Multimedia Patent Trust v. The Walt Disney Company et al

MEMORANDUM of Points and Authorities re MOTION to Dismiss

S.D. Cal.March 15, 2010

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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) la-1067541 ERIC M. ACKER (CA SBN 135805) MATTHEW R. DOBBINS (CA SBN 259709) MORRISON & FOERSTER LLP 12531 High Bluff Drive, Suite 100 San Diego, California 92130-2040 Telephone: 858.720.5100 VINCENT J. BELUSKO (CA SBN 100282) NICOLE M. SMITH (CA SBN 189598) MORRISON & FOERSTER LLP 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: 213.892.5200 Attorneys for Defendants Fox Entertainment Group, Inc.; Twentieth Century Fox Film Corp.; Twentieth Century Fox Home Entertainment LLC; Twentieth Century Fox International Corp.; Twentieth Century Fox Television; Fox Searchlight Pictures, Inc.; Fox Television Studios, Inc.; Blue Sky Studios, Inc.; Fox Broadcasting Company; Fox News Network, LLC; Fox Cable Networks, Inc.; MyNetworkTV, Inc.; Fox Movie Channel, Inc.; Fox Interactive Media, Inc.; NGC Network US, LLC; NGHT, LLC; NBC Universal, Inc.; Bravo Media LLC; CNBC, Inc.; iVillage, Inc.; MSNBC Cable LLC; Oxygen Media, LLC; Universal Studios, LLC; USA Cable Entertainment, LLC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA MULTIMEDIA PATENT TRUST, Plaintiff, v. THE WALT DISNEY COMPANY, et al., Defendants. Case No. 10 CV 0146 JAH (CAB) MEMORANDUM IN SUPPORT OF MOTION TO DISMISS (OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT) BY Fox Entertainment Group, Inc.; Twentieth Century Fox Film Corp; Twentieth Century Fox Home Entertainment LLC; Twentieth Century Fox International Corp.; Twentieth Century Fox Television; Fox Searchlight Pictures, Inc.; Fox Television Studios, Inc.; Blue Sky Studios, Inc.; Fox Broadcasting Company; Fox News Network, LLC; Fox Cable Networks, Inc.; MyNetworkTV, Inc.; Fox Movie Channel, Inc.; Fox Interactive Media, Inc.; NGC Network US, LLC; NGHT, LLC; NBC Universal, Inc.; Bravo Media LLC; CNBC, Inc.; iVillage, Inc.; MSNBC Cable LLC; Oxygen Media, LLC; Universal Studios, LLC; USA Cable Entertainment, LLC Date: April 26, 2010 Time: 2:30 p.m. Location: Courtroom 11 The Honorable John A. Houston Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 1 of 22 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 TABLE OF CONTENTS PAGE INTRODUCTION........................................................................................................................... 1 FACTUAL BACKGROUND ......................................................................................................... 2 ARGUMENT .................................................................................................................................. 5 I. THE STANDARD FOR ASSESSING A MOTION TO DISMISS ................................... 5 II. MPT’S CLAIMS AGAINST DEFENDANTS SHOULD BE DISMISSED...................... 6 A. MPT’s Complaint Fails To Identify Which Infringement Claims Are Asserted Against Which Defendant ........................................................................ 6 B. MPT’s Complaint Fails To Identify The Allegedly Infringing Actions That Any Defendant Performed....................................................................................... 8 C. MPT’s Complaint Fails To Identify The Accused “Products And/Or Services” And The Patents They Allegedly Infringe .............................................. 9 D. MPT’s Complaint Fails to Support Its Claims for Indirect Infringement ............. 11 E. MPT’s Complaint Fails To Support Its § 271(g) Claim........................................ 14 CONCLUSION ............................................................................................................................. 15 Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 2 of 22 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 TABLE OF AUTHORITIES Page(s) CASES Allied Med. Assoc. v. State Farm Mut. Auto. Ins. Co., No. 08-2434, 2009 WL 1066932 (E.D. Pa. Apr. 16, 2009) ...................................................... 7 Ames v. Dep’t of Marine Res. Comm’n, 256 F.R.D. 22 (D. Maine 2009) ................................................................................................ 8 Anderson v. U.S. Dept. of Housing and Urban Dev., 554 F.3d 525 (5th Cir. 2008) ..................................................................................................... 7 AntiCancer Inc. v. Xenogen Corp., 248 F.R.D. 278 (S.D. Cal. 2007)......................................................................................... 6, 12 Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476 (1964) ................................................................................................................ 13 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) .....................................................................................................passim Augustin v. Dep’t of Pub. Safety, No. 09-00316, 2009 WL 3537516 (D. Hawai’i Oct. 29, 2009) ................................................ 7 Bay Indus., Inc. v. Tru-Arx Mfg., LLC, No. 06-1010, 2006 WL 3469599 (E.D. Wis. Nov. 29, 2006) ................................................... 9 Bell Atlantic v. Twombly, 550 U.S. 544 (2007) .........................................................................................................passim Bender v. Motorola, Inc., No. 09-1245, 2010 WL 726739 (N.D. Cal. Feb. 26, 2010)............................................. 6, 9, 11 C.R. Bard, Inc. v. Advanced Cardiovascular Sys., Inc., 911 F.2d 670 (Fed. Cir. 1990) ................................................................................................. 12 Coolsavings.Com, Inc. v. Catalina Mktg. Corp., No. 98-6668, 1999 WL 342431 (N.D. Ill. May 14, 1999) ...................................................... 13 Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293 (Fed. Cir. 2005) ............................................................................................... 13 DSU Med. Corp. v. JMS Co., 471 F.3d 1293 (Fed. Cir. 2006) ............................................................................................... 12 E.E.O.C. v. St. Francis Xavier Parochial School, 77 F. Supp. 2d 71 (D.D.C. 1999) .............................................................................................. 1 Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 3 of 22 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 TABLE OF AUTHORITIES (Cont’d) Page(s) E-Data Corp. v. Corbis Corp., No. 04-1733, 2005 WL 1252203 (W.D. Wash. May 23, 2005).............................................. 12 Eidos Comms., LLC v. Skype Techs. SA, No. 09-234, 2010 WL 638337 (D. Del. Feb. 24, 2010) ........................................................ 6, 9 Elan Microelecs. Corp. v. Apple, Inc., No. 09-01531, 2009 WL 2972374 (N.D. Cal. Sept. 14, 2009) ..................................... 6, 11, 12 eSoft, Inc. v. Astaro Corp., No. 06-00441, 2006 WL 2164454 (D. Colo. July 31, 2006)................................................... 10 Fifth Market, Inc. v. CME Group, Inc., No. 08-520, 2009 WL 5966836 (D. Del. May 14, 2009) .................................................... 9, 11 Gauvin v. Trombatore, 682 F. Supp. 1067 (N.D. Cal. 1988).......................................................................................... 7 Gen-Probe, Inc. v. Amoco Corp., 926 F. Supp. 948 (S.D. Cal. 1996) .................................................................................... 5, 7, 9 Hewlett-Packard Co. v. Intergraph Corp., No. 03-2517, 2003 WL 23884794 (N.D. Cal. Sept. 6, 2003) ................................................... 9 Jaffe v. Capital One Bank, No. 09-4106, 2010 WL 691639 (S.D.N.Y. Mar. 1, 2010) ........................................................ 7 Jelincic v. Xerox Corp., No. 04-2930, 2004 WL 2217643 (N.D. Cal. Oct. 1, 2004).......................................................7 Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301 (Fed. Cir. 2009) ............................................................................................... 13 Mallinckrodt, Inc. v. E-Z-Em Inc., No. 09-228, 2009 WL 4023134 (D. Del. Nov. 20, 2009) ....................................................... 13 Manville Sales Corp. v. Paramount Sys., Inc. 917 F.2d 544 (Fed. Cir. 1990) ................................................................................................. 12 McElroy v. Tracy Unified School Dist., No. 07-00086, 2008 WL 5045952 (E.D. Cal. Nov. 21, 2008) .................................................. 8 Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009) ..................................................................................................... 5 Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 4 of 22 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 iv TABLE OF AUTHORITIES (Cont’d) Page(s) Omni-Wave Elecs. Corp. v. Marshall Indus., 127 F.R.D. 644 (D. Mass. 1989) ...............................................................................................8 Ondeo Nalco Co. v. EKA Chems., Inc., No. 01-537, 2002 WL 1458853 (D. Del. June 10, 2002) ........................................................ 10 Paulsen v. CNF, Inc., 559 F.3d 1061 (9th Cir. 2009) ................................................................................................... 5 Ristvedt-Johnson, Inc. v. Peltz, No. 91-3273, 1991 WL 255691 (N.D. Ill. Nov. 18, 1991)................................................ 12, 14 Rotello v. Clayton Homes of Del., Inc., No. 03-573, 2006 WL 2771018 (E.D. Tenn. Sept. 25, 2006) ................................................... 7 Sharafabadi v. Univ. of Idaho, No. 09-1043, 2009 WL 4432367 (W.D. Wash. Nov. 27, 2009) ............................................. 14 Shearing v. Optical Radiation Corp., No. 93-850, 1994 WL 382444 (D. Nev. Mar. 25, 1994)......................................................... 13 Tseng v. Marukai Corp. U.S.A., No. 09-0968, 2009 WL 3841933 (C.D. Cal. Nov. 13, 2009) .......................................... 6, 9, 11 United States v. ITT Blackburn Co., 824 F.2d 628 (8th Cir. 1987) ..................................................................................................... 1 Vita-Mix Corp. v. Basic Holding, Inc., 581 F.3d 1317 (Fed. Cir. 2009) ............................................................................................... 13 STATUTES 35 U.S.C. § 271 ......................................................................................................................passim Fed. R. Civ. P. 8(a)(2) ............................................................................................................passim Fed. R. Civ. P. 12 ...................................................................................................................passim Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 5 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 1 la-1067541 INTRODUCTION On January 19, 2010, Multimedia Patent Trust (“MPT”) filed a Complaint that falls far short of the pleading standards recently articulated by the Supreme Court in Bell Atlantic v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Under Twombly and Iqbal, a complaint must be dismissed if the plaintiff fails to plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct at 884. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. MPT’s infringement claims against Defendants1 contain no factual allegations at all, only legal conclusions that parrot 35 U.S.C. § 271. The deficiencies in MPT’s Complaint can be broken down into five categories. First, the Complaint does not assert any particular claim of infringement (i.e., direct, induced, contributory) against any particular Defendant. Second, the Complaint makes no factual allegations specific to 1 “Defendants” is used in this motion to refer to the movants, who include separate and independent companies that were grouped and defined in MPT’s Complaint as “Fox Defendants” and “NBC Defendants.” The Complaint makes no allegations against any particular Defendant individually. Solely for purposes of simplifying Defendants’ discussion of the deficiencies in MPT’s Complaint, Defendants use the terms “Fox Defendants” and “NBC Defendants” herein as MPT used those terms in its Complaint. MPT used the term “NBC Defendants” to broadly assert allegations against the following entities: NBC Universal, Inc.; Bravo Media LLC; CNBC, Inc.; iVillage, Inc.; MSNBC Cable LLC; Oxygen Media, LLC; Universal Studios, LLC; USA Cable Entertainment, LLC; Hulu, LLC and The Weather Channel, Inc. Movants here exclude Hulu, LLC and The Weather Channel, Inc. MPT used the term “Fox Defendants” to broadly assert allegations against the following movants: Fox Entertainment Group, Inc.; Twentieth Century Fox Film Corp.; Twentieth Century Fox Home Entertainment LLC; Twentieth Century Fox International Corp.; Twentieth Century Fox Television; Fox Searchlight Pictures, Inc.; Fox Television Studios, Inc.; Blue Sky Studios, Inc.; Fox Broadcasting Company; Fox News Network, LLC; Fox Cable Networks, Inc.; MyNetworkTV, Inc.; Fox Movie Channel, Inc.; Fox Interactive Media, Inc.; NGC Network US, LLC; and NGHT, LLC (improperly referred to as “NGHT, Inc.” in MPT’s Complaint). Twentieth Century Fox Television, improperly referred to as “Twentieth Century Fox Television, Inc.” in MPT’s Complaint, is an unincorporated division of Twentieth Century Fox Film Corp. and not subject to suit. See, e.g., United States v. ITT Blackburn Co., 824 F.2d 628, 631 (8th Cir. 1987) (an “unincorporated division cannot be sued or indicted, as it is not a legal entity”); E.E.O.C. v. St. Francis Xavier Parochial School, 77 F. Supp. 2d 71, 75-79 (D.D.C. 1999) (granting judgment as matter of law to unincorporated division of a corporation because it lacked capacity to be sued). Accordingly, Twentieth Century Fox Television and Twentieth Century Fox Film Corp. move the Court to dismiss with prejudice MPT’s claims against Twentieth Century Fox Television. Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 6 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 2 la-1067541 any Defendant to support any claim against that Defendant. Third, the Complaint does not identify the “products and/or services” that MPT accuses of infringement or the patent(s) they allegedly infringe. Fourth, the Complaint makes no specific allegations necessary to support MPT’s claims that Defendants contributed to or induced infringement by third parties. It does not say who these third parties are, how they infringed MPT’s patents, or how Defendants contributed to or induced their infringement. Fifth, the Complaint makes no specific allegations to support MPT’s claims under 35 U.S.C. § 271(g) regarding products made by a patented process. Many of the deficiencies in MPT’s Complaint stem from MPT’s liberal use of the catch- all “and/or” throughout the Complaint. This ambiguous pleading technique makes it impossible to tell which claims and factual allegations are asserted against which Defendant. MPT’s “and/or”-based pleading also creates uncertainty for the Defendants collectively, as it is possible that many of the recited claims and activities are not asserted against any Defendant. It also results in nonsensical assertions. For example, according to the Complaint, some unspecified Defendants may have “induced others to infringe [the patents in suit] by . . . making infringing . . . services [and/or] importing infringing . . . services.” Generally products, not services, are made and imported. Defendants are at a loss as to what it means to make or import an infringing service and how they might have induced others to do so. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and the Supreme Court’s decisions in Twombly and Iqbal, Defendants respectfully request that the Court dismiss MPT’s claims against them.2 FACTUAL BACKGROUND In its Complaint (Ex. A), MPT asserts five patents against Defendants. These patents are United States Patent Nos. 4,958,226 (“the '226 patent”), 5,227,878 (“the '878 patent”), 5,136,377 (“the '377 patent”), 5,500,678 (“the '678 patent”), and 5,563,593 (“the '593 patent”) (collectively, 2 In the alternative, Defendants move for a more definite statement under Fed. R. Civ. P. 12(e) that cures the deficiencies identified herein. Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 7 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 3 la-1067541 “patents in suit”). According to the background section of the Complaint, the patents in suit relate to video compression, which is used in many industries: The patents-in-suit are generally directed to systems and methods of encoding and decoding signals representative of moving images (i.e., "video compression"). * * * Video compression techniques are used in various many industries . . . [including] content providers, cable and satellite companies, teleconferencing providers, television manufacturers, television broadcasters and digital media providers. * * * Video compression reduces the amount of digital data needed to represent video so that it can be sent more efficiently over communications media, such as the Internet and satellites, or stored more efficiently on storage media such as DVDs and Blu-Ray disks. For example, without video compression it would be impossible to store a feature-length film on a single DVD. Also, video retrieval via the internet would not be feasible due to the huge volume of uncompressed data that would need to be transmitted. The challenge that comes with video compression, however, is assuring that the video image ultimately reproduced from the reduced amount of digital data is of sufficient quality. (Ex. A, ¶¶ 56-58.) MPT’s infringement allegations are contained in a single paragraph for the NBC Defendants and a single paragraph for the Fox Defendants, and merely set forth legal conclusions that parrot Sections 271(a) and 271(g) of the Patent Act3: The NBC Defendants [Fox Defendants] have directly and/or contributorily infringed and/or induced others to infringe one or more claims of each of the patents [in suit] by making, using, offering to sell, selling and/or importing within the United States infringing products and/or services and/or by importing, offering to sell, selling, or using in the United States products that are made by a process patented in the United States. (Id., ¶¶ 76 & 97.) This paragraph appears to allege that each Defendant has performed one or more of the following nine categories of activities: 1) making infringing products and/or services; 2) using infringing products and/or services; 3) offering to sell infringing products 3 35 U.S.C. § 271(a) states: “[W]hoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.” 35 U.S.C. § 271(g) states: “Whoever 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 . . . .” Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 8 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 4 la-1067541 and/or services; 4) selling infringing products and/or services; 5) importing infringing products and/or services; 6) importing products made by a patented process; 7) offering to sell products made by a patented process; 8) selling products made by a patented process; and 9) using products made by a patented process. The Complaint is unclear as to whether MPT is alleging that at least one of the Defendants has performed infringing activities in each of the nine categories or whether MPT simply copied and pasted from §§ 271(a) and 271(g) every activity that, as a matter of law, can possibly give rise to infringement.4 The Complaint is also unclear as to whether the alleged infringement is direct or indirect or both. The only specific factual allegations the Complaint makes regarding the identity of these accused infringing “products and/or services” appear in two paragraphs relating to jurisdiction: [The NBC Defendants and Fox Defendants] are each subject to this Court's personal jurisdiction because they each do and have done substantial business in this judicial District, including: . . .(iii) selling and offering for sale to consumers within this District DVDs and Blu-Ray disks containing video that has been encoded in an infringing manner . . . . (Id., ¶¶ 50 & 53.) The Complaint is unclear as to whether MPT alleges that all DVDs and Blu- Ray disks that use video compression infringe one or more of the patents in suit. The Complaint is also unclear as to which of the NBC and Fox Defendants have sold DVDs and Blu-Ray disks. Several NBC and Fox Defendants do not sell DVDs or Blu-Ray disks. As such, these paltry factual allegations do nothing to give those defendants fair notice of the allegations against them. The Complaint does not allege that any other products and/or services infringe a patent in suit or indicate which patent(s) in suit are allegedly infringed by the unspecified DVDs and Blu-Ray disks. Though this is not the first case in which the patents in suit have been asserted, prior lawsuits have focused on different technology sectors and business activities than those of the Fox and NBC Defendants. The accused products in prior lawsuits fall generally into the 4 Counting the possibilities created by its “and/or”-based allegations, MPT accuses each Defendant of one of 511 possible combinations of infringing activities, not accounting for MPT’s failure to specify whether the activities involved products or services, discussed in more detail below. Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 9 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 5 la-1067541 categories of products containing video decoders, such as Microsoft’s Windows Vista operating system and Xbox video game consoles (Lucent Techs. v. Gateway, Inc., No. 02-cv-02060 (S.D. Cal.)), and set top boxes for satellite television (MPT v. DirecTV, Inc., No. 09-cv-00278 (S.D. Cal.)). Neither DVDs nor Blu-Ray disks were at issue in prior lawsuits. Moreover, the core businesses of the various Fox and NBC Defendants are generally dissimilar to those of defendants in prior lawsuits and many of its codefendants in this case. ARGUMENT I. THE STANDARD FOR ASSESSING A MOTION TO DISMISS Rule 8 requires that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). If a complaint fails to satisfy Rule 8, it “must be dismissed” under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Twombly, 550 U.S. at 570. To survive a motion to dismiss, the plaintiff’s complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. 544 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1951); Gen-Probe, Inc. v. Amoco Corp., 926 F. Supp. 948, 961 (S.D. Cal. 1996) (“Even under liberal notice pleading, the plaintiff must provide facts that ‘outline or adumbrate’ a viable claim for relief, not mere boilerplate sketching out the elements of a cause of action.”). When considering a motion to dismiss under Rule 12(b)(6), a court should take “all allegations of material fact in the complaint as true.” Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 10 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 6 la-1067541 1937, 1949-50. “While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations.” Id. at 1950. Those facts must be sufficient to push the claims “across the line from conceivable to plausible[.]” Id. at 1951 (quoting Twombly, 550 U.S. at 557). The Twombly decision provides “the pleading standard for ‘all civil actions.’” Iqbal, 129 S. Ct. at 1953 (quoting Twombly, 550 U.S. at 554). In particular, Twombly governs “pleadings in patent infringement actions.” AntiCancer Inc. v. Xenogen Corp., 248 F.R.D. 278, 282 (S.D. Cal. 2007) (dismissing patent infringement claims for failure to satisfy Twombly pleading standard); see also Bender v. Motorola, Inc., No. 09-1245, 2010 WL 726739, at *1-4 (N.D. Cal. Feb. 26, 2010) (same); Eidos Comms., LLC v. Skype Techs. SA, No. 09-234, 2010 WL 638337, at *2-4 (D. Del. Feb. 24, 2010); Xenogen, 248 F.R.D. at 282 (same); Tseng v. Marukai Corp. U.S.A., No. 09- 0968, 2009 WL 3841933, at *1 (C.D. Cal. Nov. 13, 2009) (same); Elan Microelecs. Corp. v. Apple, Inc., No. 09-01531, 2009 WL 2972374, at *2-4 (N.D. Cal. Sept. 14, 2009) (same). II. MPT’S CLAIMS AGAINST DEFENDANTS SHOULD BE DISMISSED A. MPT’s Complaint Fails To Identify Which Infringement Claims Are Asserted Against Which Defendant In its Complaint, MPT asserts direct and indirect (i.e., contributory and induced) infringement claims against the NBC and Fox Defendants collectively: The NBC Defendants [Fox Defendants] have directly and/or contributorily infringed and/or induced others to infringe one or more claims of each of the patents [in suit] . . . . (Ex. A, ¶¶ 76 & 97 (emphasis added).) MPT’s reliance on the phrase “and/or” to state its claims for relief leaves each Defendant to guess whether MPT accuses it of direct infringement, contributory infringement, induced infringement, or some combination of the three. 5 5 Indeed, there are seven different combinations of infringement claims that MPT could be asserting against any one Defendant. Moreover, the NBC and Fox Defendants collectively are unsure whether MPT is accusing at least one of them of all three types of infringement, or whether MPT simply used the phrase “and/or” to cover up its failure to develop well-founded infringement theories prior to filing its Complaint. Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 11 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 7 la-1067541 Such ambiguous pleading does not provide any Defendant with fair notice of the specific infringement claims asserted against it as required under Twombly and is grounds for dismissing the Complaint. See Allied Med. Assoc. v. State Farm Mut. Auto. Ins. Co., No. 08-2434, 2009 WL 1066932, at *5 (E.D. Pa. Apr. 16, 2009) (dismissing counterclaim where “liberal use of the phrase ‘and/or’” forced counterclaim-defendants to “defend multiple theories”). Rule 8(a)(2) requires that defendants “be given notice of the specific claims against them.” Anderson v. U.S. Dept. of Housing and Urban Dev., 554 F.3d 525, 528 (5th Cir. 2008) (emphasis added). Thus, “a complaint must ‘fully [set] forth who is being sued, for what relief, and on what theory . . . .’” Jelincic v. Xerox Corp., No. 04-2930, 2004 WL 2217643, at *2 n.1 (N.D. Cal. Oct. 1, 2004) (quoting McHenry v. Renne, 85 F.3d 1172, 1177 (9th Cir. 1996)). “Where a complaint involves multiple parties and multiple claims, each claim should make it clear which defendants are alleged to have committed which wrongs.” Rotello v. Clayton Homes of Del., Inc., No. 03-573, 2006 WL 2771018, at *4 (E.D. Tenn. Sept. 25, 2006). 6 For example, in Gen-Probe v. Amoco, 926 F. Supp. 948, this Court dismissed a patent infringement complaint that was unclear as to which theories of direct, contributory and induced infringement were asserted against which Amoco-affiliated defendants: It is unclear which of the [Amoco defendants] is accused of which type of infringement. . . . Even were there no other deficiencies, this confusion of which claims apply to which defendants would require that the complaint be dismissed . . . . Id. at 960-61. Similarly here, it is unclear which of the NBC and Fox Defendants is accused of which type of infringement, and the Complaint should be dismissed on the basis of this deficiency alone. 6 See also Gauvin v. Trombatore, 682 F. Supp. 1067, 1071 (N.D. Cal. 1988) (dismissing cause of action because “all defendants [were] lumped together in a single, broad allegation”); Jaffe v. Capital One Bank, No. 09-4106, 2010 WL 691639, at *5 (S.D.N.Y. Mar. 1, 2010) (dismissing complaint where Defendants could not “be expected to discern from the Complaint . . . which Defendants are accused of what misconduct”); Augustin v. Dep’t of Pub. Safety, No. 09- 00316, 2009 WL 3537516, at *4 (D. Hawai’i Oct. 29, 2009) (dismissing complaint for failure to link specific defendants to specific claims). Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 12 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 8 la-1067541 B. MPT’s Complaint Fails To Identify The Allegedly Infringing Actions That Any Defendant Performed In addition to asserting particular claims against individual Defendants, a complaint must provide the grounds of its claims against each defendant independently. See Iqbal, 129 S. Ct. at 1943-44, 1952 (dismissing complaint where plaintiff made necessary factual allegations against some defendants but not against others). Thus, for each defendant individually, the complaint must allege facts that “plausibly give rise to an entitlement to relief.” Id. at 1950.7 Affiliations between corporate defendants do not change the rule that a Complaint must allege facts showing a plausible entitlement to relief from each defendant individually. See, e.g., Omni-Wave Elecs. Corp. v. Marshall Indus., 127 F.R.D. 644, 649-50 (D. Mass. 1989) (denying motion to amend complaint to add Hyundai Electronics Industries (“HEI”) as defendant because proposed amended complaint made unclear “which of the unfair acts and practices are attributable to [original defendant Hyundai Electronics America] and which are alleged to have been committed by HEI”). MPT’s Complaint is nothing more than a smorgasbord of patents, accused entities, accused “products and/or services,” and grounds of infringement that MPT can freely mix and match. MPT’s over-reliance on the phrase “and/or” has left its Complaint bereft of any specific factual allegation against any Defendant. MPT instead collectively accuses the Fox and NBC Defendants of performing unspecified infringing activities involving unspecified “products and/or services.” (Ex. A, ¶¶ 76 & 97.) These allegations are simply recitations of the elements of 35 U.S.C. §§ 271(a) and 271(g) and should not be assumed as true.8 Twombly, 550 U.S. at 555; Iqbal, 129 S. Ct. at 1954. Nor do MPT’s jurisdictional allegations regarding the sale of 7 See also Ames v. Dep’t of Marine Res. Comm’n, 256 F.R.D. 22, 31 (D. Maine 2009) (holding that complaint failed to satisfy Rule 8(a)(2) because it was unclear which factual allegations applied to which defendants); McElroy v. Tracy Unified School Dist., No. 07-00086, 2008 WL 5045952, at *12 (E.D. Cal. Nov. 21, 2008) (granting motion to dismiss after noting that “individual Defendants are not given ‘fair notice’ of the claims alleged against them if Plaintiffs fail to describe who did what, and when”). 8 And as discussed in Section II.D below, MPT neglected to recite even the essential legal elements of its contributory and induced infringement claims. Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 13 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 9 la-1067541 unspecified DVDs and Blu-Ray disks by unspecified Fox and NBC Defendants provide any specific factual allegation against any Defendant. Even if the Court assumed the truth of MPT’s legal conclusions, it is clear that MPT’s Complaint has no definite allegations whatsoever against any Defendant and therefore fails to show the plausibility of MPT’s infringement claims as Rule 8(a)(2) requires. Accordingly, the Complaint must be dismissed. Twombly, 550 U.S. at 548-70; Iqbal, 129 S. Ct. at 1950-52; Eidos, 2010 WL 638337, at *3-4 (dismissing patent-infringement claims that relied on phrase “and/or” and noting that “Plaintiffs have not guided the course of discovery in this action by utilizing [such] conditional language throughout their complaint”). C. MPT’s Complaint Fails To Identify The Accused “Products And/Or Services” And The Patents They Allegedly Infringe It is elementary that a complaint for patent infringement must identify the products or services accused of infringement. See, e.g., Bender, 2010 WL 726739, at *3 (dismissing complaint that did not “identify, with the requisite level of factual detail, the particular product or line of products, that allegedly infringe the [patent in suit]”); Tseng, 2009 WL 3841933, at *1-2 (dismissing complaint that accused defendants of “selling [unspecified] goods that infringe upon Plaintiffs’ products” (alterations omitted) (quoting complaint)); Hewlett-Packard Co. v. Intergraph Corp., No. 03-2517, 2003 WL 23884794, at * 1 (N.D. Cal. Sept. 6, 2003) (granting motion to dismiss claims that defendant’s unspecified “software and hardware products” infringed patents in suit). “Assuming [a] plaintiff has properly investigated his claim before filing suit, there is no reason not to inform the defendant precisely which products” or services are at issue in its complaint. Bay Indus., Inc. v. Tru-Arx Mfg., LLC, No. 06-1010, 2006 WL 3469599, at *2 (E.D. Wis. Nov. 29, 2006) (citing Fed. R. Civ. P. 11(b)(3)); see also Gen-Probe, 926 F. Supp. at 962 (“Filing a patent infringement action pointing vaguely to ‘products and/or kits’ does not provide adequate notice as required by [Rule 8(a)(2)], and does not reflect the reasonable inquiry required by [Rule 11].”). It is also elementary that a complaint for patent infringement must identify the patent(s) that each accused product or service infringes. See, e.g., Fifth Market, Inc. v. CME Group, Inc., Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 14 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 10 la-1067541 No. 08-520, 2009 WL 5966836, at *1 (D. Del. May 14, 2009) (dismissing complaint that failed to allege whether the accused “product infringe[d] one, both, or neither of the patents in suit”). Indeed, it is hard to imagine how a patent plaintiff could “nudge[] [its] claims across the line from conceivable to plausible” without identifying the accused products or services and the patent(s) they infringe. Twombly, 550 U.S. at 570. As discussed above, MPT’s claim for infringement does not identify the accused “products and/or services.” The only concrete allegations MPT makes regarding the identity of Defendants’ accused products are statements in the jurisdictional paragraphs that some unspecified Defendants have sold some unspecified Blu-Ray disks or DVDs that infringe some unspecified patent(s) in suit. This is insufficient to identify the accused products for two reasons. First, it fails to indicate which Blu-Ray disks or DVDs are accused of infringement. If MPT’s contention is that all Blu-Ray disks or all DVDs infringe the patents in suit, Defendants are “entitled to formal notice that such is the nature of plaintiff's accusations.” eSoft, Inc. v. Astaro Corp., No. 06-00441, 2006 WL 2164454, *2 n.1 (D. Colo. July 31, 2006) (ordering plaintiff to amend complaint to allege, as plaintiff argued in opposition to motion to dismiss, that all products made by defendant infringed). Second, it fails to indicate which products besides DVDs and Blu- Ray disks, if any, are accused of infringement, or to provide any limitation at all on the types of products accused. See, e.g., Ondeo Nalco Co. v. EKA Chems., Inc., No. 01-537, 2002 WL 1458853, at *1-2 (D. Del. June 10, 2002) (granting motion to dismiss counterclaim that identified one accused product but was otherwise “too vague to provide . . . fair notice of which products are accused of infringing [counterclaimant’s] patents”). It is important to note that several Defendants do not make or sell DVDs or Blu-Ray disks. MPT’s Complaint leaves these Defendants completely in the dark as to the nature of their accused “products and/or services.” MPT’s Complaint is devoid of any identification of Defendants’ accused services. Indeed, MPT’s use of the phrase “products and/or services” has left Defendants wondering whether there are any accused services at all. Even assuming Blu-Ray disks and DVDs constitute all of Defendants’ accused “products and/or services,” MPT’s assertion that Defendants have sold “DVDs and Blu-Ray disks containing video that has been Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 15 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 11 la-1067541 encoded in an infringing manner” leaves open the question of which patent(s) in suit the DVDs and Blu-Ray disks allegedly infringed. Clearly, with such scarce factual allegations regarding Defendants’ accused products and/or services and the patents they infringe, MPT has not alleged sufficient facts to “plausibly give rise to an entitlement to relief” as required under Iqbal for its claim that Defendants’ products and services infringe the patents in suit.9 For these reasons, MPT’s claims against Defendants must be dismissed. Iqbal, 129 S. Ct. at 1950-52; Bender, 2010 WL 726739, at *3; Fifth Market, 2009 WL 5966836, at *1; Tseng, 2009 WL 3841933, at *1-2. D. MPT’s Complaint Fails to Support Its Claims for Indirect Infringement MPT’s only allegations in support of its claims for contributory and induced infringement against Defendants are the following: The NBC Defendants [Fox Defendants] have . . . contributorily infringed and/or induced others to infringe one or more claims of each of the patents [in suit] by making, using, offering to sell, selling and/or importing within the United States infringing products and/or services and/or by importing, offering to, sell, selling, or using in the United States products that are made by a process patented in the United States. (Ex. A, ¶¶ 76 & 97.) This is no more than the conclusory assertion that Defendants have induced and/or contributed to the direct infringement of unspecified third parties. MPT fails even to recite the bare elements of induced and contributory infringement. Thus, it is readily apparent that MPT’s indirect-infringement claims must be dismissed. See, e.g., Elan, 2009 WL 2972374, at *2, 9 MPT’s Complaint does not even conform to the Federal Rules’ bare-bones form for pleading direct infringement (Form 18), which has been criticized as inadequate under Twombly and Iqbal in any event. See Elan, 2009 WL 2972374, at *2 (“It is not easy to reconcile Form 18 with the guidance of the Supreme Court in Twombly and Iqbal; while the form undoubtedly provides a ‘short and plain statement,’ it offers little to ‘show’ that the pleader is entitled to relief.”). Form 18 provides the following example of a proper allegation of direct infringement: “The defendant has infringed and is still infringing the Letters Patent by making, selling, and using electric motors that embody the patented invention, and the defendant will continue to do so unless enjoined by this court.” (Form 18, Fed. R. Civ. P. Appendix of Forms, emphasis added). MPT, by contrast, claimed only that “[t]he NBC Defendants [Fox Defendants] have [directly and indirectly infringed the patents in suit] by making, using, offering to sell, selling and/or importing within the United States infringing products and/or services and/or by importing, offering to, sell, selling, or using in the United States products that are made by a process patented in the United States.” (Ex. A, ¶¶ 76 & 97 (emphasis added).) Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 16 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 12 la-1067541 4 (dismissing similarly bare indirect infringement counterclaims); Xenogen, 248 F.R.D. at 282 (same); cf. Iqbal, 129 S. Ct. at 1954 (“Rule 8 does not empower [the plaintiff] to plead the bare elements of his cause of action . . . and expect his complaint to survive a motion to dismiss.”). The essential allegations missing from MPT’s indirect infringement claims can be grouped into four categories. First, “indirect infringement claims require a showing that some third party has committed direct infringement.” E-Data Corp. v. Corbis Corp., No. 04-1733, 2005 WL 1252203, at *4 (W.D. Wash. May 23, 2005); see also DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1303 (Fed. Cir. 2006) (“[T]o prevail on contributory infringement, [the plaintiff] must . . . show[] that [the defendant] contributed to another's direct infringement . . . .”); C.R. Bard, Inc. v. Advanced Cardiovascular Sys., Inc., 911 F.2d 670, 674-75 (Fed. Cir. 1990) ("A person induces infringement under 271(b) by actively and knowingly aiding and abetting another's direct infringement.”). MPT’s Complaint fails to identify any third party infringer and alleges no specific facts regarding which patents the third party infringed, how it infringed them, and what “products and/or services” were involved. Accordingly, the Complaint fails to satisfy Rule 8(a)(2). See Elan, 2009 WL 2972374, at *2, 4; Xenogen, 248 F.R.D. at 282. Second, MPT’s Complaint does not indicate what actions of any Defendant make it liable for induced and contributory infringement. To support a claim for induced infringement, “[t]he plaintiff has the burden of showing that the alleged infringer's [Defendant’s] actions induced infringing acts . . . .” DSU, 471 F.3d at 1304 (internal quotation marks omitted) (quoting Manville Sales Corp. v. Paramount Sys., Inc., 917 F.2d 544, 554 (Fed. Cir. 1990)). Moreover, to support a claim for contributory infringement, the plaintiff must show that the alleged infringer [Defendant] sells, offers to sell, or imports “a component of a patented machine, manufacture, combination, or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention.” 35 U.S.C. § 271(c). MPT’s Complaint fails to make any factual allegations-or even state any legal conclusions-regarding these core elements of induced and contributory infringement, as Rule 8(a)(2) requires. See Ristvedt-Johnson, Inc. v. Peltz, No. 91-3273, 1991 WL 255691, at *4-5 (N.D. Ill. Nov. 18, 1991) (dismissing inducement Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 17 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 13 la-1067541 claim, even though complaint identified third-party infringer, because “the plaintiffs fail[ed] to allege any facts showing how the defendants induced [the third party] to infringe”). Third, both induced and contributory infringement have scienter requirements, but MPT makes no allegations in its Complaint regarding any Defendant’s state of mind. See Vita-Mix Corp. v. Basic Holding, Inc., 581 F.3d 1317, 1328 (Fed. Cir. 2009) (“Inducement requires a showing that the alleged inducer . . . knowingly induced the infringing acts, and possessed a specific intent to encourage another’s infringement of the patent.”); Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1320 (Fed. Cir. 2009) (“In order to succeed on a claim of contributory infringement, . . . plaintiff must show that defendant ‘knew that the combination for which its components were especially made was both patented and infringing’ and that defendant's components have ‘no substantial non-infringing uses.’” (quoting Medtronic, 424 F.3d at 1312)).10 MPT’s failure to allege Defendants’ intent is alone sufficient to require dismissal of MPT’s induced and contributory infringement claims.11 Fourth, for contributory infringement, the “plaintiff must show . . . that defendant's components have ‘no substantial non-infringing uses.’” Id. (quoting Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1312 (Fed. Cir. 2005)). MPT’s Complaint makes no allegations at all in this regard. 10 See also Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488 (1964) (35 U.S.C. § 271 (c) requires a showing that an alleged contributory infringer knew that acts would be infringing). 11 See Mallinckrodt, Inc. v. E-Z-Em Inc., No. 09-228, 2009 WL 4023134, *4 (D. Del. Nov. 20, 2009) ("[T]he Court concludes that Plaintiffs have failed to properly state indirect infringement claims. . . . The Court finds that Plaintiffs' Complaint fails to sufficiently allege the requisite intent and knowledge needed to state a claim for inducing infringement. . . . [A]nd accordingly, the Court finds that Plaintiffs have also failed to state a claim for contributory infringement."); Coolsavings.Com, Inc. v. Catalina Mktg. Corp., No. 98-6668, 1999 WL 342431, at *2 (N.D. Ill. May 14, 1999) (“For this [induced infringement] claim to satisfy Rule 12(b)(6), plaintiff must make some factual allegation that implies the existence of the requisite scienter.”); Shearing v. Optical Radiation Corp., No. 93-850, 1994 WL 382444, at *2 (D. Nev. Mar. 25, 1994) (dismissing claims of induced and contributory infringement in part for plaintiff’s failure to plead intent). Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 18 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 14 la-1067541 Clearly, in light of these deficiencies, MPT has not alleged sufficient facts to “plausibly give rise to an entitlement to relief” under Iqbal for its claims that Defendants indirectly infringed the patents in suit. For these reasons, MPT’s claims against Defendants must be dismissed.12 E. MPT’s Complaint Fails To Support Its § 271(g) Claim In its Complaint, MPT alleges: The NBC Defendants [Fox Defendants] have directly and/or contributorily infringed and/or induced others to infringe one or more claims of each of the patents [in suit] by making, using, offering to sell, selling and/or importing within the United States infringing products and/or services and/or by importing, offering to sell, selling, or using in the United States products that are made by a process patented in the United States. (Ex. A, ¶¶ 76, 97 (emphasis added).) These allegations parrot 35 U.S.C. § 271(g).13 MPT’s Complaint neither alleges facts supporting a claim for infringement under § 271(g) nor provides even a bare recital of the legal elements of a § 271(g) claim. For example, the Complaint fails to identify the entity or entities that made products by a process covered by a patent in suit, what those products were, and the patent(s) that the manufacturing process infringed. Accordingly, MPT’s § 271(g) claims against Defendants should be dismissed. See Sharafabadi, 2009 WL 4432367, at *5 (dismissing § 271(g) claims for failure to plead supporting facts). 12 See Sharafabadi v. Univ. of Idaho, No. 09-1043, 2009 WL 4432367, at *5 (W.D. Wash. Nov. 27, 2009) (dismissing indirect infringement claims and noting that plaintiff “pleads no factual allegations sufficient to support an indirect infringement claim against [defendant] under either § 271(b) or § 271(c). The complaint . . . does not allege, for instance, any facts concerning either how [defendant] induced or contributed to another party's direct infringement of the [patent in suit] or [defendant]'s knowledge. The allegations in the complaint, even taken as true, are insufficient to state a claim for indirect infringement.”); Peltz, 1991 WL 255691, at *5 (dismissing induced infringement claims because “the plaintiffs' allegations are so factually insufficient that they do not even suggest how or when the defendants induced [the identified third party] or that the defendants intended to induce [the third party]to infringe on the plaintiffs' patents as required to prove a § 271(b) violation” (internal citation omitted)). 13 Section 271(g) states: “Whoever 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 . . . .” Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 19 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 15 la-1067541 CONCLUSION For the foregoing reasons, the Court should dismiss all of MPT’s claims against Defendants.14 If the Court grants MPT leave to file an amended complaint, it should order MPT to do the following, for each Defendant individually, to comply with Rule 8(a)(2): Specify which infringement claim(s) (i.e., direct, induced, and contributory) MPT asserts against the Defendant; For all infringement claims, identify the accused “products and/or services” and the patents they allegedly infringe; For direct infringement claims, specify what actions the Defendant performed to infringe (i.e., selling, making, using, etc.) and the patents in suit that were thereby infringed; For induced and contributory infringement claims: o specify the patents in suit that are alleged to be infringed; o identify the third parties that directly infringed patents in suit and the actions they performed to infringe the patents; o identify the Defendant’s actions that induced or contributed to the third parties’ direct infringement; o allege facts sufficient to show that the Defendant had the requisite state of mind; For contributory infringement claims, identify the material or apparatus that the Defendant sold, offered for sale, or imported and allege facts sufficient to show that the material or apparatus had no substantial non-infringing use; and For claims under §271(g), specify the patents in suit that are alleged to be infringed and the entity that allegedly performs the patented process. 14 In the alternative, based on the deficiencies in MPT’s Complaint that Defendants have identified herein, Defendants respectfully request that the Court order MPT to provide a more definite statement to Defendants that includes all the factual details listed in the bullet points below. See Fed. R. Civ. P. 12(e) (“A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.”). Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 20 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 16 la-1067541 Dated: March 15, 2010 MORRISON & FOERSTER LLP By: /s/ Eric M. Acker ERIC M. ACKER Attorneys for Defendants Fox Entertainment Group, Inc.; Twentieth Century Fox Film Corp; Twentieth Century Fox Home Entertainment LLC; Twentieth Century Fox International Corp.; Twentieth Century Fox Television; Fox Searchlight Pictures, Inc.; Fox Television Studios, Inc.; Blue Sky Studios, Inc.; Fox Broadcasting Company; Fox News Network, LLC; Fox Cable Networks, Inc.; MyNetworkTV, Inc.; Fox Movie Channel, Inc.; Fox Interactive Media, Inc.; NGC Network US, LLC; NGHT, LLC; NBC Universal, Inc.; Bravo Media LLC; CNBC, Inc.; iVillage, Inc.; MSNBC Cable LLC; Oxygen Media, LLC; Universal Studios, LLC; USA Cable Entertainment, LLC Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 21 of 22 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 MEMO ISO MOTION TO DISMISS CASE NO. 10 CV 0146 JAH (CAB) 17 la-1067541 CERTIFICATE OF SERVICE The undersigned hereby certifies that on March 15, 2010 a true and correct copy of the foregoing was transmitted electronically to the Electronic Filing System of the United States District Court for the Southern District of California, which, under Local Civil Rules 5.4(b)&(c), is believed to have sent notice of such filing, constituting service of the final document, on all Filing Users, all of whom are believed to have consented to electronic service. Executed on March 15, 2010, at Los Angeles, California. /s/ Eric M. Acker ERIC M. ACKER Case 3:10-cv-00146-JAH -CAB Document 82 Filed 03/15/10 Page 22 of 22