Continental Circuits Llc v. Intel Corporation et alMOTION to Dismiss for Failure to State a ClaimD. Ariz.October 4, 20161 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 G a lla g h e r & K e n n e d y, P .A . 2 5 7 5 E a st C a m e lb a ck R o a d P h o e n ix , A ri zo n a 8 5 0 1 6 -9 2 2 5 (6 0 2 ) 5 3 0 -8 0 0 0 Kenneth M. Motolenich-Salas (Bar No. 027499) GALLAGHER & KENNEDY, P.A. 2575 East Camelback Road Phoenix, Arizona 85016-9225 Telephone: (602) 530-8000 Facsimile: (602) 530-8500 E-mail: ken.motolenich@gknet.com Richard D. Kelly (pro hac vice) Frank J. West (pro hac vice) Jacob A. Doughty (pro hac vice) Lisa M. Mandrusiak (pro hac vice) OBLON, McCLELLAND, MAIER & NEUSTADT, P.C. 1940 Duke Street Alexandria, Virginia 22314 Telephone: (703) 413-3000 Facsimile: (703) 413-2220 Email: rkelly@oblon.com Email: fwest@oblon.com Email: jdoughty@oblon.com Email: lmandrusiak@oblon.com Attorneys for Defendants Ibiden Co., Ltd. and Ibiden U.S.A. Corporation UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Continental Circuits, LLC, Plaintiff, v. Intel Corp., Ibiden U.S.A. Corp., Ibiden Co., Ltd., Defendants. Case No. 2:16-cv-02026-DGC IBIDEN CO. LTD. AND IBIDEN U.S.A. CORP.’S MOTION TO DISMISS AND MEMORANDUM IN SUPPORT THEREOF (Oral Argument Requested) Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 1 of 17 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 G a lla g h e r & K e n n e d y, P .A . 2 5 7 5 E a st C a m e lb a ck R o a d P h o e n ix , A ri zo n a 8 5 0 1 6 -9 2 2 5 (6 0 2 ) 5 3 0 -8 0 0 0 Defendants Ibiden Co. Ltd. and Ibiden U.S.A. Corporation (collectively, “Ibiden”) respectfully move to dismiss Plaintiff Continental Circuit LLC’s (“Continental”) complaint against Ibiden pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim for which relief could be granted. Pursuant to this Court’s order at D.I. 16, the undersigned certifies that Ibiden and Continental conferred to determine whether an amendment of the complaint could cure a deficient pleading yet the parties were unable to agree that the pleading could be cured via amendment.1 I. INTRODUCTION Continental’s complaint fails under the plausibility standard newly applicable to pleading patent infringement and should be dismissed. In December 2015 the Supreme Court abrogated Form 18 from the Federal Rules of Civil Procedure, significantly toughening the pleading standards in infringement cases by requiring complaints to meet the Iqbal/Twombly plausibility standard.2 Continental’s complaint falls far short. Despite asserting direct infringement of four patents3 including 337 total claims,4 Continental discusses only a single claim (claim 14 from the ’560 claim). But, Continental fails to address all elements of that claim including one that formed the basis for the USPTO allowance of the claim. And where claim 14’s elements are addressed, 1 Continental, Ibiden, and Intel participated in a meet and confer via telephone on September 19 and 23, 2016 as well as exchanging written communications. (See e.g., Declaration of Kenneth M. Motolenich-Salas [“M-S Dec.”], Exs. A, B and C thereto (Ibiden’s non-email correspondence.) Continental has refused to file an amended complaint. 2 Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). 3 U.S. Patent Nos. 7,501,582 (the “’582 patent"); 8,278,560 (the “’560 patent”); 8,581,105 (the “’105 patent”); and 9,374,912 (the “’912 patent”) (collectively, “the patents-in-suit”). 4 There are many claims in the ’582 patent that are dependent from multiple other claims. If those claims are included individually, the total number of patent claims at issue in this litigation exceeds 700. Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 2 of 17 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 Continental relies on unsupported, conclusory assertions. Without facts supporting its direct infringement allegations that can be reasonably tied to the patents-in-suit, Continental’s complaint fails under the plausibility standard and should be dismissed. In addition, Continental’s assertions of direct infringement are fundamentally legally flawed. Several of the patents include method claims. But, Continental has only alleged direct infringement under 35 U.S.C. § 271(a), which requires that the method be performed in the United States for infringement liability. Continental has not-and indeed could not-allege that Ibiden performs the patented methods of any of the patents- in-suit in the United States. Thus, Continental’s complaint separately fails legally under the plausibility standard with regard to the method claims and should be dismissed. Without direct infringement there can be no indirect infringement. Because no plausible claim of direct infringement has been made for any of the patents-in-suit, there can be no plausible claim of indirect infringement. Indeed, Continental has only parroted the elements of induced and contributory infringement. Moreover, Continental has not made any plausible factual allegations regarding intent, a requisite element of both induced infringement and willfulness because Continental’s assertions related to intent are contrary to the public record. Thus, all allegations of inducement and willfulness fail to meet the plausibility standard and should be dismissed. Continental’s failure to meet the plausibility standard has far-reaching consequences. In this instance, where the patents involve hundreds of claims and the complaint lists over one thousand accused products, Ibiden is unable to understand any reasonable scope of the scope of the case and move forward with evaluating infringement and validity. Compounding this, Continental further alleges additional unidentified products supposedly manufactured by Ibiden for additional unidentified companies. Because this conclusory and unsupported allegation is based on unidentified products and unidentified companies, Ibiden cannot possibly respond meaningfully, particularly when Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 3 of 17 3 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 added to the hundreds of claims and over one thousand products already alleged in the complaint. Moreover, without any supporting facts, this claim fails to meet the plausibility standard and should be dismissed. II. LEGAL STANDARD The Supreme Court has instructed courts to act as gatekeepers to prevent plaintiffs who have no plausible cause of action from using costly litigation to extort money from defendants. Opening the door to litigation requires “more than an unadorned, the- defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 668. Rather, a plaintiff must allege sufficient facts in a non-conclusory fashion to show a “plausible” claim for relief. Twombly, 550 U.S. at 556. A plausible claim is something more than a mere possibility. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678. A plaintiff cannot simply “plead the bare elements of his cause of action . . . and expect his complaint to survive a motion to dismiss.” Id. at 687. Such conclusory and bald allegations “do not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”5 Id. at 678-79; see also Twombly, 550 U.S. at 680 (factual allegations evaluated without considering legal conclusions or conclusory statements). When assessing a motion to dismiss in the Ninth Circuit,6 a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of 5 Yet, Continental insists on the exchange of early, mutual initial disclosures. Those disclosures are insufficient to resolve the deficiencies in the complaint and Continental has never offered any explanation why such disclosures would address the deficiencies in the complaint. None of these deficiencies are topics of the mandatory initial disclosures. See FED. R. CIV. P. 26(a)(1). 6 A motion to dismiss for failure to state a claim raises a “purely procedural question not pertaining to patent law,” for which courts apply “the law of the regional circuit.” McRO, Inc. v. Namco Bandai Games Am., Inc., 23 F. Supp. 3d 1113, 1116 (C.D. Cal. 2013) (citation omitted). Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 4 of 17 4 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 underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Only well-pleaded factual allegations are presumed to be true: that presumption of truth is not afforded to legal conclusions or conclusory statements. In re Cutera Secs. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). Likewise, a court does not need to accept as true allegations that contradict facts that may be judicially noticed by the Court. Schwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). Courts have taken judicial notice of facts that can be “accurately and readily determined from sources whose accuracy cannot reasonably be questioned,” i.e., public records. FED. R. EVID. § 201(b)(2); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988) (taking judicial notice of public records); United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003) (same). III. CONTINENTAL’S CLAIMS AGAINST IBIDEN SHOULD BE DISMISSED A. Continental’s Claims of Direct Infringement Are Not Plausible and Should Be Dismissed Continental’s sparse direct infringement allegations against the ’582, ’105, and ’912 patents consist of only the allegation that, with respect to each accused product category, “at least one claim” of each patent is infringed-despite hundreds of claims being asserted. (See D.I. 1 at ¶¶ 51-95.) No allegedly-infringed claims are identified, and no claims are compared to any accused device. This is insufficient under Twombly/Iqbal, and the complaint should be dismissed. See, e.g., Mike Murphy's Enters. v. Fineline Indus., LLC, 2016 U.S. Dist. LEXIS 103570, *3 (E.D. Cal. Aug. 4, 2016) (assertion that products “come within the scope of at least one claim” was insufficient); Robern, Inc. v. Glasscrafters, Inc., 2016 U.S. Dist. LEXIS 95590, *15 (D. N.J. July 22, 2016) (bare allegation that “at least one claim” is infringed is not sufficient under Iqbal/Twombly). Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 5 of 17 5 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 In contrast to the boilerplate “at least one claim” language used with the ’582, ’105, and ’912 patents, Continental asserts infringement of a single representative claim of the ’560 patent, claim 14. But Continental’s complaint fails to compare each element of claim 14 to any accused product. Rather, the complaint recites some-but not all-claim elements of claim 14 and makes the bare assertion, without alleging any supporting facts, that those claim elements are present in certain accused product categories. (D.I. 1 at ¶¶ 99-109). For example, no paragraph of the complaint addresses the following claim elements of Claim 14 highlighted in yellow in Table 1: Table 1: Elements of Claim 14 of the ’560 Patent Not Addressed in Complaint 14. An article of manufacture, the article comprising: an epoxy dielectric material delivered with solid content sufficient that etching the epoxy forms a non-uniformly roughened surface comprising cavities located in and underneath a surface of the dielectric material, and sufficient that the etching of the epoxy uses non-homogeneity with the solid content to bring about formation of the non-uniformly roughened surface with at least some of the cavities having a first cross-sectional distance proximate the initial surface and a substantially greater cross-sectional distance distant from the initial surface, and a conductive material, whereby the etching of the epoxy forms the cavities, and a portion of the conductive material in the cavities thereby forming teeth in the cavities, wherein the etching of the non-homogeneous composition forms the cavities, and wherein the conductive material forms a portion of circuitry of an electrical device. (Compare D.I. 1 at ¶¶ 99-109 to D.I. 1-2 (Exhibit B, Claim 14).) See Khoja v. Orexigen Therapeutics, Inc., 2016 U.S. Dist. LEXIS 71209, *24 (S.D. Cal. May 19, 2016) (documents attached to complaint may be considered in a motion to dismiss). Notably, the elements not addressed in the complaint were the basis for patentability as evidenced by the records of the USPTO. (See M-S Dec. Ex. G, ’560 File History, Aug. 15, 2012 Notice of Allowability at 3-4): Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 6 of 17 6 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 The following is an examiner's statement of reasons for allowance: … Claim 14 recites the limitation ‘the etching of the epoxy uses non-homogeneity with the solid content to bring about formation of the non-uniformly roughened surface with at least some of the cavities having a first cross-sectional distance proximate the surface and a substantially greater cross-sectional distance distant from the surface.’ Ibiden respectfully requests that the Court take judicial notice of this fact. See FED. R. EVID. ¶ 201(b)(2); Emrich, 846 F.2d at 1198; Ritchie, 342 F.3d at 907-08. Neglecting to address all elements of the claim is fatally defective because failing to meet a single element is sufficient to negate infringement. See Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1535 (Fed. Cir. 1991). As such, courts in this Circuit applying the Twombly/Iqbal standard have recognized that if a complaint does not address all claim elements, it is insufficient and should be dismissed. e.Digital Corp. v. iBaby Labs, Inc., No. 15-05790, 2016 U.S. Dist. LEXIS 111689, *13 (N.D. Cal. Aug. 22, 2016) (attempting to map “most of the elements in the exemplary claim onto its description of the accused products” insufficient); see also Atlas IP LLC v. Pacific Gas and Electric Co., No. 15-05469, 2016 U.S. Dist. LEXIS 60211, *8 (N.D. Cal. Mar. 9, 2016) (dismissing complaint identifying some but not all claim elements in accused products). Continental provides what are alleged to be photographs of cross-sections of certain Intel products in relation to a few claim elements of claim 14 of the ’560 patent. (See D.I. 1 at ¶ 102.) Labels were placed on those products without explanation reciting certain-again, not all-elements of claim 14. But “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions.” Twombly, 550 U.S. at 555 (alteration in original). Likewise, Continental makes conclusory allegations without any supporting facts in paragraphs 102 and 103 that the photographs are somehow representative of the cross sections of all the accused product categories and that there is no material difference between the substrate layers of any of Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 7 of 17 7 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 the accused product categories. But conclusory allegations are not afforded the presumption of truth and are “insufficient to defeat a motion to dismiss for failure to state a claim.’” Cutera Secs. Litig., 610 F.3d at 1108. Importantly, Continental has also failed to allege that the photographs of cross- sections of Intel products involve substrates manufactured by Ibiden. There are no markings or any other identifying marks associating those substrates with Ibiden. There are no factual allegations connecting Ibiden to the cross-sections of photomicrographs pictured in paragraph 102. Paragraphs 99-109 of the complaint rely upon the photomicrographs of paragraph 102. Accordingly, the allegations in paragraphs 99-109 do not make Continental’s claims for relief plausible. During the meet and confer regarding this motion, Continental’s counsel argued that the incomplete factual allegations (D.I. 1 at ¶¶ 99-109) supposedly relating to claim 14 of the ’560 patent were equally applicable to the other patents-in-suit because the claims all contain the same limitations. When asked where in the complaint there was a statement to this effect, Continental’s counsel admitted there was none. But more significantly, this is incorrect. The claims of the patents-in-suit do not have the same claim limitations.7 For example, claim 83 of the ’582 patent has claim limitations not in claim 14 of the ’560 patent (and lacks most of the claim 14 limitations), and more importantly, that are not addressed in any paragraph of the complaint. Table 2 highlights in yellow the elements of claim 83 of the ’582 patent not addressed in the complaint: / / / / / / / / / 7 Indeed, claims with the same limitations would not be issued by the U.S. Patent and Trademark Office under its strict double patenting provisions. Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 8 of 17 8 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 Table 2: Elements of Claim 83 of the ’582 Patent Not Addressed in Complaint 83. An electrical device including: a dielectric material comprising a surface with cavities remaining from removal of a portion of the dielectric material; a conductive layer built up on the dielectric material so as to fill the cavities and form teeth set in and under the surface of the dielectric material; and wherein: the conductive layer is a portion of circuitry of an electrical device, and a plurality of the cavities are obtuse with respect to the top surface and are at least 1 tenth of a mil deep to 1.75 tenths of a mil deep, and wherein at least one of the cavities includes an upgrade slope with respect to the surface of the dielectric material, and one of the teeth engages a portion of the dielectric material at the slope. (Compare D.I. 1 at ¶¶ 99-109 to D.I. 1-2, Ex. B, Claim 14 with D.I. 1-1, Ex. A, Claim 83). Ibiden encourages the Court to review the claims for itself to appreciate these differences, and notes that the Court is permitted to do so. See Khoja, 2016 U.S. Dist. LEXIS 71209 at *24. As with the ’560 patent, the elements not addressed in the complaint are also the basis for patentability in the notice of allowance for the ’582 patent as evidenced by the public record. (See M-S Dec. Ex. H, ’582 File History, Jan. 22, 2008 Notice of Allowability at 29): The following is an examiner's statement of reasons for allowance: neither the references cited nor the cited references teach, suggest, or in combination of an electronic device and its process having the conductive layer, the filled cavities, or means for joining comprised of teeth, the teeth that are within the range of 1 tenth of a mil deep to 1.75 tenths of a mil deep, and wherein at least one of the cavities includes an upgrade slope with respect to the surface of the dielectric material, and one of the teeth engages a portion of the dielectric material at the slope. [Emphasis in original] Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 9 of 17 9 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 Ibiden respectfully requests that the Court take judicial notice of this fact. See FED. R. EVID. ¶ 201(b)(2); Emrich, 846 F.2d at 1198; Ritchie, 342 F.3d at 907-08 As above, neglecting to address all elements of the claim and attempting to equate clearly different claim elements is fatally defective because failing to meet a single element is sufficient to negate infringement. See Laitram, 939 F.2d at 1535. A large portion of Continental’s direct infringement allegations are also legally deficient. Although Continental has asserted infringement of the patents-in-suit in their entirety, Continental has identified no basis to allege infringement of any method claims in the patents-in-suit. Continental has only alleged direct infringement under 35 U.S.C. § 271(a). This section requires that for infringement of any patented method to occur, the method must be performed in the United States. Continental has not, and indeed could not, allege that Ibiden-whose manufacturing operations are outside the U.S.-performs any patented method in the United States. Nor has Continental provided any reasons to believe Ibiden’s process infringes any claim if it were performed in the United States. Thus, in the absence of any facts and without any legal basis, Continental has not asserted a plausible claim for infringement of any method claim and these claims should be dismissed because they do not support a cognizable legal theory. Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (motion to dismiss may be granted if the complaint lacks a cognizable legal theory or if factual allegations do not support a cognizable legal theory.) B. Continental’s Claims of Indirect Infringement and Willfulness Are Not Plausible and Should Be Dismissed No plausible claim of direct infringement has been made for any of the patents-in- suit. And direct infringement is a well-established element of indirect infringement. Without a plausible claim of direct infringement, there is no plausible claim of indirect infringement. For this reason alone, Continental’s claims of contributory and induced infringement can be dismissed. TeleSign Corp. v. Twilio, Inc., No. 16-2106, 2016 U.S. Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 10 of 17 10 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 Dist. LEXIS 123516, *11 (C.D. Cal. Aug. 3, 2016) (“The Court’s determination that Plaintiff fails to show direct infringement dooms Plaintiff's induced infringement and willful infringement claims as well.”) Moreover, Continental’s allegations of indirect infringement are additionally deficient. Inducement to Infringe. In addition to direct infringement, induced infringement requires (1) that Ibiden knew of the patents-in-suit; and (2) intended to cause direct infringement of those patents by another. 35 U.S.C. § 271(b). Continental makes no allegations from which it can be inferred that Ibiden knew of the patents-in-suit prior to suit or intended to cause infringement of those patents. During the meet and confer, Continental’s counsel identified paragraphs 29-33, 35, 38-40, 41, and 136-137 as the basis for alleging that Ibiden knew of the patents-in-suit prior to suit. These allegations are untrue and riddled with errors, and thus fail to meet the plausibility standard as detailed below. And, each of these substantial errors calls into question the accuracy and legitimacy of not only the claim of inducement, but also the complaint as a whole. Paragraphs 29-33 of the complaint allege that a Continental Circuits, Inc.8 sales representative shared the technology of the patents-in-suit with Ibiden in 1997 after leaving Continental Circuits, Inc. Notably, there is no allegation that the representative told Ibiden about any patent or any patent application. Regardless, this allegation does not-and could not-support an allegation that Ibiden knew of the patents-in-suit pre-suit or had the intent to induce infringement by others because the patents-in-suit did not exist at that time. The exhibits to the complaint (part of the public record of the U.S. Patent and Trademark Office) show that the continuation application on which the patents-in-suit are based was filed on October 20, 2000-three years after the alleged disclosure took place. 8 Continental Circuits, Inc. should not be confused with the plaintiff Continental Circuits LLC. Continental Circuits Inc. was a predecessor of the patentee Microvia, Inc. which ceased to exist upon its 2013 dissolution. In contrast, the plaintiff is a non-practicing entity, whose sole purpose is to exploit the patents-in-suit, formed in 2016. Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 11 of 17 11 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 (See, e.g., D.I. 1-1, Exhibit A to complaint, cover page, “Related U.S. Application Data.”) Ibiden respectfully requests that the Court take judicial notice of this fact. See FED. R. EVID. ¶ 201(b)(2); Emrich, 846 F.2d at 1198; Ritchie, 342 F.3d at 907-08. Paragraph 35 of the complaint alleges that a Continental representative contacted a “Mr. Asusuhi Uchida, General Counsel for Ibiden Circuits of America” in 2005 and informed him of United States Patent Nos. 6,141,870 (“the ’870 patent”) and 6,700,069 (“the ’069 patent”) and the continuation application that led to the issuance of the patents- in-suit. The public record, of which Ibiden respectfully requests the Court take notice, establishes that Continental was not formed until 2016, and therefore, no representative of Continental could have contacted anyone at Ibiden in 2005. (See M-S Dec. Ex. D.) See FED. R. EVID. ¶ 201(b)(2); Emrich, 846 F.2d at 1198; Ritchie, 342 F.3d at 907-08. Counsel for Continental conceded that the allegation was erroneous during the meet and confer. In addition, merely alleging knowledge of a patent application that led to issuance of the patents-in-suit is insufficient to allege knowledge of the patents-in-suit, a required element for alleging indirect infringement. Vasudevan Software, Inc. v. TIBCO Software Inc., No. 11-06638, 2012 U.S. Dist. LEXIS 69952 at *7-*9 and *20 (N.D. Cal. May 18, 2012). In Vasudevan, the plaintiff allegedly made presentations to the defendant regarding an application that later became the patent-in-suit. The court dismissed claims of indirect infringement and willfulness noting that “[t]he requisite knowledge of the patent allegedly infringed simply cannot be inferred from mere knowledge of other patents, even if somewhat similar,” or from “alleged awareness of the [] patent application.” Id. at *7-*9 (willfulness); *20 (indirect infringement). Finally, no “Mr. Asusuhi Uchida” has ever been employed by Ibiden Circuits of America, and Ibiden Circuits of America has never employed a General Counsel. For these reasons, the allegations of Ibiden’s alleged knowledge of the patents/intent to infringe in paragraph 35 are either untrue or, even if true, irrelevant to the prerequisites of indirect infringement. Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 12 of 17 12 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 Paragraphs 38-40 merely allege that the patents-in-suit have been publicly available since their issuance and Ibiden is familiar with the process of searching and identifying U.S. patents. This allegation provides no basis to support a claim that Ibiden had pre-suit knowledge of the patents-in-suit or any intent to induce infringement. See, e.g., Eaton Veterinary Pharm., Inc. v. Diamondback Drugs of Del. LLC, 2014 U.S. Dist. LEXIS 161311, *9 (D. Ariz. Nov. 18, 2014) (induced infringement requires, in part, actual knowledge of the existence of the patent that is infringed) (citing Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 765-66 (2011)). Paragraph 41 alleges that in 2014 a conversation occurred between a Continental representative and an unidentified manager at Ibiden allegedly confirming that the technology of patents-in-suit was in use at Ibiden. Notably, there is no allegation that the representative told Ibiden about any patent. Regardless, this unsupported allegation is not entitled to a presumption of truth at least because no Continental representatives existed in 2014. First, as established by the public record above, Continental itself did not exist prior to 2016. If this was an error and intended to refer to Continental Circuits, Inc., that error still deprives the allegation of any presumption of truth because the public record shows that Continental Circuits Inc. ceased to exist in 1997 as a result of a name change to Microvia, Inc. (See M-S Dec. Ex. E.) Moreover, the public record further establishes that Microvia, Inc. was dissolved in 2013. (See M-S Dec. Ex. F.) Accordingly, in 2014 there was no Continental-related entity in existence and there is no plausible factual allegation to infer that this conversation took place at all. Ibiden respectfully requests that the Court take judicial notice of the relevant public record and find that this allegation is not entitled to a presumption of truth as it is contradicted by the public record. Paragraph 135 alleges that Ibiden induces infringement by collaborating on the design and technical specifications of the accused product categories and by providing technical instruction, but it does not allege any facts showing that Ibiden was aware of the Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 13 of 17 13 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 patents-in-suit or that by taking those acts it would be inducing infringement of the patents-in-suit. Because actual knowledge of the patent(s)-in-suit is a requisite element of induced infringement, paragraph 135 does not provide any support for the state of mind element of induced infringement. Global-Tech Appliances, 563 U.S. at 765-66. Paragraphs 136 and 137 are conclusory statements without supporting facts alleging that Ibiden intended to induce infringement, that it was aware of the patents-in- suit, and that its actions would constitute inducement of infringement or a high probability that it would induce infringement by others of the patents-in-suit. Such allegations are not entitled to the presumption of truth and are not considered when evaluating a motion to dismiss. Iqbal, 556 U.S. at 678 (“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). There is no plausible basis for a claim of induced infringement. Therefore, the claim for inducement of infringement is properly dismissed. Willfulness. As with inducement, intent and knowledge of the patents-in-suit are requisite elements of pleading and proving willfulness. During the meet and confer, Continental’s counsel also identified paragraphs 29-33, 35, 38-40, and 41 of the complaint as being part of the basis for alleging that Ibiden had knowledge of the patents-in-suit and the intent to infringe in support of its willfulness allegations. As discussed above, each of paragraphs 29-33, 35, 38-40, and 41 of the complaint is either contradicted by the public record, unsupported conclusory statements, or do not support a finding of either intent to infringe or knowledge of the patents-in-suit. Vasudevan, 2012 U.S. Dist. LEXIS 69952 at *7-*9 (dismissing willfulness claims where no plausible allegations of knowledge of patents was alleged). The only other paragraphs of the complaint that allege willfulness are paragraphs 141 and 142. Those paragraphs are merely conclusory allegations that Ibiden’s behavior was willful and/or egregious. But to plausibly plead “willful blindness,” the plaintiff must Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 14 of 17 14 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 plead facts demonstrating that defendant knew of the patents and the risk of infringement. See Vasudevan, 2012 U.S. Dist. LEXIS 69952 at *17-*19 (dismissing claim for willful infringement based on conclusory allegations of willful blindness); see also Iqbal, 556 U.S. at 678. As such, dismissal of Continental’s claim of willful infringement is appropriate. Contributory infringement. In addition to direct infringement, contributory infringement requires that (1) the components of systems or services in question have no substantial non-infringing uses and (2) the defendant knew that the components of the systems and services were especially made or adapted for use in infringement of plaintiff's patents. 35 U.S.C. § 271(c). But Continental’s only “factual” allegations merely parrot the elements of contributory infringement without support. (See D.I. 1 at ¶¶ 139-140.) Listing the elements of a cause of action with conclusory allegations is insufficient to survive a motion to dismiss. See Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at 555. C. Continental’s Claims of Infringement by Unidentified Other Products Allegedly Supplied By Ibiden to Unidentified Other Companies Should Be Dismissed Going beyond their unsubstantiated accusations of over one thousand Intel products, Continental attempts to allege additional infringement of unidentified products allegedly manufactured by Ibiden on behalf of unidentified companies other than Intel. (D.I. 1 at ¶¶ 10, 98, 135-138, and 139-140.) This is the very type of fishing expedition that the Supreme Court was referring to when stating that FED. R. CIV. P. 8 Rule 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79. Because they are based on unidentified products and unidentified companies, these unfounded allegations provide no plausible basis for relief and should be dismissed. See Iqbal, 556 U.S. at 678. Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 15 of 17 15 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 IV. CONCLUSION Because the allegations contained in Continental’s complaint are conclusory, merely parrot elements of the cause of action, are admittedly false, and/or are contradicted by the public record such that none of Continental’s causes of action are plausible, Ibiden respectfully requests that the Continental’s complaint be dismissed in its entirety. Respectfully submitted this 4th day of October, 2016. /s/Kenneth M. Motolenich-Salas Kenneth M. Motolenich-Salas (Bar No. 027499) GALLAGHER & KENNEDY, P.A. 2575 East Camelback Road Phoenix, Arizona 85016-9225 Telephone: (602) 530-8000 Facsimile: (602) 530-8500 E-mail: ken.motolenich@gknet.com Richard D. Kelly (pro hac vice) Frank J. West (pro hac vice) Jacob A. Doughty (pro hac vice) Lisa M. Mandrusiak (pro hac vice) OBLON, McCLELLAND, MAIER & NEUSTADT, P.C. 1940 Duke Street Alexandria, Virginia 22314 Telephone: (703) 413-3000 Facsimile: (703) 413-2220 Email: rkelly@oblon.com Email: fwest@oblon.com Email: jdoughty@oblon.com Email: lmandrusiak@oblon.com Attorneys for Defendants Ibiden U.S.A. Corp and Ibiden Co. Ltd. Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 16 of 17 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 G a lla g h e r & K e n n e d y, P .A . 2 5 7 5 E a st C a m e lb a ck R o a d P h o e n ix , A ri zo n a 8 5 0 1 6 -9 2 2 5 (6 0 2 ) 5 3 0 -8 0 0 0 CERTIFICATE OF SERVICE I certify that on the 4th day of October, 2016, I electronically transmitted the foregoing document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to all CM/ECF registrants of record in this matter. /s/Kenneth M. Motolenich-Salas 5072317/26851-0001 Case 2:16-cv-02026-DGC Document 49 Filed 10/04/16 Page 17 of 17
