIS asks only that Plaintiff be forced to actually allege specific facts that, if true, would satisfy both of these seemingly contradictory claim elements. b. The ’905 Patent Claim 55 of the ’905 Patent is the third (and final) claim asserted in the FAC, and it is reproduced below: 55. A method of using an electricaLy [sic] dissipative flip chip bonding tool lip [sic], having a resistance in the range of 10 2 to 10 12 ohms, comprising: providing the electrically dissipatite [sic] flip chip bonding tool tip; bonding a material to a device; establishing a potential between the electrically dissipative flip chip bonding tool [] tip and the device being bonded, wherein establishing the potential between the electrically dissipative flip chip bonding tool tip and the device being bonded comprises grounding leads on the device being bonded; and allowing an essentially smooth cur[r]ent to dissipate to the device, the current being low enough so as not to damage the device being bonded and high enough to avoid a build up of charge that could discharge to the device being bonded and damage the device being bonded. ’905 Patent, Claim 55 at 9:31-45 (Dkt. No. 1-3). Again, the FAC does not discuss important limitations such as “establishing a potential”, applying “grounding leads on the device being bonded” or “allowing an essentially smooth cur[r]ent.” And again, this is not mere window dressing: it appears impossible for the same device to infringe both claim 16 of the ’927 Patent and claim 55 of the ’905 Patent, because they have mutually exclusive requirements. Whereas claim 16 requires no current flow to the device, claim 55 requires the opposite: a “smooth current” to dissipate to the device that is “high enough to avoid a build up of charge that could discharge to the device being bonded and damage the device being bonded.” But again, ARRIS is not asking for a judgment in its favor at this point; ARRIS is only asking that Plaintiff be forced to allege facts relating to each of these Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 14 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB elements that, if true, would allow the Court to draw the reasonable inference that the claim elements are satisfied, i.e., infringement is plausible. Instead, the FAC is silent as to Plaintiff’s basis to conclude that the accused products were manufactured using either of these processes, much less set forth facts showing that it is plausible that the mutually exclusive requirements of these claims could both be satisfied. C. Plaintiff’s Infringement Allegations Pursuant to 35 U.S.C. § 271(g) Because the Asserted Patents are directed to manufacturing activities that occur outside of the United States, Plaintiff relies on 35 U.S.C. § 271(g), which sets forth special circumstances when offshore activity can be captured by the U.S. patent laws. Specifically, Plaintiff alleges ARRIS directly infringes the Asserted Patents “in violation of 35 U.S.C. § 271(g) when Defendant imports into the United States or offers to sell, sells, or uses within the United States a product which is made by the processes described [in the FAC].” FAC ¶¶ 20 & 28. Plaintiff also avers that the Accused Products infringe either “alone or in combination with other products, directly or alternatively, under the doctrine of equivalents.” Id. The infringement allegations relative to both Asserted Patents are substantially identical. See, e.g., id. at ¶¶ 13-28. III. LEGAL STANDARD A. Form 18 No Longer Applies to Claims for Direct Patent Infringement Until recently, Form 18 was frequently used by plaintiffs in patent cases to bring minimalist pleadings of direct patent infringement. When Form 18 applied, the Federal Circuit held that “to the extent . . . Twombly and its progeny conflict with the Forms and create different pleadings requirements, the Forms control.” In re Bill of Lading, 681 F.3d at 1334. The net effect was that the heightened plausibility standard from Iqbal and Twombly technically applied to allegations of direct patent infringement, but plaintiffs were excused from actually pleading factual content to demonstrate plausibility due to essentially the procedural fiction of Form 18. This is no longer the case. Amendments to the Federal Rules of Civil Procedure, effective December 1, 2015, recently abrogated Rule 84 and by extension Form 18. Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 15 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB See Tannerite Sports, LLC v. Jerent Enters., LLC, No. 6:15-CV-00180-AA, 2016 WL 1737740, at *3 (D. Or. May 2, 2016) (“the salient fact is Twombly/Iqbal dictates direct- infringement pleading standards as of December 1, 2015”); Rembrandt Patent Innovations, LLC v. Apple Inc., No. C 14-05094 WHA, 2015 WL 8607390, at *2 (N.D. Cal. Dec. 13, 2015); FootBalance Sys. v. Zero Gravity Inside, Inc., 2016 WL 903681, at *10 (S.D. Cal. Feb. 8, 2016). Thus, the Federal Circuit’s holding from In re Bill of Lading applying Form 18 is inapplicable. See Rembrandt, 2015 WL 8607390, at *2 (“Rule 84 has been abrogated, so In re Bill of Lading no longer applies.”); FootBalance, 2016 WL 903681, at *4 (same). 8 Consequently, Plaintiff can no longer invoke Form 18 to excuse its barebones pleading, as the pleading requirements of Iqbal and Twombly require a factual pleading to establish the plausibility of an infringement claim. See, e.g., Avocet Sports Tech., Inc. v. Garmin Int’l, Inc., No. C 11-4049 JW, 2012 WL 1030031, at *3 (N.D. Cal. Mar. 22, 2012) (“Form 18 does not provide adequate notice under the heightened pleading standards articulated in [Twombly and Iqbal].”). B. The Iqbal/Twombly Requirements for a Proper Federal Complaint Alleging Patent Infringement Under Rule 8(a)(2), “[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” In a patent case, a motion to dismiss for failure to state a claim is reviewed under the law 8 Although Plaintiff may cite to Hologram USA, Inc. v. Pulse Evolution Corp., 2016 WL 199417, *2 n.1 (D. Nev. Jan. 15, 2016), to argue that the pleading standard for patent cases has not changed despite the elimination of Form 18, this case is inapplicable. The motion to dismiss at issue in Hologram concerned a second amended complaint, and the defendants did “not dispute that Plaintiffs have pled all of the necessary components of a patent infringement claim.” Id. at *3. Instead, the issue in Hologram was whether an attachment to the complaint demonstrated non- infringement. Id. Notably, it is correct that the pleading “standard” did not change with the abrogation of Form 18-Iqball/Twombly applied before and after the abrogation of the form. What has changed, however, is that Form 18 no longer exists to provide a procedural fiction to assert that the plausibility standard has been satisfied, without pleading a factual basis to show that infringement is plausible. Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 16 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB of the regional circuit. In re Bill of Lading Transmission & Processing Sys. Patent Litig., 681 F.3d 1323, 1331 (Fed. Cir. 2012). In the Ninth Circuit, dismissal is warranted under Rule 12(b)(6) either where the complaint lacks a cognizable legal theory, or where the complaint presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see also Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015) (“We will uphold a district court’s decision to dismiss where there is either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal claim.”) (internal quotations marks omitted). To plead sufficient facts, there is a “threshold requirement” under Rule 8(a)(2) that “the ‘plain statement’ possess enough heft to ‘show that the pleader is entitled to relief.’” Twombly, 550 U.S. at 557 (emphasis added). To meet this requirement, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555. Thus, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). In other words, a complaint must contain enough “factual content” to allow a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although courts generally accept a plaintiff’s allegations in its complaint as true, this does not apply to legal conclusions. Id. Thus, in patent cases, “with regard to Plaintiff’s direct infringement claim, [a] court need not accept as true conclusory legal allegations cast in the form of factual allegations.” Medsquire LLC v. Spring Med. Sys. Inc., No. 2:11-cv-04504-JHN-PLA, 2011 WL 4101093, at *2 (C.D. Cal. Aug. 31, 2011) (citing Twombly, 550 U.S. at 555). “Instead, a complaint must contain sufficient factual matter to make its allegations plausible.” Id. Also, Rule 8 does not require the Court to “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see also Doe I v. Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 17 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009) (“Plaintiffs’ general statement that Wal-Mart exercised control over their day-to-day employment is a conclusion, not a factual allegation stated with any specificity. We need not accept Plaintiffs’ unwarranted conclusion in reviewing a motion to dismiss.”). Finally, “[i]n the post-Twombly and Iqbal era, pleading on information and belief, without more, is insufficient to survive a motion to dismiss for failure to state a claim.” Solis v. City of Fresno, No. 1:11-cv-53-AWI-GSA, 2012 WL 868681, at *8 (E.D. Cal. Mar. 13, 2012); see also Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689, 694 (9th Cir. 2009) (finding insufficient allegations made “upon information and belief” in part because no facts were asserted to support statement). C. Plaintiff Must Allege Facts Identifying the Accused Products or Processes and Showing How the Relevant Patent Claims Are Infringed by the Accused Products or Performed in the Accused Process Plaintiff avers that ARRIS has violated 35 U.S.C. § 271(g), which provides in part that [w]hoever without authority imports into the United States or offers to sell, sells, or uses within the United States a product which is made by a process patented in the United States shall be liable as an infringer, if the importation, offer to sell, sale, or use of the product occurs during the term of such process patent. In applying Rule 8 and the Iqbal/Twombly standard to direct patent infringement, the Court should keep in mind that to ultimately succeed, Plaintiff will have to show that every limitation set forth in a claim is found in an accused product or process. Johnston v. IVAC Corp., 885 F.2d 1574, 1577-78 (Fed. Cir. 1989); see also TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1371 (Fed. Cir. 2002) (“To establish literal infringement, all of the elements of the claim, as correctly construed, must be present in the accused system.”); Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 40 (1997) (doctrine of equivalents, like literal infringement, should be applied on an element-by-element basis). Thus, to plead a claim for direct infringement under § 271(g), Plaintiff should allege facts sufficient to identify the Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 18 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB accused products or processes and to show that it is plausible that the elements of the asserted claims are found therein. Iqbal, 556 U.S. at 678. If a plaintiff fails to include this information, a defendant’s Rule 12(b)(6) motion to dismiss should be granted. For example, dismissal was appropriate in Macronix Int’l Co. v. Spansion Inc., 4 F. Supp. 3d 797, 804 (E.D. Va. 2014), where (a) “the claims for literal infringement d[id] not allege how the offending products [infringed] the claims recited in the [complaint]”; (b) the complaint “simply allege[d] that each element of a cited claim is infringed and then parroted the claim language for each element”; (c) the complaint “fail[ed] adequately to allege infringement under the doctrine of equivalents because [it] merely asserts liability under that doctrine in a bare bones, conclusory form;” and (d) “it [was] not even clear from the FAC what is alleged to be literally infringed and what was alleged to be infringed by equivalents.” IV. ARGUMENT Plaintiff’s FAC fails to meet the standard for pleading direct patent infringement because it fails to meaningfully narrow the accused ARRIS products, fails to provide any details about the IC chips, and does not provide specific details as to how these products allegedly infringe the Asserted Patents. In sum, the lack of identification of any specific accused IC flip chips in combination with the lack of factual detail regarding how any particular IC flip chips would actually infringe this claim leaves ARRIS with no notice of what this case is actually about. Instead, Plaintiff merely provides conclusory statements alleging that all-encompassing categories of ARRIS’s products and unidentified IC chips infringe certain claims. This is not enough. As a result, Plaintiff’s FAC fails to meet the Iqbal/Twombly standard, and also fails to meet the now-obsolete Form 18 standard, which at least required adequate identification of the accused products. The FAC fails to include the necessary factual allegations to support Plaintiff’s claims for direct infringement against ARRIS for two reasons: (1) Plaintiff’s FAC does Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 19 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB not adequately identify the allegedly infringing products or the allegedly infringing flip-chips; and (2) Plaintiff’s FAC does not allege facts that, if true, show how any chip or product infringes the Asserted Patents. Each is discussed below A. The Failure to Identify Products or Chips.9 “Applying Iqbal and Twombly, it is clear that Plaintiff’s allegations [in a patent infringement complaint] are too conclusory when they merely allege that each Defendant is directly infringing ‘by making, using, selling, offering to sell, or importing’ technology that infringes Plaintiff’s method patent.” Proxyconn Inc. v. Microsoft Corp., No. SACV 11-1681 DOC (ANx), 2012 WL 1835680, at *4 (C.D. Cal. May 16, 2012). And this Court has previously granted motions to dismiss where the plaintiff did not identify the alleged accused products with specificity. See, e.g., FootBalance, 2016 WL 903681, at *4 (noting “many courts have even required an exact identification” of accused products and granting motion where identified products encompassed essentially defendant’s entire business); Oakley, Inc., v. 5.11, Inc., No. 11-cv-2173-WQH (CAB), 2012 WL 1327796, at *2-*3 (S.D. Cal 2012) (allegations defendants’ eyewear infringed overbroad because defendants had extensive product lines under that category); Prism Techs., 2012 WL 3867971, at *5 (finding accused “‘various wireless products and data services’ . . . too broad, such that it does not satisfy Form 18 standards,” because it “encompasses essentially [defendant’s] entire business, leaving [it] with no notice as to how it allegedly infringes”). Here, Plaintiff merely alleges that the “accused products for purposes of the asserted patents include but are not limited to [ARRIS’s] router, modem, transmitter, 9 Most of the cases cited in this section were decided prior to the abrogation of Form 18. Thus, under these authorities, the FAC would still be deficient even if it had been filed when Form 18 operated to shield pleading deficiencies. With the form abrogated, these cases provide even more compelling authority that the FAC fails Twombly. Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 20 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB receiver, and transponder products and systems that utilize integrated circuit chips that were manufactured and mounted on printed circuit boards using a ‘flip chip’ bonding process and sold under the ‘ARRIS’ brand or as manufactured and sold under other brands (the ‘Accused Products’).” FAC ¶ 8. This includes virtually every category of product that ARRIS makes (“router, modem, transmitter, receiver, and transponder products and systems”), and those products can be ARRIS branded or not, e.g., the specifically named products include products that ARRIS appears to merely resell, such as Ruckus products. Further, the identifications are open ended (“includes but is not limited to”). The infringement allegations in the FAC are too vague and conclusory to meaningfully identify which products are at issue. Id.; see also Medsquire, 2011 WL 4101093, at *3 (bare allegation defendant infringed “by making, using, selling, and/or offering for sale its Care360 system, which embodies and/or otherwise practices one or more claims” of the patent failed the Iqbal-Twombly standard). Plaintiff’s FAC fails to identify any of the accused flip-chips by category, function, product number, industry standard or manufacturer and which specific ARRIS products allegedly contain the accused chips. FAC ¶ 8. Plaintiff does not allege that ARRIS designs or manufactures the unidentified flip-chips. Rather, Plaintiff avers that some unspecified and unidentified third-party flip-chips are used in virtually all of ARRIS’s products and other products “manufactured and sold under other brands.” Id. This is akin to accusing a restaurant of selling “food items” with “ingredients digestible by humans.” In short, that is almost everything on the menu, and so that provides nothing by way of notice. See FootBalance, 2016 WL 903681, at *3 ((“to be entitled to the presumption of truth, a complaint’s allegations ‘must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively’) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011))). Based on the scant information about the infringing chips in the FAC, ARRIS cannot even determine who the responsible party (or parties) would be, much Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 21 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB less investigate third-party chip manufacturers. As a result, Plaintiff’s statement that it is accusing products with flip chips manufactured in a particular way does not assist ARRIS in focusing its defense and investigation. In sum, the FAC provides no usable specificity as to (1) the Accused Products that allegedly include infringing flip-chips or (2) the flip-chips Plaintiff believes infringe its patents (whether by manufacturer or other identification). Without this information, the FAC “informs” ARRIS only that it is being sued for selling essentially all of its products that contain unspecified, pre-packaged chips that may have been supplied to it by unnamed third parties, and that those unnamed third parties (or perhaps the unnamed third parties’ unnamed vendors) used an allegedly infringing process to package those chips. Thus, ARRIS needs additional information-specifically some identification of (i) a narrowed universe of which ARRIS products are accused and (ii) which third- party chips are allegedly the infringing flip-chips. See, e.g., Avocet, 2012 WL 1030031, at *2 (dismissal appropriate where plaintiff did “not identify a particular product or component alleged to infringed” and as a result defendant had “not been adequately put on notice of the claims against it and the grounds upon which those claims rest[ed]”); Ill. Tool Works Inc. v. Elektromanufaktur Zangenstein Hanauer GmbH & Co. KGaA, No. 11-CV-262-JPS, 2011 WL 6002967, at *2 (E.D. Wis. Nov. 30, 2011) (requiring “a complaint to contain enough specificity to give the defendant notice of what products or aspects of products allegedly infringe the plaintiff’s patent”). B. The Failure to Allege Sufficient Facts Regarding Infringement The FAC is devoid of meaningful allegations regarding how any product or chip allegedly infringes the Asserted Patents. Id.; see also Medsquire, 2011 WL 4101093, at *3 (bare allegation defendant infringed “by making, using, selling, and/or offering for sale its Care360 system, which embodies and/or otherwise practices one or more claims” of the patent failed the Iqbal-Twombly standard); See Ziemba v. Incipio Techs, Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 22 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB Inc. No. 13-5590 (JLL), 2014 WL 4637006, at *3 (D.N.J. Sept. 16, 2014) (pleading insufficient where it failed to allege which products were subject to which theory of liability or “how such products actually infringe any particular claims”). In Macronix, 4 Supp. 3d at 803-04, the court held the allegations of literal infringement were insufficient under Twombly and Iqbal because the complaint “simply allege[d] that each element of a cited claim [was] infringed and then parroted the claim language for each element.” Plaintiff’s FAC contains similar cursory allegations. Moreover, the deficient complaint in Macronix at least made an attempt to “parrot” the language of the patent claims it alleged were infringed, but here the FAC wholesale ignores multiple claim limitations and provides only vague and conclusory allegation that ARRIS products include infringing flip-chips. Thus, even if it had identified the IC chips with specificity, the FAC fails to set forth enough factual content from its Rule 11 prefiling investigation to allow a court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The allegations on the two patents are addressed below. 1. The ’927 Patent The allegations regarding infringement for the ’927 Patent are deficient. The only claim alleged to infringe the ’927 Patent is claim 16. FAC ¶ 16-20. However, claim 16 requires a “dissipative material having a resistance low enough to prevent a discharge of a charge to a device being bonded and high enough to stop all current flow to the device being bonded.” ’927 Patent, Claim 16. The FAC is silent as to any factual basis to conclude that the dissipative material in an accused flip chip bonding process would have had a high enough resistance to “stop all current flow to the device being bonded.” That silence alone is sufficient to dismiss under Iqbal/Twombly. See Iqbal, 556 U.S. at 678 (“Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”); FootBalance, 2016 WL 903681, at *5 Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 23 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB (dismissing claim in part because plaintiff failed to provide factual support for assertions). Worse, on its face, it is not possible to infringe claim 16, because the claim has mutually exclusive requirements: the tool tip cannot be both a “dissipative material” and have such a high resistance that it “stop all current flow.” If the resistance of the tip were so high as to “stop all” current flow, by definition it would no longer be able to dissipate a current. Likewise, the resistance cannot be so high as to stop current flow, while also being low enough to prevent a discharge. The reason is that, according to the specification, one needs the resistance low enough so that a small current will flow, thereby preventing a buildup of charge that can lead to a damaging discharge. See, e.g., ’927 Patent, claim 16 and 2:64-3:5 (quoted above). In the terms of the patent specification, in “the present invention, to avoid damaging . . . electrostatic discharge, a flip chip bonding tool tip conducts electricity at a rate sufficient to prevent charge buildup . . . . In other words, it is desirable for the bonding tip to discharge slowly to avoid a sudden surge of current that can damage the part being bonded.” ’927 Patent, at Summary of Invention, 2:64-3:5. Claim 16 appears inoperable as written, and the FAC is silent as to how the accused products could have been manufactured with a tool that can have such a high resistance to “stop all current flow” and still be a “dissipative material” or still have a resistance “low enough to prevent a discharge of a charge to a device.” ’927 Patent, Claim 16. In other words, the claim limitations of claim 16 are mutually exclusive and impossible on their face to be satisfied-and the FAC is silent about the claim requirement. Against that backdrop, nothing in the FAC alleges facts that, if true, make infringement of claim 16 plausible. To the contrary, the FAC also asserts infringement of claim 55 of the ’905 Patent, which requires the opposite of claim 16. Whereas claim 16 requires such a high resistance in the manufacturing method so as to “stop all current flow to the device being bonded no current,” claim 55 requires a “smooth current to dissipate to the device.” Thus, Plaintiff’s allegations for the ’905 Patent Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 24 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB further evidence why the FAC fails to state a plausible claim for infringement of the ’927 Patent. 2. The ’905 Patent Plaintiff’s FAC also fails to state a plausible claim of infringement with respect to the ’905 Patent. For the ’905 Patent, the FAC only asserts infringement of claims 55 and 53. For claim 55, the FAC is virtually silent as to the claim, and is devoid of factual allegations pertaining to important requirements such as “establishing a potential”, applying “grounding leads on the device being bonded” or “allowing an essentially smooth cur[r]ent.” Compare ’905 Patent, Claim 55 with FAC ¶¶ 24-28. To the extent the FAC even references claim 55, it does so with “merely conclusory, unwarranted deductions of fact, or unreasonable inferences” that the court need not accept as true. Sprewell, 266 F.3d at 988; Wal-Mart, 572 F.3d at 683. Essentially, the FAC relies upon claim 53 to plead infringement of the ’905 Patent, ignoring claim 55. Having put all its eggs in the claim 53 basket, the FAC fails to plead infringement with the requisite factual content to make infringement of that claim plausible, for three reasons. First, despite the Plaintiff being a manufacturer of bonding tools, the FAC relies heavily on allegations made on “information and belief,” which are not sufficient “[i]n the post-Twombly and Iqbal era.” Solis, 2012 WL 868681, at *8; Vivendi, 586 F.3d at 694. Logic that is central to the Plaintiff’s infringement theory is all based on the notion that it “believes” that there are unnamed “other applicable ESD standards” and further that it is “informed and believes and thereon alleges” that the unspecified IC chips are manufactured “in compliance with one or more of those” unspecified ESD standards. FAC ¶¶ 24-25. Second, the FAC does not assert that the claimed methods are required if a standard is practiced, but instead merely says that the claimed methods are “reflected in a number of manufacturing standards.” FAC ¶ 24. The FAC only names one standard, which is identified in open ended language: “including, e.g., ANSI ESD Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 25 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB S20.20 standard.” (hereafter the ANSI ESD Standard) Id. But, even with respect to the ANSI ESD Standard the FAC does not refer with specificity to any portion of the standard or assert that practicing the standard results in practicing the claimed method. A copy of the ANSI ESD Standard (Ex. A to Baird Decl.), and it is far from clear that the standard is at all relevant to the ’905 Patent. The ’905 Patent is concerned with “one or more volt emissions” during the bonding process. ’905 Patent, 2:30-33. The ANSI ESD Standard, however, pertains to devices susceptible to discharges greater than “100 volts.” Ex. B, Foreword. Whereas the ’905 Patent refers to microelectronic bonding machines, the ANSI ESD Standard refers to soldering “hand tools”. Ex. B, 7. The standard does not refer to “flip chip bonding” or tools for such bonding, and does not appear to even specify the resistance values (1 x 10 4 and 1 x 10 11 ohms surface or volume resistance) identified in the FAC. Ex. B; FAC ¶ 24. The FAC then goes on to assert that those missing resistance values are within the range set forth in the ’905 Patent. But the resistance ranges in the ’905 Patent are set forth as being suitable to prevent damage to “present-day magnetic recording heads” (3:64-4:2). The IC chips at issue, as far as is evident in the FAC, are not “magnetic recording heads,” much less magnetic heads that existed as of the effective filing of the ’905 Patent over a decade ago. Thus, even if the ANSI ESD Standard did require the resistance values stated in the FAC (¶ 24), and even if the FAC limited its accusations to IC chips manufactured in accordance with that standard, that would be meaningless to provide a factual basis to reasonably infer that for modern day IC chips, such a wide range of resistances would be “a resistance low enough to prevent a discharge of a charge to a device being bonded and high enough to avoid current flow large enough to damage the device being bonded.” Again, the FAC does not limit itself to any particular type of IC chip, and there is no reason to rationally conclude that modern IC chips would be safely produced just because resistance levels are within the range suitable for devices sensitive to the “100 volt” discharges of the ANSI ESD Standard or the “magnetic recording heads” referred to well over a decade ago in the Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 26 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB ’905 Patent. Rule 8 does not require the Court to “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell, 266 F.3d at 988; Wal-Mart, 572 F.3d at 683. Third, the FAC is further silent with respect to additional important limitations of claim 53. For example, claim 53 requires “electrically connecting an at least one component to a substrate by means of the flip chip bonding tool tip pressing the substantially spherical-shaped bonding material against a chip bond pad.” ’905 Patent, Claim 53 (emphasis added). The FAC, however, does not allege that the IC chips at issue were made (or provide any factual basis to conclude they were made) with the claimed pressing done by the “means of flip chip bonding tool tip.” FAC ¶ 26 (not specifying what is doing the pressing). Furthermore, claim 53 requires that the pressing must be by the tip against a “chip bond pad,” whereas the FAC alleges that the IC chips at issue have bonding material pressed against either the die pad, or against the substrate, the latter of which is unclaimed and thus would be a non-infringing alternative: “pressed against die or substrate pads to form a conductive bump.” FAC ¶ 26. Pleading the existence of non-infringing possibilities cannot give rise to a reasonable inference of infringement. Thus, the FAC fails to assert that compliance with any standard necessitates infringement, fails to identify the standards at issue, unwarranted deductions of fact and conclusory assertions for the standard it does identify, fails to assert that the claimed process must be used to make any particular IC chip, ignores important claim limitations, and even sets forth allegations that the products may be made using non- infringing methods. In short, the FAC fails to identify the products, subcomponents and industry standards that are at issue and wholly fails to set forth plausible factual content to support a reasonable inference that those unnamed products and subcomponents literally infringe the three claims asserted in the FAC. Further, the FAC fails to include any factual allegations supporting Plaintiff’s claim for infringement under the doctrine of equivalents. See Macronix, 4 F. Supp. 3d at 803-04 Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 27 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB (dismissing infringement claims where it was not clear “what [was] alleged to be literally infringed and what [was] alleged to be infringed by equivalents.”); see also Ziemba, 2014 WL 4637006, at *3. Here, as in Macronix, the FAC alleges literal infringement “or alternatively, under the doctrine of equivalents,” without explaining which products, claims or limitations are alleged to be satisfied by equivalents, or why. FAC ¶¶ 20 and 28. As a result, the FAC fails to notify ARRIS of even a single claim limitation alleged to be satisfied under the doctrine of equivalents, let alone provides factual allegations supporting those claims. Therefore, Plaintiff’s FAC fails to state a claim upon which relief can be granted because it fails to adequately identify the accused ARRIS products or the allegedly infringing third-party flip-chips and fails to provide enough factual content, even when accepted as true, to state a plausible claim of infringement. Plaintiff’s FAC should be dismissed. V. CONCLUSION For the reasons stated above, ARRIS respectfully requests that the Court dismiss the FAC in its entirety for failure to state a claim upon which relief may be granted. Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 28 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 P&A ISO DEFENDANT ARRIS GROUP, INC.’S MOTION TO DISMISS THE FAC 16-CV-1261-BEN-RBB Respectfully submitted, Dated: August 12, 2016 DUANE MORRIS LLP By:/s/ Matthew C. Gaudet Matthew C. Gaudet E-mail: mcgaudet@duanemorris.com Daniel C. Minteer E-mail: dminteer@duanemorris.com John M. Baird E-mail: jmbaird@duanemorris.com Alice E. Snedeker E-mail: aesnedeker@duanemorris.com Attorneys for Defendant, ARRIS Group, Inc. Case 3:16-cv-01261-BEN-RBB Document 22-1 Filed 08/12/16 Page 29 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Baird Declaration ISO ARRIS’ Notice of Motion and Motion to Dismiss Case No. 3:16-cv-01261-BEN-RBB Daniel C. Minteer (SBN 62158) DUANE MORRIS LLP 750 B Street, Suite 2900 San Diego, CA 92101-4681 Telephone: +1 619 744 2200 E-mail: dminteer@duanemorris.com Matthew C. Gaudet (287789) Alice E. Snedeker (151066) DUANE MORRIS LLP 1075 Peachtree NE, Suite 2000 Atlanta, GA 30309-3929 Telephone: +1 404 253 6900 E-mail: mcgaudet@duanemorris.com aesnedeker@duanemorris.com John M. Baird (57585) DUANE MORRIS LLP 505 9th Street N.W., Suite 1000 Washington, D.C. 20004-2166 Telephone: +1 202 776 7800 E-mail: jmbaird@duanemorris.com Attorneys for Defendant ARRIS Group, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA Anza Technology, Inc., Plaintiff, v. ARRIS Group, Inc., Defendant. Case No. 3:16-cv-1261-BEN-RBB DECLARATION OF JOHN M. BAIRD IN SUPPORT OF DEFENDANT ARRIS GROUP, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(6) FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Case 3:16-cv-01261-BEN-RBB Document 22-2 Filed 08/12/16 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Baird Declaration ISO ARRIS’ Notice of Motion and Motion to Dismiss Case No. 3:16-cv-01261-BEN-RBB I, John M. Baird, declare as follows: 1. I am a partner with the law firm of Duane Morris LLP, counsel of record for Defendant ARRIS Group, Inc. in the referenced litigation. I have personal knowledge of the facts set forth in this declaration and, if called to testify as a witness, could and would testify competently thereto. 2. Exhibit A to ARRIS’s motion to dismiss is a true and accurate copy of ANSI/ESD S20.20-2014, entitled “ESD Association Standard for the Development of an Electrostatic Discharge Control Program for - Protection of Electrical and Electronic Parts, Assemblies and Equipment (Excluding Electrically Initiated Explosive Devices),” issued and approved by the EOS/ESD Association, Inc. (June 11, 2014) and obtained from the American National Standards Institute (ANSI). 3. ARRIS has separately filed a motion for leave to file this exhibit under seal, and a copy of the exhibit has been filed with that motion. I declare under penalty of perjury that the foregoing is true and correct, and that the statements made upon information and belief are believed by me to be true. Executed, this 12th day of August, 2016, at Washington, DC. /s/ John M. Baird John M. Baird Case 3:16-cv-01261-BEN-RBB Document 22-2 Filed 08/12/16 Page 2 of 2 EXHIBIT A FILED UNDER SEAL Case 3:16-cv-01261-BEN-RBB Document 22-3 Filed 08/12/16 Page 1 of 1