8. The claims of the ’215 patent are invalid for failure to satisfy one or more of the requirements of 35 U.S.C. § 100 et seq., 101, 102, 103, and 112. 9.

24), uses the identical words as are used to define an invention under patent law. See [HN8] 35 U.S.C. § 100(a) (defining "invention" as "invention or discovery"); 35 U.S.C. § 101 (providing "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor . . . ."). Under patent law, "[c]onception is the touchstone of inventorship[.]"

Ex. I, Declaration of Hans Christian Vaage at ¶ 3; Ex. J, Declaration of Adam Jackson at ¶J 3, 5. Because there is no evidence that ION’s towed streamer systems are used by anyone to practice WestemGeco’s patented methods in the United States as defined by 35 U.S.C. § 100(c), there is no evidence to support a finding of direct patent infringement under § 271(a). B. Absent direct infringement under 35 U.S.C. § 271(a), no party can be liable for indirect infringement under § 271(b) or (c).

The court granted the plaintiff’s motion to strike, because “[w]ithout this basic information, Plaintiff cannot ascertain the basis for these affirmative defenses.” Id.; see also Qarbon.com, 315 F. Supp. 2d at 1049 (granting plaintiff’s motion to strike defendant’s affirmative defenses of waiver, estoppel, and unclean hands because defendant offered no factual basis). Case3:10-cv-03561-WHA Document35 Filed10/26/10 Page6 of 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 27 28 ORACLE AMERICA’S MOTION TO DISMISS COUNTERCLAIMS AND TO STRIKE CASE NO. CV 10-03561 WHA 6 pa-1429994 satisfy the pleading standards because it merely invokes a list of statutory provisions: “The claims of the Patents-in-Suit are invalid for failure to satisfy one or more of the requirements of Sections 100 et seq., 101, 102, 103, 112, 251, and/or 252 of Title 35 of the United States Code.” As discussed above, patents are presumed to be valid and nothing suggests that the patents at issue might plausibly be invalid, and Google nowhere explains which invalidity theory or theories apply to which patents, nor does it say how or why any – or all – of the patents might be invalid. As held in Iqbal, “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.

Case 1:06-cv-00822-JR Document 30 Filed 11/30/2007 Page 35 of 38 25 IV. PLAINTIFFS’ CITATION TO 35 U.S.C. §§ 100 AND 101 IS A RED HERRING Case 1:06-cv-00822-JR Document 30 Filed 11/30/2007 Page 36 of 38 26 Plaintiffs assert that 35 U.S.C. §§ 100 and 101 mandate that the USPTO grant a patent on a new use of a known process. Br.

Id. at 3228-229, 3231 (citing 35 U.S.C. § 273(b)(1)). Rather, the Supreme Court confirmed that eligibility of methods for patenting under § 101 could be determined by the definition of “process” contained in 35 U.S.C. § 100(b), together with guidance from the Supreme Court’s prior decisions in Benson, Flook and Diehr. 10

See, e.g., Every Penny Counts, Inc. v. Bank of America Corp., 2009 U.S. Dist. LEXIS 53626, *6-7 (M.D. Fl. May 27, 2009); Ex parte Atkin, No. 2008-4352, 2009 WL 247868 (BPAI Jan. 30, 2009).23 Indeed, according to 35 U.S.C. § 100(b), “[t]he term a ‘process’ means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.” 35 U.S.C. § 100(b). Here, at best, the computer or computers are the “machine,” and Bancorp’s claims attempt to describe a new use of the computer or computers to administer an insurance policy.

Moreover, while the APA did not assign the ’218 Patent to New Pharmatop, even if it did, New Pharmatop would be deemed a party to the Am nded Complaint as a matter of law. Case 5:17-cv-01521-JLS Document 64 Filed 11/14/17 Page 15 of 18 13 2691203 See 35 U.S.C. § 100(d) (“The word ‘patentee’ includes not only the patentee to whom the patent was issued but also the successors in title to the pat ntee.”)3 C. Only Pharmatop Assigned its Interests to New Pharmatop in 2017 Braun next claims that because the 2017 Assignment names S.C. Pharmatop as an assignor as well as three additional assignors (inventors Fredj and Dietlin, and a French company New Pharma), there must have been more than one ownr of the ’218 Patent at the time the lawsuit was filed.

And promptly following that assignment, New Pharmatop moved to substitute as Plaintiff (D.I. 46). Moreover, while the APA did not assign the ’218 Patent to New Pharmatop, even if it did, New Pharmatop would be deemed a party to the Amended Complaint as a matter of law (see 35 USC § 100(d) (“The word ‘patentee’ includes not only the patentee to whom the patent was issued but also the successors in title to the patentee.”)).3 C. Only Pharmatop Assigned its Interests to New Pharmatop in 2017 Braun next claims that because the 2017 Assignment names S.C. Pharmatop as an assignor as well as three additional assignors (inventors Fredj and Dietlin, and a French company New Pharma), there must have been more than one owner of the ’218 Patent at the time the lawsuit was filed.

As with his counterclaims, Mr. Fani’s invalidity defense is entirely conclusory. In purely conclusory form, Mr. Fani alleges, “Upon information and belief, Plaintiffs are wholly or partially barred from the relief that it seeks because the asserted claims of the ’699 patent and the ’220 patent are invalid for failure to comply with one or more of the conditions and requirements of patentability as set Case 2:13-cv-05353-DDP-AJW Document 284-1 Filed 04/07/17 Page 7 of 9 Page ID #:6248 7 MOTION TO DISMISS AND STRIKE 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 forth in the Patent Laws of the United States, 35 U.S.C. § 100 et seq., including but not limited to, those set forth in 35 U.S.C. §§ 101, 102, 103, 112, and/or 132, and the rules, regulations, and law pertaining thereto.” (Dkt.