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

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CALL WAVE COMMUNICATIONS LLC, Plaintiff,

v.
AT&T MOBILITY LLC, et al., Defendants.

Civil Action No. 12-1701-RGA

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CALLWAVE COMMUNICATIONS LLC, Plaintiff,

v.
SPRINT NEXTEL CORP., et al., Defendants.

Civil Action No. 12-1702-RGA

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CALL WAVE COMMUNICATIONS LLC, Plaintiff,

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

Civil Action No. 12-1703-RGA

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CALL WAVE COMMUNICATIONS LLC, Plaintiff,
V.

Civil Action No. 12-1704-RGA

VERIZON COMMUNICATIONS INC., et al., Defendants.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CALL WAVE COMMUNICATIONS LLC, Plaintiff,

v.
AT & T MOBILITY LLC, et al., Defendants.

Civil Action No. 12-1788-RGA

ORDER
In the above-captioned five cases, nine motions to dismiss are pending. (No. 12-1701, D.I. 30 & 32; No. 12-1702, D.I. 26 & 28; No. 12-1703, D.I. 24 & 27; No. 12-1704, D.I. 23 & 25; No.l2-1788, D.l. 27). 1 The arguments are- to a great extent- overlapping, and the Plaintiff managed to respond to the motions in one nineteen page brief. (E.g., No. 12-1701, D.l. 36). Thus, the Court will address the arguments by category.
1

The portions of these motions that sought to dismiss for lack of standing have been withdrawn.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

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Willfulness. For the most part, Plaintiff alleges willfulness on no basis other than the fact that an earlier version of the suit was served on a defendant before the present amended complaint was filed. While I previously had allowed such a pleading, see Ip Venture Inc. v.
Lenovo Group, Ltd, 2013 WL 126726 (D.Del. Jan. 8, 2013), I have now thought better of that

decision. Other judges of this Court have split on this issue. See, e.g., Execware, LLC v. Staples,
Inc., 2012 WL 6138340, at *7 (D.Del. Dec. 10, 2012) (Magistrate Judge Fallon)(dismissing

willfulness allegation); Aeritas, LLC v. Alaska Air Group, Inc., 893 F.Supp.2d 680, 685 (D.Del. 2012) (Judge Robinson) (same); contra, Clouding IP, LLC v. Amazon. com, Inc., 2013 WL 2293452, at *4-5 (D.Del. May 24, 2013) (Judge Stark) (allowing willfulness allegation). Judge Stark stated that there was not much difference conceptually between sending a letter pre-suit and the filing of a complaint to put an alleged infringer on notice, and I agree with the logic of that statement. The pre-suit letter does, however, offer a benefit - the patent holder and the asserted infringer may exchange information, and the asserted infringer might then take a license, or the patent holder might learn of reasons why suit should not be filed. There is a benefit to society if the matter is resolved without a suit. Once a suit is filed, however, the only thing a willfulness allegation in an amended complaint does is allow the Plaintiff to raise the stakes. Given what the Federal Circuit has said about an injunction generally being the preferred remedy for post-filing "reckless" conduct, and recognizing that some plaintiffs- generally, non-competitors- may not be able to seek an injunction, it seems to me the better course is generally not to allow allegations of willfulness based solely on conduct post-dating the filing of the original complaint. 2 See LML The Federal Circuit has indicated that willfulness is generally something that either does, or does not, happen before litigation begins. [I]n ordinary circumstances, willfulness will depend on an infringer's prelitigation conduct. ... [W]hen an accused infringer's post-filing conduct is reckless, a patentee can move for a preliminary injunction, which generally provides an adequate remedy for
2

I i

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Holdings, Inc. v. Pacific Coast Distributing Inc., 2012 WL 1965878, *5 (N.D. Cal. May 30,

2012) ("In essence, [Plaintiff] alleges that Defendants' decision to defend this case on the merits demonstrates willfulness."). The only other willfulness issue is that as early as 2008, Google had knowledge of one of the patents (the '970 patent) as evidenced by citation to the patent in multiple Information Disclosure Statements relating to Google patents. This solitary piece of information is insufficient to support an allegation of willfulness. Thus, I will grant all motions to strike willfulness claims. Direct Infringement. The amended complaints are confusing. 3 They are organized differently than I am used to seeing. The allegations of the amended complaints (e.g., No. 121701, D.I. 29, ~~ 15-19, in which all ofthe patents are titled as involving either "Apparatus" [four out of five], or "System" [the fifth out of five], and are described as involving "systems and methods" [four out of five]), make it appear as though there could be a range of types of claims, although the actual claims in the patents are 100% method claims in four ofthe five patents. (!d. at Exhs. A, B, C, D & E). Nevertheless, while there seems to be a lot of surplus and

combating post-filing willful infringement .... A patentee who does not attempt to stop an accused infringer's activities in this manner should not be allowed to accrue enhanced damages based solely on the infringer's post-filing conduct. Similarly, if a patentee attempts to secure injunctive relief but fails, it is likely the infringement did not rise to the level of recklessness .... We also recognize that in some cases a patentee may be denied a preliminary injunction despite establishing a likelihood of success on the merits, such as when the remaining factors are considered and balanced. In that event, whether a willfulness claim based on conduct occurring solely after litigation began is sustainable will depend on the facts of each case. In re Seagate Technology, LLC, 497 F.3d 1360, 1374 (Fed. Cir. 2007) (en bane). They almost appear to be intentionally confusing. Some of the confusion might be attributable to factors that are not apparent to me. For example, the allegations against Google and AT&T in No. 12-1701 are intertwined as though the two defendants were connected in some way, but it is not apparent from the amended complaint what that way might be.
3

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inappropriate verbiage, the amended complaints allege, among other things, that each defendant "uses" one or more of the "exemplary accused products" (which are specifically identified) to infringe the named patents. I believe that minimally complies with Form 18. Thus, I will deny all motions to dismiss direct infringement claims. Indirect Infringement. Defendants note that indirect infringement - and in particular, induced infringement, which appears to be what Plaintiff is trying to allege, sometimes, in these amended complaints -requires that the defendant specifically intend that someone else directly infringe. Indirect infringement claims have to meet a more exacting standard than Form 18. The claims of indirect infringement do not allege any basis for knowledge prior to the filing of the original complaints. The indirect infringement claims are quite conclusory as to whom the direct infringers are supposed to be- "vendors" and "business partners." (E.g., No. 12-1701, D.I. 29, ~ 37, in which it appears to state that AT&T induces a "vendor" to sell it "Family Map"). Finally, while defendants state that Plaintiff does not allege it specifically intended to cause its customers to directly infringe the patents, it is possible, although not certain, that Plaintiff indeed does so allege. (E.g., id at ~39). Thus, on the whole, I do not think the allegations of indirect infringement contain sufficient factual information to be plausible.
See generally In re Bill of

Lading Transmission and Processing System Patent Litigation, 681 F.3d 1323 (Fed. Cir. 2012).

Thus, I will grant all motions to dismiss indirect infringement claims. Thus, this

:6. _li day of January 2014, IT IS HEREBY ORDERED that:

I. In No. 12-1701, Google's Motion to Dismiss the Willful Infringement Claims (D.I. 30)

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

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are sufficient. 2. In No. 12-1702, Google's Motion to Dismiss the Willful Infringement Claims (D.I. 26) is GRANTED. The willful infringement claims against Google are DISMISSED. Sprint Nextel's Motion to Dismiss (D.I. 28) is GRANTED IN PART AND DENIED IN PART. The willful infringement and indirect infringement claims are DISMISSED. The direct infringement claims are sufficient. 3. In No. 12-1703, Google's Motion to Dismiss the Willful Infringement Claims (D.I. 27) is GRANTED. The willful infringement claims against Google are DISMISSED. T-Mobile's Motion to Dismiss (D.I. 24) is GRANTED IN PART AND DENIED IN PART. The willful infringement and indirect infringement claims are DISMISSED. The direct infringement claims are sufficient. 4. In No. 12-1704, Google's Motion to Dismiss the Willful Infringement Claims (D.I. 23) is GRANTED. The willful infringement claims against Google are DISMISSED. Verizon's Motion to Dismiss the Willful Infringement Claims (D.I. 25) is GRANTED. The willful infringement claims against Verizon et al are DISMISSED. 5. In No. 12-1788, AT&T's Motion to Dismiss (D.I. 27) is GRANTED IN PART AND
DENIED IN PART. The willful infringement and indirect infringement claims against all

defendants are DISMISSED. Plaintiffs direct infringement claims are sufficient. 6. Plaintiff is given leave to file a second amended complaint including indirect infringement claims within two weeks.